Brian McGuiness and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 17

[2013] AATA 17

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/1913
Re	Brian McGuiness
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Deputy President P E Hack SC
Date	16 January 2013
Place	Brisbane (heard in Lismore)

The decision is affirmed.

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Deputy President P E Hack SC

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and entitlements – disability support pension – degenerative disc disease of lumbar and cervical spine – lack of evidence as to extent of loss of normal range of movement – chronic anxiety, panic attacks and agoraphobia – lack of evidence of condition – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth) s 94, Sch 1B

Social Security (Administration) Act 1999 (Cth) Sch 2

REASONS FOR DECISION

Deputy President P E Hack SC

16 January 2013

1. The applicant, Mr Brian McGuiness, as he put it, “lives quite well without working”.  He last had a full-time job about five years ago and has had only sporadic employment since then.  He is, I assume, sustained by the receipt of Newstart allowance.

2. In June 2011 Mr McGuiness applied for disability support pension.  His claim was rejected by Centrelink on 22 July 2011.  That decision was affirmed on internal review and subsequently by the Social Security Appeals Tribunal.

3. Mr McGuiness does suffer from conditions that impair his ability to function but, for the reasons that follow, the claim was correctly rejected.  On the view of the evidence most favourable to Mr McGuiness, his conditions were not of sufficient severity to qualify him to receive disability support pension.

4. It is sufficient for present purposes to say that, by virtue of s 94 of the Social Security Act 1991 (Cth), to be qualified for disability support pension a person must have a physical, intellectual or psychiatric impairment (or impairments) that warrants 20 points or more under the Impairment Tables that comprised Schedule 1B to the Social Security Act and “a continuing inability to work” as that expression is defined in the Act.  In order to attract a rating under those Tables the conditions must be fully diagnosed, treated and stabilised.

5. That requirement was explained[1]  by clauses 4, 5 and 6 of the introduction to the Impairment Tables in these terms,

   [1]That part of the legislation has been repealed but it continues to have application to claims made before 1 January 2012.

   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 two years.

   …

6. Mr McGuiness’ claim was lodged on 22 June 2011. Given the terms of clause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (Cth) it is Mr McGuiness’ condition at the date of the claim and in the period of 13 weeks thereafter that must be considered. He says that during this period he was suffering from two conditions – degenerative disc disease affecting his lumbar and cervical spine and a psychiatric condition described in the material as chronic anxiety disorder with panic attacks and agoraphobia. The Secretary accepts that he suffered from the former but was somewhat ambivalent about the latter.

7. It is not open to doubt that Mr McGuiness suffers from degenerative disc disease – objective evidence demonstrates its presence.  But the Secretary contends that the condition is not capable of being assigned a rating because Mr McGuiness was still seeking treatment for the condition.  Alternatively, the Secretary submits, even if the condition is capable of being assessed under the Tables, the evidence does not permit an assessment to be made.  The Secretary’s Statement of Facts and Contentions, lodged in advance of the hearing, conceded that Mr McGuiness’ psychiatric condition was fully treated and stabilised and attracted a rating of 10 points under the Impairment Tables.  The Secretary now seeks to resile from that concession.

8. The Secretary’s first submission about Mr McGuiness’ back may be doubted; the condition is, after all, a degenerative one.  It is not going to improve with treatment, although physiotherapy and the other treatments referred to in the report of Mr Paul Pattison, physiotherapist, may assist with pain relief.  But ultimately I do not find it necessary to reach a concluded view on this submission.  If I assume, without deciding, that the back condition was capable of being assessed under the Tables, I am left in the position where I cannot determine the extent of the impairment occasioned by it.

9. The introduction to Table 5, dealing with spinal function, notes that,

   Determination of spinal impairment must be based on a demonstrable loss of function.

