Moss and Secretary, Department of Family and Community Services [2002] AATA 179 (19 March 2002)

Last Updated: 25 March 2002

DECISION AND REASONS FOR DECISION [2002] AATA 179

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/312

GENERAL ADMINISTRATIVE DIVISION )

Re GRAEME MOSS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N Bell, Member

Date 19 March 2002

Place Sydney

Decision The Tribunal affirms the decision under review.

[SGD] Ms N Bell

Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - impairment rating - whether Applicant has continuing inability to work

Social Security Act 1991 - Schedule 1B; section 94

REASONS FOR DECISION

Ms N Bell, Member

1. This is an application by Mr Graeme Moss ("the Applicant") for review of the decision of the Social Security Appeals Tribunal ("SSAT") of 9 February 2001, which affirmed the decision made by a Centrelink delegate of the Secretary to the Department of Family and Community Services ("the Respondent") on 24 October 2000, to reject the Applicant's claim for disability support pension. The Respondent's decision had been affirmed by an authorised review officer on 23 November 2000.

2. At the hearing of the application the Applicant appeared on his own behalf and Mr George Lozysnky represented the Respondent. The Applicant gave oral evidence to the Tribunal and the following documents were in evidence:

Exhibit No Description Date

T1-T66 pp1-220 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T-documents")

R1 Respondent's Statement of Facts and Contentions 29 January 2002

background

3. The Applicant applied for disability support pension on 26 September 2000 and following examination by a medical officer at Health Services Australia was found to have a loss of half the range of normal movement in his lower back and was assigned 10 points under Table 5.2 of the Impairment Tables contained in Schedule 1B to the Social Security Act 1991. The Applicant's claim was rejected on that basis and that decision was reviewed by an authorised review officer who decided that a more appropriate rating for the Applicant was 20 points under Table 5 of the Impairment Tables. However, the authorised review officer considered that the Applicant did not have a continuing inability to work and therefore affirmed the decision to reject the Applicant's claim for disability support pension.

legislation

4. The relevant legislation in this matter is the Social Security Act 1991 ("the Act"), particularly section 94. Section 94(1) of the Act provides:

"Qualification for disability support pension

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; and

(d) the person has turned 16; and

(e) the person either:

(i) is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A) is not an Australian resident; and

(B) is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.

..."

5. The term "continuing inability to work" is defined and explained in sections 94(2), (3), (4) and (5) of the Act as follows:

"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.

Note: For work see subsection (5).

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(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.

94(5) In this section:

educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.

on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.

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."

issue

6. The Respondent did not dispute that the Applicant has an impairment rating of 20 points. The Applicant therefore satisfies the requirements in sections 94(1)(a) and (b) of the Act. The issue for the Tribunal to consider is whether the Applicant has a continuing inability to work.

applicant's evidence

7. The Applicant told the Tribunal that he had a car accident in 1986 and, as a result of his injuries, had a spinal fusion in 1992. He said that during that procedure he was awake as the pethidine drip he was on was not functioning properly. He was therefore in great pain and completely aware of what was happening. He said that since the fusion procedure he has had flashbacks of re-experiencing the event. He said that this has resulted in a lack of patience and an overwhelming sadness. He said that he has seen a hypnotist who has assisted him with these flashbacks.

8. The Applicant said that following the fusion procedure he walked with a cane for two years and by 1994 he was working on a casual basis but generally for much fewer than 30 hours per week. He said that from 1996 to 1999 he worked as a casual wardsman.

9. The Applicant said that it is his flashbacks and the pain he suffers in his lower back, which prevent him from working. He said that he is able to sit for up to two hours, to stand for variable times and to walk for 20 to 60 minutes at a time. He maintained that it was his back pain, which made him cease work. The Applicant said that he takes codeine for his pain and that this has some impact on the pain but does not make it disappear completely.

10. The Applicant said that he is looking for work in the building trade, labouring or doing light landscaping for three days per week. He said that he would not be able to work five days a week because of his pain and that he is looking for outdoor work because he is a physical person and does not wish to do clerical or photocopying work (his last occupation) because he has astigmatism and now needs to wear bifocal lenses.

11. The Applicant told the Tribunal that he currently exercises at the gym two times per week, using machines which do not accentuate spine compression. He also trains at home, swims and walks.

12. The Applicant said that if he got a job he would have to take many more painkillers, which sometimes do not help anyway. He told the Tribunal that he has no difficulty with self-care but that some days he is bedridden and some days he is all right. He was unable to tell the Tribunal how often he is bedridden. He said that he is able to do his own washing, some vacuuming, some lawn mowing and washing up around the house. He said that he sometimes finds sitting on public transport to be a problem although he caught the train from Wyee to Gosford to attend the hearing.

