MacDonald and Secretary, Department of Employment and Workplace Relations [2007] AATA 2071 (19 December 2007)

Administrative Appeals Tribunal

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MacDonald and Secretary, Department of Employment and Workplace Relations [2007] AATA 2071 (19 December 2007)

Last Updated: 21 December 2007

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2071

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/0895

GENERAL ADMINISTRAVITVE DIVISION		)
	Re		DONALD MACDONALD

Applicant

And

SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Dr Gordon Hughes, Member

Date 19 December 2007

Place Melbourne

Decision

The Tribunal affirms the decision review

(sgd) Dr Gordon Hughes
Member

CATCHWORDS

Disability Support Pension – whether Applicant meets criteria for 20 point rating under Impairment Table – whether Applicant has continuing inability to work

Social Security Act 1991 section 94

REASONS FOR DECISION

19 December 2007

Dr Gordon Hughes, Member

1. This is an application for review of a decision by the Social Security Appeals Tribunal (SSAT) made on 1 March 2007. The SSAT affirmed an earlier decision of a Centrelink authorised review officer to reject the Applicant's claim for disability support pension (DSP). Centrelink is the agency which delivers services for the Department of Employment and Workplace Relations.
2. The principal issue confronting the Tribunal was whether the Applicant had an impairment rating of 20 points or more under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act); thereby satisfying the requirements of section 94(1)(b) of the Act for the purposes of qualifying for DSP. A related issue for consideration by the Tribunal was whether the Applicant had a continuing inability to work by virtue of such an impairment; thereby satisfying the requirements of section 94(1)(c)(i). In the event the Applicant failed to satisfy either of these criteria, he would not qualify for DSP.

BACKGROUND

3. The Applicant is 49 years of age. He suffered an injury to his back in January 2001 when he fractured his second lumbar vertebrae in a fall.
4. The Applicant had been educated to year 9. He had been employed for many years as a bricklayer prior to his injury and also had an involvement in training racehorses.
5. Following his injury, the Applicant was hospitalised for 6 weeks and he has not worked since. He received DSP from 2002 to 2005. His payments ceased after he received a compensation payout as the result of the operation of a preclusion period.
6. After the preclusion period, the Applicant sought to reclaim DSP on 18 October 2006. It was determined by a Centrelink delegate of the Respondent that he did not satisfy the requirements of sections 94(1)(a), (b) and (c) of the Act. This decision was affirmed on two occasions.

LEGISLATION

7. Section 94(1) of the Act provides, in part:

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 20 points or more under the Impairment Tables; and

(c) one of the following applies:

(i) the person has a continuing inability to work;

...

8. Section 94(2) provides:

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.

9. Section 94(3) provides:

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 a training activity; or

(b) the availability to the person of work in the person's locally accessible labour market.

10. Section 94(5) provides:

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.

11. The relevant parts of the Impairment Table provide:

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

...

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

...

EVIDENCE AND CONSIDERATION OF THE EVIDENCE

12. The Tribunal heard evidence from William Atkinson, a senior psychologist with the Respondent's Job Capacity Assessment team. He told the Tribunal that he had, in early 2007, assessed the extent of the Applicant's impairment at 10 points. This conclusion had been reached following a functional impact assessment, an interview with the Applicant and a review of previous assessments by other assessors. He had given particular consideration to the extent of the Applicant's ability to sit and walk before the onset of pain. He had also taken account of material provided by the Applicant's treating doctor, Dr John Jarman, and physiotherapist, Robert Hughes. The consensus of opinion was, in Mr Atkinson's view, that the Applicant had a capacity for light work, presently in the vicinity of 15 to 22 hours per week but possibly, with intervention, up to 23 to 29 hours per week. Intervention would mean, in this context, training in more sedentary type activities, such as administrative or clerical work.
13. Key elements of Mr Atkinson's Job Capacity Assessment Report included the following:

It is notable that Mr Macdonald sat through the 50 minute JCA interview with no obvious sign of discomfort or restricted movement in his seat. He was able to sit down and rise up from his chair without problem and was highly animated with hand gesticulations during the interview. No disturbance in his gait was noted.

...

From the previous JCA assessments, Mr Macdonald has stated that he was capable of mowing the lawn for 30-45 minutes, however more heavy physical work required around his home is carried out by his adult sons. His daughter frequently does the grocery shopping for him as she works in a supermarket.

...

Mr Macdonald has functional loss of capacity related to a spinal injury and subsequent back pain. He is not capable of returning to his previous work as a brick layer. Mr Macdonald is restricted to light, non-physical duties which do not require him to be sitting down for long periods. Given his current level of daily activity, his work capacity is assessed at 15-22 hours per week.

...

Because of non-vocational barriers, Mr Macdonald is not likely to achieve the work capacity assessed without significant support and intervention.

...

With specific vocational rehabilitation support, Mr Macdonald may be capable of increasing his work capacity to 23-29 hours per week. He has functional losses and restrictions to his work capacity which may be accommodated in an appropriate work environment.

14. The Job Capacity Assessment Report also commented upon the Applicant's attitude and motivation towards work:

A significant barrier to Mr MacDonald's participation in employment appears to be his rigid, fixed belief that he is not capable of returning to work. He stated that 'no employer would want to take him on' and that 'if I don't receive the DSP, on principle I won't do anything'.

