Nelson and Secretary, Department of Family and Community Services [1999] AATA 699 (17 September 1999)

Last Updated: 23 September 1999

DECISION AND REASONS FOR DECISION [1999] AATA 699

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/574

GENERAL ADMINISTRATIVE DIVISION )

Re Michael William NELSON

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date 17 September 1999

Place Sydney

Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal of 26 March 1999 to cancel the Applicant's disability support pension.

..............................................

M T Lewis,

Senior Member

CATCHWORDS

SOCIAL SECURITY - cancellation of disability support pension - back injury in 1975 - ongoing back pain - assessment of impairment - whether impairment of at least 20 points - whether continuing inability to work

Social Security Act 1991 - s 94(1), Schedule 1B

REASONS FOR DECISION

17 September 1999 Mrs M T Lewis, Senior Member

1. This is a review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 26 March 1999 (T2) which affirmed a decision of a delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 30 September 1998 (T16) and affirmed by an authorised review officer on 11 December 1998 (T21) to cancel the disability support pension ("DSP") paid to Michael Nelson ("the Applicant").

2. At the hearing the Applicant was unrepresented. The Respondent was represented by an advocate from Centrelink. The Tribunal had before it as evidence the documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The Applicant gave oral evidence at the hearing. In addition the following documents were tendered as evidence on behalf of the Respondent -

* Letter from CRA Australia to the Applicant dated 21 June 1999 (exhibit 1)

* Letter from Respondent to CRS dated 27 July 1999 and response from CRS to Respondent dated 30 July 1999, with attachments (exhibit 2).

background

3. The Applicant was born on 23 December 1950. He left school in 1964 or 1965, in the middle of his first year at high school, because he was not coping well at school. A history given by the Applicant to Ms Noelene Rose, clinical psychologist (T14) was that both his parents died in a car accident when he was 12 or 13 years old. He had had difficulty at school prior to the death of his parents.

4. The Applicant's oral evidence was that after he left school he worked as a metal polisher for a few months. He then moved to Broken Hill where he worked as a farm labourer for about six weeks. He then moved to Queensland but he did not recall the town he went to. In Queensland he performed labouring work and farm work, and travelled from place to place between jobs. He saved enough money while working to tide him over for periods when he did not work, and he said he did not claim social security payments when he was not employed. He estimated that the longest period he had in any job was five or six months when he worked as a farm labourer. He said that he enjoyed that work because it was in the open air.

5. The Applicant commenced work for James Hardie in Brisbane in September 1975 making concrete wash tubs, and in the course of his employment he was required to lift a set of tubs with another employee when he experienced sudden back pain. He said that as a result of this incident he was in hospital for about six weeks. He said that X-rays did not reveal any damage to his spine and it was considered that he had sustained "non-structural" damage to his back. He was treated conservatively, ultimately receiving ultraviolet treatment.

6. The Applicant said that he applied for invalid pension while he was still in hospital, and ultimately this was granted in December 1975 and paid back to the time of his admission to hospital. He said that he moved from Brisbane to Perth in 1983, and later to Alice Springs in April 1984. After a few months he then moved to Broome in Western Australia where he stayed until he married in 1987. Throughout that period he continued to receive invalid pension, and while he was in Broome he also worked collecting drink cans, earning $30 per week. He said that bending down to collect the cans was a therapeutic exercise for his back condition. He also pursued "natural treatment" for his back, through ultraviolet rays of the sun. He said that he exposed his back to the sun for some seven hours per day.

7. After the Applicant married he went to Perth with his wife, but he did not work while he was there. Three children were born while they lived in Perth. He continued to receive invalid pension, and he then moved with his wife and family to Sydney in 1994 or 1995.

8. The Tribunal notes that while the Applicant was in Perth he had a review of his invalid pension in July 1990. In October 1991, after an amendment to the legislation, invalid pension payments were replaced by DSP, and the Applicant was advised that he would receive DSP from 12 November 1991. A medical review of his disability support pension in October 1992 had the effect of his continuing to be eligible for DSP. It was noted for review in five years. That review commenced in January 1998 (T3). There is no evidence before the Tribunal of the details of medical assessments prior to 1998.

