Hudson and Secretary, Department of Family and Community Services
[2004] AATA 306
•25 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 306
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/641
GENERAL ADMINISTRATIVE DIVISION )
Re LESLIE HUDSON Applicant
And
SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date25 March 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ...............….(Sgd)......................
RG Kenny
Member
CATCHWORDS
SOCIAL SECURITY - disability support pension - physical, intellectual or psychiatric impairment – impairment rating less than 20 points - relevant time-frame for qualification – need to consider a continuing inability to work
Social Security Act 1991 - section 94, schedule 1B
Social Security (Administration) Act 1991 schedule 2REASONS FOR DECISION
25 March 2004 Mr R G Kenny, Member Background
1. On 23 May 2002, Leslie Hudson (the applicant) lodged a claim with Centrelink for payment of disability support pension in respect of the effects upon him of disabilities which were diagnosed in an attached report from his treating doctor, Dr P Andersen, as “low back pain”, “pain right ankle”, “pain right knee” and “pain right shoulder” (T6). On 29 August 2002, a delegate of Centrelink rejected the applicant’s claim. That decision was affirmed by an authorised review officer on 23 December 2002 and, in turn, by the Social Security Appeals Tribunal on 14 May 2003. On 29 July 2003, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Appearances
2. The applicant attended the hearing but was not represented. Ms J Hamilton from the advocacy and administrative law team with Centrelink appeared on behalf of the Secretary, Department of Family and Community Services (the respondent).
3.At the hearing, the following material was taken into evidence:
Exhibit 1 – documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents: T1 – T30);
Exhibit 2 - a medical imaging report, dated 8 February 2002;
Exhibit 3 - a Usage History Report, dated 3 February 2004;
Exhibit 4 - a document entitled “Felden – WHAT?” by L Goldfarb PhD;
Exhibit 5 - a medical report, dated 19 January 2004, by Dr Richard Laherty;
Exhibit 6 - a medical report, dated 3 July 2003, by Dr M Harvey;
Exhibit 7 - a bundle of physiotherapy clinical notes;
Exhibit 8 - a medical report, dated 13 November 1997, by Dr J M Egerton-Vernon; and
Exhibit 9 - an Owestry Pain Questionnaire, dated 31 August 2001.
Issues and Legislation
4. The issue in this matter is whether or not the applicant is qualified to receive a disability support pension which is payable in accordance with the terms of section 94 of the Social Security Act 1991 (the Act) which relevantly reads:
“94. Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person's impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident.
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a) the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and
(b) either:
(i) the impairment is of itself sufficient to prevent the person form undertaking educational or vocational training or on-the-job training during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
Note: For work see subsection (5).
(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of educational or vocational training or on-the-job training; or
(b) if subsection (4) does not apply to the person - the availability to the person of work in the person’s locally accessible labour market.
(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do the work, have regard to the likely availability to the person of work in the person’s locally accessible labour market.
(5) In this section:
"educational or vocational training" does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;
"on-the-job training" does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;
"work" means work:
(a) that is for at least 30 hours per week at award wages or above; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market."
5.In accordance with that provision, the Tribunal must determine:
· whether the applicant has a physical, intellectual or psychiatric impairment; and, if so
· whether he has an impairment rating of 20 points or more which is calculated under the Impairment Tables in Schedule 1B of the Act as required by paragraph 94(1)(b) thereof; and, if so
· whether he has a continuing inability to work as required by subparagraph 94(1)(c)(i) of the Act.
6. To qualify for a disability support pension, all three of those requirements must be met by the applicant. Further, they must be met at the time of the initial claim or in the period of thirteen weeks starting immediately after the day on which his claim was lodged as provided for in clauses 3 and 4 of schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) which relevantly read:
“Start day-general rule
3.(1) If:
(a) a person makes a claim for a social security payment; and
(b) the person is qualified for the payment on the day on which the claim is made;
the person's start day in relation to the payment is the day on which the claim is made.
Start day-early claim
4.(1) If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
4.(2) For the purposes of subclause (1), the following provisions have effect:
(a) subject to paragraph (b), any social security payment, other than newstart allowance or special benefit, is a relevant social security payment;
(b) parenting payment is not a relevant social security payment in the case of a person who becomes qualified for the payment because of the birth of a child.”
