Edwards and Secretary, Department of Employment and Workplace Relations

[2006] AATA 343

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 343

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/745

GENERAL ADMINISTRATIVE DIVISION		)
Re		BRUCE EDWARDS

Applicant

And SECRETARY, DEPARTMENT
OF EMPLOYMENT AND
WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date11 April 2006 

PlaceBrisbane

Decision  The Tribunal affirms the decision under review.

........[Sgd].........

R G Kenny
  Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - physical impairment – impairment rating less than 20 points – relevant time-frame for qualification – no continuing inability to work. 

Social Security Act 1991 ss 94(1)

Social Security (Administration) Act 1999 cl 4 sch 2,

Secretary Department of Social Security v Murphy (1998) 52 ALD 268

REASONS FOR DECISION

24 March 2006 Mr RG Kenny, Member      

Background

1.             On 9 March 2005, Bruce Edwards (the applicant) lodged a claim for payment of disability support pension, a form of income support which is payable in accordance with the terms of the Social Security Act 1991 (the Act).  Therein, he nominated “lower back disc protrusion L5/S1” as the basis of his claim.  On 19 April 2005, a delegate of Centrelink rejected his claim.  On 16 May 2005, Mr Edwards made a further claim for disability support pension and, on 2 August, the respondent  accepted that Mr Edwards had a physical impairment in relation to his back but, nonetheless, rejected his claim for disability support pension.  This later decision was affirmed by an authorised review officer on 26 August 2005.  On 27 October 2005, the decision was then affirmed by the Social Security Appeals Tribunal and, on 23 November 2005, Mr Edwards sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).

Hearing

2. Mr Edwards attended the hearing but was not represented. The Secretary, Department of Employment and Workplace Relations (the respondent) was represented by Ms Heffernan. In evidence were the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975.  .

Issues and Legislation

3.             The requirements for payment of the disability support pension are set out in subsection 94(1) of the Act which, in so far as relevant, reads:

“Qualification for disability support pension

94(1)    A person is qualified for disability support pension if:

(a)       the person has a physical, intellectual or psychiatric impairment; and

(b) the person's impairment is of 20 points or more under the Impairment Tables; and

(c)one of the following applies:

(i)        the person has a continuing inability to work;

(ii) …………..; and

(d)       the person has turned 16; and

(e)       the person either:

(i)is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii) ………….; or

(iii)      ……………..”

4. All of those requirements must be met. It is not disputed, and I am satisfied, that Mr Edwards meets the age and residential requirements of that provision. What remains be determined is whether he has an intellectual, physical or psychiatric impairment and whether the threshold of 20 points under the impairment tables is satisfied. In accordance with clause 4 of schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act), the qualifying criteria must be met on the date of Mr Edwards’s claim or within 13 weeks of that date. It is common ground that the 13 week period spans from 16 May 2005 until 15 August 2005. In the event that those requirements are met, the Tribunal will need to determine whether, during that time, he had a continuing inability to work because of the impairment. For continuing inability to work, the relevant parts of section 94 read:

“94(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

(b)either:

(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

94(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a)the availability to the person of educational or vocational training or on-the-job training; or

(b) if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.

94(4)…………...

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.”

Medical Evidence

5.             The medical evidence in this matter comprises reports from Mr Edwards’s treating medical practitioner, Dr A Jones, and a report by Dr L Watson who is in the same practice as Dr Jones; from neurosurgeon Dr. R Kahler; and from the two medical practitioners with Health Services Australia (HSA), Dr G Rolls and Dr A Nath. 

6.             Dr. Kahler saw Mr Edwards on 15 May 2003 and prepared a report on the same day.  He noted that Mr Edwards had injured his back in a work-related accident and he described pain in the lower back radiating into the groin which was probably discogenic in origin. In his report, dated 9 March 2005, Dr Jones diagnosed chronic low back pain secondary to degenerative disease – lumbar disc protrusion.  He noted that Mr Edwards experienced pain and stiffness and was unable to stand or sit in the same position for prolonged periods and had difficulty walking distances, bending and twisting.  He considered that the impact was likely to last for more than two years.  Dr Watson’s report, dated 1 July 2005, was in similar terms to that of Dr Jones and described constant low back pain which reduced ability to carry out daily activities.

