Banham and Department of Family and Community Services
[2001] AATA 887
•26 October 2001
DECISION AND REASONS FOR DECISION [2001] AATA 887
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1174
GENERAL ADMINISTRATIVE DIVISION )
Re CHRISTOPHER BANHAM
Applicant
And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr J D Campbell, Member
Date26 October 2001
PlaceSydney
Decision The Tribunal determines that the decision under review be affirmed.
[Sgd] Dr J D Campbell
Member
CATCHWORDS
SOCIAL SECURITY - disability pension - assessment of impairment - continuing Inability to work.
Social Security Act 1991, ss 94, 100
REASONS FOR DECISION
Dr J D Campbell
In this matter Mr Christopher Banham ("the Applicant") seeks a review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 26 June 2000 which affirmed the decision of a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 31 August 1999 which found that the Applicant was not qualified for disability support pension ("DSP").
A hearing was held in Kempsey at which the self-represented Applicant, assisted by his partner, Ms Hewitt, presented oral evidence to the Tribunal. The Respondent was represented by Ms Schuster, an advocate from the Advocacy and Administrative Law Team at Centrelink.
The following material was placed into evidence before the Tribunal:
Exhibit No Description Date
T1-T69 pp 1-289 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
R1 Respondent's Statement of Facts and Contentions, as amended 5 March 2001 6 March 2001
issues
The relevant issues in this matter are:
(1) whether the Applicant has a physical, intellectual or psychiatric impairment and that impairment is 20 points or more under the impairment tables in schedule 1B of the Social Security Act 1991; and
(2) if so, whether or not the Applicant has a continuing inability to work because of the impairment because:
· the impairment of itself prevents the Applicant from doing any work for at least 30 hours per week at award wages within the next two years; and either
· the impairment of itself is sufficient to prevent the Applicant from undertaking educational or vocational training or on the job training during the next two years; or
· if the impairment does not prevent the Applicant from undertaking educational or vocational training or on the job training, such training is unlikely (because of the impairment) to enable the Applicant to do any work for at least 30 hours per week at award wages within the next two years.
legislation
The relevant legislation is the Social Security Act 1991 ("the Act") and in particular subsections 94(1),(2),(3),(4),(5) and 100 (3) and tables for the assessment of work-related impairment for DSP ("Schedule 1B Impairment Tables").
backgroundThe Applicant lodged a claim for DSP with the Respondent on 31 May 1999 in which he listed his disabilities as L5/S1 disc prolapse suggesting Pagets disease, L4/5 broad based disc bulging indenting the thecal sac and L5/S1 disc prolapse compressing left lateral recess compromising the origin of the left S1 nerve root. He stated that this caused low back pain and commenced on 31 August 1992. The disabilities were listed as making it difficult for the Applicant to sit, stand, walk or drive a car and as causing him difficulty all the time with sleeping, interacting with others, caring for himself and often with concentrating and attending work or other appointments (T4).
An earlier claim for DSP had been lodged by the Applicant on 6 March 1993 (T7), together with some x-rays, a report of his lumbosacral spine and sacro-iliac joints (T5) and a CT scan report of his lumbar spine dated 19 September 1992 (T6). A medical assessment report by Dr Jeffery dated 33 March 1993, concluded that the Applicant was:
"…suffering from left sciatica which is improving. He is currently unfit to drive clutched trucks but would be fit for lighter type of work. He is a genuine man and made no attempt to exaggerate his symptoms. He wishes to work. His workers compensation has been stopped and he has seen a Solicitor. He is in my opinion not suitable for DSP but should be granted sickness allowance for up to six months so that he can continue physiotherapy and exercise." (T11, p94).
