Brennick and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1063

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1063

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/163

GENERAL ADMINISTRATIVE DIVISION		)
Re		MILTON BRENNICK

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date16 February 2007

PlaceSydney

Decision The Administrative Appeals Tribunals affirms the decision under review.  

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

Ms N Isenberg
  Senior Member

CATCHWORDS

SOCIAL SECURITY - disability support pension – physical impairment – entitlement to disability support pension – whether the Applicant had an impairment rating of 20 points or more under the impairment tables – whether the Applicant had a ‘continuing inability to work’ – decision affirmed

LEGISLATION

Social Security Act 1991 – sections 94(1), (2), (3), (4), (5), (6), Schedule 1B

Social Security (Administration) Act 1999 – Schedule 2

CASE LAW

Freeman v Secretary, Department of Social Security (1988) 87 ALR 506

REASONS FOR DECISION

16 February 2007 Ms N Isenberg, Senior Member   

DECISION UNDER REVIEW

1.Mr Brennick’s claim for disability support pension (‘DSP’), made on 1 April 2005, was rejected by Centrelink.  While Centrelink, on behalf of the Secretary of the Department of Employment and Workplace Relations, agreed that Mr Brennick suffers from a debilitating physical condition to some extent, it did not agree that his various impairments attract the required 20 point impairment rating under the Impairment Tables contained in the Social Security Act 1991 (‘the Act’). Nor did Centrelink agree that Mr Brennick meets the other requirement of eligibility for DSP, that is, a continuing inability to work. These requirements are set out in section 94 of the Act and are as follows:

Qualification for disability support pension

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) …

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

BACKGROUND

2.Mr Brennick has spent his whole adult working life as a cleaner.  Over the years he has had a worsening back condition.  He continued to work until about five years ago.

3.On 1 April 2005 Mr Brennick lodged a claim for DSP with Centrelink.  With this claim he provided a Treating Doctor’s Report (‘TDR’) from his General Practitioner, Dr McLaren.

4.On 2 May 2005 Mr Brennick was assessed by Health Services Australia (‘HSA’) and was not awarded any points for impairment relating to his condition.  Further, Mr Brennick was assessed as having a capacity to work 30 hours per week doing light duties.  As a result, on 5 May 2005, Mr Brennick’s claim for DSP was rejected.

5.On 14 October 2005 an Authorised Review Officer from Centrelink notified Mr Brennick that the decision was affirmed on review. The decision was also affirmed by the Social Security Appeals Tribunal on 19 January 2006.

ISSUES BEFORE THE TRIBUNAL

6.The main issues to be determined with relation to this matter are:

a) Does Mr Brennick have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables in Schedule 1B of the Social Security Act 1991 (‘the Act’); and, if so,

b)        Does he have a continuing inability to work because of the impairment because;

·     the impairment of itself prevents him 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 him from undertaking educational or vocational training or on the job training during the next two years; or

·     such training is unlikely (because of the impairment) to enable him to do any work for at least 30 hours per week at award wages within the next two years.

CONSIDERATION PERIOD FOR ENTITLEMENT TO DSP

7.Schedule 2, clause 4 of the Social Security (Administration) Act1999 provides that the relevant time to consider a person’s entitlement is during the 13 weeks after the claim.  Therefore, I had to consider if Mr Brennick was entitled to DSP between 1 April 2005 and 1 July 2005.   

EVIDENCE

8.In addition to documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975, other documents were tendered.

9.Mr Brennick gave refreshingly frank evidence and was cross-examined on behalf of Centrelink.  I also asked him questions.  He tendered an undated report from Ms Fehlberg, a physiotherapist, which he said he obtained a day before the hearing.

10.Centrelink called Mr Robilliard, a rehabilitation consultant, to give evidence at the hearing. Mr Robilliard examined Mr Brennick on 28 August 2006.  Mr Robilliard’s evidence, as relevant, is referred to below in respect of each condition.

11.I asked Mr Brennick to specifically comment on his conditions as at the relevant period and not his current symptoms.  This approach is consistent with that in Freeman v Secretary,Department of Social Security (1988) 87 ALR 506.

12.Mr Brennick spoke about each of his conditions in turn.  The relevant evidence is discussed below.

CONSIDERATION OF THE EVIDENCE and FINDINGS

13.In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.

14.I will address the first issue, his impairment rating, by examining each of his conditions in the context of the Impairment Tables.

Did Mr Brennick have a physical, intellectual or psychiatric impairment of 20 points or more by 1 July 2005?

