Sport and Secretary, Department of Family and Community Services

[2004] AATA 247

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 247

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/433

GENERAL ADMINISTRATIVE  DIVISION

Re:MICHAEL SPORT

Applicant

And:SECRETARY,

DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             11 March 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

SOCIAL SECURITY - disability support pension - lower back pain - whether 20 impairment points - whether continuing inability to work

Social Security Act 1991 ss 94(1), 94(2), 94(3), 95(5), Schedule 1B

REASONS FOR DECISION

11 March 2004  G.D. Friedman, Member

1.      This is an application by Michael Sport (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 14 March 2003.  The SSAT affirmed a decision of an authorised review officer of Centrelink dated 3 January 2003.  The Centrelink decision was 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 Pension (the Impairment Tables) and did not have a continuing inability to work. 

2.      At the hearing on 3 March 2004 the applicant represented himself and Mr S. Meehan, a Centrelink advocate, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T30), and four exhibits (Exhibits A1‑A4) lodged by the applicant.

BACKGROUND

4.      The applicant was born on 16 August 1961.  On 21 November 2002 he lodged a claim for DSP in respect of low back pain arising from a work-related injury.  After a medical review, on 12 December 2002 Centrelink refused the claim.  On 3 January 2003 an authorised review officer affirmed the decision.    

5.      On 17 January 2003 the applicant sought review of the decision by the SSAT.  Following the SSAT decision, the applicant lodged an application with the Tribunal on 22 April 2003 for review of the decision.

6. The issue before the Tribunal is whether the applicant has an impairment rating of at least 20 points under the Impairment Tables in Schedule 1B of the Social Security Act 1991 (the Act) and a continuing inability to work.

EVIDENCE

7.      The applicant gave oral evidence that he was employed as a security officer from 1986 to 1989.  He then was a prison officer from 1989 to 1997, after which he held a number of jobs including an assembler for an electronics company and a cleaner.  On 19 April 2001 he commenced employment as a casual handyman at an aged‑care hostel, and the job involved heavy lifting of furniture and equipment.  He said that, on 24 September 2001, he awoke with severe lower back pain.  His doctor required him to rest for two weeks, and prescribed painkillers and anti‑inflammatories.  The applicant stated that when he tried to return to work on 5 October 2001, his employer informed him that his services were no longer required.

8.      The applicant told the Tribunal that the loss of his job and continuing lower back pain caused him to become depressed.  He said that despite the back pain he tried to find other work but was unsuccessful, and he has not worked since.  He stated that he began physiotherapy on 24 June 2002, as well as hydrotherapy and exercise.  The applicant told the Tribunal that he also commenced a business producing a glass-cleaning product, but a lack of funds and his back condition prevented him from continuing to operate the business. 

9.      In a written statement dated 5 March 2002 (T8) the applicant said that he had good days and bad days, and that …The pain is not restricting me but I am more aware of what I can…and can’t do.  He explained that after some improvement he suffered a setback in early 2002, and he was able to undertake only light domestic tasks.  He stated that his condition was unlikely to stabilise in one year, although he hoped to be able to participate in re-training and vocational assistance programs that would enable him to return to work in some capacity, possibly in another small business that did not require lifting or bending.  The applicant told the Tribunal that he suffered an acute episode of pain on 11 November 2002, and this led to his application for DSP.

10.     Under cross-examination, the applicant stated that he disagreed with the assessment by Dr M. Henderson of Health Services Australia (T14), that in December 2002 he was capable of employment as a courier or static security guard.  He said he has had experience as a security guard and the requirements would be unsuited to his back condition.  The applicant told the Tribunal that he was willing to try any business proposition, but did not have the resources to start up and operate a small business.  He described his attempts to start a jewellery-cutting course, and said that this type of work might be suitable for a person with his physical limitations.

11.     In a report dated 21 November 2002 (T7), Dr M. Sathianathan, the applicant’s treating doctor, diagnosed L4-5 central disc herniation. Dr Sathianathan stated that the applicant was unable to lift heavy weights and was unable to return to his pre‑injury duties.  She stated that the impact on the applicant’s ability to function was expected to persist for more than 24 months, and the condition was expected to deteriorate in that time. 

