Saverin and Secretary, Department of Family and Community Services
[2005] AATA 164
•23 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 164
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/673
GENERAL ADMINISTRATIVE DIVISION ) Re DARRYL SAVERIN Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date23 February 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................[Sgd]........................
RG Kenny
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – physical, intellectual or psychiatric impairment – impairment rating less than 20 points – relevant time-frame for qualification – no continuing inability to work.
Social Security Act 1991 s 94, Schedule1B
Social Security (Administration) Act 1991 Schedule 2
REASONS FOR DECISION
23 February 2005 Mr RG Kenny, Member
Background
1. On 11 September 2003, Darryl Saverin (the applicant) lodged a claim with Centrelink for payment of disability support pension in respect of the effects upon him of a lower back condition and a left shoulder condition. On 30 October 2003, a delegate of Centrelink rejected his claim. That decision was affirmed by an authorised review officer on 23 December 2003 and, in turn, by the Social Security Appeals Tribunal on 2 June 2004.
2. On 18 August 2004, Mr Saverin sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
3. Mr Saverin attended the hearing but was not represented. Mr T Ffrench from the Advocacy and Administrative Law Team with Centrelink appeared on behalf of the Secretary, Department of Family and Community Services (the respondent).
4. At the hearing, the following material was taken into evidence;
§exhibit 1 documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents – T1 to T29)
§exhibit 2 reports, dated 21 January 2005, by rehabilitation consultant, Ms J Glide;
§exhibit 3 a radiology report dated 20 October 2004.
Issues and Legislation
5. The issue in this matter is whether or not Mr Saverin is qualified to receive a disability support pension which is payable in accordance with the terms of section 94 of the Social Security Act 1991 (the Act) which relevantly reads:
“Qualification for disability support pension-continuing inability to work
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; 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.
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.
6. In accordance with that provision, the Tribunal must determine:
§ whether the applicant has a physical, intellectual or psychiatric impairment; and, if so
§ whether he has an impairment rating of 20 points or more which is calculated under the Impairment Tables in Schedule 1B of the Act as required by paragraph 94(1)(b) thereof; and, if so
§ whether he has a continuing inability to work as required by sub-paragraph 94(1)(c)(i) of the Act.
7. To qualify for a disability support pension, all three of those requirements must be met and, further, they must be met at the time of the initial claim or in the period of 13 weeks starting immediately after the day on which the claim was lodged as provided for in clauses 3 and 4 of Schedule 2 of the Social Security (Administration ) Act 1999 which relevantly read:
(3) If:
(a)2 or more clauses of Part 3 of this Schedule apply to the working out of a person's start day in relation to a social security payment; and
(b)the person's start day under both or all of those clauses is the same day; that day is the person's start day under Part 3 in relation to the social security payment.
(4) If:
(a)but for this subclause, a person would have a start day under Part 2 of this Schedule in relation to a concession card and would also have a start day under Part 3 of this Schedule in relation to the same card; and
(b)the start day under Part 3 would be earlier than the start day under Part 2;
the day worked out under Part 3 is the person's start day in relation to the concession card.”
Applicant’s Case
8. Mr Saverin gave the following evidence. The pain in his back and shoulder has continued for some years and significantly limits the range of activities he is able to undertake. He is able to complete tasks such as cleaning the house, where he lives alone, and looking after his yard but he does this by working for short periods of about 10 minutes and then resting. He has reduced his social activities, including fishing which he has undertaken on only one occasion in the last 12 months or so. Even when he goes fishing, he is a passive participant merely sitting in the boat while his friend carries out the necessary activities.
9. Mr Saverin is now in receipt of the disability support pension which has been paid to him since January 2005. He said that his condition was significantly worse now than it was 18 months ago when he lodged this present claim.
10. Mr Saverin was examined by a doctor from Health Services Australia, Dr E Nicoll, who prepared a report on 29 October 2003. While he agreed that most of the comments by Dr Nicoll were a correct record of what had happened during the consultation, Mr Saverin said that some of them were incorrect. Dr Nicoll had recorded that he was able to complete a “full squat” but Mr Saverin said he was not able to complete this activity. He also noted that Dr Nicoll referred to his ability to place his hands behind his head but he said he had not been asked to do this and that he would not be able to do so. Mr Saverin said that he understood Dr Nicoll to have written that he could carry 10kg. He said he was not capable of this and that the most he could lift would be 5kg. He also said that he was not able to negotiate steps or walk in sand in the manner declared by Dr Nicoll. He submitted that Dr Nicoll should have allocated to him a greater points rating under the Tables.
11. Mr Saverin said that, because he was left handed, the effects of his left shoulder had greater impact on him and he has learned to do many things with his right hand because of this. He takes medication in the form of Panadol and Nurofen to ease the pain. He also suffers from hypertension but has been able to keep this under control for the last five years or so by taking medication.