The Applicant's claim for DSP was rejected on 29 March 1993 (T12, p96). Sickness allowance reviews were conducted on 31 July 1995 (T17), 6 November 1995 (T18), 19 February 1996 (T20). On 29 February 1996, Dr Moss, an Australian Government Health Service Medical Officer found at examination that the Applicant had a minor restriction of the average range of movement of the thoraco lumbar spine and concluded that the Applicant "is fit for full time work in light labouring or other fields in the work force where duties are such not to include lifting, with bending heavy weights and constant standing or constant sitting" (T21 p131). Following a review by Dr So on 24 March 1996, the Applicant's sickness allowance was cancelled as it was considered that he was fit to do light to moderate work, with no heavy lifting, bending or prolonged standing or sitting (T22 p139).
In a treating doctors report dated 15 July 1997, Dr Stenback, a general practitioner, described the Applicant's condition as chronic low back pain following an accident at work on 31 August 1992 and stated that this condition restricted the Applicant's ability to work in that he was unable to bend, lift heavy objects, or sit or stand for any length of time. Dr Stenback considered that the Applicant was unfit for either full-time or part-time work and would not likely to be able to work 30 hours per week for more than two years (T31).
A CT scan of the Applicant's lumbar spine was the subject of a report by Dr Herbert, a consultant radiologist, on 4 November 1997. The report stated:
"… Studies were done from the mid body of L3 to S1.
There is a mild annulus bulge centrally and to the left side of L5 near the inferior end of L5 on Images 9.
There is a spinal canal stenosis present at each of these levels in the lumbar spine mainly due to short pedicules.
At L4-5 there is no disc herniation demonstrated.
At L3 –4 there is no disc herniation…" (T32)Further reviews of the Applicant's condition by Dr Stenback occurred on 12 January 1998 (improving but still unfit for work for more than two years (T34)) and 20 July 1998 (stable, awaiting consultation with Professor Ghabrial, unfit for work for more than two years (T38)).
A MRI scan of the Applicant's lumbar spine was performed on 18 July 1998 with the consultant radiologists, Drs Zacs and Bear reporting on 23 July 1998.
" MRI OF THE LUMBAR SPINE"
T1 and T2 sequences of the lumbar spine and axial t1 sequences from L2 to S1 have been performed.
The conus is situated normally and shows normal signal. There is preservation of the disc height and normal high signal in the lower thoracic and upper lumbar discs. There is some loss of the normal high signal of the L5/S1 disc suggesting Paget's disease.
At L2/3, the disc appears normal and nerve root exits are not compromised.
At L3/4 level, the disc appears normal and the nerve root exits are not compromised. The spine canal is adequate.
At L4/5 level, there is a broadbased minor disc bulging indenting he thecal sac anteriorly however not compromising the nerve root exits. The spinal sac canal is adequate.
At the L5/s1, there is a postero-lateral disc prolapse on the left compressing the left lateral recess and compromising the origin if the S1 nerve root. There is slight displacement of the thecal sac to the right.
IMPRESSION:
At L5/S1, there is a postero-lateral disc prolapse compromising the origin of the left S1 nerve root slightly displacing the thecal sac to the right." (T35, p170)
In a further report dated 14 November 1998, Dr Moss, an Australian Government Health Services medical officer who had had previously examined the Applicant in February 1996, as a consequence of his further examination of the Applicant on 14 November 1998, reported:
"… This man has had several incidents producing low back pain when he worked as a truck driver. Despite possible disc herniation at level L5/S1 has not changed since previous examination.
This examiner still considers the young man is not fit for heavy truck driving and loading work but should be considered fir light labouring or other workforce jobs where duties do not include lifting, with bending, heavy weights nor constant sitting or constant standing..." (T39, p189)
A further report on 26 November 1998 by Dr McBurnie, a Health Services medical officer, found the Applicant to have 10 per cent impairment rating as a consequence of his loss of one quarter of the normal range of movement of his thoraco lumbar spine, pursuant to Table 5.2 of the Schedule 1B Impairment Tables (T42).
