Roberts and Secretary, Department of Family and Community Services
[2004] AATA 1119
•28 October 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1119
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/694
GENERAL ADMINISTRATIVE DIVISION
Re:CONRAD LEE ROBERTS
Applicant
And:SECRETARY,
DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal: Regina Perton, Member
Date: 28 October 2004
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Regina Perton
Member
SOCIAL SECURITY ‑ disability support pension ‑ whether 20 impairment points – whether condition permanent - application dismissed
Social Security Act 1991 ss 94(1), 94(2), 94(3), 95(5), Schedule 1B
Social Security (Administration) Act 1999 cl 4(1) of Schedule 2
REASONS FOR DECISION
28 October 2004 Regina Perton, Member
1. This is an application by Mr Conrad Roberts (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 19 May 2004. The SSAT affirmed a decision of an authorised review officer (ARO) of the Secretary to the Department of Family and Community Services (the respondent) dated 9 March 2004, to refuse an application for disability support pension (DSP) because the applicant 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). The original decision to refuse the application was made by a delegate of the respondent on 28 November 2003.
2. At the hearing on 14 October 2004, the applicant represented himself. Mr Wayne Zita, a Centrelink advocate, represented the respondent. The applicant, who lives in regional Victoria, gave evidence by telephone.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T27).
BACKGROUND
4. The applicant was born on 16 January 1963 and is 41 years old. He has been employed in various fields including nursing. As a result of an injury sustained over 15 years ago, he suffers from back and related pain. Despite his condition, he continues to work a few hours per week as a personal carer.
5. On 12 September 2003, the applicant lodged a claim for DSP. The claim was rejected on 28 November 2003, because the applicant’s impairment was assigned a rating of less than the required 20 points under the Impairment Tables. On 9 March 2004, an ARO affirmed the decision on the same basis.
6. On 19 May 2004, the SSAT affirmed the decision to refuse the claim for DSP. While the ARO found that the applicant’s condition warranted 10 points under the Impairment Tables, the SSAT found that no points could be allocated as the applicant’s condition had not been fully diagnosed, treated and stabilised. The applicant filed an application for review of the SSAT decision with this Tribunal on 15 June 2004.
7. The issue before the Tribunal is whether the applicant has an impairment rating of at least 20 points under the Impairment Tables and, if so, whether the applicant has a continuing inability to work and/or undertake training.
EVIDENCE
8. The applicant told the Tribunal that he and his partner have 3 children, 10, 9 and 7 years old respectively. His partner works as a nurse. The applicant stated that he has been employed in administrative, nursing and other roles. He injured his back while nursing. Despite the pain he experiences, which is worsening as the years go by, he said that he still works part-time as a carer for the local health service. He works for as many hours as he is physically able every week, which is generally no more than 5 to 10 hours per week. On the occasions where he has helped out for a few hours more due to emergencies, he has struggled to work in the week following.
9. The applicant stated that he had only applied for DSP in September 2003 at the urging of a Centrelink staff member who suggested he would be likely to qualify. He said that as he is unable to work full-time, and has spent several thousand dollars on medical expenses, he went to Centrelink to find out whether he could get any assistance, such as a health care card. The applicant said that he had sought review of Centrelink’s decision because he was not happy with the nature of the medical and chiropractic reports that were considered by Centrelink. He expressed his concern that the report by Centrelink’s doctor, Dr Osmers, was based on a brief examination and cursory report by a nurse rather than having been examined by the doctor himself. The Centrelink advocate explained that this was common practice in regional areas.
10. The applicant said that he would like to continue to work for financial and psychological reasons and is also happy to do further training. The applicant said that Centrelink referred him to the Commonwealth Rehabilitation Service, which he attended. He said that the rehabilitation service was unable to assist him further as he is already aware of, and uses, the correct techniques to minimise pain and aggravation of the condition.
11. The applicant indicated that he was still exploring avenues to improve his condition. He said that his back condition has deteriorated over the last six to nine months and he has now been referred to another specialist, whom he is soon to see. The applicant said that an operation would not assist his condition but he is continuing to explore if there are any other alternative ways of pain management. He had an MRI scan in June 2004 to assist with further diagnosis. He no longer sees the chiropractor who provided a report to Centrelink, as he believes that the chiropractor may well be over-servicing him with limited effect.
12. The applicant stated that he undertakes his own personal grooming. He finds it difficult to put on shoes and socks but otherwise has a relatively normal life. He described how he has adjusted household activities taking into account his physical condition. The applicant stated that he expects to have to live with his current condition for the rest of his life.
