Counsell and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1549

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1549

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200501174

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		DAVID COUNSELL

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr R. McRae, Member

Date16 July 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) R. McRae

Member

SOCIAL SECURITY ‑ disability support pension ‑ constant pain - thoracic spine - constant neck pain - lower back pain - headache - whether 20 impairment points ‑ continuing inability to work - inability to be re-trained

Social Security Act 1991 ss 94(1), (2), (3) and (5), Schedule 1B

Social Security (Administration) Act 1999 ss 41, 42, Schedule 2, clause 3 and 4(1)

REASONS FOR DECISION

16 July 2007 Dr R. McRae, Member

1. Mr David Counsell (the Applicant) lodged a claim for disability support pension (DSP) with Centrelink on 11 April 2005. Centrelink acts as the service delivery agency for the Secretary to the Department of Employment and Workplace Relations (the Respondent). On 16 May 2005 Centrelink rejected the claim because the Applicant’s impairment was considered temporary or likely to improve within two years and he therefore failed to satisfy s 94 of the Social Security Act 1991 (the Act).  The Applicant sought a review of the decision by a Centrelink authorised review officer (ARO).  On 19 August 2005 the ARO affirmed the decision to reject the Applicant’s claim.  The Applicant then sought review of the decision by the Social Security Appeals Tribunal (SSAT).  On 16 November 2005 the SSAT affirmed the decision.  The Applicant now seeks a review of the SSAT decision by the Tribunal. 

2. The issue for the Tribunal is whether the Applicant was entitled to DSP under s 94(1) of the Act at the time of the claim for DSP or within the subsequent 13 weeks (the relevant qualifying period). The Tribunal’s decision is that the Applicant was not entitled to DSP during the relevant qualifying period.

3. The Applicant was self-represented. The hearing was conducted by telephone at the Applicant’s insistence. The Respondent was represented by Mr T. Noonan, a Centrelink advocate. The Tribunal had before it documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents).  The Tribunal received additional documents into evidence. 

4.      The Respondent called Dr T. Paulson, a medical advisor with Health Services Australia (HSA) for 16 years, Ms W. Robinson, a registered nurse with HSA for seven years, and Ms L. Natividad, a physiotherapist with expertise in rehabilitation and job capacity assessment and one of Victoria’s two trained experts in DSP appeal assessments, as witnesses.  The witnesses’ evidence was by telephone.

BACKGROUND

5.      The Applicant is a 37-year old married Australian man, who lives with his partner.  The Applicant was educated to Year 10 level, and has worked as a farm labourer/manager for many years.  This involved significant physical work.  He has a medical history of (congenital) Schuermann’s disease of the thoracic spine.  He stopped working in March 2005 after a fall, which aggravated his thoracic Schuermann’s disease, about one month prior to lodging his DSP claim.  He received Newstart Allowance from 23 March 2005, during which period he provided Centrelink with three-monthly medical certificates.  

6.      The Applicant lodged a claim with Centrelink for DSP on 11 April 2005, claiming neck and back constant pain.  He also lodged a Treating Doctor’s Report (TDR), dated 11 April 2005 and completed by the Applicant’s local general medical practitioner, Dr White, in support of the claim.  Dr White had managed the Applicant since 2002. 

7.      Centrelink had the Applicant examined by Ms Robinson.  She provided a work capacity assessment dated 5 May 2005.  Ms Robinson assessed the back condition as being permanent yet potentially improvable, and awarded the condition an impairment rating of 15 points under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension in Schedule 1B of the Act (the Impairment Tables). 

8.      The claim for DSP was rejected on 16 May 2005.  The Applicant lodged a further TDR by Dr White dated 3 June 2005.  It did not alter the decision to reject the DSP claim.  On 15 July 2005 Dr Paulson reviewed this further TDR and Ms Robinson’s impairment assessment on behalf of Centrelink, and agreed with the assessment. 

9.      The ARO affirmed the rejection on 19 August 2005. 

10.     The SSAT reviewed the medical evidence and determined that the Applicant’s back pain, neck pain and headache had not been fully investigated, treated or stabilised.  The SSAT affirmed the decision on 16 November 2005.

APPLICANT’S SUBMISSIONS

11.     The Applicant stated that he relies on the three-monthly medical certificates provided for Newstart Allowance.  The Applicant relied on the TDRs from Dr White and the tendered letters.  Dr White’s letter dated 7 September 2006 (Exhibit A1) referred to constant cervical spine pain, constant thoraco-lumbar pain and migraine headaches.  The letter stated he is unable to be re trained (sic).  The Applicant tendered Dr White’s letters dated 19 July 2006 (Exhibit A3) and 10 March 2006 (Exhibit A4).  The Applicant also tendered his reply to Ms Natividad’s 12 December 2006 Job Capacity Assessment (Exhibit A2).  There was no new medical evidence in these documents relevant to the qualification period for DSP. 

12.     Under cross-examination the Applicant stated that his main problem is constant pain in his lower back, moving into his groin and left thigh and associated with a burning sensation on the outside of his thigh caused by frequent bending and lifting of up to 3 kg poultry following a flare up after a fall onto [his] bottom, which stirred everything up and headache/migraine.  He takes Panadeine or mersyndol all the time, and lives with it.  He undertakes physiotherapy exercises he was shown around 1996, and visits a chiropractor and has had acupuncture.

