Marcus McKenna and Secretary, Department of Social Services
[2014] AATA 464
[2014] AATA 464
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4806
Re
Marcus McKenna
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Member Taglieri (Member)
Date 10 July 2014
Place Hobart
The decision under review is affirmed.
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Member Taglieri (Member)
CATCHWORDS
SOCIAL SECURITY - Rejection of DSP claim. Permanent spinal condition and available impairment points
LEGISLATION
Social Security Act 1991, 94(1)(b) and (c)
Social Security (Tables for the Assessment of Work-related Impairment for DSP) Determination 2011
REASONS FOR DECISION
Member Taglieri (Member)
INTRODUCTION
The Applicant is aged 41 years. He attended school until year 11. He has no formal qualification, other than a “Cleaning Certificate”, which I infer he obtained between 2010 and 2012.[1] He has worked as a panel beater and on fishing boats, being heavy manual industries, for most of his working life. On 8 February 2013, the Applicant made a claim with the Respondent for Disability Support Pension (“DSP”). The claim was rejected, and the decision to reject was affirmed by the Authorised Review Officer of the Respondent and later the Social Security Appeals Tribunal (“SSAT”)[2]. On 24 September 2013, this Tribunal received an Application for Review, which was heard on 25 June 2014. The grounds for rejecting the claim for DSP were:
(a)That the Applicant did not meet the requirement in Section 94(1)(b) of the Social Security Act 1991 (“the SS Act”), that a person’s impairment must be 20 points or more; and
(b)That the Applicant had not demonstrated a continuing inability to work as was relevantly required by Section 94(1)(c) and Section 94(2) of the SS Act.
In the Applicant’s case, he would only meet the requirement at paragraph (b) above, if he was unable to work a minimum of 15 hours per week in suitable employment because of impairment.
[1] Page 33 and 34 of the T documents that were all taken into evidence
[2] T2, pages 3 to 8 of the T documents
THE MEDICAL CONDITIONS
At the time he claimed for DSP, the Applicant suffered from two medical conditions. A thoracic spine condition consisting of disc prolapse at T7/8 level of the spine (“the spine condition”). The Treating Doctor Reports,[3] identify the cause of the spine condition to be a series of push bike accidents in earlier years. A left knee condition, which is described in the Treating Doctor’s Report as, “awaiting definitive diagnosis” [4].
[3] At T4 and T7 of the T documents
[4] T7, Report of Dr Ayman Sharab dated 8.2.13 at page 56
The Applicant gave evidence about both conditions. The effect of the evidence was that the Applicant agreed that the left knee condition was not diagnosed at the time of his claim for DSP or even now. In view of this, and the information contained in the Treating Doctor’s Report dated 8.2.13, the left knee condition cannot be regarded as fully diagnosed, fully treated and stabilised for the purpose of determining impairment under the applicable law, being the Social Security (Tables for Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“2011 Determination”).
The Applicant has received treatment for the spine condition, including physiotherapy, chiropractic treatment and use of medications (Celebrex and NSAIDs).[5] He has been on a waiting list for a neurosurgical consult through the RHH Neurosurgery Unit since about July 2012. Dr Burger, Consultant Orthopaedic Surgeon, has expressed the view that this condition has been unresponsive to past treatment. This view is consistent with the Applicant’s own oral evidence, that the past treatments “could only do so much”. In Dr Burger’s report[6], he remarks “In general though this level of disc is treated non-operatively unless it causes progressive neurological deficit.” I conclude that the spine condition is fully diagnosed, fully treated and fully stabilised. The Respondent, by its Counsel, conceded so much during the hearing.
[5] T7, Report of Dr Ayman Sharab dated 8.2.13 at pages 51 to 54
[6] T3, page 9 of T documents
The only “qualified evidence” before the Tribunal about the Applicant’s impairment and capacity for work, was contained in the Job Capacity Assessment Report[7]. There was also some oral evidence from the Applicant about these issues. The Applicant’s evidence was that he had pain all the time in his spine, which became worse with standing or sitting for any length of time. He said that he spent most of his day reclining or lying down and reading. Despite this, he also gave evidence that he would perform his own household chores, including cooking, laundry and vacuuming. He also went on a walk each day for 20 minutes and sometimes rode his mountain bike. The furthest distance he could manage to ride was to the local pool and that was a bike ride of about 40 minutes. Under cross-examination, he agreed he could bend to pick up a pen from a desk, that he regularly bent over to give some relief to his back, and that he could reach up to an overhead cupboard. Despite this, the Applicant rejected the suggestion that he would be suited to light less skilled work, which is the evidence contained in the Job Capacity Report.
[7] Report dated 12.2.13, T8 at pages 59 to 64 of T documents
The evidence contained in the Job Capacity Report was that the Applicant had 10 impairment points relating to the spine condition. Counsel for the Respondent agreed and made this concession, despite what was found by the SSAT[8].
[8] Decision of SSAT, T2, pages 3 to 8 of T documents
FINDINGS ABOUT IMPAIRMENT AND CONTINUING INABILITY TO WORK
Having heard the Applicant’s evidence and considered all other evidence before the Tribunal, I agree that only 10 impairment points can be assigned for the spinal condition. When all the evidence about the effect of the spinal condition on function is considered by reference to Table 4 of the 2011 Determination, the inescapable conclusion is that the Applicant’s functional impairment does not meet the requirements for allocation of 20 points. There cannot be any impairment points allocated for the left knee condition for the reasons stated earlier. As such, the Applicant does not satisfy the requirements of section 94(1)(b) of the SS Act.
It is apparent that the Applicant experiences significant and chronic pain due to the spine condition. Unfortunately for him, the 2011 Determination is strict and does not permit a finding of 20 impairment points on the evidence. 20 points can only be assigned if the following specified criteria are met. I have highlighted wording that conveys the strictness of the criteria which simply cannot be satisfied on the evidence before the Tribunal.
“There is a severe functional impact on activities involving spinal function.
The person is unable to:
(a)perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object form a desk or table; or
(d) remain seated for at least 10 minutes”.[9]
[9] Extract from the 2011 Determination, Table 4
CONCLUSION
Given these findings, it is unnecessary to consider the question of whether the requirements of section 94(1)(c) are met. The Application for Review is dismissed and the Decision under Review affirmed.
I certify that the preceding 9 (nine) paragraphs
are a true copy of the reasons for the decision
herein of Ms S Taglieri, Member.
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Administrative Assistant
Dated 10 July 2014
Date(s) of hearing 25 June 2014
Applicant Self
Solicitors for the Respondent Mr Brian Sparkes, Program Review and Litigation Branch
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