Doyle and Secretary, Department of Family and Community Services
[2003] AATA 358
•11 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 358
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V01/1247
GENERAL ADMINISTRATIVE DIVISION ) Re IAN LINDSAY DOYLE Applicant
And
SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr J. Handley, Senior Member Date11 April 2003
PlaceMelbourne
Decision The decision under review is affirmed. ....….Sgd. Mr J. Handley.....
Senior Member
CATCHWORDS
Social Security - Applicant suffered back injury - disability support pension application rejected in February 2001 - subsequently granted in February 2003 - whether qualified - whether achieved 20 impairment points at or within 13 weeks of February 2001 - decision affirmed.
REASONS FOR DECISION
11 April 2003 Mr J. Handley, Senior Member 1. The applicant applies to review a decision made by the Social Security Appeals Tribunal (“SSAT”) on 29 August 2001. The SSAT then decided to affirm a decision made by an Authorised Review Officer (“ARO”) of Centrelink on 27 April 2001. The decision then made was to reject an application for Disability Support Pension (“DSP”) made in February 2001.
2. The hearing of the review was convened in Melbourne on 20 March 2003. It was learnt that the applicant had been granted DSP in February 2003. Both parties confirmed that the review was to proceed only upon the issue of whether there was an entitlement to DSP between February 2001 and February 2003. Within that period the applicant was in receipt of new start allowance.
3. Entitlement to DSP must, by this review, be considered at the date of primary claim namely February 2001. Clause 4 of Schedule 2 of the Social Security (Administration) Act 1999 also permits assessment of qualification within 13 weeks of the date of primary claim. Qualification beyond the period of 13 weeks (as has occurred in this application by reason of qualification at February 2003) will not provide retrospective entitlement. It follows therefore that unless the applicant qualifies for DSP at February 2001 or within 13 weeks of that date, he is deemed not to be qualified by reason of that claim.
4. Mr Doyle appeared without representation. Ms Paul appeared on behalf of the respondent. The Tribunal had before it documents lodged by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act (the T-documents) together with medical reports from Dr Bradshaw, dated 24 December 2002 and 12 July 2002.
5. The application may be briefly summarised as follows-
6. Mr Doyle was born on 2 June 1959 and is presently 43 years of age. In approximately 1987 he suffered back injury when employed in Ulverstone, Tasmania. Mr Doyle thereafter returned to work but on light duties, and worked until approximately 1990 when he was retrenched. He instituted proceedings to recover compensation by reason of the back injury and a lump sum compensation payment was eventually recovered. Between 1990 and the present time Mr Doyle has not worked save for a short period when he was engaged as a part time cleaner.
7. In Tasmania, Mr Doyle was treated by Doctor Fisher who completed a number of questionnaires with respect to eligibility for DSP. Those questionnaires are found within the T-documents. In 2002, the applicant moved from Tasmania to Geelong and he has subsequently been treated by Doctor Bradshaw.
8. In a questionnaire completed by Doctor Fisher in February 2001 (pages 22-26 inclusive), the diagnosis of injury is recorded as “chronic lumbar spine soft tissue injury” with clinical features of “chronic lumbar spine pain, aggravated by manual work, radiating to legs with periodic exacerbation - original injury aged 25 lifting timber”. The condition is described as being “long term - likely to persist for at least two years” and is also described as “deteriorating”. He later recorded in the questionnaire that in his opinion Mr Doyle would be likely to return to his usual occupation in a period more than two years and gave a similar response with respect to questions as to when Mr Doyle would be able to return to work at 20 hours per week, or any other work on a full-time or part-time basis.
9. On 13 March 2001 a registered nurse, engaged by Health Services Australia on behalf of Centrelink assessed Mr Doyle and found that he then had a loss of ¼ of normal range of movement of the thoraco lumbar spine. Doctor Ying, on behalf of Health Services Australia also assessed the applicant on 12 April 2001. He also found that the applicant had lost ¼ range of movement and assessed impairment at 10 points under table 5 of the impairment tables found at schedule 1B of the Social Security Act 1991. In making that finding he separately recorded that the applicant had “about ¾ normal range” of movement of his thoraco lumbar spine upon flexion and right and left lateral flexion. He found that extension and right and left rotation of the thoraco lumbar spine was within normal limits.
10. Shortly after the respondent rejected the applicant’s claim for DSP, his file was misplaced and repeat examinations were conducted and further medical evidence was sought.
11. Dr Fisher completed another questionnaire on 28 May 2001. In the questionnaire (pages 56 to 60 inclusive) he diagnosed the injury as “lumbar spondylosis - post lumbar spine soft tissue injury 1988. Radiating pain to left leg”. The clinical features were described as “left groin pain radiates to left knee, worsening and weakness LL, LSIS irritability. Some night pain. Aggravated by bending”. The condition was described as “long term, likely to persist for at least two years” and was also described as “deteriorating”. He gave similar responses to questions as to ability to return to work on a full time or part time basis as he did in his earlier questionnaire.
12. On 21 June 2001 Dr Fisher again completed a DSP questionnaire and made a similar finding as to diagnosis and clinical features but recorded the condition then as “fluctuating” (page 71).