Back - lumbar disc degeneration

15.Mr Brennick gave evidence of suffering severe low back pain.  It has required physiotherapy almost continuously for about 14 years.

16.In a TDR dated 31 March 2005, provided in support of Mr Brennick’s application for DSP, Dr McLaren, General Practitioner, said that Mr Brennick had had lumbar disc degeneration for years.  This diagnosis was confirmed by X-ray in 2002.  Dr McLaren noted that the condition caused Mr Brennick ‘variable pain related to activity.’  He also said the current treatment was chiropractic and that Mr Brennick was treated with NSAIDS and analgesics.  Dr McLaren said Mr Brennick’s activities such as bending and pushing were affected. 

17.Mr Brennick’s Physiotherapist, Ms Fehlberg, wrote in her letter that she believed his condition was ‘caused by an acute inflammatory exacerbation of a chronic L2-L3 intervertebral disk herniation.’

18.On 26 April 2005 Mr Brennick was examined by Nurse Gaal on Centrelink’s behalf.  On examination she found Mr Brennick’s range of movement to have no, or only minor, restriction.  On the basis of that report and referring to the TDR, a HSA doctor, Dr Mackenzie, assessed Mr Brennick’s back condition at zero points pursuant to Table 5.2 of the Impairment Tables.  The relevant parts of that Table provide:

TABLE 5.2     Thoraco—lumbar‑sacral spine

As 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.

19.Mr Brennick was asked to comment on Ms Fehlberg’s observation that his pain is ‘limiting in terms of his ability to perform his activities of daily living as well as his ability to participate in recreational activities.’

20.Mr Brennick told me that he has difficulty bending over but said he was able to tend to the garden which is about five metres in length.  He does some mowing, but where once it would have taken him one and a half hours, during the relevant time it took three hours – one and a half hours both in the morning and afternoon.  He would do this once per week or per fortnight.  Afterwards he would be sore and go for physiotherapy.  He said he did not think he could lift wood or carry anything heavy.  He also said he can drive a car up to an hour at a time.  He is able to stand for extended periods, but not in the one spot.  He has no problems standing in queues.  He could sit ‘all day’, but after one to two hours he will be bent over.

21.Mr Brennick takes two Panadol four times a day and these provide ‘quite a bit’ of relief.  He also enthusiastically partakes of alcohol.

22.Mr Brennick told me that up until five weeks ago he had played 18 holes of competition golf, off a handicap of 12, every Saturday.

23.Mr Robilliard had examined Mr Brennick about 12 months after the relevant period.  He said that Mr Brennick had told him that he had, in the days before the appointment, exacerbated his back condition.  Mr Robilliard’s evidence was that, upon examination, Mr Brennick’s back attracted a rating of five impairment points.  In coming to this view he noted that while Mr Brennick demonstrated ¾ loss of range of movement, on the basis of observations of unguarded movement he did not think this to be accurate.  He only considered ¼ loss of range of movement to be appropriate, even at the time of examination, that is, some 12 months after the relevant period (when the back condition is said to be deteriorating) and within four days of an exacerbation.

24.In view of the Nurse Gaal’s observations – she described him as ‘agile’ – I do not think there is evidence that at the relevant date Mr Brennick can attract any rating other than zero in relation to his low back condition.   

Hands - Bilateral Dupuytren’s contractures

25.Mr Brennick gave evidence of suffering a problem with his hands ‘curling’. In the TDR Dr McLaren said that Mr Brennick suffered Dupuytren’s contracture of both hands and that he was experiencing gradually increasing contraction.  Mr Brennick’s hands were said to cramp and he had restricted grip and holding ability.  Mr Brennick had had surgery for his right hand in 2002 and surgery was contemplated in relation to the left.  His condition was expected to deteriorate.

26.Nurse Gaal found Mr Brennick to have no loss of digital dexterity, but moderate loss of grip strength causing difficulty in gripping moderately heavy to heavy objects. On the basis of that report, and referring to the TDR, a HSA doctor, Dr Mackenzie, assessed Mr Brennick’s hands at zero points pursuant to Table 3 of the Impairment Tables.  The relevant parts of that Table provide:

TABLE 3.       UPPER LIMB FUNCTION

All upper limb problems are assessed under the upper limb Table (Table 3).  Each arm is assessed separately.  Determination of upper limb impairments must be based on a demonstrable loss of function.

Rating           Criteria

NIL               Can use dominant limb effectively and/or

Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.

FIVEDemonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non‑dominant upper limb which causes moderate interference with hand function or manual handling.

TENDemonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.

27.Mr Brennick told me that the operation he had had to his right hand was unsuccessful and his hand is ‘curling’ again.  Generally his hands are ‘OK’ but he experiences cramps in the right hand - about two per week lasting about 10 to 15 minutes.  His hand then ‘gives out’.  Mr Brennick massages his hand and as a result, he achieves greater mobility in the hand.  His writing is ‘not 100%’ and he has mainly printed for the last couple of years.   He has trouble with a flowing signature but it remains recognisable. He does not carry anything he might drop, as this sort of weakness in holding objects is associated with the cramping.  He has had no problems with his grip on his golf clubs, but had once dropped a piece of wood he was picking up.  He was also reluctant to use the whipper-snipper. 

28.Mr Robilliard recorded the following during his examination of Mr Brennick on 22 August 2006:

Right hand determined as permanent condition and rated because of confirmation from customer’s Treating Doctor that condition was fully diagnosed, treated and unlikely to show significant improvement in function within 2 years. Functional evidence that supports impairment rating of 0 assigned to the right hand is as follows: Customer reported that he was able to open a stubbie of beer with his right hand, do light weeding for 15 minutes and mow the lawn for 15 minutes before a short break and then resuming mowing the lawn for up to 6 hours in total (including breaks); no reported difficulty with using a knife; write a half page; and that the customer felt no pain, only occasional (once a month) cramping for 15 minutes. The customer volunteered to grip the hand of the assessor as hard as he could and the assessor noted slightly less strength in the customer’s right hand compared with the left.

29.I accept Mr Brennick’s evidence of some loss of strength, mobility, co-ordination and dexterity but note his hands have given him no problems in his golfing.  Other than having to print when he writes, some lack of fluidity in his signature and a tendency to occasionally drop heavy objects if a cramp should occur, he experiences only minor interference with his hand functioning. 

30.On balance therefore, I consider that it is appropriate to allocate zero points in respect of his right hand under Impairment Table 3.

31.At the hearing Mr Brennick said that his left hand is ‘fine at the moment’ and there is no functional interference.  This, then, attracts a rating of zero points.

Neck

32.Mr Brennick said that one morning when he woke up, he was unable to move his head from side to side.  He required urgent physiotherapy treatment.  Even now he has problems moving his head to the left towards his shoulder.

33.In the TDR Dr McLaren made no mention of Mr Brennick’s neck condition.  He did refer to generalised degeneration of the spine, so it may be that this condition was included albeit indirectly.  Mr Brennick thought his neck had been X-rayed and had shown ‘worn vertebrae’.

34.My first task in relation to this neck condition was to be satisfied that it was one which could properly be described as ‘permanent’ so as to attract a rating under the Impairment Tables at all.

35.Under Schedule 1B of the Act - Tables For The Assessment Of Work-Related Impairment For Disability Support Pension - appears the following under the heading of ‘Introduction’:

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.

In this context, reasonable treatment is taken to be:

·     treatment that is feasible and accessible i.e., available locally at a reasonable cost;

·     where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person.  In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.

In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:

·     evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and

·     indicate why this treatment is reasonable; and

·     note the reasons why the person has chosen not to have treatment.

It was therefore to be determined if Mr Brennick’s neck condition had been diagnosed, treated and stabilised.

36.Mr Brennick said he had had the neck condition for more than 12 months.  It was unclear if this was before or after the relevant period. 

37.He demonstrated that when he moves his head towards the left shoulder there is a feeling that it ‘catches’.

38.Apart from inferred medical evidence in relation to the condition, that is, Dr McLaren’s reference to Mr Brennick’s generalised degeneration of the spine, there was no other medical evidence in relation to this claimed condition.

39.In the absence of medical evidence, especially in the absence of a clear diagnosis, I am unable to come to the view that Mr Brennick’s neck condition, however described, is ‘permanent’ as defined.

Combined impairment

40.Mr Brennick’s overall impairment rating is therefore zero points. This falls short of the 20 points or more required under section 9(4) of the Act for eligibility to receive DSP. Failure to meet just one of the requirements results in a failure to qualify for that pension. It is therefore not necessary for me to consider whether Mr Brennick has a continuing inability to work.

DECISION

41.The decision under review is affirmed. 

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

Signed: .............[sgd]......................
  Associate

Date of Hearing        23 January 2007
Date of Decision  16 February 2007
Appearance for Applicant               Self-represented
Advocate for the Respondent       J Furner of Centrelink, Legal Services