Bourke and Secretary, Department of Family and Community Services

[2006] AATA 121

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 121

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/190

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ROBYN BOURKE

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal   Senior Member, Mrs Josephine Kelly

Date  25 January 2006

Date of Written Reasons                 14 February 2006

Place  Sydney

Decision The decision under review, that is to refuse Mrs Bourke’s application for the Disability Support Pension, is affirmed.

[sgd]  Senior Member, Mrs Josephine Kelly

CATCHWORDS

SOCIAL SECURITY – disability support pension – impairment tables – impairment rating - whether impairment rating 20 or more points – lower back pain – obesity – depression – whether has continuing inability to work – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) section 94 (1), 94 (2) and 94 (5), Schedule 1B

Social Security (Administration) Act 1999 (Cth) Schedule 2, part 2, clause 4.

WRITTEN REASONS

At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975.

WRITTEN REASONS FOR ORAL DECISION

Senior Member, Mrs Josephine Kelly         

Background

1.      Mrs Bourke, the Applicant, seeks to have a decision set aside which refused her application for disability support pension (“DSP”) which she made on 30 August 2004 (T21). That decision was made by an authorised review officer (“ARO”) on 17 December 2004 (T38), and affirmed a decision made by a Centrelink officer on 14 October 2004 (T26). The ARO’s decision was affirmed on 25 January 2005 by the Social Security Appeals Tribunal (“SSAT”) (T2).

The Issues

2.      The issues before the Tribunal are whether:

·     Mrs Bourke has an impairment of 20 points or more under the Impairment Tables, and

·     Whether she has a continuing inability to work.

The Law

3. The qualification for disability support pension is set out in subsection 94(1) of the Social Security Act 1991. Relevantly,

(a) the person must have physical, intellectual or psychiatric impairment; and

(b)the person's impairment is of 20 points or more under the Impairment Tables; and

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

94(2) provides that:

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.

“Work” is defined in subsection 94(5):

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.

4.      Mr Kenny who appeared at the hearing for the Respondent, the Secretary, Department of Family and Community Services (“the Secretary”), accepted that Mrs Bourke satisfies paragraph (a), but did not concede that she had an impairment of 20 points or more as required by s 94(1)(b) or that the she has a continuing inability to work (s 94(1)(c)(i)). Mr Duri, who had prepared the Statement of Facts and Contentions on behalf of the Secretary, had conceded that Mrs Bourke had an impairment of 20 points under the Impairment Tables in Schedule 1B of the Act. 

5.      The primary decision maker assigned 10 points for the lower back pain (Table 5.2), 0 points for obesity (Table 20) and 0 points for depression under Table 6. The ARO found an impairment of 20 points - 10 for lower back (Table 5.2) and 10 for depression (Table 6).  The SSAT found impairment comprised 20 points under Table 5.2 in respect of her back condition (loss of half normal range of movement and back pain or referred pain); nil points for depression under Table 6 and nil points for obesity under Table 20.

The Evidence

Material not in dispute

6.      Mrs Bourke suffered a motor vehicle accident in 5 June 2001 travelling home from her work at the Kings School, Parramatta. She was a pantry maid working full-time, 8 to 8.5 hours a day. She worked in the school’s dining room clearing off trays, scrubbing floors, wiping down tables and cleaning cooking pots.  She was terminated by the School formally in June 2002 although she did not return to work after the Christmas holidays in 2001. She was paid wages by the insurance company until about June 2004 (T20). The insurance company is still paying medical expenses.   

7.      Mrs Bourke is currently working at the Rotherham Nursing Home 2 days a week for 5.5 hours each day, on Monday and Wednesday.  She works in the laundry standing folding dry clothes, wiping down the folding tables and machines, and delivering the clean clothes in a trolley to the residents. She sits and chats to those residents who are able to, for five minutes or so as she makes her deliveries. Part of her role is to interact with the residents.

Mrs Bourke’s Evidence

8.      Following is a summary of Mrs Bourke’s evidence, including during cross-examination. She said that she worked on restricted duties for six months in 2001 after the accident. The restrictions were no twisting of the spine, no heavy lifting, no pushing or pulling. She started doing 1 hour a day and when she finished working in December 2001 she gave two versions of her work. The first was that it had increased to 3 hours a day and the second was that she was working 6 hours a day, 5 days a week.

