Smith and Department of Family and Community Services [2002] AATA 549 (5 July 2002)

Last Updated: 8 July 2002

DECISION AND REASONS FOR DECISION [2002] AATA 549

ADMINISTRATIVE APPEALS TRIBUNAL No Q2002/183

GENERAL ADMINISTRATIVE DIVISION

Re PAUL SMITH

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date 5 July 2002

Place Brisbane

Decision The Tribunal affirms the decision under review.

..................(Sgd)..................

R G Kenny

Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether applicant has physical, intellectual or psychiatric impairment - whether applicant has impairment rating of 20 points or more - relevant time-frame - whether applicant has continuing inability to work

Social Security Act 1991 - s 94, Schedule 1B

Social Security (Administration) Act 1999 - ss 41, 42 and sub-clause 4(1) of Schedule 2

REASONS FOR DECISION

5 July 2002 Mr R G Kenny, Member

Background

1. On 1 March 2001, Paul Smith (the applicant) lodged a claim with Centrelink for payment of disability support pension in respect of the effects upon him of back problems which he described as ankylosing spondylitis and central disc protrusion L5-S1.

2. On 3 April 2001, a delegate of Centrelink rejected the applicant's claim. That decision was affirmed by an authorised review officer on 25 October 2001 and, in turn, by the Social Security Appeals Tribunal on 17 January 2002. On 26 February 2002, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).

Appearances

3. The applicant attended the hearing but was not represented. Mr R McQuinlan of the advocacy and administrative law team with Centrelink appeared on behalf of the Secretary, Department of Family and Community Services (the respondent).

4. At the hearing, the following material was taken into evidence from the respondent:

Exhibit R1 - documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents: T1-T34);

Exhibit R2 - a medical report, dated 25 March 2002, from Dr W Douglas, physician and rheumatologist;

Exhibit R3 - a letter, dated 18 January 2001, from CRS Australia; and

Exhibit R4 - a Centrelink print-out dated 8 April 2002 and a medical report, dated 5 April 2002, from Dr E Nixon.

Issues and Legislation

5. The issues in this matter relate to whether or not the applicant is qualified to receive a disability support pension which is payable in accordance with the terms of section 94 of the Social Security Act 1991 (the Act) which relevantly reads:

"(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:

the person has a continuing inability to work; ...

(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 form 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.

(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.

(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 the work, have regard to the likely availability to the person of work in the person's locally accessible labour market.

(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."

6. To qualify for a disability support pension, which is a social security payment under the Act, all three of the requirements in paragraphs 19(1)(a), (b) and (c) must be met by the applicant. Further, they must be met at the time of the initial claim or in the period of thirteen weeks starting immediately after the day on which the applicant's claim was made. That is because of the operation of sections 41, 42 and sub-clause 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act). Those provisions relevantly read:

"41. (1) Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person's start day in relation to the social security payment. ...

42. For the purposes of the social security law, a person's start day in relation to a social security payment or a concession card is the day worked out in accordance with SCHEDULE - 2.

...

Schedule 2

4. (1) If:

(a) a person ... makes a claim for a relevant social security payment; and

(b) the person is not, on the day on which the claim is made, qualified for the payment;

(c) ... the person will, because of the passage of time or the occurrence of an event, become qualified for the payment sometime within the period of 13 weeks after the day on which the claim is made; and

(d) the person becomes so qualified within that period;

the claim I taken to be made on the first day on which the person is qualified for the social security payment."

7. In accordance with those provisions, the Tribunal must determine:

* whether the applicant has a physical, intellectual or psychiatric impairment; and, if so

* whether he has an impairment rating of 20 points or more calculated under the Impairment Tables, which are found in Schedule 1B of the Act, within a period of 13 weeks from the claim date of 1 March 2001; and, if so

* whether he has a continuing inability to work as required by subparagraph 94(1)(c)(i) of the Act.

8. The Impairment Table in Schedule 1B with potential relevance in this matter is Table 5 which reads:

"TABLE 5. SPINAL FUNCTION

Determination of spinal impairments must be based on a demonstrable loss of function.

TABLE 5.2 Thoraco--lumbar-sacral spine

As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.

Rating Criteria

NIL Normal or nearly normal range of movement.

FIVE Loss of one-quarter of normal range of movement.

TEN Loss of one-quarter of normal range of movement as well as back pain or referred pain:

with many physical activities and

with standing for about 30 minutes and

with sitting or driving for about 60 minutes.

or

Loss of half of normal range of movement.

TWENTY Loss of half of normal range of movement as well as back pain or referred pain:

with most physical activities and

with standing for about 15 minutes and

with sitting or driving for about 30 minutes.

or

Loss of three-quarters of normal range of movement.

FORTY Ankylosis in an unfavourable position, or unstable joint."

Applicant's evidence

9. The applicant, who was born on 24 January 1964, gave oral evidence to the Tribunal including the following history of his back problems. He had a motor vehicle accident in 1988 and, since then, has had continuing difficulties with his back. He is qualified as an electrical draftsperson and worked in that capacity with various firms including Bateman Engineering who was his last employer. He ceased work in June 2000 because of his back problems and has been in receipt of a social security benefit since that time. He said that he is now in receipt of the disability support pension and has been since 18 April 2002 after he made a further claim for that benefit.

10. He was referred by his treating doctor, Dr E Nixon, to Dr G Harding of the Sandgate spinal medicine clinic who treated him in 2000 with spinal injections. He was then sent to Dr Staunton-Smith who was not able to diagnose ankylosing spondylitis but who advised the applicant that he had a predisposition to the development of the condition. He said that Dr Staunton-Smith prescribed a double dose of Celebrex. On his advising Dr Nixon of this, some concern was expressed to him at this treatment and the applicant was then sent to Dr Douglas in January 2001 who arranged for a bone scan to be done. Dr Douglas reduced the dosage of Celebrex and prescribed further medication, Sulfasalazine, which the applicant described as a pain-killer. Dr Douglas was able to diagnose ankylosing spondylitis.

