De Vries and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 691
•27 September 2013
[2013] AATA 691
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/2686
Re
Eric De Vries
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date of decision 4 September 2013 Date of written reasons 27 September 2013 Place Melbourne For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
.................[sgd].......................................................
Miss E A Shanahan, Member
SOCIAL SECURITY – disability support pension – medical conditions not fully diagnosed/treated and stabilised – does not satisfy s 94(1)(b) of the Social Security Act 1991– decision affirmed
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
REASONS FOR DECISION
Miss E A Shanahan, Member
27 September 2013
The Tribunal handed down an oral decision affirming the decision under review on the day of the hearing (4 September 2013). Mr De Vries requested written reasons for the Tribunal’s decision.
Mr De Vries lodged a claim for disability support pension (DSP) on 21 May 2012. The claim form was dated 15 May 2012. The medical condition on which the claim was based was stated to be lower back pain, chronic, canal stenosis. This claim was rejected by a Centrelink officer on 13 June 2012 as Mr De Vries did not have an impairment rating of 20 points or more under the Social Security(Tables for the Assessment of Work‑related Impairment for Disability Support Pension) Determination 2011 (the Tables). Following Mr De Vries’ request for an internal review, an authorised review officer (ARO) affirmed the Centrelink officer’s decision on 14 February 2013. Mr De Vries applied to the Social Security Appeals Tribunal (SSAT) on 13 March 2013 for review of the ARO’s decision. On 10 May 2013 the SSAT affirmed the ARO’s decision. Mr De Vries then lodged an application, dated 6 June 2013, for review of the SSAT decision by this Tribunal.
At the hearing Mr De Vries was self-represented and Ms Peta Heffernan of the Program Litigation and Review Branch, Department of Human Services appeared for the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (the Secretary). The Tribunal was provided with the documents filed in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents).
Mr De Vries gave oral evidence on oath and tendered the following documents:
·the report of Ms Kathy Burt physiotherapist dated 26 June 2013 – Exhibit A1;
·the report of a plain x-ray of the lumbar spine dated 7 November 2008 – Exhibit A2; and
·the report of a plain x-ray of the thoracic and lumbar spine dated 14 May 2012 – Exhibit A3.
BACKGROUND TO THE APPLICATION
Mr De Vries, who is now aged 49, has spent his working life hand making guitars and speaker boxes and repairing guitars both in Australia and the United States of America. Mr De Vries has not worked since mid-2006 and has been receiving newstart allowance payments.
On 17 November 2008 Mr De Vries lodged a claim for the DSP based on his back pain, which although present since the year 2000 had become more severe in June 2006. The claim was denied by a Centrelink officer. SSAT affirmed that decision on the basis that the back condition had not been diagnosed, treated and stabilised and had not been assigned any impairment rating points by the Job Capacity Assessor.
Mr De Vries has completed an 18 month program of support which included a job search and vocational training activities.
In his evidence before the Tribunal Mr De Vries said that he first developed intermittent low back pain in the year 2000 and was able to cope and work with the benefit of simple analgesics such as Panadol. In June 2006 his low back pain became constant and has remained so. Mr De Vries described the pain as a dull ache with episodic severe sharp bouts of pain and more recently the onset of throbbing pain in the anterior (extensor) aspect of his left thigh. He denied any buttock pain or that the left lower limb pain had ever radiated below the thigh level. Mr De Vries said that at times his back pain is localised to the right of the midline of his spine and when this occurs he walks with a limp.
Since 2006 Mr De Vries’ various general practitioners have prescribed Panadol Osteo and Celebrex for his back pain and in the past two months he had been taking Lyrica, a medication used for the control of neuropathic pain. The use of Lyrica has resulted in considerable improvement in the severity of Mr De Vries’ left thigh pain and he is now able to drive his mother’s car. However, he remains unable to bend sufficiently to wash his feet.
In 2008 Mr De Vries’ general practitioner advised Centrelink that Mr De Vries was suffering from anxiety in addition to his back pain. Mr De Vries told the Tribunal that his anxiety had now resolved and was no longer a problem.
The only other treatment that has been recommended for Mr De Vries’ back pain has been physiotherapy. Mr De Vries saw Ms Kathy Burt, physiotherapist, on one occasion only. Ms Burt has provided a short report dated 26 June 2013 (Exhibit A1), in which she states that Mr De Vries’ back and leg pain limited his daily life but he self manages the pain by keeping active and walking his dog. On physical examination Ms Burt calculated that Mr De Vries’ spinal movement was about 60 to 70% of normal range. She recorded that Mr De Vries’ latest lumbar spinal x-ray showed “mild narrowing” of L5/s1 disc space. Ms Burt advised that physiotherapy would not change the narrowing but may assist in reducing the pain and increasing Mr De Vries’ range of movement.
As Mr De Vries could not afford the cost of physiotherapy treatments and Ms Burt could not guarantee improvement, Mr De Vries decided not to engage in physiotherapy treatment.