9. The Applicant's evidence was to the effect that as a result of regular ultraviolet exposure by lying in the sun for a number of hours each day he has minimised his symptoms and rarely needs medication except when the weather is bad. He considers, however, that his condition would regress if he was unable to maintain that regime, and he would not be able to spend lengthy periods in the sun each day if he was working during the day. He said that he is unable to care for his three children because of his treatment regime, nor is he involved in cooking or household tasks. He also said that his wife required surgery in February 1999, and as he was unable to care for his children at that time his wife's mother had to live in. He said that at that time he was required to separate from his wife. The circumstances of the separation were not revealed, nor are they relevant.

expert evidence

10. The Applicant was examined by Dr S C Dass of Health Services Australia on 2 March 1998 (T9). Using Table 5.2 of Schedule 1B - Tables for the Assessment of Work-related Impairment for Disability Support Pension ("the Tables") which was applicable at that time, Dr Dass assessed that the Applicant had a nil impairment rating. He also noted that the Applicant had no loss of range of movement of his cervical or thoraco-lumbar spine. Dr Dass also considered that the Applicant was medically fit for 30 hours work per week in light skilled, semi-skilled or lesser skilled work. The Applicant had no difficulty with mobility and could sit or stand for up to two hours at a time. The Applicant was examined subsequently by Dr Phillipa Harvey-Sutton, occupational physician on 18 May 1998 (T13), whose assessment was consistent with that of Dr Dass. She considered that the Applicant's condition did not preclude his ability to work, but she recommended cognitive assessment. Psychometric assessment was undertaken by Ms Rose, clinical psychologist (T14) on 28 July 1998. She assessed the Applicant to have low average intellectual ability. She considered that from a psychological and intellectual perspective he was able to work on the open market. There was no evidence of psychotic illness.

submissions

11. It was conceded for the Respondent that the Applicant has a physical impairment in the form of back pain arising from a back injury sustained in October 1975 and that because of his back condition he is not fit to undertake the unskilled labouring work that he performed prior to his back injury. However, on the medical evidence obtained at the time of the review of the Applicant's DSP he is fit for light employment of at least thirty hours per week.

12. It was submitted for the Respondent that as the medical assessment was undertaken using the Tables as set out in Schedule 1B to the Social Security Act 1991 prior to its amendment in 1998, the old Table is also to be applied by the Tribunal in this review. Using the old Table the Applicant has a nil impairment in respect of his back. As he does not have an impairment of twenty percent or more under the Tables, he does not meet the provisions in s 94(1)(b) of the Act, and therefore he is not entitled to a continuation of payment of DSP.

13. It was submitted by the Applicant that he suffered from a physical impairment in his back, and that because of his sustained treatment with ultraviolet rays of the sun over many years he now has achieved movement in his spine resulting in a nil impairment rating using the Tables. However, he considered that as he was granted invalid pension in 1975, prior to the introduction of the Tables, it is unfair that he is now subject to the Tables which he cannot meet because of the improvement in his condition as a result of his careful treatment over many years. He also submitted that he needed to continue his treatment of ultraviolet rays of the sun for approximately seven hours each day and this precluded him from working.

The legislation

14. It was explained to the Applicant at the hearing that the Tribunal was required to apply the legislation as it now stands. Section 94(1) of the Social Security Act 1991 provides -

A person is qualified for DSP if:

(a) the person has a physical, intellectual or psychiatric impairment; and

(b) the person's impairment is of 20% or more under the Impairment Tables; and

(c) because of the impairment the person has a continuing inability to work.

consideration of evidence and findings of fact

15. The Tribunal finds on the evidence that the Applicant suffers from a physical condition in his back, the effect of which confines him to light work. He is unfit for his pre-injury employment. However on the medical evidence available the Tribunal is reasonably satisfied that the Applicant is fit for light work. Using the old Tables, which I am required to do, the Applicant has no impairment rating in respect of his back. Therefore he does not meet the requirements of s. 94(1)(b) of the Act. It is essential that the Applicant have at least an impairment rating of 20 in order to continue to qualify for DSP.

16. The Tribunal has taken into account the Applicant's evidence that he considers he continues to need exposure to ultraviolet rays to maintain the fitness of his back. There is no medical support for this position, but even if there was such support, it would not qualify him to meet the requirements of s. 94(1)(b).

17. The Tribunal notes that the Applicant has not worked since 1975. He would appear to have very low motivation to return to the workforce. During the ten years of his life before his back injury he was apparently an itinerant worker who was very mobile geographically and who chose to have long periods out of the workforce. In respect of the ultraviolet ray treatment for his back condition he presents as being quite eccentric. Whether in these circumstances the Applicant is employable on the open labour market is extremely doubtful, but that is not an issue which can be considered in evaluating his entitlement to receive DSP whereas it has been a factor to take into account in the past in relation to payment of invalid pension. Nor is the Applicant entitled to DSP merely because at a previous point in time he was paid invalid pension.

18. As the Applicant does not meet the requirements of s. 94(1) of the Act he is not entitled to payment of DSP, and therefore the Tribunal affirms the decision of the SSAT dated 26 March 1999 that cancelled the Applicant's DSP.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member

Signed: .....................................................................................

Associate

Date/s of Hearing 3 August 1999

Date of Decision 17 September 1999

Solicitor for Applicant N/A Applicant unrepresented

Advocate for the Respondent Ms S Mantaring