Close and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1641

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1641

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2007/31

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANDREW CLOSE

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date7 August 2007

PlaceCanberra

Decision The decision under review is affirmed.

.................signed.............................

Mr S. Webb, Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - chronic back pain - impairment rating below threshold for qualification - decision affirmed

Social Security Act 1991 s 94, Schedule 1B

Social Security (Administration) Act 1999 ss 42, Schedule 2

Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444

Harris v Secretary, Department of Employment at Workplace Relations [2007] FCA 404

REASONS FOR DECISION

7 August 2007 Mr S. Webb, Member         

1.      Andrew Close is 40 years old and suffers from chronic lower back pain.  He claimed a disability support pension on 24 August 2006.  His claim was rejected by primary determination.  Mr Close pursued his rights of review, but the decision was affirmed on reconsideration and by the Social Security Appeals Tribunal. 

2.      The issue for determination is whether Mr Close is qualified for and entitled to a disability support pension.

3.      I note that the matter before the Tribunal concerns the claim lodged by Mr Close on 24 August 2006.  Pursuant to s.42 and Schedule 2 of the Social Security (Administration) Act 1999, Mr Close’s claim must be considered at the date of lodgement (24 August 2006) or within the period of 13 weeks thereafter.

4.      Mr Close submits that he has suffered chronic and disabling lower back pain for many years.  He says that he relies on his mother for domestic support and that she does his washing, shopping, cooking and cleaning.  Mr Close submits that his condition is permanent.  He relies on reports from his general practitioner, Dr Ian Sullivan, that his condition is likely to persist for at least 2 years, and that his back condition limits his ability to function[1] and his capacity for work.[2]  Mr Close says that he has tried all reasonable forms of treatment without success.[3]  He says that he has managed his pain, even though it has gradually worsened over time, and he does not believe that attending a pain management program will help.  Mr Close asserts that his functional loss should be assessed under Table 20 of the Tables for the Assessment of Work Related Impairment for Disability Support Pension[4] and, under that Table, his functional loss warrants a rating of 20 points.  Mr Close says that his back pain prevents him from continuing in employment.  In his submission, he has undertaken light work, such as sorting plums, but was forced to stop because of back pain: “the problem is not getting work, it is keeping the work.”[5]  Mr Close says that he can only work for short periods before the pain defeats him, and that there are many days when the pain prevents him from doing anything.  He states that he has attended ‘Back Education’ programs with Big W, without any positive outcome in terms of his capacity for work.  In Mr Close’s submission, he has all the skills he needs to obtain employment and no further training is necessary for him to obtain employment performing light duties: “to be a courier I do not need skills to lift heavy parcels or boxes.”[6]  Thus, in Mr Close’s submission, he should be found to qualify for a disability support pension.

[1]  Exhibit T1, at T8.

[2]  Exhibit T1, at T5; and Exhibit A2.

[3]  Exhibit T1, at T15.

[4] Schedule 1B of the Social Security Act 1991.

[5] Applicant’s statement received 31 July 2007.

[6] Ibid.

5.      As will appear, I do not agree.

6. In order to qualify for a disability support pension a person must satisfy the requisite criteria set out at section 94 of the Social Security Act 1991 (the Act). As can be seen, a claimant must suffer from an impairment, under paragraph 94(1)(a)), rated as more than 20 points under the Impairment Tables, at Schedule 1B of the Act, and in accordance with paragraph 94(1)(b). Relevantly, the claimant must also have a continuing inability to work[7]  more than 15 hours per week[8] independently of a program of support.[9]  Furthermore, the claimant will have a continuing inability to work only if the impairment, of itself, prevents him or her undertaking a training activity with 2 years, or if “such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within 2 years”.[10] Drummond J discussed the operation of these provisions in Secretary, Department of Social Security v Pusnjak (1999)[11] and enunciated the correct approach to be adopted.  There is no basis in this case to depart from that construction.

[7] Paragraph 94(1)(c) of the Social Security Act 1991.

[8] Subsection 94(5).

[9] Subsection 94(2)(a).

[10] Paragraph 94(2)(b).

[11] 56 ALD 444 at 451-453

7.      It is not in dispute that Mr Close had a physical impairment when he lodged his claim for disability support pension.  On the medical evidence of Dr Sullivan and Dr P. Walker,[12] I am satisfied that he suffers from an L5 spondylolysis and chronic low back pain, and so find.  Thus paragraph 94(1)(a) is satisfied.

[12] Exhibit A1.

8.      The next step is to determine whether Mr Close’s impairment warrants a rating of 20 or more points under the Assessment Tables. 

