Owen and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 70 (9 February 2011)

Last Updated: 9 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 70

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/3060

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Mr Todd Owen

Applicant

And

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

Respondent

DECISION

Tribunal

Dr Amanda Frazer, Member

Date 9 February 2011

Place Perth

Decision

The Tribunal affirms the decision under review.

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

CATCHWORDS

SOCIAL SECURITY – disability support pension – qualification requirements– applicant has impairment – applicant’s impairment does not attract impairment rating of 20 under Impairment Tables – applicant not qualified for disability support pension – decision under review affirmed

LEGISLATION

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

REASONS FOR DECISION

9 February 2011

Dr Amanda Frazer, Member

INTRODUCTION

1. Mr Owen (“the applicant”), who is 37 years of age, lodged an application for disability support pension (“DSP”) on 5 October 2009.
2. On 30 November 2009 Centrelink determined the applicant was not eligible to receive DSP as his impairment rating was below 20 points.
3. On 27 January 2010 a Centrelink authorised review officer (“ARO”) affirmed the decision that the applicant was not eligible to receive DSP.
4. On 15 June 2010 the Social Security Appeals Tribunal (“SSAT”) affirmed the decision that the applicant was not eligible to receive DSP.
5. On 22 July 2010 the applicant made an application to this Tribunal for review of the SSAT’s decision.

THE RELEVANT LEGISLATION

6. 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 15 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.

...”

7. The “Impairment Tables” referred to in para (b) of s 94(1) are set out in Schedule 1B to the Act and are relevantly referred to in paragraphs 23 - 25 below.

THE EVIDENCE

8. The evidence before the Tribunal comprised:
   • the “T Documents” (T1-T14), pp 1-201) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”):
   • Exhibit A1 letter from Dr Villamayor, Emergency Department, SCGH dated 1 March 2009 tendered by the applicant
   • the oral evidence of the applicant.

THE APPLICANT’S SUBMISSION

9. The applicant stated he suffered an injury at his work, Catalyst Recruitment Systems, on 2 August 2000 when the forklift he was driving struck a steel plate. He fell forward and sustained a laceration and since then has suffered from ongoing pain in his thoracic spine.
10. The applicant said he received compensation for this injury however he is still pursuing his claim against the Company. The applicant is doing all the paper work for this himself which takes about 10 hours a week and he expects he will go to Court around the middle of this year.
11. The applicant said he has tried different treatments in the past for his back pain. These have included physiotherapy and facet blocks by a Pain Management Specialist (Dr Berrigan) and medication. The applicant said he has also tried swimming because it improves his flexibility but that his flexibility has decreased since 2005 because he doesn’t do the exercise. The applicant said he has also tried a stretching routine. The applicant said the only medication he takes now for his back pain is 1 – 2 150 mg Tramol tablets a day. The applicant said he has used a TENS machine which gave him minimal relief but he is not motivated now to put the pads on his back.
12. The applicant said he last saw Dr Berrigan around 8 months ago and he is not planning on seeing him again for 1 – 2 years.
13. The applicant said he also suffers from depression. His GP, Dr Winterton, diagnosed his depression and started him on antidepressants about 2 years ago. The applicant said he takes Lexapro 20 mg a day. The applicant said he doesn’t think his depression has been treated properly. He saw a psychologist last year a few times and said this was helpful. However, he found out that he could only have 10 visits without incurring a cost and so he thought he should save these up for his forthcoming Court case in case he should need them. The applicant said he had seen a psychiatrist, Dr Loke, however this was at the request of the Insurer.
14. The applicant said he has been able to work since the accident in 2000. He has undertaken some work trials for a 4 day period in 2002 and for a 2 month period at Westrac in 2002. He has also undertaken a 1 year work trial at a Dental Supply company. The applicant last worked at Festival Fish from 1 August 2006 until 21 May 2008. The applicant was dismissed due to a work shortage.
15. The applicant told the Tribunal that his substance abuse no longer affects his work capacity and that he no longer uses alcohol but may still use some marijuana.
16. In his summary, the applicant said that he has had his back injury for 10 years and he “didn’t think anything further could be added by anybody” and so this is permanent. He said he is certain it should rate above 20 points. The applicant also said he did not think his depression has been fully diagnosed or treated.

