Peter Miller and Secretary, Department of Social Services
[2013] AATA 910
[2013] AATA 910
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1298
Re
Peter Miller
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 26 November 2013 Date of written reasons
18 December 2013 Place Brisbane (heard on Gold Coast) The decision under review is affirmed.
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Deputy President P E Hack SC
CATCHWORDS
SOCIAL SECURITY – eligibility – disability support pension – whether impairments warrant impairment rating of 20 points – whether continuing inability to work – decision affirmed
LEGISLATION
Social Security Act 1991, ss 94(1)(b), 94(1)(c), 94(2)(aa)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, s6(4)
REASONS FOR DECISION
Deputy President P E Hack SC
The applicant, Mr Peter Miller, lodged a claim for disability support pension in early April 2012. Accordingly, the relevant period to consider Mr Miller’s eligibility is the period of April, May and into early July of that year.
An applicant is qualified for disability support pension if he or she satisfies s 94(1) of the Social Security Act 1991 (Cth) (the Act). It is sufficient for present purposes to note that that section requires an applicant to have an impairment or impairments of sufficient severity to warrant a rating of 20 points under the impairment tables and as well to have a continuing inability to work.
Mr Miller has two impairments: lower back pain, which has been diagnosed as multilevel spondylosis between the L2 and L5 vertebrae with disc prolapses at L3 and L4, and a heart problem diagnosed as a myocardial infarction. The scheme of the Act, as supplemented by a Determination made under it[1], is that before conditions can be assigned a rating under the impairment tables they must be permanent, that is fully diagnosed, fully treated and fully stabilised[2].
1Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
2See s 6(4) of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Mr Miller’s back has been problematic for a number of years. There are medical opinions going back as far as 2006 but it is evident that the situation worsened at or about the time of his claim in April 2012. He was working as an independent contractor, albeit with some difficulty, up until March 2012 and has not worked since. His general practitioner, Dr Mark Lee, referred him for an orthopaedic opinion in June 2012 but the nature of the public hospital system is such that Mr Miller has not yet been able to see an orthopaedic surgeon. He presently anticipates seeing a surgeon in January 2014.
Whilst I think sometimes the views of the Secretary about back problems are somewhat quaint, it does seem to me that it is simply not possible to say that Mr Miller’s back condition has been fully diagnosed, fully treated or fully stabilised as there is a dearth of information about the current symptoms.
That leads to the second difficulty in relation to the spinal function which is, even if, contrary to my present inclination, it were possible to regard it as fully treated and fully stabilised, there is again a dearth of evidence about the extent of the impairment. The tables, which are part of Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination), make it clear that self-reported symptoms are insufficient[3]. There must be corroborating evidence of the impairment, such as from a treating doctor, physiotherapist or other rehabilitation practitioner. In the circumstances I would not be able to assign an impairment rating even if the back condition could be regarded as fully treated and fully stabilised.
[3] See the Introduction to each table in the Determination.
So far as the heart problem is concerned, the Secretary appears to accept that that condition is permanent and is capable of being assigned a rating under Table 1 of the Determination which deals with functions requiring physical exertion and stamina. At best, on the Mr Miller’s description of his symptoms, the level of functional impact is somewhere between mild and moderate rating of 5 or 10 points on the table.
The result is that Mr Miller does not satisfy the criteria in s 94(1)(b) of the Act which requires an impairment rating of 20 points under the tables.
It is unnecessary then to deal with the continuing inability to work criteria in s 94(1)(c) of the Act however it seems plain that he would not satisfy that criteria either. By virtue of an amendment of the Act[4] if he does not warrant 20 points under a single impairment table he is required to have actively participated in a program of support for 18 months prior to making his claim. He did not do so simply because he, like all other applicants, was unaware that the parliament was intending to change the law.
[4]See item 3 of Sch 3 to the Family Assistance and Other Legislation Amendment Act 2011 (Cth) which inserted s 94(2)(aa) of the Act.
In those circumstances the decision must be affirmed however I reiterate my suggestion to Mr Miller that, once he has seen the orthopaedic surgeon about his back, he test his claim again with Centrelink informed by a report from his physiotherapist about the level of functional impairment. I wish Mr Miller all the best with the battles with the hospital system.
I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC .......................[Sgd].................................................
Associate
Dated 18 December 2013
Date(s) of hearing 26 November 2013 Applicant In person Solicitors for the Respondent Program Litigation and Review Branch, Department of Human Services
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