9.      She said in her evidence that the insurance company paid her until 5 October 2004 but also that she could not apply for a social security benefit until they stopped paying her. She applied in August 2004. She had received less than her full salary from after Christmas 2002. She was forced to go to work in June 2003 because the insurance company said it would not pay her if she did not find suitable employment.  At first, the work with Rotherham was on call for about 1 day a week for 5.5 hours.  After about 3 months she worked 1 day a week. For the first few weeks she was a bit stiff and sore. After 6 months she was offered 2 days a week which she continues.   She was asked to fill in for another day in Jan/Feb 2004 and got half way through and could not do it any more. She was standing all the time and her back started to stiffen, and she had stiffness in her shoulder, and her right leg started “to go”. She drives to work from Seven Hills to Meadowbank which she says takes 15 to 20 minutes in the morning and about half an hour in the afternoon. She drives an automatic 4 cylinder car. She also drives to her local shopping centre or Blacktown to do her weekly shopping. She travelled to Newcastle as a passenger in a motor vehicle and suffered discomfort. The vehicle stopped at a service centre on the way.

10.     She spends half her time at work preparing clothes for the trolley. She works in the laundry for about an hour before taking the trolley out. Her back compresses and the pain starts after half an hour or 45 minutes and increases. She becomes hunched over before she leaves for her delivery. That’s when she starts taking pain killers. Walking helps a bit to loosen her back but does not make the pain go away.  She had pain while she was sitting being cross-examined but it “is bearable”. Driving is easier than standing in the laundry but if she sits too long she has to get up and move around. While driving home, she feels she needs to get out after 15 minutes.  In the morning she is a little bit stiff but is able to walk around. She has two large dogs but she cannot walk them. She tried to mow her lawn after the accident but “packed it in”. Someone else does it for her now.

11.     She did gym work to strengthen her back after Christmas 2001 for three months and again in 2002 for three months at the suggestion of her GP, Dr Sarian.  “It hurt like hell”. She said that she has been seeing Dr Maniam, orthopaedic specialist since 2002 and he has said that injections would help. He gave her a referral to Westmead in about August or September 2005 for that purpose, but she is waiting for the insurance company to approve the injections. She obtained the 1 November 2005 report from Dr Maniam (Exhibit A1) because Mr Duri for the Secretary asked for more evidence. 

12.     She said she uses a walking stick but did not bring it with her to the hearing.  She lives at Seven Hills and caught the train to the City to attend the hearing. She gets the pain radiating into her right hip and up to her shoulder blades and down to her feet when her right hip “goes”. This has happened since her accident and has got worse.

13.     She was at the Kings School for 16 years.  She started in the laundry folding up boys’ clothes and putting them in crates to go to the boarding houses. 

14.     She first consulted Mr Clark-Saunders, psychologist, about what she described as “family issues” which she later elaborated on to include her heavy drinking.  Later she told him about her back problem and associated insurance and currently social security matters. He recommended to Dr Sarian that she take Zoloft, which she is currently taking. He telephones her twice a week and she sees him once a month at his office or her home.

15.     She says her right leg is swollen, but the HSA nurse “assessor” who saw her on 24 September 2004 said it was normal. She said that she had never seen a doctor from HSA, only an assessor who saw her for 15 minutes and asked her to squat.

16.     She spends time gardening when she can, washing and cleaning. She takes all day to the clean the bathroom. She takes her time doing her housework, doing it in stages. She bought an upright vacuum cleaner but her back still aches when she uses it. She uses an indoor line at waist level or a clothes dryer. She finds it hard to do up her shoe laces and leaves them loose to slip them on.  She said she is going to write to the Department of Housing asking for the bath to be removed because she is worried she might slip as she has to step into it to get into the shower, which is located over the bath. She may get handrails instead. She does not spend much time cooking but has no problems doing it, and does not use the oven very much.   Standing at the sink washing up caused her back and neck to start aching. She likes to move around. She plays games on a computer but gets stiff after sitting for half an hour. She has to meet the Centrelink activity test and applies only for jobs she can do. If she tells them about her injury she will not get the job, as they see her as a liability. She applied for a job at a nursery watering plants 3 hours a day, 3 days a week and went for an interview and heard nothing.

17.     She goes to the club now and then, alone or with friends, for an hour or 1 ½ hours. She plays the poker machines and occasionally bingo. She has had only one alcoholic drink since November 2005. She stopped drinking heavily at the end of January 2004 when she had hit “rock bottom”. Her drinking had increased after the car accident and got worse. She attends the Parramatta Speedway every fortnight between 6.30 and 10.30pm. At the Speedway she spends some time in a semi-trailer and other times standing and watching the races. She has to repeatedly get in and out of the semi-trailer to watch the races.

18.     She served 9 months periodic detention after December 2003 for social security fraud. She was located downstairs as the stairs were too steep for her to climb. She can only climb about 6 steps before her “legs start to go”. She had two jobs during that time on Saturday and Sunday. One was removing cobwebs with a broom, up to a height of about 10 feet, for about half an hour. The other was hosing the garden which she managed because she was not standing in one spot. 

