Howard; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 1160

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1160

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2006/248

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And BRIAN HOWARD

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date22 March 2007

PlaceCanberra

Decision The decision under review is affirmed.

..............................................

Mr S. Webb, Member

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Qualification – Period – Impairment tables – Fully diagnosed, investigated, treated and stabilised – Qualification criteria satisfied – Decision affirmed.

Social Security Act 1991 (Cth) ss 94, Schedule 1B

Social Security (Administration) Act 1999 (Cth) Schedule 2

REASONS FOR DECISION

22 March 2007 Mr S. Webb, Member         

1.      Brian Howard was injured and unable to continue working.  He made a claim for a Disability Support Pension (DSP).  His claim was rejected.  The Social Security Appeals Tribunal reversed that decision and decided that Mr Howard qualified for DSP.  The Applicant Secretary has applied for review of that decision.

2.      The issue for determination by the Tribunal is whether or not Mr Howard qualified for DSP on the date of his claim or thereafter. 

3.      In the Secretary’s submission Mr Howard did not qualify for DSP on the date of his claim or within 13 weeks thereafter because his impairing medical conditions were not fully diagnosed, investigated, treated and stabilised, and were not permanent, in that period.  The Secretary says that it was not until a CT scan by Dr Morewood on 16 August 2005 that Mr Howard’s back condition was fully diagnosed, investigated, treated and stabilised.

4.      As will appear I do not agree.

5. The qualification criteria for DSP are set out at section 94 of the Social Security Act 1991.  In order to qualify a claimant must have an impairment of the requisite kind[1] of at least 20 points under the Impairment Tables at Schedule 1B[2]  and a continuing inability to work in the manner specified.[3]  The Impairment Tables contain a number of introductory paragraphs that make clear that the Tables are designed to assess functional impairment for work.  Ratings can only be made for conditions where there is an associated current loss of function or where prolonged loss of function would be expected in most work situations.[4]  Furthermore:

“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.  The first step is thus to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

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.”

[1] Subparagraph 94(1)(a).

[2] Subparagraph 94(1)(b).

[3] Subparagraph 94(1)(c).

[4] Paragraph 3.

6.      The only point taken by the Secretary concerned these introductory paragraphs of Schedule 1B in relation to Mr Howard’s back condition.

7.      I found Mr Howard to be a straightforward and truthful witness.  His evidence was not challenged and I accept it as reliable.  I am satisfied and find that Mr Howard first injured his back at work on a building site in 1991.  He subsequently underwent spinal fusion surgery in or about 1992.  He returned to work and operated a landscaping business for a number of years.  However he suffered from recurrent back problems and ongoing pain.  The level of his back pain increased until he ceased work in January 2005.  He was treated by Dr J. Williams, his general practitioner since October 1977.  On Mr Howard’s sworn evidence, Dr Williams referred him to the Yass District Hospital for an X-ray of his lumbar spine in or about January 2005 when he attended for treatment soon after returning to work after the Christmas break.  That evidence was not challenged and I accept it.  However, neither the X-ray film nor the radiologist’s report is in evidence. 

8.      Nevertheless, it can be inferred that Dr Williams had regard to this material when he completed a Treating Doctor’s Report on 14 February 2005 [5] that Mr Howard lodged with his claim for DSP on 24 February 2005.[6] Dr Williams briefly set out the history of Mr Howard’s back condition and his current symptoms,[7] and discussed the impact of this condition on Mr Howard’s ability to function: “very significant restriction of mobility, especially with regard to basic movements (sitting, standing, bending et.al).  This in turn makes it very difficult for him to work.”[8]  Dr Williams recorded that the impact on Mr Howard’s ability to function was expected to continue for more than 24 months, and would remain unchanged in that time.  Dr Williams concluded that “the principal issue is restriction of physical activity by long-term pain, and associated difficulties working”.[9]  Dr Williams was not called to give evidence.  I note that Mr Howard represented himself in these proceedings.

[5] Documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), T9.

[6] T10.

[7] T9 folio 28.

[8] T9 folio 29.

[9] T9 folio 32.

9.       On 30 March 2005 Dr I. Richards completed a Medical Assessment Report concerning Mr Howard, in relation to his claim.[10]  Dr Richards stated that he did not seek information from other sources[11] and briefly set out a history of Mr Howard’s low back condition, in which he reported “recent onset of low back pain, sciatica and numbness L/leg”[12] and “he had been free of symptoms until this episode in Jan 2005.  He is temporarily incapacitated – it is early stages and he should be reviewed in 3-4/12”.[13]  Presumably on that basis Dr Richards concluded that Mr Howard’s incapacity as a result of his back condition was temporary. 

[10] T11.

[11] T11 folio 68.

[12] T11 folio 69.

[13] T11 folio 80.

10.     To the extent that reliance was placed on Dr Richards’ report I am satisfied that he did not have access to Mr Howard’s medical records or the X-ray that was conducted at the Yass Hospital on Dr Williams’ referral in or about January 2005.  On that basis it is perhaps not surprising that he concluded that Mr Howard’s back condition was in the early stages and only temporary.  Dr Richards may have concluded differently if he had been provided with all the relevant information.  Dr Richards was not called to give evidence so his opinions on that subject are not known.

11.     On 16 August Dr D. Morewood reported on a CT scan of Mr Howard’s lumbar spine and an ultrasound of his testes (I note in passing that Mr Howard does not assert any functional impairment as a result of a benign left testicular lump).[14]

[14] T14.

