Felise and Secretary, Department of Family and Community Services
[2005] AATA 692
•22 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 692
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/953
GENERAL ADMINISTRATIVE DIVISION ) Re FAIILETASI FELISE Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr I R Way, Member Date22 July 2005
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] I R Way
Member
CATCHWORDS
SOCIAL SECURITY - disability support pension - decision under review affirmed - injury to back – impairment rating under Table 20 to be 15 points – lower back and leg pain - neck pain - testicular problems – blurred vision
LEGISLATION
Social Security Act 1991(Cth) sections 94, 23 and Schedule 1B, Schedule 2, Part 2
Social Security (Administration) Act 1999 section 4
REASONS FOR DECISION
22 July 2005 Mr I R Way, Member
DECISION UNDER REVIEW
1. This is an application by Mr Faiiletasi Felise for review of a decision of the Social Security Appeals Tribunal (“the SSAT”) made on 23 June 2004, that affirmed the decision of Centrelink to reject Mr Felise’s claim for Disability Support Pension (“DSP”).
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T22), and other documentary evidences as follows:
· report of Dr P Patu dated 9 December 2004 – Exhibit R1
· report of Dr M Stewart dated 7 April 2005 – Exhibit R2.
3. The Applicant was self-represented and gave oral evidence through Mrs P Faaeteete, an interpreter, in the Samoan language. Mrs J Green, advocate, Legal Services Branch Sydney, appeared for the Respondent.
BACKGROUND
4. There was no disagreement between the parties about the background facts in this matter. In view of this, and on the material before it, the Tribunal finds as follows:
·The Applicant was born on 13 March 1961 and is 44 years of age.
·The Applicant lodged a claim for Disability Support Pension (DSP) on 24 October 2003 in which he listed his impairments as back pain.
·After referral from Centrelink, the Applicant was examined by Dr M Chiu on behalf of Health Services Australia (HSA) on 15 December 2003. Dr Chiu noted the Applicant’s presenting problems to be lower back pain with a loss of one quarter range of movement. He assigned the Applicant five points under Table 5.2. He also found that the applicant was fit for light full-time work of the nature of a retail sales assistant, customer service officer or parking attendant, after vocational training.
·On 19 December 2003, Centrelink decided to reject the Applicant's claim for DSP on the basis that his impairments only attracted a rating of five points under Table 5.2.
·Following the Applicant’s request for a review, an ARO on 14 April 2004 decided that the decision to reject the DSP claim was correct. The ARO assigned ten points for the Applicant's lower back under Table 5.2 on the grounds that he accepted the Applicant's evidence that he had pain referred to his legs, was unable to sit for more than 20 minutes at a time and could not stand for more than 10 minutes. Whilst the Applicant mentioned that he was also suffering from neck pain and gout, the ARO declined to rate these conditions as they were not fully diagnosed, treated and stabilised at the time of the claim.
·Following the Applicant’s appeal to the SSAT, that Tribunal also affirmed the decision to reject the Applicant's claim. The SSAT found that the Applicant should be assigned 15 points under Table 20 for his back pain. The Tribunal also accepted that he suffered from testicular problems but gave these a nil rating under Table 20. The Tribunal declined to rate the Applicant’s neck, right shoulder pain and gout on the grounds that they have not been fully diagnosed, investigated, treated and stabilised, and cannot be assigned a permanent impairment rating. The Tribunal did not consider the question of continuing inability to work.
ISSUES BEFORE THE TRIBUNAL
5. This matter is to be determined within the provisions of the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (“the Admin Act”).
6. The central issue in this matter is whether the Applicant is qualified for DSP, pursuant to the Act. The Act relevantly provides:
““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;
…
Meaning of continuing inability
94(2) A person has a continuing inability to work because of 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.
Note: For ‘work’ see subsection (5).
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(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.
Section 23(1) of the Act provides:
that the reference to Impairment Tables means the Tables in Schedule 1B of the Act”.
7. The Admin Act relevantly provides, in accordance with Schedule 2 Part 2, Section 4, that the Applicant must be qualified for DSP at the time of the claim or become qualified within 13 weeks thereafter. As the Applicant’s claim was lodged on 24 October 2003, the relevant period for consideration of this matter is 24 October 2003 to 27 January 2004.
APPLICANT’S EVIDENCE AND SUBMISSIONS
8. The Applicant told the Tribunal he first came to Australia from Samoa in 1996 and in 1997 commenced work with CHEP as a labourer. While in this employment he suffered an injury to his back on 16 July 1999 when lifting timber. He suffered pain in his back and felt dizzy. He said his supervisor took him to the company doctor who gave him pain killers and sent him home. He went to see his own doctor the next day and had X-rays. It was his evidence that because of his back injury he had a period of light duties for about a month and subsequently continued his normal employment until he was suddenly sacked in 2001. He said he then had an extended period off work before commencing employment with a paper manufacturing firm in 2002, where he worked for some six months before again being suddenly sacked. He said he was not told why he was sacked but thought it was because he could not do any heavy lifting. He has not worked since. He told the Tribunal that some time after his work related accident in 1999, he received a lump sum compensation payment of $100,000.
