Neden and Secretary, Department of Employment and Workplace Relations
[2006] AATA 312
•5 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 312
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/685
GENERAL ADMINISTRATIVE DIVISION )
Re GLEN NEDEN Applicant
And
SECRETARY, DEPARTMENT
OF EMPLOYMENT AND
WORKPLACE RELATIONSRespondent
DECISION
Tribunal Mr RG Kenny, Member Date5 April 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
………..[Sgd]……….
RG Kenny
Member
CATCHWORDS
SOCIAL SECURITY - disability support pension - physical impairment – impairment rating of 20 points – no continuing inability to work.
Social Security Act 1991 s 94
Re Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902
REASONS FOR DECISION
5 April 2006 Mr RG Kenny, Member Background
1. Following a work place accident, Glen Neden (the applicant) has been in receipt of disability support pension, a form of income support which is payable in accordance with the terms of the Social Security Act 1991 (the Act). This continued until 28 June 2005, when a delegate of Centrelink determined that he was no longer qualified to receive the payment. That decision was affirmed by an authorised review officer on 22 August 2005 and, in turn, by the Social Security Appeals Tribunal on 19 October 2005. On 31 October 2005, Mr Neden sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
2. Mr Neden attended the hearing but was not represented. The Secretary, Department of Employment and Workplace Relations (the respondent) was represented by Ms Wallis-Dunn. In evidence were the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975.
Issues and Legislation
3. The qualifying requirements for payment of the disability support pension are set out in subsection 94(1) of the Act which, in so far as relevant, reads:
“94. Qualification for disability support pension
(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) …………; 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) ………..
(iii) …………
(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.
(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.
(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do the work, have regard to the likely availability to the person of work in the person’s locally accessible labour market.
(5) In this section:
"educational or vocational training" does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;
"on-the-job training" does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;
"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."
4. All of those requirements must be met. It is not disputed, and I am satisfied, that Mr Neden meets the age and residential requirements of that provision and that he has a physical impairment which has been described as cervical spondylosis, thoraco-lumbar spondylosis and left arm radiculopathy. It is also not disputed and, again, I am satisfied that his impairment meets the threshold of 20 points under tables 5.2, 5.1 and 3 in schedule 1B of the Act. In that regard, I have noted the medical evidence provided in a report, dated 23 January 2002, by Dr M Cram, from Health Services Australia; in reports, dated 15 October 2004, 6 July 2005 and 19 August 2005, by Mr Neden’s treating doctor, Dr D Hunt; in reports, dated 18 April 2002, 9 January 2003 and 7 December 2005, by Dr J Pentis, orthopaedic surgeon; and in a report, dated 17 August 2005, by Dr G Nutting, orthopaedic surgeon .
5. The remaining issue and that which is for determination in this matter is whether Mr Neden had a continuing inability to work on the date that his disability support pension was cancelled ie 28 June 2005.
evidence
6. In addition to the documentary evidence in this matter, the Tribunal heard evidence from Mr Neden and also Martina Trapp who works for Advanced Personnel Management (APM). That company was engaged by the respondent to provide a Work Capacity/Participation Assessment Report on Mr Neden. This was completed, on 20 May 2005, by Dan O'Malley who was a rehabilitation consultant with APM at that time. Mr O'Malley is no longer employed by APM. Ms Trapp, a registered psychologist, is currently a Team Leader with APM and she described Mr O'Malley as being an exercise physiologist with a university degree in human movement studies. Ms Trapp said that she had read Mr O'Malley’s report which set out a description of Mr Neden’s disabilities and she said that she agreed with the conclusions reached by Mr O'Malley.
7. In his report, Mr O'Malley accepted the medical evidence concerning the level of impairment attributable to the conditions upon which Mr Neden’s disability support pension had been granted. This was a total of 20 points under the tables in schedule 1B of the Act. He concluded that Mr Neden had, at that time, a current work capacity of 8 to 14 hours per week. He also commented upon Mr Neden’s capacity to do any work with the benefit of educational training, vocational training or on-the-job training as being 8 to 14 hours per week at that time and he expected that this would improve to 15 to 29 hours per week within six months and to 30 hours per week within 2 years. Mr O'Malley identified the kinds of work which were suitable to Mr Neden as telemarketer, ticket seller, call-centre operator and gate-keeper. He included the following reasons in his report :
“Retraining will enable customer to RTW (30hrs) within 2 years into an occupation that accommodates the restrictions imposed by their sitting intolerance, physical limitations and chronic pain. I believe customer has the capacity to gradually return to full-time work of a light, sedentary nature that requires no lifting, bending or twisting and allows customer to move about as required to minimize pain, within 2 years. Customer would require the supportive environment of vocational rehabilitation, mainstream employment assistance and job-training to enable a graduated returned to work 30+ hours per week due to customer’s few transferable skills for such work and his lengthy absence from the workforce.”
