Durham and Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2001] AATA 169

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/367

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

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date 5 March 2001
PlaceCanberra

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions and benefits – Disability Support Pension – qualification – back condition - medical evidence – impairment table considered – inability to work considered
Social Security Act 1991 s.94

REASONS FOR DECISION

5 March 2001 Senior Member J.A. Kiosoglous MBE

This is an application by Mr Robert Durham (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 20 June 2000 (T2) which affirmed a decision of an authorised review officer (ARO) of the respondent dated 24 March 2000 (T15) which had affirmed a delegate of the respondent's decision dated on or about 25 February 2000 (T9 & T10) to reject the applicant's claim for Disability Support Pension (DSP).
The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T23), together with three exhibits, lodged by the respondent (Exhibits R1-R3). In addition, the Tribunal heard evidence from the applicant, who represented himself. He was assisted by his wife, Mrs Wendy Durham, who also gave evidence. Mr L. Leerdam, of counsel, represented the respondent.
history of the application
The applicant applied for DSP on 10 January 2000 (T3). A delegate of the respondent rejected this claim and communicated this to the applicant in a letter dated 25 February 2000 (T10). The decision to reject the claim was affirmed upon review by an ARO and the SSAT. The SSAT stated (inter alia) in its reasons for decision (T2):
"…
16.      The absence of supporting medical evidence weakens Mr Durham's evidence. Should he wish to reapply in the future, comprehensive evidence should be provided, including recent specialist reports. Mr and Mrs Durham's description of Mr Durham's behaviour in social situations, moodiness and sleeping difficulties suggested that he may also suffer from some psychological difficulties that may prevent him from working. These should also be investigated and treated if possible.
17.      The Tribunal also had significant doubts about Mr Durham's ability to engage in retraining at all. He left school at 14 and has poor literacy skills. He actively avoids the type of social situation that would be necessarily involved in retraining. Mr Durham may consider requesting Centrelink's assistance in obtaining an assessment of his suitability and capacity for retraining.
…
20.      In order to be qualified, all subsections must be satisfied. Mr Durham suffers from lumbar spinal stenosis, so does have a physical impairment and so satisfies subsection (a). According to the medical evidence of Dr Robertson (paragraph 1) Mr Durham has no or minor restriction of spinal movement. Using Table 5.2 of the Impairment Tables, this equates to an impairment rating of 0 for Mr Durham's back condition…The Tribunal therefore found that Mr Durham does not have an impairment rating of 20 points of [sic] more and therefore does not satisfy subsection (b). …"

medical evidence

In a report dated 11 February 1987, Dr G. Brook, Radiologist, stated (inter alia) (T19):
"…
At L4-5, there is evidence of bulging of the annulus. This is abutting the thecal sac and it is noted that the spinal canal diameters in this patient are towards the lower limit of normal. This minor degenerative change may, therefore, be significant in this patient, whereas it would pass unnoticed in a patient with a larger spinal canal.
…"
In a treating doctor's report dated 7 January 2000 (T4), Dr J. Dyce listed the clinical features as "unable to bend or lift without experiencing L sciatica". In response to the schedule of questions in relation to work ability, Dr Dyce considered (inter alia) that the applicant could travel to and from and move around at work without difficulty, manipulate objects without difficulty, interact at work without difficulty, undertake a variety of tasks without difficulty, but was unable to lift, carry and move objects.
In an approved medical practitioner report dated 2 February 2000 (T6), Dr R. Robertson stated (inter alia):
"…
I am in agreement with Dr Dyce's opinion (TDR) the [sic] Mr Durham is at present fit for part time work of twenty hours plus per week. However, I consider that he is not fit to be employed as a labourer, and that retraining for more suitable employment, avoiding excessive bending and lifting, should be considered.
…"

