Donato and Department of Family and Community Services - [2000] AATA 651

DECISION AND REASONS FOR DECISION [2000] AATA 651

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/360

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

DECISION

Tribunal Dr J D Campbell, Member

Date2 August 2000
PlaceSydney

Decision The Tribunal determines that the decision under review be affirmed.

[Sgd] Dr J D Campbell
Member
CATCHWORDS
Social Security – disability support pension – impairments – cervical spondylosis – low back pain – headaches – hypertension – eczema – tinnitus – assessment – continuing inability to work.

Social Security Act 1991, ss 94, 100, schedule 1B

REASONS FOR DECISION

2 August 2000 Dr J D Campbell

Mr Anthony Donato ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal dated 16 February 1999, which affirmed the decision of an authorised review officer on 2 December 1998. This latter decision affirmed a decision dated 10 November 1998 made by a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") to reject the Applicant's claim for disability support pension.
A hearing was held before the Tribunal in Sydney on 13 March 2000 at which the self-represented Applicant presented oral evidence. The Respondent was represented by Ms Buckley, an advocate from the Administrative Law section of Centrelink. The Tribunal was assisted by an interpreter fluent in the Italian language.
The following material was placed in evidence before the Tribunal:
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1 – T17, pp1 - 99
Medical Report from Dr Evans dated 13 November 1996       Exhibit A1
Medical Report from Dr Moore dated 3 August 1999    Exhibit A2
Medical Report from Dr Moore dated 8 June 1999       Exhibit A3
Medical Report from Dr Johnson dated 31 August 1999         Exhibit A4
Medical Report from Dr Johnson dated 19 July 1999   Exhibit A5
Medical Report from Dr Johnson 9 June 1999   Exhibit A6
Medical Report from Dr Moore dated 2 March 1999     Exhibit A7
Medical Report from Dr Johnson dated 5 March 1999 Exhibit A8
Medical Report from Dr Dracos dated 4 March 1999    Exhibit A9
Medical Report from Dr Dracos dated 1 February 2000          Exhibit A10
Medical Report from Dr Nishanion dated 24 September 1999 Exhibit A11
Letter from Mr Donato dated September 1999   Exhibit A12
Medical Certificate re Mr Donato by Dr Simons dated 24 February 2000     Exhibit A13
Respondent's statement of facts and contentions dated 22 February 2000 Exhibit R1

issues

The relevant issues in this matter are:
a) whether the Applicant has a physical, intellectual or psychiatric impairment and that impairment is 20 points or more under the impairment tables in schedule 1B of the Social Security Act 1991; and if so
b)        whether or not the Applicant has a continuing in ability to work because:
(i)      the impairment itself prevents the Applicant from doing any work for at least 30 hours per week at award wages within the next two years; and either
(ii)       the impairment of itself is sufficient to prevent the Applicant from undertaking educational, vocational or on-the-job training during the next two years; or
(iii)      such training is unlikely (because of the impairment) to enable the Applicant to do any work for at least 30 hours per week at award wages within the next two years.

legislation

The relevant legislation in this matter is the Social Security Act 1991, ("the Act") and in particular sections 94(1), (2), (3), (4), (5) and 100(3) and the Schedule 1B impairment tables.
background
The Applicant lodged an application for disability support pension on 7 October 1998 (T7). A treating doctor's report accompanied the claim lodgement documents (T8). A medical assessment report was prepared on 3 November 1998 (T10). A decision to reject the claim was made on 18 November 1998 (T11) on the ground that assessment of the Applicant's impairments was less 20 points. This decision was affirmed by an authorised review officer on 2 December 1998 (T16) and by the Social Security Appeals Tribunal on 16 March 1999 (T2).
applicant's evidence
The Applicant told the Tribunal that he was born in Somalia, East Africa on 22 April 1945. He left school at age 19, not having completed high school. In 1964 he came to Australia and worked at British Leyland for ten years, and from 1975 until 1998 as a machine operator at Bendix, Kirby's and TNW, with his last eight to nine months as an assistant in the storehouse. In September 1998 he was retrenched. In May 1995, the Applicant was injured at work when he fell as a result of a chair breaking. The injury was to his neck and back and he was off work for two weeks, after which he returned on light duties. He stated that in 1999 he received a $50,000 insurance payment related to his injuries. The Applicant stated that he worked with restrictions after his return to work in 1995, until his retrenchment in 1998.
The Applicant stated that he is not married, can read and write in Italian and not so well in English; that he does not own a car, and rarely drives and that because of constant pain, when sitting, standing, lying down or walking he needs assistance with his housework and shopping. He stated that he is unable to vacuum, to swim properly or play tennis, and can only sleep for three to four hours per night. He does however walk for 45 minutes, with five minutes walking and five minutes resting, watches television, listens to music, does his own cooking and visits clubs. The Applicant stated that he was able to travel by train.
The Applicant described his condition in the following terms:
(a)Low back pain:           constant pain in lower back when sitting, standing, lying down or walking, with pain down both legs; no good days; has learned to live with it; pain is worse when bus, train or car stops; has been treated with physiotherapy and by a chiropractor;   has not used a tens machine; has used panadol, nurofen and panadeine forte, but not of great assistance; cannot lift or bend, and experiences difficulty with stairs.
(b)Neck pain:                  pain in base of neck posteriorly with radiation down both arms to his fingers, left more so than right, most of the time; he is able to elevate arms to shoulder level, and has no difficulty with grasping or holding; unable to turn his head to right or left or up and down because of pain.
(c)Headache:                  is present all the time and spreads over the front of his head; poor concentration and bad memory.
(d)Tinnitus:  present all the time since 1995 and equal on both sides.
(e)Hypertension:            treated with micardes tablets one three times a day.
(f)Diabetes:  diagnosed a few weeks ago.

