Brown and Secretary, Department of Family and Community Services

[2002] AATA 823

DECISION AND REASONS FOR DECISION [2002] AATA 823

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2001/823

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      ANTHONY BROWN          
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Mr K L Beddoe, Senior Member  

Date20 September 2002 

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.         

(Sgd) K L Beddoe 
  Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – eligibility for pension – whether applicant has an impairment rating of 20 points or more – whether applicant has a continuing inability to work

Social Security Act 1991
Social Security (Administration) Act 1999

REASONS FOR DECISION

20 September 2002          Mr K L Beddoe, Senior Member              

1. The applicant seeks review of the decision to refuse payment of disability support pension for a closed period 13 March 2000 to 13 November 2001.

2. Two issues arise under section 94 of the Social Security Act 1991 as to:

   (a)whether the applicant's impairment is of 20 points or more under the Impairment Tables in Schedule 1B of the Act;

   (b)whether the applicant has a continuing inability to work.

3. It was accepted at the hearing that the other provisions of section 94 had been satisfied.

4. Section 4 Part 2 Schedule 2 of the Social Security (Administration) Act 1999 has the effect of requiring the claim to be considered as at the date of claim or within the period of 13 weeks after the day on which the claim was made.

5. At the hearing Mr Honchin of Counsel appeared for the applicant and Mr Foster represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and two medical reports were marked as exhibits.  No oral evidence was given.  I was told that the applicant is confined to hospital.  I was also told that the applicant was granted a disability support pension with effect from 14 November 2001.

6. Document T5 is a copy of a treating doctor's report lodged with Centrelink on 10 February 2000 ie before the claim made on 13 March 2000.  That report accompanied a medical review form completed by the applicant in which he identified three medical conditions:

   (a)broken femur;

   (b)lower back pain; and

   (c)tendonitis.

He also stated that he was being treated by Dr Boldry in relation to (a), Dr Hasa in relation to (b) and Dr Low in relation to (c).

1. The treating doctors report (T5) was completed by Dr Hasa who I understand is a doctor at the medical centre attended by the applicant on a regular basis (fifteen times in the past twelve months).

2. Dr Hasa identified three medical conditions:

   (a)synovectomy R tibialis posterior

   (b)R femur

   (c)lower back pain.

3. He said (a) was the subject of an operation and (b) and (c) were treated with analgesics.  Dr Hasa was unable to say when the applicant would be likely to return to work but certified that he was unfit for work from 8 February 2000 to 8 May 2000.  Dr Hasa noted that the applicant's persistence at work tasks would be limited to less than twenty minutes at a time and that the applicant was unable to lift, carry and move objects.

4. When the applicant made his claim for disability support pension he provided further medical reports being:

   (a)summary on discharge from Townsville General Hospital in respect of his admission on 3 December 1999 and discharge on 7 December 1999 in relation to the R femur;

   (b)medical certificates diagnosing neck pain/strain in December 1997 and January 1998;

   (c)radiology report dated 29 June 1999 diagnosing tibialis posterior tendonitis in the right ankle; and

   (d)radiology report dated 15 February 2000 finding a lateral disc herniation at L 3/4 and an annular bulge at L 4/5.

5. Dr Hasa prepared a further treating doctor's report dated 11 April 2000.  He noted diagnosis only on chronic back pain relating to "L3-L4-L5".  He said the condition was long term and that the applicant had attended his practice twenty-three times in the past twelve months.  In response to questions about return to work Dr Hasa said it was likely to be more than two years.  He confirmed his previous responses about work ability and certified the applicant unfit for work from 11 April 2000 to 11 July 2000.

6. Document T13 is a copy of medical assessment report obtained by Centrelink.  The report was made by a registered nurse and is countersigned by a Commonwealth Medical Officer.  The report is confined to the chronic back pain and assessed impairment at 10 points under Table 5. The report ignores Dr Hasa's reports but relies on a medico-legal report by Dr Laister, orthopaedic surgeon.

7. Document T16 is a further treating doctor's report by Dr Hasa dated 5 September 2000.  In that report Dr Hasa diagnosed:

   (a)chronic lower back pain;

   (b)right leg pain;

   (c)right ankle pain; and

   (d)depression.

That apparently resulted in another medical assessment report by a registered nurse again countersigned by the Commonwealth Medical Officer (T18).  The report recommended referral to the Commonwealth Rehabilitation Service but maintained the impairment assessment at 10 points under Table 5.2.  That report is well outside the thirteen weeks period from date of claim.

1. Document T12 is a copy of a report by Dr Laister, Orthopaedic Surgeon, dated 22 May 2000 and addressed to the Blue Nursing Health Assessment Service.  Dr Laister did an examination of the applicant and reports on that examination.  He considered that an MRI investigation would disclose degeneration at the L3-4 but generally found the applicant's condition as unremarkable.  He considered that heavy work would be out of the question but the applicant would be capable of doing "more sedentary type jobs".

2. Dr Laister's report does not deal with the right femur or right ankle conditions albeit that he investigated possible sciatic pain to the legs but said there was no real radiation of pain down the legs.
   Consideration

3. Taking all the material into account, I would adopt the assessment of 10 points under Table 5.2 of Schedule 1B in relation to the lumbar spine condition.

4. As to the right leg and ankle, I am satisfied that the conflicts in evidence should be resolved by the specialist report from Dr Laister.  In relation to the lower limbs he reported as follows:

   "Knee jerks were present and equal.  Ankle jerks were present and equal.  There was normal power in his quadriceps and about his ankles.  There was some thickening present in the mid-shaft of his right femur.  There was a small scar over the right greater trochanter at the site of insertion of the intramedullary nail.  He had a full range of flexion in his right knee.  There was no swelling.  There was a scar about the right tibialis posterior tendon but there was no swelling evident.  There was normal action in this tendon.  There was no real limitation of straight leg raising.  There was no sensory change in his lower limbs."

That finding satisfies me that the applicant cannot satisfy a rating of 10 points under Table 4 of Schedule 1B.  His assertion that he needs to take a break after walking 500 metres is not inconsistent with Dr Laister's finding but does not satisfy me that there is any significant impairment.

1. I am not satisfied that the applicant should be assessed at 20 points under the Impairment Tables.

2. While I am satisfied that the applicant had a continuing inability to do heavy work, I am not satisfied that his back condition, in particular, prevented work per se.  I agree with the Social Security Appeals Tribunal.

3. The decision under review will be affirmed.

   I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe, Senior Member

   Signed:         S Oliver

   Associate

   Date of Hearing  24 May 2002
   Date of Decision  20 September 2002
   For the Applicant  Mr D Honchin of Counsel
   For the Respondent                 Mr N Foster, Departmental Advocate