Daryl Pattle and Secretary, Department of Social Services

[2014] AATA 683

[2014] AATA 683

Division	General Administrative Division
File Number	2014/1232
Re	Daryl Pattle
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President S D Hotop Dr J Chaney, Member
Date	18 September 2014
Place	Perth

The decision under review is affirmed.

........................[sgd]..........................................

S D Hotop

Deputy President

CATCHWORDS

SOCIAL SECURITY – disability support pension (DSP) – applicant claimed DSP – applicant's claim rejected – applicant had medical conditions resulting in impairment in relevant period – applicant's impairment is of 5 points under Impairment Tables – applicant not qualified for DSP in relevant period – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth), s 41(1), s 42 and Sched 2, cl 4

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Deputy President S D Hotop
Dr J Chaney Member

18 September 2014

Introduction

1. Daryl Pattle (“the applicant”) has applied to the Tribunal for review of a decision of the Social Security Appeals Tribunal (“SSAT”), dated 9 December 2013, which affirmed a decision of a Centrelink Authorised Review Officer (“ARO”), dated 4 September 2013, rejecting the applicant’s claim for disability support pension (“DSP”) under the Social Security Act 1991 (Cth).

   The Evidence

2. The evidence before the Tribunal comprised the “T Documents” (T1–T19, pp 1–172) lodged by the Secretary, Department of Social Services (“the respondent”) in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), and:

   ·Exhibits A1–A5 tendered by the applicant; and

   ·the oral evidence of the applicant.

   Factual Background

3. The following relevant factual background appears from the T Documents.

4. On 4 April 2013 the applicant (who was born in April 1979) lodged with Centrelink a completed claim for DSP (T4) in which he indicated that:

   ·his disability was “degenerate disc at L5/S1 (spine) and protrusion”;

   ·his current treatment comprised “pain killers and doctors check ups”.

   In answer to the question: “Does this treatment affect your ability to work or study (eg your mobility, capacity to lift/carry, day to day living, ability to remember and communicate with other people)?”, the applicant wrote:

   “ restricts mobility, day to day living, capacity to lift/carry, stand or sit”.

5. A DSP Medical Report, dated 2 April 2013, completed by Dr Victoria Buntine (T5, pp 20–30) referred to two medical conditions presently suffered by the applicant, namely, “chronic lower back pain & pain syndrome”, and “paranoid personality traits”.  Dr Buntine indicated that the former condition had the most impact on the applicant’s ability to function, whereas the latter condition had minimal or limited impact on his ability to function.  As regards the former condition, Dr Buntine indicated that:

   ·the diagnosis is “confirmed” and is supported by further specialist opinion, namely, “RPH Pain Centre, Dr Paul Taylor”;

   ·current treatment is “nil”;

   ·past treatment was “physio extensively”;

   ·future/planned treatment is “nil”;

   ·current symptoms are “lower back pain & bilateral leg pain”.

   In response to the following request for information:

   “ Details about how this condition and its treatment currently impact on the patient’s ability to function

   Be specific and consider the impacts on:

   ·endurance

   ·movement/dexterity (eg walking, bending, sitting, standing, lifting/ carrying/manipulating objects)

   ·neurological/cognitive function (eg concentrating, decision making, memory, problem solving)

   ·functions of consciousness (details of involuntary loss of consciousness or altered consciousness (eg seizures, migraines)

   ·behaviour, planning, interpersonal relationships

   ·sensory function (eg seeing, hearing, speaking)

   ·digestive, reproductive, continence function

   ·need for care (eg support in daily living, support accommodation or nursing home/hospital care).”

   Dr Buntine wrote merely:

   “ This pt has developed a pain syndrome & has failed all attempts by Workcover to rehabilitate back to the workforce.”

   Dr Buntine also indicated that:

   ·the impact of this condition on the applicant’s ability to function is expected to persist for “more than 24 months”; and

   ·within the next 2 years the effect of this condition on the applicant’s ability to function is expected to “remain unchanged”.

6. On 12 April 2013 a job capacity assessment of the applicant was conducted by a qualified social worker who produced a report dated 30 April 2013 (T7).  In that report the Assessor considered the following medical conditions, namely, “Chronic Pain” and “Psychol/Psychiatric Disorder”, and resulting impairment, and made the following assessment regarding the applicant’s work capacity:

   “ Temporary Work Capacity: 15-22 Hours per week

   End Date: 31/10/2013

   Rationale:Failed return to work programs due to increased pain with activities.  Exacerbated by physical deconditioning and psychological issues as outlined by health specialists.  Recommend a slow and graduated return to work in order to avoid further injury.  Specialists recommend work with nil repetitive lifting, pushing or pulling.  Nil security work due to psychiatric concerns.  If driving, avoid rough terrain.  Psychological factors likely to have an impact on his overall prognosis.

   Baseline Work Capacity: 30+ Hours per week

   (Excludes any temporary impacts noted above)

   Rationale:Dr Philip Hardcastle: Consultant Orthopaedic Surgeon: 26/10/2012: recommends full time work with a graduated return program.  Psychological/psychiatric issues will need to be addressed to facilitate a return to work according to Psychiatrist: Dr Laugharne: 16/10/12.  Daryl did not report any current chronic pain symptoms and is not undertaking any current treatment regime for the management of chronic pain.  Daryl refutes the existence of a mental health condition and did not report any current treatment associated with a mental health condition.  There were nil obvious psychiatric symptoms noted during assessment to suggest a psychotic illness that would limit work capacity.

   Suitable work:   Light skilled (W01)

   Examples:Assembly work, data entry, administration.

   Capacity for work within 2 years with Intervention: 30+ Hours per week

   Rationale:a/a

   Suitable work:   Light skilled (W01)

   Examples:a/a”.  (T7, p 54)

7. On 28 May 2013 the applicant was notified by Centrelink that it had been decided that he was not eligible for DSP and that, accordingly, his claim for DSP had been rejected (T9).

8. On 4 September 2013 an ARO affirmed the abovementioned decision of 28 May 2013 (T13, T14).

9. On 9 December 2013 the SSAT affirmed the ARO’s decision of 4 September 2013 (T2).

   The Applicant’s Evidence

10. The applicant did not dispute the SSAT’s summary of his evidence to that Tribunal as set out in paras 27 and 31 of its Reasons for Decision (T2, pp 7–9) as follows:

    “ Condition 1 – Chronic low back pain.