medical evidence

In a radiological report dated 20 May 1996 of a CT Scan of the lumbar spine, Dr Hunter, a consultant radiologist made the following comment:
"The study confirmed interbody spondylosis and facet arthropathy at all levels scanned. There was borderline spinal stenosis at L5/S1 level, and the associated prominent disc bulge, and severe facet arthropathy at this level was narrowing the lateral recesses and neuro compressive changes are possible on either side." (T3, p10)
In a radiological report dated 29 October 1997 of a CT Scan of the cervical spine, Dr Hunter, a consultant radiologist made the following comment:
"Lower cervical spondylosis, with changes at C5/6 producing bilateral neuro exit foramen narrowing. Neuro compression in these locations are likely." (T6, p13)
In a treating doctor's report dated 8 October 1998, Dr Johnson, detailed the Applicant's medical conditions and their associated clinical feature as:
(a)Cervical Spondylosis:            increasing neck pain with radiation to right arm; long term and deteriorating.
(b)Lumbar Spasm:  low back pain; long term and deteriorating.
(c)Tension headaches:              increasing head pains; tension; stress-related, long term and stable.
(d)Eczematous Blepharo;          eczema, usual defects; long term and
Conjunctivitis with myopia:            deteriorating.
Dr Johnson considered the Applicant would be unable to return to any kind of full-time or part-time work for more than two years, and that because of his age he was not suitable for vocational training or rehabilitation. Dr Johnson considered that the Applicant's impairments would effect his attendance at work more that four days a month, that he would be unable to work full days because of endurance problems and that he would be unable to lift, carry or move objects. Similarly his mobility would be constrained in some situations and he would have some reduction in digital dexterity (T8).
In a medical assessment report dated 3 November 1998, Dr Cochrane, a general practitioner, made the following comments:
"This 53 year old was retrenched from his long standing employment as a machine operator and latterly storeman in Sep 1998. He complains of multiple severe pain all over his body. He has radiological evidence of spondylosis in his neck and back. He lives alone in a first floor flat and stated that his niece and nephew are required to help him with all his heavy housework, shopping etc. Various therapies have been to no avail and he takes regular analgesia.
On examination there were marked inconsistencies between the formal assessment and informal assessment; presentation did not fit a recognisable clinical syndrome. He has loss of ¼ ROM in his back with minor loss of movement in his neck. He would be restricted to full-time work where he was able to change position regularly as he stated he has done in his previous employment. Suitable occupations would be messenger, storeman, gate attendant." (T10, p71)
Dr Cochrane considered that the Applicant's impairments would not interfere with his attendance nor travel to and from work and he could undertake a variety of tasks without difficulty but would lift, carry or move objects with some reduced speed or with some difficulty (T10, p69).
In a report from the pain management centre at Royal Prince Alfred Hospital dated 25 January 1998, Dr Ditton, a consultant in pain management, detailed the following comments (note the report although dated 25 January 1998, should be dated 25 January 1999, as the material within it relates to an examination on 7 December 1998):
"Mr Donato complained of total body pain since 1991 covering the whole of the spine, the sacrum, both arms and legs. He did not feel the pain was worse in any particular area. He described shooting pains in legs four to five times a day. He said he gained no relief from Panadol, Panadeine Forte or Naprosyn, acupuncture, massage or physiotherapy. He has not had a trial of TENS. There is disturbance of sleep and sexual function.
…
There did not appear to be any significant findings on his examination.
…
We believe that Mr Donato has significant degenerative disease involving the cervical and lumbar spine and possible some element of radiculopathy however assessment was difficult because of hyperchondrial personality traits." (T17, p88/89)
In a medical report dated 4 January 1999, Dr Pillimer, a consultant orthopaedic surgeon stated that the Applicant is only fit for restricted duties, as he is suffering from lumbar spondylosis (T17, p91).
In a medical report dated 4 March 1999, Dr Dracos, a general practitioner, stated that the Applicant has a permanent degenerative condition of the spine and is not fit for any type of work (T17, p93).
In a medical report dated 13 November 1996, Dr Evans, a consultant physician, when he reported to the Applicants' solicitors in relation to his work injury express the following opinion:
"Back. Mr Donato suffers from damage/degeneration affecting the L5/S1 intervertebral disc in his back. There si evidence of degenerative tearing of the disc and there has been some collapse of the disc. He thus experiences pain and stiffness in the low back as a direct result of the disc damage, and it is reasonable that he experiences pain in both legs as a result of irritation of the fifth lumbar and perhaps also first sacral nerve roots by the disc bulge (which is associated by some narrowing of the spinal canal at this level).
The damage to his back commenced gradually during 1981 when he was carrying out repeated lifting of objects weighing 9-12kg. There was then not much change in his back pain until 15 May 1996 when a chair on which he was sitting collapsed, caused him to fall onto concrete. The back pain then became about twice as bad as before the accident. It has not changed much over the period of six months since that time.
