Ryder; Secretary, Department of Education, Employment and Workplace Relations and

[2008] AATA 45

Administrative Appeals Tribunal

WRITTEN REASONS FOR ORAL DECISION [2008] AATA 45

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1429

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And GRANT RYDER

Respondent

DECISION

Tribunal   Senior Member, Mrs Josephine Kelly

Date of Decision           14 January 2008

Date of Written Reasons 16 January 2008

Place  Sydney

Decision

The decision of the Social Security Appeals Tribunal dated 20 September 2006 is set aside and substituted therefor is a decision that, on 16 March 2006:

1. The Respondent had an impairment rating of 20 points under Table 5.2 of Schedule 1B the Social Security Act 1991 (“the Act”); and

2. The Respondent did not have a continuing inability to work within the meaning of s 94 (2) of the Act; and

3.      The Respondent was not eligible for the Disability Support Pension.

..............................................

Senior Member, Mrs Josephine Kelly

WRITTEN REASONS FOR ORAL DECISION

1.At the conclusion of the hearing of this matter in Sydney, the terms of the decision made and the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2.The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons.  The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and is furnished to the Applicant and to the Respondent. 

CATCHWORDS

SOCIAL SECURITY – disability support pension – impingement on sciatic nerve - impairment rating of 20 points under Table 5.2 (Thoraco-Lumbar-Spine) – whether applicant had continuing inability to work  – held applicant had ability to work – not eligible for disability support pension - difficulty of assessment under Table 5.2 – reviewable decision set aside

Social Security Act 1991 s 94, Schedule 1B

WRITTEN REASONS FOR ORAL DECISION

16 January 2008	Senior Member, Mrs Josephine Kelly
INTRODUCTION

1.This is my decision in the matter of the Secretary, Department of Education, Employment and Workplace Relations and Grant Ryder. 

2.Mr Grant Ryder is 44 years old. He has been receiving the Disability Support Pension (“DSP”) since September 1999. He last worked in 1997 or 1999; the evidence wasn’t clear. He suffers from a chronic back pain as the result of a workplace injury which occurred when he was constructing fences in 1996. After an audit was conducted by the department, a delegate of the Secretary cancelled his DSP on 16 March 2006. I emphasise that that is the relevant date at which I have to be satisfied either than Mr Ryder was or was not qualified to receive a disability support pension. The delegate relied on an updated job capacity assessment report which provided that Mr Ryder had an impairment of 20 points under Table 5.2 of Schedule 1B of the Social Security Act 1991 (“the Act”), but that he did not have a continuing inability to work more than 30 hours per week. 

3.Mr Ryder appealed to the Social Security Appeals Tribunal (“SSAT”), which found in his favour on 20 September 2006.  The Secretary applied to this tribunal for a review of that decision. 

THE ISSUES

4.The issues before the Tribunal are:

1) whether or not Mr Ryder has an impairment rating of 20 points or more under s 94 (1) of the Act; and

2) whether he has a continuing inability to work under section 94 (1) (c) of the Act.

5.For the reasons that follow, I have come to the conclusion that he had an impairment rating of 20 points, relevantly at that time, but that he did not have a continuing inability to work under section 94 (1) (c), and therefore he did not qualify for the DSP as of 16 March 2006.

CONSIDERATION

6.I note that there is no dispute that, in terms of section 94 (1) (a) of the Act, Mr Ryder has a physical, intellectual or psychiatric impairment. However the issues are, as I said, section 94 (1) (b), the points to be attributed to the impairment and whether 94 (1) (c) applied.

7.The difficulties in relation to the assessment of the points to be attributed to Mr Ryder’s impairment were that the Department sought to rely on reports prepared 12 months after the relevant date to establish a five point impairment rating.  The original job capacity assessment undertaken by Ms Evans on 14 March 2006 attributed 20 points.  Dr Doig, orthopaedic surgeon, provided a report of 28 February 2007, in which he attributed 20 points, but only because of Mr Ryder’s failure to co-operate in terms of the request made by Dr Doig. As Dr Doig noted:   

Examination of his range of movement was really impossible as he refused to even bend over and touch the examination couch.

