Donald Macdonald and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 233
[2013] AATA 233
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4358
Re
Donald Macdonald
APPLICANT
And
Secretary, Department of Families, Housing,
Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Dr Kerry Breen, Member Date 17 April 2013 Place Melbourne The Tribunal affirms the decision under review.
...................[sgd].....................................................
Dr Kerry Breen, Member
Catchwords
SOCIAL SECURITY - disability support pension – back injury - crush fracture of the second lumbar vertebra – hypertension – conditions permanent - 10 impairment points - decision affirmed.
Legislation
Social Security Act 1991 section 94(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Kerry Breen, Member
17 April 2013
Mr Donald Macdonald suffers from a long-standing back injury and hypertension. He contacted Centrelink, the service provider for the Department of Families, Housing, Community Services and Indigenous Affairs, on 16 January 2012 about lodging a claim for disability support pension (DSP). He lodged the claim with Centrelink on 25 January 2012. The claim was supported by a Medical Report Disability Support Pension dated 28 February 2012, completed by his general practitioner.
Centrelink referred Mr Macdonald for a Job Capacity Assessment (JCA), which was conducted on 2 April 2012. The job capacity assessor advised that Mr Macdonald’s back condition was fully diagnosed, treated and stabilised, as required under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). The assessor assigned 10 impairment points to Mr Macdonald’s back condition. The assessor advised that Mr Macdonald’s hypertension was well controlled. Therefore, it had no functional impact. The assessor assigned this condition nil impairment points. The assessor also advised that Mr Macdonald had a baseline work capacity of 8-14 hours per week; and a work capacity within two years, with intervention, of 15 to 22 hours per week.
On 23 April 2012, a Centrelink officer rejected Mr Macdonald’s DSP claim. On 23 June 2012 an Authorised Review Officer (ARO) affirmed the Centrelink officer’s decision to reject the DSP claim.
On 27 June 2012 Mr Macdonald applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO’s decision. The SSAT conducted a hearing on 8 August 2012, at which Mr Macdonald gave evidence by telephone. The SSAT affirmed the ARO’s decision. Mr Macdonald now seeks review of the SSAT decision by this Tribunal.
THE ISSUES
The issues to be determined are:
·What permanent medical conditions does Mr Macdonald suffer from?
·What impairment ratings do his conditions attract? and
·If the total impairment rating is 20 points or more, what is the impact of these conditions on his capacity to work?
The relevant assessment period is from 16 January 2012 and the subsequent 13 weeks.
LEGISLATION
The relevant legislation includes s 94(1) of the Social Security Act 1991 (the Act) and the Impairment Tables. Section 94(1) of the Act provides:
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…
In order for a person’s impairment to be assessed under the Impairment Tables, the medical condition(s) causing the impairment must be permanent and be more likely than not, in the light of available evidence, to persist for more than 2 years, as is provided in section 6 of the Impairment Tables:
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.
…
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.
…
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 paragraphs 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.
THE EVIDENCE OF THE APPLICANT
Mr Macdonald stated that he injured his lower back in two falls separated by only a few hours in January 2001. Prior to the injury Mr Macdonald worked as a bricklayer and horse trainer. He has not worked since the injury.
Mr Macdonald first injured his back when participating in a parachute jump. He noticed increasing lower back pain soon after the jump. When returning home two hours later, he was in such severe pain that he needed to kneel on the floor in the back of the car. While being helped up some stairs at his home, he fell down three or four stairs and his back pain became much worse. He was taken to hospital where a crush fracture of the second lumbar vertebra was diagnosed.
Mr Macdonald stated that he was treated by immobilisation in bed in hospital for six weeks. He was offered surgical treatment but declined this because he knew of a friend who had had such surgery and had never been able to bend his back normally.
Mr Macdonald stated that he was unable to return to work and was initially granted DSP. Following a successful insurance claim for the back injury, DSP was discontinued.
Mr Macdonald stated that while he has maintained his licence as a horse trainer, his son now works under that licence and that he, Mr Macdonald, has not worked as a trainer since his back injury.