19.     She described the effect of her depression as that she will not open the door, and will sit and cry all the time for no reason. She said that her flying at people for no reason has started again. She used to read the same page of a newspaper or magazine several times because she could not remember what she had read. She reads the local paper and buys a magazine once a week. She described how when she was getting off alcohol, she used to read the births, deaths and marriages section of the newspaper to see that she was not there. She stopped taking Zoloft after 1 year but she had “another downer” and she was told to go back on it. She only takes 25 mg. She has one good week a month. She improved around March 2004 after she reduced her drinking.

20.     She finished school in about Year 9. She did not undertake any course until she did a course and obtained a first-aid certificate in 2002 through the insurance company. She did a refresher course and renewed it last year. 

21.     She saw Dr Philippa Harvey Sutton in August 2004 and obtained a report but she did not provide it to the Tribunal to consider. 

22.     She takes various medications in addition to Zoloft– an anti-inflammatory, and a pain killer. She takes 1 Zoloft in the morning but did not take one before the hearing. She takes 2 pain killers in the morning, 3 in the afternoon and 3 at night. She takes 2 anti-inflammatories, morning and night. She said she takes more pain killers now than 18 months ago. Dr Maniam wants her to have the injections to eliminate the medications.

23.     I note that at the hearing Mrs Bourke did not have a flat affect and she managed to sit still for approximately 3 hours without apparent discomfort. She did have to move however from the Bar Table to the witness chair and back and showed no discomfort doing this.

24.     Mrs Bourke said that her family issues have improved since an event that occurred in November last year. 

25.     She said that she has lost 21 kgs in weight recently since she joined Weight Watchers. That had not improved her back problem.

Evidence from the T-Documents

26.     The following material appears in the T-Documents before the Tribunal.

27.     In a return to work form (T12) dated 13 October 2001, Dr Sarian records that Mrs Bourke is fit to return to normal duties and no extra rest breaks are required however there are some restrictions. These restrictions are on lifting.  She could not lift more than 7kg and she could not do excessive or forceful amounts of bending, pushing, pulling and trunk twisting. The doctor records that she is able to work as a pantry hand with these restrictions.

28.     On 18 March 2003, Mrs Bourke signed a Workcover NSW, Medical Certificate (T14) where Dr Sarian found she “is fit for suitable duties from 14 January 2003 to 14 February 2003.” She was capable of working for 8 hours a day, 5 days a week lifting up to 7kg and avoiding “excessive and forceful use of the spine”.

29.     Mr Clark-Saunders, psychologist, found evidence of severe depression on 2 October 2003 (T16). It was linked to two factors:  “legal reasons and a history of domestic violence”.  He asked Dr Sarian to assess Mrs Bourke for commencement of a suitable anti-depressant regime. 

30.     On 11 March 2004, Mrs Bourke again signed a Workcover NSW, Medical Certificate (T17) in which Dr Sarian stated that she was fit for suitable duties from 11 March 2004 until 11 May 2004, 8 hours/ day 5 days / week, with the same restrictions as set out above. 

31.     Mrs Bourke and Dr Sarian completed another Workcover NSW, Medical Certificate dated 13 August 2004 (T19). It states that she is fit for suitable duties from 11 August 2004 to 11 November 2004 but she is only able to work 5 hours a day for 5 days a week, that is 25 hours. She can lift up to 7kg and is to avoid excessive and forceful use of the spine.

32.     Dr Sarian completed a Treating Doctor’s Report dated 30 August 2004 (T22).  He recorded low back pain caused by L3/4/5 disc protrusion. Her current symptoms were “back pain will be felt if she lifts over 7 kg or does strenuous back usage”. He said that she is “able to sit/stand for 30 minutes before she gets pain”. He also describes her as suffering from gross obesity.  She is 163 cm tall and weighs 131 kg.  He described her back condition as a “chronic condition and with her obesity, it will deteriorate”. 

33.     On 3 September 2004, Mr Clark-Saunders, recorded that “In my professional opinion, Mrs Bourke is unable to return to work on a full time basis. She is traumatised by the suggestion that she can return to full time employment. My professional assessment is based on 10 years experience working as a Psychologist Rehabilitation Consultant” (T23).

34.     On 24 September Mrs Bourke saw a registered nurse from HSA. The report appears at T18. The assessor found loss of one half range of movement of back.  She recorded back pain continual ‘Radiates down R leg to toes. Toes can at times go numb.  Cramping lower back muscles which radiates to shoulders and neck. She listed the obesity and under symptoms stated “not really a problem”. Mrs Bourke had started on Weight Watchers that week and “feels positive”.