In a medical assessment report dated 16 February 2000 (T7), Dr M. Williams noted "History of spinal stenosis with back pain, reduced ability to bend or lift, and left leg sciatica. Very little abnormality on examination.". Dr Williams gave an impairment rating of 0 pursuant to table 5.2 noting "nearly normal ROM – no evident loss of strength or stability", also stating that the applicant was "unable to do heavy work". Dr Williams also stated at question 10 "Mr Durham's disability is relatively mild but it precludes heavy manual work. He will need retraining in order to attempt less physically demanding activity.".
In a report dated 29 August 2000, Dr G. Mutton, Orthopaedic Surgeon, stated (inter alia) (T21):
"…
Mr Durham has degenerative changes in his lumbar spine. He has some spinal canal stenosis at his L4/5 level.
At the present time, I could not recommend active treatment for Mr Durham. Unfortunately, there are no surgical options for him but as the degenerative changes at his L4/5 level progress, this level will become more stenotic and he could eventually require a posterior spinal decompression procedure at his L4/5 level.
Considering the state of Mr Durham's low back, he is obviously unfit to carry out heavy labouring work. He should, however, be capable of carrying out clerical work or process work.
Unfortunately, there isn't anything that I can personally do to help Mr Durham.
He is requesting an invalid pension and although I do not believe that the pathology in his back is severe enough to warrant him receiving a disability pension, I cannot really see any alternative for him.
…"
In a report dated 27 July 2000, Dr P. Stein, Radiologist, stated (inter alia) (T20):
"…
COMMENT: A degree of stenosis of the thecal sac and lateral recesses at L4-5 and at L5-S1 a small left posterior prolapse of the disc (film markers). …"
In a treating doctor's report (undated but received by the respondent on 9 January 2001 (T22), Dr V. Jayaram listed the applicant's clinical features as being "ch. low back pain, sciatica & leg, unable to walk for any distance, [?], unable to lift weights, [?] loss of memory, sleeplessness: irritable, short tempered". Dr Jayaram considered that the applicant would benefit from vocational training or rehabilitation, "he is unfit to return to his preinjury work; he needs to be assessed for alternate work which won't aggravate his back condition". In response to the schedule of questions in relation to work ability, Dr Jayaram considered the applicant was (inter alia), "unable to work full days because of endurance problems", "mobility would be constrained in some situations", "inappropriate behaviour would disrupt their work for at least 15 minutes per day", "may be distressed or have difficulty alternating between tasks", "unable to lift, carry and move objects".
applicant's evidence
The applicant was born on 14 February 1951, left high school at age 14, worked on his father's farm until about age 18 and subsequently worked on other farms in which he had some form of shares from that time onwards. He told the Tribunal that he has been involved in farming for most of his life. He stated that he injured his back trying to lift a combine "years ago". He further stated that his back has been the same for the last 15-17 years.
In or about January 1999 the applicant was working at a dairy 1-2 days per week. He was asked to work 5 days per week, which he declined, as he was having trouble working 2 days a week. As a result, he left work and applied for DSP some 12 months later. He stated that he was getting pins and needles in his left leg all the time, and would get pain in his spine that was "like someone sticking a knife in" such that he could not move for a couple of minutes. He told the Tribunal that if he moved around at work, the pain would occur all the time. He cannot sleep at night with the pain, and is now on medication. As at January 2000 he was not on any medication, and simply put up with the pain as he "had done for years".