Mr Macdonald underwent a rehabilitation program for his back for approximately three years. He attempted a course in computer skills that involved attendance one day per week for around 10 weeks. He dropped out after three to four weeks because his back pain was aggravated by prolonged sitting. He has not sought work or attended job interviews since his back injury in 2001.
Mr Macdonald stated that he attended a Pain Management Clinic in Sale in 2007, attending one day per week for six or ten weeks. He stated that this helped a lot and probably helped him to reduce his use of painkilling medications.
Mr Macdonald described himself as now being more or less crippled by his back pain. The pain is felt in the lower back and extends down into his legs and upwards towards his shoulders. The pain he now experiences is described as twice as bad as 12 months ago. He added that he now feels there is no purpose in living life and that he has not long to go.
Mr Macdonald attends a local general practice, primarily to obtain prescriptions for his medications. He sees one of five or six doctors at the practice. He has not seen a specialist for several years. He last attended a physiotherapist for a review in July 2012 and before that in 2007. He uses a combination of painkilling medications including Tramadol, Panadeine Forte and Nurofen Plus. However, because of the cost, he is not always able to have the prescriptions filled. In the past, he has followed an exercise program including slow jogging and daily push-ups until 2007, but he is no longer able to do so.
Mr Macdonald agreed that there was a period between 2007 and 2012 where there appeared to be no medical reports. He explained that his usual general practitioner was away from the practice for much of that time but that he still attended the clinic to obtain prescriptions for painkillers.
Mr Macdonald stated that there were no plans for his condition to be reviewed by a specialist or for any new approach to his health problems. In explaining this, he indicated that he has taken the approach that his back problem will not get better and that he has accepted that he just has to live with it. Since 2007 he has reduced his use of painkilling medications because of their side effects.
In response to questions about his current health, Mr Macdonald described generalised weakness, pins and needles and numbness in his legs, and a fear of lifting anything.
Mr Macdonald agreed that he was diagnosed with depression in around 2002 and that he took antidepressant medication for four to five years, up until 2007. He is not on medication now but feels that recently he has become depressed again. He has not raised this issue with the clinic he attends.
Mr Macdonald takes a three in one medication for his hypertension, which is well controlled.
When asked by the Tribunal about his disability at the time of his application for DSP, he reported that he was living alone in a rented apartment. He was able to do his shopping, cooking, laundry and vacuuming. Every second weekend, two of his children, now aged 14 and 15 years, came to stay with him. He does not have a driving licence but is driven by his brother for 45 minutes every month, which is about his limit.
Mr Macdonald agreed that he had travelled overseas twice and explained that his brother helped with the travel costs. He went to Thailand twice, once in 2010 and once in August 2011, each time for approximately 10 weeks.
Mr Macdonald emphasised that he had applied for DSP in the past and that he had kept on appealing on principle, because with my injuries any type of work was not possible.
Mr Macdonald was questioned about a new condition of bilateral inguinal hernias. He stated that these were not troubling him greatly and that there was no plan for surgical treatment.
