Lawrence John Alle v Secretary Department of Family and Community Services

[2004] AATA 160

DECISION AND REASONS FOR DECISION [2004] AATA 16

Administrative

Appeals

Tribunal

 

0

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/658

GENERAL ADMINISTRATIVE  DIVISION

Re:LAWRENCE JOHN ALLEN

Applicant

And:SECRETARY               DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             16 February 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

SOCIAL SECURITY - disability support pension - back pain - depressive illness - ankle injuries - whether 20 impairment points - continuing inability to work

Social Security Act 1991 s 94(1), s 94(2), s 94(3), s 95(5), Schedule 1B

REASONS FOR DECISION

16 February 2004  G.D. Friedman, Member

1.      This is an application by Lawrence John Allen (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 21 May 2003.  The SSAT affirmed a decision of an authorised review officer of Centrelink dated 17 March 2003 to refuse an application for disability support pension (DSP) because the applicant did not have an impairment rating of at least 20 points under the Impairment Tables. 

2.      At the hearing on 5 February 2004, the applicant represented himself and Mr D. Perdon, a Centrelink advocate, represented the Secretary, Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1‑T37), together with eight exhibits (Exhibits A1-A8) lodged by the applicant.

BACKGROUND

4.        The applicant was born on 27 April 1951.  On 22 November 2002, he lodged a claim for DSP in respect of low back pain arising from a work-related injury sustained in 2001, ankle injuries and stress.  In November 2002, he was granted newstart allowance and since November 2003 he has been in receipt of carer payment and carer allowance in respect of his mother.  After a medical review Centrelink refused the claim for DSP on 17 February 2003.  On 17 March 2003, an authorised review officer affirmed the decision.    

5.        On 26 March 2003 the applicant sought review of the decision by the SSAT.  Following the SSAT decision, the applicant lodged an application with the Tribunal on 18 June 2003 for review of the decision.

6. The issue before the Tribunal is whether the applicant has an impairment rating of at least 20 points under the Tables For The Assessment Of Work-Related Impairment For Disability Support Pension in Schedule 1B of the Social Security Act 1991 (the Act) (the Impairment Tables), and a continuing inability to work.

EVIDENCE

7.        The applicant gave oral evidence that he injured his lower back in November 2001 while working as a carpet layer.  He said he continued to work until November 2002 when he was forced to cease work because of the pain.  He also described fractures to his ankles suffered in work-related incidents in 1988, and said  that these injuries have restricted his range of movement.

8.        The applicant told the Tribunal that he has suffered from a depressive illness and stress as a result of the breakdown of his marriage in 2002.  He explained that issues concerning his children are still before the Family Court, and the matter is causing ongoing anxiety, although he noted that his treating doctor has increased his medication and this appears to have stabilised the condition.  He said that he is no longer receiving psychiatric treatment.  The applicant stated that his impairments rate at least 20 impairment points under the Impairment Tables.

9.        On the question of his ability to work, the applicant stated that he is unable to undertake work that involves bending or lifting.  He stated that he is a trained opera singer, but has been unsuccessful in obtaining work with opera companies because of his restricted movements as well as limited opportunities in this field.  He said that he has made many attempts to find work in the carpet industry, but because of his physical limitations and the fact that he is known in his local area, he has been unsuccessful.

10.      In cross-examination the applicant agreed that he has the capacity to work, but positions in the carpet industry that do not involve bending and lifting, such as sales representative, and in opera, do not generally require full-time employees.  He acknowledged that he could perform clerical duties of a semi-sedentary nature.  In relation to re-training or further study, the applicant said that he had not given these matters much thought.  He agreed that such avenues were a possibility; as long as they did not conflict with his commitments to his three children, whom he sees for one third of the time.  He stated that he is seeking increased contact with the children.

11.      In reports dated 3 January 2003 (T11) and 18 February 2003 (T16), Dr S. Giummarra, the applicant’s treating doctor, diagnosed chronic L5/S1 disc disease and severe anxiety, and assessed the applicant as unfit for work for more than two years.  In a letter dated 5 February 2004 (Exhibit A1), Dr Giummarra stated that the applicant has a longstanding anxiety depressive illness which has now stabilised with the continuing need for long term daily medication.  In a medical certificate dated 23 December 2003 (Exhibit A2), Dr Giummarra stated that the applicant would not be able to work for 6-12 months.

