Birchall; Department of Family and Community Services
[2000] AATA 703
•17 August 2000
DECISION AND REASONS FOR DECISION [2000] AATA 703
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1999/1058
GENERAL ADMINISTRATIVE DIVISION )
Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Applicant
And BARRY BIRCHALL
Respondent
DECISION
Tribunal Miss WJF Purcell (Senior Member)
Date17 August 2000
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
(Sgd) WJF Purcell
Senior Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Paget's disease, ischaemic heart disease – respondent not present at hearing – findings of SSAT accepted.
Social Security Act 1991 – s 94
REASONS FOR DECISION
27 July 2000 Miss WJF Purcell (Senior Member)
This is an application for review of a decision of the Social Security Appeals Tribunal (SSAT) of 19 August 1999, which set aside the decision of an Authorised Review Officer of 3 March 1999, and decided that the respondent was eligible for payment of Disability Support Pension (DSP).
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), together with the exhibits tendered by the parties. Departmental advocate Mr Rick McQuinlan represented the applicant (the Department). The respondent who resides in Northern Queensland had advised the Tribunal that he would not be attending the Hearing in Brisbane, and would await advice of the result of the Hearing. He declined the Tribunal's invitation to participate in the Hearing by way of telephone link up.
The respondent, who is 56 years of age lodged a claim for DSP on 28 October 1998. He listed his disabilities as severe Paget's disease of the right leg, blackouts, a stroke (10 days ago), and heart problems, specifically ischaemic heart disease. At T4/61 the respondent indicated that he had not worked in the last 5 years and that he did not wish assistance in finding a job. Dr Kerrisk, the respondent's treating General Practitioner, reported on 28 October 1998, that the respondent suffered from Paget's disease of the right knee, and that its date of onset was 26 April 1998. [T5/65] On the following page Dr Kerrisk indicated that the applicant's condition was long term, ie likely to persist for at least two years, and that he would be unlikely to return to work for more than two years, including his usual job as a Naturopath.
The respondent resides in North Queensland, and in accordance with Departmental practice he was referred to the Blue Nurses/Division of Aged Care and Domiciliary Services (the Blue Nurses). The Blue Nurses are the medical assessment service provider to the Department in North Queensland. The Blue Nurses arranged for the respondent to be examined by Dr WJ Laister, orthopaedic surgeon, who reported on 9 December 1998 that he had examined the respondent that day. His report reads, in part as follows:
" I saw X-rays of his right tibia and confirm he has Paget's disease of the upper end of the tibia, extending down to the lower third. The changes are quite typical with enlargement and sharpening of the subcutaneous border. The joint space in his right knee is well preserved and there's no sign of osteoarthritis. There is no sign of Paget's changes in the skull X-ray.
He states he feels tired all the time and I told him this might be due to the Endone.
Clinically, his skull is not clinically enlarged. He has a good range of movement in his cervical spine. There's a full range of movement in his shoulders. Some discomfort is complained of on passive manipulation of his right shoulder though he has a good range of movement here. There's no enlargement of the bones of his upper limb on palpation.
He stands with slightly increased thoracic curve. He has a full range of movement in is lumbar spine. There's free lateral bending and extension and flexion and normal lumbar unroll. There's no spinal tenderness. His iliac crests do not appear enlarged. He has mobile hips. He tends to stand with his right knee flexed. There are visible and palpable Pagetoid changes in the upper end of his right tibial. There's a full range of flexion of his right knee joint with a very slight flexion deformity, which can almost be completely overcome. There is no effusion. All ligaments are quite stable and the knee feels quite stable. There are no clinical signs of instability of his right knee. He has normal feet. All reflexes are normal in his lower limbs though he said eliciting his right ankle reflex caused pain, presumably from the Paget's.
Conclusion – Mr Birchall said he was not interested in getting a job. Certainly the Paget's disease of his right upper tibia would not prevent him from working as a Naturopath, which he has done previously.
He is quite content to live off the Government." [T11/75]The Blue Nurses, on 16 December 1998, assigned a nil impairment rating for the two conditions; the details of the assessment appear at T12/87.
"Mr Birchall has:
1.Pagets disease – this has very limited effect on his mobility - nil points table 4.
2.Transient Ischaemic attack – nil points table 21.
Dr Laister 9/12/98 states "Mr Birchall said he was not interested in getting a job. Certainly the Pagets disease of his right upper tibia would not prevent him from working as a naturopath, which he has done previously."
I agree with Dr Laister this man appears to be maximising his symptoms and is not work motivated. This is in disagreement with TDR who states Mr Birchall cant work for next two years."
On 20 December 1998 the Commonwealth Medical Officer, Mr LM Cahill, confirmed the assessment based on the information provided to him, and not on a physical assessment of the respondent.
