Grech and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 980

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 980

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1724

GENERAL ADMINISTRATIVE DIVISION		)
Re		Mr Vince Grech

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS 

Respondent

DECISION

Tribunal Dr Amanda Frazer, Member  

Date7 December 2010

PlacePerth

Decision The Tribunal affirms the decision under review.

…(sgd) Dr A Frazer Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – qualification requirements– applicant has impairment – applicant’s impairment does not attract impairment rating of 20 under Impairment Tables – applicant not qualified for disability support pension – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth), s 94 and Sch 1B

REASONS FOR DECISION

7 December 2010 Dr Amanda Frazer, Member

Introduction

1.Mr Grech (“the applicant”), who is 55 years of age, lodged an application for disability support pension (“DSP”) on 19 November 2009.

2.On 2 February 2010 Centrelink determined the applicant was not eligible to receive DSP.

3.On 11 February 2010 a Centrelink authorised review officer (“ARO”) affirmed the decision that the applicant was not eligible to receive DSP.

4.On 30 March 2010 the Social Security Appeals Tribunal (“SSAT”) affirmed the decision that the applicant was not eligible to receive DSP. 

5.On 3 May 2010 the applicant made an application to this Tribunal for review of the SSAT’s decision.

The Relevant Legislation

6.The conditions which must be satisfied before a person is qualified for DSP are set out in paras (a) – (f) of s 94(1) of the Act. It is common ground that the applicant satisfies the conditions set out in paras (d) – (f) of s 94(1). Section 94 of the Act otherwise relevantly provides:

“ 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;

…

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 independently of a program of support within the next 2 years; and

(b)       either:

(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

Note:    For work see subsection (5).

…

94(5) In this section:

training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

(a)       education;

(b)       pre‑vocational training;

(c)       vocational training;

(d)       vocational rehabilitation;

(e)       work‑related training (including on‑the‑job training).

work means work:

(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

(b)that exists in Australia, even if not within the person’s locally accessible labour market.

…”

7.The “Impairment Tables” referred to in para (b) of s 94(1) are set out in Schedule 1B to the Act and are relevantly referred to in paragraphs 29 -31 below.

The Evidence

8.The evidence before the Tribunal comprised:

·the “T Documents” (T1-T16), pp 1-317) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”):

·Exhibit R1 (letter from Dr Sean Mitchell, Physiotherapist, to Dr Baird, dated on or around 12 August 2010) tendered by the respondent

·the oral evidence of the applicant.

The applicant’s submission

9.The applicant stated that he did not really have any further information to present to the AAT that he had not already presented to the SSAT.

10.The applicant stated he lives independently in his home.  He has 2 adult children however they do not provide him with any support at home.

11.The applicant said his main problem is long standing lower back pain and this pain also shoots into his hips.  The left side is worse than the right.   He takes Arthrexin and Panamax for his pain and may use around 6 Panamax a day.  The applicant said if it wasn’t for his low back pain he would be “home and hosed.” The applicant said his lower back pain prevents him from working.    The applicant said if his low back problem were fixed he would be OK.  The applicant said he can work with his other pains.

12.The applicant said he had a spinal fusion in 2002 and from 2002 to 2009 he was able to undertake some physical work.  He said that now he has 3 worn discs in the lower back and that causes pain and affects his mobility. 

13.The applicant said this back pain interferes with his sleep and also affects his ability to walk, do housework and drive.  The applicant said he now drives an automatic car.  He is able to twist to look around to look behind him when he is driving but getting in and out of the car is a problem because of his back pain. 

14.The applicant said he goes shopping when he needs to about 2 – 3 times a week.  He sometimes finds it difficult to push the trolley and puts the shopping into small bags that he can carry.  After around 20 minutes walking around the shops the applicant said he has had enough.  The applicant said he walked from the train station to the AAT hearing but that it was difficult. 

15.The applicant said he still looks after his garden and can mow the lawn for 20 minutes at a time.  He is able to slowly do the weeding and pruning but for no more than 1 hour at a time.   He said digging is the main problem because of his back pain.   

16.The applicant said he uses a computer at home for around half an hour a day.  He now mainly looks at the news.  In the past he has bought and sold stocks and the applicant said he did well financially when the economy was strong.

17.The applicant said he can no longer ride his bike or play pool because of his back pain.  He does still go to a local social club for an hour or so to socialise on a Wednesday evening. 

18.The applicant said his GP is Dr Baird.  He only sees Dr Baird every few months to renew his scripts.  He said that the GP told him he “has to accept his condition.”    

