Stirling and Secretary, Department of Family and Community Services

[2004] AATA 456

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 456

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/997

GENERAL ADMINISTRATIVE  DIVISION

Re:JOHN CLARENCE STIRLING

Applicant

And:SECRETARY,

DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             11 May 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

SOCIAL SECURITY - disability support pension - back pain - depressive illness - whether continuing inability to work 

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

REASONS FOR DECISION

11 May 2004  G.D. Friedman, Member

1. This is an application by John Clarence Stirling (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 28 August 2003. The SSAT affirmed a decision of an authorised review officer of Centrelink dated 9 July 2003 to refuse an application for disability support pension 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 in Schedule 1B of the Social Security Act 1991 (the Act) (the Impairment Tables).

2.      At the hearing on 6 May 2004 the applicant represented himself and Ms K. Navarro, 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‑T27), together with one exhibit (Exhibit A1) lodged by the applicant and five exhibits (Exhibits R1-R5) lodged by the respondent.

BACKGROUND

4.      The applicant was born on 13 May 1967.  On 26 August 2002 he lodged a claim for disability support pension in respect of low back pain arising from an incident in March 2000.     On 17 October 2002 Centrelink refused the claim.  After a medical review, an authorised review officer affirmed the decision to refuse the claim on 9 July 2003.    

5.      On 11 July 2003 the applicant applied to the SSAT for review of the decision of 9 July 2003.  Following the SSAT decision, which affirmed the decision of the  authorised review officer, the applicant applied to the Tribunal on 10 September 2003 for review of the SSAT decision.

6.      The issue before the Tribunal is whether the applicant has an impairment rating of at least 20 points under the Impairment Tables, and a continuing inability to work.

EVIDENCE

7.      The applicant gave oral evidence that he worked with horses for several years after leaving school, and then obtained employment with a diecast moulder, where he was required to carry heavy loads.  He told the Tribunal that he injured his back in March 2000 while bending.  The applicant said that he was prescribed Panadol and anti-inflammatory drugs for the pain and swelling.  He stated that he has consulted a number of medical practitioners without significant relief.

8.      The applicant explained that he has not worked since hurting his back, and the pain has persisted, particularly when he sits.  He said that this affects his sleeping and his ability to move freely.  He said that he has become depressed and has been taking medication, which has been of some assistance to him. 

9.      On the question of his ability to work, the applicant stated that he is unable to undertake work that involves lifting or bending, and that his lack of confidence and work skills are a major obstacle.  In cross-examination the applicant said that he has poor concentration, but agreed that, with professional assistance, he would have the capacity to undertake suitable short courses or on-the-job training that would assist him to obtain employment.

10.     In a report dated 26 August 2002 (T4), Dr S. Loosemore, the applicant’s former treating doctor, stated that because of lower back pain the applicant was only fit for light duties on a part-time basis (eight hours per week).

11.     In a report dated 16 October 2002 (T18), Dr J. Hilal of Health Services Australia stated that on examination the applicant had no restriction of movements in the lumbar-sacral spine.  Dr Hilal allocated 10 impairment points under Table 5.2 of the Impairment Tables for back pain.  He assessed the applicant as fit for light, full‑time work that did not involve bending, lifting or carrying heavy objects.  In a further report dated 4 March 2003 (T18), Dr Hilal reviewed the applicant’s file, including additional material, and concluded that his opinion regarding the applicant’s work capacity remained unchanged.

12.     In a report dated 2 December 2002 (T12), Mr M. Pullar, a neurosurgeon, stated:

It’s my impression that this is really just a continuation of much the same problem that he’s had all along and it’s probably inter-related with the pars defects and extra stress on the lumbosacral disc.  …Management is really a combination of physical therapy and symptomatic treatment during the exacerbations.

13.     In a report dated 17 March 2003 (T19), Dr R. Gassin, a musculoskeletal physician, stated that the applicant’s chronic low back pain most likely arose from the L5/S1 disc as a result of spondylolisthesis.  Dr Gassin said that the main form of treatment should be back strengthening exercises.

14.     In a report dated March 2004 (Exhibit A1), Dr S. Wong, who has treated the applicant for the past 12 months, stated that the applicant’s low back pain prevents him from walking far and impacts on his ability to sit for prolonged periods.  Dr Wong said that the applicant also suffers from depression and is receiving treatment in the form of counselling and medication.  Dr Wong stated:

...

I am not prepared to comment on the permanency of his condition.  Both conditions as you know can become chronic but may also improve with treatment to a point where return to work of some type is possible.  At present the likelihood of him improving to a point of return to work is unlikely in the foreseeable future.