The demonstrated pathology could not possible account for pain involving the whole thoracic and whole lumbar spine, and it is most likely that there is a substantial psychosomatic component to his present symptomatology. Similarly, it is not likely that the disc problem would cause pain felt all around both low thighs, calves and feet, so there may also be some over-reaction here.
Neck. He first experiences neck pain when he fell from the chair on 15 May 1996, and this has persisted. The cause of this is uncertain, and it can be regarded only as "soft tissue injury to the cervical spine". It is surprising, given the neck and arm pain, that he has not yet undergone plain x-rays of the cervical spine; and it is clearly essential that he does.
The extensive nature of the neck pain, and the radiation of the pain to all of both arms and hands is again strongly suggestive of a substantial psychosomatic component, making the interpretation of its clinical situation more difficult that it otherwise would be. If the neck pain really does radiate to both arms, then this implies a cervical intervertebral disc lesion. However, the pain is felt everywhere in the arms and hands, and is thus a good deal more extensive than would be expected from irritation of a single, or even multiple, nerve roots.
Fitness. Mr Donato is able to cope with his current job of a Process Worker, and so can be reasonably regarded as fit for it. However, he does experience back and neck pain when working. He should not be doing work requiring much bending or twisting of the back or lifting of weights heavier than 6kg." (Exhibit A1)
In a medical report dated 3 August 1999, Dr Moore, a general practitioner, stated that the Applicant's condition is currently stable and his level of functioning would not be expected to improve from its present level (Exhibit A2).
In a further medical report dated 19 July 1999, Dr Johnson stated that in his opinion the Applicant was permanently unfit for work. Dr Johnson assessed the Applicant's impairment with the following ratings - lumbar spine, 20 per cent; cervical spine, 10 per cent; lower limb function, 10 per cent; upper limb function, 10 per cent; cardiovascular, 20 per cent. Dr Johnson believed that the Applicant's condition had been fully diagnosed, treated and stabilised (Exhibit A5).
In a further medical report dated 1 February 2000, Dr Dracos stated that in addition to lumbar and cervical spondylosis, the Applicant also suffers from anxiety and depression, type two diabetes mellitus and hypertension (Exhibit A10).
submissions
The Applicant contends that his impairments when appropriately assessed have a combined rating of 20 points or more and that he satisfies both subsections 94 (1)(a) and (b). Further, because of the chronic nature of his cervical and lumbar spondylosis and the pain symptomatology that arises from these conditions, and the opinions of Drs Johnson, Dracos and Moore, the Applicant contends that he had a continuing inability to work at the date of application, or within a period of three months thereafter. Accordingly the Applicant contends that he satisfies the requirements for a disability support pension.
The Respondent contends that the Applicant has a number of impairments, but on appropriate assessment under the relevant impairment tables at the relevant time, the combined rating for all the impairment is less that 20 points. As such the Applicant does not satisfy subsection 94(1)(b) of the Act.
The Respondent furhter contends that the medical evidence when appropriately assessed indicates that at the nominated period in question the Applicant's impairments of themselves were not preventing him from working or undertaking educational, vocational or on-the-job training. Accordingly it is the Respondent's contention that the Applicant does not have a continuing inability to work.
consideration and findings
In preliminary comment, the Tribunal notes that subsection 100(3) of the Act provides the period in which the Tribunal must focus its attention. The period for prime focus commences with the lodgement of the application for disability support pension and ceases three months from the day after the date of lodgement. Material and evidence relating to the Applicant's impairments which falls outside the operative period can be used by the Tribunal in such circumstances that allows the Tribunal to gain a better understanding of the impairments and their effect on the Applicant's workability in the operative period.
The Tribunal in considering this matter notes the following relevant legislation, namely subsection 94(1) in part, (2), (3), (4) and (5):
"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;
…
94(2)   A person has a continuing inability to work because of an impairment of 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 education 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 apple 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, in considering the issue of the Applicant's impairments, has paid particular attention to the history given by the Applicant, the two radiological reports of CT scans of the lumbar and cervical spines, the report of Dr Evans, in so far as it details the nature of the Applicant's impairments in 1996, when indeed he was continuing to work, and the reports of Drs Johnson and Cochrane, together with the report of Dr Pillimer in so far as they detailed an opinion within the operative period. The Tribunal also considered the report from the pain management centre at Royal Prince Alfred Hospital, in so far as it allowed the Tribunal an appreciation of the underlying pathology.