MEDICAL EVIDENCE
The written medical evidence before the Tribunal includes:
·a Centrelink medical certificate completed and signed by Dr P Heslin, dated 3 May 2001;
·a Centrelink medical certificate completed and signed by Dr Nagasinghe, dated 10 June 2001
·a certificate of sickness completed and signed by Dr Heslin, dated 17 December 2001;
·a Centrelink medical certificate completed and signed by Dr Iain Nicolson, dated 26 February 2002;
·a Centrelink Treating Doctor’s Report completed and signed by Dr Nicolson, dated 7 March 2002;
·a letter addressed to whom it may concern written by Dr Marianne Vonau, dated 4 April 2002;
·a Centrelink Medical Assessment Report completed and signed by Dr R N Edmonds of Health Services Australia, dated 12 April 2002;
·a Centrelink Treating Doctor’s Report completed and signed by Dr Rashid Mohmood, dated 18 October 2006;
·a Centrelink Treating Doctor’s Report completed and signed by Dr John Jarman, dated 16 February 2007;
·a letter addressed to Centrelink advocate Mr David Perdon written by Dr Jarman, dated 17 May 2007;
·a report of a CT scan of the lumbosacral spine, dated 6 June 2007;
·two letters addressed to Jennifer Cook, CRS Australia from physiotherapist Mr Robert Hughes, dated 19 June and 26 June 2007;
·a letter addressed to whom it may concern written by Dr Jarman, dated 21 August 2007;
·a Centrelink Medical Report Disability Support Pension form completed and signed by Dr Deepthi Mudunna, dated 16 September 2010;
·a Centrelink Medical Report Disability Support Pension form completed and signed by Dr Jarman dated 28 February 2012;
·a Centrelink Medical Report Disability Support Pension form completed and signed by Dr Jarman, dated 31 May 2012;
·a further letter from Mr Hughes (physiotherapist), dated 19 July 2012;
·a report of a CT scan of the lumbosacral spine and pelvis, dated 19 February 2013; and
·a letter addressed to Centrelink from Dr Yousuf Ahmad, dated 5 March 2103.
Paragraphs 29 to 48 summarise the information contained in the written medical evidence.
In a certificate of sickness dated 17 December 2001, Dr Heslin wrote that Mr Macdonald was suffering from permanent incapacity. In regard to Mr Macdonald’s future unfitness for work, Dr Heslin wrote permanent & unlikely ever again to engage in gainful employment for which he is reasonably qualified by education, training or experience.
In May 2001 Dr Heslin certified that Mr Macdonald had a diagnosis of spinal injury L2 level and would not be likely to be able to work for at least 8 hours a week for 3-6 months.
In a Centrelink medical certificate dated 10 June 2001 Dr Nagasinghe diagnosed a fractured L2 vertebrae [sic] and noted that he was unable to comment at this stage on Mr Macdonald’s long-term capacity to work.
In February 2002 Dr Nicolson certified that Mr Macdonald had a Fracture L2 – compression fracture and would not be likely to be able to work for at least 8 hours a week for more than 2 years because of the fracture he cannot work again as a bricklayer.
In March 2002 in a Treating Doctor’s Report, Dr Nicolson certified that Mr Macdonald had a compression fracture L2, with clinical features of pain and loss of normal R.O.M. [range of movement]. Dr Nicolson also diagnosed Depression at loss of ability to work and wrote that this was being treated with Efexor 75mg SR daily.
In April 2002 Dr Vonau, a specialist in paediatric and adult neurosurgery, wrote that Mr Danny Macdonald was treated for a [sic] anterior wedge fracture of the L2 vertebra sustained in a fall on 30th January 2001… He had previously worked as a bricklayer and horse trainer, occupations which Mr. Macdonald would be unable to resume since sustaining this injury. He would be permanently incapable of returning to this type of work.
In a Medical Assessment Report dated 12 April 2002, Dr Edmonds of Health Services Australia assessed Mr Macdonald’s crush fracture as reducing his normal range of movements to About ½ normal range and, under impairment table 5.2 of the then operative Tables For The Assessment Of Work-Related Impairment for Disability Support Pension in Schedule 1B of the Act, made an impairment rating of 20 points. Dr Edmonds noted chronic intractable back pain and also noted a diagnosis of depression but wrote Should resolve with treatment. He also wrote:
There is no treatment for his back other than taking pain killers & avoiding all aggravating activity…. His back may improve a little with time & allow some light part time work in a year or so but he will remain unfit for any full time work for at least the next five years.
In a Treating Doctor’s Report in October 2006, Dr Mohmood diagnosed a Fractured L2 and noted current symptoms of Back pain on sitting - unable to lift wts [weights]. Past treatment was listed as physiotherapy, reviewed by neurosurgeon in (2000-2002). Future planned treatment was noted as pain management. Impact on ability to function was stated to be He complains of pain on sitting. He also complains of problems on lifting wts [weights] and restricted range of movement.
