McCasker and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 24 (21 January 2011)

Last Updated: 21 January 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 24

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/ 2159

GENERAL ADMINISTRATIVE DIVISION		)
	Re		ALAN McCASKER

Applicant

And

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

Respondent

DECISION

Tribunal

Mr P Wulf, Member

Date 21 January 2011

Place Brisbane

Decision

The decision of the Respondent is affirmed.

Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Claim for disability support pension – Issues of fully documented diagnosed condition which have been investigated, treated and stabilised – Decision under review affirmed.

Administrative Appeals Tribunal Act 1975 – s 37
Social Security Act 1991 – s 94, Sch 1B
Social Security Administrative Act 1991- Sch 2

REASONS FOR DECISION

21 January 2011

Mr P Wulf, Member

1. Mr Alan McCasker (“the Applicant”)[1] has appealed against a decision of the Social Security Appeals Tribunal (“SSAT”)[2] that the Applicant should have his Disability Support Pension (“DSP”) cancelled by a letter of 17 August 2009 as he did not accrue 20 points pursuant to the Impairment Tables 5.2 (“the Impairment Tables”) of the Social Security Act 1991 (“the Act”) to make him eligible for DSP.

BACKGROUND

2. The Applicant was in receipt of DSP from 15 March 2006 due to a spinal disorder that had an impairment rating of 20 points under the Tables.[3] The Applicant’s condition was reviewed considering the outcome of a job capacity assessment on 2 July 2009.[4] On 17 August 2009, Centrelink advised the Applicant that based on that review, they had made a decision to cancel his DSP effective 28 September 2009.[5]
3. On 6 October 2009, the Applicant requested a review of the decision to cancel his DSP and provided new supporting medical material.[6] On 20 October 2009, the Applicant was assessed by a Centrelink psychologist considering the new material.[7]
4. On 3 November 2009, the original decision maker (“ODM”) reviewed and affirmed the original decision considering the new material.[8] An Authorised Review Officer (“ARO”) reviewed and affirmed the decision to cancel Mr McCasker’s DSP on 16 November 2009.[9]
5. Mr McCasker sought review by the SSAT. The SSAT found that Mr McCasker did not qualify for DSP, but did accrue ten (10) impairment points under the Tables.[10] On 31 May 2010, the Applicant applied to the Administrative Appeals Tribunal for a review of the SSAT decision.[11]

ISSUES

6. The relevant issues for the Tribunal to consider in this matter are:
   • (a) What conditions did Mr McCasker suffer at the time of the cancellation of his claim on 17 August 2009?
   • (b) Did Mr McCasker suffer from a medical condition which attracted 20 or more points under Schedule 1B - Tables for the assessment of work-related impairment for DSP of the Social Security Act 1991 that was a fully documented and diagnosed condition which was permanent and had been investigated, treated and stabilised? and
   • (c) Should Mr McCasker’s DSP be re-instated as he had a continuing inability to work as at 17 August 2009 that would allow him to qualify for DSP?

LEGISLATIVE SCHEME

7. Section 94 of the Act provides as follows:

94 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.

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.

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(5) "work" means work:

(a) that is for at least 15 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.

THE EVIDENCE

8. The evidence before the Tribunal was comprised of:
   • (1) The “T Documents” (Exhibit 1 (T1-T26/1-165) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
   • (2) A medical report from Dr Edgardo Salamat from the Burpengary Morayfield Hub Medical Centre dated 25 August 2010 (Exhibit 2);
   • (3) The Applicant’s Statement of Facts and Contentions dated 2 October 2010 (Exhibit 3);
   • (4) Observation Notes of an assessment of the Applicant prepared by Ms Kirsty Grant dated 2 July 2009 (Exhibit 4);
   • (5) The Respondent’s Statement of Facts and Contentions (Exhibit 5); and
   • (6) Job Capacity Assessment Report prepared by Ms Kirsty Grant date 20 April 2010 (Exhibit 6).

