Jones and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1625

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1625

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/0786

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Terry Jones

Applicant

And Secretary, Department of Employment and Workplace Relations

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date3 August 2007

PlaceBrisbane (heard in Townsville)

Decision The Tribunal varies the decision under review in that the applicant attracts at least 20 points under the relevant impairment tables during the period under review. The decision to deny the application for the disability support pension is otherwise affirmed.  

..................[Sgd]...........................

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – impairment tables – evidence accepted that applicant had under-reported neck symptoms – decision varied

SOCIAL SECURITY – Disability Support Pension – continuing inability to work – not satisfied of a continuing inability during the assessment period – decision affirmed  

Social Security Act 1991 s 94

Social Security (Administration) Act 1999 s 4(1)

REASONS FOR DECISION

3 August 2007 Senior Member B J McCabe         

1.      Mr Terry Jones suffers from a number of orthopaedic conditions. He applied for the disability support pension (DSP) on 11 September 2006 but his claim was rejected by the respondent.

2. In order to qualify for the DSP, s 94 of the Social Security Act1991 (the Act) says the applicant must:

(a)have a physical, intellectual or psychiatric impairment;

(b)attract 20 points or more under the relevant impairment tables; and

(c)have a continuing inability to work.

3.      There is no doubt the applicant has at least two conditions that qualify as impairments: a neck condition and a hip condition. He also has a wrist condition but the evidence suggests it has not been fully treated so it cannot be regarded as an impairment for the purposes of this section. There was no evidence that would enable me to dispute that view, so I accept it.

4. The dispute in this case relates to the allocation of points under the impairment tables and the applicant’s continuing inability to work. I will deal with each issue in turn. As I do so, it is important to keep in mind that the Tribunal is not considering the applicant’s existing condition. His condition may well have deteriorated, and it is possible he is now qualified to receive DSP. The law requires that I look back and make an assessment of his position in the 13 weeks following the date of his application for DSP – ie, I must consider his position in the period from 11 September through 11 December 2006: Schedule 2, s 4(1) of the Social Security (Administration) Act1999.

how many points should the applicant’s neck and hip conditions be awarded under the relevant impairment tables?

5.      The respondent called evidence from Mr Harris, a job capacity assessor employed by Centrelink. Mr Harris’s report was tendered in evidence. Mr Harris conducted two assessments: one in October 2006 and a second in June 2007. At the earlier assessment, Mr Harris said he was unable to conclude the applicant’s conditions were permanent because there were delays in obtaining medical evidence. That evidence (most obviously in relation to the hip) was available by the time of the second assessment. It had become clear that the applicant’s neck and hip conditions were permanent for the purposes of the legislation. He proceeded to consider the appropriate allocation of points under the impairment tables.

6.      Mr Harris said the applicant clearly had difficulty in relation to the osteoarthritis in his hip. But he says Mr Jones reported he could still carry out most daily tasks and walk to the shops. Mr Harris says the applicant was complaining of constant pain but noted he was only taking non-prescription pain-killers. On the basis of that level of functionality in particular, Mr Harris formed the view the applicant was properly allocated 15 points under table 20.

7.      Mr Jones did not contradict that evidence when I asked him about his hip condition. He is obviously in constant discomfort now, and Mr Harris acknowledged that the applicant’s condition appears to have deteriorated. Even so, I accept the essentially uncontradicted evidence of Mr Harris that the applicant was properly awarded 15 points under table 20.

8.      The position in relation to the applicant’s neck is more complicated. Mr Harris said the applicant did not indicate his neck condition was causing him a great deal of difficulty. He said he did not observe the applicant experiencing significant difficulty moving his neck. He also referred to the occupational therapist’s report suggesting the applicant had developed a 25% reduction in the range of movement at the time of the report in June 2007. A reduction in the range of movement in that order would lead to an award of at least 5 points under table 5.1. Mr Harris says that is a recent development.

9.      Mr Jones says his neck condition has not really worsened. He says he was experiencing constant pain and restriction of movement during the relevant period. He agrees he did not focus on that in his discussions with the job capacity assessor in October 2006 because he was more concerned about his hip condition, which was clearly worse. He says, in effect, that he under-reported his neck symptoms.

10.     Mr Jones struck me as a truthful witness. I am satisfied he was not exaggerating in the course of his testimony. I accept he was experiencing a loss of 25% in the range of movement in his neck during the assessment period. I note Mr Harris did not observe any restrictions but nor did he undertake an examination (like the one conducted by the occupational therapist) to confirm that conclusion. I am not criticising Mr Harris in this regard: given the applicant’s focus on his hip condition, it is understandable Mr Harris would not devote as much time to checking the neck condition.

11.     In the circumstances, I accept the applicant did attract at least 5 points under the relevant impairment table in respect of his neck condition. That means he had more than 20 points.

did the applicant have a continuing inability to work?

12.     Mr Jones was a soldier for a number of years. He left the Army with the rank of corporal. He subsequently worked in a range of occupations as an unskilled labourer. Many of the jobs required him to engage in heavy lifting. He began to experience trouble with his hip about ten years ago. The problem began to interfere with his work while he was employed as a furniture removalist. His last paid work was over a year before he applied for the DSP. He stacked shelves in a supermarket. He says the manual labour became too much. He had to give it up.

13.     Mr Harris agreed the applicant could not return to the heavy lifting and manual labour of the past. But he said Mr Jones could work in a range of unskilled occupations for at least 15-22 hours each week during the period under review. Mr Harris cited several examples of suitable work:

·     night receptionist;

·     console operator;

·     retail;

·     traffic controller; or

·     monitoring security cameras.

14.     Mr Jones originally suggested that he could work behind the counter of a lolly shop. I am satisfied he was being facetious. He doubted he could do any of the jobs suggested by Mr Harris until after he had his hip replacement.

15.     I questioned Mr Harris closely about the applicant’s ability to do some of the jobs referred to above which appeared to involve standing for long periods. Mr Harris said he was confident that arrangements could be made through the disability employment network to come up with measures that would have made it possible for Mr Jones to work during the period in question. Mr Harris said employers were prepared to accommodate disabled workers. He said there was a reasonable level of success in obtaining placements for people with the same sort of disabilities as Mr Jones.

16. I have to decide whether it is possible to be satisfied the applicant has a continuing inability to work within the meaning of s 94(2) of the Act. I accept the applicant is in significant discomfort, and his hip condition in particular is such that he now finds it difficult to contemplate even part-time work or training. He may be right about his prospects now, but I am not satisfied on the evidence before me that he had a continuing inability to work during the assessment period. I accept Mr Harris’s opinion that persons in Mr Jones’s position could be accommodated. I reach that view even though I note I formed a different view about the applicant’s neck condition. There was nothing in the evidence of Mr Harris which suggested a person in Mr Jones’s position (ie, a person with a restricted range of movement that attracted 5 points under the relevant impairment table) would be unable to do the jobs Mr Harris has suggested.

conclusion

17.     The respondent’s decision is varied in that I find Mr Jones does attract at least 20 points under the relevant impairment tables during the period under review. The decision to deny his application for the disability support pension is otherwise affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:         .....................................................................................
  Associate:     Stephen O’Grady

Date of Hearing  12 July 2007
Date of Decision  3 August 2007
The applicant represented himself at the hearing.

The respondent was represented by Mr Keim, a departmental advocate.