12. Mr Ffrench noted that Mr Saverin was now in receipt of the disability support pension but submitted that this was because his condition had deteriorated since the date of the claim and that, at that time, the ratings of Dr Nicoll were appropriate and that these were less than 20 points. He referred to a report, dated 31 July 2003, prepared by orthopaedic surgeon Dr Tony Blue and submitted that the description given there was consistent with the ratings allocated by Dr Nicoll. Similarly, he referred to the reports of Ms Glide and noted that these involved two sets of ratings. The first was in respect of the period immediately after the initial claim by Mr Saverin and these were consistent with those provided by Dr Nicoll. The second set of ratings given by Ms Glide was sufficient to reach the threshold of 20 points and provided the basis for the granting of the disability support pension at this time.
13. Mr Ffrench submitted that the report of Dr Nicoll indicated that the conditions, as they affected Mr Saverin at the relevant time, were such that would only preclude him from working for 30 hours or more for a period of some six months. In that sense, too, he submitted that the requirements of section 94 were not met.
Consideration
14. Dr Blue’s report was completed two months prior to the applicant’s claim and appears to have been completed for the purposes of a workers’ compensation matter. Mr Saverin has been employed by the Logan City Council and sustained an injury in 2002. Dr Blue wrote that Mr Saverin demonstrated reasonable general mobility and that the range of movement in his lumbar spine had improved since his previous examination. Dr Blue noted that he still had 70% of lumbar flexion, could extend 20% and had regained the normal range of lateral tilt and rotation in each direction. He described the neurological examination of his lower limbs as being normal and his bilateral straight leg raising as minimally restricted at 80% in his left leg compared with 90% in his right. He summarised by stating that he had an almost full range of lumbar movement and mobility.
15. Mr Saverin’s treating doctor, Dr Peter Hawes, completed a report on 12 September 2003 but referred only to the condition of the lumbar spine. He described “back pain - mild to moderate daily, brought on by sitting or standing in wrong position”. He said that no treatment was planned for the condition and his report made no reference to its likely duration.
16. Dr Nicoll reported on both the lower back condition and rotator cuff syndrome. For the former condition, he described normal handwriting and dexterity, normal grip strength and Mr Saverin conceded that these were correct. However, Dr Nicoll described a normal pincer grip and intrinsic muscle strength and a normal range of movement without pain. In relation to the back, Dr Nicoll described the applicant as being able to sit in one place for up to 1 hour, stand in one place up to 2 hours, walk for a kilometre and drive his vehicle for an hour. He also referred to his ability to carry 5kg and to walk on curbs, hills and uneven ground. Mr Saverin agreed these were correct descriptions but he did not accept, as noted in Dr Nicoll’s report, he was capable of a full squat, walking on sand or negotiating up to 20 steps.
17. I am satisfied that the summary provided by Dr Nicoll, particularly in relation to the lower back, is entirely consistent with that provided by Dr Blue and that the report of Dr Hawes is not inconsistent with those summaries.
18. In describing the final impairment for the two conditions, Dr Nicoll referred to Impairment Table 3 for rotator cuff syndrome and noted that Mr Saverin has “normal and effective use of both upper limbs”. In relation to the lumbar spine, Dr Nicoll referred to Impairment Table 5.2 and noted that he had a “loss of ¼ normal range of movement and pain with many physical activities.” The first of the conditions was rated at nil and the second was rated at 10.
19. Those same Impairment Tables and Impairment Ratings were adopted by Ms Glide. In her report, she allocated, as of January 2005, Impairment Ratings of 10 and 20 under Tables 3 and 5.2, respectively. That is consistent with Mr Saverin’s evidence that his condition has deteriorated since he made his initial claim.
20. I am satisfied that the appropriate Impairment Ratings in Mr Saverin’s case are those provided by Dr Nicoll and, when combined, they amount to 10 impairment points which is less than the threshold required by paragraph 94(1)(b) of the Act.
21. Dr Nicoll also expressed the opinion that Mr Saverin, at that time, was medically fit for a graduated return to full-time paid work in an open work force subject to restrictions on lifting and carrying heavy objects and he said that he would be able to do this at the level of 30 hours per week within six months. On that evidence, I am also satisfied that Mr Saverin does not meet the requirements under paragraph 94(1)(c) of the Act.
22. In order to qualify for disability support pension, all of the requirements of section 94 must be met at the time of the claim or within a 13 week period thereafter. I am satisfied that Mr Saverin met the first of the three requirements in that he did have a physical impairment but that he did not meet either of the remaining requirements and, therefore, did not qualify for payment of a disability support pension.
Decision
23. The Tribunal affirms the decision under review.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Camille Banks
AssociateDate/s of Hearing 4 February 2005
Date of Decision 23 February 2005
The Applicant was unrepresented and appeared in person
For the Respondent Mr T Ffrench
0
0
0