9.      It is not in dispute that Mr Close’s impairment is ‘permanent for social security purposes,’[13] that is, the impairment has been fully documented, diagnosed, treated and stabilised, and will in all likelihood persist for the foreseeable future.  I am satisfied that Mr Close’s pain is caused by L5 on S1 spondylolisthesis and is aggravated by certain physical activity.  The evidence of Dr P. Walker[14] and Dr Sullivan[15] supports that conclusion.  Mr Close’s condition has been treated with analgesic medications,[16] which he says give temporary pain relief, and briefly with physiotherapy, that increased his pain.[17]  He has not undertaken a pain management program to assist him to better manage the effects of chronic pain without using medications.  Even though a Job Capacity Assessor identified a ‘Pain Management Program’ as an “intervention,” “that may help [Mr Close] to better manage his back pain,”[18] there is no evidence before me that such treatment would be likely to mitigate the effects of his condition or improve his functional capacity within 2 years.  Being mindful of what Giles J had to say on this point in Harris v Secretary, Department of Employment at Workplace Relations [2007],[19] all that can be said is that it is possible that such an ‘intervention’ may assist, but on the evidence before me it cannot be said that any such future treatment “could be reliably expected to result in a substantial improvement.”[20] Insofar as treatment of Mr Close’s back condition is concerned, the proposition that a pain management program may result in functional improvement within 2 years is purely speculative. Having regard to the clinical evidence and the circumstances of Mr Close’s case, I am satisfied that this is not a case in which the Tribunal’s inquisitorial powers should be exercised to further investigate issues concerning the likely effects, if any, of a pain management program on Mr Close’s functional capacity. Thus, I will proceed on the basis that all reasonable treatment has been undertaken and Mr Close’s chronic pain relating to his spondylolisthesis is permanent for the purposes of Schedule 1B of the Act.

[13] Respondent’s Statement of Facts and Contentions, dated 2 July 2007.

[14] Exhibit A1.

[15] Exhibit T1, atT8 folio 58.

[16] Exhibit T1, atT8 folio 59.

[17] Exhibit T1, at T15 folio 75.

[18] Exhibit T1, at T18 folio 84.

[19] FCA 404, at paragraphs [18]-[20].

[20] Ibid, at [20].

10.     I note in passing that Mr Close gave sworn evidence that his back condition has deteriorated since August 2006: his pain has increased and his functional capacity has reduced.  That evidence was not seriously challenged during the proceedings.  Even though I am prepared to accept Mr Close’s evidence concerning the level of his pain, assessment of his functional capacity is a matter to be determined on medical or other objective evidence.  Nevertheless, I accept that there has been no improvement in his functional capacity since August 2006.

11.     The next step is to determine the appropriate Table for assessment of Mr Close’s impairment.  Even though the pathological condition from which Mr Close suffers is a lumbar spondylolisthesis, he does not assert that the range of movement in his back is impaired, but rather asserts that he is impaired by chronic pain. I accept that Mr Close’s functional impairment is appropriately described as chronic pain and so find.  The Introduction to the Assessment Tables provides that, in general, pain should be assessed in terms of the underlying medical condition which causes it.  In this case that is L5 spondylolysis giving rise to a Grade 1 L5 on S1 spondylolisthesis. 

12.     Table 5.2 concerns the thoraco-lumbar spine.  The rating criteria in that Table are cast in terms of spinal mobility. However, there is no evidence concerning any medical assessment of the range of movement in Mr Close’s lower back.  It appears that Dr Sullivan informed the Social Security Appeals Tribunal that “the loss of movement in Mr Close’s back… would be quite significant depending on his level of activity.”[21]  That account is not sufficiently detailed or reliable to permit any finding concerning the loss of range of movement in Mr Close’s back for the purpose of assessing his functional impairment.  Thus, Mr Close’s impairment cannot be appropriately or reliably assessed and rated under Table 5.2.  Furthermore, as Mr Close’s impairment is characterised by chronic entrenched pain and not, principally, by loss of range of movement, I am reasonably satisfied that an assessment under Table 5.2 may underestimate the level of his impairment.  That being so it is appropriate to assess his impairment under Table 20, which is concerned with miscellaneous conditions including pain.

[21] Exhibit T1, at T2 folio 9.

13.     The relevant rating criteria set out in Table 20 include:

TEN                 Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work‑related tasks. There is minimal effect/impact on work attendance.

FIFTEEN         Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self‑care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work‑related tasks and/or attend work. Full‑time work would still be possible.

TWENTY        More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work‑related tasks. Symptoms may cause prolonged absences from work.

