Dasecke and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 163

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 163

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4700

GENERAL ADMINISTRATIVE DIVISION		)
Re		JAMES DASECKE

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date              9 March 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

...................[Sgd]....................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Benefits and entitlements - Disability support pension – Scheuermann’s disease constituting physical impairment – Condition not permanent as not fully treated and stabilised – No allocation of an impairment rating – Qualification requirements for disability support pension not met - Decision affirmed.

Social Security Act 1991 (Cth) - s 94, Sch 1B

Social Security (Administration) Act 1999 (Cth) s 13, Sch 2

REASONS FOR DECISION

9 March 2010 Mr R G Kenny, Senior Member

Background

1.      On 11 June 2009, James Dasecke lodged a claim with Centrelink for payment of disability support pension in respect of the effects upon him of the back condition Scheuermann’s disease.  On 20 July 2009, a delegate of Centrelink rejected his claim.  That decision was affirmed by an authorised review officer on 30 July 2009 and, in turn, by the Social Security Appeals Tribunal (SSAT) on 9 September 2009.  Mr Dasecke has sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).

Legislation, Issues and Submissions

2. The qualifications to receive a disability support pension are set out in s 94 of the Social Security Act 1991 (Cth) (the Act). It is common ground that Mr Dasecke meets the age and residency requirements of that provision. The remaining requirements thereof are:

·whether Mr Dasecke has a physical, intellectual or psychiatric impairment; and, if so

·whether he has an impairment rating of 20 points or more which is calculated under the Impairment Tables in Schedule 1B of the Act as required by s 94(1)(b) thereof; and, if so

·whether he has a continuing inability to work as required by s 94(1)(c)(i) of the Act.

3.      Mr Dasecke contacted Centrelink about his disability support pension on 5 June 2009.  This was acknowledged in writing by Centrelink[1].  As he lodged his formal disability support pension claim within 14 days thereafter, on 11 June 2009, his claim date is taken to be 5 June 2009[2]. To qualify for a disability support pension, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the claim date or in the period of 13 weeks starting from that date[3] i.e. 4 September 2009 (the relevant period). 

[1] See T26/100.

[2] See s 13(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

[3] See sch 2, cl 3 and cl 4 of the Administration Act.

4.      The first issue for the Tribunal is whether, during the relevant period, Mr Dasecke had an impairment rating of at least 20 points as calculated under the Impairment Tables in Schedule 1B of the Act.  For the respondent, Joe Guthrie submitted that an impairment rating could not be allocated because Mr Dasecke’s back condition was not fully treated and stabilised during the relevant period.  Alternatively, he submitted, in reliance on the report, dated 8 July 2009, of registered psychologist Leigh Jansen, that Mr Dasecke’s back condition was not of sufficient severity to attract 20 points under Table 5.2 of the Impairment Tables.

5.      Mr Dasecke submitted that his back condition was a permanent condition which should be rated at 20 points under Table 5.2.  He relied on the reports from his treating doctor, Dr Austin Ndhlovu, as well as the reports from physiotherapist Dianne Riseley and chiropractor Patrick Keogh.

6. In the event that Mr Dasecke’s back condition is rateable at the level of at least 20 points, a second issue for the Tribunal is whether, during the relevant period, Mr White had a continuing inability to work as required by s 94(1)(c)(i) of the Act. Mr Guthrie submitted, on the basis of the report of Ms Jansen, that Mr Dasecke did not have a continuing inability to work as required by s 94 of the Act. Mr Dasecke relied on the report of Dr Ndhlovu who described his work capacity as being limited to 8 to 14 hours per week.

Evidence

Mr Dasecke

7.      Mr Dasecke gave the following evidence.  While he has experienced pain in his lower back for many years, he was diagnosed with Scheuermann’s disease in November 2008 by Dr Ndhlovu after he viewed x-rays of Mr Dasecke’s spine.  On Dr Ndhlovu’s referral, he underwent a series of physiotherapy treatments from Ms Riseley in 2009.  Dr Ndhlovu forwarded the x-ray results to a rheumatologist at the Bundaberg Base Hospital.  Mr Dasecke did not see the rheumatologist but was placed on a waiting list to see an orthopaedic specialist for his condition.  Mr Dasecke continues to await further advice from the hospital concerning this consultation.  He sees Dr Ndhlovu every three months for treatment of a separate health condition.  He has had a series of chiropractic treatments from Mr Keogh but has discontinued these, as well as the treatments from Ms Riseley, because of the associated costs. 