Applicant’s evidence
7. The applicant, who was born on 6 April 1968, gave oral evidence to the Tribunal. He said that he had enjoyed fitness and good health until he had a fall from a cliff when he was 19 years of age as a result of which had suffered injuries to his lower limbs and from which he had not fully recovered. He said that he had also injured his right shoulder in early 2002 when he was the victim of an unprovoked assault. He said that he had endeavoured to regain his former levels of fitness and, to assist him in that regard, he had engaged in a range of therapeutic activities including acupuncture, pilates, feldenkrais, and traditional medicine including physiotherapy. He said that he was gradually regaining a degree of fitness but he said that he would not be unable to progress his situation without the additional benefits which would be available to him if he were in receipt of the disability support pension. He said that, as part of his exercise regime, he rode a bicycle and he described it as having features which enabled him to remain comfortable despite his physical disabilities. In particular, he referred to it as having a sprung seat, wide low-pressure tyres and high handle bars and he also said that he had ridden it to attend the hearing which involved covering a distance of some 5 kilometres.
8. The applicant said that he experiences significant pain in his lower back and that this prevents him from undertaking activities which require bending or lifting. He also said that he is only able to negotiate stairs slowly, that he recently had moved to a flat directly above the one in which he previously lived but that he was unable to assist his friends to move his equipment. He said that he was once able to run up stairs but now is unable to do so..
9. The applicant said that he had undertaken employment in November 2002 as a painter, that this was work which was found for him by Centrelink and that he had been told that failure to engage in the work would result in a loss of his benefits. He said that, after two day’s work, he was laid up in bed for three days. He also said that he had an interest in assisting his local football club, that he had played football in the past and that he had always wanted to take up coaching. He said that, in mid-2002, he had provided voluntary assistance to the team by running on to the field to supply drinks to the players during games.
Medical evidence
10. In evidence before the Tribunal were reports, dated 24 May 2002 and 17 June 2002, from the applicant’s treating doctor, Dr. Andersen (T5 and T8); a report, dated 21 August 2002, from Dr E Nicoll from Health Services Australia (T10); a treating doctor’s report, dated 26 November 2002, from Dr Nicole Laherty from the Royal Brisbane Hospital (T23); a report, dated 19 January 2004, from Dr Richard Laherty, Senior Medical Officer for the Executive Director of Medical Services at Royal Brisbane Hospital (exhibit 5); and a report, dated 3 July 2003, from Dr. M. Harvey, orthopaedic surgeon (exhibit 6).
11. In his first report, Dr. Andersen described the applicant’s pain in his lower back, left knee and right shoulder as “fluctuating” and “constant” while he described the pain in his ankle as “deteriorating” and “constant”. In his second report, he gave the same description is respect of the applicant’s lower back but described the shoulder condition as being “temporary” and “improving” with the pain in his ankle as “fluctuating” and “constant”.. That second report made no reference to the applicant’s knee condition. In the first of his reports, Dr. Andersen described the applicant as being able to return to work within six to twelve months but, in his later report, he extended this to more than two years.
12. Dr Nicoll described the applicant as having a normal range of movement in his lumbar spine and allocated a nil impairment rating under Table 5.2. In relation to the applicant’s right ankle and left knee conditions, he described a good range of movement in the joints and some interference with the applicant’s capacity to walk but, nevertheless, because he was able to walk for 2 kilometres, he allocated a nil impairment rating under Table 4. In relation to the shoulder condition, he described the applicant as having a good range of movement with effective use of his upper limbs and he allocated a nil impairment under Table 3.
13. In her report, Dr Nicole Laherty described the applicant as suffering from pain in his lower back, with limitations to bending, lifting and sitting but with no interference with normal daily functions or activities. She described the applicant as being temporarily unfit for work for a period of two months. In the more recent report of Dr Richard Laherty, the history of the applicant’s treatment is set out and Dr Laherty expressed the opinion on the basis of the various attendances that the evaluation of the applicant’s conditions was not yet complete. He described well documented and ongoing symptoms but stated that further treatment of these conditions was still to be decided.
14. In his report, Dr. Harvey referred to an MRI scan conducted on 19 June 2003 which demonstrated a spinal cord compression and spinal cord stenosis at the L4/L5 vertebral level which was consistent with back and leg pain symptoms. Dr. Harvey said that the applicant was being referred to the neurosurgical Department for review.
Applicant’s contentions
15. The applicant contended that he was not able to engage in employment and that his main concern was the pain that he suffered because of his conditions. He also said that, because he was not in receipt of the disability support pension, he was unable to gain access to assistance which would be beneficial to him in his recuperation. He said that, as matters had unfolded since his initial claim, he had not been able to work for more than two years and he said that all of the exercise and treatment programs that he undertook were designed to make him capable of returning to work. He referred to Table 20 and submitted that he met the description applicable to an impairment rating of 20 points.
