Millington and Secretary, Department of Family and Community Services

[2005] AATA 251

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 251

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2004/396

GEENERAL ADMINISTRATIVE DIVISION		)
Re		BRIAN CHARLES MILLINGTON

Applicant

And SECRETARY, SEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date24 March 2005

PlaceBrisbane

Decision The decision under review is set aside. The Tribunal finds the applicant satisfied the criteria in s 94 of the Act at the relevant time.

...................[Sgd].......................

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Allowances – Disability Support Pension – applicant has sufficient points under the impairment tables to justify a grant of pension – applicant has a continuing inability to work.

Social Security Act 1991, s94

REASONS FOR DECISION

Senior Member B J McCabe

24 March 2005

Introduction

1.      Mr Brian Millington is the applicant in these proceedings. Mr Millington suffers from a back condition and a knee condition. He also suffers from debilitating headaches, vomiting, blurred vision and nausea. He says these conditions prevent him from working. He applied to Centrelink for a Disability Support Pension (DSP), but his claim was rejected. Centrelink accepted Mr Millington had sufficient impairment points to justify the grant of a pension but found he did not have a continuing inability to work. The Social Security Appeals Tribunal was not satisfied the applicant had enough impairment points, and rejected his appeal. The applicant has now approached the Tribunal for relief.

2. This case requires me to consider the operation of s 94 of the Social Security Act 1991 (the Act). I have to decide whether Mr Millington was able to satisfy the criteria imposed by the section during a 13 week period after the date he lodged his application with Centrelink. The parties accepted the relevant period is between 20 October 2002 and 28 January 2003.

The material before the Tribunal

The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal.   The following documents were also tendered in evidence:

·Applicant’s medical records from Healthlink Family Medical Centre (exhibit 2), and

·Respondent’s Statement of Facts and Contentions including attached file notes – dated 26 November 2004 (exhibit 3).

The applicant was represented by Mr Honchin of Counsel. Mr Howard appeared for the respondent.

The facts

3.      Mr Millington is 45 years old. He left school at the end of year nine. (There was some question over this: his application to Centrelink suggests he finished school at the end of year ten. The applicant said in his oral evidence that the form is wrong. He says he did not fill out the form. I accept his evidence at the hearing.) He formerly worked as a storeman. He drove a forklift. He had to give up work in October 2002 because he said the jarring caused him too much back-pain. He has not worked since.

4.      The applicant did not produce a statement for the Tribunal. I had the opportunity of observing him in the witness box. He appeared to be a credible witness and his evidence was not impeached during cross-examination.

5.      The applicant suffers from lumbar spine disc degeneration and patello femoral arthritis. He says he is in constant pain from the back condition in particular, and requires strong pain relief medication several times a day. The medication makes him drowsy and affects his concentration. He says that if one rated the pain on a ten point scale with a rating of ten meaning unbearable pain, he would assign a rating of seven on a daily basis. He concedes the pain is worse now. During the period under review, he says the pain would have attracted a rating of 5 each day. That is still significant.

6.      Mr Millington says the back condition prevents him from sitting for long periods. He says he loses concentration after about 30 minutes because of the pain, and he is forced to get up and walk about or lie down. At the relevant time, he could sit for up to 45 minutes. He has (and had) difficulty lifting or bending or twisting. His knee condition makes it difficult for him to walk long distances. He says he can travel no more than about 500 metres before he has to rest. He says he ambles rather than walks. He also says he has difficulty squatting and using stairs.

7.      Mr Millington also suffers from headaches, blurred vision and vomiting. He says these symptoms manifest themselves once every two weeks or so. When they occur, he has to go to the doctor or even to the emergency room of the hospital in an ambulance for treatment. He says the doctor administers an injection on those occasions which knocks him out for 14 hours. Mr Honchin for the applicant pointed out the applicant’s medical records (exhibit 2) refer to three or four visits to the doctor or hospital for headache treatment during the period under review.

8.      The respondent questions whether these symptoms are related to the applicant’s back condition in particular. I note Dr Nahrung (at document T30) suggests the headaches are tension headaches. The SSAT acknowledged Dr Stokeld believed the symptoms were connected with the back condition. It is unclear from the evidence whether the doctors at Townsville Hospital who examined the applicant and Ms Allan of Health Services Australia (HSA), physiotherapist, also share that view.

9.      I am satisfied the applicant has told the truth in relation to his back and knee conditions. I have more difficulty with the suggestion that the headaches and blurred vision and vomiting are necessarily connected with the back conditions. The medical evidence is, at best, equivocal on this point.

The legislation

10. Section 94 of the Act determines whether an individual is qualified to receive a disability support pension. Section 94(1) sets out a series of requirements. There is no question the applicant satisfies ss 94(1)(a),(d) and (e). The issue is whether the applicant’s impairment attracts 20 points or more under the impairment tables in the Act, and he has a continuing inability to work: s 94(1)(b) and (c). The expression “continuing inability to work” is defined in s 94(2) as follows:

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 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.

11.The expression “work” is defined in s 94(5) as follows:

"work" means work:
(a) that is for at least 30 hours per week at award wages or above; and

(b) that exists in Australia, even if not within the person's locally accessible labour market.

Application of the legislation

12.     The respondent initially concluded the applicant did have 20 points or more under the impairment tables. It relied in particular on the report of the HSA physiotherapist, Ms Allan. Ms Allan assigned ten points for the applicant’s back condition and 10 points for the knee condition. The SSAT took a different view of the evidence and declined to assign an impairment rating in respect of the knee condition.

13.     I note there was no dispute at the hearing that the applicant satisfied the criteria for the award of ten points in respect of his back condition during the relevant period.

14.     I am satisfied the HSA physiotherapist was right to assign ten points to each condition. The applicant’s evidence at the hearing established he satisfied the criteria for the award of ten points under Table 4, which deals with lower limb functioning. He has (and had) a demonstrable loss of mobility which has led to moderate interference with his ability to squat. His ability to walk up to 500 metres without stopping and the speed of his movement support this conclusion.

15.     Did the applicant have a continuing inability to work in the sense intended by the legislation? After considering all of the evidence, I think he was unable to work even if one does not have regard to the effect of the headaches.  He suffered chronic debilitating pain from his back and (to a lesser extent) his knees during the relevant period and beyond. He could not sit still for long and he certainly could not do any lifting or physical work.  The painkillers he took for the pain made him drowsy and affected his ability to concentrate. He could not have returned to his former occupation or anything like it which required him to do any physical work; he would have had serious difficulty holding down a desk job or other sedentary work given the difficulties with his concentration and drowsiness. The combined effects of the pain and medication would also have been an obstacle – probably insurmountable – to retraining in any event. I am satisfied the evidence suggests this man was basically unemployable after the end of 2002.

Conclusion

16. The decision under review is set aside. The Tribunal finds the applicant satisfied the criteria in s 94 of the Act at the relevant time.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe.

Signed:         Associate: Sam J Appleton

Date of Hearing  14 March 2005  
Date of Decision  24 March 2005
The applicant was represented by Mr Honchin of Counsel.
The respondent was represented by Mr Howard.