Carse and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 898

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 898

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/2340

GENERAL ADMINISTRATIVE DIVISION		)
Re		STEVEN CARSE

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date16 December 2011  

PlaceBrisbane (heard in Cairns)

Decision The decision under review is affirmed.

...............[Sgd]...................

Deputy President

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and entitlements – disability support pension – physical impairments – severity - no evidence of extent of loss of movement - decision under review affirmed

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

Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252

Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130; (2007) 46 AAR 83

REASONS FOR DECISION

16 December 2011   Deputy President P E Hack SC    

1.The applicant, Mr Steven Carse, has physical impairments. He says that these impairments are such as qualify him to receive disability support pension (DSP). He applied for DSP in November 2010 however the respondent, the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, was not satisfied that the impairments were of sufficient severity to qualify him for DSP nor was the Secretary satisfied that Mr Carse had a continuing inability to work. That decision, made on 9 December 2010, was affirmed on internal review and by the Social Security Appeals Tribunal.

2.Mr Carse now seeks a review of that decision in this Tribunal. The qualifications for disability support pension are set out in paragraphs (a) to (e) of s 94(1) of the Social Security Act 1991. Those in paragraphs (d) (age) and (e) (residency) are not in issue. Paragraphs (a) to (c) of s 94(1) are relevant. They provide:

“Qualification for disability support pension

(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;

…”

3.The Impairment Tables referred to are in Schedule 1B of the Act. According to the description in the Introduction to the Tables they “represent an empirically agreed set of criteria for assessing the severity of functional limitations for work related tasks”. The Tables assign a points rating by reference to a series of descriptors of the severity of the impairment. Clause 4 of the Introduction emphasises that for a rating to be assigned, “the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.” Moreover the condition must be regarded as permanent, that is, it must be more likely than not that it will persist for the foreseeable future. Clause 6 provides assistance in assessing 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.

4.Mr Carse’s impairments have been variously described in the material. He has a history of chronic neck and lower back pain dating back to a motor vehicle incident in 2001 when he sustained fractures to his neck, ribs and left clavicle when struck by a car. Since that time he has experienced chronic neck pain (which has been recently diagnosed as osteoarthritis) and lower back pain.

5.Mr Carse was not able to be contacted for the purposes of the hearing however I determined that I would proceed with the hearing rather than dismiss the application as a consequence of his non-attendance. But there remains the difficulty that little is known about the nature and extent of Mr Carse’s impairments.

6.In November 2010 his general practitioner, Dr Evan Grambas, described his condition as “chronic neck and lower back pain” which had been treated in the past with medication, physiotherapy and rehabilitation (not otherwise particularised). The condition was said to lead to poor endurance and difficulty with movement which was expected to last in excess of 24 months. A job capacity assessment report prepared by a psychologist and an occupational therapist employed by Centrelink described Mr Carse as experiencing lower back pain “all the time”, reduced tolerances for standing and sitting and having difficulty undertaking heavy lifting and bending. Subsequently Dr Grambas provided a further report of 20 December 2010 in which he identified two conditions, chronic neck pain and chronic lower back pain. The former was said to cause poor endurance, difficulty with movement and poor concentration; the latter was said to cause poor concentration and a limited ability to sit. Those effects were expected to continue for more than 24 months.

7.A further job capacity assessment report was undertaken in January 2011 by a Centrelink occupational therapist. It referred to frequent migraines, blurred vision and dizziness from the chronic neck pain and a reduced range of movement in rotation, flexion and extension of the neck. No measure of the reduction in range of movement was provided. The report concluded that Mr Carse’s conditions had not been fully treated and stabilised.

8.Dr Grambas provided a further report in January 2011 in which he described the neck pain as osteoarthritis. A subsequent CT scan of the cervical spine demonstrated minor posterior disc bulges at C3/4, C5/6 and C6/7 with no evidence of cord compression and mild degenerative disease in the C4/5 facet joints and between the occipital condyles and C1.

9.Mr Carse’s claim for DSP was rejected (and that rejection was affirmed by the Social Security Appeals Tribunal) on the basis that his conditions were not fully stabilised and accordingly no rating could be assigned to them. The Secretary’s submissions press the same argument. Further treatment, it is said, is indicated. The Secretary points to the January 2011 job capacity assessment report that makes reference to “a referral to a specialist in relation to back and neck conditions” and to the reference in Dr Grambas’ reports to future treatment by “physiotherapy, analgesics”. 

10.It is apparent that the observations of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations[1] and of the Full Court on the Secretary’s appeal from that decision[2] have not been fully comprehended. No treating practitioner has suggested that Mr Carse ought to be referred for further treatment or diagnosis by a specialist practitioner and, so far as I am aware, there is no doubt about the correctness of the diagnosis of osteoarthritis. There is no reason to treat the fact that Mr Carse has not been seen by a specialist medical practitioner as a basis for concluding that his condition has not been fully treated. The same is true of the fact that Dr Grambas suggests that future treatment ought to include physiotherapy. There is no suggestion that physiotherapy is likely to lead to any functional improvement in Mr Carse, only that it might assist him to cope with the pain. The underlying osteoarthritic condition will remain unabated.

[1] [2007] FCA 404; (2007) 158 FCR 252.

[2]    Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130; (2007) 46 AAR 83.

11.The view that has been taken so far is, at best, simplistic with the result that there has been an inadequate investigation of the issues of further treatment and extent of impairment. It seems to me to be likely that Mr Carse’s conditions are fully diagnosed, treated and stabilised however since I am able to dispose of the matter on the basis of the extent of impairment I propose to assume, rather than decide, that that is so. On that assumption Mr Carse has two conditions that interfere with his spinal function. Table 5 deals with the impairment of spinal function by reference, generally, to loss of range of movement. Thus normal or nearly normal range of movement of the cervical spine or the thoraco/lumbar-sacral spine warrants a nil rating, the loss of a quarter of normal range of movement warrants five points and so on. The extent and frequency of pain experienced is brought into account in the higher ratings.

12.But, whilst there is some evidence that Mr Carse has experienced a loss of some range of movement in his spine there is no evidence that would enable me to reach any conclusion about the extent of that loss and, in the absence of Mr Carse, that evidence could not be provided in the course of the hearing. In such circumstances the decision under review must be affirmed.    

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed: ............[Sgd].........................................................
  Associate

Date of Hearing  5 December 2011
Date of Decision  16 December 2011

The applicant did not appear

Representative for the respondent        Departmental Advocate