The Tribunal notes that the latter report of Dr Johnson and that of Drs Moore and Dracos and the chiropractor fall well outside the operative period, and also introduce new impairments (diabetes mellitus, anxiety and depression). The Tribunal, in general comments, observes that many of these reports are essentially opinions, and unfortunately apart from the radiological evidence provide little clinical detail which would allow the Tribunal to understand how they arrived at their opinion and their justification thereof. Similarly where assessments have been made it is difficult for the Tribunal to place any weight on the assessments undertaken, when it is evident to the Tribunal that the assessments have been made for another purpose (Dr Evans) or using apparently wrong impairment tables (Dr Johnson), or not detailing the particular table being used (Dr Johnson).
The Tribunal, in turn, makes the following findings of fact as regards the Applicant's medical conditions and their associated clinical features at the operative period. Further, the Tribunal also makes findings on what effect each impairment has on the Applicant's work ability.
(a)Lumbar spondylosis:            x-ray evidence (Dr Hunter); history of low back pain, for many years (Applicant); ability to work, albeit in the store until retrenched (Applicant); difficulty with prolonged standing, walking, sitting; difficulty with lifting, bending or carrying (Applicant); no documented evidence of pain radiation to legs at operative period (Drs Ditton, Johnson, Cochrane); loss of one quarter range of normal movement to thoraco lumbar spine (Dr Cochrane).
(b)Cervical spondylosis:           neck pain with radiation to right arm (Dr Johnson); radiological evidence (Dr Hunter); minor loss of movement of neck (Dr Cochrane).
(c)Headache:  associated with tension and stress (Dr Johnson).
(d)Hypertension:  mild hypertension, treated with cardiazam (Dr Cochrane).
(e)Eczema (facial) with             history of (Dr Johnson); mild condition,
conjunctivitis:  minimal impairment (Dr Cochrane); myopia (Dr Johnson).

