Manion and Secretary, Department of Family and Community Services

[2003] AATA 602

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 602

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/441

GENERAL ADMINISTRATIVE DIVISION		)
Re		DANIEL MANION

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr K L Beddoe, Senior Member

Date27 June 2003

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

(Sgd) Senior Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – disability support pension – whether applicant is suffering from an impairment of 20 points or more under the Impairment Tables – whether applicant has a continuing inability to work

Social Security Act 1991

REASONS FOR DECISION

27 June 2003 Mr K L Beddoe, Senior Member  

1.      This is an application for review of a decision of the Social Security Appeals Tribunal dated 11 April 2002, which affirmed a decision of the respondent to cancel payments of disability support pension being paid to the applicant.

2. The Tribunal heard this matter in Mackay on 11 November 2002. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and a number of documentary exhibits.

3.      Mr Manion attended the hearing and gave evidence. Ms Shea, a Departmental Advocate, represented the respondent at the hearing.

Background

4.      Mr Manion suffers from a thoraco lumbar spine condition, and a right elbow and shoulder condition.  He was originally granted disability support pension on 22 August 1993 (T4).  He continued to receive the pension until 1994 when he received a compensation payout and was subject to a social security preclusion period which expired in February 1996.  A number of medical reports were provided to the Tribunal that related to the original grant of disability support pension.

5.      The applicant was again granted disability support pension on 22 February 1996.  In early 2001, the applicant was required to undergo an automatic five year medical review, and was referred for examination, for this purpose, by Dr McIntosh.  Dr McIntosh examined the applicant on 30 April 2001 and provided Centrelink with a report (T33).  In that report, Dr McIntosh diagnosed that the applicant was suffering from a thoraco lumbar spine condition which allowed him only ¾ normal range of movement. 

6.      He considered that the condition would affect the applicant’s ability to work as it would limit his ability to bend or lift.  Dr McIntosh rated the applicant’s impairment in relation to this condition as 10 points under Table 5.2 of the Impairment Tables in the Social Security Act 1991..  He considered that the applicant would be unable to return to his usual employment (as a meatworker) within the next two years, and that he would be able to undertake work of more than 20 hours a week within six months.  Dr McIntosh further opined that the applicant was, at the time of his report, capable of undertaking work of at least eight hours per week or study of at least 15 hours per week.  He stated that the applicant would be able to return to some form of work, of more than 30 hours per week, within six to twelve months.  The doctor noted that the applicant had been managing work of ten hours per week at that time, but he needed to avoid heavy lifting, bending or prolonged sitting (T33, folio 145).

7.      Dr McIntosh further opined that the applicant was suffering from a right shoulder injury and tennis elbow, but found that the applicant had full range of movement and normal power in both areas.  He allocated ratings of 0 points under Table 3 of the Impairment Tables in relation to these conditions (T33, folio 137).

8.      On 31 May 2001, the respondent notified the applicant that it had decided to cancel his pension (T34, folio 149).  The applicant sought a review of that decision, which was affirmed by the original decision maker and, on 10 August 2001, by an authorised review officer.  The applicant appealed the decision to the Social Security Appeals Tribunal, which also affirmed the respondent’s decision, and the applicant now seeks a review of the decision by this Tribunal.

Medical Evidence

9.      In addition to Dr McIntosh’s report, the Tribunal had before it reports from Dr Toft, Health Services Australia (Exhibit 2) and Dr Panday (Exhibit A). 

10.     Dr Toft, who did not examine the applicant, opined that the applicant would have been more appropriately assessed as having an impairment rating of 10 points under Table 20, in that his major complaint relates to chronic pain.  She based her opinion on the fact that the applicant had been working in a relatively physical position (providing care for a disabled person for five hours per day, two days per week) and the minimal loss of movement in his lumbo-sacral spine.  She agreed with Dr McIntosh that the applicant had demonstrated an ability to perform permanent work during the period in question (that is, as at 31 May 2001 or within three months of that date), and that he would be fit to undertake work of a sedentary or semi-sedentary nature, with no repeated bending or lifting.