Mr De Vries has not seen a neurosurgeon or an orthopaedic surgeon as he believes all they can offer is surgical intervention that cannot reliably be expected to result in a substantial improvement in functional capacity (paragraph 6(7) of the Tables).
Mr De Vries’ claim for DSP lodged on 21 May 2012 was accompanied by a treating doctors’ report from his then general practitioner, Dr Manjunath Nadiger. Dr Nadiger stated that Mr De Vries had been diagnosed with L5/S1 congenital spinal canal stenosis that gave rise to low back pain and limited both his standing and walking times. Subsequent reports and certificates from Dr De Vries’ general practitioners provided to Centrelink have all been to the same effect. Mr De Vries has only sought further advice from Ms Burt and his mother, who is registered nurse with many years of experience.
The only investigation results that have been provided, and it would appear the only investigations performed, are two plain x-rays of Mr De Vries’ lumbar spine in 2008 and 2012.
The report of 7 November 2008 (Exhibit A2) states:
Findings: Reduced lumbar lordosis is present with moderate narrowing of the L5/S1 intervertebral disc with anterior osteophytes. Mild congenital canal stenosis is present at this level. No spondylolisthesis is seen and the other lumbar intervertebral discs are of normal height.
This report is signed by Dr Ross Breadmore.
The second x-ray was performed on 14 May 2012 (Exhibit A3) and included both a plain x-ray of the thoracic spine and the lumbar spine. The findings in the thoracic spine were entirely normal. The lumbar spine x-ray is reported as showing:
Alignment satisfactory. The vertebral body height are preserved. No fracture. Mild narrowing of the L5-S1 disc space. The facet joints are aligned normally. No pars defect. Conclusion: Mild narrowing of the L5-S1 disc space. No scoliosis.
This is signed by radiologist Dr Karen Fink. Apparently, both x-rays were performed at the same radiological facility in Bacchus Marsh. The Tribunal notes that in the most recent x-ray there is no reported finding of spinal canal stenosis.
Mr De Vries has undergone three job capacity assessments (JCAs) between 2006 and 2012. The first of these was carried out on 21 September 2006, at which time Mr De Vries’ spinal disorder was regarded as being temporary and he was assessed as having a capacity for 30 plus hours per week for work. A further JCA on 20 November 2008 concluded that Mr De Vries’ spinal disorder was not fully diagnosed, treated or stabilised and his current work capacity was 8 to 14 hours and with intervention would increase to 15 to 20 hours per week.
The last JCA was performed on 5 June 2012 and once again Mr De Vries’ spinal disorder was considered to be not fully diagnosed, treated or stabilised. It was noted that he had not been assessed by a specialist nor had his initially claimed anxiety been fully diagnosed by a psychiatrist or clinical psychologist. Mr De Vries’ baseline work capacity was estimated to be 8 to 14 hours per week, with a future capacity of 23 to 29 hours per week with intervention.
On his own evidence, Mr De Vries’ anxiety state is no longer a problem; that is, it was a temporary condition.
EVIDENCE BEFORE THE TRIBUNAL
Mr De Vries’ evidence has been summarised under BACKGROUND TO THE APPLICATION.
LEGISLATION
The relevant legislation is section 94(1) of the Social Security Act 1991 (the Act), which states:
94Qualification for disability support pension
(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;
(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; and ...
TRIBUNAL’S DELIBERATIONS
The only objective evidence presented to the Tribunal is the reduced range of movement of Mr De Vries’ lumbar spine, it being 60 to 70 per cent of the normal range, and two plain x-rays of his lumbar spine. The latest of these x-rays is reported as showing relatively minor disease and there is no reference to spinal canal stenosis. It is well known in the medical profession that plain x-rays frequently underestimate or do not reveal the exact underlying pathology in the spine. For the sake of his health and for any further claim for the DSP that Mr De Vries might decide to lodge, he requires more detailed radiological imaging, preferably an MRI (magnetic resonance imaging) scan as this is regarded currently as the gold standard.
Depending on the MRI findings, any treatment could then be directed to the underlying cause of Mr De Vries’ back pain. Where indicated, referral to a neurosurgeon or orthopaedic surgeon for further advice and opinion would also be appropriate.
Mr De Vries has noted these requirements and says he will consult his current general practitioner to organise a referral for MRI scanning.
As Mr De Vries’ back pain is not fully diagnosed let alone treated and stabilised, the Tribunal cannot assign an impairment rating to the condition. Section 94(1)(b) of the Act has therefore not been met. Section 94(1)(a) of the Act is satisfied. However, given that Mr De Vries does not have any impairment points, let alone 20 points of impairment, it is not necessary for the Tribunal to consider whether there is a continuing inability to work (section 94(1)(c) of the Act).
The Tribunal affirms the decision under review.
I certify that the preceding 27 (twenty‑seven) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member. .........[sgd]...............................................................
K. Randall, Associate
Dated 27 September 2013
Date of hearing 4 September 2013 Applicant In person Advocate for the Respondent Peta Heffernan
Program Litigation and Review Branch, Department of Human Services
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