On 3 January 1999, the respondent's treating General Practitioner Dr Kerrisk provided a further report in similar terms to his earlier report, and stated that as a result of the Paget's disease the respondent suffered "pain, limitation of movement chronic fatigue." [T13/90] On 11 January 1999 a delegate decided to reject the respondent's claim. On 29 January 1999 the respondent requested a review of the decision and provided some further medical reports including two reports from Dr B Low, orthopaedic surgeon. The first, a handwritten note dated 2 February 1999 reads: "This man should have an invalid pension. He has Paget's disease and cannot work". [T19/99] The second is a Centrelink printed form, "Treating Doctor's Report", which refers to the respondent's Paget's disease, states that the respondent cannot work but provides no further written detail as to the nature of the condition. [T20/101-4]
On 3 March 1999 the Authorised Review Officer affirmed the decision, and the respondent applied for further review. He provided a medical report from Dr J Yarker, consultant physician, at Cairns District Health Service endochrine outpatient clinic. This report to the respondant's treating general practitioner addresses the question of assessment and ongoing treatment but expresses no opinion as to the respondent's impairment rating under the Tables or his capacity for work. The report reads in part as follows:
"Thank you for asking us to see Barry Birchall for assessment of Paget's disease.
This 55 year-old man was diagnosed with Paget's disease in 1998 with symptoms beginning in his right knee. His pains have increased and he now describes pain about his right knee and lumbar spine. He also has a sister with Paget's disease.
…
Mr Barry's other history is of hypertension, for which he has received no treatment in recent times and past TIAs and a stroke. There is currently no ongoing therapy. This man has been a non-smoker for 30 years. His only medications are analgesics including Endone for pain.
Examination here finds a 76.6 kg man, blood pressure of 200/100 lying. There are no carotid or other vascular bruits. Heart sounds are dual without a third sound. There are no signs of cardiac decompensation. Chest auscultation finds reduced breath sounds throughout both lungs but no crackles or wheeze. The right knee is tender, as is the upper right tibia. This area has increased warmth and swelling. There is also deformity of the medial left tibia and there is some increased heat in this area.
Previously, Mr Birchall was given Fosamax for the management of Paget's disease. After two doses, he describes increasing pain, collapse and being unable to get off the floor for 13 days. He is reluctant to try this agent again.
I have discussed therapy for Paget's with him, suggesting that it would be worthwhile trying a bisphosphonate, possibly intravenous Pamidronate in hospital for management of Paget's disease. I have also discussed Calcitriol and the likely side-effects of that therapy.
Mr Birchall is reluctant to undertake a nuclear medicine scan.
He wishes to think about this and so I have suggested he sees his GP for management of hypertension. We have asked him to return to clinics in one month." [T36/122-3]On 4 August 1999 the SSAT set aside the determination and decided that the respondent was qualified for DSP as he satisfied Section 94(1)(a), (b) and (c) of the Act which 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;
(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system…"
"Continuing inability to work" is defined in Section 94(2) of the Act as follows:
"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 unlikely (because of the impairment) to enable the person to do any work within the next 2 years."
In the course of its Reasons for Decision the SSAT stated:
"14. Mr Birchall told the Tribunal that he suffers from multiple symptoms, which the Tribunal for clarity categorized as broadly referring to local effects of Paget's Disease of the leg, symptoms which may or may not refer to the local effects of Paget's Disease in other sites, to his neurological state, and more general somatic and psychological symptoms.
15. Mr Birchall experiences chronic pain in his right shin and knee, and to a lesser degree in his left knee as well, and estimates that this is present at least 50% of the time, with intermittent acute episodes of greater severity, which last for several days at a time. The pain makes it difficult for him to walk and sitting for any length of time makes the pain worse. He can walk for only a few hundred yards on even ground before having to stop because of pain, uses a walking stick, and has increased trouble on uneven ground.
16. Mr Birchall also experiences frequent, severe pain in his head, which he describes as an aching in the bones. This is associated with swelling of his gum on the left side, an inability to see out of his left eye, and a runny nose. These come as discrete episodes, that last, with considerable severity, for days or weeks at a time, and during these episodes he is largely incapacitated by pain.
17.Mr Birchall also described to the Tribunal episodes of changed consciousness. One episode, which he described as "a stroke", was an occasion when he found himself sitting paralyzed and mute, although able to maintain his sitting posture. On this occasion his feet and hands became numb. Although Mr Birchall did not lose consciousness during the episode, he does not have a clear memory of it, and he feels that this episode interfered with his capacity to spell when writing. On other occasions, which come without warning, Mr Birchall has episodes which he describes as "blackouts", although in these episodes he appears not to lose consciousness, although he does fall to ground and experience pains in his head that feel like electric shocks. Apart from these acute episodes, Mr Birchall made to the Tribunal several references to difficulty in concentration, memory and in thinking clearly, although he did not elaborate on these.
….
DISCUSSION OF THE EVIDENCE
21.At the hearing, Mr Birchall was adamant that, although he made many references to his state of mind in his evidence, he was making the claim for disability support pension on the grounds of Paget's Disease and transient ischaemic episodes, and that he regarded questions on other matters to be outside the scope of the hearing. The Tribunal did note, however, that Mr Birchall appeared to be having appreciable difficulty both in grasping questions that were put to him and in organizing his thoughts to formulate his answers to questions. In this, the evidence of Mr Birchall presentation to the Tribunal did not seem so much "evasive" (the opinion of Dr Laister) as ill-organized.