9. It was the Applicant’s evidence that when his back was injured he had physiotherapy, hydrotherapy, undertook a gym program and was on anti-inflammatory and pain killing medication. He said he was still taking medication and continued to have pain in his lower back ever since the accident. Less than a year after the accident he started to suffer referred pain and numbness in the whole of both of his legs, more so in the right leg. He said the anti-inflammatory medication does not make much difference but the pain killers do and that every day he takes two panamax in the morning, two in the afternoon and two at night.
10. In answer to questions from the Tribunal, the Applicant said that in addition to his back/leg condition he suffered blurred vision, neck pain and stomach pain.
11. In respect of blurred vision, he said he thought this started in 2001 and that he was currently seeing a doctor about this condition. He said he used eye drops; however he did not need glasses to read and was able to drive without glasses.
12. In respect of his neck pain, he said this started less than two years after his injury in 1999 but he could not recall when he first saw a doctor about this problem. He told the Tribunal he saw a doctor about a week ago and was told to contact Canterbury Hospital for further consultation about this condition and that he was waiting for this to happen.
13. In respect of his stomach problem, he said he was seeing Dr Patu about this and that the problem had an onset in May 2005.
14. When asked if there are any other relevant medical conditions which he wished to put to the Tribunal, the Applicant said there was nothing else.
15. The Tribunal notes that the Applicant, in his claim for DSP, only lists back pain (T12/55), and that the Applicant’s treating doctor’s report (Dr Patu) only addresses lower back pain (T13/65-66) and does not list any other relevant condition (T13/67).
16. The Tribunal also notes that the SSAT, in its reasons for its decision, refers to the Applicant having testicular, shoulder and gout problems. When asked about these problems the Applicant said his testicular condition had improved and was not a continuing problem, that he could not recall having any pain in his shoulder and that he was not sure if he had gout, the problem being numbness in his legs, which he had already described.
17. When asked to describe the effects of pain he suffered, the Applicant said that he suffered from lower back pain all the time, describing the pain as moderate to severe. He said the pain radiates down to his legs and that his legs felt numb. The Applicant made no mention of neck pain when answering this question. He said that other people did not realise how much pain he was in and that he thought it was at a level such that he qualified for DSP. The Applicant told the Tribunal that he was able to attend to his own personal needs, that he assisted his wife with washing the dishes, loading a dishwasher, driving her to do her shopping and taking the kids to the park to play. He said that he had seven children, the oldest being born in 1983 and the youngest in 2002, and that they all still lived at home. He said he could not sit or stand or drive a car for more than 20 minutes and could no longer mow the lawn. He said he still attended church (and church functions) regularly and up until the end of 2004 went to, and participated in, dancing at church functions. He said apart from the church activities, he did not engage in any other social activities. He said he had trouble sleeping and often had to get up during the night and then go back to bed.
18. The Applicant was asked about travel to Samoa. He said that he just recently returned from four weeks in Samoa and that prior to this he had spent some three months on a family visit at the end of 2004, and that in 2003 the whole family had visited Samoa. He said that there were no special arrangements made for his air travel and that the flight took about four hours. He said he came to the hearing at the Tribunal by train and was able to climb stairs at the stations and walk from the station to the Tribunal.
MEDICAL EVIDENCE
19. Some relevant aspects of the medical evidence have already been set out in the above background facts.
20. The Tribunal also notes the medical evidence set out in the SSAT decision (T2/6-7); and the related medical reports in the section 37 statements, namely T4/14, T5/15, T616, T7/17, T8/18, T11/21, T22/122; and the recent reports of Dr Patu (Exhibit R1) and Dr Stewart (Exhibit R2).
RESPONDENT’S SUBMISSIONS
21. The Respondent submitted that there is no dispute that the Applicant satisfies the requirements of subsection 94 (1) (a) of the Act, and that he suffered lower back pain and testicular problems at the relevant time.
22. However, it was submitted that the other problems referred to by the Applicant and set out in the material before the Tribunal were either not apparent during the relevant period or not fully investigated, treated and stabilised at that time, such that none of those conditions satisfied the relevant provisions of the Act.