7.             Dr Rolls saw Mr Edwards on 12 April 2005 and, on the same date, completed a report in which he diagnosed lumbar disc disease and described a loss of one quarter of the range of back movement with pain on many activities and a capacity to sit for less then an hour and to stand for less than half an hour.  Dr Rolls allocated an impairment rating of 10 points under table 5.2 of the impairment tables. Dr Rolls described an inability to undertake work without some form of intervention program but also opined that, with educational training, vocational training or on-the-job training, Mr Edwards had a capacity to engage in work, such as museum attendant or car park attendant, for 30 hours per week at that time.  Mr Edwards was critical of the medical examination by Dr Rolls which he said lasted for only 5 minutes. 

8.             Dr Nath conducted a file assessment in this matter and noted moderate to severe symptoms of chronic pain and he allocated 15 impairment points under table 20 in the impairment tables.  He also considered that Mr Edwards would have, with appropriate training, the capacity to undertake 30 hours work per week within six months of his report. 

9.             Since those respective assessments were carried out, Mr Edwards suffered a heart attack on 2 August 2005 which is within the 13 week period described above.  This means that Mr Edwards’s heart condition may be considered in relation to his claim for disability support pension.  Dr Jones provided a report, dated 16 August 2005, in which he said that Mr Edwards had undergone open heart surgery and bypass grafting.  This was on 5 August 2005. He described Mr Edwards as experiencing fatigue, weakness, and shortness of breath on exertion because of the condition.  He also described Mr Edwards’ back condition as still presenting him with constant severe pain, causing reduction in the activities of daily living, as well as reducing his ability to sit or stand for a prolonged period. 

Mr Edwards’ Evidence and Submissions

10.           Mr Edwards continues to have limitations on his activities due to his health problems.  Because of his heart condition, he is required to exercise.  He walks when he can for distances of about 700 metres and back.  However, this causes him to suffer back pain on the following day such that he is then unable to walk.  He described limitations on duration of sitting and standing and has to alternate his position to be comfortable.  He gets spasms in his back which are painful but he no longer takes medication for this because he was told that there may be long term consequences to his liver function.  He has taken medication for his heart condition since he underwent surgery on 5 August 2005.  This is liportar, aspirin, zantec and ninax and he said that zantac was substituted for another drug after about two months because it caused swelling.  He sees Dr Jones for regular monitoring and, initially, this was on a monthly basis but is now every 3 months.  He described continuous pain “in the front”.

11.           Mr Edwards described his only form of recreation as fishing.  He and his wife live in a caravan in a park adjacent to the water and he goes fishing, when he can, for about an hour or so.  He is able to carry out domestic tasks in the caravan, such as cooking, cleaning and laundry work, though he said that he was assisted in that regard by the confined size of the caravan.  He is able to drive his vehicle and he accompanies his wife to the shops by walking there, a distance of about 500 metres.  Mr Edwards was asked about his prospects of undertaking employment in activities where he would be able to alternate his position such as a car park attendant or a gatekeeper.  He thought that he might be able to do it at times but there would need to be a replacement available for the days when he was unable to work because of back pain. 

Respondent’ Submissions

12.           Ms Heffernan submitted that the physical impairment of potential relevance in Mr Edwards’s case was related to both his back and heart conditions.  However, she also submitted that a rating could not be assigned for the heart condition because it was not permanent within the 13 week period from when the claim for disability support pension was made.  For the back condition, Ms Heffernan submitted that the appropriate table in schedule 1B was Table 20 and that the relevant rating in Mr Edwards’s case was 15 points which meant that section 94 of the Act was not satisfied.

