Derwent and Secretary, Department of Employment and Workplace Relations

[2006] AATA 950

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 950

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/761

GENERAL ADMINISTRATIVE DIVISION		)
Re		CHARLES DERWENT

Applicant

And SECRETARY, DEPARTMENT
OF EMPLOYMENT AND
WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms M J Carstairs, Senior Member

Date10 November 2006

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and substitutes the decision that Mr Derwent is qualified for disability support pension.  The Tribunal remits to the respondent the assessment of what rate of pension is payable to Mr Derwent.

……………[Sgd]……………………

M J Carstairs
  Member

CATCHWORDS

SOCIAL SECURITY - disability support pension – motor vehicle accident – resultant physical, intellectual or psychiatric impairment - applicant has impairment rating of 20 points or more – continuing inability to work – the undertaking of vocational training would not enable work within the next two years – decision set aside.

Social Security Act 1991 s94, Schedule 1B

Secretary, Department of Social Security v Pusnjak (1999) 164 ALR 572; 56 ALD 444; (1999) 29 AAR 561; [1999] FCA 994

REASONS FOR DECISION

Ms M J Carstairs, Senior Member   

1.      Mr Charles Derwent seeks review of a decision to refuse his claim for disability support pension.

2.      In December 2002 Mr Derwent had the misfortune of being involved in a head-on collision with another vehicle whilst working on his country newspaper delivery route near Maryborough in Queensland.  The driver of the other vehicle was killed.  Mr Derwent suffered major injuries and was hospitalised for many months. He was first treated in Maryborough Hospital, then he was transferred to Royal Brisbane Hospital where he spent two months in early 2003, and later he was transferred back to Maryborough Hospital.

3.      The respondent has decided that Mr Derwent’s overall level of impairment is 10 points and as a result he is not entitled to disability support pension because the minimum requirement is that a person has a 20 point impairment.  Mr Derwent believes that his impairment has been under-assessed.

THE ISSUES

4. There are two issues in Mr Derwent’s case, both arising under s 94 of the Social Security Act 1991 (the Act):

§  Does Mr Derwent have an impairment rating of 20 or more points?

§  Does Mr Derwent have a continuing inability to work, which requires that his impairment is sufficient to prevent him working or undertaking                 re-training?

BACKGROUND

5.      Mr Derwent is now aged 60 years.  At the time of his claim – that is, in May 2005 - he was 58 years old.  Prior to making his claim, Mr Derwent’s working life was varied, although for the most part it comprised jobs involving a moderate to high level of physical activity / work.  Until about the mid-1990’s he was an oyster farmer in New South Wales.  He then worked in the building industry and later obtained his plant operator’s ticket when he began site clearing and operating backhoes and excavators.  He commenced his employment delivering newspapers for the Maryborough-Hervey Bay Newspaper Company some two years before the motor vehicle accident. 

6.      The injuries Mr Derwent sustained in the accident included complex fractures to his face, left shoulder and pelvis, and multiple fractures in his legs, ankles and feet.  He had the fractures pinned, with rods and screws inserted in his face and lower left leg.  His ankle was immobilised for some three months.  He also sustained a closed head injury.  It is fair to say that he made a remarkable recovery from these extensive injuries.  Mr Derwent acknowledges the debt he owes to physiotherapists who assisted his rehabilitation - as there were doubts that he would walk again. 

7.      At the end of 2004, two years after the accident, his employer attempted a graduated return-to-work programme which continued into the early months of 2005.  Mr Derwent commenced doing a couple of hours, three days a week. He then increased to two hours, six days a week.  Mr Derwent’s duties at this time consisted of wrapping newspapers at night without any driving or delivery duties, as he remained too fearful to drive.  After some months Mr Derwent was then re-assessed for fitness for his duties. The reports were unfavourable and in April 2005 his employer terminated his employment. 

MR DERWENT’S IMPAIRMENTS

8.      I shall examine separately each of Mr Derwent’s impairments as identified by various medical practitioners.  It first bears comment, however, that Mr Derwent’s case was a difficult one to assess.  His general practitioner, Dr Bandellu, seems to have struggled with the nature of the assessment exercise under the Tables, and submitted three reports within the space of a month.  There were inconsistencies between the three reports, however his most comprehensive report, dated 8 February 2006,[1] was prepared after the respondent more fully explained to Dr Bandellu the nature of the assessment process under the Tables. 