8.      Mr Dasecke has not had any form of remunerative work.  He lived with and cared for his parents after leaving school for some 12 years.  For this, he received the carer pension.  He is currently on newstart allowance.  During 2008/9, he completed a 12 week Certificate course in Aged Care with Community Solutions.  A letter, dated 27 February 2009, from the College described the course as involving an excess of 20 hours of commitment each week as well as 50+ hours of vocational work placement[4]. 

[4] See T6/25.

9.      Mr Dasecke lives alone in the house that he and his sister were left by their parents.  He described constant pain in his back and limitations on his ability to lift any heavy objects such as a basket of washing.  He gets assistance from friends or his sister in undertaking the more onerous duties in the house and with doing his weekly shopping.  He owns a car but finds driving uncomfortable on his back and does not use it with any frequency.  He engages in an exercise regimen for his back on a daily basis and described an improvement in his back symptoms after the treatments provided by Ms Riseley.  However, he said that this was not long lasting and his symptoms soon returned to their previous level.  

Dianne Riseley, physiotherapist

10.     Ms Riseley gave evidence and also completed a report, dated 25 September 2009[5].  Therein, she described Mr Dasecke at that time as having a range of movement (ROM) loss of 15 to 20%.  Her opinion was that his condition attracted a rating of nil or 5 points under Table 5.2 in Schedule 1B.  She had seen him in May 2009 and in December 2009 and said that his condition on those occasions was more severe than in September 2009 with a ROM loss in the order of 50%.  She believed that he had benefited from the treatments she had given him and that this was reflected in the improved assessment in September.  In a further report, dated 16 December 2009[6], Ms Riseley estimated that impairment under Table 5.2 was at the 20 point level in May and December 2009.  Ms Riseley said that Centrelink had not forwarded the specific criteria for making an assessment under Schedule 1B until February 2010.

Kate Amos, social worker

[5] See exhibit 2, attachment E.

[6] See exhibit 2, attachment C.

11.     A job assessment report, dated 29 May 2009, from Ms Amos, of Health Care Australia, was in evidence[7].  It pre-dated the claim for disability support pension.  Ms Amos did not make an assessment under Table 5.2 but reported Mr Dasecke as advising that, at that time, he had a sitting and standing tolerance of 2 hours each and experienced back pain after approximately 1 km of walking.  She assessed work capacity at 30+ hours per week in light, less skilled work.

Leigh Jansen, registered psychologist

[7] See T11/41.

12.     Ms Jansen, a registered job capacity assessor, gave evidence and completed a Job Assessment Report, dated 1 July 2009[8].  She works with Medicare Health Solutions but was previously an assessor with Health Care Australia.  In making her assessment, Ms Jansen relied on the medical reports before her as well as a Job Assessment Report completed on 29 May 2009 by registered social worker, Kate Amos.  In specific terms, Ms Jansen denied that she had relied solely on Ms Amos’ report and came to an independent assessment of Mr Dasecke’s capacities.  Ms Jansen described a permanent condition causing ROM loss of 25% as well as back pain with many physical activities and a reported tolerance of sitting and standing for 30 minutes.  In reaching that conclusion, she referred to the report, dated 10 June 2009, of Dr Ndhlovu. 

[8] See T14/60.

13.     In relation to work capacity, Ms Jansen assessed Mr Dasecke as capable of working for 8 to 14 hours per week in light, less skilled work such as customer service.  However, she also considered that he had future capacity with intervention of 15 to 22 hours per week in light part-time duties.  In her evidence, Ms Jansen noted that the earlier assessment by Ms Amos was to the effect that Mr Dasecke was capable of 30+ hours work per week in light, less skilled work.

Patrick Keogh, chiropractor

14.     In his report, dated 5 January 2010, Mr Keogh assessed Mr Dasecke “as at 5 June 2009”[9].  He described Mr Dasecke as reporting back pain with most physical activities, back pain when standing for 15 minutes and when sitting or driving for about 30 minutes.  Mr Keogh did not describe the ROM loss in Mr Dasecke’s spine. His opinion was that a rating of 20 points under Table 5.2 was appropriate.

Dr Ndhlovu

[9] See exhibit 2, attachment D.

15.     Dr Ndhlovu provided a report dated 9 December 2009[10] in which he wrote that Mr Dasecke’s back condition was permanent and described his backache as “worsening” and assessed him at 20 points under the “lumbar-thoracic impairment rating”.  He also wrote that Mr Dasecke could work for “8 to 14 hrs per week”.  Mr Dasecke tendered a further report which he obtained from Dr Ndhlovu in February 2010.  The report is still dated 9 December 2009 but has been amended to include a notation that the impairment rating of 20 points is effective from 5 June 2009[11].  Earlier reports, dated 25 May 2009 and 10 June 2009[12], from Dr Ndhlovu make no reference to impairment ratings or work capacity.  None of Dr Ndhlovu’s reports provide a reference to the ROM loss in Mr Dasecke’s spine.