23. On the available medical evidence the Respondent accepted the SSAT rating of 15 points for the Applicant’s back pain and nil points for his testicular problems. The Respondent submitted that the Applicant at the relevant time, had an impairment rating of 15 points under the Impairment Tables and thus does not satisfy the requirements under subsection 94 (1) (b) of the Act, and as such does not qualify for DSP.
CONSIDERATION
24. After careful consideration of all of the material before it and the submissions of both parties, the Tribunal is satisfied that the Applicant, at the relevant time, suffered from lower back pain and pain in both legs, neck pain and blurred vision and finds accordingly. The Tribunal does not accept that the Applicant suffered from stomach pain at the relevant time; and the Tribunal is satisfied that the Applicant does not suffer from shoulder problems or gout. Furthermore, the Tribunal is satisfied that any testicular condition that the Applicant had at the relevant time was not at that time treated and stabalised, the condition subsequently responding to treatment to the point where it is no longer of concern to the Applicant.
25. In respect of the Applicant’s neck pain, blurred vision and stomach pain, the Tribunal finds, on the Applicant’s own evidence, that all of these conditions are currently under investigation and have not been fully diagnosed, treated and stabilised.
26. Clauses 5 and 6 of the Introduction to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (Schedule 1B of the Act) state:
“…
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
what treatment or rehabilitation has occurred;
whether treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
treatment that is feasible and accessible ie, available locally at a reasonable cost;
where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:
evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
indicate why this treatment is reasonable; and
note the reasons why the person has chosen not to have treatment.
…”
27. The Tribunal is satisfied that, at the relevant time, the Applicant’s only permanent impairment was his lower back and leg pain and so finds.
28. Clearly the Applicant satisfies subsection 94 (1) (a) in respect of his lower back/legs pain and the crucial question then is what impairment rating the Applicant should be given for this condition.
29. The relevant Impairment Tables are Table 5.2 thoraco-lumbar-sacral spine and Table 20 miscellaneous…pain.
30. These Tables are set out below:
“TABLE 5.2 Thoraco—lumbar-sacral spine
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 spinal 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.
…
TABLE 20. MISCELLANEOUS - MALIGNANCY, HYPERTENSION, HIV INFECTION, MORBID OBESITY (ie BMI >40), HEART/LIVER/KIDNEY TRANSPLANTS, MISCELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN
Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used. Double-counting of a particular loss of function, by the use of more than one Table, must be avoided.
Rating Criteria
NIL Controlled hypertension
Malignancy in remission with a good to fair prognosis
Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.
TEN Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.
Hypertension that is difficult to control despite intensive therapy but without end-organ damage
Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis
Heart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms.
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.
THIRTY Very severe symptoms which lead to substantial difficulty with most daily tasks. Assistance with elements of self-care may be required. Symptoms cause severe interference with ability to work or attend work (ie. minimal residual work capacity).
Heart/Liver/Kidney transplants - poorly controlled (poorly functioning) with fairly severe symptoms which lead to substantial difficulty with most daily tasks
Malignant hypertension - severe, uncontrolled
Inoperable, symptomatic and life-threatening aneurysm or malignancy. Very poor prognosis with only a very limited lifespan.
FORTY Major restrictions in many everyday activities. Capacity for self-care is restricted, leading to dependence on others. No residual work capacity.”
31. The Tribunal has assessed the Applicant’s back and leg pain using the above Tables. In so doing the Tribunal has taken into account all of the material before it and the submission of both parties, including all of the medical evidence and the evidence given by the Applicant in respect of how his back/leg condition affects him.
32. Firstly, under Table 5.2, the Tribunal finds that the Applicant’s lower back and referred leg condition attracts a rating of 10 points.
33. However, the Tribunal agrees with the approach taken by the SSAT, namely that the Applicant’s condition of back pain (and leg pain) is more severe than problems he experiences with loss of range and movement, and hence it is more appropriate to assess the Applicant under Table 20.
34. In applying Table 20, the Tribunal is satisfied that the Applicant’s back and leg pain causes him to suffer moderate to severe symptoms which have moderate impact on his ability to perform or persist with work-related tasks. The Tribunal finds the Applicant’s impairment rating under Table 20 to be 15 points. In so finding, the Tribunal is mindful that the Applicant is still seeking work and that he told the Tribunal he wants to work.
35. The Tribunal finds that the Applicant overall has a total impairment rating of 15 points and, as that is less than 20 points, he does not satisfy the provisions of subsection 94 (1) (b) of the Act and therefore he does not qualify for a disability support pension.
36. That being so, the Tribunal is of the view that it is not necessary to consider whether the Applicant satisfies Section 94 (1) (c) of the Act.
37. The Tribunal affirms the decision under review.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: L Feely
AssociateDate of Hearing 30 June 2005
Date of Decision 22 July 2005
Applicant Self-represented
Advocate for the Respondent Ms J Green
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