   Points are assigned on the basis of the extent of loss of normal range of movement and the extent and frequency of pain occasioned by the back condition.  Mr McGuiness submits that the impairment of his cervical spine warrants a rating of 10 points.  The descriptor under table 5.1 for 10 points is as follows,

   Loss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain.

   Mr Pattison reported on Mr McGuiness' cervical spine in October 2011.  The report noted[2],

   Reports: headaches, stiff/tight neck with restricted movement decreased function. On [examination]: rounded shoulders, winged scap cervical extension rigid, rotation = 35.

   Poor cervico-thoracic dynamics.

   In his oral evidence Mr Pattison referred to Mr McGuiness as having 30˚-35˚ side to side movement and as having “limited rotation of the neck”.

   [2]           Exhibit 1 at page 86.

10. There is, as well, a job capacity report undertaken by a social worker, Mr Hook, which notes[3],

    The client fractured one of his vertebrae in his neck in 1998 which prevents him from extended [sic] his neck and results in having a moderate impact upon the client's ability to function.

    Mr McGuiness described his neck as “inflexible” and said that it became hard and locked up under stress. I did not get that impression observing him in the course of the hearing. He made reference to feeling pain every day on waking. It is enough to say that I have grave doubts about the reliability of Mr McGuiness' own reporting of his impairments.

    [3]           Exhibit 1 at page 64.

11. I find it impossible to conclude by reference to this evidence to what extent, if at all, there is a loss of normal range of movement in Mr McGuiness’ cervical spine.  The difficulty in this case is the absence of objective evidence from which a reliable conclusion might be drawn.  The result is that I am not satisfied that the extent of impairment to the cervical spine warrants an assessment of 10 points.

12. The same is true of the lumbar spine.  Mr McGuiness submitted that a rating of 10 points was appropriate for this condition.  The criteria for a 10 point loss in the Impairment Tables is as follows,

    Loss 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 of normal range of movement.

13. Dr Nicholson, Mr McGuiness’ general practitioner, in a report of 26 October 2011[4], made reference to a “long history of back pain and loss of function following back injury”. He referred to the symptoms as,

    Pain and restricted range of movement giving severe impairment.

    These matters, according to Dr Nicholson, resulted in a,

    Marked loss of function in a wide variety of work settings.  Loss of ability to perform repetitive tasks or maintain posture. Reduced endurance.

    Mr Paterson said of Mr McGuiness’ lumbar spine that he had no extension, 10% side bending, half range of rotation of the spine and poor muscle stability.

    [4]           Exhibit 1 at pages 91-98.

14. But, in all of this, there is no objective evidence about the extent of loss of normal range of movement of Mr McGuiness’ lumbar spine and, as I have said, I have grave doubts about the reliability of Mr McGuiness’ self reporting of pain.

15. I am then not satisfied that either of the back complaints is capable of being given a rating under the Impairment Tables.

16. For completeness I should mention Mr McGuiness’ psychiatric condition. It was not the subject of any particular evidence at the time when the claim was lodged however Mr McGuiness saw Dr Derek Johns, a consultant psychiatrist, in August 2011.  That doctor reported[5] that Mr McGuiness' condition was “well established and chronic” however the report was based entirely on the history provided by Mr McGuiness. I am unpersuaded that Mr McGuiness is a reliable historian.

    [5]           Exhibit 1 at page 82.

17. The result is that I am not satisfied that Mr McGuiness has impairments that warrant an assessment of 20 points or more under the Impairment Tables. The decision will be affirmed.

18. There is very little objective evidence about Mr McGuiness’ conditions. If Mr McGuiness makes a further application for disability support pension, there ought, in fairness to him, be a proper investigation of those conditions, necessarily by Centrelink as Mr McGuiness lacks the resources to undertake the necessary investigation.  

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC.

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Associate

Dated 16 January 2013 

Date of hearing	13 December 2012
Solicitors for the Applicant	Legal Aid NSW
Advocate for the Respondent	Mr R Hamilton, Department of Human Services