Coppard and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1249
•23 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1249
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1490
GENERAL ADMINISTRATIVE DIVISION ) Re PAUL COPPARD Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Professor Ivan Shearer, Senior Member Date23 April 2007
PlaceSydney
Decision The decision under review is affirmed.
.............[sgd].................
Professor Ivan Shearer
Senior Member
CATCHWORDS
SOCIAL SECURITY – physical impairment – entitlement to disability support pension –impairment rating of 20 points or more under the impairment tables –“continuing inability to work” – decision under review affirmed
LEGISLATION
Social Security Act 1991 - sections 94(1)(a), 94(1)(b), 94(1)(c), 1283REASONS FOR DECISION
23 April 2007 Professor Ivan Shearer 1. The decision under review by the Tribunal is a decision of the Social Security Appeals Tribunal (“the SSAT”) published on 31 March 2006 which affirmed a decision made by an Authorised Review Officer (“ARO”) of Centrelink on 18 November 2005, and the original decision made on 28 July 2005, to reject the Applicant’s claim for a disability support pension (“DSP”).
2. The essential issue before the Tribunal is whether the applicant’s degree of permanent impairment reaches the level of 20 points or more under the applicable Impairment Tables.
3. The applicable legislation is the Social Security Act 1991 (“the Act”). Section 1283 of the Act provides for review of the decisions of the SSAT by this Tribunal.
THE BACKGROUND FACTS
4. The Applicant, Mr Coppard, is presently aged 56. From 1990 until he ceased work in February 2005 he was employed by the Wingecarribee Shire Council as a plant operator/labourer.
5. In early 2000 he was driving a tractor, with a slasher on the back, along a road in the course of his employment. The front wheels of the tractor suddenly dropped into a depression that Mr Coppard had not seen, with a resulting jarring to his back. At first he experienced no pain, but half an hour later, as he got down from his tractor, he noticed back pain and stiffness, and pain in his right leg.
6. He was examined that day at Bowral Hospital. Subsequently he was seen by his local general medical practitioner and was treated with physiotherapy.
7. Mr Coppard returned to work after three weeks. There was some improvement in his condition but he experienced continuing discomfort in his back.
8. In 2001 (he was uncertain of the exact date) Mr Coppard was involved in a freak accident with a tractor, the axle of which broke while he was driving it, causing it to collapse to the ground. This occasioned him a further jarring. He suffered a recurrence of his back and right leg pain. However, this accident did not cause him to take sick leave.
9. The pain gradually lessened, and by October 2001, as he reported to Dr Richard A. Evans, FRACP, in February 2002, the pain had nearly gone.
10. Mr Coppard came under the regular care of Dr Bill Conomos, a general medical practitioner in Moss Vale. Dr Conomos reported to the Wingecarribee Shire Council on 14 February 2005 as follows:
“I have been treating Mr Coppard for some time now and I have recently examined Mr Coppard to determine his medical condition with regard to his ongoing employment.
“Mr Coppard has a number of permanent problems and has been under care for his condition for a number of years. Mr Coppard suffers from:
1.Sciatic nerve impingement secondary to disc prolapse, and
2.Sleep apnoea.
“There are concerns about Mr Coppard’s ongoing ability to perform his work duties. Mr Coppard is at significant risk of additional injury or aggravation to existing medical conditions by continuing to work in his previous position. I understand that Council has attempted to facilitate the situation by altering his duties and responsibilities; however, this has not been successful for the long term. Mr Coppard has not been trained in any administrative or desk type work that would be compatible with his medical condition and he is probably not suited to undergo training at this stage of his career. He is unlikely to be fit in the future for any job which his past experience or training would allow him to undertake.
“As a result of my review with Mr Coppard I have recommended that he consider early retirement on medical grounds. In my opinion it is unlikely that he will be able to return to work in any capacity now or in the future.”
11. On 16 February 2005 Dr Vince Roche of Moss Vale examined Mr Coppard at the request of the Council. His report agreed with that of Dr Conomos’.
12. On 24 February 2005 Mr Coppard submitted a claim for a DSP.
13. As a result of submitting the claim Mr Coppard was referred to Dr E. Wassenaar, medical adviser, Health Services Australia. She reported on 4 July 2005 her assessment of his four claimed conditions:
- Low back pain. Mr Coppard was then receiving no medication at all for his low back pain and was likely to benefit from judicious use of analgesics. She noted that Mr Coppard was unable to do sustained physical work, and was restricted in sitting, standing, walking and bending. She noted a loss of one quarter of the normal range of movement (“RoM”) and frequent pain. But she concluded that the functional impact of this condition was temporary as it had not been treated and had not stabilised. Thus no impairment rating was assessed.