13. A registered nurse engaged by Health Services Australia assessed Mr Doyle on 24 July 2001 and found that there was “no or minor restriction upon rotation and lateral flexion” of the thoraco lumbar spine but recorded a “loss of half normal range of movement” with respect to flexion and extension. She found no evidence of “wasting” (unlike Dr Fisher in his assessment of 28 May 2001).
14. Doctor Wnekowski assessed Mr Doyle on behalf of Health Services Australia on 25 July 2001 and found that the applicant’s thoraco lumbar spine was within normal limits as to right lateral flexion and right and left rotation. He found that the applicant had ¾ normal range of movement with respect to left lateral flexion but had only ½ normal range of movement with respect to flexion and extension. The doctor made a number of findings with respect to the applicant’s ability to perform certain functions but recorded that an impairment rating of 10 points only was appropriate under impairment table 5.2. That answer appeared to be qualified because he also recorded “loss of ½ range of movement but insufficient limitations to justify rating of 20 points (page 89).. He expanded upon those comments at page 93 by recording “he was previously assessed in April 2001 with 10 points, table 5.2 for ROM in the normal to ¾ range. Currently ROM is loss of ½ flexion. I have weighted this 10 points table 5.2 as it does not meet the activity limitation criteria for 20 points (mows lawn, carried 10 kg, shopping bags x 2, occasional 9 holes of golf). He is no longer fit for his usual work. He is fit for 30 hours light work with restrictions as outlined”.
15. In a disability support pension questionnaire completed on 12 July 2002, Dr Bradshaw reported that the injury suffered by the applicant was “fluctuating” but was “long term likely to persist for at least two years”. It was his opinion that the applicant would be unlikely to return to his usual occupation or any part time, full time or other work of 20 hours per week, for more than 2 years.
16. In his report of 24 December 2002, Dr Bradshaw recorded that at consultation with the applicant on 6 February 2002, he found that the range of movement of the applicant’s lower back varied between 25% and 75% of “the expected normal range”.. Apparently in response to a number of questions asked of him Mr Bradshaw concluded that in his opinion the back injury was permanent and he would assess the impairment rating based on table 5.2 as between 10 and 20.
17. Mr Doyle said that at February 2001 he was able to undertake digging in his garden and mow lawns. He occasionally played golf and was able to drive his car. He found however that he would later suffer back pain and he would be required to rest.
18. When he was asked to make a comparison of his back at February 2001 compared to February 2003, he said that he found that he was having more frequent episodes of back pain and a greater number of days where he was required to rest because of back pain associated with activity.
19. Mr Doyle said that he was able to drive a motor vehicle for 1 to 4 hours duration, but would suffer back pain and referred leg pain. He could however drive his motor vehicle around Ulverstone and was able to carry bags of groceries and lift them into his car, though sometimes with difficulty. He found that he had back pain after walking and when he went to the football, he could stand for approximately ½ of the game and would have to sit for the remainder of the game.
20. In terms of the ability of Mr Doyle to undertake employment it was his opinion that, if offered to him, he could work as a courier driver where he was not exposed to heavy lifting or strenuous activity. It was his belief that he could drive a motor vehicle for extended periods by reason of frequent rest breaks. Similarly it was his belief that he could undertake work as a taxi driver, however on applications that he has made for employment he has been rejected because he disclosed his back injury.
21. The criteria under Table 5.2 of the impairment tables, attracting a rating of 10 impairment points for the thoraco lumbar spine, reads as follows-
“loss of ¼ of normal range of movement as well as back pain or referred pain;
i with many physical activities and;
i with standing for about 30 minutes and
i with sitting or driving for about 60 minutes
or
loss of ½ of normal range of movement.
The criteria against a rating of 20 impairment points, reads as follows:
Loss of ½ of normal range of movement aswell as back pain or referred pain;
iwith most physical activities and;
i with standing for about 15 minutes and;
i with sitting or driving for about 30 minutes.
Or
loss of ¾ of normal range of movement”.
Conclusion & Reasons For Decisions
22. Upon the basis of the medical information contained within the T-documents (refer above) and the evidence of Mr Doyle at the hearing I am satisfied that the decision made to grant DSP at February 2003 was appropriate. It appears to me, having read the documentation and having heard Mr Doyle that his back has deteriorated considerably in the period between February 2001 and February 2003.
23. However I cannot be satisfied that at February 2001 Mr Doyle would have satisfied the criteria as against an impairment rating of 20.
24. At February 2001 and within 13 weeks thereafter, there was nothing to indicate that he had lost ½ of his normal range of movement. The majority of the medical evidence suggests that at February 2001 he had a loss of ¼ of normal range of movement with back or referred pain “with many physical activities” as opposed to “most physical activities”.
25. Additionally - and although strictly not necessary to make this finding - I would be also unable to find that Mr Doyle had a “continuing inability to work”, within the meaning of s.94 at February 2001. That finding is made by reason of the applicant acknowledging that had work as a courier driver or taxi driver been offered to him, he would have been able to undertake it.
26. In all of the circumstances, I am satisfied that the decision under review should be affirmed.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.
Signed: .........C. Irons ............................
SecretaryDate/s of Hearing 20 March 2003
Date of Decision 11 April 2003
Counsel for the Applicant Self represented
Solicitor for the Applicant
Counsel for the Respondent Departmental Representative
Solicitor for the Respondent
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