Riley and Secretary, Department of Family and Community Services

[2004] AATA 454

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 454

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/608

GENERAL ADMINISTRATIVE DIVISION		)
Re		DOROTHY RILEY

Applicant

And SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr O Rinaudo, Member

Date11 May 2004  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

......(Sgd) O Rinaudo......

Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – disability support pension – back pain – eligibility for pension - at the time of her application, or within 13 weeks thereof, the applicant did not have an impairment rating of 20 points under Table 5.2  – applicant had an impairment rating of 10 points – decision affirmed

Social Security Act 1991 s 94

REASONS FOR DECISION

11 May 2004   Mr O Rinaudo, Member     

Decision Under Review

1.      The applicant seeks review of a decision made by Centrelink on 14 January 2003 to reject her claim for disability support pension lodged on 2 September 2002.  This decision was affirmed by an Authorised Review Officer on 6 May 2003 and by the Social Security Appeals Tribunal on 18 June 2003.

Issues

2.      The issues for the Tribunal in this application are:

(a)whether at the time of the claim, or within 13 weeks, Mrs Riley has at least 20 impairment points under the Impairment Tables; and, if so

(b)whether she has a continuing inability to work.

Evidence

3.      At the hearing Mrs Riley and her daughter Janelle Courtney gave evidence.  The following documentary evidence was also tendered:

Exhibit 1        “T” Documents
Exhibit 2        Report of Dr Robert Tiller (undated)

Exhibit 3        Report of Dr J Lee dated 31 December 2003

4.      Mrs Riley gave evidence as follows.

5.      She told the Tribunal that she did not regard the Centrelink decision as fair.  She said everyone was taking Dr Lee’s side.  She stated that he only saw her for a very short time.

6.      Mrs Riley stated that on some days she is in pain all day.  She stated that with medication she does have good days.  She said she is working three days per week at the counter of Lifeline.  She stated this job requires her to pick up things off the floor and to lift things.  She stated she works 16 hours per week.

7.      Mrs Riley stated she takes Brufen (3 per day), Neurofen and Panadol.  She stated her son is at home, is 18 years of age and does a lot of work around the house.

8.      Mrs Riley stated she takes Brufen every day but not three every day. 

9.      Mrs Riley stated she is working three days with Lifeline which is what Centrelink wants her to do.  She said she would cut down her hours of work if she could.

10.     Mrs Riley stated she is not coping.  She has days off when she has treatment.  She stated she drives herself to work.  She did not drive to the Social Security Appeals Tribunal.  She does drive, though, to do shopping.

11.     Mrs Riley stated she has five children, nine grandchildren and that sometimes they go to the beach.  She stated she does not do this much.  She stated she goes the movies sometimes, the last time being about a month ago.  She takes a massage pillow with her to help sitting in the one position.

12.     Mrs Riley stated she can cope with most things with assistance.  She had been working with Lifeline for two years at the same rate of work.  She stated her daughter comes over and helps a lot with the housework.  She said sometimes she has to do the housework saying “who else will do it?”.

13.     Mrs Riley’s daughter, Janelle Courtney, also gave evidence.  She confirmed that she helps her mother by taking her to the doctor for treatment, sometimes putting her to bed, ringing regularly to see how she is, pegging out the washing, cleaning the house and making the bed.  She stated there are two other daughters who also assist with these jobs.  She stated she and her sisters share but she does most of the work because she has teenage children and has the time.  She said on some occasions her mother has good days but mostly she is in pain.  In cross-examination Ms Courtney confirmed that her mother would make one side of the bed and she would make the other.  

Submissions

14.     Ms Wallis-Dunn, representing the respondent, confirmed that the application date was 2 December 2002 and, having regard to the 13 week period, the Tribunal would need to consider the applicant’s entitlement to disability support pension during the period from 2 December 2002 to the end of February 2003.

15.     Ms Wallis-Dunn referred the Tribunal to the treating doctor’s report at Document T6 of the “T” Documents (Exhibit 1) and in particular to folio 35 which noted that the current clinical features and symptoms of the applicant included pain and stiffness.

16.     Ms Wallis-Dunn also noted that on folio 36 of Exhibit 1, the doctor had commented about how the applicant’s condition affected her ability to function as:

“Cannot heavy lift or … for long periods.”

17.     At folio 39 of Exhibit 1, Ms Wallis-Dunn noted that the treating doctor’s report stated that the impact on the applicant’s ability to function was “limited” and that on folio 40, Dr Tiller noted that the applicant had been a patient since 1992.

18.     Ms Wallis-Dunn also noted the comments of Dr Lee at Document T7, folio 45, where, in response to the question “How does this condition affect the customer’s ability to function?”, the doctor had reported:

“Low back pain most of time.  Radiation to either leg at times.  Sit ½ hour.  Drive ½ hour – 1 hr to Brisbane.  Stand ½ hr.  Walk ½ hr.  Difficulty bending and heavy lifting.  Difficulty making bed and vacuuming.”

19.     It was also noted that Dr Lee’s assessment was, under Impairment Table 5.2, that the applicant had one-quarter loss of range of movement and gave an impairment rating of 10 points. 

