Nguyen and Secretary, Department of Family and Community Services

[2000] AATA 150

DECISION AND REASONS FOR DECISION [2000] AATA 150

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No Q1999/550

GENERAL ADMINISTRATIVE DIVISION          )          

Re      CHANH NGUYEN  

Applicant

And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        

Respondent

DECISION

Tribunal       Mr D W Muller, Senior Member Miss A M Brennan, AM, Member Dr K P Kennedy, OBE, Member         

Date28 February 2000

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.

................(Signed)..............................
  D W Muller
  Senior Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Chronic Pain – Schedule 1B Tables for assessment of impairment
Social Security Act 1991:s 94

REASONS FOR DECISION

28 February 2000    Mr D W Muller, Senior Member Miss A M Brennan, Member Dr K Kennedy, Member                    

1. This is an application to review a decision of the Social Security Appeals Tribunal dated 9 April 1999, which affirmed a decision of Centrelink dated 24 November 1998, as affirmed by an authorised review officer on 22 December 1998, to cancel the applicant's disability support pension from 29 October 1998.

2. Disability support pension was originally granted to the applicant from June 1995, relating to problems with his back, eyes and hepatitis B. The applicant's eye problem and hepatitis B ultimately settled down, leaving the back condition as the main problem.

3. The applicant's evidence was that in 1993, he injured his back when he slipped and fell on the deck of a prawn trawler he operated. There was a suggestion that the applicant may have sustained a crush fracture of the L3 vertebrae. However, upon review of the medical evidence, the Tribunal was unable to find where the original notion of a crush fracture emanated.

4. The applicant's medical witness, Dr Gervin Samarawickrama, gave evidence that he believed the applicant was suffering from chronic pain. He believed this pain could be treated by cognitive behavioural therapy from a pain clinic. The Tribunal is concerned that the applicant has not persisted to attend such treatment at a pain clinic. It is not clear to the Tribunal whether the applicant's pain has stabilised to the same level as could occur if he were to utilise treatment at a pain clinic.

5. There was debate as to which impairment table should be applied to assess the applicant. The respondent assessed under table 5.2, which relates to the thoraco-lumbar-sacral spine. The applicant submits that table 20, which relates to Miscellaneous conditions including pain, should be applied, as was applied by Dr Samarawickrama.

6. The Tribunal was not overly impressed by the evidence of Dr Samarawickrama. His assessment of the applicant seemed to be more influenced by what the applicant told him, rather than his own observations. It is the Tribunal's view that table 5.2 is the appropriate table to be used in this matter, as this does include assessment by reference to pain.

7. The Tribunal is not satisfied that the applicant could be assessed at any more than 15 impairment points as at 29 October 1998, and that it would more likely be ten points. Accordingly, the Tribunal finds that the applicant's impairment fails to reach the 20 points or more required by s 94(1)(b) of the Social Security Act 1991.

8. Although not necessary for our decision, the Tribunal has noted from the evidence that the applicant has bought and sold a number of properties, as well as prawn trawlers and the associated businesses. This, along with observations of the applicant in the witness box, satisfies the Tribunal that the applicant has a good intellectual capacity and has the ability to work, and to be retrained. The Tribunal finds therefore, that there is no inability to work in the applicant's case.

9. For the above reasons, the application fails and the decision under review is affirmed.

   I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D W Muller, Senior Member, Miss A M Brennan and Dr K P Kennedy, Members.

   Signed:         .....................................................................................
              R. Hayes, Associate

   Date of Hearing  28 February 2000
   Date of Decision  28 February 2000
   Solicitor for the applicant         Ms G Bolton, Welfare Rights Centre
   Respondent  Mrs T Guthrie, departmental advocate