Richard and Secretary, Department of Family and Community Services

[2005] AATA 809

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 809

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2005/271

GENERAL ADMINISTRATIVE  DIVISION

Re:         ALFRED RICHARD

Applicant

And:       SECRETARY,

DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Senior Member

Date:             24 August 2005

Place:            Melbourne

Decision:      The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Senior Member

SOCIAL SECURITY - disability support pension - lower back, hip and shoulder pain -  whether 20 impairment points - continuing inability to work

Social Security Act 1991 ss 94(1), 94(2), 94(3), 94(4), 94(5), Schedule 1B

REASONS FOR DECISION

24 August 2005  G.D. Friedman, Senior Member

1.      This is an application by Alfred Richard (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 24 February 2005.  The SSAT affirmed a decision of an authorised review officer of Centrelink dated 20 December 2004 to refuse the applicant’s claim for disability support pension (DSP).

2.      At the hearing on 8 August 2005 the applicant represented himself.  Mr W. Zita, a Centrelink advocate, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T23), plus one exhibit (Exhibit R1) lodged by the respondent.

BACKGROUND

4.      The applicant was born on 26 March 1964.  He obtained employment as a fork lift driver and worked in that occupation for a number of years.  He developed back pain as a result of his work and was placed on light duties.  After rehabilitation and treatment, including physiotherapy, his condition improved.  In October 2001 he was involved in a motor vehicle accident, in which he suffered fractures to his back, pelvis and hip, and he has not worked since then.

5.      On 17 September 2004 the applicant applied for DSP.  He was medically assessed on 8 November 2004.  On 11 November 2004 Centrelink refused the claim because he did not have an impairment rating of at least 20 points under the Tables for the Assessment of Work‑Related Impairment for Disability Support (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act), and did not have a continuing inability to work.

6.      On 20 December 2004 an authorised review officer affirmed the decision.  On 13 January 2005 the applicant sought review of the Centrelink decision by the SSAT.  Following the SSAT decision to affirm the decision, the applicant lodged an application with the Tribunal on 4 April 2005 for review.

7.      The issues before the Tribunal are whether the applicant’s medical conditions attract an impairment rating of at least 20 points under the Impairment Tables and whether he has a continuing inability to work.

EVIDENCE

8.      The applicant gave oral evidence that he left school at the age of 14 years and worked as a labourer before gaining his fork lift driver’s licence.  He said that after working on uneven surfaces for a number of years he developed severe back pain and was unable to continue fork lift driving.  He said that he was making good progress with rehabilitation and working restricted hours when the motor vehicle accident occurred, and he injured his back, pelvis and hips.

9.      The applicant stated that after the accident his employment was terminated.  He said that he suffers constant pain and has difficulty standing, sitting, bending and walking for extended periods and cannot lift even light objects.  He is taking painkillers and he described the frustration at his inability to work.  He said that he has developed depression as a result of his situation, requiring psychiatric treatment and medication.

10.     The applicant told the Tribunal that although he is unable to work he has undertaken a medical assessment at the direction of the Transport Accident Commission and is awaiting the report and recommendations.  He said that he would be willing to undertake other assessments as directed by Centrelink, and agreed that rehabilitation programs designed to assist him to return to the workforce may be beneficial, although he noted that his experience has been limited to manual occupations.

11.     In a written report dated 1 April 2004 (T19) Dr C. Thomas, rehabilitation physician, stated that a return to work as a fork lift driver would not be appropriate unless the vehicle had good suspension, suitable seating and the terrain was smooth.

12.     In a written report dated 21 September 2004 (T5) Dr A. Asthana, the applicant’s treating doctor, stated that the applicant’s disc and spinal injuries have stabilised and he is not fit for his pre-injury work.  Dr Asthana said that the effect of the injuries on the applicant’s ability to function within the next two years was uncertain.  He doubted that the applicant could be trained for any other type of work.  He stated that his opinion included the applicant’s pelvic and soft tissue injuries.

13.     In a further written report dated 18 November 2004 (T11) Dr Asthana stated that the applicant’s injuries have stabilised and are permanent.  He reiterated that the applicant is not fit to do any type of work, including light or restricted duties.