11. The applicant said that he lives in a house on his own, that he does most of the house-work himself but that he gets much assistance from family members, including his parents and brothers, in the carrying out of heavy work such as that associated with gardening. He said that he will attempt to do things like lawn-mowing but that he feels pain in his back at the time and for periods thereafter. He said that he recalled speaking with Dr A Bonert from Health services Australia (HSA) but disputed aspects of a report that Dr Bonert completed in relation to a reference to his having recently dug up a storm water drain. He recalled telling Dr Bonert that his father had completed this task although he gave some assistance and, as usual, suffered pain afterwards.

12. The applicant said that he drives his car, which has automatic gears, but that he is not able to sustain driving beyond an hour or so because of pain in his back, neck and shoulders. He has been able, until recently, to exercise through hydrotherapy, but is now finding this too expensive.

Medical evidence

13. In evidence before the Tribunal was a report, dated 13 October 2000, from Dr Harding, who referred to the applicant's condition as ankylosing spondylitis (presumed).

14. Dr Nixon also provided reports dated 22 February 2001, 5 April 2001, 25 October 2001 and 5 April 2002. In his first report, Dr Nixon diagnosed ankylosing spondylitis and also an unstable L5-S1 joint. For the former condition, he said that the treatment comprised "SAARDS, NSAIDS and hydrotherapy". For the latter condition, he described the treatment as "expectant". Dr Nixon also indicated that the applicant would be able to return to the workforce in 12 to 24 months. In his second report, Dr Nixon referred to the back problems of the applicant as being "long term" and described as "absurd" the allocation of a nil rating for the applicant's back under the Impairment Tables. In his report of 5 April 2002, Dr Nixon described the applicant as suffering from depression.

15. Dr Douglas provided reports dated 1 March 2001, 16 May 2001, 5 September 2001 and 25 March 2002. In his first report, Dr Douglas only diagnosed ankylosing spondylitis and described the condition as "improving" and also said that the applicant would be able to return to the workforce within 6 months. In the 16 May 2001 report, he confirmed that the applicant was not able to undertake work but gave the time-frame for this as 12 to 24 months. He said that an impairment rating of more than 20% would be appropriate. In the 5 September 2001 report, Dr Douglas described the condition as "fluctuating" and nominated the time-frame for return to work as being within 6 months. In his report of 25 March 2002, Dr Douglas described the condition as "permanent".

16. Dr Bonert's report was dated 29 March 2001 and it referred to the recent diagnosis of ankylosing spondylitis and described the condition as "temporary", as being such as to prevent work for 6 months, and for which the applicant should be reviewed in 6 months time. Another HSA report was completed by Dr A Nath on 13 September 2001. There, the condition is described as "temporary and not fully treated and stablilised".

Applicant's submissions

17. The applicant submitted that the decision under review was wrong and that he met the requirements for the disability support pension. He said that he had a permanent condition and that it prevents him from being employed.

Respondent's case

18. Mr McQuinlan conceded that the applicant's back condition was permanent and sufficiently severe to prevent the applicant from working long term and to attract a 20% impairment under Table 5 of Schedule 1B. He submitted that this was the basis of the recent grant of disability support pension and that that decision was made in reliance on the more recent medical reports, particularly of Dr Douglas. However, he submitted that the description of a permanent condition with long term inability to work did not apply as at the date of the applicant's claim. He submitted that, regardless of what the relevant impairment points were at that time, no allocation could be made until the condition was fully documented, diagnosed, investigated, treated and stabilised. He submitted that this had not been the case at the time of the claim, as indicated by the medical reports, and that that it had not been the case at any time within thirteen weeks of the claim. For that reason, he submitted, the applicant was not qualified for disability support pension as a result of his claim of 1 March 2001.

Consideration

19. It is not in dispute that the applicant suffers physical impairment from ankylosing spondylitis. His treating doctor also makes reference to unstable L5-S1 joint as well. It is also not in dispute that he now meets the requirements for payment of disability support pension and has done so as a result of a further claim and on the basis of recent medical evidence. However, for the applicant to qualify for the disability support pension as a result of his initial claim on 1 March 2001, all of the requirements of section 94 of the Act must be satisfied at some time between that date and a period which ended thirteen weeks later. That is the effect of the provisions, noted above, of the Administration Act.

20. Section 94 depends on the application of the Impairment Tables in Schedule 1B of the Act. That Schedule begins with an Introduction which sets out the approach to be adopted in applying the various Tables and includes the following:

"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 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."

21. The specialist evidence in this case from Dr Douglas, at the time of the claim and until his 16 May 2001 report, nominated a time-frame for recovery of workability of 12 to 24 months. Even in his 5 September 2001 report, Dr Douglas described the condition as "fluctuating" and nominated the time-frame for return to work as being within 6 months. Only in his report in 2002 does he describe the condition in terms that would meet the two year time-frame given in the Introduction to Schedule 1B of the Act. On the basis of that evidence, I am reasonably satisfied that the applicant's back condition, although diagnosed, had not been investigated, treated and stabilised in the manner referred to in Schedule 1B of the Act at the time of the applicant's claim or at any time within thirteen weeks thereafter. This means that the applicant was not qualified for the disability support pension in respect of his claim of 1 March 2001.

Decision

22. The decision under review is affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

Signed: Sarah Oliver

Associate

Date of Hearing 24 June 2002

Date of Decision 5 July 2002

The Applicant Appeared in Person

Solicitor for the Respondent Mr R McQuinlan, Departmental Advocate