Fernandez and Department of Family and Community Services

[2001] AATA 737

DECISION AND REASONS FOR DECISION [2001] AATA 737

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2001/238

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      TOMAS FERNANDEZ CONCEPION FERNANDEZ   
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES  
  Respondent

DECISION

Tribunal       Mr K L Beddoe (Senior Member)

Date24 August 2001 

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.         
  (Sgd) K L Beddoe
  Senior Member
Decision No:  737/2001
CATCHWORDS
 SOCIAL SECURITY – Disability Support Pension and Wife Pension – whether continuing inability to work – work related injury to lumbar spine – further degenerative processes
Social Security Act 1991 s 94, 147

REASONS FOR DECISION

24 August 2001                 Mr K L Beddoe (Senior Member)

1. The applicants seek review of decisions by the respondent to cease payment of disability support pension and wife pension respectively.  Those decisions were subsequently affirmed by the Social Security Appeals Tribunal.

2. Section 94 of the Social Security Act 1991 ("the Act") provides for payment of disability support pensions when a number of eligibility criteria are satisfied.  The relevant criteria in this case are:

   (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)the person has a continuing inability to work.

Whether there is a "Continuing Inability to Work" is determined in accordance with section 94(2) of the Act.

1. Wife pension depends upon qualification under section 147 of the Act. In this case the second applicant's eligibility is dependent upon her husband receiving the disability support pension.

2. At hearing the applicants conducted their own case and Mr Foster represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents (Except for documents T11 and T12 which the Tribunal ruled were irrelevant documents) and further documents tendered for the applicants and marked as exhibits.  Oral evidence was given by the applicants and Dr Downes, orthopaedic consultant.

3. I make the following findings of fact.  The first applicant was injured in an industrial accident on 30 May 1988.  It appears he has not worked since 1989.  Injury was to the lumbar spine with a bulge noted at the Lumbar 4-5 disc.  Since then the disc has become degenerative.  The first applicant takes prescription anti-inflammatory drugs and panadeine forte – the latter as required.

4. The applicant said that he leads a very restricted lifestyle preferring to spend up to 12 hours per day in his bed.  He acknowledges walking, driving a motor vehicle for relatively short distances, doing shopping, using a supermarket trolley, mowing lawns and gardening.  He also watches television  and attends movies from time to time.  He said that the last movie was about three months prior to the hearing and he left during the show because of back pain.

5. In 1991 he made a claim for Invalid Pension and Disability Support Pension was paid from this time.  Wife pension was paid to the second applicant from this time.

6. Both applicants were unsatisfactory witnesses in that they were concerned to dispute Centrelink's actions in relation to these matters.  In particular, I observed the first applicant giving evidence and noted that when asked a series of questions by the Tribunal he temporarily forgot his deliberate demonstration of his back condition.  It should be said that he was observed to have been relatively free from pain while he had the advantage of the witness chair.  That observation is consistent with observations recorded by medical practitioners and to which I will return.

7. There is no explanation before me as to why the second applicant ceased working.  She told the SSAT that she gave up work to assist her husband at home.
   The Medical Evidence

8. In 1990 the first applicant's general practitioner, Dr Ratnam diagnosed a Lumbar 4-5 disc prolapse which he said was permanent (T8).

9. In 1997 Dr Ratnam diagnosed chronic low back pain (T15).

10. Document T18 is a medical officer report by Dr Yang dated 16 January 1998 where he diagnosed Lumbar Degenerative Disc Disease.  Dr Ratnam reported that the first applicant was functional with some restrictions as to sitting for more than an hour but he noted the first applicant was able to attend movies.  From time to time the first applicant suffered exacerbations of his back pain.

11. Dr Yang made a further report dated 14 January 2000.  He diagnosed chronic back pain – degenerative disc disease.  Dr Yang noted a reported improvement in the first applicant's condition which he was able to verify.  He was of the opinion that the first applicant had the residual capacity to undertake light semi-sedentary work where he would have the freedom to vary his posture as required.  He thought vocational retraining/rehabilitation would be a benefit.

12. The first applicant was referred by Health Services Australia to Dr Downes, orthopaedic consultant, who made a detailed medico-legal report dated 6 June 2000.  Dr Downes records a history taken from the first applicant (the second applicant was present at the examination).