12.      In a report dated 25 March 2002 (T27), Mr M. Pullar, neurosurgeon, stated that he did not believe that the applicant seemed fit enough to return to work as a carpet layer. In a report dated 1 May 2003 (T30), Mr Pullar stated that the applicant does seem to be becoming increasingly disabled. 

13.      In a report dated 2 May 2003 (T31) Dr M. Patrick, rheumatologist, stated:

It is my opinion that he will not be able to return back to his carpet laying work and that repetitive and heavy lifting duties will be beyond him in the longer term.  He certainly is capable of work but with restrictions related to these activities.

14.      In a report dated 23 April 2003 (T29) Dr J. Oldham, consultant psychiatrist, stated that he diagnosed depression with anxiety features.  He said that the applicant was in good psychological health and antidepressants have helped him regain a robust sense of self.

15.      In a report dated 25 March 2002 (T10), Dr M. Stewart, of Health Services Australia assessed the applicant’s back condition as rating nil points on the Impairment Tables as the applicant had a reasonable range of back movement, was undergoing rehabilitation and was expected to improve.  Dr Stewart also described the applicant’s stress from his marital situation as a temporary condition, which was expected to improve or resolve.  Dr Stewart said that the applicant was, at that time, totally, but temporarily, incapacitated for work but that he would be able to return to light semi-skilled work within six months.

16.      In a report dated 22 November 1999 (T4), Dr R. Brzozek, general practitioner, referred to the applicant’s ankle injuries and stated that the applicant was fit to work for more than 30 hours per week at that time.

17.      In a report dated 23 August 2003 (Exhibit A5), Dr J. Talbot, orthopaedic surgeon, noted the applicant’s physical limitations and stated that he would never be fit to return to carpet laying.  Dr Talbot concluded:

It is possible that Mr Allen could perform light semi-sedentary work, where he could sit or move around as he desired, for instance in carpet or curtain sales.

CONSIDERATION OF THE ISSUES

18.      Section 94 of the Act provides:

94.(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;

94.(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 from 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.

94.(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.

…

94.(5)” 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.

Schedule 1B of the Act provides:

…

4.A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.

19. Mr Perdon submitted that at the date of the claim for DSP the applicant did not have an impairment of 20 points or more under the Impairment Tables, so he did not satisfy s 94(1)(b) of the Act. He also submitted that the applicant did not have a continuing inability to work (s 94(1)(c) of the Act).

20.      In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. 

21.      The Tribunal accepts the medical evidence and the oral evidence from the applicant that as a result of ongoing lower back pain and difficulties with his ankles, the applicant’s movements and activities are restricted and he would be unable to resume work as a carpet layer.  The Tribunal also takes into account that the prescribed medication for the applicant’s depressive illness has stabilised the condition, and he does not require further treatment.

22.      The Tribunal agrees with Mr Perdon that the weight of medical evidence, in addition to the applicant’s own evidence, is that he is able to work in sales or in light semi-sedentary employment such as clerical or managerial duties.

23. At the same time, the Tribunal accepts the applicant's evidence that opportunities in the carpet and opera fields are limited, and that the applicant has been unsuccessful in his attempts to find employment. However, under s 94(3) (b), the availability to the person of work in that person's locally accessible labour market is not a factor that can be taken into account by the Tribunal.

24. For these reasons the Tribunal is satisfied that, in relation to the claim for DSP, the impairments suffered by the applicant are not of themselves sufficient to prevent him from doing any work, as defined in the Act, within the next two years. The Tribunal finds that the applicant has not demonstrated a continuing inability to work, and therefore, does not satisfy s 94(2) of the Act. Since the applicant does not have a continuing inability to work, he is unable to satisfy s 94(1)(c)(i), and he cannot satisfy s94(1). Therefore, the applicant does not qualify for DSP. As a result, there is no necessity for the Tribunal to determine whether the applicant’s impairments rate at least 20 points under the Impairment Tables.

DECISION    

25.      Tribunal affirms the decision under review.

I certify that the twenty-five [25] preceding paragraphs are a true copy of the reasons for the decision of:

G.D.Friedman, Member

(sgd)       . . .. . . . . . . . . . . . . . . . . . . . .

Clerk

Date of hearing:  5 February 2004

Date of decision:  16 February 2004
Advocate for applicant:                Self-represented
Advocate for respondent:            Mr D. Perdon, Centrelink