Docen and Secretary, Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2002] AATA 454

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/633

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ROBERT DOCEN
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date14 June 2002
PlaceBrisbane (heard in Gympie)

Decision The decision of the Social Security Appeals Tribunal dated 14 June 2001 is affirmed.

.................(Sgnd).................
Ms J Cowdroy
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – eligibility - whether applicant has a physical impairment of 20 points – whether condition is permanent or temporary
Social Security Act 1991

REASONS FOR DECISION

14 June 2002 Ms J Cowdroy, Member

HEARING:

The matter was heard in Gympie on 29 April 2002. The applicant appeared in person, accompanied by his wife, Mrs M Docen. Ms J Dwyer appeared for the respondent. The matter was decided on the basis of the T-documents, which were admitted into evidence as T1, the oral evidence of the applicant and Dr Rolls, and the submissions of both parties.
BACKGROUND TO THE APPLICATION:
On 15 February 2002 the applicant claimed disability support pension. It was refused on 2 May 2002 by the respondent on the basis that he did not have a combined rating of 20 points for his medical conditions pursuant to the impairment tables. The matter was reviewed by an authorised review officer on 15 May 2000, who affirmed the original decision. Mr Docen lodged an application for review of the decision with the Social Security Appeals Tribunal ("the SSAT"), which on 14 June 2001 affirmed the decision.
APPLICANT'S EVIDENCE:
Mr Docen said that he suffered a back seizure in December of 1999. Prior to that time he suffered from back pain but the episode in December 199 was severe and debilitating. He consulted Dr Conway, who had referred him for physiotherapy and subsequently a CT scan was carried out on 1 February 2000. It revealed a prolapse at L5-S1 (T12).
The applicant said he had consulted Dr J Winstanley, orthopaedic surgeon, who had advised him that if a back fusion were performed, it would produce a 50/50 chance of success.
Mr Docen was critical of the examination carried out by Dr G Rolls of Health Service Australia. He said the examination lasted for about 15 minutes and that Dr Rolls did not look at the scan or x-rays, and only glanced at the specialist reports. He said insufficient weight had been given to the fact that he had attended Commonwealth Rehabilitation service and staff at that organisation had indicated they could not assist him.
Mr Docen pointed out that Dr Rolls had indicated that he "can do most things if he pushes himself". However, he said that any activity her performed was accompanied by pain. In fact, he said he was in constant pain.
He pointed out that, at folio 79, Dr Rolls had indicated that his back condition was permanent. He also referred to the report of Dr Winstanley, at folios 70-72 dated 9 August 1999, which refers to a long history of symptomatology present within his lumbar spine. He also referred the Tribunal to the reports of Dr J Conway, his treating doctor, who was of the view that his back condition was long term, deteriorating, constant, and that it had been present for more than two years.
In respect to the right knee, he has not undergone an arthroscopy despite the fact this was thought to be desirable. He said that his knee locks up. He is not sure whether he is on the waiting list for elective surgery in respect to his knee.
He also pointed out that the summary prepared by the authorised review officer acknowledges the present of some nerve root involvement, which he believed, was significant. He said his primary symptom is that of pain. Although he thought it might settle, it had been constant for the past 15 months. He said he takes Tramel tablets for pain relief, which are a slow release preparation, and give him relief for about six hours. When he consulted Dr Rolls, he had taken painkillers and his range of movement was "okay". Before 21 December 1999 he was taking Panadeine Forte when required. Since then he has been taking Panadeine Forte and Tramel.
Mr Docen referred to the report of Dr S Wilmot, dated 23 March 1999, who had been providing treatment for his back pain at that time. After that time, he consulted Dr J Conway as she had been treating him for a back condition in about 1994. He also pointed to the report of CRS Australia to Centrelink dated 25 October 2000 (T28) which stated that the applicant could not gain any value from that service because of the current status of his medical condition. That report is dated 25 October 2000.
Under cross-examination, Mr Docen said he last worked in 1995. He had his own business however it failed. He said he experienced knee problems in 1995 and his back "started to break down". He has had a variety of occupations including retail work, printing, tyre fitting, sound and lighting, as well as backhoe and landscaping. He had also worked as a truck driver. His wife undertook full time work in 1996. He considered resuming work as a truck driver, however, he could not drive safely if he took medication. Although the medication he takes affords him pain relief, it makes him giddy.