In a treating doctor's report dated 20 June 1999, Dr Stenback described the Applicant's condition as one of spinal canal stenosis which was long term, constant and fluctuating and that the Applicant would be unable to do any work for the next two years or more. Further, in relation to his work ability, the Applicant would:
be absent from work for four or more days per month;
be unable to work full days because of endurance problems;
have substantially reduced dexterity;
be unable to lift, carry and move objects; and
his mobility would be constrained in some situations. (T48)
On 21 July 1999, in an approved medical practitioner's report, Dr Ferinhough reported that the Applicant had a loss of one quarter range of movement of the thoraco lumbar spine and made the following observations:
"Clinical examination was unremarkable except for caution in all activities involving his back. He had a good range of movement today which he acknowledges is due to the fact that at this point in times he is not experiencing a great deal of problems. The history, expert opinion and MRI details certainly support a severe disabling back pain sufficient to render him unemployable." (T50)
In a medical assessment report dated 6 August 1999, Dr Lim, a Health Services Australia medical practitioner, considered that the Applicant had a ten point impairment, pursuant to Table 5.2 of the Schedule 1B Impairment Tables, arising form loss of one quarter of normal range of movement of thoraco lumbar spine and left-sided sciatica. Dr Lim considered that the Applicant would be fit for light work within two years (T51).
In a further treating doctors report dated 24 August 1999, Dr Stenback repeated his earlier description of the Applicant's condition and that the Applicant was unlikely to work for more than two years and that his condition remained long term and stable (T53).
In a medical report dated 3 September 1999, Dr McDowell, a consultant neurosurgeon, summarised his opinion in the following terms:
"In Summary therefore, Christopher has chronic discogenic pain with occasional left S1 radiculopathy. At present I do not feel surgery is indicated. I have advised him against returning to any form of work, which chronically stress his lower back. I have suggested that he explore other vocational possibilities." (T56)
In a further whole pension assessment, Dr McGinty, a senior medical adviser with Health Services Australia came to the following opinion in a report dated 6 January 2000 (as a consequence of a file review):
"The report from Dr McDowell is most comprehensive and post dates the examination of Mr Banham by AMP Dr Fernihough (21/07/99)…Mr Banham is known to have quite good function if he restricts his activities to protect his back from stress. This is the advice of the most recent specialist examination. Based on this advice and the examination findings I am of the opinion the original allocation of 10 impairment points Table 5.2 is correct.
In essence this means that Mr Banham is permanently unfit for his usual work as a truck driver or ferry crewman. He is permanently unfit for labouring work..." (T60)As a consequence, the Applicant's claim for DSP was refused by the Respondent in late August 1999, by the authorised review officer on 14 February 2000 (T65) and by the SSAT on 26 June 2000 (T3).
applicant's evidenceThe Applicant stated that he was born on 4 October 1965. He was educated to half way through year 10, leaving school because of a serious motorbike accident involving his right heel, which resulted in hospitalisation for three months and a further three months on crutches. Following his recovery, the Applicant spent six weeks panel beating before working as a labourer in the Windsor area for three years. The Applicant next worked as an off-sider on truck deliveries for 12 months and thereafter over the next three years as a truck driver for various employees. In 1992 he injured his back when pulling sheets from a truck, and spent the next two years on sickness benefits, before securing a lump sum payout in 1994.
The Applicant stated that he next worked as a ferry master and when working at Berowra in 1995, he again injured his back lifting a chain. He has not worked since then, moving in 1996 to live with his mother in Kempsey. In the same year, he spent three days in Kempsey Hospital with severe low back pain and radiation down his left leg to his heel. He lived with his mother for five years, moving out in October 2000 on account of his mother's intention to sell the house.
The Applicant described his daily routine and other activities to the Tribunal in the following terms:
he is not a good sleeper, arising from bed around 07:45 hours at which time he has a cup of tea, but no breakfast;
he then feeds the chooks, cleaning the sheds as required;
he next walks down to the end of the driveway (about 300 yards), 'loosens up' and walks back, where he sits and reads (mainly fiction);
he has a small lunch, does not watch much television, waters plot plants and does some more walking (about 2 kilometres a day);
he is able to do the washing and hang it out, able to do cooking and most household duties, although he has difficulty with washing up, vacuuming, taking pegs off the line and making beds;
he experiences difficulty with stairs, both up and down and with slopes;
he enjoys fishing, particularly beach fishing, but is less able to do it these days; and
he drives a manual Holden Rodeo utility, but his partner drives it to work in Port Macquarie from where they are currently living, some 20 kilometres outside Kempsey.