[1]  Attachment to the Respondent’s Statement of Facts and Contentions

9.      At the hearing, neither side led oral evidence from any doctors.  However, I had the advantage of a number of medical reports, some prepared for Mr Derwent’s workers’ compensation claim and others for the disability support pension claim.  It is fair to say that in cases where conclusions reached by different doctors bear some consistency with one another, the absence of oral evidence may present little problem.  However, what was notable in Mr Derwent’s case was the wide divergence of conclusions, and consequently ratings assigned, in respect of his lower limb injuries.  I comment on this further below.

lower limb injuries

10.     Mr Derwent’s claim for disability support pension was rejected because he achieved a total impairment rating of 10 points, attributable to lower limb impairment.

11.     In early 2005 WorkCover Qld assessed Mr Derwent as having a 51% level of permanent impairment.  With regard to his lower limbs in particular, Mr Derwent was assigned the following assessments :

§  Fractured pelvis            12%

§  Fractured right os calsis and fracture/dislocation right foot 25%

§  Fractured tibia and fibula with ankylosis of left ankle         10%

§  Left leg disfigurement    15%

12.     What struck me about that assessment (T11) (even allowing for the fact that the calculation is not a straight forward arithmetic exercise) was the high component of overall assessment attributable to Mr Derwent’s lower limb injuries.  I acknowledge that the test for assessing permanent impairment in a compensation claim has a different focus than does the test for disability support pension, where the focus is upon the effects of impairment on the person’s ability to work.  Nevertheless, both measure impairment, and the results in each case should not be as far apart as we see here, particularly in view of the fact that the medical assessments were all made in about 2005, two years after the accident, when Mr Derwent would have achieved any expected recovery in function. 

13.     Dr Bandellu considered that Mr Derwent had a 20 point overall impairment in his lower limbs:

·10 point impairment attributable to a healed fracture of his right ankle and foot; and

·10 point impairment for healed fracture of the left leg. 

In his first report he had described Mr Derwent as having pain in the right hip and reduced movements of the both feet.  In his next report he stated that Mr Derwent experienced pain in the lower left leg and ankle within twenty minutes of moving about.[2]  He commented separately on Mr Derwent’s experience of pain, swelling and limited movement in his right ankle and foot.  Dr Bandellu considered that Mr Derwent was unable to do any work[3]. 

[2] Document T22

[3] Document T27

14.     Dr Monsour, an approved medical practitioner with Health Services Australia, noted that Mr Derwent’s level of pain, which he assessed as being severe and constant, limited him to distances of 500 metres at best.  Dr Monsour agreed that Mr Derwent was unable to do any work in the open labour market for more than 2 years, and, significantly, he said that Mr Derwent could not work even up to 7 hours per week.  He considered that, in order of importance, Mr Derwent’s employment barriers were: cognitive/neurological impairment; limited concentration and comprehension; mobility restrictions; chronic pain; and limited endurance.

15.     Mr Derwent advised the Tribunal that his leg impairment has been seriously underestimated in assessing him as being able to walk a distance of a kilometre.  He said he might be able to achieve that distance on one day, but in doing so the consequences for him are that he then cannot walk at all for about four days.  He said that if he walked 500 metres on a single day he would barely be able to walk at all the next day.  He pointed out that his early prognosis was that he would never walk again, and as such what he has achieved is significant.  Nevertheless he is restricted to pottering at home in his shed, which he says he does each morning and regards as his therapy.  He described two hours pottering and two hours sitting as taking up the morning.  He then rests with his feet elevated on a cushion from about the middle of the day until bedtime. 

16.     It is worthwhile at this juncture to say something of my observations of Mr Derwent.  He seemed to me to be a person who would understate rather than overstate any incapacity.  My observations in that regard were reinforced by conclusions to the same effect by medical practitioners including Ms Walker, Occupational Therapist, and Ms D Anderson, Clinical Neuropsychologist, who commented that Mr Derwent tended to present himself in a positive manner.

17.     Mr Derwent said that his left leg is shorter than his right, as he has lost the heel under the left foot.  He told me that after about 150 metres he finds walking painful.  He also experiences pain with vibrations such as occur when he travels in a car.  His legs and ankles swell, and the area of his leg where muscle was grafted bleeds if he uses the leg too much (though I note there was no reference to bleeding in medical reports).  Mr Derwent has measured his ankle swelling from a resting state of 85mm increasing to 99mm after exertion. Leg and ankle swelling were noted in a number of medical reports. 

18.     I accepted Mr Derwent’s evidence that if he walks any distance he cannot walk the next day.  His partner had reported the same effect to Ms Anderson when she was interviewed in relation to the workers’ compensation claim.[4]  I accept that his tolerance for walking distances of more than 500 metres is limited, and that he is unable to walk such a distance regularly and cannot do so on a daily basis.

[4]  Report dated 1 December 2004.