In a Treating Doctor’s Report dated 16 February 2007, Dr Jarman noted condition 1 to be FRACTURE LUMBAR 2 VERTEBRA. Dr Jarman wrote CURRENT SYMPTOMS ARE LUMBAR PAIN IN L2/L3 REGION. WORST SITTING + LIFTING … LEVEL OF PAIN IS 5/10 WHEN ‘COMFORTABLE’, BUT CAN GET SEVERE 9/10. Current treatment consisted of TRYPTANOL, TRAMAL SR and PANADEINE FORTE, past treatment PHYSIOTHERAPY and future/planned treatment as CONTINUE ABOVE CURRENT THERAPY. The report mentions HYPERTENSION treated with ATACAND but does not mention depression.
In a letter addressed to Centrelink advocate Mr David Perdon, dated 17 May 2007, Dr Jarman answered a series of questions posed by Mr Perdon (those questions are not provided in this letter). Of most relevance to the Tribunal, the letter states (among other things) that Mr Macdonald has:
… a healed 50% loss of height compression fracture but with an acceptable alignment, the condition is permanent….
and
The impairment did prevent the person from undertaking a training activity after his injury. It is possible that a training activity now could be designed for the person to undertake over the next two years.
The report of a CT scan of Mr Macdonald’s lumbosacral spine dated 6 June 2007 recorded in part Loss of vertebral height of L2 by approximately 60% and Mild posterior disc bulge causing no stenosis of the spinal canal or compression of the exiting nerve roots at L4/5 level.
In his letter of 19 June 2007, addressed to Jennifer Cook, CRS Australia (the Tribunal assumes CRS stands for the Commonwealth Rehabilitation Service), physiotherapist Mr Hughes outlined the history he took and his physical findings and concluded:
Danny can do whatever he can without aggravating his symptoms. He should therefore avoid prolonged standing and sitting, and lifting of heavy weights. Otherwise he should be free to try anything, and progress as his symptoms allow.
In a follow up letter dated 26 June 2007, Mr Hughes, having now reviewed a CT scan dated 6 June 2007, qualified his earlier advice to Ms Cook. He wrote that the CT scan:
… does report a mild posterior disc bulge at L4/5 level. While this is reported as a mild bulge, it still places some further restrictions to the previous letter. These restrictions are that he should avoid repetitive or prolonged bending or stooping. Also he must not bend or twist his trunk whilst lifting any weight.
In August 2007 Dr Jarman provided a more detailed medical report. It began with the statement This report has been prepared at the request of the above named (ie Mr Macdonald). The report addressed the original injury, its treatment and its course. Of relevance to this hearing, Dr Jarman made the following observations: He [Mr Macdonald] also advised me that he was told that he ‘would not be able to work again’ and It is possible that with employment retraining, he could find alternative work.
In a Medical Report Disability Support Pension form dated 16 September 2010, Dr Mudunna noted condition 1 as FRACTURED LUMBAR VERTEBRAE, the history as BACK PAIN and current treatment as ANALGESICS PHYSIOTHERAPY. In response to Details about how this condition currently affects the patient’s ability to function, Dr Mudunna wrote ability to sit/stand (and one more word which is illegible).
In a Medical Report Disability Support Pension form dated 28 February 2012, Dr Jarman again reported condition 1 as CHRONIC/RECURRENT LUMBAR PAIN SECONDARY TO INJURY SUSTAINED FOLLOWING PARACHUTE LANDING (2000) FRACTURE OF L2. Current symptoms were recorded as SYMPTOMS OF BACK PAIN ARE NOW WORSE + MORE CONSTANT (DAILY). SYMPTOMS ARE MODERATELY SEVERE. The question in regard to impact on ability to function was left unanswered. He noted hypertension as an additional medical condition that has NO IMPACT on Mr Macdonald’s ability to function.
