McDonald and Secretary, Department of Family and Community Services

[2005] AATA 496

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 496

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/492

GENERAL ADMINISTRATIVE  DIVISION		)
Re		TREVOR OSWALD McDONALD

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Deputy President Don Muller

Date30 May 2005

PlaceBrisbane

Decision The Tribunal affirms the decision to reject a claim for Disability Support Pension.

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

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

SOCIAL SECURITY – claim for Disability Support Pension – impairment 10 points under the Impairment Tables – no continuing inability to work – decision to reject claim affirmed

Social Security Act 1991: s.94

Social Security (Administration) Act 1999 Schedule 2

REASONS FOR DECISION

Deputy President Don Muller        

1.      Trevor Oswald McDonald, the Applicant, made a claim for a Disability Support Pension (DSP) on 24 November 2003.  He claimed that his disabilities were “chronic back pain – unable to do lots of different work”.

2.      His claim was rejected by an officer of Centrelink on 8 January 2004.

3.      The matter was reviewed by the Social Security Appeals Tribunal on 3 June 2004.  The Social Security Appeals Tribunal affirmed the decision to reject Mr. McDonald’s claim for  DSP.

4.      He seeks a review of the decision to reject his claim for DSP.

5. To qualify for DSP a claimant must satisfy the legislation contained in section 94 of the Social Security Act 1991, the relevant parts of which are:

“Qualification for disability support pension – continuing inability to work

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”

6. The Tribunal must also take into account the provisions of Schedule 2 of the Social Security (Administration) Act 1999, which have the effect of requiring a claimant for DSP to qualify within 13 weeks of the date of the claim for DSP.

7.      Consequently, the Tribunal is required to determine whether Mr. McDonald qualified for DSP on the date of his claim, 24 November 2003, or within 13 weeks of that date, that is, by 24 February 2004.

8.      The various medical reports confirm that Mr. McDonald has a problem with his back, but it is relatively minor. A report completed by Advanced Personnel Management assigned Mr. McDonald a total of 10 points under Table 5.2 of the Impairment Tables.  The assessor also considered that with appropriate assistance Mr. McDonald’s work capacity would increase to more than 30 hours per week within six months.

9.      On 2 May 2003, Mr. McDonald underwent scans by North Coast Radiology.  The report states:

“LUMBAR SPINE

Erect AP and lateral views were taken.

There is a mild lumbar scoliosis convexed to the left.  There are mild degenerative disc changes throughout the lumbar spine with preserved disc spaces and small neurocentral osteophytes.  No vertebral compression fracture.  No spondylolisthesis.  No significant sacroiliac joint abnormality.”

10.     On 17 July 2003, Mr. McDonald underwent MRI scans of his lumbosacral spine at the Princess Alexandra Hospital, Brisbane.  The report states:

“REPORT

The distal cord and conus have a normal appearance.

The canal dimensions are normal throughout.

The L1/2, L2/3, L3/4 and L4/5 discs are normal.

The lumbosacral disc shows mild loss of normal signal on the T2 weighted scans and a small annular fissure is present posteriorly but no disc protrusion is present and the significance of this is questionable.”

11.     On 19 January 2005, Mr. McDonald was examined by Dr. Balestrieri of Health Services Australia.  Dr. Balestrieri assigned Mr. McDonald a rating of 10 points for lower back pain, and considered that with appropriate intervention, Mr. McDonald would be capable of working more than 30 hours per week, as at January 2005.

12.     It is clear that so far as Mr. McDonald’s back condition is concerned the impairment rating is no more than 10 points under the Impairment Tables.  This is well short of the 20 points required under subsection 94(1)(b) of the Act.

13.     It is also clear that the examining medical officers consider that with appropriate assistance Mr. McDonald would be able to increase his work capacity to 30 hours per week.  That is, he does not have a continuing inability to work.

14.     About one week before the day of the Tribunal hearing, Mr. McDonald produced a report from Dr. T.J. Tierney, his General Practitioner dated 18 May 2005, to the effect that Mr. McDonald also suffers from Borderline Personality Disorder, a history of assault to the head and neck when he was punched during a family bar-b-que in December 2000 which caused ongoing headaches and neck pain and Reactive Depression.

15.     In my view Dr. Tierney’s report is of no assistance in this review, which is to determine whether Mr. McDonald satisfied the qualification criteria for DSP on 24 November 2003, or by 24 February 2004.  The additional disabilities referred to by Dr. Tierney, namely, Borderline Personality Disorder, injuries to head and neck and Reactive Depression, have never been the subject of a formal claim by Mr. McDonald for DSP, nor have those additional disabilities ever been assessed by the Respondent, nor has anyone assessed those disabilities in terms of the Impairment Tables.

16.     The Tribunal affirms the decision to reject Mr. McDonald’s claim for DSP.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
           R. Link, Associate

Date/s of Hearing  24 May 2005                   
Date of Decision  30 May 2005
Applicant   Mr. McDonald, himself
Respondent   Ms. S. Oliver, departmental advocate