12.     On 17 October 2005 Dr R. Burn completed a treating doctor’s report[15] in which he briefly recorded the history of Mr Howard’s back condition and observed “operation – plates and screws L4-L5-S1 not successful enough worked for a time finally unable”.[16]  Dr Burn reported that Mr Howard’s incapacity as a result of his back condition was likely to continue for more than 24 months, and may deteriorate in that time.[17]  It appears that Dr Burn had access to the 16 August 2005 CT scan but there is no evidence he had access to Dr Williams’ notes or the X-ray conducted in or about January 2005.  Dr Burn was not called to give evidence.  Little turns on Dr Burns’ report as prior to the hearing the Secretary determined that Mr Howard qualified for DSP on 16 August 2005.

[15] T17.

[16] T17 folio 90.

[17] T17 folio 91; T2 folio 5 refers.

13.     Centrelink obtained a report from Dr W. Coyle dated 5 December 2006[18] on which reliance is placed by the Secretary.  Dr Coyle reported that:

“Mr Howard’s condition was not fully diagnosed or investigated by 24 February 2005 or within 13 weeks of that date.  His only investigation following that date was a CT scan of his lumbar spine on 16 August 2005…

Mr Howard’s condition was fully investigated and presumably diagnosed by August 2005.  Such treatment that he has had was established at that time and his medical condition has not changed since that time.

On retrospect it would seem now that Mr Howard’s medical condition was permanent at the time of his application on the 24 February 2005 or within 13 weeks thereafter, even though it was not fully investigated at that time…”[19]

[18] T30.

[19] T30 folio 127.

There is no evidence that Dr Coyle had access to Dr Williams’ notes or to the X-ray conducted in or about January 2005.  Dr Coyle was not called to give evidence.

14.     As can be seen Dr Coyle concluded that Mr Howard’s back condition was in all likelihood permanent on 24 February 2005, but the condition had not been fully investigated or diagnosed at that time.  That conclusion was made without reference to Mr Howard’s relevant medical records concerning the history of his lumbar spine condition over an extended period of years and without knowledge of or access to the X-ray of Mr Howard’s lumbar spine that was conducted in or about January 2005.  One can only wonder what Dr Coyle would have made of such relevant information.

15.     I note that a CT scan is not treatment for Mr Howard’s back condition.  The CT scan on 16 August 2005 was an investigation requested by Mr Howard’s then treating doctor, Dr D. Peachey, in Canberra.  Similarly, the X-ray of Mr Howard’s lumbar spine in or about January 2005 was an investigation requested by Dr Williams, his treating doctor in Yass at the time.  It is not clear whether or not Dr Peachey had access to Mr Howard’s medical records concerning the history of his back condition or the X-ray in or about January 2005.  Dr Peachey was not called to give evidence.  Thus it is not possible to determine whether Dr Peachey required the CT scan for the purpose of diagnosing Mr Howard’s back condition, or whether his purpose was to monitor the progress of Mr Howard’s lumbar spine at that time. 

16.     Considering the medical evidence I am reasonably satisfied that Mr Howard’s back condition was fully diagnosed, investigated and treated by Dr Williams on or before 24 February 2005.  I am satisfied that Dr Williams had access to Mr Howard’s full medical history and the X-ray that was taken of his lumbar spine in or about January 2005.  For that reason his assessment on 14 February 2005 is to be preferred and carries more weight than subsequent medical reports by doctors who did not have access to that information.

17.     Thus, it is necessary to consider the evidence concerning an impairment rating for Mr Howard’s low back condition.  There is substantial consistency in the medical reports over time on this subject:  Mr Howard had lost half the normal range of movement in his lumbar spine and he suffered back pain or referred pain with most activities, on standing for periods of 15 minutes or more and on sitting or driving for periods of 30 minutes or more.  Those functional impairments warrant a rating of 20 points under Table 5.2.  I so find.

18.     In summary, therefore, Mr Howard suffers a physical impairment to his lower back that, being fully diagnosed, investigated, treated and stabilised on 24 February 2005, warranted 20 impairment points pursuant to Schedule 1B of the Act.  The Secretary did not contest whether Mr Howard had a continuing inability to work (as specified at subp 94(1)(c)) at the date of his claim.  I accept the evidence of Dr Williams in the report he prepared on 14 February 2005 that Mr Howard’s impairment “makes it very difficult for him to work”.[20] While that assessment is not precise in terms of the matters set out at subs 94(2), (3), (4) and (5), it is consistent with the subsequent Job Capacity Assessment Report prepared by Mr J. Cameron on 15 December 2006.[21]  It is to be noted that there is no evidence of any significant change in Mr Howard’s functional capacity during the intervening period.

[20] T9 folio 29.

[21] T31.

19.     In conclusion, Mr Howard was qualified for DSP on 24 February 2005.  The decision under review is affirmed.

20.     Finally Mr Howard’s claim for DSP attached a report by his treating doctor of many years standing, which clearly indicated that doctor’s opinion concerning the then present status of Mr Howard’s disabling condition.  It is surprising indeed that Centrelink did not seek to obtain further information from Mr Howard’s treating doctor when referring him to another doctor (Dr Richards) for assessment.  It is difficult to understand how a proper assessment of his condition could be made without reference to all the relevant medical information.  If such information had been obtained and taken into account during the assessment process it is conceivable that the subsequent delays and costs could have been avoided in the best interests of all parties.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

Signed:         .....................................................................................
  Joe Meagher, Associate

Date/s of Hearing  8 March 2007

Date of Decision  22 March 2007
Representative for the Applicant     Self
Solicitor for the Respondent            Centrelink Legal Services Branch