He stated that he could not understand how various doctors suggested he could return to work when he had not been working for 12 months. He considered that, as at the time of the medical assessments, his back was "as good as it would get". He considered that the doctors had seen his back when it was good, and that if he did have to return to work, within a few weeks the doctors would find that he had a really bad back. He considered that he may be able to work for six months, but that he would be in bed for two years as a result, and that if he returned to work, he would be able to get the twenty points required for DSP "pretty quick".
The applicant stated that the only work he knows is labouring. He further stated that he could not do driving work, as that generally involves unloading and loading of produce. He told the Tribunal that he worked at an abattoir as a leading hand for four to five years in the 1990s, having worked in 1990 for about 4-5 months as a contract sheep drover. As a leading hand, he would organise the men and the time sheets, and was responsible for ensuring that the cold beef left the chillers, and that the chillers were clean before the warm beef came in. Towards the end of his time at the abattoir however, he got transferred to the stockyard. He considered that it was too dangerous in the stockyard with his back problem, as he could not get out of the yard quickly enough to avoid the wild cattle. He told the Tribunal that he was transferred to the stockyard because he had complained to the foreman about his wages compared to other workers.
The applicant has previously worked carting sheep and considered that he could probably still do that work, although he has not tried to do so in the last couple of years. As at the time of his application for DSP, the applicant was carting sheep for his son using a four tonne truck on a 100-kilometre round trip about once a month, and has done that trip three times in the past two months. He could not recall the last time he changed a car tyre, as he does not drive very often, and stays at home, but he recalled changing a truck tyre six to eight months ago.
The applicant stated that he has not tried retraining because he was never much good in school and does not think he would have the ability to retrain. He had started a reading and writing course arranged by the respondent, but stopped after submitting the claim for DSP. He further stated that he has a basic level of reading and writing, but has problems remembering things.
mrs durham's evidence
Mrs Durham told the Tribunal that her husband has told her that he would not go back to school as he does not want to be labelled an idiot, and that he considered that he was never able to learn and will not start trying now.
She stated that Centrelink had agreed that the applicant was eligible for a pension 15 years ago, but that he had considered himself to be too young at that stage, and took a job as an overseer/contract drover instead. She further stated that the cold mornings were eventually too much for the applicant in that position.
She stated that the applicant was transferred to the stockyard of the abattoir because he could not handle the cold and so his boss moved him to try and keep him out of the cold. She told the Tribunal that there was no way the applicant could stay in the yards because the cattle were wild, and she had experienced the dangers first hand during her time at the abattoir.
respondent's submissions
Mr Leerdam submitted, on behalf of the respondent, that on the medical evidence before the Tribunal, the applicant clearly cannot satisfy sub-paragraph 94(1)(b) of the Social Security Act 1991 (the Act).
Mr Leerdam submitted that for the purposes of sub-paragraph 94(1)(c) of the Act, by the applicant's own evidence, he has some capacity to work, and has engaged in a variety of employment since the onset of his back condition. He further submitted that the fact that the applicant is unwilling to undergo retraining does not mean that he is not capable of working. He also submitted that the applicant has skills that would make him suitable for a range of work, which does not have to involve heavy lifting.
discussion and findings
The respondent conceding sub-paragraphs 94(1)(a), (d) and (e) of the Act, the only issues for the Tribunal are whether or not sub-paragraphs 94(1)(b) and (c) are satisfied. Those sub-paragraphs state:
"94(1) A person is qualified for disability support pension if:
…
(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
…"