THIRTY          Very severe symptoms which lead to substantial difficulty with most daily tasks. Assistance with elements of self‑care may be required. Symptoms cause severe interference with ability to work or attend work (ie. minimal residual work capacity).[22]

[22] Above n 4.

14.     As can be seen, the Table 20 rating criteria address levels of functional impairment on a stepped scale.  Some of the criteria are expressed in relational terms: terms such as ‘mild’, ‘moderate’, ‘more severe’ and ‘very severe’, for example.  Thus, to properly interpret the criteria applying to a particular level of impairment, it is necessary to have regard to the criteria applying to the levels above and below as well as the specific determinants at each level.

15. Doing the best with the available evidence concerning the period in question, I am reasonably satisfied that Mr Close’s impairment is consistent with the criteria at the 15 point level. Even though Mr Close’s evidence concerning his functional impairment was not challenged, much of his evidence on this point related to periods after the period to which attention must be directed, that is the period of 13 weeks after 24 August 2006. His evidence was that his back condition had deteriorated since August 2006, from which it can be inferred that his functional impairment may have worsened since that time. It is necessary to consider the contemporaneous evidence. Ms R. Stringer conducted Job Capacity Assessments on 19 September 2006 and 28 November 2006,[23] and assessed Mr Close’s functional impairment at the 15 point level under Table 20.[24]  Dr Sullivan did not provide a rating assessment of Mr Close’s impairment in his claim form or subsequently, but noted that Mr Close was “unable to lift heavy weights, bend or climb. Unable sit or stand extended periods.”[25]  There is scant evidence before me concerning Mr Close’s relevant employment history.  It appears that he worked ‘on call’ at Big W for a period of 2 years prior to August 2006, approximately 12 hours per week.  I accept that he ceased this employment because it involved heavy lifting in the garden section. Mr Close’s evidence is that subsequently, in or about January 2007 he was employed pruning trees and sorting plums, but after 40 minutes or so his back pain prevented him from continuing with that employment.[26]

[23] Exhibit T1, at T11 and T18.

[24] Exhibit T1, at T18 folio 80.

[25] Exhibit T1, at T8 folio 59.

[26] Exhibit A2 refers.

16.     Considering the rating criteria I accept Ms Stringer’s assessment that the symptoms of Mr Close’s impairment were moderate to severe and that his impairment had a moderate impact on his ability to perform or persist with work-tasks and to attend work.  Even though he lived at home and relied on his mother to assist with daily chores, I am reasonably satisfied that Mr Close retained his independence and was able to perform essential self-care. 

17.     I accept that Mr Close’s ability to perform some daily activities was limited by his impairment and that on Dr Sullivan’s medical certificates he was not able to perform full time work.  However, I am not persuaded that Mr Close’s symptoms during the relevant period were consistent with the criteria for a 20 point rating even though, on his evidence, his impairment may presently warrant such a rating.  Thus, I am satisfied that his impairment was substantially consistent with the 15 point rating criteria during the period in question, and so find.  Thus, the requirements of paragraph 94(1)(b) are not satisfied.

18.     That being so I am compelled to find that Mr Close does not satisfy the essential requirements to qualify for a disability support pension either on 24 August 2006 or within the period of 13 weeks thereafter.  It follows therefore that the decision under review must be affirmed.

19.     In conclusion I feel compelled to observe that Mr Close’s case is a difficult one insofar as, on the evidence before me, it appears that the level of his functional impairment has increased to the extent that he may presently satisfy the requirements of paragraph 94(1)(b) of the Act.  I understand Mr Close may feel frustrated by the review processes in which he has legitimately engaged.  However it appears that he has delayed participating in vocational rehabilitation and retraining programs that may benefit him pending completion of the review process.  That is unfortunate.  I note that even if Mr Close had satisfied the 20 rating point criteria the matter would not have resolved in his favour.  There is no compelling evidence before me that Mr Close was prevented by his impairment alone from undertaking a training activity within 2 years, or that such training activities would be unlikely to enable him to do any work.  In the absence of such evidence, Mr Close’s submissions on these points could not be sustained and, pursuant to subsection 94(2), I would have found that he did not have a continuing inability to work.  Thus, the matter would resolve against him.  Of course, it remains open to Mr Close to make a further claim for disability support pension in the future if his circumstances warrant it and he has appropriate evidence.

decision

20.     The decision under review is affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed: ………Jane Gribble………………………………….
  Associate

Date of Hearing  6 July 2007
Date of Decision  7 August 2007
Representative for the Applicant   Self
Solicitor for the Respondent        Ms Jillian Furner