ZORAN PUCAR and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 125

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 125

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2830

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ZORAN PUCAR

Applicant

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

Respondent

DECISION

Tribunal Dr R. McRae, Member

Date25 February 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) R McRae
  Member

SOCIAL SECURITY ‑ disability support pension ‑ lumbar back pain ‑ continuing inability to work ‑ whether able to work 15 hours per week ‑ decision under review affirmed.

Social Security Act 1991 s 94(1) and Schedule 1B

A Guide to the Tables for the Assessment of Work‑Related Impairment for Disability Support Pension  paras 4, 5

REASONS FOR DECISION

25 February 2009 Dr R. McRae, Member

1. On 12 February 2008 a Centrelink officer cancelled Mr Zoran Pucar’s (the Applicant) Disability Support Pension (DSP) because he failed to satisfy s 94(1) of the Social Security Act 1991 (the Act).  Centrelink acts as the service delivery agency for the Department of Families, Housing, Community Services and Indigenous Affairs (the Respondent).  The Applicant sought a review of that decision.  A Centrelink authorised review officer (ARO) affirmed the decision on 23 April 2008.  The Applicant then sought a review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT).  On 11 June 2008 the SSAT also affirmed the decision. The Applicant now seeks a review of the SSAT decision by this Tribunal.

2. The issue before the Tribunal is whether the Applicant was entitled to DSP according to the requirements of s 94(1) of the Act at the time of its cancellation on 12 February 2008. The Tribunal’s decision is that the Applicant was not entitled to DSP at the time of DSP cancellation.

3. The Applicant was self-represented. He was assisted by a level two qualified Croatian interpreter. It is customary for the Tribunal to use level three interpreters. However, the parties and the Tribunal were satisfied and prepared to proceed with the hearing with the level two interpreter. The Respondent was represented by Mr David Perdon, a Centrelink advocate. The Tribunal had before it documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑Documents). 

BACKGROUND

4.      The Applicant is a 56 year old, single, Serbian man who migrated to Australia in 1994.  He completed education to Year 12, and obtained an instrumental engineering certificate.  He worked overseas in instrumental engineering.  In Australia, he worked as a fitter and welder.  He suffered a workplace injury in 1996 associated with being knocked by a steel cabinet, following which he has not worked.  The Applicant received DSP beginning 4 August 2005 for chronic back pain (T3).  

5.      A Treating Doctor’s Report completed by the Applicant’s general practitioner (GP), Dr V Vizec, on 12 October 2007 (T8) reported chronic back pain requiring occasional analgesia, a reduction in the level of previous medication.  The report noted hypertension, hyperlipid (sic) and glucose intolerance but stated they had a minimal impact on the Applicant’s ability to function.  Ms S Zefira, a job capacity assessor employed by Centrelink, reviewed the Applicant’s circumstances on 17 January 2008, including the recent medical information.  Ms Zefira provided a revised job capacity assessment (JCA).  She assessed the Applicant as having a rating of 10 impairment points under the Tables for the Assessment of Work-related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Act; and a work capacity of 15 - 22 hours per week (T9). A subsequent letter, dated 1 September 2008 from the Applicant’s new GP, Dr M Govender, was consistent with this assessment.

6.      The Tribunal notes that legislative amendment enacted on 1 July 2006 altered the minimum hours of work requirement from 30 hours per week to 15 hours per week.  DSP review is conducted under the requirements current at the time of the review. 

LEGISLATION

7. Section 94(1) of the Act provides that:

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)…

8.      Chapter 1 of the Guide to the Tables for the Assessment of Work‑Related Impairment of Disability Support Pension provides that:

Work is defined in section 94(5) of the Social Security Act 1991.  For these purposes, work should be for at least 15 hours per week at or above the relevant minimum wage and should exist in Australia, even if not within the person's locally accessible labour market.

9.        Paragraphs 4, and 5 of The Introduction to the Impairment Tables provide that:

…

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.  The first step is thus to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.   In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged. (emphasis added)

5.  The condition must be considered to be permanent.   Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.   This will be taken as lasting for more than two years.   A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

…

APPLICANT’S SUBMISSIONS

10.     The Applicant said that he had seen the SSAT decision, but was not sure he understood it.  He stated that the cancellation letter he received was inappropriate.  His X-rays were the only relevant document to rely upon.  His X-rays should be compared with the bludgers who get DSP.  He stated that if I could still work I would do so.  I did not come to Australia for any pension.  He was ashamed to receive DSP, and did not tell anyone he received it.  He had no new evidence about his eligibility for DSP. 

RESPONDENT’S SUBMISSION

11. The Respondent conceded that the Applicant has a physical impairment, but submitted that impairment fails to rate 20 points or more under the Impairment Tables. The Respondent submitted that the Applicant did not have a continuing inability to work for at least 15 hours per week at the time of cancellation. The Respondent also submitted that there was no impairment that would have prevented the Applicant from undertaking educational or vocational training. Therefore, the Applicant failed to satisfy s 94(1) of the Act.

FINDINGS

12.     The Applicant received DSP from 4 August 2005 to 12 February 2008.

13.     Dr Vizec performed a reasonably contemporaneous medical assessment.  Ms Zefira embraced Dr Vizec’s findings and conclusions in performing her JCA.  Dr Govender has subsequently confirmed the medical assessment.  The Applicant did not provide any evidence to challenge these assessments and opinions.  I therefore accept them. 

14.     The Applicant has a physical impairment of chronic lumbar back pain which is permanent, fully investigated and treated and was reasonably assigned 10 points under the Impairment.  With respect to hypertension, hyperlidaemia and glucose intolerance the Tribunal notes the assessment of Dr Vizec.  Each was reasonably assigned nil points.

CONCLUSION

15. The Applicant satisfies s 94(1)(a) of the Act in that he had two lumbar disc prolapses and chronic lumbar back pain which has stabilised. However, these conditions did not attract 20 impairment points as required by s 94(1)(b) of the Act.

16.     The Tribunal concludes that, at the time of his cancellation of DSP the Applicant did not satisfy the requirements necessary to qualify for DSP. 

DECISION

17.     Accordingly, the decision to reject the claim for DSP was the correct decision.  The Tribunal affirms the decision of the SSAT made on 11 June 2008. 

I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the decision herein of

Dr R. McRae, Member

(sgd): Leah Berardi

Clerk

Date of Hearing  12 December 2008
Date of Decision  25 February 2009
Advocate for the Applicant       Self Represented

Advocate for the Respondent   Mr D Perdon, Centrelink Legal Services