RESPONDENT’S SUBMISSIONS

13. The Respondent tendered Ms Natividad’s Job Capacity Assessment report dated 12 December 2006 (Exhibit R1) and Dr White’s clinical record relating to the Applicant (Exhibit R2). This report indicated no recent investigation or treatment had occurred since the time of the DSP claim, and expressed a likelihood of benefit from rehabilitation and treatment. The Respondent submitted that the Applicant did not satisfy s 94(1)(b) of the Act during the relevant qualifying period.

14.     Under cross-examination the Applicant agreed there had been no recent imaging of the spine or consultation with other medical practitioners, despite him having noticed increased restriction in his mobility and new neurological symptoms. 

15.     Dr Paulson stated that she agreed with Ms Robinson’s assessment of 15 points under Table 20 as the main problem was pain, and she considered the impact was moderate rather than severe.  She relied on the TDRs, and considered that it was unlikely treatment intervention would lead to significant improvement.  She considered that with rehabilitation and vocational training the Applicant could undertake semi-sedentary full-time work. 

16.     Ms Robinson’s evidence was consistent with Dr Paulson’s evidence.  She considered the main problem was chronic pain, hence the appropriateness of Table 20 over Table 5 (for spinal problems).  She assessed the impairment at 15 points as the Applicant’s independence was maintained, but with a moderate impact on his ability to work at a moderate level and work attendance.  She considered that by avoiding prolonged standing, he would be able to achieve 30 hours of work per week within two years. 

17.     Ms Natividad’s evidence was that more recent imaging would facilitate accurate diagnosis and treatment, and lead to an opportunity to find appropriate employment related to functional capability if preferred work is no longer suitable.  There were some radiographs from 2000.  However, they are not relevant to the recent injury and symptom exacerbation.

LEGISLATION

18. Section 94(1) of the Act provides that:

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…

19.     Paragraphs 4, 5 and 8 of the Introduction to the Impairment Tables provide that:

…

4.  A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.   The first step is thus to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.   In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

5.  The condition must be considered to be permanent.   Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.   This will be taken as lasting for more than two years.   A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

…

8.  In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it.   For example, Table 5 should be used for spinal pathology.   However, where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates.   Medical officers must use their clinical judgement and be convinced that pain or fatigue is a significant factor contributing towards the person's overall functional impairment.   Medical reports and the person's history should consistently indicate the presence of chronic entrenched pain or fatigue.

…

FINDINGS

20.     The evidence is consistent that the Applicant’s fall in March 2005 was a significant event precipitating new symptoms.

Thoracic Pain

21.     There is consistent evidence that the Applicant has Schuermann’s disease and associated thoracic pain.  However, the most current radiological evidence is a report dated 11 May 2000, well prior to the DSP claim.  There is no plan of management and there are poor treatment recommendations. 

22.     The Tribunal considers the thoracic pain had not been fully investigated, treated and stabilised during the relevant qualifying period.  Therefore, the Tribunal cannot assign an impairment rating to this condition. 

Lower Back Pain

23.     There is consistent evidence that the Applicant has lower back pain.  However, there is no plan of management and there are poor treatment recommendations. 

24.     The Tribunal considers the lower back pain had not been fully investigated, treated and stabilised during the relevant qualifying period.  Therefore, the Tribunal cannot assign an impairment rating to this condition. 

Neck Pain

25.     There is consistent evidence that the Applicant has neck pain. However, there is no plan of management and there are poor treatment recommendations. 

26.     The Tribunal considers that the neck pain had not been fully investigated, treated and stabilised during the relevant qualifying period.  Therefore, the Tribunal cannot assign an impairment rating to this condition. 

Headache

27.     There is consistent evidence that the Applicant has frequent migraine headaches. However, there is no plan of management and there are poor treatment recommendations. 

28.     The Tribunal considers the neck pain had not been fully investigated, treated and stabilised during the relevant qualifying period.  Therefore, the Tribunal cannot assign an impairment rating to this condition. 

CONCLUSION

29. The Tribunal is satisfied that the Applicant suffers from, Schuermann’s disease and therefore a physical impairment during the relevant qualifying period. He thus satisfies s 94(1)(a) of the Act. However, no impairment rating can be assigned to the physical impairment as none of the conditions were permanent as defined in the Act. Therefore, he does not satisfy s 94(1)(b) of the Act. There is no requirement to consider s 94(1)(c) of the Act in the circumstances.

30.     The Tribunal concludes that the Applicant did not satisfy the requirements necessary to qualify for DSP during the relevant qualifying period. 

DECISION

31.     Accordingly, the decision of the Respondent to reject the Applicant’s claim for DSP was the correct decision.  The Tribunal affirms the decision under review.

I certify that the thirty‑one [31] preceding paragraphs are a true copy of the reasons for the decision of:

Dr R. McRae, Member

(sgd):      Olympia Sarrinikolaou

Clerk

Date of Hearing:  27 March 2007

Date of Decision:  16 July 2007

Advocate for the Applicant:               Self‑represented

Advocate for the Respondent:           Mr T. Noonan, Centrelink Legal Services Branch