SANDRA McMAHON and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 128

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 128

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3953

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SANDRA McMAHON

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr B H Pascoe, Senior Member

Date27 February 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) B H Pascoe

Senior Member

SOCIAL SECURITY - disability support pension - impairment assessed at 20 points - whether continuing inability to work  

Social Security Act 1991 s 94 and Schedule 1B

Social Security (Administration) Act 1999 Schedule 2, clause 4(1)

REASONS FOR DECISION

27 February 2009 B H Pascoe, Senior Member        

1.      This is an application to review a decision of the Social Security Appeals Tribunal (SSAT) of 24 July 2008, which affirmed a decision of the respondent of 10 April 2008 to reject the applicant’s claim for disability support pension (DSP).

2.      At the hearing the applicant, Ms S McMahon, was unrepresented.  The respondent was represented by Ms A Bramley, a legal services officer with Centrelink.  Evidence was given by Ms McMahon and by two general medical practitioners, Dr G Toohill and Dr R Cummins.

3. Entitlement to DSP is governed by s 94 of the Social Security Act 1991 (the Act).  This section has two basic requirements to be satisfied.  The first is that the applicant must have a physical, intellectual or psychiatric impairment which has been diagnosed, treated and stabilised and is likely to continue for at least two years and attracts an impairment rating of at least 20 points under the Tables for the Assessment of Work-related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Act. The second requirement is a continuing inability to work in that the impairment of itself is sufficient to prevent the applicant doing any work of at least 15 hours per week within the next two years or undertaking educational, vocational or on the job training during the next two years. A further requirement is that such training is unlikely, because of the impairment, to enable her to do any work within those two years. An applicant must satisfy these requirements at the date of application or within a period of 13 weeks of that date (Schedule 2, clause 4(1) of the Social Security (Administration) Act 1999).  Ms McMahon lodged her application on 10 August 2007.

4.      The treating doctor, Dr Toohill, completed a report dated 2 August 2007 stating that Mr McMahon suffers from:

·lumbar disc prolapse and lumbar scoliosis with a date of onset in 2002.  Current symptoms include pain and numbness, intermittent numbness down right leg and permanent numbness in the right lateral foot.  The condition affects Miss McMahon’s ability to function as she is only able to sit for one hour before having to get up and move around.  If standing, she needs to sit after 20 to 30 minutes and there is limitation of twisting movements.  The condition is expected to impact upon her ability to function for more than 24 months,

·post traumatic brain injury with a date of onset on 25 December 1980.  Current symptoms include some weakness in the left arm and left leg and some reduced capacity with planning and organisational skills and ability to have sustained concentration.  The condition affects Miss McMahon’s ability to function as she has reduced concentration and reduced memory recall and this condition is expected to last for more than 24 months.

5.      In her application, Ms McMahon noted that she could sit for one hour, stand for 20 minutes and drive a car with hourly intervals.  She answered no to whether there was any reason she could not participate in rehabilitation, a training program or other activities.  She also indicated that she could immediately participate in a course of education, vocational training, work experience or voluntary work.

6.      On 23 August 2007, a Centrelink Job Capacity Assessor completed a report which assigned an impairment rating of 10 points for the spinal condition and nil points for the brain injury.  The assessor assessed current work capacity of 15 to 22 hours per week in suitable employment including light office work.  A further report was provided by a Registered Psychologist with Centrelink on 2 January 2008 which arrived at the same conclusion.

7.      Subsequent to the decision of the SSAT, Ms McMahon was examined by Dr S Turnbull of the Occupational Health Unit of Health for Industry.  His conclusions were:

Using Table 5.2 (Thoraco-lumbar-sacral spine) the patient has loss of one quarter range of normal range of movement as well as referred pain with many physical activities and with standing for about 30 minutes and sitting or driving for about 60 minutes.  This attracts a rating of 10 points.

With respect to her second condition of acquired brain injury, the patient has a mild impairment of problem solving ability and ability to concentrate.  However, it is clear that she has reasonable judgement in routine activities of daily living.  There appears to be no impairment of memory as it is clear the patient has a clear understanding of most situations and her comprehension is normal.  This condition has been fully diagnosed, treated and stabilised and is expected to persist at this level for the foreseeable future.  This condition attracts a 10 point rating.

Therefore the patient attracts a total impairment rating is [sic] of 20 points.

With respect to the likely impact these two conditions have on Ms McMahon’s ability to work 15 hours per week it must be first considered that the effects of the acquired brain injury have not altered for many years and the patient has been able to pursue work and study during this period.  With respect to her lower back pain, this has also reportedly been stable since 2003 and again the patient has worked and studied for more than 15 hours per week during this period.  Furthermore the patient has elected to not take any analgesia to ameliorate the back pain.  She is presently working less than 15 hours by choice and there is no medical reason why she cannot return to work for at least 15 hours per week.

…

8.      In his evidence, Dr Toohill said the major limitation against employment for Ms McMahon was her lumbar spine condition which limited her capacity because of pain with problems in sitting for any lengthy period.  He accepted that he had stated that she was able to sit for one hour.  He had not examined her since June 2008.  Ms McMahon commented that she may not have been honest with Dr Toohill in relation to her limitations because she had hoped to obtain a job at his clinic.

9.      Dr Cummins, the current general practitioner for Ms McMahon, noted that there had been no neuropsychological assessment for some 20 years and a new assessment may be useful.  Subject to that, Dr Cummins accepted that it could be possible for Ms McMahon to work in suitable employment where she was able to vary between sitting and standing and with restrictions on lifting and bending.

10.     It is noted that, three months prior to her application Ms McMahon had been engaged in driving taxis and in the period from 10 March 2007 to 18 May 2007 had averaged 49 hours per fortnight.  It is understood that she ceased this activity because of the difficulty in being seated in a vehicle for extended periods.

11. At the hearing, the respondent relied on the report of Dr Turnbull and conceded that the condition of Ms McMahon attracted an impairment rating of 20 points, so satisfying the first requirement of s 94. However, it was submitted that there was a continuing ability to work.

12. On the basis of the evidence, including the two Job Capacity Assessment Reports by Centrelink, the report of Dr Turnbull, the evidence of Dr Toohill and Dr Cummins, the work performed by Ms McMahon prior to the claim, her completion of study courses, her answers to the questions on the claim form and her evidence at the hearing, I cannot be satisfied that her impairment has caused a continuing inability to work as defined by s 94. It seems clear that part-time work in an environment that allows her to sit and stand as required could be performed by her. She is capable of undertaking any training activity to enable her to work independently of a program of support within two years. It is appropriate to note that during the course of the hearing she did not appear to be in any discomfort while seated for about one hour.

13.     It follows that the decision under review should be affirmed.

I certify that the [13] preceding paragraphs are a true copy of the reasons for the decision herein of Mr B H Pascoe

Signed:          Dianne Eva  

Clerk

Date of Hearing  16 February 2009

Date of Decision  27 February 2009
Self-represent applicant            Sandra McMahon

Advocate for respondent          Ailsa Bramley, Legal Services Branch

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