8.When Ms Evans saw Mr Ryder again on 14 March 2007, she attributed five points, essentially, as I understand it, on the reports of what he said he could do rather than what he demonstrated when he was requested to undertake the relevant movement according to the table.  The difficulty I have with those two assessments is that they are almost 12 months after the date at which I have to determine the matter, and in particular I note that during his oral evidence last Friday, Dr Doig conceded that Mr Ryder was probably worse in 2006.  On that basis, it is difficult for me to accept the Department’s submission that I should determine a five point rating.

9.Coming to the conclusion that I do, I would attribute a 20 point rating. I take into account that under Table 5.2 a five point loss is loss of one quarter of normal range of movement.  Ten points is 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 normal range of movement.  Twenty points is 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. 

10.It may be thought by the Department that I am being somewhat generous in allocating 20 points but given the difficulties of the reports and Mr Ryder’s evidence, it seems to me that the fair assessment is to attribute a loss of 20 points as falling within the table 5.2 as I have just summarised.  This is supported by the assessment carried out on 14 March 2006.

11.Coming to Mr Ryder’s ability or inability to undertake work as specified in section 94 of the Act, I do find that Mr Ryder’s evidence was exaggerated at both the hearing dates that we had in this matter, and I found it unreliable. In terms of Dr Doig’s findings, I accept that the complaints of pain did not conform to the nerve distribution in terms of a medical assessment. Dr Doig said in his report of 28 February 2007:

He also described radiation of symptoms into his lower abdomen, groin and down the backs of his legs.  There was no history of any true sciatica and no neurological symptoms.

12.I accept that there is some exaggeration, but I also find, given the clinical findings by Dr Doig from the two radiological reports of 1999 and 2006, that there is certainly some suggestion of impingement on the sciatic nerve, which is consistent with some of the complaints that, on the evidence, Mr Ryder makes. 

13.Coming to the job capacity assessments, I accept Ms Evans’ first report of 14 March 2006, which is effectively the same outcome as the second report of March 2007 in terms of Mr Ryder’s ability to work.  He certainly has motivational factors involved in terms of his ability to work.  I note Ms Maclean’s submissions.  Mr Ryder confirmed that he wants to work.   He has done things other than labouring.  His preference is to have a business, which he doesn’t think will ever happen.

14.He said that working as a telemarketer would be too boring; working as a gate-keeper - he couldn’t be bothered and as a ticket seller, it would be boring and not stimulating.  Unfortunately for Mr Ryder, the legislation doesn’t take those matters into account and nor do I.  Mr Ryder gave evidence of spending a lot of time watching TV and reading history, anthropology and the like.  He is obviously a man of intelligence.  It's a great shame that for the last eight years he has perhaps not made the most of his abilities and undertaken some further study. 

15.Accordingly, I accept the evidence of Ms Evans that he does have an ability to work relevantly, that is, with the provision of further training pursuant to section 94(2) of the Act, and therefore he does not qualify for the disability support pension.

16.I will just make some further observations in relation to this matter. I have noted the difficulty in relation to obtaining evidence a year or so after the assessment date and how difficult that is to use in terms of determining the capacity or the ability of a person in terms of table 5.2 on this occasion.  I also note that Table 5.2 has an inherent difficulty because you are relying on the co-operation and reported pain of the individual.  Dr Doig made some relevant comments in relation to the criticism of that sort of table.  I do take into account the guide to using that table, which refers to taking into account the clinical findings and so on, which is relevant, but there is still an inherent difficulty in relying on a person’s co-operation.

17.Another matter I would raise is that, it is unfortunate that in these cases it might be that a more rigorous assessment at the initial time of granting the disability support pension may have had a different outcome.  In this case, there was a report – a first report that assessed Mr Ryder as essentially have a much lesser disability than was found within a few months when he was granted the disability support pension.  Perhaps if at that time he had been dealt with in terms of a more rehabilitative process, rather than being put on the disability support pension, his life might have taken a better turn in terms of his own fulfilment, rather than this decision being made at this time.

DECISION

18.However, for the reasons that I have given, I set aside the SSAT’s decision and determine that Mr Ryder was not qualified, to receive a disability support pension as of 16 March 2006.  I adjourn, thank you.

I certify that the preceding 18 paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly.

Signed: Steven Mulipola

Associate

Dates of hearing:  23 November 2007 and 11 January 2008

Date of decision:  14 January 2008

Date of written reasons:                 16 January 2008

Solicitor for Applicant:                   Centrelink Legal Services

Representative for Respondent:   Self-Represented