35.     On 3 October 2004, Dr Ma from HSA (T25) recorded that Mrs Bourke is currently fit for 30+ hours a week work. The suggested type of work was “light less skilled work”, and the doctor stated again that she is “fit for suitable duties”. Dr Ma recorded the significant restrictions impacting on Mrs Bourke’s capacity to participate in economic and social participation are her low back pain, pending Workers’ Compensation claim and lack of transferable skills. In terms of her Whole Person Assessment Dr Ma records that “she is medically fit for full-time suitable light less skilled work” (T25 p 107). He allocated 10 points for her lower back pain under table 5.2 (loss of half of range of movement) and nil points for obesity (mild impairment) pursuant to Table 20. He allocated nil points for her depression under table 6, considering it “stabilised with treatment; mild functional impairment”.

36.     On 19 November 2004, Dr Sarian signed a further Medical Certificate (T29).  It referred to her lumbar spine pain, stating “Management plan: light duties”, and certified that she was “fit for suitable duties from 11 November 2004 to 11 February 2004 for 5 hours a day for 5 days a week”, that is 25 hours a week. She can lift up to 7 kg and was to “avoid excessive and forceful use of the spine”. 

37.     A further letter was sent by her psychologist dated 20 November 2004 (T33) supporting her application, stating “I wish to advise you that Mrs Bourke’s depression is chronic and she is receiving psychiatric medication as part of her recovery”.

38.     The ARO spoke to Dr Sarian on 17 December 2004 about the condition of depression which he did not mention in his TDR. He checked the computer records and found that another GP in the practice prescribed Zoloft in October 2003 (50 mg once daily) with 1 repeat. That was the only prescription from the practice. There having been no treatment for 6 months, the symptoms drop off the computer record.  He had not personally provided Mrs Bourke with treatment for the condition (T37). 

39.     I also note that I have read Dr Maniam’s report (Ex A1) which was obtained as the respondent required further information. The psychological assessment of Ms Nasr dated 23 January 2006 was also in evidence (Ex R1). 

40.     I also note that Dr Ma report (T25) was based on his reviewing the report of the HSA registered nurse. He also read other medical files. He never saw Mrs Bourke so a question of weight must be considered for this report.

Consideration

41.     I am required to consider whether Mrs Bourke was qualified for the DSP when she applied on 30 August 2004 or within 13 weeks of making her application (SS Act (Administration) Act 1999 Schedule 2, part 2, clause 4).   

42.     I find that at the relevant time, Mrs Bourke suffered from back pain and pain radiating into her right hip and to her foot when her right hip or right leg “gives way”. This is a result of the car accident in 2001. I find that the back pain was an every day problem for her but I find that the pain radiating into her right hip and down her leg was an occasional problem. She has a loss of one-half of normal range of movement and back pain with most physical activities, with standing for about 30 minutes and with sitting or driving for about 30 minutes. As Table 5.2 requires each of the criteria to be met, which includes loss of  ½ range of movement and back pain with most physical activities, with 15 mins standing and with sitting or driving for about 30 minutes, I conclude that Mrs Bourke’s impairment falls within the 10 point rating rather than the 20 point rating. This is the evidence provided by Mrs Bourke.

43.     I also find that she suffers from depression which has improved since March 2004 since she reduced her drinking of alcohol, although she may have had another “downer” since then. She has had difficulties in her life over the past few years.  Losing her job at the Kings School following her accident was very disappointing for her.  “I’d lost everything I’d worked for, for 16 years”. It is significant that she did return to work after the accident and on one version of her evidence was working 6 hours a day, 5 days a week. It was after she was “terminated” that her ability to work declined. Until 2003 when the insurance company required her to look for suitable duties, she had received payments, although not her full wages after Christmas 2002.  She was diagnosed with depression in 2003. Applying Table 6, I find that at the relevant time I ascribe a rating of Nil. I do not consider that Mrs Bourke had “moderate and regular symptoms and generally functioning with some difficulty”.  She had just started a weight watchers program and was “positive”. To her great credit she has lost 21 kilograms in weight and continues to follow the program.  There was no evidence that depression interferes with her work or her social activities. 

44.     I find that Mrs Bourke was morbidly obese at the relevant time. However, apart from Dr Sarian’s evidence that her obesity will contribute to the deterioration of her back, there is no evidence that she suffers symptoms as a result of her obesity. I attribute no points pursuant to Table 20.

45.     Mrs Bourke’s impairment rating is therefore 10 points. She does not satisfy s 94(1)(b). 

Decision

46.     For the above reasons, the decision under review is affirmed.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly

Signed: Miss Sacha Keady
  Associate

Date/s of Hearing  24 January 2006
Date of Decision  25 January 2006
Date of Written Reasons          14 February 2006
Advocate for the Applicant       Self-Represented
Advocate for the Respondent   Centrelink Legal Services