The discrepancy between what Mr MacDonald states he is capable of doing and what he is actually doing each day perhaps can be attributed in some degree to a problem of negative attitude towards employment.

15. The Applicant told the Tribunal that his condition had in fact been deteriorating over the years. He could only drive for about 10 minutes, although he was happy to stand for an hour at a time. He could drive his children to school but the school was nearby. He would be capable of light work but not if it involved long term sitting or driving. He was responsible for household chores but his children assisted him. He was capable of light jogging two or three times a week at a slow pace. He disagreed with Dr Jarman's assessment that he could successfully undertake retraining.
16. The Tribunal read two medical reports from Dr Jarman, dated 17 May 2007 and 21 August 2007. The latter report concluded as follows:

In summary then Mr MacDonald has

1. A healed L2 Vertebral fracture resulting in a 60% reduction in size.
2. Chronic pain and reduced lumbosacral mobility and flexibility as a result of 1 and possibly contributed to by 3.
3. Bilateral Pars Interarticularis defect of L5.

The chronic pain problem as a result of the injury has been the persistent feature and which has lead to his inability to consider his former work as a bricklayer and horse trainer. It is possible that with employment retraining, he could find alternative work. It would need to be sedentary in nature and avoid heavy lifting and he be allowed rest breaks and very much allowed to work at his own pace. He may also benefit from a structured course of Clinical Pilates to build up muscular strength of his abdomen and "core" which would hopefully improve his pain and flexibility.

I am not trained to provide any assessment of degree of impairment of his condition.

17. The Tribunal also reviewed a report from physiotherapist Robert Hughes, dated 19 June 2007, who observed:

I did not have access to any MRI or CT scans or reports. I can only assume that the L2 fracture is stable. On this assumption the only restrictions are symptomatic i.e. Danny can do whatever he can without aggravating his symptoms. He should therefore avoid prolonged standing and sitting, and lifting of heavy weights. Otherwise he should be free to try anything, and progress as his symptoms allow.

18. In a subsequent report, dated 26 June 2007, Mr Hughes added:

I have since viewed a CT scan report of a scan done on 6 June 2007. This does report a mild posterior disc bulge at L4/L5 level. Whilst this is reported as a mild bulge, it still places some further restrictions to the previous letter. These restrictions are that he should avoid repetitive or prolonged bending or stooping. Also he must not bend or twist his trunk whilst lifting any weight. These restrictions should be added to those mentioned in my previous letter.

19. Against this background, the Tribunal is confronted with a situation in which the Applicant clearly has a genuine injury and an ongoing impairment, thus satisfying the requirements of section 94(1)(a) of the Act.
20. The key issue, for the purposes of section 94(1)(b) of the Act, is whether the extent of the Applicant's impairment should rate 10 points under the Impairment Tables as contended by the Respondent, or 20 points as contended by the Applicant. The distinction is necessarily arbitrary in some respects and incapable of precise determination. The Tribunal is of the opinion, however, that the Applicant's condition as described in the medical evidence before the Tribunal is more consistent with the criteria specified for a rating of 10 points, as opposed to a rating of 20. The Tribunal considers that the medical evidence before it does not indicate that the Applicant has lost half of the normal range of spinal movement with most physical activities or that he has lost three quarters of normal range of movement overall, thus meaning that he fails to satisfy the criteria for a rating of 20. The Tribunal prefers Mr Atkinson’s assessment. This conclusion is unfortunate for the Applicant in the sense that he would appear to comfortably exceed the threshold for a rating 10 points.
21. Having reached this conclusion, it is not necessary for the Tribunal to reach a conclusion as to whether the Applicant satisfies the requirement under section 94(1)(c)(i) of a continuing inability to work.
22. It may be helpful, however, for the Tribunal to observe that, for the purposes of section 94(2) which elaborates upon the meaning of a continuing inability to work, section 94(5) provides that work means at least 15 hours per week; and a training activity includes rehabilitation designed specifically for people with disabilities.
23. The Respondent referred to the Explanatory Memorandum which accompanied the modification of the definition of continuing inability to work effected by the Social Security Legislation Amendment Act (No. 1) 1995, and which emphasised:

The Secretary must be satisfied that a person's continuing inability to work is directly caused by a person's impairment that has been assigned a rating of 20% or more under paragraph 94(1)(b). Conversely, factors that are consequential upon the person's impairment, such as attitude and lack of motivation to work, are not to be taken into account in determining a person's continuing inability to work under subsection 94(2).

24. It follows that only the Applicant's spinal condition should be taken into account in assessing his work capacity. In this regard, the evidence presented to the Tribunal is consistent with an ability for the Applicant to work for periods in excess of 15 hours per week. The Applicant would appear to be a suitable candidate for appropriate vocational rehabilitation. The Tribunal is mindful of the reservations expressed by the Applicant himself but considers that he has the capacity for work which is greater than he admits to and perhaps greater than he realises.

DECISION

25. For the above reasons, the Tribunal affirms the decision under review.

I certify that the twenty-five [25] preceding paragraphs are a true copy of the reasons for the decision herein of

Dr Gordon Hughes, Member

(sgd) Mara Putnis

Clerk

Date of Hearing 18 October 2007

Date of Decision 19 December 2007

Advocate for the Applicant self-represented

Advocate for the Respondent Ms A. Bramley, Centrelink Legal Services Branch