THE RELEVANT MEDICAL EVIDENCE

17. The Medical report provided by Dr Winterton dated 14 October 2009. Dr Winterton states the applicant suffers from chronic thoracic pain with stiffness and reduced mobility. The applicant has reduced endurance and has an increased need for analgesia. The applicant also suffers from depression and substance misuse.
18. Medical Report by Dr Williams, dated 29 March 2005. At this time Dr Williams states the applicant has recovered from his injury and there are no elements of permanent residual disability although there is some spinal stiffness that will respond to more intensive rehabilitation efforts.
19. Medical Report of Dr Berrigan, Pain Specialist, dated 15 August 2009. Dr Berrigan states ”I again went through possible treatments for Todd. He does not want further injections, not attend our SCAMP programme.”

THE IMPAIRMENT TABLES

20. 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. ...
...
4. 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. ...
5. 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. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

• what treatment or rehabilitation has occurred;
• whether treatment is still continuing or is planned in the near future;
• whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

In this context, reasonable treatment is taken to be:

• treatment that is feasible and accessible ie, available locally at a reasonable cost;
• where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:

• evaluate and document the probable outcome of treatment and the main risks and or (sic) side effects of the treatment; and
• indicate why this treatment is reasonable; and
• note the reasons why the person has chosen not to have treatment.

...

ANALYSIS

IMPAIRMENTS

21. It is common ground that, at all material times, the applicant has had various physical impairments, within the meaning of para (a) of s 94(1) of the Act, by reason of his suffering from the following conditions, namely, chronic pain in the thoracic spine, depression and past substance abuse.
22. The first matter for the Tribunal’s determination is whether the applicant has a total impairment, by reason of the abovementioned conditions, of at least 20 points under the Impairment Tables, for the purposes of para (b) of s 94(1) of the Act.

THORACIC SPINE PAIN

23. The Tribunal notes that no diagnosis has been provided to explain the applicant’s ongoing thoracic spine pain following his work injury in 2000. The Tribunal accepts the applicant’s evidence that regular swimming does help his flexibility and that he has obtained some relief for his back pain by using a TENS machine. The Tribunal also accepts the applicant’s evidence that he has reduced his overall use of medication for his thoracic pain. The Tribunal considers the condition of thoracic spine pain has not been fully diagnosed, investigated or stabilised at this time and cannot be considered permanent. It therefore does not attract an impairment rating.
24. The Tribunal accepts the applicant’s evidence that his depression has not fully diagnosed or treated at this time. Therefore, it cannot be considered permanent and it does not attract an impairment rating.
25. The Tribunal accepts the applicant’s own evidence that his substance abuse does not affect his work capacity and that he no longer uses alcohol. The Tribunal considers this condition has not been fully investigated and treated and therefore it cannot be considered permanent and does not attract an impairment rating

CONCLUSION

26. The Tribunal concludes that, although the applicant has at all material times had impairments within the meaning of para (a) of s 94(1) of the Act, they cannot be considered permanent and do not attract a rating under he Impairment Tables. Accordingly, the applicant does not satisfy para (b) of s 94(1) of the Act and the decision to reject the claim for DSP is correct.
27. That conclusion makes it unnecessary for the Tribunal also to consider whether the applicant satisfies para (c) of s 94(1) of the Act.

DECISION

28. For the above reasons the Tribunal affirms the decision under review.
    

I certify that the 28 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 20 January 2011

Date of Decision 9 February 2011

Representative of the Applicant Mr Paul Maishman,

Centrelink Legal Services Branch

Representative for the Respondent Self represented