- Sciatica and knee pain. Dr Wassenaar noted that right-sided sciatica occurred at least every two weeks, lasting for up to two weeks and causing some difficulty transferring. Although assessed as a permanent condition she awarded nil impairment points.
- Sleep apnoea. Dr Wassenaar noted occasional daytime somnolence if the patient was not physically active. She noted further that Mr Coppard had seen a sleep specialist and had used a Continuous Positive Airway Pressure (“CPAP”) machine for two months, but had ceased that treatment because he did not like it. In the absence of “reasonable treatment” she assessed a nil impairment rating.
- Depression. Dr Wassenaar recorded that this condition was of recent onset and appeared to be secondary to Mr Coppard losing his job. The symptoms were “mild to moderate, causing subjective distress.” It was presently untreated. She noted further that Mr Coppard had declined counselling. She assessed a nil impairment rating.
14. Dr Wassenaar concluded that Mr Coppard was presently (4 July 2005) unfit for all work for six months because of multiple conditions most of which had not been stabilised on treatment. Thereafter he would be capable of performing light lesser-skilled work, such as process work. “He should be able to return to suitable work once medical conditions have been stabilised on treatment….His main condition is his low back pain.” She indicated that Mr Coppard should be able to return to work for 30+ hours per week within 6-24 months.
15. On 28 July 2005 Mr Coppard’s claim was rejected. Centrelink decided that the impairment ratings under the Impairment Tables, set out in Schedule 1B to the Act, should be assessed as: Back pain – nil points (as the back pain was considered temporary); sciatica – nil points; sleep apnoea – nil points (considered to be temporary); depression – nil points (also considered to be temporary). Since a combined rating of 20 points or more, and an inability to work because of a medical condition, are required for the award of a DSP, Mr Coppard did not qualify.
16. An ARO affirmed this decision on 18 November 2005, subject to the substitution of an impairment rating of 10 points for the earlier rating of nil points in respect of Mr Coppard’s back condition.
17. Mr Coppard appealed against this decision to the SSAT on 1 December 2005.
18. Prior to the hearing of his appeal to the SSAT Mr Coppard was referred by his general medical practitioner, Dr Conomos, to a specialist psychiatrist, Dr Warwick Williams, FRANZCP. Dr Williams reported on 16 February 2006 that, on examination, Mr Coppard presented as “severely hearing impaired”. (It is to be noted that hearing loss was not given as a condition for which the DSP had been claimed). Regarding Mr Coppard’s depressive condition, Dr Williams found that he had “agoraphobia, panic disorder, a host of other phobias, and dysthymic disorder.” Dr Williams doubted that any treatment by way of behaviour therapy would be successful, but recommended a cautious trial of medication.
19. The SSAT handed down its decision on 31 March 2006. It considered the issues, arising under section 94 of the Act, to be:
· whether Mr Coppard had a physical, intellectual or psychiatric impairment that has been fully diagnosed, treated and stabilised;
· whether Mr Coppard had an impairment rating of 20 points or more; and if so,
· whether Mr Coppard had a continuing inability to work.
20. The SSAT decided that Mr Coppard satisfied the condition of section 94(1)(a) of the Act in that he suffers from depression, sleep apnoea, lower back pain, and sciatica secondary to disc prolapse. However, the SSAT was unable to find an impairment rating of more than the 10 points assessed by the ARO in relation to his lower back condition. In relation to other conditions the SSAT upheld the assessment of nil points. Thus the claim failed.
21. The SSAT referred to the report of Dr Warwick Williams of 16 February 2006. In so far as that report revealed a loss of hearing, the SSAT considered that “it is clear that further investigation is required in relation to this issue.”
THE APPLICABLE LAW
22.The Act relevantly provides:
“94(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:
(d)(i) the person has a continuing inability to work; ….”
EVIDENCE AT THE HEARING
23. Mr Coppard gave evidence before the Tribunal. He stated that he had been off work since February 2005. Regarding his back he considered that his condition merited an assessment of more than 10 points. Regarding his sciatica and lower limb condition he stated that he would be capable of working but only with frequent getting up and moving around. He was taking four to six tablets a day for his sciatica, but no medication for his knee. With respect to his sleep apnoea, it was not too bad. He would sleep from midnight until 4 am, and then maybe a couple of hours later on. He falls asleep in front of the television. So far as any psychiatric condition was concerned, he did not regard himself as depressed. His hearing loss was now no worse than last year. He handed to the Tribunal a copy of the latest audiogram dated 26 June 2006.