14.     In a written report dated 8 November 2004 (T7), Dr L. Naumoski, Health Services Australia, stated:

…

He is not fit to return back to his previous job, which includes heavy physical work, lifting, bending and prolonged standing.  Therefore vocational rehabilitation is strongly recommended to help him gradually return to full-time light or moderate duties, which exclude such activities.  The provided evidence and examination proved no barriers to graduate return to light to moderate duties.  Barriers and interventions have been considered.

Dr Naumoski allocated 10 points under Table 5.2 (thoraco-lumbar sacral spine), 0 points under Table 4 (function of the lower limbs) and 0 points under Table 3 (upper limb function).

15.     In a further written report dated 6 December 2004 (T13) Dr Naumoski reviewed Dr Asthana’s report dated 8 November 2004 and said that his own opinion was unchanged.  He stated that the next six months should be used for appropriate vocational rehabilitation to help the applicant to return to full-time work that excludes heavy physical activities such as lifting, bending and prolonged standing.

16.     In a written Work capacity/participation assessment dated 5 July 2005 (Exhibit R1) Ms W. Hall-Wiggins, rehabilitation consultant, carried out a comprehensive assessment of the applicant’s capacity to work.  She stated that the applicant has excellent practical transferable skills in areas such as light process or assembly work and security.  She concluded that the applicant would benefit from a referral for vocational rehabilitation to increase his confidence and to manage pain issues and endurance for work activity, and that this would enable a return to full‑time work within 6 to12 months.

CONSIDERATION OF THE ISSUES

17.     Section 94 of the Act provides:

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;

(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system;

…

94(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 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.

…

94(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.

94(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 work, have regard to the likely availability to the person of work in the person's locally accessible labour market.

94(5)       …

"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.

Schedule 1B of the Act, in so far as it is relevant, provides:

…

4.        A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. …

18.     Mr Zita submitted that at the date of the claim or within 13 weeks of that date the applicant did not have an impairment of 20 points or more under the Impairment Tables and did not have a continuing inability to work because he would be able to return to full-time employment within 6 to12 months with appropriate vocational training.

19.     In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. 

20.     On the question of whether the applicant has a continuing inability to work, the Tribunal places considerable weight on the report by Ms Hall-Wiggins, an experienced and qualified rehabilitation consultant, whose report was comprehensive and took into account the applicant’s particular needs and limitations.  The Tribunal also accepts both reports from Dr Naumoski, who recommended a gradual return to work following appropriate vocational rehabilitation, on the basis that the applicant’s conditions would prevent him from undertaking certain manual work.  The Tribunal prefers these reports to those of Dr Asthana, who gave little consideration to rehabilitation programs in his reports.

21.     The Tribunal accepts the applicant’s evidence that he is anxious to return to work and would be willing to undertake rehabilitation programs that are designed to facilitate suitable employment within the next 6 to12 months, as long as the limitations noted by medical practitioners are taken into account.

22.     Although the applicant has worked primarily in a manual occupation for a number of years, the Tribunal is satisfied that referral to rehabilitation providers for re-training is possible for a person who has limitations because of severe lower back pain and other disabilities, and that future employment in other positions might be feasible.  The Tribunal concludes that the applicant would be able to attend for appropriate educational or vocational training designed to retrain him and assist him to return to the workforce.  For this reason, the Tribunal finds that the impairments suffered by the applicant are not of themselves sufficient to prevent him from undertaking educational or vocational or on-the-job training during the next two years (s 94(2)(b)(i) of the Act), or that such training is unlikely (because of the impairments) to enable him to do any work within the next two years (s 94(2)(b)(ii) of the Act).

23. Consequently, the Tribunal finds that the applicant has not demonstrated a continuing inability to work and does not satisfy s 94(2) of the Act. Therefore, he is unable to satisfy s 94(1)(c)(i), and s 94(1)(c)(ii) does not apply. It follows that he cannot satisfy s 94(1). Consequently, at the relevant time the applicant did not qualify for DSP and the decision to refuse the claim was correct. In the circumstances, the Tribunal does not need to consider the other issue before it, namely, whether the applicant’s medical conditions attract an impairment rating of at least 20 points under the Impairment Tables.

DECISION

24.      The Tribunal affirms the decision under review.

I certify that the twenty-four [24] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:   8 August 2005

Date of decision:  22 August 2005
Advocate for applicant:                Self-represented
Advocate for respondent:            Mr W. Zita, Centrelink