Smith and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 66 (7 February 2011)

Last Updated: 8 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 66

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3789

GENERAL ADMINISTRATIVE DIVISION		)
	Re		BARRY SMITH

Applicant

And

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

Respondent

DECISION

Tribunal

Dr A Frazer, Member

Date 7 February 2011

Place Perth

Decision

The Tribunal sets aside the decision under review and substitutes a new decision that the applicant is qualified for the DSP and has been since the date of cancellation on 22 June 2009.

...(sgd) Dr A Frazer...

Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – qualification requirements– applicant has impairment – applicant’s impairment attracts impairment rating of 20 under Impairment Tables – applicant has continuing inability to work – applicant qualified for disability support pension – decision under review set aside

LEGISLATION

Social Security Act 1991 (Cth), s 94 and Sch 1B

REASONS FOR DECISION

7 February 2011

Dr A Frazer, Member

INTRODUCTION

1. Mr Smith (“the applicant”), who is 59 years of age, had been granted disability support pension (“DSP”) from 3 October 1985.
2. In early 2009 Centrelink undertook a medical review of the applicant’s DSP and on 12 May 2009 a Centrelink officer decided to cancel the applicant’s DSP because his impairments did not rate at least 20 points on the Impairment Tables.
3. This decision was affirmed by a Centrelink authorised review officer on 9 June 2009 and was then also affirmed by the Social Security Appeals Tribunal (SSAT) on 28 July 2009.
4. On 12 August 2009 the applicant made an application to this Tribunal for review of the SSAT’s decision.

THE RELEVANT LEGISLATION

5. The conditions which must be satisfied before a person is qualified for DSP are set out in paras (a) – (f) of s 94(1) of the Act. It is common ground that the applicant satisfies the conditions set out in paras (d) – (f) of s 94(1). Section 94 of the Act otherwise relevantly provides:

“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;

...

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 independently of a program of support within the next 2 years; and

(b) either:

(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii) if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

Note: For work see subsection (5).

...

94(5) In this section:

training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

(a) education;

(b) pre-vocational training;

(c) vocational training;

(d) vocational rehabilitation;

(e) work-related training (including on-the-job training).

work means work:

(a) that is for at least 30 hours per week on wages that are at or above the relevant minimum wage; and

(b) that exists in Australia, even if not within the person’s locally accessible labour market.

...”

6. The “Impairment Tables” referred to in para (b) of s 94(1) are set are set out in Schedule 1B to the Act and are relevantly referred to in paragraphs 28 – 30 below.

THE EVIDENCE

7. The evidence before the Tribunal comprised:
8. The “T Documents” (T1-T9), pp 1-359) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”).
9. Exhibit A1 (letter from Nicky Fortescue, Senior Physiotherapist, Sir George Bedbrook Spinal Unit dated 5 August 2010)
10. Job Capacity Assessment (JCA) dated 21 October 2009
11. The oral evidence of the applicant.
12. The oral evidence of Lesley Smith, the applicant’s daughter.
13. The oral evidence of Dr Lim, the applicant’s’ GP, via telephone.