15.     In a letter dated 13 April 2004 (Exhibit R1), Dr Wong confirmed that the applicant’s conditions of lower back pain and depression …cannot be categorically labelled as permanent.  Dr Wong stated that he could not comment on the applicant’s medical status as at 17 October 2002, as he was not the treating doctor until May 2003.  He said that since May 2003 he assessed the applicant as rating 10 impairment points for back pain and 20 impairment points for depression.  Dr Wong said that the impairments prevented the applicant from working for 30 hours per week, but did not prevent his attendance at educational or vocational training.

16.     In a report dated 16 April 2004 (Exhibit R3), Ms C. Donald, a rehabilitation consultant, stated that the applicant’s back condition rated 10 impairment points under Table 5.2.  She considered the applicant’s depression to be temporary.  Ms Donald indicated that the applicant cannot work for 30 hours per week within 24 months without any intervention programs.  However, with vocational or educational training he would be fit for full-time work within two years, given access to appropriate services and recommended interventions.

17.     In a further report dated 4 May 2004 (Exhibit R5), Ms Donald stated that the applicant would benefit from on-the-job training rather than formal instruction.  She added that he would still be able to complete short courses and obtain work in areas such as car park attendant, ticket sales and light retail, although, in practice, he may have difficulty in locating suitable employment.  In oral evidence Ms Donald noted that the applicant has completed various short courses on a range of topics and would be assisted by activities that addressed his specific needs.

18.     In a report dated 15 April 2004 (Exhibit R2), Mr I. Douglas, a psychologist, stated that the applicant had an intellectual impairment which attracted a rating of 10 points under Table 10.  He said that the applicant would not be able to work for 30 hours per week within 24 months without intervention programs.  With educational or vocational training he could work between 8 and 14 hours per week within 6 to 24 months and between 15 and 29 hours per week after 24 months.  Mr Douglas found that the applicant’s depression was temporary.  In oral evidence Mr Douglas said that he agreed with Ms Donald’s findings in relation to the applicant’s ability to benefit from intervention activities.

19.     In a report dated 22 April 2004 (Exhibit R4), Mr R. Rodgers, Centrelink disability officer, noted the findings by Mr Douglas regarding the applicant’s intellectual impairment.  Mr Rogers, on the basis of the report dated 16 April 2004 from Ms Donald, concluded that the applicant has continuing ability to work 30 hours per week within the next two years.

CONSIDERATION OF THE ISSUES

20.     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;

(iii)       …

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.

21. Ms Navarro submitted that, on the basis of recent medical evidence, at the date of the claim for disability support pension, or within 13 weeks of that date, the applicant had an impairment of 20 points or more under the Impairment Tables. Therefore, he satisfied s 94(1)(b) of the Act. However, she submitted that the applicant did not have a continuing inability to work (s 94(1)(c) of the Act).

22.     In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing.  The Tribunal notes the respondent’s concession that the applicant’s impairments attract a rating of at least 20 points under the Impairment Tables.  

23.     The Tribunal takes into account the evidence from Dr Loosemore that the applicant would be unable to work for 30 hours per week.  However, the weight of medical evidence is that the applicant would be fit for light, full-time employment that avoided bending, lifting or carrying heavy objects (Dr Hilal) and that he would be able to attend for appropriate educational or vocational training (Dr Wong).  The Tribunal accepts Mr Douglas’s findings on the applicant’s intellectual impairment, and finds that Ms Donald is an experienced practitioner in the field of rehabilitation programs for persons with disabilities.  The Tribunal accepts her evidence and recommendations.  The Tribunal also takes into account that the applicant has completed a number of courses in the past and he has expressed interest in co-operating with appropriate intervention activities designed to assist him to return to the workforce.

24.     On balance, the Tribunal finds that the impairments suffered by the applicant are not of themselves sufficient to prevent him from undertaking educational or vocational or on-the-job training during the next two years (s 94(2)(b)(i) of the Act), or that such training is unlikely (because of the impairments) to enable him to do any work within the next 2 years (s 94(2)(b)(ii) of the Act).

25. For these reasons, the Tribunal finds that the applicant has not demonstrated a continuing inability to work, and therefore, does not satisfy s 94(2) of the Act. Therefore, he is unable to satisfy s 94(1) (c)(i), and s 94(1)(c)(ii) does not apply. It follows that he cannot satisfy s 94(1). Consequently, the applicant does not qualify for disability support pension.

DECISION

26.     Tribunal affirms the decision under review.

I certify that the twenty-six [26] preceding paragraphs are a true copy of the reasons for the decision of:

G.D.Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  6 May 2004

Date of decision:  11 May 2004
Advocate for applicant:                Self-represented
Advocate for respondent:            Ms K. Navarro, Centrelink