Abley and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 871

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 871

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0653

GENERAL ADMINISTRATIVE DIVISION		)
Re		WILLIAM ABLEY

Applicant

And SECRETARY, DEPARTMENT OF FAMILY, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date8 December 2011

PlaceMelbourne

Decision The Tribunal affirms the decision under review. 

....................[sgd]..........................

Senior Member

SOCIAL SECURITY – disability support pension – lumbar spine condition –­- whether the condition is a diagnosed condition that has been investigated, treated and stabilised, and is likely to continue for two years

Administrative Appeals Tribunal Act 1975 s 34J
Social Security Act 1991 s 94(1)(a), (b), (c)

REASONS FOR DECISION

8 December 2011  G.D. Friedman, Senior Member

1.      On 24 June 2010 William Abley lodged a claim for disability support pension (DSP) with Centrelink in respect of his lumbar spine condition.  On 12 August 2010 a Centrelink officer refused the claim and an authorised review officer affirmed the decision.  On 15 February 2011 the Social Security Appeals Tribunal affirmed the decision, and Mr Abley seeks a review of that decision by the Tribunal.

2. Under s 34J of the Administrative Appeals Tribunal Act 1975 and with the consent of the parties the Tribunal decided to review the decision by considering the material lodged by the parties and without holding a hearing.

LEGISLATIVE BACKGROUND

3. The qualification provisions for DSP are found within s 94(1) of the Social Security Act 1991 (the Act).  The essential elements are:

(a)the person has a physical, intellectual or psychiatric impairment (s 94(1)(a));

(b)the person’s impairment attracts a rating of 20 points or more under the Impairment Tables (s 94(1)(b));

The Impairment Tables are contained in Schedule 1B. The Introduction of the Impairment Tables provides guidance on when an impairment rating can be assigned:

…

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.  The first step is thus to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

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.

(c)the person has a continuing inability to work (s 94(1)(c)).

ISSUES

4. There was no dispute that Mr Abley has a physical impairment relating to his spinal injury and satisfies s 94(1)(a) of the Act. The issues before the Tribunal are:

·Does Mr Abley have a fully diagnosed condition that has been investigated, treated and stabilised, is likely to continue for at least two years, and rates at least 20 points on the Impairment Tables set out in Schedule 1B of the Act in the qualifying period (at the date of claim or within 13 weeks from that date)?  If so:

·Does Mr Abley have a continuing inability to work because of the impairment, in that:

othe impairment is of itself sufficient to prevent him from doing any work within the next two years, being work for 15 hours per week; and

othe impairment is of itself sufficient to prevent him from undertaking a training activity during the next 2 years; or, if the impairment does not prevent him from undertaking training activity - such an activity is unlikely to enable him to do any work independently of a program of support within the next two years?

HAS MR ABLEY’S CONDITION BEEN FULLY DIAGNOSED, INVESTIGATED, TREATED AND STABILISED?

5.      In documents lodged with the Tribunal Mr Abley stated that his back condition began in November 2008 as a result of an injury and became severe in February 2009.  He said that he can sit for only 15 to 20 minutes at a time.  He explained that he underwent spinal laminectomy and discectomy surgery in December 2010, and that his back movements are restricted and he cannot work.

6.      The medical reports available to the Tribunal indicate a protrusion of an intervertebral disc. The radiological reports are a CT scan on 3 March 2009 which noted the transitional state of S1 and indicated a prolapse at the L5/S1 level affecting both sides but marginally worse on the left, and a broad bulge at the level above.  An MRI scan on 7 July 2009 reported a broad-based L4/5 disc protrusion causing marked left more than right L5 lateral recess stenosis.

7.      In a letter dated 9 November 2009 Mr A Drnda, consultant neurosurgeon, recommended that if there was a continuation of Mr Abley’s symptoms of left leg pain radiating from the lumbar spine, he should have another MRI scan and if anything were found he should explore treatment options.

8.      In a report dated 21 August 2010 Dr E Vivares, Mr Abley’s general practitioner since 9 May 2010, reported a disc protrusion at L4/5 that is being treated with medication and radiofrequency treatment.  Dr Vivares stated that the impact of the condition on Mr Abley’s ability to function was expected to persist for more than 24 months and that within the next two years the effect of the condition on Mr Abley’s ability to function was uncertain as Mr Abley was under specialist treatment.

9.      On 23 August 2010 Dr M Stobie, Mr Abley’s general practitioner since 2009, provided a medical certificate reporting Mr Abley suffering from low back pain of a temporary nature with the date of onset being 1 February 2009.  He noted that treatment included physiotherapy, swimming and medication.   

10.     In a Job Capacity Report dated 29 September 2010 a Centrelink social worker/physiologist found that the disc protrusion at L4/5 was permanent and was fully diagnosed, treated and stabilised.  The assessor recommended an impairment rating of 10 points.

11.     A discharge summary from The Royal Melbourne Hospital confirmed that Mr Abley had undergone a L4/5 laminectomy and discectomy on 23 December 2010 because Mr Abley was experiencing acute urinary retention associated with abdominal pain, nausea and vomiting on the background of longstanding lower back pain radiating down the left leg with paraesthesia in the toes.  An MRI on 23 December 2010 demonstrated a large L4/5 lumbar disc protrusion.

12.     On 21 March 2011 Dr Vivares certified that Mr Abley was fit to resume work for three hours per day for three days per week.  In a medical certificate dated 8 April 2011 Dr Vivares stated that in relation to post spinal operation the symptoms of low back pain were likely to show considerable improvement within two years.      

13.     In a Centrelink Functional Capacity Evaluation Report dated 20 April 2011 Ms K Grech, an accredited exercise physiologist, stated that Mr Abley reported constant lumbar spine pain.  She considered that his L4/5 protrusion was fully diagnosed, treated and stabilised, and allocated a rating of 10 points under the impairment scale.

14.     In a report dated 20 June 2011 Dr N Pastor, occupational physician, referred to the discectomy surgery that was performed on 23 December 2010 and stated that in his opinion Mr Abley’s back condition could not be considered to be fully treated or stabilised during the relevant period from 24 June 2010 to 23 September 2010.  Dr Pastor stated further that Mr Abley is having reasonable treatment, with further improvement expected with conditioning and an increase in activity.    

15.     In considering all the material the Tribunal acknowledges that Mr Abley’s lumbar spine injury has caused him severe pain and discomfort and has affected his ability to perform basic functions, although the surgery carried out in December 2010 has been beneficial.  However the Tribunal accepts the evidence from the treating general practitioner Dr Vivares that during the relevant period the effect of the disc protrusion at L4/5 on Mr Abley’s ability to function was uncertain as he was under specialist treatment; and from the other treating general practitioner Dr Stobie that during the relevant period the low back pain was of a temporary nature.  This is consistent with the evidence from Dr Pastor.

16.     For these reasons the Tribunal finds that at the date of claim or within 13 weeks after that date Mr Abley’s condition was not permanent in that it was not a fully documented, diagnosed condition which has been investigated, treated and stabilised.  Therefore the condition could not be given a rating under the Impairment Tables, so Mr Abley does not satisfy s 94(1)(b) of the Act and cannot meet the criteria in s 94 of the Act and is not eligible for DSP.

DECISION

17.     The Tribunal affirms the decision under review.

I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

………………………[sgd]…………………………………..

Michael Heffernan

Associate

Date of hearing:  Not applicable: decision on the papers
Date of decision:  8 December 2011
Advocate for applicant:               Self-represented
Advocate for respondent:            Ms A Bramley, Centrelink