Martin and Secretary, Department of Family and Community Services
[2003] AATA 426
•9 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 426
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2002/1
GENERAL ADMINISTRATIVE DIVISION ) Re BRIAN MARTIN Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Deputy President Don Muller Date9 May 2003
PlaceBrisbane
Decision The Tribunal affirms the decision to reject the Applicant’s claim for Disability Support Pension.
..................Signed.............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – qualification-impairment rating – whether continuing inability to work
Social Security Act 1991: s94(1), (2), (3)
REASONS FOR DECISION
9 May 2003 Deputy President Don Muller 1. This is an application by Brian Martin (“the Applicant”) to review a decision of the Social Security Appeals Tribunal (“SSAT”) dated 29 January 2001, to affirm Centrelink’s decision on 26 February 2001 that rejected the Applicant’s claim for Disability Support Pension (“DSP”).
2. At the hearing the Applicant was self represented and Mr. Ffrench, departmental advocate, represented the respondent.
3. The SSAT decided that although the Applicant had an impairment rating of 40 points he did not qualify for the DSP because the medical evidence concluded the Applicant did not have a continuing inability to work pursuant to section 94(2) of the Social Security Act 1991 (“the Act”).
4. The questions for the Tribunal in this matter are whether:
(a)The Applicant’s impairment rating is of 20 points or more under the Impairment Tables , as provided for in section 94(1)(b) of the Act; and
(b)The Applicant has a continuing inability to work referable to section 94(1)(c) of the Act as defined by section 94(2) and (3) of the Act.
5. The relevant provisions of section 94 of the Act are as follows:
“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;
…..
(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
…..
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 education 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.”
6. The Tribunal heard oral evidence from the Applicant and Dr. Richard Giese and in addition the following documents were before the Tribunal:
(a)The documents provided under section 37 of the Administrative Appeals Tribunal Act 1975, exhibit 1; and
(b)Supplementary section 37 documents, exhibit 2.
7. The recent history of the matter is as follows:
(a)On 10 January 1995 the Applicant fell off an aluminium ladder. He injured his left heel, aggravated a pre-existing back problem and caused malalignment of his hips.
(b)The Applicant received workers’ compensation for a time and then he was granted the Disability Support Pension from August 1998.
(c)As at August 1998, the Applicant was assessed as having a combined impairment rating under the Impairment Tables of 40 points.
(d)In 1999, the Applicant received a lump sum compensation settlement. As a result of the receipt of the lump sum payment, the Applicant’s DSP was cancelled on 2 September 1999. There was also a determination that a “preclusion period” apply until 31 May 2000.
(e)On 24 May 2000, the Applicant re-applied for DSP with Centrelink.
(f)On 26 June 2000, Centrelink wrote to the Applicant to tell him his claim had been rejected because his disability did not prevent him from being retrained for other work.
(g)On 21 February 2001, the Applicant lodged another application to Centrelink for DSP. This application was subsequently rejected on 26 February 2001. The rejection was affirmed by an Authorised Review Officer on 25 May 2001.
(h)The Applicant appealed to the SSAT, which affirmed the decision to reject the claim for DSP.
8. The Applicant’s evidence, combined with the material in his file reveals his work history, which the Tribunal accepts:
(a)The Applicant was born on 22 December 1952, making him 50 years of age.