Consideration

13.           Schedule 1B of the Act contains the impairment tables. It includes an introduction which sets out the methodology for applying the various tables and this includes a requirement that, for a rating to be assigned, the condition under consideration must be “permanent” in the sense that it is a “a fully documented, diagnosed condition which has been investigated, treated and stabilised”: see Secretary Department of Social Security v Murphy (1998) 52 ALD 268 at 271 (per Drummond J). In addition, as noted above, these characteristics must be attributable to the condition being assessed as at the time of the claim or within the 13 week time-frame thereof. In Mr Edwards’s case, that time extends to 15 August which was 10 days after his surgery. The report, dated 16 August 2005, of Dr Jones noted that the effects on Mr Edwards at that time were “uncertain” and that is reflected in the need to alter his medication for the condition within two months of surgery because of adverse effects on Mr Edwards. In that situation, I accept as correct the submission of Ms Heffernan that Mr Edwards’s heart condition is not one for which an impairment rating can be applied because, during the relevant period, it was not investigated, treated and stabilised.

14.            Mr Edwards’ back condition was assessed under the Impairment Tables by Dr Rolls, after he saw Mr Edwards, and by Dr Nath, who consulted the various documents relating to Mr Edwards’s back problem.  Dr Rolls relied on Table 5.2 and Dr Nath utilised Table 20.  I have noted the criticism by Mr Edwards of Dr Rolls but am satisfied, from the length and detail contained in his report, that an appropriate examination was conducted by him.  The tables noted above, in so far as relevant,  read:

TABLE 5.2 THORACO—LUMBAR-SACRAL SPINE

Rating

Criteria

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.

TABLE 20. MISCELLANEOUS/…/  PAIN
Rating	Criteria
FIFTEEN	Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible. Potentially life-threatening condition which is currently interfering with daily activities but self-care is unaffected.
TWENTY	More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work.

15.           Paragraphs 8 and 9 of the instructions for the use of Schedule 1B provide guidance for determining which table to apply.  They read:

8. In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates. Medical officers must use their clinical judgement and be convinced that pain or fatigue is a significant factor contributing towards the person's overall functional impairment. Medical reports and the person's history should consistently indicate the presence of chronic entrenched pain or fatigue.

9. Always use a Table specific to the functional impairment being rated unless the instructions in a section specify otherwise. The system-specific Tables provide appropriate criteria with which to rate a disorder. The procedure is to identify the loss of function, refer to the appropriate system Table and identify the correct rating eg. a person with a CVA (stroke) could be assessed under five different Tables: upper and lower limbs (3 and 4), neurological (8 and 9) and visual field disorders (15). Table selection would depend on the functions affected.

16.           In this matter, I am satisfied that Table 20 is appropriate  because the dominant opinion provided in the medical evidence by all the doctors, including Dr Jones, is that limitations on Mr Edwards are pain-related.  I am also satisfied that the description in that Table which best matches Mr Edwards’ symptoms is that at the level of 15 points as identified by Dr Nath.  This means that the threshold of 20 points required to qualify for the disability support pension is not met by Mr Edwards.

17.           Even if it were the case that the threshold of 20 points was met by Mr Edwards, the medical evidence of Dr Rolls and Dr Nath is that Mr Edwards, with appropriate training, would be capable of undertaking employment for up to 30 hours per week and would be able to do so to the level of 30 hours per week within six months of their reports.  Accordingly, I am satisfied that he did not have a continuing inability to work at the relevant time.

18.           Because the terms of section 94 of the Act have not been met by Mr Edwards, I am satisfied that he does not qualify for the disability support pension.

Decision

19.           The Tribunal affirms the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:         Jeff Mills
  Legal Research Officer

Date/s of Hearing  3 April 2006
Date of Decision  7 April 2006
The Applicant appeared in person
For the Respondent                  Ms C Heffernan, Departmental Advocate