    27.     Mr Pattle told the Tribunal:

    ·He developed back pain in 2009.  At the time he was working as a factory labourer, handling concrete panels.  He thought it was just a strain and carried on working with the aid of painkillers for a week or two.

    ·The pain started to get worse and he went to his GP, Dr Buntine.  She arranged for a CT scan of his lower back and put him off work through the workers compensation system.

    ·The CT scan showed a disc protrusion at the L5/S1 level with pressure on the right S1 nerve.

    ·Dr Buntine recommended physiotherapy and also arranged for him to have an injection in the back.

    ·Around this time Dr Buntine also referred him to Dr George Wong, a neurosurgeon.  Dr Wong told him he thought things would settle down.

    ·His symptoms began to improve and Dr Buntine decided he could return to work on light duties.

    ·After being back at work on light duties for about two weeks he experienced a severe spasm in the lower back whilst getting dressed one morning.  He could not move and called an ambulance which took him to the emergency department at Royal Perth Hospital (RPH).

    ·He was kept under observation for one or two hours and then discharged back to the care of his GP, Dr Buntine, with pain killers and a set of crutches.

    ·Dr Buntine put him off work, arranged another CT scan, started physiotherapy and hydrotherapy and referred him back to Dr Wong.

    ·Dr Wong arranged for an MRI scan but did not recommend surgical treatment.

    ·Around this time, through the workers compensation system, he underwent a trial of work with Convergence Electronics Support.  This lasted about three weeks but he was in too much pain to continue.

    ·Dr Buntine arranged for another MRI scan and sent him for an opinion from Dr Paul Taylor (spinal orthopaedic surgeon) and also referred him to the Sir George Bedbrook Spinal Unit at the Shenton Park Campus of Royal Perth Hospital.

    ·Dr Taylor said that surgery would not help, but observed a possible annular tear in the L5/S1 disc.  The physiotherapist at Shenton Park recommended an exercise programme plus a psychologist.

    ·Around this time the insurance company handling the workers compensation claim started to hassle him. They arranged for him to be examined by a psychiatrist, Dr Laugharne and an orthopaedic specialist, Dr Hardcastle.

    ·Both these doctors suggested there may be psychological factors affecting him and neither seemed willing to acknowledge the degree of pain he was experiencing.

    ·He has never been referred to a pain specialist, but will discuss this with his GP.

    ·The current situation is that he is in constant pain.  It is mainly in the lower back but moves to the buttocks, legs, and feet, where he has tingling sensations.  It is made worse by moving.

    ·He has a hot shower in the mornings which helps him get about.

    ·For pain relief he uses over-the-counter medications such as Ibuprofen.  He tries to exercise most days with a 15 minute walk as he knows this will strengthen his back.

    ·He lives alone in a rental unit.  He does his own shopping and cooking.  He does not have a driving licence.  He walks to the shops (five or ten minutes).  He does a weekly big load of shopping and often will use the shopping trolley to bring it home.  He can carry smaller loads when necessary.

    ·He cleans his unit when necessary but is wary of damaging his back.  He believes there is pressure on a nerve and doing too much could make this worse and eventually stop him being able to walk.

    ·He can do most things at waist height such as eating and using a computer.  He could pick something off the floor if he had to, but would try and avoid this to protect his back.  Likewise he avoids overhead activities if possible.

    ·His mother comes to see him most weeks.  She takes him to her home so he can do his washing.

    ·He has little other social life.  He spends much of his day sitting watching TV or resting.”

    “ Condition 2 – possible mental health problems

    31.     Mr Pattle told the Tribunal:

    ·He has read all the specialists’ reports and does not accept that he might have a psychological problem.  He thinks the specialists just say what the insurers want to hear.

    ·His only problem is chronic pain and fear of doing more serious permanent damage to his back.

    ·He is currently getting legal advice because of the dispute with the workers compensation insurers.

    ·He is concerned that the nerve damage in his back has affected his bladder function.  He has been to the emergency dept at RPH about this and is waiting for an appointment with a urologist.

    ·He does not believe psychological counselling will help him cope with the chronic pain.”

11. The applicant added that he wakes up each morning, after 8 hours’ sleep, with pain symptoms and that he then has a hot shower which decreases the symptoms for the next couple of hours.  He said that, without a hot shower after waking up, his symptoms would “increase dramatically”.  He also said that he had participated in a vocational rehabilitation program with Star Injury Management Services in the period from 8 February 2010 to 18 August 2011, and he tendered in evidence an Initial Rehabilitation Planning Report of Star Injury Management Services dated 8 February 2010 (Exhibit A3) and a Final Rehabilitation Report of Star Injury Management Services dated 18 August 2011 (Exhibit A4).

    The Medical Evidence

12. In addition to the abovementioned DSP Medical Report, dated 2 April 2013, completed by Dr Buntine (see paragraph 5 above), the following medical reports are included in the T Documents.

    Radiological Reports

13. A report of a CT of the applicant’s lumbosacral spine on 19 October 2009 concluded:

    “ A moderate right paracentral disc protrusion at L5/S1 level is seen to impinge on the descending right S1 nerve root.”  (T8, p 72)

14. A report of a MRI of the applicant’s lumbar spine on 17 May 2010 concluded:

    “ L5/S1 disc degeneration with a very shallow right poterolateral disc protrusion and transverse annulus fissure touching but not compressing the right S1 root.”  (T8, p 73)

15. A report of an MRI of the applicant’s lumbosacral spine on 24 May 2011 concluded:

    “ A degenerate disc at L5/S1.  Capacious canal with no feature of dural sac or nerve root compromise.  No facet joint arthropathy shown.”  (T8, p 71)

    Dr Paul Taylor

16. A report of Dr Taylor, Spine Surgeon, dated 4 October 2011, relating to the applicant, which is addressed to Dr Buntine, states:

    “ …

    He tells me that his back pain is 10 out of 10 much of the time.  He gets bilateral sciatica.  He has tried to return to work but he feels that he is incapable of doing any work as it stirs up his pain.  He doesn’t have any bladder or bowel symptoms.  He describes himself as otherwise fit and well, he is smoker [sic] and drinks half a bottle of spirits or thereabouts a week.