THE APPLICANT’S EVIDENCE

14. The applicant stated he is 59 years old and lives alone. He has help from his 2 daughters. The applicant said he has had long standing severe mid thoracic and low back pain which has been present since he sustained a significant motor vehicle accident in 1984. At that time he sustained a crush fracture of the thoracic vertebra which required bracing.
15. The applicant said he is in constant pain which restricts his activities and interferes with his sleep. He stated his main problem is his spine and his neck, back, hips and legs ache constantly and he cannot do anything about it. He has difficulty standing, bending and sitting for more than 15 minutes. He said he has a garden but will only put the sprinkler on as his mates help him mow the lawns and the rental agent organises heavier tasks such as lopping. He said he doesn’t cook but will use the microwave. He is in constant pain when he drives.
16. The applicant said he has tried many treatments over the years including a pain medicine programme at Fremantle Hospital, a chiropractor and many medications including morphine patches. The applicant said these treatments have not helped his pain. He said he currently uses osteopanadol for his pain.
17. The applicant said he did not work for 9 years after the accident as he was in pain and looking after his daughter. He did manage to work as a traffic warden near where his daughter went to school for 2 hours a day for about 9 hours.
18. The applicant said that for the last 2 years or so he has worked at Spotless Linen Company in Murdoch. He said he can “only just make it to 28 to 29 hours a week” because of his pain. The applicant said he wants to keep working because he enjoys the structure of work and needs the money. He said he tries hard not to show his pain at work and that his boss “understands that he has to do things differently”. The applicant said that by the end of the day he has “absolutely had it” and that from around 11am he is looking at the clock as he can’t wait to “get out the gate to go home.”
19. The applicant said he “does most things” at work. He can drive the modern forklift for 20 minutes at a time and it has a shock absorbent chair. He said he knows all the bumps so he can avoid them. He said he has to use the forklift at short bursts as he cannot lift or bend. He also bar codes garments and unpacks sheets and blankets.
20. The applicant said in 2008 he tried to work more than 30 hours a week so that he could earn more. He attempted this for 9 months until February 2009. However the pain and fatigue “got to him” and he decided that he could not do it so had to go back to his “normal” 58 to 59 hours a fortnight.

MS SMITH’S EVIDENCE

21. Ms Smith, the applicant’s daughter, told the Tribunal she visits the applicant 2 to 3 times a week. She said she will help with the general cleaning around the house and that she also cooks for the applicant. She said the applicant is getting worse, particularly over the last 2 years, and is suffering more from his spine pain. She said the applicant cannot do things, struggles to get in and out of the car and has difficulty walking, standing and sitting.

THE RELEVANT MEDICAL EVIDENCE

22. The Treating Doctor’s Report completed by Dr Lim, dated 10 February 2009, states the applicant has degenerative disease of the spine which causes “constant back pain since MVA 1967”. Dr Lim states the applicant “is able to work at own pace including some lifting despite having constant pain.” Dr Lim states the pain “gets better with rest.” Dr Lim also stated to the Tribunal (per telephone) that the applicant suffered from “wear and tear changes in the back” and that the applicant had reached the point of maximal medical therapy and that he is not likely to improve.
23. The report of Nicky Fortescue (Physiotherapist) and Dr John Kerr (Head of Spinal Unit) dated 5 August 2010 stated that the applicant’s back pain “was long standing in nature which does not require any further management.” Ms Fortescue states “I feel he is doing well to manage the work he is doing..”
24. The JCA states the applicant has a permanent spinal condition that attracts an impairment rating of 15 points. The back pain “has a moderate impact on his functioning”. The assessor states the applicant ”is capable of 30 hours work per fortnight.”

THE IMPAIRMENT TABLES

25. Schedule 1B to the Act is headed: “Tables for the assessment of work-related impairment for disability support pension”. The tables themselves are preceded by an “Introduction“ in which it is relevantly stated:

“1. These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work. ...

2. These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. ...
8. In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates. Medical officers must use their clinical judgement and be convinced that pain or fatigue is a significant factor contributing towards the person’s overall functional impairment. Medical reports and the person’s history should consistently indicate the presence of chronic entrenched pain or fatigue.
26. Table 20, which is used to assess impairments caused by “miscellaneous conditions”, is (relevantly) as follows:

“Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used. Double-counting of a particular loss of function, by the use of more than one Table, must be avoided.

Rating Criteria

NIL Controlled hypertension

...

Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.

TEN Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.

Hypertension that is difficult to control despite intensive therapy but without end-organ damage.

...

FIFTEEN Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible.

...

TWENTY More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work.

THIRTY Very severe symptoms which lead to substantial difficulty with most daily tasks. Assistance with elements of self-care may be required. Symptoms cause severe interference with ability to work or attend work (ie minimal residual work capacity).