12.     In a report dated 13 March 2002 (T9), Mr J. O’Brien, orthopaedic surgeon, concluded that there had been a substantial recovery from the disc pathology demonstrated in November 2001.  He stated:

…

I would now consider this patient is capable of employment but would suggest he is as yet not up to his past employment, which required apparently fairly heavy physical activity.  I would suggest that currently he would need to be given modified duties and, as he has no current employment, I would suggest suitable employment will have to be found.  I would consider at present the patient does not specifically require any active treatment as the patient now describes minimal symptoms.

13.     In a report dated 29 November 2001 (T10) Dr J. Rotstein, of Greensborough Diagnostic, stated that a CT scan showed a focal large central disc herniation at the L4-5 level of the applicant’s spine and that the nerve roots and lateral recess were considered normal at this level.  Dr Rotstein reported no evidence of a disc herniation at the L3-4 or L5-S1 level.

14.     In a report dated 1 August 2002 (T11), Dr A. Cullen concluded that the applicant had a

Focal disc protrusion at the L4-5 level with an associated annulus tear and the disc abutting the L5 nerve root as it buds from the theca and extending into the left side of exit canal which is also narrowed by bony osteophytes [with a] Small subcutaneous lipoma on the right.

15.     In a report dated 10 December 2002 (T14), Dr Henderson assessed the applicant’s back condition as rating 10 points on Table 5.2 of the Impairment Tables as the applicant had a loss of 25% range of movement in his lumbar spine.  Dr Henderson said that the applicant was currently fit for suitable selected light work on a full-time basis and suggested work as a courier or static security guard.

16.     In a report dated 19 November 2002 (T19), a physiotherapist at the Austin & Repatriation Medical Centre stated:

Due to the chronic nature of his pain, I feel that he would benefit from a multi‑disciplinary approach with a focus on counselling and pain management with assistance to return to work…

17.     In a report dated 17 September 2002 (Exhibit A3), Ms N. Peake, physiotherapist at the Austin & Repatriation Medical Centre, stated:

…

Michael Sport’s disc injury, seems to be related to the period of heavy work as a handyman/carpenter in September, 2001.  This injury however now seems to have stabilised and Michael has had no further episodes of leg pain or back pain since July, 2002.  Michael would seem to be ready to return to some form of employment.

CONSIDERATION OF THE ISSUES

18.     Section 94 of the Act provides:

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;

(A)…

(B)…

(d)…

(e)…

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.

Schedule 1B of the Act provides:

…

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….

19. Mr Meehan submitted that at the date of the claim for DSP or within 13 weeks of the date of lodgment of the claim, the applicant did not have an impairment of 20 points or more under the Impairment Tables, so he did not satisfy s 94(1)(b) of the Act. He also submitted that the applicant did not have a continuing inability to work (s 94(1)(c) of the Act).

20.     In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. 

21.     The Tribunal accepts the medical evidence and the oral evidence from the applicant that, as a result of ongoing lower back pain, the applicant’s movements and activities are restricted and he would be unable to resume work as a handyman.  The Tribunal also accepts the applicant’s evidence that he commenced physiotherapy in June 2002 and had an acute episode of back pain on 11 November 2002.

22.     In relation to an assessment under the Impairment Tables, the Tribunal accepts the evidence from Dr Henderson that on 10 December 2002 the applicant’s loss of movement in his lumbar spine was 25%, giving a rating of 10 points under Table 5.2.  This rating is consistent with the applicant’s range of movements as described by him and contained in the medical and other material before the Tribunal.  Although the applicant had an acute episode on 11 November 2002, the Tribunal is satisfied that, at the time of the claim, the applicant had completed his physiotherapy and that the condition had been fully documented, investigated, treated and stabilised.  The Tribunal assigns 10 points under Table 5.2 for the lower back condition.  There are no other conditions that attract an impairment rating.  

23. The Tribunal finds that at the date of the applicant’s claim for DSP or within 13 weeks of the date of lodgement of the claim he 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). Therefore, he is not eligible to receive DSP.

DECISION

24.      The Tribunal affirms the decision under review.

I certify that the twenty-four [24] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  3 March 2004

Date of decision:  11 March 2004
Advocate for applicant:                Self-represented
Advocate for respondent:            Mr S. Meehan, Centrelink