    On examination there were several signs of inconsistency throughout the examination.  Straight leg raising was only 5 degrees bilaterally whereas he could sit to 90 degrees with his legs extended on the couch.  He walked freely and normally into the examination room, but his movements were abnormal, disturbed and he appeared to be projecting pain response to movements during the examination that I had seen him conduct before I commenced the clinical examination without problem.  Axial compression was mildly positive, simulated rotation was painful.  Movement of his hip joints was also painful.  Neurological testing of his lower limbs was normal however and there was no evidence of any discrete radiculopathy.  He described tenderness in the lower lumbar spine saying that he felt painful ‘in his disc’.

    I reviewed a number of the MRI scans including the latest one of May 2011.  Whilst there is a degenerate disc at 5/S1 [sic] with a small high intensity zone which probably represents an annular tear, there was no neural compression and I could not see any pathology that matched with the severity of his presentation during the examination..

    I have told Mr Pattle that I cannot see any surgically remediable pathology.  I have told him that I think he should take the analgesia that he needs to help him to return to work, slowly at first, and try and work through his pain barrier.  I do not think there is any specific surgical treatment that he necessarily needs.  If he has flares of his sciatica, then perhaps a caudal epidural administration of local anaesthetic and steroid may help dampen down the flares, but I suspect the yield may be low.

    …”  (T5, pp 39–40)

    Dr Philip Hardcastle

17. A medico-legal report of Dr Hardcastle, Orthopaedic Surgeon, dated 26 October 2012, relating to the applicant, which is addressed to a workers’ compensation insurer, states:

    “ …

    PROGRESS

    Mr Pattle was last reviewed on the 14 March 2011 and reports no further injuries or treatment.

    He has been reviewed by Mr Paul Taylor who cannot find any surgically amenable pathology from his letter, which is consistent with the other opinions.

    He said that he last did a work trial around the period I last saw him.  He said he was doing plastic assembly with variable hours in which he graduated from two hours up to fifteen hours over about a six week period.

    Initially, he managed this work which involved mainly sitting and standing, but because he got increased neck pain after five weeks when the hours were increased, this was stopped.

    He reports having some throat problems with reflux and difficulty with swallowing recently, but he has not had any treatment yet for this though I noticed he did have an abdominal CT and a gastric investigation with barium swallow on 27 July 2011.  This demonstrated gastro-oesophageal reflux so this has been a problem he has had for some time and unrelated to his work problems.  He also reports a hoarse voice developing.

    He reports over the last two weeks he has been getting numb like sensations in his feet which go to sleep when he crosses his legs.  He has also reported some recent pain in the neck region and that some times neck movements will cause back pain, which is a recent phenomenon.

    He is not having any specific treatment and takes Ibuprofen on average thirty tablets a month and caffeine [sic] tablets which he finds helpful in the morning.

    CURRENT STATUS

    He gets headaches which he thinks is due to his wisdom teeth.  There has been some recent neck pain which I have reported above, aggravated by sitting.

    Low back pain continues to be constant and is present in the morning with numbness in his feet and he finds the main aggravating factors are moving, sitting, walking and getting up and down.  After he has done some activity, if he rests, the pain becomes more significant, so he takes medication at that time.

    He also gets pain which can shoot through his legs with no specific pattern.  This is intermittent into his legs and feet on both sides.  He can have some pain free days without any back or leg pain.

    The numbness that he is referring to in his feet is intermittent and hard to predict.  His leg pain is also hard to determine aggravating or relieving factors.

    He said the more inactive he is the less pain he gets, and he only occasionally wakes at night.

    Lifting is reasonably comfortable though it can be painful, but if he tries any repetitive lifting he gets increased pain.  He was not sure of his lifting tolerance.

    Bowel function is reported as normal and he said he can have some difficulty with bladder function, particularly having to strain, and he gets some dribbling.

    CURRENT ACTIVITIES

    He still uses public transport and lives in a unit by himself and does not have a partner.  He gets the inside duties done and is independent in the unit.  He goes to the shops which are about 700 m away.  He said he cannot go to movies or dinner but his mother lives close by, and he visits her and does his washing there.  He has a sister living with his mother who has a baby and he helps his mother with the babysitting, though he does not do any specific activities with his sister’s baby.  He also has a brother who he visits, but does not specifically go out.

    On his self assessed Oswestry Questionnaire he reports the following:

    ·Pain is moderate at the time of assessment.

    ·Painkillers give moderate relief from pain.

    ·Painful to look after himself and he is slow and careful.

    ·Pain prevents him from sitting more than one hour.

    ·Pain prevents him from standing more than one hour.

    ·Pain prevents walking more than 2 km (20 minutes).

    ·Can lift heavy weights but it gives extra pain.

    ·Occasional sleep disturbance.

    ·Pain has restricted his social life and he does not go out as often.

    ·Pain restricts him to short journeys of under thirty minutes.

    CLINICAL ASSESSMENT

    He was a well looking man with short brown hair who was 188 cm in height, weighing 92 kg.

    Head/Neck

    He had a relatively long cervical spine with no tenderness and extension was 20 degrees, flexion of full range, rotation 80 degrees to both sides and lateral flexion 20 degrees bilaterally and he had some increased pressure with compression and distraction felt good in relation to his cervical spine.

    Upper Limbs

    These had a normal appearance with no callosities, laxities, swellings or tremor and a full range of movement.

    Back/Spine

    There were normal curves and there was tenderness over the L3-S1 segments on both sides with forward flexion, the fingertips coming to 4 cm below the knees.  Extension was 15 degrees, lateral flexion the fingertips came to the lower thigh with pain at the extreme and rotation was 20 degrees to both sides again with pain at the extreme.

    Simulated rotation was positive and head compression test negative.

    Lower Limbs

    There was normal alignment and straight leg raising was 80 degrees on the right and 50 degrees on the left.

    Reflexes were symmetrical and intact and the slump test was negative on both sides though it caused low back pain, and femoral stretch test only went to 45 degrees with quite marked pain inhibition on both sides but no specific radicular pain was induced.

    Motor and sensory examination was normal.