19.The applicant said he thinks it was the GP who referred him to Bentley Hospital for physiotherapy and hydrotherapy for his back in May 2010.  He now goes every second day for about an hour.  He said that initially this was very helpful in managing his pain but now there is “a bit of a question mark” over the benefit of the physiotherapy.  The applicant said he will continue with the swimming as it does soften the pain and keep him fit and he now does this himself rather than as part of a class.   

20.The applicant said he also uses complementary treatments for his back such as a TENS machine and a lumbar brace.  These help him cope over the day but don’t fix his problem.

21.The applicant said he has bony spurs in his neck however his main problem is his lower back.

22.The applicant said he also suffers from vitiligo (a type of skin disorder) and because of this must use sun protection.  The applicant said this is not a disability.  He also says he suffers from urticaria or itchy hives with the elements, such as wind, cold and heat.  Overall, however, this is improving and is not a disability.  The applicant said he also has hypertension but this is controlled by medication and does not stop him working.

23.The applicant said he has had many jobs in the past including gardening and cleaning.  He last worked full-time as a security guard until 22 February 2009.  

The relevant medical evidence

24.The medical report provided by Dr Baird dated 19 November 2001 states the applicant suffers from widespread osteoarthritis especially in the lower back.  The applicant had a lumbar fusion at L5/S1 in 2002 and the applicant is currently treated with medications, Panamax and Arthrexin.  (T6)

25.The medical report provided by Dr Baird dated 19 November 2009 states the applicant suffers from widespread osteoarthritis especially in the lower back.  Dr Baird states the applicant is prescribed Arthrexin and Panamax.  Dr Baird also states that the applicant has hypertension which is treated with “medications” and has nil impact on ability to function.  Dr Baird also states the applicant has urticaria which has no treatment and a minimal impact on ability to function.  

26.A variety of xrays, ultrasound and MRI reports are provided in the T documents.  A CT of the lumbar spine dated 13 October 2009 confirms the spinal fusion at L5/S1 and some degenerative changes at the L2/3, L3/4 and L4/5 disc levels.  A CT of the cervical spine dated 5 August 2008 showed some narrowing of the disc space at C5/6 and C6/7 with osteophyte formation.

27.Dr Baskaranathan, Rheumatologist, in his report dated 2 November 2009 (T6) summarises his clinical findings and reviews the multiple imaging examinations.  Dr Baskaranthan concludes that the applicant’s lower back pain is related to “degenerative changes in the lower lumbar spine inclusive of the sacroiliac joint.”  The applicant has a normal gait pattern.  There is flexion to 70% of the normal range of the lumbar spine with limited extension.  Straight leg raise is greater than 70% in both legs.  Dr Baskaranathan states the applicant “has to learn to live with this pain”.  Dr Baskaranathan states the pain would be exacerbated with heavy manual work.    

28.Dr Baskaranathan also states the applicant “has had neck pain off and on for 30 years” and in the applicant’s cervical spine there “is limitation of cervical spine movement in his lateral flexion and rotation”   

The Impairment Tables

29.Schedule 1B to the Act is headed: “Tables for the assessment of work-related impairment for disability support pension”. The tables themselves are preceded by an “Introduction“ in which it is relevantly stated:

“1.       These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work. …

2.        These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. …

…

4.        A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. …

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 (sic) 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.

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.

…” (original emphasis)

30.Table 5, which is used to assess spinal impairments, is as follows:

“ TABLE 5  SPINAL FUNCTION

Determination of spinal impairments must be based on a demonstrable loss of function

TABLE 5.1  Cervical Spine

Rating  Criteria

NIL  Normal or nearly normal range of movement.

FIVE  Loss of quarter of normal range of movement.

TENLoss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain.

TWENTYLoss of three-quarters of normal range of movement and constant neck pain.

THIRTYLoss of almost all movement, or complete ankylosis in position of function.

FORTYAnkylosis in an unfavourable position, or unstable joint.”

TABLE 5.2Thoraco-lumbar-sacral spine

As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movements and is not intended to measure mobility of individual spinal segments.

RatingCriteria

NILNormal or nearly normal range of movement.

FIVELoss of one-quarter of normal range of movement.

TENLoss 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.

TWENTYLoss 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.

FORTYAnkylosis in an unfavourable position, or unstable joint.”

31.Table 20, which is used to assess impairments caused by “miscellaneous conditions”, is (relevantly) as follows:

“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

…

Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.