At the time his claim was made, he had suffered the most severe back seizure that lasted three to four days, during which time he could not do anything. He said the pain was so bad, he was virtually crying. He could not shower, or to attend to his toilet without aid. Between December 1999 and June 200 he had six such seizures. In between those episodes, he experienced low back pain, and the slightest movement could cause another seizure. He lives on five acres, mainly bush. His children mow the lawn with a ride-on mower. He agreed with the SSAT's record of his evidence that he has some mechanical skills with motors. However, he could not do it at an occupational level.
EVIDENCE OF DR ROLLS:
Dr Rolls confirmed that when he examined the applicant, he had in his possession copies of letters from Dr Winstanley. Following his examination, he had completed an assessment, which appears at T13, and is dated 13 April 2000.
He stated that his assessment of loss of one quarter of range of movement was based on his examination of the applicant's capabilities on the day of examination. He was able to move his back in a number of ways. At T11-72, specifically in paragraph 2, Dr Winstanley has set out a number of clinical findings, which, Dr Rolls said, was commensurate with a loss of one-quarter range of movement.
In relation to the use of the Impairment Tables, Dr Rolls stated that whilst he could have utilised either Table 5 or Table 20, he was mindful of the introduction to Table 20 which states that generally pain should be assessed in terms of the underlying medical condition which causes it (T3-21, par 8). He acknowledged that there is also a statement in the introduction to the effect that where the tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used in lieu of the system specific tables.
In relation to his summary, which appears at T13-86, Dr Rolls stated that the calluses he observed on both hands of the applicant, indicate that he had carried out recent moderate work in the 6-8 weeks prior to examination. He believed that Mr Docen was fit for light sedentary work. Dr Rolls holds a degree in medicine, a postgraduate degree in Aviation Medicine and a Marketing Degree in Health Administration. He has been employed by Health Service Australia for the past ten years and his position necessitates the frequent application of the impairment tables under the Social Security Act 1991.
Upon questioning by Mr Docen, Dr Rolls stated that he would expect the applicant's back condition to worsen over time. Mr Docen suggested that he should have contacted his treating doctor, and Dr Rolls responded that it was usual to take a history from the patient and that he relied on what the applicant had advised him. He considered that the applicant had a "fair range of movement" and recent calluses were present. He acknowledged that a back fusion constitutes major surgery.
When it was suggested that his examination lasted 15 minutes, it he said it was usual to spend 20-25 minutes with a patient. He believed that back pain had been taken into account in his assessment and that it was not appropriate to utilise Table 20.
APPLICANT'S SUBMISSIONS:
The applicant firstly submitted that his back condition warranted 20 points under the impairment tables. In support of that contention, it was said that reliance should be placed on the reports of Dr Conway and Dr Winstanley. It was said that because of constant pain back, referral to Dr Winstanley had occurred. Dr Winstanley had advised a muscle building program and a back rehabilitation course. CRS had been unable to assist because of the level of his pain. He had attended physiotherapy sessions at Gympie Physiotherapy Centre. His back condition has not improved.
It was submitted that inadequate weight had been given to the applicant's back pain and that entire reliance on Table 5 in assessing the disability at 10 points was inappropriate.
In relation to capacity to work, it was pointed out that Dr Winstanley had not expressed an opinion on this aspect during the relevant period. However, Dr Conway had provided reports to the effect that the applicant was not fit for any work.
RESPONDENT'S SUBMISSIONS:
Ms Dwyer pointed out that Dr Rolls is the only medical practitioner who has assessed the applicant's back condition in accordance with the Impairment Tables. In addition, Dr Winstanley's reports, according to Dr Rolls, support a finding of a loss of range of movement of one quarter, which equates with 10 points under Table 5. It was pointed out that whether to assess under Table 5 or Table 20, is a matter of clinical opinion, and that such clinical opinion had been provided by Dr Rolls.
In respect to the capacity to undertake work, Dr Winstanley's earlier reports do not canvass this aspect. The respondent pointed out that Dr Winstanley recommended a muscle building program and a back rehabilitation course and these had not been implemented. Consequently, it could be argued that the condition had not been fully treated at the relevant time. The only treatment that Mr Docen had undertaken was a number of visits to a physiotherapist over a six-week period.
Dr Winstanley's comment that once the knee pathology is corrected, the applicant's lumbar spine symptomatology should improve, was drawn to the Tribunal's attention. In regard to the knee condition, this should be regarded as temporary, in that it had not been fully treated, in which case it warrants a nil rating.