...

FORTY Major restrictions in many everyday activities. Capacity for self-care is restricted, leading to dependence on others. No residual work capacity.”

ANALYSIS

Impairments

27. It is common ground that, at all material times, the applicant has had a physical impairment, within the meaning of para (a) of s 94(1) of the Act, by reason of his suffering from a back injury in 1967 that has resulted in degenerative disease of the spine and chronic entrenched pain.
28. The first matter for the Tribunal’s determination is whether the applicant, when his DSP was cancelled, had a total impairment, by reason of the above condition, of at least 20 points under the Impairment Tables, for the purposes of para (b) of s 94(1) of the Act.

Chronic pain

29. The Tribunal accepts the written and oral submission of the respondent that the appropriate Table to assign a rating for the applicant’s chronic entrenched spinal pain is Table 20. The Tribunal accepts the applicant’s evidence that his pain is severe and continuous. This is supported by the evidence of the applicant’s treating doctor, Dr Lim, and also by his daughter in her oral evidence. The applicant has curtailed many daily tasks such as cleaning, cooking and doing the garden because of his pain. The applicant’s pain also precludes him from working more than 30 hours a week and the applicant takes special precautions at work to avoid lifting and jarring his back. The Tribunal considers the appropriate rating for the applicant’s chronic pain under Table 20 is TWENTY.
30. Therefore, the applicant satisfies s94(1)(b) of the Act.
31. The second matter for the Tribunal’s determination is whether the applicant, when his DSP was cancelled, had a continuing inability to work, by reason of the above condition, for the purposes of para (c) of s 94(1) of the Act.
32. It is common ground that the applicant currently works for 28 to 29 hours a week, on average, at Spotless Linen in Murdoch. The Tribunal accepts the applicant’s evidence that he has tried to increase his hours of work to greater than 30 hours a week for around 9 months in the past however he was not able to sustain these hours of work because of his constant spinal pain and fatigue. The Tribunal also accepts the limitation in mobility suffered by the applicant owing to his spinal pain. The Tribunal accepts the evidence from Nicky Fortescue at the Spinal Unit that the applicant “is doing well to do the work he does.” The Tribunal also accepts the applicant’s evidence that he is only able to work for less than 30 hours a week in an extremely supportive environment where he can work with some autonomy and can change his work practises to manage his spinal pain. The Tribunal therefore considers the applicant is not able to undertake any work (that is, of greater than 30 hours a week) because of his impairments. Therefore, the applicant satisfies s94(2)(a) of the Act.
33. The Tribunal considers that the applicant would not, at the time his DSP was cancelled, be able to undertake a training activity over the next 2 years because of his entrenched spinal pain. The Tribunal accepts the pain is constant and severe and is also associated with fatigue. The Tribunal considers this impairment is sufficient to prevent the applicant to undertake a training activity. Therefore, the applicant satisfies s 94(2)(b)(i) of the Act.
34. Therefore, the applicant satisfies s94 (1) (c) of the Act.

CONCLUSION

35. The Tribunal concludes that the applicant has at all material times had impairments within the meaning of para (a) of s 94(1) of the Act and that these impairments attract an impairment rating of TWENTY points. The applicant therefore satisfies para (b) of s 94(1) of the Act. The Tribunal concludes that the applicant, because of these impairments, is unable to do any work of at least 30 hours a week and is also unable to undertake any training activity during the next 2 years. Therefore, the applicant satisfies s94(1)(c) of the Act.
    

Decision

36. The Tribunal sets aside the decision under review and substitutes a new decision that the applicant is qualified for the DSP and has been since the date of cancellation on 22 June 2009.
    

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Dr Amanda Frazer, Member

Signed ...(sgd) T Freeman.....

Associate

Date of Hearing 13 December 2010

Date of Decision 7 February 2011

Representative of the Applicant Mr Antonio Gonzales, Welfare Rights

Representative for the Respondent Mr P Maishman

Centrelink