Magrathea and Secretary, Department of Family and Community Services

[2004] AATA 620

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 620

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/995

GENERAL ADMINISTRATIVE  DIVISION		)
Re		TONY MAGRATHEA

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Deputy President Don Muller

Date18 June 2004

PlaceBrisbane

Decision The Tribunal affirms the decision to reject a claim by Tony Magrathea for disability support pension under the Social Security Act 1991.

................SIGNED..............................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

SOCIAL SECURITY – impairment rating of 10 points – no continuing inability to work – does not qualify for disability support pension – decision affirmed

Social Security Act 1991: s94

REASONS FOR DECISION

18 June 2004 Deputy President Don Muller        

1.      Tony Magrathea, the Applicant, made application for disability support pension (DSP), pursuant to the provisions of the Social Security Act 1991, on 3 December 2002.

2.      Mr. Magrathea claims that he cannot work because of a back problem, a thyroid condition and a psychiatric condition.

3.      To qualify for a DSP an applicant must satisfy the criteria set out in section 94(1) of the Act which 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)because of the impairment the person has a continuing inability to work.”

4.      Mr. Magrathea’s claim has been rejected on the following bases:

(a)His back condition only rates 10 points under the Impairment Tables;

(b)His thyroid condition is controlled and rates nil points under the Impairment Tables;

(c)He does not have a diagnosed psychiatric illness;  and

(d)He does not have a continuing inability to work.

5.      The material placed before the Tribunal leads me to make the following findings of fact:

(a)Tony Magrathea was born on 28 March 1957.  He was previously known as Anthony Terence Savage.

(b)He played rugby as a young man and injured his back whilst doing so.

(c)In 1978 he worked in a bakery.  He injured his back whilst lifting a heavy crate of bread at the bakery.  He was off work for eight months as a result of this injury.

(d)He joined the Australian Public Service in 1979 and his position became permanent on 29 March 1982.

(e)On 2 August 1982, he was working for the Australian Taxation Office when he experienced pain in the lumbar region of his back whilst lifting some papers.

(f)He had back pain on and off for about 12 months after the August 1982 incident.  His doctor recorded on 12 November 1982 that he was then suffering only minimal pain and had full painless range of movement.

(g)By early 1983 he was assessed as being 100% fit.

(h)He had another episode of back pain which resolved by mid-1983.  He was then able to play cricket, run and swim.

(i)He again injured his back in a motor vehicle collision in 1984.

(j)He was examined by a Dr. Nelson in September 1985.  Dr. Nelson reported as follows:

“X-rays that he showed me, taken in August 1982, showed little of assistance.  There were signs of his having had Schuermans Disease in his adolescence, and there was sacralisation of L5/S1.  Neither of these conditions are particularly helpful in ascertaining the cause of pain.

I believe that in 1978 the pain had come on after he lifted a crate of bread at his then work.

The probable etyology of his pain was a recurrence of a soft-tissue i.e. ligaments tendon and/or muscle injury, to his lower back, or an intervertebral disc lesion.”

(k)He joined the Australian Bureau of Statistics (ABS) on 26 October 1989 and worked with that organisation until 23 January 1995 when he accepted a voluntary retirement package.

(l)He had two days off work in 1990 on account of “back pain”.

(m)In 1995/96 he ran his own business.  He delivered newspapers from a car and taught computing skills.

(n)He played lawn bowls to a high level, representing his state in interstate competitions, during the 1990s.

(o)In 1996 he travelled to Great Britain and obtained work with British Telecom.  He worked for BT for about 18 months in Inverness.

(p)In 1998, he returned to Australia.

(q)In November 1998 he was sentenced to imprisonment for three years. He remained in prison until November 2001.

(r)He had some problems with his back while he was in prison.

6.      Mr. Magrathea gave evidence to the Tribunal.  He said (among other things):

(a)He gets back pain which makes sitting for long periods, and walking very difficult.

(b)He can only walk for about 200 to 300 metres at a time before having to rest.

(c)His back really got very much worse in 2002 than it had been previously.

(d)He cannot do clerical work because sitting is a problem.

(e)He cannot do any work which involves hard physical exertion.

(f)He has applied for numerous jobs which he believes he could do but he cannot even get to the interview stage.  His prison record is a serious stumbling block.

7.      Mr. Magrathea has been examined by a number of medical experts.  Those who have examined his back report that there is not much wrong with him.  Their assessments vary from nil impairment to 10 points under the Impairment Tables.

8.      The assessment for his thyroid problem is that it is controlled by medication and amounts to a nil impairment under the Tables.

9.      There is no diagnosis or assessment before the Tribunal relating to a psychiatric condition.

10.     The general consensus of medical opinion is that Mr. Magrathea either has an ability to work, or he would be capable of being retrained to gain employment.

11.     I feel a good deal of sympathy for Mr. Magrathea’s problems in relation to his attempts to find employment when those attempts are blocked by the unfortunate circumstances of his prison record.  However, for the purposes of this review it is clear that he does not qualify for the DSP.

12.     The decision to reject the claim by Mr. Magrathea for a disability support pension is affirmed.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
           C. O’Donovan, Associate

Date/s of Hearing  2 April 2004
Date of Decision  18 June 2004
Applicant  Mr. Magrathea, himself 
Respondent  Mr. J. Howard, departmental advocate