24. In answer to Mr Kenny, for the Respondent, Mr Coppard stated that he had received physiotherapy for his back, but none since 2001. “It didn’t help me.” He drives the family car, but would not consider taxi driving as an occupation - “I would have panic attacks”. He could do such jobs as lawn mower repairs if offered such a job; he did repairs to his own machine. His sciatica seemed to be getting worse. He takes four tablets a day for this condition. He might be able to sit for several hours but this was dependent on whether “my knee was playing up.” With medication he could stand for several hours at a time but in the last seven months this had become more difficult. Regarding sleep apnoea, he had tried CPAP treatment for about 12 months but without much help. However, he had resumed this treatment in the last six months. Regarding depression, he was presently taking Zoloft, half a pill a day, “but it doesn’t help”. Could he manage a sales job? “I couldn’t deal with the public. I am too anxious. I like to work on my own.”
25. Mr Coppard was asked why he had not included hearing loss as part of his claim for DSP. He stated that he first received a hearing aid in June 2006, “but it didn’t help much.” He found it itchy and uncomfortable. His present hearing difficulty occurs mainly when he is in groups or with background noise.
26.Neither the Applicant nor the Respondent called any oral medical evidence.
27. However, the Respondent tendered a Work Capacity/Participation Assessment Report dated 11 August 2006. This was prepared in relation to Mr Coppard’s present application for review by this Tribunal. In that Report it was stated that Mr Coppard’s diagnosed conditions of low back pain, sciatica, and hearing impairment were stabilised (i.e. not expected to improve). His conditions of sleep apnoea and depression were stated as being temporary. The impairment ratings assessed were five points for low back condition, nil for sciatica, and 30 for hearing loss. The Report declared that Mr Coppard was incapable of returning to his previous occupation of crane operator, tractor/grass slasher operator, but that, with assistance from vocational rehabilitation services, he should be able, on a gradual basis, to return to work for 30+ hours per week within two years. Suggested as suitable work were hardware sales, light mechanical repairs/bench repairs, gate keeper and bench assembly (with opportunity to change posture).
EVALUATION OF THE EVIDENCE
28. It is clear that Mr Coppard suffers from low back pain, sciatica, right knee pain, hearing loss, sleep apnoea and psychological impairment and therefore satisfies section 94(1)(a) of the Act.
Impairment rating of 20 points or more
29. Does he, however, satisfy the provisions of section 94(1)(b) of the Act requiring a combined impairment rating of 20 or more points? The ARO and the SSAT found an impairment rating of 10 points for the low back condition and nil points for the other conditions (except for hearing loss which was not part of the claim for DSP). Counsel for the Respondent argued that the appropriate impairment rating for Mr Coppard’s low back pain was only five points, since neither the ARO nor the SSAT had provided any relevantly detailed analysis or argument in support of an additional five points. A rating of five points was also given in the Work Capacity/Participation Assessment Report prepared in anticipation of the present hearing.
30. It is true that the SSAT was somewhat tentative in giving a rating of 10 points for the low back condition – “It is likely that he meets the requirements for a ten point impairment rating in respect of his back condition and the Tribunal was prepared to accept that this is the case”. But it is not true that the SSAT gave no reasons. It referred to Table 5 of Schedule 1B to the Act and to the one quarter loss of range of movement as well as back pain and difficulties with standing and sitting, that were part of Mr Coppard’s medical record. The Tribunal also takes into account the evidence given by Mr Coppard in the present application for review. The Tribunal does not therefore find sufficient ground for setting aside the SSAT’s finding on that point.
31. Mr Coppard was unable to point to any errors in the assessment of his impairment ratings by the decision makers in his case, other than a general argument that his back condition merited “more than 10 points”. As at present, the Tribunal can find no ground in the evidence before it for a higher overall impairment rating than 10 points.
32. Mr Coppard’s hearing loss was not part of the present case, nor could it have been, since his first diagnosis occurred after he submitted his claim for DSP. If he chooses to apply again for DSP that impairment may be considered.
Continuing inability to work
33. So far as continuing inability to work (section 94(1)(c) of the Act) is concerned the Tribunal accepts the assessment carried out in May 2006, detailed above in these Reasons at paragraph 27, as consistent with all the other evidence before it.
DECISION
34. The decision under review is affirmed.I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Professor I Shearer, Senior Member
Signed: .......K Portus..........................
AssociateDate of Hearing 29 January 2007
Date of Decision 23 April 2007
Appearance for Applicant Self-represented
Advocate for the Respondent Mr John Kenny of Centrelink Legal Services
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