Respondent’s contentions
16. Ms. Hamilton referred to the terms of section 94 of the Act and, while conceding that the applicant had a physical disability, submitted that, in the relevant period starting on the date of claim and running for 13 weeks, the applicant’s lower back condition was not fully treated and stabilised and therefore could not be allocated an impairment rating. She referred to the report of Dr Nicoll as providing the basis for determining that there was a nil impairment rating in respect of the remaining conditions. Ms. Hamilton referred to the report of Dr. Nicoll as indicating that the applicant, in November 2002, would have been able to return to work within two months. She noted the reports of Dr. Andersen and submitted that there was inconsistency between them in that there was a short term incapacity for work in the first report but, less then a month later, a statement that he would not be able to work for more than two years.
Consideration
17. It is not in dispute that the applicant suffers a degree of physical impairment as a result of problems associated with his lumbar spine, right ankle, left knee and right shoulder. Section 94 of the Act requires the Tables in Schedule 1B of the Act to be used in calculating impairment ratings and that Schedule includes an Introduction which sets out the methodology for applying the various tables. It provides that, for a rating to be assigned, the condition must be “a fully documented, diagnosed condition which has been investigated, treated and stabilised”. Further, it provides that the condition must be considered to be “permanent”.. Further, these characteristics must be attributable to the condition being assessed as at the time of the claim or within the 13 week time-frame provided in clause 4 of schedule 2 of the Administration Act.
18. In his first report, Dr Andersen described the conditions as fluctuating or deteriorating and, in his second report, he described them as fluctuating or temporary in nature. Those descriptions were given within the 13 week period after the initial claim was made and are not consistent with the condition having been investigated, treated and stabilised. The report of Dr Nicoll was made at the end of that 13 week period and he described the conditions as being permanent but as not being sufficiently severe to prevent the applicant from undertaking employment. Dr Richard Laherty, in his report, declared that evaluation of the applicant was not yet complete and that further monitoring was planned. On that evidence, I accept the contention of Ms Hamilton and find, accordingly, that the conditions in the applicant, at any time during the relevant 13 week period, do not satisfy the requirements in the Introduction of the Tables in Schedule 1B of the Act that they must have been investigated, treated and stabilised.
19. If it were the case that the conditions were capable of being allocated impairment ratings, I have noted the evidence of Dr Nicoll that the conditions attract a nil impairment rating under tables 3, 4 and 5 of the Tables, respectively. I am satisfied that the ratings of nil under those Tables are appropriate for the descriptions provided in his report and in the reports of Dr Andersen.
20. The applicant contended that he should be allocated an impairment rating under Table 20 which relates to pain. That Table, in so far as the applicant’s submission is concerned, reads:
TABLE 20. MISCELLANEOUS PAIN
Rating Criteria NIL Controlled hypertension
Malignancy in remission with a good to fair prognosis
Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.
TEN Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.
Hypertension that is difficult to control despite intensive therapy but without end-organ damage
Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis
Heart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms.
FIFTEEN Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible.
Potentially life-threatening condition which is currently interfering with daily activities but self-care is unaffected.
TWENTY More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work. 21. I accept the applicant’s evidence that he has limitations imposed upon him because of the effects of pain and I am also satisfied that the design features of his bicycle assist him to carry out the tasks associated with riding and which would not be open to him if an ordinary bicycle were used. However, it is still the case that he is able to ride the bicycle for considerable distances and this is consistent with the medical evidence, particularly that of Dr Nicole Laherty, who stated that the applicant’s symptoms do not interfere with normal daily functions or activities (T23/108). The ratings are also consistent with the applicant’s capacity to run refreshments onto the football field in the months after his claim was lodged. I am satisfied that the highest rating that could be applied to the applicant is less than the threshold of 20 points required by paragraph 94(1)(b) of the Act.
22. For the applicant to qualify for the disability support pension, all of the requirements of section 94 of the Act must be satisfied. As the level of the applicant’s impairment is less than the required threshold of 20 points, it follows that an essential component of the provision is not met and that, therefore, the applicant was not qualified for disability support pension at the time of his claim or at any time in the thirteen week period thereafter. As the applicant does not meet the requirements of paragraph 94(1)(b) of the Act, this makes it unnecessary to consider his capacity for work under paragraph 94(1)(c) of the Act.
Decision
23.The Tribunal affirms the decision under review.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Sam Appleton
AssociateDate/s of Hearing 19 March 2004
Date of Decision 25 March 2004The Applicant appeared in person
For the Respondent Ms J Hamilton, Departmental Advocate
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