20.     Dr Lee also noted, at folio 49 of Document T7, that the applicant’s working capacity at the time of the report was 15-29 hours per week rising to 30+ hours per week within six weeks.  Dr Lee suggested that suitable work for the applicant would be light, less skilled work.

21.     Ms Wallis-Dunn also referred to Dr Lee’s summary at folio 58 of Document T7 where he states as follows:

“What is your opinion of this person’s condition(s) and work ability and if it differs from that of the treating doctor(s), why?

This 55 year old client has chronic low back pain with intermittent radiation to either leg.  She takes Brufen daily for pain.  She has difficulty sitting for ½ an hour, driving for ½ to 1 hour, standing or walking for ½ an hour.  She has ¼ loss of range of spinal movement.  She can manage all activities of daily living independently with some difficulty eg making the bed, vacuuming.  She can work 16 hours a week as a voluntary shop assistant for Lifeline.

In my opinion this client could do light duties with a back care program or vocational rehabilitation and a graduated return to full time work.”

22.     Mrs Riley submitted that she had to work at Lifeline.  She said there were others there who helped her with her work.  She said her back has become worse over time.  She stated that Dr Tiller knows this because he gave her injections.  She stated she has lots of days off to rest her back.

Legislation

23.     The legislation relevant to this application is contained in the Social Security Act 1991 (“the Act”) and, in particular, section 94 is relevant. Section 94 provides as follows:

“(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; 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)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A)      is not an Australian resident; and

(B)      is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.

(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.

(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 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.

(6)  A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person's incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment.”

24.     The relevant Impairment Table is Table 5.2. 

Discussion and Decision

25. To be granted the disability support pension the applicant must have a physical, intellectual or psychiatric impairment and that impairment must be 20 points or more under the appropriate Impairment Table. Mrs Riley has a history of chronic low back pain for which she has been receiving treatment for nine years. This condition is permanent. Accordingly, Mrs Riley satisfies the requirements of subsection 94(1)(a) of the Act.

26.     The Tribunal must now consider whether Mrs Riley has an impairment under the relevant Tables and, if so, how many points are attributable to that impairment.  Dr Tiller is the applicant’s treating doctor.  In his undated report at Exhibit 2, Dr Tiller reports that:

“Over the last 4-5 years, she has developed severe lumbosacral pain with referred nerve root symptoms either due to the above condition or advanced degenerative disease.  This condition is permanent and in my opinion will only worsen.

She is in constant pain and cannot stand in place for more than a few minutes.  She can neither bend, carry nor lift even light objects.  She requires regular pain relief and daily medications in the form of anti-inflammatory.  The pain is sufficient to disturb her sleep most nights depending on the daily activity.  At its worse, she has impairment according to the tables of about 50% of her normal range of movement with referred pain.  This involves most physical activities as well as standing for less than 5 minutes and driving for less than 30 minutes.

…

It is my opinion that the impairment prevents her from working 30 hours per week and this will remain for at least two years.  It is also my opinion that the impairment would preclude her from benefiting from educational or vocational training for at least two years.”

27.     The evidence given by Mrs Riley contradicts this report.  Mrs Riley in her evidence stated that she does stand, lift and carry objects in the course of her employment for substantially longer periods than those referred to by Dr Tiller.  Dr Lee, on the other hand, confirms his assessment that:

“At the date of her claim on the 2/12/02 based on the evidence provided for assessment on the 8/1/03 the appropriate impairment rating was 10 points for her back condition.  Furthermore she was able to do light duties for 16 hours a week as a volunteer clothing shop assistant for Lifeline so she did not have a continuing inability to work.”

28.     It must be remembered that the Tribunal is required to consider the application as at the date of lodging, which was 2 December 2002, or any evidence within 13 weeks thereafter. 

29.     Based on the medical evidence of Dr Lee, which the Tribunal accepts, and the evidence of Mrs Riley as at the appropriate date, the Tribunal considers that the appropriate rating to be given in respect of Mrs Riley’s impairment is 10 points under Table 5.2.  Ten points equates to a loss of one-quarter of normal range of movement as well as back pain or referred pain:

§with many physical activities; and

§with standing for about 30 minutes; and

§with sitting or driving for about 60 minutes; or

loss of half of normal range of movement.

30.     Twenty points involves a loss of half of normal range of movement as well as back pain or referred pain:

§with most physical activities; and

§with standing for about 15 minutes; and

§with sitting or driving for about 30 minutes; or

loss of three-quarters of normal range of movement.

31.     On the medical evidence and on the evidence of the applicant and the applicant’s daughter, the applicant certainly does not warrant a 20 point rating as described in the Table.

32.     Accordingly, the Tribunal determines that the proper assessment of points attributable to the applicant’s impairment is 10 points.  As the rating of points does not meet the threshold of 20 points, Mrs Riley is not qualified for disability support pension.

33.     Having made this finding, it is not necessary for the Tribunal to proceed further to consider whether the applicant has a continuing inability to work. 

34.     In the circumstances, the Tribunal affirms the decision under review.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member

Signed:   S Oliver

Associate

Date of Hearing  30 March 2004
Date of Decision  11 May 2004

The Applicant appeared in person      
For the Respondent                  Ms H Wallis-Dunn, Departmental Advocate