In a further Medical Report Disability Support Pension form dated 31 May 2012, Dr Jarman described Mr Macdonald’s medical condition in exactly the same words as quoted in para 44 above. However, in this report, Dr Jarman responded to the question in regard to impact on ability to function as follows:
UNABLE TO SIT COMFORTABLY. NEEDS TO STAND + MOVE AROUND. MOST COMFORTABLE POSITION IS EITHER STANDING OR LYING ON BACK. CONSTANT PAIN. REDUCED CONCENTRATION, AND HIS PHYSICAL EFFORT + STRENGTH IS REDUCED.
Mr Hughes, physiotherapist, reviewed Mr Macdonald on 17 July 2012 and wrote a one‑page report dated 19 July 2012. Mr Hughes’ report addresses Mr Macdonald’s pain and disability outside the assessment period that the Tribunal is considering (from the 16 January 2012 and the subsequent 13 weeks). The thrust of the report is that Mr Macdonald’s condition appears to have deteriorated significantly and that Mr Hughes recommends another CT or MRI scan as he suspects his L4/5 disc bulge has extended further and is now causing compression on the nerve roots bilaterally.
A CT scan report dated 19 February 2013 notes in part:
There is an old crush fracture of the L2 vertebral body resulting in up to 75% loss of height. There is mild bulging of the posterior cortex of the vertebral body…… No significant spinal canal or intervertebral foraminal stenosis….
In a letter addressed to Centrelink dated 5 March 2103, Dr Ahmad reported that Mr Macdonald now has bilateral inguinal hernias with recurrent symptoms. The letter notes current medications as:
Panadeine Forte .. 1 tds prn, Somac 40 mg .. once daily… Twynsta 40 mg;10 mg … 1 Daily .. Voltaren… 50 mg .. 1 Twice a day prn.
CONSIDERATION OF THE ISSUES
The respondent acknowledged that Mr Macdonald’s back condition prevented him from returning to his previous occupations. The respondent submitted (in summary) that the SSAT correctly found that Mr Macdonald’s back condition cannot be assigned an impairment rating as the condition has not been fully treated and stabilised and that thus it cannot be deemed permanent. The respondent also submitted that as Mr Macdonald’s conditions do not attract an impairment rating of 20 points, it was not necessary for the Tribunal to consider if Mr Macdonald had a continuing inability to work.
Mr Macdonald submitted that his injury has got to the stage where he cannot do anything, that he has not worked since the injury and that he will never be able to work again.
Vertebral crush fracture
Is this fully diagnosed, treated and stabilised?
At the time of Mr Macdonald’s DSP application, the medical evidence is clear that this condition was fully diagnosed. There is radiological evidence of a severe injury to the second lumbar vertebra and there is material from previous treating doctors that confirms the nature of the injury and how it was treated.
On the available evidence, it is less clear to the Tribunal that as at January 2012 Mr Macdonald’s back condition had been fully treated. The Tribunal notes here briefly, and below in more detail, that there is evidence that Mr Macdonald’s back condition may have deteriorated significantly since January 2012. The evidence also suggests that he has become very depressed since that time. However, the Tribunal must decide this application based on Mr Macdonald’s state of health and any associated disability as at 16 January 2012 and during the following 13 weeks.
Mr Macdonald could not recall when he last saw a specialist. The only report from a specialist available to the Tribunal is from a neurosurgeon he saw in 2002. Mr Macdonald appears to have made up his mind soon after his injury that he would never work again, and from around 2007, that nothing more could be done to assist his physical state. The Tribunal makes no criticism of Mr Macdonald in this regard, as it is possible that advice from doctors soon after the injury generated such an attitude. He therefore has not sought any further treatment and has managed his condition by using painkilling medications in moderation and by limiting his physical activities.