For the purposes of sub-paragraph 94(1)(b) of the Act, the relevant Impairment Table is Table 5.2 governing Thoraco-Lumbar-Sacral Spine (part of Exhibit R3) which provides:
         As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spine segments.
Rating   Criteria
NIL     Normal or nearly normal range of movement.
FIVE     Loss of one-quarter of normal range of movement.
TEN    Loss of one-quarter of normal 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 or driving for about 60 minutes.                  or Loss of half of normal range of movement.
TWENTY        Loss of half of normal range of movement as well as back pain or referred pain: with most physical activities and with standing for about 15 minutes and with sitting or driving for about 30 minutes.                  or Loss of three-quarters of normal range of movement.
FORTY Ankylosis in an unfavourable position, or unstable joint

In relation to the medical evidence, there is no report before the Tribunal which would support a conclusion that the applicant satisfies the twenty point requirements. The applicant submitted that the Tribunal should disregard Dr Williams' assessment (T7), as the applicant had not seen Dr Williams. Dr Williams appears to have based his report on documentary information supplied by the respondent. The Tribunal accepts that Dr Williams' assessment should not be given as much weight as the other reports before it in the circumstances. Even ignoring Dr Williams' report completely however, there is still a lack of medical evidence to satisfy the requirements of the table as at the time of application for DSP or indeed at any later stage. The report that is most favourable to the applicant is that of Dr Jayaram (T22), but upon comparing that report with the requirements of Table 5.2, even it does not detail problems significant enough to satisfy the requisite 20 points.
The two reports closest to the date of application are those of Dr Dyce, the treating practitioner, and Dr Robertson, who prepared a report as an approved medical officer. There is nothing before the Tribunal that would suggest that there were flaws in the preparation of either of these reports. Both doctors, having examined the applicant, reached the conclusion that the applicant had minor restriction of movement at that time. To take the most generous view of those reports, the Tribunal could still not conclude that the applicant had more than a loss of one-quarter of normal range of movement (giving a rating of 5 according to the Table).
The applicant contended before the Tribunal that his presentation to the doctors was improved because he had not been working for 12 months, and that had he been working, his presentation would have been much worse. This Tribunal is required to find facts however, and it cannot find for the applicant based only upon the supposition that were he to have been working, his back may have been worse. All of the doctors are clear that any work proposed for the applicant should be suitable work that avoids heavy lifting and bending. It is clear from the medical assessments before the Tribunal that, even if the applicant's back was at its best as at the times of assessment, the underlying pathology was not such so as to warrant a conclusion that the applicant suffered a loss of half range of movement and pain with most physical activities. Indeed, the applicant told the Tribunal that his back has been the same for the last 15-17 years. He has been able to maintain varying degrees of employment for a good number of those years. Dr Mutton notes that the applicant suffers back pain, but concludes that "…I do not believe that the pathology in his back is severe enough to warrant him receiving a disability pension,…" (T21). Bearing in mind the medical evidence before it as to the state of the applicant's back as at the time of his application and subsequent to that, this Tribunal reaches the same conclusion as Dr Mutton.
Taking into account all the evidence before it, the Tribunal finds that there is no evidence which would justify a conclusion that the applicant meets the requisite criteria to achieve a rating of 20 points pursuant to Table 5.2. Accordingly, the applicant does not satisfy sub-paragraph 94(1)(b) of the Act.
Whilst this is sufficient of itself to be a bar to the success of the applicant's appeal, it is appropriate in this case to briefly comment upon the evidence in relation to sub-paragraph 94(1)(c) of the Act. Quite clearly, the applicant has a back problem that restricts the work he can do. Heavy manual labouring work is not appropriate. The evidence before the Tribunal demonstrated that the applicant is capable of, and continues to do, some work driving sheep. At the abattoir, he did not simply do heavy labouring work, but performed a range of tasks. He demonstrated at the hearing that he has a basic capacity to read, and to understand what he is reading. Although it makes no definite finding for the purposes of sub-paragraph 94(1)(c) of the Act, the Tribunal does not consider that the evidence before it would enable the applicant to satisfy sub-paragraph 94(1)(c)(i) of the Act.
The SSAT may be correct in recommending that the applicant receive a psychological assessment as to his suitability for retraining, or perhaps the applicant is just being stubborn about retraining. The Tribunal can see no good reason why the applicant should be excused from undertaking a suitable retraining program, concentrating on improving his literacy and like skills. Mrs Durham commented to the ARO that the applicant would "rather give up the dole than learn to do anything" (T16) and the Tribunal was left with the same impression from the applicant's evidence. That attitude is unfortunate, as the applicant hopefully has a good few productive years left in him.

In any event, for present purposes, the applicant does not satisfy the requirements of sub-paragraph 94(1)(b) of the Act, and is not qualified to receive DSP. If the applicant's condition deteriorates in the future, he will require medical evidence that clearly supports the severity of his condition, as such is lacking at the present time.
decision
For the reasons given, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         .......................(Signed)...........................................
  Personal Assistant
Date/s of Hearing  7 February 2001
Date of Decision  5 March 2001
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Mr L. Leerdam
Solicitor for the Respondent    Centrelink

[2001] AATA 169

5 March 2001

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Disability Support Pension

Qualification

Medical Evidence

Inability to Work