8. Mr Neden is engaged in litigation over a compensation claim in relation to the injuries that led to his receiving the disability support pension. For the purposes of that matter, he has been assessed by occupational therapist Leslie Stephenson. She completed reports on 15 December 2005 and 24 January 2006. Mr Neden first saw Ms Stephenson on 5 December 2005. Those reports describe a range of significant limitations on Mr Neden’s physical capabilities and do so to an extent greater than that given by Mr O'Malley.
Mr Neden’s evidence and Submissions
9. Mr Neden submitted that he is very limited in his ability to undertake any form of employment or retraining as he has chronic pain from his spinal problems and his left arm. He described his left hand as being constantly numb and said that, over the last four months or so, there has been a development of a similar affliction in his right arm and hand. Mr Neden said that he has also developed depression because of his pain and this was first diagnosed by Dr Hunt in December 2005. Mr Neden described his chronic pain as having deteriorated significantly during the last four months and he said that it makes it impossible for him to sit or stand in any one position for more than a few minutes. He said that he is only comfortable when he is lying down which he is forced to for much of each day. He said that any attempts to work would be unsuccessful because of this.
10. Mr Neden said that he was in the process of lodging a new claim for disability support pension in relation to all of his current conditions.
11. Mr Neden was critical of the report completed by Mr O'Malley. He considered that, because Mr O'Malley was not medically qualified, he was not in a position where he could express a valid opinion of his work capacity. He noted the employment options identified by Mr O'Malley as being suitable for him. He said that he would not be able to do any of these because of his chronic pain. Mr Neden agreed that he had advised Mr O'Malley that he would be interested in returning to work once his compensation claim for his injuries had been resolved. He said this was ongoing and could take another year before it was finalized. Mr Neden said that he may consider going into some form of business which involved his family because they would be required to carry out the work.
12. Mr Neden was also critical of the current approach that the respondent utilizes in dealing with people who have or are seeking the disability support pension. He said that the main motivation of the respondent was to minimize the extent to which disability support pension is granted and to ensure that people remain on some form of job-search allowance. He described this as being unfair because it meant that people, like him, were being forced to work despite their significant disabilities or to be deprived of financial assistance.
Consideration
13. I have noted the criticisms made by Mr Neden in relation to the general policies of the respondent as well as those that were specific to Mr O'Malley. As to the first of those, the task of the Tribunal is to make decisions in accordance with the terms of the relevant legislation, in this case the Act. As to his other criticism, I do not accept that Mr O'Malley lacked the relevant qualifications to make the report into Mr Neden’s work capacity. That was not a medical inquiry and, as noted above, Mr O'Malley relied upon the medical evidence to ascertain the level of impairment which is attributable to Mr Neden’s conditions. His analysis is specific to employment capacity which falls within the ambit of his qualifications. His report is very detailed and reaches a reasoned conclusion. I am satisfied that reliance may be placed on it: see Re Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902. I am also satisfied that issues relating to employment capacity fall within Ms Stephenson’s area of expertise. However, Ms Stevenson’s opinion are directed towards the purposes of compensation with a focus on the limitations which are imposed on Mr Neden by his disabilities. Further, her opinions are based on a presentation of Mr Neden’s symptoms six months after the relevant date in this case which is the date of cancellation in June 2005 and Mr Neden’s evidence was that he had significantly deteriorated and become affected by other conditions by that time. On the other hand, Mr O'Malley’s report has, as its focus, the kinds of activities which Mr Neden is able to undertake rather than his limitations. Also, his report was completed shortly before the cancellation of Mr Neden’s disability support pension and I am satisfied that it is that document which provides the best evidence of Mr Neden’s capacities at that time.
14. On the basis of Mr O'Malley’s report, I am satisfied that, as at 28 June 2005, Mr Neden’s impairment associated with his cervical spondylosis, thoraco-lumbar spondylosis and left arm radiculopathy was not, of itself, sufficient to prevent him from doing work or from undertaking educational training, vocational training or on-the-job training within the 2 years following 28 June 2005. This means that, at that time, he did not have a continuing inability to work for the purposes of subsection 94(2) of the Act and, accordingly, was not qualified for the disability support pension.
Decision
15. The Tribunal affirms the decision under review.
I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 7 February 2006
Date of Decision 5 April 2006
The Applicant appeared in person
For the Respondent Ms H Wallis-Dunn, Departmental Advocate
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