In describing his condition, the Applicant made the following points:
he suffers from pain in the lower back, left lumbar region, with episodic sciatic pain to left buttock and left leg;
he has good days and bad days;
he experiences cramps in both legs at night, and he and his partner sleep in separate beds because of the cramps and his low back pain;
he bends at the knees when picking things up from the floor;
his medication includes 2 to 6 panadeine forte tablets a day, one Valium tablet each night and two temazepam tablets nightly;
he has a poor appetite, feels frustrated and depressed and can be moody with his partner;
he has a deformity of his right heel following his first motorcycle accident; and
he has not seen his doctor for three months.
The Applicant indicated that he would like to work, but requires an activity which recognises the difficulties associated with his back condition. He would like to return to work and undertake computer courses, a request he has made in the past, but has never been arranged.
submissions
the applicantThe Applicant contends that his current low back condition is progressively worsening, and that it should be assessed at 20 points. He continues to have a continuing inability to work because of his low back disability.
the respondentThe Respondent contends that the Applicant's low back disability has been correctly assessed at 10 points under the Schedule 1B Impairment Tables and that apart from that of his attending general practitioner, the weight of medical evidence supports the contention that the Applicant does not have a continuing inability to work.
consideration and findingsThe Tribunal has examined the longitudinal medical history of the Applicant's low back condition as outlined within the various medical assessments, and the history and details of current symptomatology as described by the Applicant. From this the Tribunal concludes that the Applicant does have:
(a) an L5/S1 disc lesion with pain in the lower back and left buttock, with episodic radiation down the left leg to the left knee and left heel. The pain eases in intensity, with some good and some bad days, requires analgesic medication and sedation at night. The low back pain is accentuated with various movements (bending, lifting, carrying) and with activities (prolonged walking, sitting, standing, driving);
(c) a one quarter loss of the normal range of movement of his thoraco lumbar spine; and
(d) an inability to resume work as a truck driver.
statutory framework
Section 94 of the Act provides for the following:
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;…
(d) the person has turned 16; and
(e) the person either:(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (C) the person:(A) is not an Australia resident; and
(B) is a dependent child of an Australian resident;and the person becomes an Australian resident while a dependent child of an Australia resident.
…
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 within the next 2 years; and
(b) either:
(i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training- such training is likely (because of the impairment) to enable the person to do any work within the next 2 years.94. (3) 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 educational or vocational training or on-the-job training; or
(b)if subsection (4) does not apply to the person- the availability to the person of work in the person's locally accessible labour market.
94. (4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.
94. (5) In this section:
"educational or vocational training" does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;
'on-the-job training' does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;
"work" means work:
(a) that is for at least 30 hours per week at award wages or above; and(b)that exists in Australia, even if not within the person's locally accessible labour market."
The Schedule 1B Impairment Tables provide, as relevant:
"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 a 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
NIL Normal or nearly normal range of movement.
FIVE Loss of one-quarter of normal range of movement.TENLoss 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 normal range of movements.TWENTYLoss of half 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.FORTY Ankylosis in an unfavourable position, or unstable joint.
TABLE 20. MISCELLANEOUS-MALIGNANCY, HYPERTENTION, HIV INFECTION, MORBID OBESITY (IE BMI>40), HEART/LIVER/KIDNEY TRANSPLANTS, MISELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN
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 use of more than one Table, must be avoided.
Rating Criteria
NIL Controlled hypertension
Malignancy in remission with a good to fair prognosisMinor symptoms which are easily tolerated and have no appreciable effect on ability to work.
TENMild 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 a minimal effect/impact on work attendance.