TENMild 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.

…

FIFTEENModerate 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.

…

TWENTYMore 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.

THIRTYVery 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).

…

FORTY         Major restrictions in many everyday activities.  Capacity for self-care is restricted, leading to dependence on others.  No residual work capacity.”

Analysis

Impairments

32.It is common ground that, at all material times, the applicant has had various physical impairments, within the meaning of para (a) of s 94(1) of the Act, by reason of his suffering from the following conditions, namely, degenerative arthritis of the lumbar and cervical spine, hypertension and urticaria.

33.The first matter for the Tribunal’s determination is whether the applicant has a total impairment, by reason of the abovementioned conditions, of at least 20 points under the Impairment Tables, for the purposes of para (b) of s 94(1) of the Act.

Lower Back (Lumbar Sacral Spine) Condition

34.The Tribunal has regard to the fact that the applicant clearly stated on many occasions in his oral evidence to the Tribunal that his lower back pain and loss of mobility is his significant problem and it is this problem that stops him working.  The Tribunal accepts that the applicant has long standing lower back problems, significant lower back surgery in the past and that the applicant has tried physiotherapy and hydrotherapy and various complementary treatments over the years in an effort to manage this pain.  The Tribunal is also mindful that both the applicant’s GP and Rheumatologist have commented that the applicant must learn to accept his condition and to live with the pain.  The Tribunal accepts that the applicant is currently undergoing regular swimming with some improvement in general fitness and pain management however it is unlikely that this management, whilst certainly helpful, will lead to significant functional improvement. Therefore the Tribunal accepts that the applicant’s degenerative arthritis of his lower back is a permanent condition for the purposes of assigning a rating.

35.The Tribunal considers the appropriate Table for the purpose of assigning a rating in respect of the applicant’s low back pain and loss of functionality is Table 5.2.  That is because the Introduction to the Impairment Tables clearly states that ..”pain .. should be assessed in terms of the underlying medical condition which causes it.  For example, Table 5 should be used for spinal pathology…” The Tribunal accepts the oral evidence of the applicant’s description of his lower back pain and that his low back pain occurs with many activites (such as bending, driving for prolonged periods and getting in and out of his car.)  The Tribunal accepts the clinical findings of Dr Baskaranathan, Consultant Rheumatologist, that the applicant has lost one–quarter of his normal range of movement of the lumbar sacral spine.  Dr Baskaranathan states that flexion is limited to 70% of the normal range and extension is limited. Therefore, the Tribunal considers the appropriate rating for the applicant’s lumbar spine condition under Table 5.2 is 10. 

Cervical Spine Condition

36.The Tribunal accepts the opinion of Dr Baird and Dr Baskaranathan that the applicant has long standing osteoarthritis of the cervical spine.  Degenerative changes have also been documented on CT scan of the cervical spine on 5 August 2008. The Tribunal notes that the applicant gave evidence that his main problem is his back and did not give evidence with respect to neck pain or functional loss.  The Tribunal notes that the applicant gave evidence he is able to twist to look behind him when driving and he is able to swim and use his computer at home.  The Tribunal accepts the examination findings of Dr Baskaranathan that the applicant has “limitations in range of movements in his (cervical spine of) lateral flexion and rotation.”

37.However, the Tribunal considers, on balance, that the applicant’s functional impairment with respect to his cervical spine condition has not been fully assessed and documented.  Therefore, pursuant to the Introduction to the Tables this condition does not attract a rating.   

Hypertension

38.The Tribunal also notes that the applicant suffers from hypertension which is controlled by medication and causes no impact on functioning.  This is a permanent condition and receives a nil impairment rating under Table 20.

Conclusion

39.The Tribunal concludes that, although the applicant has at all material times had impairments within the meaning of para (a) of s 94(1) of the Act, he had a total impairment of 10 points under the Impairment Tables, and, accordingly he did not satisfy para (b) of s 94(1) of the Act and was not qualified for DSP at the time of application to the present time.

40.That conclusion makes it unnecessary for the Tribunal also to consider whether the applicant satisfied para (c) of s 94(1) of the Act.

Decision

41.For the above reasons the Tribunal affirms the decision under review.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Dr Amanda Frazer, Member

Signed:..(sgd) T Freeman................
  Associate

Date of Hearing  27 August 2010
Date of Decision   7 December 2010
Representative of the Applicant                 Self represented
Representative for the Respondent        Mr Paul Maishman,
  Centrelink Legal services Branch