13. When asked about various jobs he could do, the Applicant said that he could be a supervisor but would be unable to stand in one place for long because his feet swell. He also said he could work in a gym but he would need to be accredited and the work is very low paying. The Applicant said that he would consider re-training but was concerned about the standing and sitting involved.

other evidence

14. The documents lodged with the Tribunal under section 37 of the Administrative Appeals Tribunal Act 1975 include a large number of medical reports. Many of these reports pre-date the Applicant's fusion procedure in 1992 and the most recent specialist reports in relation to the Applicant's back condition are dated 1993.

15. Dr A Saunders, the Applicant's treating general practitioner, on 25 September 2000, in connection with the Applicant's claim for disability support pension, reported that he suffers from lower back pain due to a compression fracture at T11 and degenerative disc condition at L4/5 (T44). Dr Saunders reported that the Applicant suffers back pain, numbness in his feet and pain in his buttocks with the pain worsening on increased activity. Dr Saunders also noted that the Applicant cannot bend or lift and cannot stand or sit still for long periods. He also reported that the Applicant would be unable to return to any kind of full-time work, be able to work more than 20 hours per week or undertake any part-time work for more than two years.

16. At T62 is a file note by the authorised review officer dated 23 November 2000 of a telephone interview with Dr Saunders. The officer reported in his file note that Dr Saunders advised that he believed that the Applicant could do clerical types of work if such work could be found for him. The file note also details a conversation with the Applicant in which he said that his pain stops him from being able to travel for hours to work and that he still believes that he is unfit for work.

17. Dr D Arad, medical adviser with Health Services Australia, reported on 18 October 2000 that Mr Moss suffers from back pain with loss of half the normal range of movement (T46). He assessed the Applicant as having a permanent impairment rating of 10 points and concluded that he is unfit for any manual work. He found however, that the Applicant could undertake light duties of 30 hours per week and included in such light duties positions such as car park attendant, supervisor, information/inquiries officer, ticket collector or museum attendant. He noted that such duties should be restricted to exclude bending, lifting more than five kilograms or being in the same posture for more than 15 minutes and that, to avoid stress, the Applicant should not be required to adhere to tight schedules or have high responsibilities. Dr Arad also concluded that the Applicant would benefit from training as long as it is suitable for his disability and recommended a full course of vocational rehabilitation with a gradual return to work program.

18. Dr D Seaton, orthopaedic surgeon, in a report dated 15 September 1993 (T27), stated that:

"the only duties that he [the Applicant] could undertake would be those of quality control or other supervisory work, which did not involve lifting, bending, standing for long periods or walking for long distances during the routine of his work."

19. In his report of 20 May 1993 Dr K Bleasel, neurosurgeon, stated that the Applicant would not be able to return to any heavy labouring work or work in a bent position (T25). He stated that the Applicant's last work at that time was with photocopying but that even the prolonged standing upset his back and caused pain in his legs.

20. In his report dated 13 May 1993 Dr J Roarty, orthopaedic surgeon, stated that the Applicant would be unlikely to be able to return to persistent heavy labour in the future, or to work which would involve significant bending, stooping and lifting. He stated, however, that the Applicant would be able to undertake any other work outside those limitations and will require no further surgical intervention (T24).

consideration

21. There is no dispute that the Applicant has a physical impairment and that that impairment attracts a rating of 20 points under the Impairment Tables in Schedule 1B to the Act. The outstanding issue is whether the Applicant has a continuing inability to work. It is noted that "work", in the context of section 94 of the Act, means work that is for at least 30 hours per week at award wages or above. Regard is not to be had by the Tribunal to the availability of training or the availability to the person of work in the person's locally accessible labour market (section 94(3) and (5)).

22. The Tribunal is satisfied, on the basis of the Applicant's evidence and the available medical evidence, that the Applicant suffers from the loss of at least half the range of movement in his back and from regular, if not chronic, back pain. The Tribunal accepts the Applicant's evidence that he worked as a casual wardsman at Kareena Private Hospital from June 1996 to December 1999 and finally left that work because of back pain and stress. The Tribunal also accepts that the Applicant suffers some disturbance from flashbacks of his fusion procedure in 1992 but notes that, apart from some hypnotherapy, he has had no treatment in relation to this and there is no evidence of any ongoing psychiatric condition.

23. On his own evidence, the Applicant could work as a supervisor or a gym attendant and could undertake retraining, provided he was able to change positions when necessary. The Tribunal also notes the evidence, in the "T-documents", of Drs Arad, Roarty, and Seaton that the Applicant could undertake retraining and/or light work that would not involve lifting, bending or remaining in the same position for extended periods.

24. In order for the Applicant to have a "continuing inability to work" his impairment, that is, his back condition, must of itself be sufficient to prevent him from doing any work or any retraining within the next two years. The evidence of the Applicant and the medical practitioners mentioned above precludes such conclusion. The Applicant therefore does not satisfy the requirement in section 94(1)(c) of the Act. It follows that he does not qualify to receive disability support pension.

decision

25. The Tribunal affirms the decision under review.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member

Signed: O. Caragianni .....................................................................................

Associate

Date of Hearing 4 February 2002

Date of Decision 19 March 2002

Applicant Self-represented

Advocate for the Respondent Mr G Lozynsky