In respect to the ability to work, it was pointed out that the applicant had been granted disability support pension in November of 2001, after undertaking a back rehabilitation programme. At that time, the respondent was in receipt of Dr Winstanley's report of 18 May 2001 which states that the applicant is "unsuitable for work activity" (T24-138).
In summary, it was contended that the applicant, at the relevant time, did not meet either of the criteria for payment of disability support pension, in that he did not have 20 points under the Impairment Tables, and secondly, he did not have a continuing inability to work.
THE LEGISLATION AND ITS APPLICATION:
Section 94(1) of the Social Security Act 1991 sets out the qualifications for disability support pension. It states:
"94(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
(d)   the person has turned 16; and
(e)   the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A)is not an Australian resident; and
(B)is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident.
94(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)   the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and
(b)   either:
(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training – such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
94(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 educational or vocational training or on-the-job training; or
(b)   if subsection (4) does not apply to the person – the availability to the person of work in the person's locally accessible labour market.
94(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.
94(5) In this section:
educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;
on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;
work means work:
(a)   that is for at least 30 hours per week at award wages or above; and
(b)   that exists in Australia, even if not within the person's locally accessible labour market."
The Tribunal finds that Mr Docen has a lower back condition, described as disc prolapse at L5-S1, which fits the definition of "physical, intellectual or psychiatric impairment" (s 94(1)(a)). Although he also has a right knee condition, no rating was assigned to this condition and the applicant did not challenge this issue. The issue then becomes whether the back condition is fully documented and has been investigated, treated and stabilised. If that is the case, then it is regarded as a permanent condition and it can be allocated a rating under the Impairment Tables, which are set out in Schedule 1B of the Act.
In respect to the lower back condition, the evidence points to this being a disabling condition. All of the medical practitioners who have examined the applicant are of the view that this is a permanent condition and that this was the case at the time that the applicant lodged his claim.
The Tribunal was mindful of the fact that the applicant had been examined by a number of medical practitioners in connection with his claim. Their reports provide various opinions. However, the only practitioner who has rated the condition by reference to the Impairment Tables is Dr Rolls. The Tribunal had regard to the applicant's evidence that on the day of examination he had taken medication for pain relief, which it was inferred, made him able to move more freely.
At the time that that examination occurred, the applicant was taking Panadeine Forte tablets for pain relief according to Dr Rolls. Since that time, he supplements that medication with Tramel, another form of pain relief medication. That is suggestive, to the Tribunal's mind, that the applicant's level of pain has increased. That is not to say that he has not been in pain in the past, but the applicant's oral evidence at the SSAT and at the Tribunal, was to the effect that he has adapted his lifestyle to cope with his pain. Certainly, the references to the constant severe pain are not echoed in the medical reports of either Dr Conway or Dr Winstanley. However, the Tribunal recognises that exacerbation of back pain occurred and this is evidenced by admissions to Gympie Hospital during the first six months of 2000.
Despite this, however, the Tribunal is reasonably satisfied that the applicant's back condition at the relevant time is adequately assessed by reference to Table 5. Ten points is warranted where there is evidence of: one quarter loss of 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 for driving for about 60 minutes. The Tribunal takes the view that the applicant's pain is taken into account in that description. In so finding, it is not the case that the Tribunal rejects the evidence of Dr Conway or Dr Winstanley. It is simply that there is nothing in the medical evidence to suggest that it is appropriate to utilise Table 20 because Table 5 underestimates the applicant's level of disability.
That being the case, the applicant's circumstances do not meet one of the essential criteria for payment of disability support pension. It is therefore unnecessary for the Tribunal to consider the applicant's capacity for work.
DECISION:
The Tribunal affirms the decision under review.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member
Signed:         Sarah Oliver
  Associate
Date of Hearing  29 April 2002
Date of Decision  14 June 2002
The Applicant Appeared in Person
Solicitor for the Respondent    Ms J Dwyer, Departmental Advocate

[2002] AATA 454

14 June 2002

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Social Security Act 1991

Disability Support Pension

Eligibility

Impairment Rating

Permanent or Temporary Condition