    He could walk on his toes, heels and squat with the knees flexing to 90 degrees.

    Quadriceps and calf circumferences were equal to measurement.

    INVESTIGATIONS

    …

    3.      MRI Lumbosacral Spine (24/05/2011)

    These films were reviewed and still show a sagittal annular tear (this though is likely to be artefact) but it is not visible on the axial films.  There is no evidence of any neural compression with degeneration localised to L5-S1 and normal intervertebral discs and facet joints above.  There is no specific degeneration at L5-S1 facet joint and there is paraspinal wasting with a stable facet alignment at the L5-S1 level.

    OPINION

    Mr Pattle continues to complain of ongoing persistent low back pain with some referral to both lower limbs.  The clinical presentation is of fairly non specific symptoms and there is no objective evidence of any neural compression with the bilateral leg symptoms being referred.  Treatment should remain conservative.

    He has now undergone a full range of conservative treatment and I would not recommend any other methods now.  Rehabilitation attempts to get him back to work have proved unsuccessful.  There do appear to be some non organic factors acting but these are out of my area of expertise.  He has reached Maximal Medical Improvement and there is no further specific treatment that can be offered at this stage.

    Certainly there are no adverse radiological findings that would prevent potential long term improvement in his condition.

    In answer to your specific questions:

    …

    6.In your opinion, were there any obvious discrepancies between the claimant’s symptom presentation and your clinical findings?  If so, please specify the nature and extent of those discrepancies.

    He does present with evidence of non specific pain and there is a history of psychiatric dysfunction referred to in Dr Gemma Edwards’ [sic] report.  The latter is out of my area of expertise but certainly with the clinical presentation, there is evidence of psychological dysfunction being a contribution to his underlying pain syndrome.

    7.Could you please provide a statement as to the nature of the claimant’s injuries?

    It is likely he has had a strain injury to the posterior annulus which has healed.  This has not resulted in any specific discogenic pathology of any significance.

    8.Are you of the opinion that the claimant suffers some sort of ‘illness conviction’, ‘pain syndrome’, or ‘abnormal illness behaviour’.  Could you please explain what these conditions are and how they are diagnosed?  Is it possible to distinguish the symptoms suffered in the above conditions to the presentation of someone malingering.

    There is evidence of pain syndrome.  This is very vague and relates to patients who present with a high level of subjective pain but on clinical examination and radiological findings there is no evidence of any organic pathology of significance to account for these symptoms. It is more a diagnosis of exclusion.  It is not necessarily a sign of malingering but it can be a sign of poor motivation, although activity does tend to aggravate his symptoms, from his history.  Patients who do have pain syndrome and are relatively inactive do tend to get increased muscular type non specific symptoms.  He did report that three years ago when he was having hydrotherapy and a gym program, he improved quite a lot.

    9.In your opinion, has the claimant made a recovery from the injuries he sustained on 16 June 2009 and, if so, is his recovery total or partial?  Please provide reasons for reaching your conclusion based on your findings.

    The evidence is that from the underlying organic pathology he has made a good recovery with healing of the annular tear lesion.  Therefore on the basis of the underlying pathology he has made an excellent recovery, but he still has non specific symptoms.

    10.     In your opinion, does the claimant have a current work capacity?

    He does have a current work capacity in light duties and there would be no specific underlying medical reason why he would not be able to work on a regular basis.

    …

    17.Are you of the opinion that introduction of a vocational rehabilitation and/or a graduated return to work program will increase the possibility or likelihood that the claimant will increase his capacity and return to work?  If not, why not?

    I would support a Graduated Return To Work Program as, in my opinion, this would have a positive impact on any psychological factors and improve his motivation and reconditioning.  It has been a long time since his previous work trial and I note that after fifteen hours he reported he found this too much.  Maybe if it is graduated over a longer period because of his deconditioning, in this particular situation it is probably more appropriate.

    18.If you believe the claimant is fit to participate in vocational rehabilitation and/or a graduated return to work program (and you are of the opinion that he will complete if [sic] successfully), please detail;

    18.1the number of hours per week the claimant is fit to undertake initially;

    Subjective symptoms are the main inhibiting factor with respect to his current hours of work combined with his deconditioning.  I would recommend two hours per day, four to five days per week to start and graduate this over a four to six month period, potentially back to full time work.

    18.2     the period over which such hours should be increased;

    I refer you to 18.1 above.

    18.3any restrictions placed on the claimant for a vocational rehabilitation/graduated return to work program.

    Restrictions are based on subjective symptoms.  From his degenerative L5-S1 level he should restrict lifting from the ground to 5 kg and from mid thigh to chest height, to 15 kg, and occasionally more, but only on an intermittent basis.  Other activities to be avoided are repetitive pushing and pulling and if driving machinery, avoid rough terrain on a regular basis, trying to restrict him to concrete type surfaces.

    …”  (T8, pp 74–84)

    Dr Jon Laugharne

1. Dr Laugharne, Consultant Psychiatrist, prepared a medico-legal report, dated 16 October 2012, regarding his examination of the applicant on 9 October 2012 (T8, pp 57–66).  Dr Laugharne’s report, which is addressed to a workers’ compensation insurer,  states:

   “ …

   INTRODUCTORY REMARKS

   Mr Pattle is a 33 year-old single male living by himself and not currently working.

   DETAILS OF INCIDENT

   Mr Pattle sustained an injury to his lower back on 16 June 2009 when working for an organisation called Wonder Walls in a labouring role.  …

   Mr Pattle seems to have developed chronic fluctuating lower back pain since this accident and I note from the various specialist reports that his recovery is slower than expected on the basis of his injuries and that inconsistencies have been noticed in his symptom presentation and during examination by different specialists.  Mr Pattle explained to me that his ongoing lower back pain is his major concern as he feels that this continues to prevent him from going back to the kind of work that he is qualified to do.  He feels his lifestyle is very limited as he is financially limited currently and he feels quite bored with his current lifestyle.

   PSYCHIATRIC SYMPTOMS

   He states that he is low in mood at times but that this is not continuous.  He states that he gets bored and needs distraction and feels frustrated with his ongoing situation.  His sleep is reasonable although he does use painkillers in the evening to minimise his back pain at night.  It seems that he regularly sleeps from midnight to 10.00 am.  He does not report any abnormality of appetite or weight change and he describes his energy levels as ‘okay’,

   In terms of his ability to enjoy activities he can enjoy television programs and he does try to do basic exercise such as some walking and stretching although he states he is limited in terms of exacerbation of pain.