13. In his report and in his oral evidence to the Tribunal, Dr Downes expressed the opinion that the first applicant does not have as much trouble from his back as he asserts.  The behavioural pattern on examination was not consistent with a patient who is genuinely suffering from a stiff immobile back.  Dr Downes was of the opinion that the first applicant was capable of performing light to moderate less skilled occupations but he was not fit to return to work as a labourer.  In his oral evidence Dr Downes said that he had specifically tested for exaggerated symptoms.

14. Dr Downes found a 5% limitation of movement in the back and was of the opinion that the first applicant was not suffering a lot of pain.

15. Exhibit B is copies of two pathology reports by Dr Uhr dated 12 July 2000 and 30 March 2001.  In the report dated 12 July 2000 Dr Uhr found:

    (a)The body of L1 is enlarged with a trabecular pattern suggesting early Paget's disease.

    (It may be reasonable to assume that the early Paget's disease in a person of 48 years at time of examination is consistent with a long period of inactivity normally found in the elderly);

    (b)slight anterior wedging of the body of T12 due to old osteochondritis or previous trauma; and

    (c)signs of disc degeneration at L4/5 and L5/S1 with slight repositioning of L5 and the spines and pedicles in tact.

16. The further report by Dr Uhr dated 30 March 2001 dealt with the cervical spine and found wide spread degenerative changes from C4 to C7.  The applicants said in evidence that the neck condition has not been treated.

17. The applicant's case essentially relies on the reports by the first applicant's treating orthopaedic surgeon, Dr Brazel.  Dr Brazel has made reports dated 7 August 2000 (T27), 23 January 2001 (T36) and 27 March 2001 (Exhibit A).

18. In the report dated 7 August 2000 Dr Brazel found limited flexion with pain but no abnormal peripheral neurology and the rest of the examination was normal.  He found multi-level degenerative disc disease which would not benefit from surgical intervention.  Exercise was recommended but he did not believe the first applicant could be gainfully employed.  Dr Brazel noted "occasional signs of inorganic pain behaviour".

19. In the report dated 23 January 2001 prepared at the request of the Welfare Rights Centre, Dr Brazel assessed the first applicant's impairments at 20 points for the lumbar spine and 5 points for the cervical spine.  Relying on the first applicant's inability to read or write English, his level of education and his age any retraining over two years would be unlikely to result in employment.

20. Dr Brazel's report of 27 March 2001 also to the Welfare Rights Centre also dealt with both the lumbar and cervical spines.  He assessed 20 points for pain under table 20 in relation to the lumbar spine.  He also assessed 10 points in relation to the cervical spine.
    Consideration

21. I am satisfied that each medical opinion relied on in this case is dependant for its validity on the history provided by the applicants.  This must be the case as it is clear that pain cannot be measured by any objective process.  Determination of the presence and severity of pain necessary depends upon subjective history given by the applicant.

22. In this case Dr Brazel noted "occasional signs of inorganic pain behaviour" (T27) and Dr Downes said that the "behavioural pattern on examination is not consistent with a patient who is genuinely suffering from a stiff immobile back" (T24/97).

23. These comments by Drs Brazel and Downes are consistent with my observation of the first applicant giving evidence.  While concentrating on matters put to him by the Tribunal in particular he did not maintain his demonstration of the pain in his back and appeared to be pain free while seated giving his responses to the Tribunal's questions.  In my view that observation of the first applicant is consistent with the comments of Drs Brazel and Downes.

24. In these circumstances I have come to the view that the assessment of impairment by Dr Yang is the most appropriate.  It relies on the report by Dr Downes and there is no reason to doubt that Dr Downes has made a fair and impartial assessment of the first applicant in his report.  Dr Yang's assessment relates to the medical restrictions only and takes into account the history, the reported level of daily functioning and clinical presentation.  He assessed 10 points under Table 5.2 of the impairment tables.  In the light of the material before the Tribunal this is a fair assessment of the lumbar spine impairment.

25. In relation to the cervical spine condition there is no evidence that this condition has been treated and stabilised so that it can be said to be a permanent impairment.  It follows that no points should be assessed under the Impairment Tables.

26. For these reasons I am satisfied that the decision under review was correct and it will be affirmed.

    I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)

    Signed:         .....................................................................................
      Associate

    Date/s of Hearing  31 July 2001
    Date of Decision  24 August 2001
    Applicant  In person
    Respondent  Mr Foster, Departmental Advocate