Clark, Pat and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 269
[2013] AATA 269
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3763
Re
Clark, Pat
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Dr Ion Alexander
Date 2 May 2013 Place Sydney Decision Summary
The decision under review is affirmed.
........................................................................
Dr Ion Alexander
Catchwords
SOCIAL SECURITY – Disability Support Pension – Rating under Impairment Table less than 20 points – Continuing disability to work – Condition(s) fully documented, diagnosed, investigated, treated and stabilised – Decision under review affirmed.
Legislation
Social Secutiry Act 1991 subs 94(1)(a); 94(1)(b) and 94(1)(c)
Click here to enter text.
REASONS FOR DECISION
Dr Ion Alexander
2 May 2013
On the 25 July 2011 Mr Clark lodged an application for Disability Support Pension (DSP) in which he claimed that he suffered various medical conditions causing him pain and impairment in his lower back, both shoulder blades, middle of the back, left shoulder, both knees, left ankle and neck.
His application was rejected by Centrelink and subsequently the Social Security Appeals Tribunal and he now seeks review of that decision.
The Respondent contends that Mr Clark did not satisfy the requirements of section 94(1) of the Social Security Act 1991 (the Act) during the 13 week assessment period. In particular he did not satisfy section 94(1)(b) in that his rating under the Impairment Tables was less than 20 points and alternatively, section 94(1)(c), in that he did not have a continuing inability to work.
At the hearing Mr Clark, who was unrepresented, changed his claim to the lower back, left shoulder, right knee and right Achilles tendon. He explained that the symptoms in the other parts of his body had improved significantly since the time of his application because of a self- initiated isometric exercise program and were no longer a problem.
ISSUES
As there is no dispute that Mr Clark satisfied section 94(1)(a) the relevant issues for consideration are:
(a) What was Mr Clark’s rating under the Impairment Tables? [s94(1)(b)]
(b) Did Mr Clark have a continuing inability to work? [(s94(1)(c)]
What was Mr Clark’s rating under the Impairment Tables?
Mr Clark’s evidence
Mr Clark claims to suffer frequent pain and impairment in the various body parts noted above.
He explained that apart from his self-initiated exercises, staying in a warm environment and wearing warm clothing he was not undertaking any kind of formal treatment. Apart from occasional paracetamol for “headache”, he did not take pain or anti-inflammatory medication because it “messed with his head.” He did admit to using some “ointment” on his right Achilles tendon
In respect of his lower back Mr Clark claimed to have suffered pain for more than 10 years and said that he believed it was due to a swelling in his back causing pressure on a nerve. He described the pain as intermittent with exacerbation in cold weather.
Mr Clark explained the he had injured his right knee several years ago and that he now experiences pain and swelling when walking.
Mr Clark said that he had injured the left shoulder some years ago and had required physiotherapy treatment but was unable to clearly explain the nature of his shoulder condition. He stated that the left shoulder now makes a cracking sound which is more pronounced when he exercises.
Mr Clark was unable to provide a meaningful description of the alleged injury to his right Achilles tendon apart from claiming to experience intermittent pain.
Mr Clark explained that he has lived alone at his current address for many years and is able to care for himself. He does his own cooking and cleaning, visits friends, waters the garden and watches TV. He has a push-bike which he sometimes rides and has done some voluntary work with the Salvation Army and on occasion mowes the neighbour’s lawn.
Medical Evidence
At the time of his application for DSP Mr Clark relied on two reports provided by his General Practitioner, Dr Pukanic, dated 25 July 2011 and 26 August 2011.
In the July 2011 report Dr Pukanic makes a diagnosis of “severe exacerbation of lower back pain” but provides little other useful information.
In the August 2011 report Dr Pukanis diagnoses “strained L/S spine, sciatica, straine (sic) neck, left shoulder, chr.strain right knee, injured right Achilles tendon.” Again there is little useful information in respect of diagnosis, investigation or current and future treatment.
In September 2007 an MRI examination of the lumbosacral spine revealed minor degenerative changes at L3/5 and L4/5 with minimal disc bulge and no neural compression.
In September 2007 an X-Ray of the right knee revealed mild degenerative change and an ultrasound examination showed mid calcific tendonopathy of the patella tendon.
In November 2008 an X-Ray of the left shoulder was normal and an ultrasound examination showed some impingement and bunching of the subacromial bursa on abduction but was otherwise normal.
In February 2009 Mr Clark was referred to Plaza Physiotherapy for treatment for intermittent sharp pain in his right shoulder blade and pins and needless in the right arm at night. After four treatments Mr Clark was discharged with near full range of movement and much less pain.
There is no other evidence before the Tribunal of more recent investigations or formal treatment.
Consideration
Mr Clark claims that he suffers several medical conditions which have caused sufficient impairment so that he is entitled to receive DSP.
In order to succeed in his claim his impairment rating under the Impairment Tables in Schedule 1B of the Act must be 20 points or greater.
The introduction to the Impairment Tables stipulates that for an impairment rating to be assigned to a medical condition the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.
The difficulty for Mr Clark with respect to his claimed medical conditions is twofold.
First his oral evidence with respect to his medical conditions was at times confusing and, for reasons that are not entirely clear, he seemed unable to provide a convincing history as to the nature of his conditions and the impact they had on him. He conceded that some of his physical symptoms had abated with simple exercise and that that he did not undertake any significant treatment for his remaining symptoms.
The second difficulty arises from the medical documents on which Mr Clark relies. In my view these documents do not provide a satisfactory basis for the assessment of his impairment.
Dr Pukanic’s reports are extremely brief with much of the writing illegible and provide little useful information.
The radiological investigations are not contemporaneous with his current application and reveal only minor abnormalities which are not consistent with the degree of claimed impairment.
Even if I were to accept that Mr Clark’s symptoms are consistent with the minor abnormalities demonstrated by the radiological investigations there is no convincing evidence before the Tribunal of any formal treatment apart from the single episode of physiotherapy treatment tin February 2009.
It follows that I cannot be satisfied that his claimed medical conditions have been fully documented, investigated, treated and stabilised which means that an impairment rating cannot be assigned.
Therefore, during the 13 week assessment period Mr Clark’s rating under the Impairment Tables was nil which means that he did not satisfy section 94(1)(b) of the Act and was not entitled to receive DSP
It follows that it is not necessary to consider the second issue of “continuing inability to work”.
Decision
The decision under review is affirmed.
I certify that the preceding 33 (thirty three) paragraphs are a true copy of the reasons for the decision herein of
..[sgd].........................................................
Associate
Dated 2 May 2013
Date of hearing 22 April 2013 Date final submissions received 22 April 2013 Applicant In person Advocate for the Respondent Ms Jennifer Maclean
Key Legal Topics
Areas of Law
-
Social Security Law
Legal Concepts
-
Disability Support Pension
-
Impairment Rating
-
Medical Evidence
0
0
0