Tocasio and Secretary, Department of Employment and Workplace Relations

[2006] AATA 819

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 819

ADMINISTRATIVE APPEALS TRIBUNAL          №V2005/1061

GENERAL ADMINISTRATIVE  DIVISION

Re:           TONY TOCASIO

Applicant

And:SECRETARY,

DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS         

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member

Date:26 September 2006

Place:Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe

Senior Member

SOCIAL SECURITY – Disability Support Pension – whether physical impairment of 20 points or more – whether continuing inability to work – whether impairment fully treated and stabilised

Social Security Act 1991

REASONS FOR DECISION

26 September 2006  Mr B.H. Pascoe, Senior Member

1.      This is an application to review a decision of the respondent which was affirmed by the Social Security Appeals Tribunal (SSAT) to reject the application’s claim for disability support pension (DSP).

2.      At the hearing the applicant, Mr Tocasio, was unrepresented.  The respondent was represented b Mr T. Mosby, a solicitor.  In addition to the documents provided by the respondent pursuant to s 37 of the Administration Appeals Tribunal Act 1975, (T1-T22), the Tribunal had a report from Ms R. Callinan of CRS Australia dated 20 June 2006, a report dated 10 April 2006 and a supplementary report dated 12 July 2006 from Ms L. Natividad of Advanced Personnel Management and a report from Dr T. Paulson of Health Services Australia dated 13 September 2006.

3.      Mr Tocasio has not worked for some seven years.  His last employment was with Australia Post for some six to seven months which he ceased after falling off his bike and hospitalisation for kidney problems.  Prior to that he had worked as a truck driver and labourer.  Approximately 20 years ago he was injured in a motor vehicle accident and suffered a subtle wedge compression fracture of T12 of his thoracic spine.  He is now 45 years of age.  Mr Tocasio said that he had been able to cope with the injury when he was younger but has progressively needed stronger medication to cope with the pain.  He currently takes Tramal, a strong analgesic during the day and Valium at night.  Both he and his general practitioner maintain that the medication makes him drowsy and severely limits any ability to work. Mr Tocasio also has mild subchondral sclerosis with early degenerative change in his left hip.

4. Section 94 of the Social Security Act 1991 (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)       …

(i)        the person has a continuing inability to work;

(ii)       …

Under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (The Impairment Tables) in Schedule 1B of the Act, a rating can only be assigned if the impairment resulting from the condition is permanent (lasting for more than two years) and has been fully diagnosed, treated and stabilised and it is unlikely there will be any significant functional improvement, with or without reasonable treatment, within the next two years. Under s 94(2) of the Act a person has a continuing inability to work if the impairment of itself prevents the person from doing any work within the next 2 years or from undertaking any education, vocational or on-the-job training during the next 2 years or, because of the impairment, such training is unlikely to enable the person to do any work within that period.

5.      Dr Paulson assessed Mr Tocasio on 8 August 2005 and assessed his spine impairment under Table 5.2 of the Impairment Tables at 20 points.  However she found him fit for work that did not involve heavy lifting, repeated bending, prolonged standing, excessive walking or protracted periods of sustained sitting.  The respondent’s and the SSAT’s decision was based on this assessment.

6.      On 10 April 2006, Ms Natividad provided a work capacity/participation assessment report.  While she agreed with the 20 point assessment of Mr Tocasio’s impairment, she considered that is was likely that the back injury would show significant improvement by continuation of participation in a pain management programme which he had commenced through CRS and hydrotherapy.  She also assessed him as having capacity to work as a gate keeper, car park attendant or ticket seller for more than 30 hours per week with appropriate training.

7.      On 20 June 2006, Ms Callinan provided a report in support of the application by Mr Tocasio for DSP.  In that report she stated:

Tony reports that he is committed to his CRS program and is motivated to return to work, however he describes his current situation as a ‘no-win situation’ because to be able to return to work he needs to be mentally alert, responsive and have a reasonable level of physical functioning which may be achieved by reducing the amount/or impact of the pain medication, however if the amount of pain medication is reduced Tony’s pain levels escalate which inturn affect his mental alertness, responsiveness and physical abilities, and hence significantly compromise his capacity for work.

Tony presented to CRS Australia as a very co-operative and motivated individual.  As part of Tony’s Vocational Rehabilitation program we have explored options to assist in managing Tony’s pain and increasing his activity levels.  Tony was keen to recommence hydrotherapy treatment as he reports it was helpful in managing his pain levels in the past.  CRS have arranged for Tony to attend Thomastown Recreation & Aquatic Centre to participate in hydrotherapy classes.  Tony has been attending since April 2006.  CRS have also recommended that Tony be assessed for a Pain Management Program to assist in managing his chronic pain.  It is hoped that a Pain Management Program can assist Tony to reduce his reliance on medication for pain relief, which would in turn reduce his side-effects and increase his overall well being and ability to undertake daily activities with less assistance.

8.      Ms Natividad was requested to comment on the report of Ms Callinan and, in her letter of 12 July 2006, maintained her view that there was potential for improvement and the back condition could not be assessed as permanent until completion of the pain management program and further hydrotherapy.  On 13 September 2006, Dr Paulson provided a further report after consideration of the reports of Ms Natividad and Ms Callinan.  She said:

Taking into account events in the few months after my initial assessment (the commencement of stronger analgesics and more active intervention) it now seems reasonable to conclude that the spinal condition was not fully/optimally treated or stabilised as of the reference date of 23.6.05, so the impairment rating I assigned is not applicable.

9.      In his evidence Mr Tocasio said that hydrotherapy provided some benefit but little real improvement.  He said that he was referred to a pain management clinic but this had been of little value as the clinic was reluctant to start a program while he was still involved in the legal processes of appeal and had referred him back to Centrelink.

10.     One difficulty with this case is that other than an x-ray in June 2005 there has been no further systematic investigation or specialist review of his condition.  All assessments to date have been by general practitioners, physiotherapists or rehabilitation consultants.  Any further treatment contemplated is aimed solely at managing the pain through medication and a formal pain management program, the likely success of which is unknown.

11.     Nevertheless, there is now no formal assessment of his condition at 20 points under the Impairment Tables.  The SSAT accepted Dr Paulson’s original assessment but this has now been withdrawn.  Consequently, I cannot now be satisfied that Mr Tocasio has the required degree of physical impairment.  It is quite possible that he does qualify under this first limb for DSP qualification but the evidence is not adequate.

12. Even if he were to be assessed at 20 points, the evidence does not satisfy me that he has a continuing inability to work in an appropriate occupation with appropriate training within two years for 30 hours per week. Under s94(3) I am not to have regard to whether such training is available or the availability of work in his locally accessible labour market. Both Dr Paulson and Ms Natividad were of the opinion that Mr Tocasio could re-enter the work force within two years.

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

I certify that the thirteen [13] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B.H. Pascoe, Senior Member

(sgd)        Lydia Zozula

Associate

Date/s of Hearing  18 September 2006
Date of Decision  26 September 2006
Advocate for the Applicant       Self Represented
Solicitor for the Respondent     Mr T Mosby, Clayton Utz