The Tribunal’s task is hampered by the lack of detail in the medical reports provided to support Mr Macdonald’s application. In the reports of treating general practitioners, current treatment has been pain control, described as USING NUROFEN PLUS MEDICATION (Dr Jarman) and ANALGESICS and PHYSIOTHERAPY (Dr Mudunna). In 2010 (Dr Mudunna) and 2012 (Dr Jarman), the answer to the question of any future/planned treatment was SAME and NIL respectively. It is quite possible that no other reasonable treatment for Mr Macdonald’s back condition was available, given the nature of the severe injury and the state of his back in 2012. However, it is unsatisfactory that contemporary expert evidence on this possibility was not available to the Tribunal.
The medical evidence is mentioned not to criticise Mr Macdonald’s treating doctors but to reflect on the difficult task faced by job capacity assessors created by the current approach adopted by Centrelink. In the Tribunal’s view it is unrealistic and probably unreasonable that assessors are expected to determine whether medical reports are lacking in crucial detail, or where it would be helpful to obtain either a new medical report or gain access to a claimant’s existing medical records.
As one example of the problems created, in the JCA report of 2 April 2012 the assessor wrote:
Since last assessed [on18 October 2010] Mr. MacDonald does not appear to have engaged in any significant further treatment, the medical report from Dr. Jarman notes that he has a deteriorating condition but has had ‘painkilling medication intermittently since 2033- 2012’ as past treatment.
(The Tribunal presumes this was meant to read since 2003). This comment seems to imply that the assessor (a social worker by profession) has sufficient knowledge to determine that there is other treatment available for such an injury and sufficient knowledge to hint at criticism of Mr Macdonald for using painkilling drugs sparingly. In the view of the Tribunal, it is unlikely that the assessor possessed such knowledge. Despite this comment, the assessor did advise that Mr Macdonald’s back condition was fully diagnosed, treated and stabilised and proceeded to address the question of assigning impairment points.
In the view of the Tribunal, most experienced doctors, including doctors employed by Medibank Health Solutions (formerly Health Services Australia) or doctors working in the Health Professional Advisory Unit of Centrelink, would be likely to interpret the reports of Mr Macdonald’s treating doctors as reflecting their views that Mr Macdonald’s self-management of his back pain was acceptable to them, and that referral for further specialist opinion would be unhelpful and a possible waste of resources. There is support for this view in the report of Dr Edmonds of Health Services Australia – see para 35 above. Such clinical management decisions (including referral to a specialist) are based on clinical need and not on any legal requirements under s 94(1) of the Act pertaining to the granting of DSP.
Having examined the state of the medical evidence carefully, the Tribunal has formed the opinion that it should accept the evidence of Mr Macdonald’s treating doctors. The Tribunal therefore finds that as of January 2012 no other reasonable treatment was available for Mr Macdonald. It also finds that, for the purposes of the Act, his back condition was fully treated and stabilised. (From Mr Macdonald’s point of view, the use of the term stabilised is likely to be confusing, as his subsequent experience suggests his back condition has deteriorated since January 2012. This issue is discussed below in para 71.)
The Tribunal is therefore satisfied that at the time of his application for DSP, Mr Macdonald’s back condition had been fully treated and stabilised and could be deemed permanent for the purposes of the s 94(1) of the Act.
What impairment points does the vertebral fracture attract?
In the relatively contemporary report of the assessor who conducted the JCA on 2 April 2012, Mr Macdonald is described thus:
Mr. MacDonald reports that he is unable to raise his arm above shoulder height, can undertake tasks at waist height adequately (reports has a clothes horse near his clothes washing machine and can hang and collect take off the dryer when dry), can stand and cook for up to 30 minutes preparing meals, reports can walk over 30 minutes but rarely does. He does home exercises daily, said he can do 20 push-ups daily…… He was observed to sit for 40 minutes at interview, stood once after 40 minutes …..
Applying Table 4 of the Impairment Tables, the assessor recommended an impairment rating of 10 points.
In his oral evidence to the Tribunal (see para 23), Mr Macdonald’s account of his daily function in January 2012 was consistent with the JCA report. In addition, the Tribunal notes Mr Macdonald’s capacity to travel to Thailand for a stay of several weeks, only a few months earlier in August 2011.
