Editors --- "Disability support pension: cancellation; incapacity to be assessed under most appropriate impairment table at time of assessment" [2008] SocSecRpr 30; (2008) 10(2) Social Security Reporter, Article 12

• ROCARRO and SECRETARY TO THE DEEWR
• Background
• Legislation
• Findings
• Decision

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Disability support pension: cancellation; incapacity to be assessed under most appropriate impairment table at time of assessment

ROCARRO and SECRETARY TO THE DEEWR

(2008/299)

Decided: 15th April 2008 by M.D.Allen and Dr I. Alexander

Background

Rocarro made an application for disability support pension (DSP)on 2 September 2002. That claim was initially refused but on 13 October 2003 a decision by consent pursuant to section 42C of the Administrative Appeals Tribunal Act 1975 granted a DSP to the Applicant. The basis upon which that decision was agreed by the parties is unsure. A file Memorandum dated 17 October 2003 referred to an impairment of 20 points under Table20 (to Schedule 1B of the Social Security Act 1991) whereas a record of Decision dated 20 October 2003 referred to an impairment of 20 points under Table 5.2 of Schedule 1B.

Legislation

The criteria for the grant of DSP are provided for in section 94 of the Social Security Act 1991 (‘the Act’).

A person is qualified for disability support pension if they have a physical, intellectual or psychiatric impairment which amounts to 20 points or more under the Impairment Tables and has a continuing inability to work.

The Impairment Tables referred to in the Act are found at Schedule 1B. Table 5.2 of Schedule 1B is referrable to the thoraco-lumbar spine whereas Table20 is a miscellaneous category including amongst other incapacities, chronic pain. Paragraph 8of the Introduction to Schedule 1B states:

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.

On 24 August 2005 Rocarro’s DSP was cancelled. Rocarro submitted that as the original grant of DSP was based on an assessment of incapacity under Table 20 of Schedule 1B (the miscellaneous category), any decision to cancel that pension could only be made having regard to Table 20.

Findings

The Tribunal did not regard the Secretary as being in any way bound to continue to assess the Applicant’s degree of incapacity under Table 20.

The duty of the Department is to administer the Social Security Acts and therefore it may assess or reassess a social security applicant or recipient under whichever impairment Table is most appropriate at the time of assessment.

It was Rocarro’s evidence(corroborated by his wife) that in 1999 he was injured while carrying out his work as a gravedigger at Bondi Cemetery. He had been employed as a gravedigger for 20 years but his employment was terminated while he was still absent from work on Workers’ Compensation payments. He had not worked since. His activities were severely reduced compared to his pre-accident activities. He had maintained a garden growing flowers and vegetables; he would go rock fishing and enjoyed dancing. He did none of these activities now.

Rocarro never held a driver’s licence but he was able to catch public transport. He could undertake shopping with his wife but groceries were home delivered. He could walk approximately200 metres before he had to stop, and he took his dog for a walk every evening. During this time he would stop and sit as required. Using buses caused back pain due to jolting. He watched TV but sat on the floor with his legs stretched out in front of him. He could sit for one to one and half hours but moved position. According to Mrs Roccaro the walk home from the shops took 20 minutes to half an hour with stops as required. He could still do some work in the garden. His treating GP referred to him suffering chronic back pain.

A number of medical reports were in evidence. The Tribunal observed that the only medical opinion upon which it was prepared to rely was that of Dr Matalani who was experienced in assessments under Schedule 1B. He assessed the Applicant as having an impairment rating of 10 under Table 5.2 which was the more specific Table. The Tribunal noted Paragraph 9 of Introduction to Schedule 1B which states:

Always use a Table specific to the functional impairment being rated unless the instructions in a section specify otherwise. The system-specific Tables provide appropriate criteria with which to rate a disorder. The procedure is to identify the loss of function, refer to the appropriate system Table and identify the correct rating...

The Tribunal observed that chronic pain was referred to in various medical reports but given Rocarro’s evidence, it did not accept that he had such a degree of chronic entrenched pain that Table 20 should be used in preference to the specific table for spinal function.

Decision

Rocarro did not meet the threshold requirement of 20 points under the Impairment Tables. The decision to cancel his DSP was affirmed.

[I.T.]