   FUNCTIONING

   It seems that he is able to attend to all of his activities of daily living without any major difficulty.  As noted above, he does some limited walking and stretching but is frustrated he cannot exercise to a greater extent due to the risk in his mid of exacerbating his pain.  He has apparently made two attempts to return to work and states that they were both unsuccessful due to exacerbation of back pain.

   CURRENT TREATMENT

   He has had physiotherapy and hydrotherapy in the past but these are no longer continuing.  He does not seem to currently be having any specialist treatment.

   CURRENT MEDICATION

   He purchases Ibuprofen and a Codeine-based medication over-the-counter.  He is not currently on any prescription drug.

   PAST PSYCHIATRIC HISTORY

   He denies any previous history of psychiatric or psychological problems or treatment for the same.  He was assessed for a report by Dr Gemma Edwards-Smith, Consultant Psychiatrist, and she was concerned that he may be showing signs of a psychotic illness.  Consequent to this he was assessed by the Swan Mental Health Service and the assessing consultant psychiatrist concluded that the issue was ‘psychosocial stressors on a background of paranoid personality traits’.  As a result of this assessment it was decided that Mr Pattle did not warrant active contact with the Swan Mental Health Service but it was agreed that the team social worker would help him with accessing appropriate Centrelink benefits.

   There was no other history noted.

   PAST MEDICAL HISTORY

   He indicates he is normally fit and well and does not give any significant history other than the back injury sustained in the workplace in 2009.

   …

   MENTAL STATE EXAMINATION

   At interview Mr Pattle presented casually dressed but reasonably well-kempt.  There was moderate eye contact and there was a degree of anxiety in his manner.  His speech was quite monotonous in tone but within normal limits in rate and flow.  His back symptoms did not prevent him from sitting through the interview.  He was quite serious in his demeanour and his mood was mildly depressed and his affect restricted in range but congruent with his mood.  There was no evidence of any frank psychotic symptoms such as auditory hallucinations or delusions.  There was no evidence of any gross cognitive deficits.  In terms of his insight into his situation he indicated that he wanted surgery for his back as he was convinced that this was the only thing that would fix him and get him back to work.  He told me that the surgeons he had seen were not convinced about this though he stated that he had read treatment guidelines on the internet that indicated to him that this was what he needed if he is to get better.

   In response to your specific questions:

   1.What was the date of the claimant’s attendance at your rooms?

   Mr Pattle attended my rooms on 9 October 2012.

   2.What is the nature and severity of the symptoms presently reported by the claimant (if any)?

   Please see the initial section of the body of this report.  His symptom focus was on his lower back pain and he did not present any specific psychiatric symptoms.

   …

   11.If [sic] your opinion, is the claimant suffering from a recognisable psychiatric conditions [sic]?

   In particular:

   ·     What is your diagnosis pursuant to the DSM-IV (if any);

   ·     What are the clinical features which satisfy the criteria that are in the DSM-IV;

   In regards to a DSM-IV diagnosis, it is my opinion that the most likely diagnosis is pain disorder (chronic) from the Axis I perspective.  In regards to Axis II, I would suggest that there is some evidence for paranoid personality traits on the basis of my assessment and the information available although to be clearer about this it would be very helpful to have a collateral history from someone who has known him reasonably well over a number of years.

   The clinical features for pain disorder centre around the persistence of pain symptoms which impact on functioning and which cannot be explained by the available medical evidence, ie the examinations and investigations which have been conducted to explain his persistent pain.  Psychological factors are judged to play an important role in the maintenance of the pain.  The pain is not intentionally produced or feigned.

   …

   13.In your opinion, is the claimant suffering from what some physicians refer to as an ‘abnormal illness behaviour’, ‘illness conviction’ or ‘pain syndrome’?  Can you please explain your answer by explaining what these conditions are, how they are diagnosed and whether the claimant suffers it.  Assuming he has this problem, does it affect his capacity to return to work?  If yes, to what extent?

   As noted above, it is my opinion that he has pain disorder which comes under the rubric of the somatoform disorders within the DSM-IV diagnostic criteria, and is therefore classified as a psychiatric condition.  It seems that it does affect his ability to return to work as he is very much focused on his pain and concerned at the lack of improvement.  He is very protective of his back and concerned regarding re-injury, and is also concerned that the surgeons he has seen to date are not prepared to operate whereas he, based on internet guidelines research he has done, is of the opinion that surgery may help him recover, and he is frustrated that none of the surgeons he has consulted with are in agreement with him on this issue.

   I am not of the opinion that he is delusional in regard to this conviction that he requires surgery, but rather that this has become a somewhat over-valued idea in the context of his anxieties around his chronic pain and what the implications of this are.  He does not seem to be a particularly psychologically minded individual and therefore he is likely to continue to see his problem in medical/mechanical terms rather than being open to taking a more psychological perspective regarding his chronic pain symptoms.

   …

   15.In your opinion, how is the claimant now functioning based on your clinical examination?

   As I have noted in the body of this report he is maintaining his activities of daily living without any particular support.  He is quite socially isolated but I formed the impression that this is a long-term issue.

   In regards to his ability to return to the workplace, clearly he is not functioning in this regard, and this is a major concern for him.  The main issue preventing him returning to work is his concern in regard to exacerbating his back injury and the pain associated with it.

   16.What affect [sic], if any, does any psychiatric condition from which the claimant is suffering, have on his capacity for employment?  Is it related to the incident on 16 June 2009?  How?

   Please see my comments in response to the previous question.  His pain syndrome is preventing him from having the capacity to successfully return to the workplace and in my opinion, as I have noted in my response to question 14, it was the injury on 16 June 2009 that provided the initial trigger for the development of his pain disorder.

   17.In your opinion, does the claimant have a capacity to engage in a return to work programme and/or graduated return to work programme?  If so, please detail:

   ·     the number of hours per week the claimant is fit to initially undertake;

   ·     the period over which such hours should be increased;

   ·     any restrictions placed upon the claimant for vocational rehabilitation/graduated return to work programme

   Based on current presentation he is unlikely to return to any work that would involve activities which may put any strain on his back.  Although I understand that he is limited in terms of the type of work that he is qualified to do and has done mostly labouring-type work in the past.