Table 4 of the Impairment Tables headed Spinal Function reads as follows
Introduction to Table 4
•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 purpose 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 commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
o a 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.
• In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.
Points
Descriptors
0 There is no functional impact on activities involving spinal function.
(1) The person can:
(a) bend down to pick a light object off the floor (e.g. a piece of paper); and
(b) turn their trunk from side to side; and
(c) turn their head to look to the sides or upwards.
5 There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. 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 (e.g. 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 (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. 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.
30 There is an extreme functional impact on activities involving spinal function.
(1) The person is:
(a) completely unable to perform activities involving spinal function; or
(b) unable to bend or turn their trunk or their neck to complete the most basic of daily activities (e.g. dressing, bathing, showering or light housework).
In the Tribunal’s view, the recommendation of the assessor in April 2012, of 10 impairment points under this Table, is consistent with the incapacity experienced by Mr Macdonald and is the correct rating.
Hypertension
The Tribunal is satisfied that Mr Macdonald’s hypertension has been fully diagnosed, fully treated and stabilised and can thus be deemed permanent for the purposes of the Act. Mr Macdonald’s evidence indicates that his blood pressure control is satisfactory and that he has no disability related to hypertension. Accordingly, no impairment points should be awarded for this condition.
Depression
The condition of depression was not part of Mr Macdonald’s application for DSP in January 2012 and was not referred to in either of the Medical Report Disability Support Pension forms completed by Dr Jarman in February and May of 2012. It is therefore not a matter relevant to this current DSP application. However, from Mr Macdonald’s oral evidence it appears to the Tribunal that since lodging his DSP application in January 2012 he has become deeply depressed and the Tribunal urges Mr Macdonald to inform his general practitioner of this.
Other medical conditions
Mr Macdonald takes medication for indigestion and this problem is well controlled and causes no disability. After he lodged his DSP application, Mr Macdonald was diagnosed with small bilateral inguinal hernias which cause minimal symptoms and for which no intervention is currently planned.
CONCLUSIONS
The Tribunal is satisfied that Mr Macdonald suffers from a crush fracture of the L2 vertebral body and hypertension.
The Tribunal is also satisfied that these conditions have been fully diagnosed, treated and stabilised and likely to persist for more than two years and thus may be deemed to be permanent as required by s 94(1) of the Act.
As Mr Macdonald’s conditions are deemed permanent, the next requirement that must be satisfied to receive DSP under s 94(1)(b) of the Act is to be allocated 20 impairment points. Under Table 4 Spinal Function, the Tribunal has allocated 10 impairment points for the condition of crush fracture. The Tribunal has allotted nil impairment points for Mr Macdonald’s hypertension. As the impairment rating for the two conditions does not amount to the required 20 impairment points, Mr Macdonald did not meet the requirement of s 94(1)(b) of the Act as at 16 January 2012. Accordingly, his application for DSP cannot succeed.
Since Mr Macdonald’s application for DSP fails on this ground, the Tribunal does not need to consider the issue of whether Mr Macdonald has a continuing inability to work.
As identified above in paras 16, 20, 46, 47 and 52, the Tribunal received evidence that suggested that there has been a significant worsening of Mr Macdonald’s back condition in the 12 months that have elapsed since he lodged his application for DSP with Centrelink. There is independent evidence in support of this possibility, as contained in the Medical Report Disability Support Pension form completed by Dr Jarman in May 2012, the report of physiotherapist Mr Hughes in 19 July 2012, and the report of a CT scan of 19 February 2013. It is not open to the Tribunal to consider this evidence as part of this application for review. This later medical evidence can only be considered if Mr Macdonald submits a new application for DSP to Centrelink.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 72 (seventy –two) paragraphs are a true copy of the reasons for the decision herein of Dr Kerry Breen, Member. ...............[sgd].........................................................
K. Randall, Associate
Dated 17 April 2013
Date of hearing 3 April 2013 Applicant In person Solicitors for the Respondent Stella Koya, DLA Piper Australia
0
0
0