19.     The respondent submitted that I should accept the rating of Dr Mitchell, an assessor with Health Services Australia, who assessed Mr Derwent as having a 10 point impairment of the lower limbs.  However he reached his conclusions on the basis of a file review.  He did not examine Mr Derwent, but merely assigned impairment ratings based upon the examination that had previously been done by Dr Monsour.  Nevertheless, without seeing Mr Derwent, Dr Mitchell concluded that Mr Derwent had much greater capacity than Dr Monsour noted after having examined Mr Derwent.  For instance Dr Mitchell, while noting Dr Monsour’s conclusion that Mr Derwent ‘can only walk 500 metres at best → pain’ relied on another account that he could walk 1km. 

20.     In my view, Dr Mitchell was not in a good position to draw conclusions in this complex case without seeing Mr Derwent.  For this reason, particularly with regard to lower limb impairment, I prefer the conclusions of Dr Monsour.

21.     Because Mr Derwent’s main problems in his lower limbs arise from pain and swelling when he uses the leg, it seems to me that Mr Derwent is more appropriately assessed under Table 20 for Miscellaneous Impairments.  On this point the Introduction to the Impairment Tables, contained in Schedule 1B of the Act, states:  

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

22.     Based on the conclusions in a number of medical reports, and the obvious seriousness of Mr Derwent’s foot and leg injuries which result in him experiencing continuing high levels of pain, it seems to me that this is an appropriate case in which to apply Table 20. I was satisfied that Mr Derwent meets the description of 20 points under that Table, which refers to severe symptoms with decreased ability/efficiency to carry out many everyday activities. 

23.     In addition, even if Mr Derwent were not to satisfy 20 points under Table 20, I was satisfied nevertheless, based on the reports of Ms Walker, Occupational Therapist, that Mr Derwent satisfied the indicia of 20 points under Table 4, the table which assesses Function of the Lower Limbs and provides the description at that level of impairment:

Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling.

Mr Derwent’s impairments, leading to major interference with walking and with climbing, squatting and kneeling, were commented upon in the various medical reports.

post traumatic stress disorder

24.     Dr Bundellu diagnosed Mr Derwent as suffering post traumatic stress disorder.  It seems clear enough that Mr Derwent has some psychological consequences as a result of the motor vehicle accident.  I asked him what his symptoms were and he said that he has recurrent nightmares and that he finds it hard to contain his anger at times and feels like dropping someone.  He said he would have difficulty now answering to a boss and having others telling him what to do. 

25.     In his report of 23 May 2005, Dr Bundellu said that at the time of the claim Mr Derwent had post traumatic stress disorder which he scored at 20 points but he said that it was uncertain how long it would last.  The only treatment that Dr Bundellu has mentioned is “counselling” and he does not appear to have referred Mr Derwent to a psychiatrist. This makes is difficult to accept that 20 points is the correct rating, as that rating is assigned only where the symptoms are serious or the impairment is such as requires intervention by a psychiatrist. This does not seem to be considered necessary by Dr Bundellu as his treating practitioner, although I note other doctors have commented that Mr Derwent expressed reluctance about consulting any psychiatrist.  It may well be that the lack of psychiatric referral may be attributable to Mr Derwent’s reluctance rather than an indication that his Dr Bundellu does not think he might benefit from it. 

26.       For reasons not explained to me, Dr Monsour did not identify post traumatic stress disorder as one of Mr Derwent’s conditions, despite his general practitioner referring to that condition. Dr Mitchell noted the presence of the condition, but assigned NIL points to it. I have already noted that Dr Mitchell conducted his review on the papers only, which would have hindered him in assessing any psychiatric disturbance. Other doctors have commented that Mr Derwent would benefit from psychological assistance and Dr Cameron, neurologist, thought that aspects of Mr Derwent’s memory disturbance were more likely related to psychological factors than to the head injury he sustained in the accident.  The neuropsychologist who saw Mr Derwent in late 2004, Ms Anderson, considered that his mood, including elevated levels of depression and anxiety, had worsened compared with the results of tests she had administered in 2003.

27.     Overall, the evidence on post-traumatic stress disorder or other psychiatric disturbance was inconclusive.  In view of the lack of more active intervention through treatment, I concluded that the appropriate rating was NIL under Table 6 of Schedule 1B of the Act, reflecting that Mr Derwent experiences subjective distress and occasional friction, but it is being dealt with by supportive treatment from the treating doctor. That description seems to best describe Mr Derwent’s circumstances. It recognises that Mr Derwent has certain ongoing psychiatric problems arising from the accident that are taken as permanent within the meaning of the legislation.

memory impairment

28.     Memory impairment is assessed under Table 8 of Schedule 1B of the Act. Mr Derwent maintains that his memory and learning skills were impaired after the accident.  He has been seen a number of times by neurologists and neuropsychologists about this. These practitioners have noted that his head injury was minor and that there were no clear indicators that Mr Derwent is any more impaired than others of his age.  In the most recent report, dated 1 December 2004, Ms Anderson noted that Mr Derwent’s processing speed was low/average and he had difficulty with aspects of higher cognitive functioning. 