   My impression was that he is unlikely to be able to engage successfully with a psychologist to work on psychological and behavioural strategies for dealing with his anxieties around his back pain as this kind of approach might be helpful in getting him back to the workplace . Any such engagement is quite unlikely.  He is quite fixed on the idea his back must improve considerably before he can risk returning to work and he is quite fixated on surgical intervention in this regard.  I defer to my surgical colleagues in regard to expert opinion on this matter.

   However, my reading of the reports available to me suggests that the general consensus is that surgery is not required, nor appropriate at this juncture.  There does therefore seem to be something of an impasse in regards to making progress with vocational rehabilitation and graduated return-to-work.

   18.Please state whether in your opinion, the claimant is fit to return to work (any appropriate occupation) without the need for undertaking a gradual return to work programme (from a psychiatric perspective)

   He is not fit to return to work in this manner because of his persistent pain disorder.  Any attempt to return him to work in this manner is highly likely to fail.

   19.      What is the claimant’s motivation to return to work?

   As stated earlier he indicates he is motivated to return to work for financial reasons but is convinced that he requires further treatment of his back condition to be undertaken with significant alleviation of his back pain prior to any return to work.

   20.      What is your prognosis for the claimant’s psychiatric conditions, if any?

   The prognosis is not very good on the basis of the comments I have made above.  He is reluctant to see this in psychological terms and seems to be reluctant to engage with any psychological or psychiatric treatment as a result.  As my surgical colleagues do not appear keen to consider surgical or other active treatments currently there is something of an impasse.  The current situation is therefore likely to continue for the foreseeable future unless one of these factors changes.

   21.Do you consider the claimant requires any psychological treatment?  If so, please state the nature, extent and duration of such treatment.  Please explain whether you believe that the treatment results from the injury that occurred on or around 16 June 2009.

   As I have indicated previously if Mr Pattle was keen to comply I would recommend that he sees a clinical psychologist who specialises in managing chronic pain, and he would require at least 12 sessions with such a psychologist to look at psychological and behavioural strategies he might employ to minimise his pain symptoms and help him return to the workplace.  However, it seems he is very reluctant to consider this option.  Should he change his mind this is the type of treatment I would recommend for him.  I do think that this relates to his injury of 16 June 2009, as I have indicated previously.

   …”

   Additional medical evidence tendered by the applicant

2. The applicant tendered in evidence a letter, dated 7 April 2014, from Dr Buntine in which she sets out the clinical notes regarding the applicant’s attendances at her surgery in the period from 16 June 2009 to 7 March 2014 (Exhibit A5).

3. The applicant also tendered in evidence a report of a MRI of his lumbar spine on 21 November 2013 which concluded:

   “ Shallow right paracentral to posterolateral disc bulge/protrusion at L5/S1 associated with an annular fissure, abutting and slightly posteriorly displacing the traversing right S1 nerve root sheath.

   Early bilateral facet arthropathy at L5/S1.

   No other neural impingement demonstrated.

   Overall, appearances largely unchanged since the previous imaging.”  (Exhibit A2)

   The Relevant Legislation

   Social Security Act 1991 (Cth)

4. Section 94 of the Social Security Act 1991 (Cth) (“SS Act”), which prescribes the qualification requirements for DSP, relevantly provides as follows:

   “ (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;

   …

   Continuing inability to work

   (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) – the person has actively participated in a program of support within the meaning of subsection (3C); and

   (a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b)in all cases – either:

   (i)    the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii)   if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

   Note: For work see subsection (5).

   (3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

   (a)the availability to the person of a training activity; or

   (b)the availability to the person of work in the person’s locally accessible labour market.

   …

   Severe impairment

   (3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

   …

   Active participation in a program of support

   (3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

   (3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).

   (3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).

   Doing work independently of a program of support

   (4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:

   (a)is unlikely to need a program of support; or

   (b)is likely to need a program of support provided occasionally; or

   (c)is likely to need a program of support that is not ongoing.

   Other definitions

   (5)     In this section:

   ‘program of support’ means a program that:

   (a)  is designed to assist persons to prepare for, find or maintain work; and

   (b)  either:

   (i)   is funded (wholly or partly) by the Commonwealth; or

   (ii)is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.

   ‘training activity’ means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

   (a)   education;

   (b)   pre-vocational training;

   (c)   vocational training;

   (d)   vocational rehabilitation;

   (e)   work-related training (including on-the-job training).

   ‘work’ means work:

   (a)that is for at least 15 hours per week on wages that are at or above the

   relevant minimum wage; and

   (b)that exists in Australia, even if not within the person’s locally accessible 

   labour market.

   …”

5. The phrase “Impairment Tables” is defined in s 23(1) of the SS Act to mean “the tables determined by an instrument under subsection 26(1)”.

6. Pursuant to s 26(1) of the SS Act the (former) Minister for Families, Housing, Community Services and Indigenous Affairs made the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”), dated 6 December 2011. The Determination commenced to operate on 1 January 2012. The relevant Impairment Tables and other relevant provisions in the Determination will be referred to later in these reasons.

   Social Security (Administration) Act 1999 (Cth)

7. Pursuant to s 41(1) of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”) a “social security payment” (defined in s 23(1) of the SS Act to include DSP) generally “becomes payable to a person on the person’s start day in relation to the social security payment”. Section 42 of the Administration Act provides:

   “ … a person’s start day in relation to a social security payment … is the day worked out in accordance with Schedule 2.”

8. Clause 3(1) of Schedule 2 to the Administration Act provides:

   “ If:

   (a)     a person makes a claim for a social security payment; and

   (b)     the person is qualified for the payment on the day on which the claim is made;

   the person’s start day in relation to the payment is the day on which the claim is made.”

9. Clause 4(1) of Schedule 2 to the Administration Act provides:

   “ If:

   (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

   (b)the person is not, on the day on which the claim is made, qualified for the payment; and

   (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

   (d)     the person becomes so qualified within that period;

   the claim is taken to be made on the first day on which the person is qualified for the  social security payment.”