In so finding the existence of the above impairments, the Tribunal has placed particular weight on the clinical evidence available and presented that relates to the operative period. Such comments relate to the evidence of the Applicant, (in part) and the clinical reports of Drs Hunter, Johnson, Cochrane, Pellimer (nature of underlying pathology), Evans (nature of underlying pathology) and Ditton (pain management). The Tribunal observes that the issue of pain and the need for pain management appears to intensify with the passage of time and is further interwoven with the issue of a psychosomatic element which is said to exist in the Applicant's presentation by Drs Evans, Cochrane and Ditton. The Tribunal finds that the issue of pain, where it is not tied to the presence of a physical disability, is a matter which requires further investigation, diagnosis and treatment, this being an issue raised by the pain management specialist, Dr Ditten. Accordingly the Tribunal cannot establish pain as an impairment apart from its association with a physical disability at the operative period in question. The Tribunal does find however that there is a psychosomatic element in the Applicant's clinical presentation at the operative period, and that this in part helps explain some of the inconsistency with clinical examination findings.
In turning to an assessment of each of the impairments under the Schedule 1B impairment tables post 1 April 1998, the Tribunal finds the following rating for each impairment at the operative period:
(a)Cervical spondylosis:             nil points under table 5.1 because the Applicant has a normal or nearly normal range of movement at the operative period (Dr Cochrane).
(b)Lumbar spondylosis:             ten points under table 5.2 for the Applicant has a loss of one quarter of normal range of movement as well as back pain with many physical activities and with standing for 30 minutes and with sitting for 60 minutes (Applicant, Dr Cochrane).
(c)Headache:  insufficient clinical documentation at the relevant period by Dr Johnson to determine an assessment under table 21.
(d)Hypertension:  nil points under table 20 because the hypertension is controlled with medication.
(e)Eczema and mild  nil points under table 18 for eczema, as there is no conjunctivitis or clinical documentation that it causes any limitation in the performance of normal daily activities; nil points under table 14 (constant irritation of eyes) and unable to document any assessment under table 13 (visual acuity) as no clinical documentation available at the operative period.
In this matter the Tribunal has taken particular care to isolate the impairments which were clinically documented as existing during the operative period, and further notes the documentation which detailed the clinical feature of each impairment. The Tribunal notes that at the presentation to the Tribunal, evidence was given by the Applicant as to the nature and effect of each of his impairments and from this evidence the Tribunal is of the view that there may have been a clinical deterioration in his impairments. Further the Tribunal observes the nomination of new impairments (tinnitus, anxiety and depression, and diabetes mellitus), and considers that these and any deterioration in other existing disabilities can only be considered where there is a further clinical assessment undertaken associated with a further claim lodged by the Applicant for disability support pension.
In summary the Tribunal has found that the Applicant, while satisfying subsection 94(1)(a) of the Act, fails to satisfy subsection 94(1)(b) of the Act in that the combined impairment rating for all of his impairments found to exist during the operative period is less than 20 points. (The Tribunal having found a combined impairment rating of 10 points).
The Tribunal, in consideration of completeness, next addresses the issue of whether the Applicant had at the time a continuing inability to work. Dr Johnson stated that he did have and is emphatic on the issue in all his reports. Dr Evans in his report of 13 November 1996 states that the Applicant is able to cope with his current job of process worker and so can be reasonably regarded as fit for it. The Applicant described employment, albeit as a storeman, up to September 1998, at which time he was retrenched. Dr Cochrane believed the Applicant would be restricted to full-time work where he was able to change position regularly, a situation which was said to exist in his previous employment. Dr Pillmer in his report of 4 January 1999 considered the Applicant fit for restricted duties.
The Tribunal in addressing these opinions concludes that the Applicant's ability to work has been compromised by his impairments, and that he does have difficulty with bending, lifting or carrying and prolonged standing, sitting and walking. However, at the operative period, it is the Tribunal's finding that, while recognising the limitation placed on the Applicant's work ability, he did enjoy a capacity to work at that time. Further the Tribunal finds, that while acknowledging the Applicant's age and previous employment and education, that the Applicant's impairments alone do not prevent him from undertaking educational or vocational or on-the-job training programs, and that once undertaken, his impairments will not prevent him from undertaking work. In so finding the Tribunal has given consideration to the Applicant's longitudinal work history and its cessation because of retrenchment in September 1998 and placed weight on the more detailed clinical examination and findings of Dr Cochrane, which were supported in part by Dr Pillimer. The Tribunal, while acknowledging the report of the treating doctor found it to be deficient in the necessary clinical detail to support the opinions given.
The Tribunal finds that the Applicant does not satisfy subsection 94(1)(c) of the Act in that he does not at the operative period have a continuing inability to work as defined by subsections 94(2)(a) and (b)(i) or (ii).
As a consequence of the Tribunal's findings, the Applicant fails to meet the criteria for payment of disability support pension during the operative period.
determination
The Tribunal determines that the decision under review be affirmed.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D CAMPBELL
Signed:         .....................................................................................
  Associate
Date of Hearing  13 March 2000
Date of Decision  2 August 2000
Representative for the Applicant              Self-represented
Representative for the Respondent        Marion Buckley