29.     Dr Mitchell concluded, taking into account this and other evidence, that Mr Derwent’s comprehension, reasoning and memory were comparable with those of his peers, or at best only slightly impaired.  That description, if correct, attracts a rating of NIL under Table 8.  I agree with that rating.

other injuries

30.     I noticed that Mr Derwent was awarded nothing in the compensation settlement for fractured ribs, fractured left toe, parasthesis in right fingers, hernia and head injury. He was only awarded quite minor amounts for the impaired nerve distribution in his face and the reduced range of movement in his shoulder.  Some of these were identified by Dr Mitchell in assessing Mr Derwent, including cramps in his right hand and restriction of motion of his right shoulder.  These conditions, whilst permanent, seem to have little ongoing impact and as such Dr Mitchell assigned NIL points under the Tables to them.  I was satisfied that this assessment is correct. I note also that Dr Mitchell assigned NIL points under Table 20 for chest wall pain, which Mr Derwent, a most uncomplaining man, describes as intense pain at times with certain movements.  From all accounts it is intermittent and not so frequently occurring as to make Dr Mitchell’s assessment of it incorrect.  I accept that rating.

31. Having considered Mr Derwent’s various impairments, I am satisfied that Mr Derwent’s medical conditions attract a rating of 20 points under the Tables and he satisfies s 94(1)(b) of the Act. The question remaining is does he have a continuing ability to work?

continuing inbility to work

32. This is defined in s 94(2) of the Act and in Secretary, Department of Social Security v Pusnjak (1999) 164 ALR 572; 56 ALD 444; (1999) 29 AAR 561; [1999] FCA 994 [1999] FCA 994; 56 ALD 444 the Federal Court set out the correct approach to applying that section of the Act.  

33. Firstly one must look at whether the person’s impairment is of itself sufficient to prevent them from doing any work within the next 2 years. Mr Derwent satisfies that part of s 94(2). In reaching that conclusion I rely on the reports of Dr Monsour and Dr Bandellu, who agreed on that point.

34.     The next question is whether the impairments are sufficient to prevent Mr Derwent retraining.  I was satisfied that Mr Derwent’s impairments meet that criterion.  Mr Derwent sustained substantial injuries at a time when he was no longer a young man. These injuries have stabilised, but they amount to a mixture of both physical and psychological/neurological impairments that make it unlikely for him to be able to successfully partake in training.  Mr Derwent acknowledges that he has little trouble sitting, and in that respect it might be possible for him to take part in a course of instruction.  However his ability to use transport in order to attend training, or to move about when undertaking training is markedly impaired.  I took into account the evidence of his inability to return to work at the newspaper office, where he was engaged in simple tasks of no more than two hours a day.  He was unable to do this, and I had no doubt from comments in reports that he was well motivated in his attempts to return to work. I inferred from his lack of capacity to undertake these limited hours, that he would be unable to engage in training, for reasons of limited endurance.

35.     In addition I accept Mr Derwent’s evidence that his levels of pain affect his concentration, and this means that he would have difficulty achieving new skills or learning new material. 

36. In any event, I was otherwise satisfied that any training, even were it possible for him to undertake it, would be unlikely to enable Mr Derwent to do any work (work being 30 hours per week at award wages – s 94(5)) within 2 years of his claim. I note that Dr Monsour, when asked what intervention activities might address barriers to workforce participation for Mr Derwent, made no suggestions. I took Dr Monsour silence as implying that nothing would overcome the combined effects of Mr Derwent’s cognitive/neurological impairment; limited concentration and comprehension; mobility restrictions; chronic pain; and limited endurance which he had identified when answering the preceding question.  I respectfully agree with Dr Monsour.

37. Mr Derwent, being aged over 55 years, can take advantage of s 94(4), which provides that in considering whether any training is likely to enable the person to do work, regard can be had to the likely availability of work in the person’s local labour market.

38.     For these reasons I was satisfied that at the time of the claim in May 2005, Mr Derwent rated 20 points or more had a continuing inability to work, thus satisfying the qualification requirements of s 94 of the Act.

DECISION

39.     The Tribunal sets aside the decision under review and substitutes the decision that Mr Derwent is qualified for disability support pension.  The Tribunal remits to the respondent the assessment of what rate of pension is payable to Mr Derwent.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Senior Member

Signed:         
  Legal Research Officer

Date/s of Hearing  27 July 2006; 1 November 2006
Date of Decision  10 November 2006
The applicant represented himself             
For the respondent  Mr R McQuinlan, Departmental advocate