   Pursuant to clause 4(2), a “relevant social security payment” includes DSP.

   The Issue

10. The issue for the Tribunal’s determination is whether the applicant is qualified for DSP under s 94 of the SS Act. Pursuant to ss 41(1) and 42 of the Administration Act, and clauses 3(1) and 4(1) in Schedule 2 to that Act, the period within which the applicant’s qualification for DSP is to be assessed, for the purposes of this proceeding, is the period commencing on 4 April 2013 (being the date on which the applicant’s claim for DSP was made) and ending 13 weeks thereafter, namely, on 4 July 2013 (“the relevant period”).

    Analysis

    Did the applicant have “a physical, intellectual or psychiatric impairment” (s 94(1)(a) of the SS Act) in the relevant period?

1. On the basis of the medical evidence before the Tribunal – in particular, Dr Hardcastle’s report of 26 October, 2012 (set out in paragraph 17 above), Dr Laugharne’s report of 16 October 2012 (set out in paragraph 18 above) and Dr Buntine’s DSP Medical Report of 2 April 2013 (referred to in paragraph 5 above) – the Tribunal is satisfied, and finds, that the applicant, in the relevant period, had a physical impairment resulting from medical conditions, namely, chronic low back pain and bilateral leg pain, and a psychiatric impairment resulting from a medical condition, namely, pain disorder.

   Was the applicant’s impairment “of 20 points or more under the Impairment Tables” (s 94(1)(b) of the SS Act) in the relevant period?

2. Part 2 of the Determination prescribes rules for applying the Impairment Tables which are set out in Part 3 of the Determination. Those rules include the following:

   “6   Applying the Tables

   Assessing functional capacity

   (1)  The impairment of a person must be assessed on the basis of what the person can,

   or could do, not on the basis of what the person chooses to do or what others do 
      for the person.

   Applying the Tables

   (2)  The Tables may only be applied to a person’s impairment after the person’s

   medical history, in relation to the condition causing the impairment, has been
      considered.

   Note:  For additional information that must be taken into account in applying the Tables see section 7.

   Impairment ratings

   (3)   An impairment rating can only be assigned to an impairment if:

   a.   the person’s condition causing that impairment is permanent; and

   Note:  For permanent see subsection 6(4)

   b.   the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   Example:  A condition my last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.

   Permanency of conditions

   (4)   For the purposes of paragraph 6(3)(a) a condition is permanent if:

   (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

   (b)the condition has been fully treated; and

   Note:   For fully diagnosed and fully treated see subsection 6(5).

   (c)the condition has been fully stabilised; and

   Note:  For fully stabilised see subsection 6(6).

   (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   Fully diagnosed and fully treated

   (5)   In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraph 6(4)(a) and (b), the following is to be considered:

   (a)whether there is corroborating evidence of the condition; and

   (b)what treatment or rehabilitation has occurred in relation to the condition; and

   (c)whether treatment is continuing or is planned in the next 2 years.

   Fully stabilised

   (6)   For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

   (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

   (b)  the person has not undertaken reasonable treatment for the condition and:

   (i)  significant functional improvement to a level enabling the person to   undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

   (ii)  there is a medical or other compelling reason for the person not to   undertake reasonable treatment.

   Note:  For reasonable treatment see subsection 6(7).  

   Reasonable treatment

   (7)   For the purposes of subsection 6(6), reasonable treatment is treatment that:

   (a)is available at a location reasonably accessible to the person; and

   (b)is at a reasonable cost; and

   (c)can reliably be expected to result in a substantial improvement in functional capacity; and

   (d)is regularly undertaken or performed; and

   (e)has a high success rate; and

   (f)

   carries a low risk to the person.

   
   

   Impairment has no functional impact

   (8)   The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.

   Example:  A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.

   Assessing functional impact of pain

   (9)   There is no Table dealing specifically with pain and when assessing pain the following must be considered:

   (a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and

   (b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and

   (c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).”

3. The relevant tables in the Impairment Tables, having regard to the applicant’s abovementioned medical conditions, are as follows:

   ·chronic low back pain: Table 4 – Spinal Function;

   ·bilateral leg pain: Table 3 – Lower Limb Function;

   ·pain disorder: Table 5 – Mental Health Function.

   Chronic low back pain: Table 4 – Spinal Function

4. The Introduction to Table 4 states (inter alia) as follows:

   “·         Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.

   ·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

   ·Self-report of symptoms alone is insufficient.

   ·There must be corroborating evidence of the person’s impairment.

   ·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

   o   a report from the person’s treating doctor;

   oa report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (eg spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);

   oa report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury. 

   …”

5. The respondent concedes that the applicant’s chronic low back pain condition is a “permanent” condition, having been “fully diagnosed”, “fully treated” and “fully stabilised” within the meaning of section 6 of the Determination, and that there is corroborating medical evidence of the applicant’s impairment resulting from that condition. The Tribunal, having regard to the abovementioned report of Dr Hardcastle and DSP Medical Report of Dr Buntine, regards that concession as appropriate and it finds in accordance with that concession.

6. Table 4 includes five impairment ratings and descriptors ranging from 0 points (“no functional impact”) to 30 points (“extreme functional impact”).  The respondent contends that an impairment rating of no more than 5 points is appropriate in the applicant’s case.

7. The descriptors relating to the impairment ratings of 5 points, 10 points and 20 points in Table 4 are as follows:

Points

Descriptors

   5

There is a mild functional impact on activities involving spinal function.

(1)    The person has some difficulty in:

(a)     activities over head height (eg activities requiring the person to look upwards); or

(b)     bending to knee level and straightening up again without difficulty; or

(c)     turning their trunk or moving their head (eg to look to the sides or upwards).

  10

There is a moderate functional impact on activities involving spinal function.

(1)    The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)    the person is unable to sustain overhead activities (eg accessing items over head height); or

(b)    the person has difficulty moving their head to look in all directions (eg turning their head to look over their shoulder); or

(c)     the person is unable to bend forward to pick up a light object placed at knee height; or

(d)    the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

  20

There is a severe functional impact on activities involving spinal function.