EVIDENCE AND ANALYSIS

9. Very early in the hearing, the Applicant admitted that he fully understood the Statement of Principle on which the assessment was based; however he believed that the original decision was incorrect and that the Tribunal should assess his case based on new evidence that was presented to the Tribunal and was not available to the ODM, the ARO or the SSAT at the time. This new evidence was dated after all those decisions.
10. The applicant was a spray painter for approximately 30 years. The Tribunal understands from the evidence and its understanding of the profession, that it requires a lot of bending and side to side movement when spraying the panels of motor vehicles to apply a continuous consistent coat of paint.
11. From 15 March 2006 until 17 August 2009, the Applicant was in receipt of DSP for a spinal disorder that the Respondent agreed was worth 20 impairment points. As part of a review in 2008, the respondent determined that the applicant no longer had an impairment that warranted 20 points and DSP being paid. The Applicant suggested that he should be awarded an impairment rating of 20 points consistent with his previous assessment and that the cancellation of his DSP was incorrect particularly as he had received DSP payments since 2006.
12. The Applicant has a history of issues with L2-3, L3-4, L4-5 and L5-S1.[12] On 2 July 2009, the applicant was assessed by CRS Australian for his DSP by a university qualified and registered occupational therapist.[13] The assessment found that Mr McCasker reported that he could walk for 15 minutes, sit and stand for one (1) hour and drive for two (2) hours. It was also noted that the Applicant did not take any regular medication for his condition as it affected his disposition and made him angry.
13. The report suggested that the applicant had a 25% loss of normal movement in the Thoraco-Lumbar spine and that there was not an overall loss of movement in the Cervical Spine[14]. The report indicated that when pain did occur, the pain was alleviated immediately if the aggravating movements were immediately stopped.
14. Following that assessment, the applicant had his DSP cancelled. He appealed against that decision and undertook further medical examinations including Dr Uddin’s report of 5 October 2009 which indicated that McCasker’s conditions were degenerative and had been diagnosed on 24 November 2005, if not earlier in 2003.
15. In 2010, the Applicant had issues with L1-2, L2-3, L3-4, L4-5, L5-S1, C3-C4, C4-C5 and C6-C7.[15] The Applicant was further assessed by the same university qualified and registered occupational therapist from CRS Australia on 20 April 2010 that undertook the evaluation in July 2009.[16] The evaluation was assisted by x-rays provided by Queensland Diagnostic Imaging. It also indicated that he undertakes no home strengthening exercises to assist in any rehabilitation, and accordingly, both Mr McCasker’s neck and spinal disorders were determined as not being fully diagnosed, treated and stabilised. The report suggested that his future capacity for work within 2 years with intervention was 15-22 hours/week.
16. The Applicant adduced Exhibit 2, this being a doctor’s report concerning a medical examination that took place on 1 March 2010. The report suggests that there were changes to the Applicant’s spine, this being L2-L3 facet joint degeneration, L3 - L4 minor disc bulging with thecal sac identification, and L5-S1 chronic disc bulge now indenting the thecal sac.
17. While this may have been in the case in March 2010, the Tribunal is required to make an assessment of the Applicant’s condition as at the time of the cancellation of his DSP in August 2009. Therefore, while it may show that Mr McCasker’s back conditions were deteriorating at the time of the examination, the report can be given little weight when considering his condition in August 2009. More importantly, it is noted that the doctor preparing the report indicates that he first saw the Applicant on 1 June 2009 but makes no reference to the Applicant’s condition at that time, which is closer to the date when the Applicant’s DSP was cancelled. Further, it is also noted that the doctor indicates that he cannot comment on the lower back symptoms in 2009 as the Applicant was being seen by another GP. This could be construed as either being the time prior to June 2009 or the whole of 2009. This is a further reason why the report can be given little weight when considering his condition in August 2009.
18. The Applicant also attended EPIC, an organisation that assists disabled people to find a different jobs.[17] A report commissioned by EPIC suggested that Mr McCasker had less that 50% of normal range of rotation.[18] EPIC indicated that it could not place the Applicant in a different position. Again, this assessment was undertaken on 9 April, 2010, well after the determination of the SSAT. Again, this report determines his condition some eight (8) months after the Applicant’s DSP was cancelled.
19. It is noted that based on the new medical information and subsequent assessments that the Applicant is again now receiving DSP. However, the new evidence does not assist the Tribunal in determining whether the conditions observed in the 2010 x-rays and assessment were in existence at the time when Mr McCasker’s DSP was cancelled. None of the medical evidence indicates that these conditions were such that they existed at the time of the cancellation of the Applicant’s DSP. While the Tribunal might hypothesise that they did, the evidence on the balance of probabilities particularly considering that the alignments must be both diagnosed and more importantly, restrict functional capacity, does not suggest that the Applicant should not have had his DSP cancelled in August 2009.

DETERMINATION

20. While Mr McCasker may have been diagnosed, the provision of impairment points is based on his functional ability. The Tribunal notes the evidence of Ms Grant that supports this assertion.
21. The Tribunal finds that Mr McCasker’s cancellation of his DSP on 17 August 2009 was the correct decision as Mr McCasker failed to satisfy a combined impairment assessment of more than 20 points. In such circumstances I conclude that the decision under review be affirmed, with Mr McCasker not entitled to receive DSP payments from 17 August 2009.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed: ...............................[Sgd]..............................................

Alex Seagar, Associate

Date/s of Hearing 10 November 2010

Date of Decision 21 January 2011

Solicitor for the Applicant Applicant was self-represented

Solicitor for the Respondent Jasmine Forsyth, departmental Advocate

---

[1] Exhibit 1, T1/1
[2] Exhibit 1, T2/5-14
[3] Exhibit 1, T26/157-165
[4] Exhibit 1, T7/48-54
[5] Exhibit 5, Attachment B
[6] Exhibit 1, T10/59-66, T12/71-88
[7] Exhibit 1, T14/90-95
[8] Exhibit 1, T16/98-99
[9] Exhibit 1, T17/100-106
[10] Exhibit 1, T2/8-11
[11] Exhibit 1, T1/1-7
[12] Exhibit 1, T12/75-81
[13] Exhibit 4/1-2
[14] Exhibit 1, T10/59-66- 81
[15] Exhibit 1, T7/48-54
[16] Exhibit 6
[17] Exhibit 1, T23/121-128
[18] Ibid at 124