Hypertension that is difficult to control despite intensive therapy but without end-organ damage
Potentially life-threatening condition which is currently not interfering with daily activities eg. Malignancy in remission with a poor prognosis
Heart/Liver/Kidney transplants – well controlled (well functioning) with only mild systemic symptoms.FIFTEENModerate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have a mild to moderate impact on ability to perform or persist with work-related taks and/or attend work. Full-time work would still be possible.
Potentially life-threatening condition which is currently interfering with daily activities but self-care in unaffected.
TWENTYMore 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 leas 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."
In addressing subsection 94(1)(a) of the Act, the Tribunal finds that the Applicant satisfies this subsection in that he has a physical impairment, namely a L5/S1 disc legion with canal stenosis.
In considering the Applicant's impairment the Tribunal finds that the Applicant has a ten point rating for the following reasons:
(a) In considering table 5.2 and addressing the earlier findings of fact of a loss of a quarter of normal range of movement of the thoraco lumbar sacral spine, as well as back pain or referred pain with many physical activities and with prolonged standing, sitting and driving, the Tribunal concludes that a 10 point impairment rating is the most appropriate. The Tribunal would also comment that the quarter loss of normal range of movement was a consistent finding in many medical examinations nominated earlier in the decision; and
(b) While consideration has been given to assessing the Applicant under Table 20, the Tribunal considers that it is inappropriate to do so in the circumstances of this matter, as it has been outlined in all the clinical reports that the disability is both specific and the level of symptomatology of the pain is variable in terms of the level of pain and the radiation of pain. Even if a rating was to be contemplated under this Table, a rating similar to that given under Table 5.2 would be a considered outcome in view of the range of activities undertaken and the variability of pain symptomatology experienced by the Applicant.
As a consequence of the Tribunal's findings, the Applicant does not satisfy section 94(1)(b) of the Act.
In addressing the issue of whether the Applicant has a continuing inability to work, the Tribunal again notes that essentially it is only Dr Stenbock who concludes that the Applicant is unable to do any work for more than two years. The Tribunal notes the opinions of Drs Moss, McBurnie, Lim, McGinty and the consultant neurosurgeon, Dr McDowell and that of Dr Fernihough, whose recommendation appears to be derived from a consideration of the Applicant's clinical history, in that at the time of giving his opinion, a clinical examination was essentially normal.
The Tribunal has already concluded that the Applicant is not fit to resume work as a truck driver or ferry operator within the next two years, but the medical evidence presented in this matter by Drs Moss, McBurnie, Lim, McGinty and McDowell are of such consistency that the Tribunal finds that the Applicant has:
(a) an impairment, which in itself does not prevent the Applicant from returning to some light work activities within the next two years; and
(b) an impairment, which itself does not prevent the Applicant from undertaking educational, vocational or on the job training during the next two years; and
(c) such training is likely, even with the existing impairment to enable him to do work within the next two years.As a consequence of the Tribunals findings, the Tribunal concludes that the Applicant does not satisfy subsection 94(2)(a) and (b) of the Act.
In summary the Tribunal finds that the Applicant does not qualify for disability support pension in relation to his application of 31 May 1999, in that he has failed to satisfy subsection 94(1)(b) and (c)(i) of the Act. The Tribunal would also comment that subsection 100(3) of the Act limits the Tribunal's consideration to events leading up to the application and for three months thereafter, commencing the day after lodgement, with later events and clinical reports only being used in such circumstances where they assist the Tribunal in understanding the clinical impairments during the operational period, outlined above. The Tribunal would also comment that in this matter there appears to be no evidence of any significant attempt to have the Applicant undergo vocational assessment or education or training, with such programs being of importance in a successful rehabilitation of a person of the Applicant's age.
determinationThe Tribunal determines that the decision under review be affirmed.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: R Quinn .....................................................................................
AssociateDate/s of Hearing 24 August 2001
Date of Decision 26 October 2001
Applicant Self-represented
Solicitor for the Respondent Hannah Schuster
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