(1)    The person is unable to:

(a)    perform any overhead activities; or

(b)    turn their head, or bend their neck, without moving their trunk; or

(c)    bend forward to pick up a light object from a desk or table; or

(d)    remain seated for at least 10 minutes.

1. Unfortunately, Dr Buntine’s DSP Medical Report of 2 April 2013 (referred to in paragraph 5 above) does not assist the Tribunal in assessing precisely the functional impact of the applicant’s chronic low back pain in the relevant period.  Dr Hardcastle’s report of 26 October 2012 (set out in paragraph 17 above) is, however, of some assistance in that his clinical examination of the applicant on that date demonstrated, in respect of his lumbar spine, “tenderness over the L3–S1 segments on both sides with forward flexion” and “pain at the extreme” in the case of “lateral flexion” and “rotation”.  In the Tribunal’s opinion, those findings are consistent with the descriptor for 5 impairment points and are indicative of a “mild functional impact on activities involving spinal function”.  Although Dr Hardcastle’s examination of the applicant occurred approximately five months before the commencement of the relevant period, the Tribunal is prepared to accept Dr Hardcastle’s examination findings as indicative of the level of the applicant’s relevant impairment in the relevant period.  Furthermore, there is no medical evidence before the Tribunal which supports the proposition that the level of the applicant’s relevant impairment exceeded that which is appropriate for an impairment rating of 5 points under Table 4 at any time in the relevant period.

2. Accordingly, the Tribunal finds that the applicant’s impairment resulting from chronic low back pain is of 5 points under Table 4 in the Determination.

   Bilateral leg pain: Table 3 – Lower Limb Function

3. The Introduction to Table 3 states (inter alia) as follows:

   “·       Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.

   ·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

   ·Self-report of symptoms alone is insufficient.

   ·There must be corroborating evidence of the person’s impairment.

   ·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

   o   a report from the person’s treating doctor;

   o   a report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment …

   …”

4. On the basis of Dr Hardcastle’s report of 26 October 2012 and Dr Buntine’s DSP Medical Report of 2 April 2013, the Tribunal is satisfied, and finds, that, in the relevant period, the applicant’s bilateral leg pain condition was “fully diagnosed”, “fully treated” and “fully stabilised” within the meaning of section 6 of the Determination, and that there was corroborating medical evidence of the applicant’s impairment resulting from that condition.

5. Table 3, like Table 4, includes five impairment ratings and descriptors ranging from 0 points (“no functional impact”) to 30 points (“extreme functional impact”).  It will suffice, for present purposes, to set out only the descriptors relating to the impairment ratings of 0 points and 5 points in Table 3.  These are as follows:

Points

Descriptors

   0

There is no functional impact on activities requiring use of the lower limbs.

(1)     The person can:

(a)     walk without difficulty on a variety of different terrains and at varying speeds; and

(b)     walk without difficulty around the home and community; and

(c)     kneel or squat and rise back to a standing position without difficulty; and

(d)     stand unaided for at least 10 minutes; and

(e)     use stairs without difficulty.

5

There is a mild functional impact on activities using lower limbs.

(1)   At least one of the following applies:

(a)     the person has some difficulty walking to local facilities (eg shops or bus-stop); or

(b)     the person has some difficulty walking around a shopping mall or supermarket without a rest; or

(c)     the person has some difficulty climbing stairs; and

(2)     At least one of the following applies:

(a)     the person is unable to stand for more than 10 minutes:

(b)     the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

1. Dr Hardcastle’s clinical examination of the applicant’s lower limbs on 26 October 2012 demonstrated that he “could walk on his toes, heels and squat with the knees flexing to 90 degrees”.  The applicant, furthermore, acknowledged at the hearing that he has been able to stand for more than 10 minutes.  Moreover, there is no evidence before the Tribunal that the applicant needed to use “a lower limb prosthesis or a walking stick” in order to “mobilise” in the relevant period.

2. On the basis of the evidence before it, the Tribunal finds that the applicant’s impairment resulting from bilateral leg pain is of 0 points under Table 3 in the Determination.

   Pain disorder: Table 5 – Mental Health Function

3. Pursuant to section 6(3)(a) of the Determination, a medical condition causing an impairment must be “permanent” before an impairment rating may be assigned to that impairment. Section 6(4) of the Determination prescribes the conditions which must be fulfilled before a medical condition is considered “permanent” for the purposes of section 6(3)(a).

4. In the present case, the Tribunal is satisfied, on the basis of Dr Laugharne’s report of 16 October 2012 and Dr Buntine’s DSP Medical Report of 2 April 2013 (set out in, respectively, paragraph 18 and paragraph 5 above), that the applicant has a psychiatric condition, namely, pain disorder, resulting in impairment, which was “fully diagnosed”, as required by para (a) of section 6(4) of the Determination, in the relevant period. The Tribunal is, however, also satisfied, on the basis of the medical evidence before it, that that psychiatric condition was neither “fully treated” nor “fully stabilised” in the relevant period (or subsequently) and that, accordingly, the conditions prescribed by paras (b) and (c) of section 6(4) of the Determination were not fulfilled in that period.

5. It follows that the applicant’s pain disorder condition cannot be regarded as “permanent”, within the meaning of section 6(4) of the Determination, in the relevant period and that, pursuant to section 6(3) of the Determination, an “impairment rating” (under Table 5) cannot be assigned to the applicant’s impairment resulting from that condition.

   Finding

6. The Tribunal is satisfied, and finds, that, in the relevant period, the totality of the applicant’s impairment was of 5 points under the Impairment Tables.

   Conclusion

7. It follows from the finding set out in paragraph 45 that the applicant did not satisfy para (b) of s 94(1) of the SS Act in the relevant period, and that, accordingly, he was thereby not qualified for DSP in that period.

8. That being the case, it is unnecessary for the Tribunal to consider whether or not the applicant, in the relevant period, had a “continuing inability to work”, within the meaning of para (c) of s 94(1), and of s 94(2), of the SS Act.

   Decision

9. For the above reasons, the decision under review is affirmed.

I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr J Chaney, Member.

...................[sgd D Brodie].......................................

Administrative Assistant

Dated 18 September 2014

Date of hearing	21 August 2014
Applicant	In person (unrepresented)
Representative of the Respondent	Ms M de Reus
Solicitors for the Respondent	Australian Government Solicitor