22.The Tribunal did not consider that the episodes of disturbances of consciousness, which had been diagnosed as "Transient Ischaemic Episodes" by his treating doctor, had at this time been sufficiently investigated and treated to be assigned an impairment rating.
…
25. Overall, the Tribunal saw Mr Birchall as being manifestly unfitted for employment, and at this time he is also manifestly unfitted to lead an independent life without the considerable help of those with whom he shares accommodation
26. The Tribunal considered the matter of the most appropriate Impairment Table under which to assign an impairment rating, noting that Paget's Disease was included with the endocrine disorders in Table 19, and noting also that Mr Birchall's principal complaints referred to his walking and use of the lower limbs, as well as to pain in other parts of his body as well and disturbances of consciousness. However, it seemed to the Tribunal that, of the symptoms of which Mr Birchall spoke and which he considered to be relevant to his appeal, the matter of pain was predominant. The introduction to the Tables for the Assessment of Work-Related Impairment given in Schedule 1B of the Act state in para 8:
"In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it…. 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…."
The Tribunal therefore decided that Table 20 was the most appropriate Table under which to assign an impairment rating.
FINDING OF FACT
27. The Tribunal found that Mr Birchall suffered from Paget's Disease known to be affecting both Tibias (the right more than the left) and the lumbar spine, and that this results in loss of mobility, stability, balance and coordination such as to cause major interference with walking and everyday activities, and also severe pain with a decreased ability to carry out many everyday activities, and which causes significant interference with ability to perform work-related tasks.
28. The Tribunal also found that Mr Birchall suffered other conditions which had been insufficiently diagnosed, treated and stabilized to be assigned an impairment rating or which were outside the scope of Mr Birchall's claim for disability support pension.
29. The Tribunal found that Mr Birchall was manifestly unfitted for work, by reason of chronic pain and other secondary effects.". [T2/5-8]
The Department concedes now that the appropriate rating for the respondent's Paget's disease is 10 points under Table 19, which reads:
"TABLE 19. ENDOCRINE DISORDERS
The effects of endocrine disorders eg. Diabetes mellitus on other body systems eg. the vascular and visual systems should be assessed from the appropriate tables and added together with values from this table.
Rating criteria
TEN Thyroid disease, Acromegaly, Cushing's disease, Prolactinoma, Diabetes Insipidus, Parathyroid Disease, Paget's disease, Osteoporosis, which is incompletely controlled or treated eg. Symptomatic Paget's disease, osteoporosis or other bone disease with pain not completely controlled by continuous therapy."
Table 20 as far as is relevant, reads:
"Rating Criteria
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 lead 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."
The Department argues that none of the respondent's treating doctors indicated an opinion in relation to the appropriate impairment rating. The Blue Nurses' rating, endorsed by the Commonwealth Medical Officer, is nil points for both conditions. The SSAT decided that the respondent's Paget's disease warranted 20 points under Table 20, on the basis that he suffered chronic entrenched pain. There is not sufficient medical evidence to show that the respondent suffers from chronic entrenched pain affecting his ability to perform everyday activities. It would appear that the SSAT was relying on the respondent's evidence rather than the medical reports before it.
The Department maintains also that in relation to a "continuing inability to work" the SSAT concluded that the respondent was "manifestly unfitted to work, by reason of chronic pain and other secondary effects." The medical opinions are divided on this issue, and the Tribunal should prefer the reports of Dr Laister and the Blue Nurses as these are more comprehensive and detailed, and give a more objective picture of the limitations imposed by the respondent's impairment.
I have examined the whole of the evidence in detail and taken into account the Department's submissions. I did not have the benefit of hearing the respondent's evidence and submissions, and must rely on the documentary evidence. The SSAT found as a fact, that the respondent's Paget's disease resulted in loss of mobility, stability, balance and coordination such as to cause major interference with walking and everyday activities, and with a decreased ability to carry out many everyday activities. The Paget's disease, in the SSAT's view, caused significant interference with the respondent's ability to perform work related tasks. This assessment accords with the views of the respondent's treating doctors Drs Low and Kerrisk but these views are not held by Dr Laister and the Blue Nurses.
The SSAT had the opportunity to see the respondent, and to hear him outline his symptoms and disabilities. It made its findings of fact on the material before it, including the respondent's evidence. There was support in the medical reports provided by the respondent, for the level of symptoms and disabilities outlined by the respondent at that Hearing and recorded by the SSAT in its Reasons for Decision. The SSAT decided that Table 20 was the appropriate table; and in accordance with its findings of fact, a rating of twenty points was assigned. In addition, the SSAT found that the respondent was manifestly unfitted for work, and qualified therefore for DSP. On the whole of the evidence I see no sufficient reason to interfere with the SSAT's findings of fact; and on these facts I consider the respondent is qualified for Disability Support Pension.
For these reasons the Tribunal affirms the decision under review.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member)
Signed: .....................................................................................
AssociateDate/s of Hearing 16 June 2000
Date of Decision 17 August 2000
Applicant Mr R McQuinlan, Departmental Advocate
Respondent No Appearance
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