(b)The Applicant left school at the age of 15 and his work history included the following occupations:
(i)Process worker at KR Darling Downs in Brisbane;
(ii)In 1967 he stocked shelves in Yee’s Supermarket in Parap, Darwin;
(iii)Six months of panel beating training;
(iv)12 months of the Johnson Motors in Darwin;
(v)12-18 months at Chin Ford, Darwin;
(vi)He sold parts of wrecked cars at an Auto Wrecker for two to three years;
(vii)He was employed by Stuart Panel Shop for a period of time;
(viii)He worked at ABM’s quarry for 12 months driving dump trucks and working the crushing plant;
(ix)He worked for his father as a plumbing contractor for three to four years;
(x)He was a security guard for Wormald Security for 18 months;
(xi)From about 1984 he again worked for his father as a trench digger, back hoe operator and tip truck operator for four years;
(xii)He then delivered window frames for Surefix Aluminium for 18 months to two years;
(xiii)Then the Applicant delivered frozen chickens for Ingham Chickens for two years;
(xiv)In 1989 the Applicant worked for CNR Distributors, then for Heng Yang, a denim factory, where he injured his back while carrying a 50 kg bag of oxalic acid. He lodged a compensation claim, which was settled in 1992;
(xv)He then worked for the Darwin Hotel as a cleaner for six months; and
(xvi)On 10 January 1995 he was again employed by Surefix Aluminium where he fell off a ladder and fractured his left heel.
9. The documentation available to the Tribunal contains a number of medical reports about the Applicant dating back to 1990. They came into existence because of his compensation claims and his claims for DSP. Those parts of the reports which the Tribunal finds to be relevant to this review are as follows:
(a)Dr. A.F. Bromwich examined the Applicant after his back injury in 1989, in his report dated 14 September 1990 he concluded:
“On examination he was a muscular man of 37 years. There was some (minor) loss of flexion and extension of the lumbar spine accompanied by discomfort but lateral flexion was full and painless. There was very slight low lumbar tenderness in the midline.
In my opinion this patient suffered an acute musculoligamentous lumbosacral back strain in October, 1989….. This has not yet resolved fully, probably because of the element of degenerative change (spondylosis) but in my opinion he is capable of all but heavy manual work. He should avoid repeated bending and heavy lifting (in excess of 20 kg) until his back has recovered fully, which could take some time yet.”
(b)On 26 November 1993 Dr. D.G. Stanbury examined the Applicant and concluded in his Commonwealth Medical Officer Report:
“Mr B Martin is a 40 year old former hotel night porter who last worked in 1991. He has an impairment of 20% due to a lower lumbar degenerative disc disease. He has a temporary condition of severe musculo-skeletal back pain which should resolve in six months during which time he would be eligible for sickness allowance.
After possible improvement of his back pain he should be capable of categories B and C work (sedentary work) which do not involve heavy lifting or frequent bending.
He would probably benefit from rehabilitation assessment however motivation may be problematical.”
(c)Dr. Song K. Tai provided a Treating Doctor Report for Centrelink dated 9 September 1998 and concluded that the Applicant’s permanent medical conditions, degenerative lumbar spine, with a loss of half of the normal range of movement and the Applicant’s left leg condition each rated an impairment of 20%, totalling 40% permanent impairment, Dr. Tai stated:
“Examination today showed loss of half normal range of lumbar movement. The left ankle joint was deformed with permanent deformity eversion of the left foot. There was significant loss of range of movement in the left ankle joint. His combined disability rating is 40 points. Mr. Martin will not be able to undergo vocational training or rehabilitation for a full-time job but may be able to undergo training for a part-time job.
He is still litigating for his ankle injury. He will not be able to work full-time permanently.”
(d)Dr. Richard Giese, the Applicant’s General Practitioner stated in his letter dated 1 June 2000:
“This man is currently unfit for his normal work of Laborer due to his left heel fracture with subsequent arthritis and recurrent lower back pains following long term back injuries. He is NOT and will unlikely ever be fit to return to his normal duties as labourer. He has no other training or trade skills and has completed education level at a primary level only. He will therefore not be able to obtain a medical clearance for any work for which he is qualified and is unable to gain any other form of employment even though he would be considered medically fit to perform clerical duties or other sedentary occupation….”
(e)Dr. Giese also completed a Treating Doctor’s Report on 21 February 2001. He stated in that report that the Applicant would be capable of part-time work of at least 30 hours or more per week within six to twelve months.