[10] See exhibit 2, attachment B.

[11] See exhibit 6.

[12] See T9/32 and T12/56, respectively.

Consideration

16. A necessary requirement in s 94 of the Act is that Mr Dasecke’s physical impairment from his back condition must equate to 20 or more points under the relevant Table in schedule 1B of the Act. In this matter, this is Table 5.2. It reads:

TABLE 5.   SPINAL FUNCTION
Determination of spinal impairments must be based on a demonstrable loss of function.

TABLE 5.2 Thoraco—lumbar‑sacral spine

As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.

Rating

Criteria

NIL

Normal or nearly normal range of movement.

FIVE

Loss of one‑quarter of normal range of movement.

TEN

Loss of one‑quarter of normal range of movement as well as back pain or referred pain:

     with many physical activities and

     with standing for about 30 minutes and

     with sitting or driving for about 60 minutes.

  or

Loss of half of normal range of movement.

TWENTY

Loss of half of normal range of movement as well as back pain or referred pain:

     with most physical activities and

     with standing for about 15 minutes and

     with sitting or driving for about 30 minutes.

  or

Loss of three‑quarters of normal range of movement.

FORTY

Ankylosis in an unfavourable position, or unstable joint

17.     In addition to listing the various Tables such as Table 5.2 for allocating impairment ratings, Schedule 1B also contains an Introduction which sets out principles to be applied in making the appropriate assessment.  The Introduction includes the following:

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..............................

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............................

18.     Mr Dasecke’s condition was diagnosed by Dr Ndhlovu in late 2008.  In December 2009, Dr Ndhlovu still considered that the condition was “worsening”.  The fluctuating nature of the symptoms relating to Mr Dasecke’s condition are reflected in the evidence and reports of Ms Riseley in that his ROM loss varied from 50% to 25% and back to 50% between May and December 2009.  Her opinion was that this variation was related to treatment he received prior to manifesting the improved rating.  That improved ROM loss of 25% is also noted in the evidence of Ms Jansen who, I am satisfied, made an independent assessment of Mr Dasecke’s capacity.  The report of Ms Amos describes a tolerance level for sitting, standing and walking which significantly exceeds those nominated at both the 10 and 20 points levels in Table 5.2 and the summary given by Mr Keogh and Ms Riseley.  While Ms Amos’ report pre-dates the relevant period, it is consistent with the fluctuating level of symptoms demonstrated by Mr Dasecke in subsequent months. 

19.     In December 2009, Dr Ndhlovu expressed the opinion that Mr Dasecke’s impairment satisfied the 20 point level under Table 5.2 as at June 2009.  In January 2010, Mr Keogh did likewise.  Ms Riseley considered that level to have been reached in May and December 2009 but not in September 2009.  Dr Ndhlovu and Ms Jansen both described the condition as permanent.  However, the Introduction to Schedule 1B requires that, to be considered permanent, the condition needs to have been both “treated and stabilised”.  In that regard, I am satisfied that Mr Dasecke’s

condition does not meet those requirements.  During the relevant period, the severity is described in fluctuating terms.  Very significantly, Mr Dasecke has not yet consulted with the orthopaedic specialist identified as the next stage of his treatment by the rheumatologist at the Bundaberg Base Hospital.  Accordingly, I accept as correct the submission of Mr Guthrie that Mr Dasecke’s Scheuermann’s disease can not, as yet, be allocated an impairment rating under Table 5.2. 

20.     If Mr Dasecke’s condition was able to be allocated an impairment rating, I note that neither Dr Ndhlovu nor Mr Keogh expressed an opinion on the ROM loss in Mr Dasecke’s spine.  This is a specific reference in Table 5.2.  Ms Riseley’s later report describes a 50% ROM loss.  While this meets the threshold for 20 points under Table 5.2, it relates to an assessment after the end of the relevant period.  Her earlier report in September 2009 describes a ROM loss of only 15 to 20%.  Ms Jansen assessed ROM loss at 25% which, again, is below the threshold for 20 points under Table 5.2.  On that evidence, I would not be able to assess a 20 point level of impairment under Table 5.2. 

21. Without an allocation of an impairment rating, it is unnecessary to make an assessment of Mr Dasecke’s work capacity under s 94(1)(c) of the Act.

Decision

22.The decision under review is affirmed.

I certify that the preceding 22 paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

Signed: ............................[Sgd]............................................

Kate Slack, Research Associate

Date of Hearing:  23 February 2010
Date of Decision:  9 March 2010
The Applicant was self-represented

For the Respondent :          Mr Joe Guthrie, Departmental Advocate