13. The application for DSP was accompanied by a treating doctor’s report from Dr M. Wong dated 24 September 2003 (T7). He indicated that the applicant had been his patient only since 10 September 2003 but had been a patient of the Bairnsdale Medical Group since 26 March 1995. Dr Wong indicated that the applicant suffered from arthritis – thoracic spine secondary to chronic injury. Dr Wong indicated that the injury occurred in 1989 and that x-rays in January 2002 had led to the current diagnosis. Dr Wong indicated that the applicant suffered from back pain and hip pain, which was exacerbated by sitting for long periods and resulted in the applicant being unable to sit or drive comfortably for any longer than an hour. Dr Wong indicated that the applicant’s current treatment consisted of analgesia, rest, modification of activities, chiropractic and that future treatment would be similar, with the addition of exercise. He indicated that this condition would impact on him for more than 24 months and that the applicant’s condition would be expected to fluctuate over the next two years.
14. Dr Christopher Long, the applicant’s chiropractor, provided a report dated 8 September 2003 (T8) indicating that he had been treating the applicant since 1 March 2002. Dr Long stated that the applicant has been suffering from a Chronic moderate mid-upper thoracic subluxation (biomechanical dysfunction) and a Chronic moderate low back subluxation (biomechanical dysfunction) since 1989. He indicated that he undertakes chiropractic adjustments and exercises approximately every 2 weeks, depending on symptoms, and that this should continue in the future. Dr Long expected both conditions to continue for more than 24 months. He expected the first condition to somewhat improve over the next 2 years and that the latter condition would fluctuate.
15. The applicant was assessed by Dr L. Osmers of Health Services Australia Ltd, at the respondent’s request. In her report dated 13 November 2003 (T10), Dr Osmers stated that the applicant suffered from chronic back pain and gave him an impairment rating of 10 points pursuant to Table 5.2 of the Impairment Tables.
16. The applicant provided further medical documentation to the respondent on 23 August 2004. A diagnostic imaging report dated 30 June 2004 from Monash Medical Centre describes the outcome of a spinal scan taken that day. The applicant also provided an imaging report from Dr G D. Brown of Bairnsdale Regional Health Service dated 23 September 2003. Dr T H. Watford of the Bairnsdale Medical Group provided a short statement dated 19 August 2004, which states:
…
The above [the applicant] has long standing acute or chronic back pain. This prevents him from pursuing meaningful work. He can only manage short bursts of activity and is unable to pursue long term viable employment.
17. Also provided was a referral by Dr Watford, of the applicant, to Dr Paul Verrills of Brighton for opinion and ongoing management, dated 20 August 2004.
CONSIDERATION OF THE ISSUES
18. Section 94 of the Act sets out how a person qualifies for a DSP:
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(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.
19. The Impairment Tables are set out in Schedule 1B of the Act. The Introduction to Schedule 1B states that:
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. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years…
20. When deciding whether a person qualifies for the DSP, the decision maker also needs to take into account the provisions of clause 4(1) of Schedule 2 to the Social Security Administration Act 1999. Clause 4(1) allows a person who does not qualify for DSP at the date of application to do so within a further 13 weeks. Therefore, in this case, the Tribunal must consider whether the applicant qualified for the DSP either on 12 September 2003 or at a date before 11 December 2003 (the relevant period).
21. The respondent submitted that during the relevant period the applicant’s condition had not been fully diagnosed, investigated or stabilised and that therefore he did not satisfy s 94 of the Act. In the alternative, the respondent submitted that the applicant’s condition warranted only 10 points under Table 5.2 of the Impairment Tables. Further in the alternative, the respondent submitted that if, however, the applicant’s impairment was assigned a rating of 20 points, the applicant did not have a continuing inability to work and therefore did not satisfy s 94(1) (c) of the Act.
22. The Tribunal accepts that the applicant suffers from back and other pain now, as he did at the time he applied for DSP. The Tribunal also accepts that his condition prevents him from undertaking full-time work. Dr Wong indicated, in his treating doctor’s report, as did the applicant in his evidence, that while he has suffered from his condition for many years, its severity fluctuates and it has deteriorated in the last six to nine months, i.e. since he applied for DSP. The applicant continues to explore treatments to ameliorate his condition. He has recently been referred to a specialist for further assessment.
23. Based on the documentary evidence and the oral evidence of the applicant, the Tribunal finds that while the applicant’s spinal condition had been diagnosed, it had not been fully treated and stabilised during the relevant period. Therefore, the Tribunal is unable to assign a rating under the Impairment Tables for the condition during the relevant period.
24. Consequently, during the relevant period, the applicant did not have an impairment rating of 20 points or more under the Impairment Tables. As a result, the applicant does not satisfy s 94(1)(b) of the Act and cannot satisfy s 94(1). The decision to refuse the claim for DSP was correct.
DECISION
25. The Tribunal affirms the decision under review.
I certify that the twenty-five (25) preceding paragraphs are a true copy of the reasons for the decision herein of
Regina Perton, Member
(sgd) Catherine Thomas
Clerk
Date of Hearing: 14 October 2004
Date of Decision: October 2004
Advocate for applicant: Self‑represented
Advocate for respondent: Mr Wayne Zita, Centrelink
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