(f)Dr. Giese referred the Applicant to orthopaedic surgeon, Mr. Matthew Sharland in late 2001. In a report to Dr. Geise, an Orthopaedic Registrar, Dr. Peter Sargeant, writing on behalf of himself and Mr. Sharland wrote on 13 June 2002:
“I reviewed Brian Martin in Mr Sharland’s Orthopaedic Outpatient Clinic this afternoon. He has not seen us since the 22nd October last year when we were organising an MRI scan to confirm the cause of his significant back pain. As you are aware the MRI scan showed dehydration of multiple discs and a significant collapse of the L5 S1 disc. However there is no evidence of neural compression and the foramina were patent. There was also no canal stenosis or foraminal stenosis higher up.
Today he states that his back pain is better if anything than it was 9 months ago. His back pain is all central and does not radiate into his leg.
On examination he has some tenderness in the lower lumbar spine. He remains quite obese. Range of movement is reasonable with flexion to 30cm from the floor, lateral flexion 30 degrees in each direction, extension to 20 degrees and rotation 20 degrees both sides. There is a positive straight leg raise test at about 70 degrees on the right. Straight leg raise is negative on the left. His legs are neurologically normal.
Mr Sharland does not believe that there is any indication for surgery in Mr Martin. We would advise continuation of conservative management with physiotherapy. With regard to his work prospects he should be able to undertake work that does not involve heavy manual labour. I understand that you are helping him sort out his problems with Centrelink.”
(g)Dr. D.G. Stanbury from Health Services Australia assessed the Applicant on 11 October 2002 and provided a Treating Doctors Report which concluded that the Applicant’s permanent impairments, namely his lower back condition and his left leg, only rated 10 points under the Impairment Tables. Dr. Stanbury stated:
“He had a fractured L calcaneus in 1995 from which he has made a good recovery with minor mobility limitations despite intermittent arthritis.
I agree with the Orthopaedic report that he is fit for light, lesser skilled work….”
10. The Applicant gave evidence at the hearing and he made the following points:
· He is unable to walk long distances and requires a walking stick for short distances. In addition he cannot sit for long periods of time without having to stand up a readjust his back every hour or so.
· He is able to drive and currently drives a Rolls Royce. He says that the height and the springs of the seats make it the only car he can drive. He purchased this car out of the money he received from the compensation payment. The Applicant is able to drive for up to one hour to visit friends in Humpty Doo.
· He currently holds a Class C licence and is able to operate forklifts but government regulations forbid anyone with a back injury to operate machinery.
· His injuries have stopped him from working at his usual occupations but he had actively sought sedentary type work in the last two years. He sent over 60 applications to various employers but no one was willing to put him on. He said that he would be willing to take on a telephone job or a sedentary type job as long as the bosses allowed him to get up every twenty minutes or so to adjust his back.
11. The various medical reports show that the Applicant suffered an injury to his left heel in 1995 which left him relatively seriously disabled for a number of years. However, fortunately for him, he seems to have recovered reasonably well. The medical reports from 2002 show a significant recovery.
12. The Tribunal accepts the statement of Dr. Stanbury that as at 11 October 2002 the appropriate rating was 10 points under the Impairment Tables.
13. In addition the Tribunal finds that the more recent medical evidence of Dr. Giese in his report of 21 February 2001 and Dr. Stanbury’s report of 11 October 2002 conclude that the Applicant is able to undertake vocational training or part time work within a period of two years. Based on these reports the Tribunal concludes that the Applicant does not meet the definition of “continuing inability to work”, pursuant to section 94(2) of the Act. Therefore, the Applicant also does not meet the requirements of section 94(1) of the Act.
14. The Applicant’s basic problem is not that he has a continuing inability to work, but that in the Darwin job market he has difficulty in securing work for which he is suited. Unfortunately, so far as this review is concerned, the Act does not allow for this factor to be considered.
15. The Tribunal affirms the decision to reject the Applicant’s claim for a Disability Support Pension.
I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .......................................................................................
C. O’Donovan, AssociateDate/s of Hearing 2 December 2002
Date of Decision 9 May 2003
Applicant Mr. B. Martin, himself
Respondent Mr. T. Ffrench, departmental advocate
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