11.     Dr Panday opined that the applicant is suffering from a chronic pain disorder, related to his degenerative disc and vertebral disease.  He remains opioid dependent for control of his chronic pain. The doctor found that the applicant’s spinal movements were restricted by this condition and gave him an impairment rating of 20 points under Table 20.

12.     On the basis of the medical evidence before it, the Tribunal is satisfied that the applicant’s impairment rating should be assessed under Table 20 rather than Table 5.2.

Legislative Framework

13. The relevant legislation is contained in s 94 of the Social Security Act 1991 (the Act).  That section states:

“(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;  …”

14.     The issues before the Tribunal in this matter are whether the applicant is suffering from a physical, intellectual or psychiatric impairment of at least 20 points or more under the Impairment Tables contained in Schedule 1B to the Act and, if so, whether the applicant has an continuing inability to work.  As noted above, the Tribunal considers the relevant Impairment Table in this matter to be Table 20 (Chronic Pain).  Table 20 provides:

“TABLE 20: Miscellaneous - Malignancy, Hypertension, HIV Infection, Morbid Obesity (ie BMI >40), Heart / Liver / Kidney Transplants, Miscellaneous Ear / Nose / Throat Conditions and Chronic Fatigue or Pain

Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used. Double-counting of a particular loss of function, by the use of more than one Table, must be avoided.

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.

THIRTY Very severe symptoms which lead to substantial difficulty with most daily tasks. Assistance with elements of self-care may be required. Symptoms cause severe interference with ability to work or attend work (ie. minimal residual work capacity).

Heart/Liver/Kidney transplants - poorly controlled (poorly functioning) with fairly severe symptoms which lead to substantial difficulty with most daily tasks.

Malignant hypertension - severe, uncontrolled.

Inoperable, symptomatic and life-threatening aneurysm or malignancy. Very poor prognosis with only a very limited lifespan.

FORTY Major restrictions in many everyday activities. Capacity for self-care is restricted, leading to dependence on others. No residual work capacity.”

15.     The Tribunal has reviewed all of the material before and is of the opinion that the correct impairment rating for the applicant, under Table 20, is 15 points.  In light of the opinions of Dr McIntosh and Dr Toft, and the fact that the applicant has been working in a part-time capacity, I do not think that it can be said that the applicant’s condition has a significant impact on his ability to work, and therefore a rating of 20 points is inappropriate.  A rating of 15 points, however, is appropriate, as the medical evidence supports a finding that, although his condition may have a mild to moderate impact on his ability to work, the applicant is capable of undertaking some work, and perhaps even undertaking appropriate full-time work of a sedentary or semi sedentary nature.

16. Although it is not strictly necessary to do so, given the above findings, the Tribunal has considered the issue of whether the applicant has a continuing inability to work. In this regard, section 94(2) relevantly provides:

“(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.”

17.     The evidence before the Tribunal indicates that the applicant was capable of working at the time the decision was made.  At that time, he had been working for five hours a day for two days per week providing assistance to a disabled person.  Further, both Doctor McIntosh and Dr Toft opined that the applicant was capable of undertaking work of a sedentary or semi-sedentary nature, of at least eight hours per week, at that time.  Such an ability is clearly evidenced by the fact that the applicant had been able to work in his carer position without any significant difficulty.

18.     Accordingly, the Tribunal is satisfied that the applicant was capable of performing work of some kind in the next two years following the date of the decision to cancel his pension, and therefore the Tribunal finds that the applicant, at that time, did not have a continuing inability to work.

Decision

19.     The Tribunal affirms the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe, Senior Member

Signed:         .......................................................................................
  Associate

Date of Hearing  11 November 2002
Date of Decision  27 June 2003
The Applicant was unrepresented
Solicitor for the Respondent     Ms Shea, Departmental Advocate