Ivery and Department of Family and Community Services

[2001] AATA 122

DECISION AND REASONS FOR DECISION [2001] AATA 122

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No    N2000/754

GENERAL ADMINISTRATIVE DIVISION          )          

Re      BRUCE IVERY       

Applicant

And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        

Respondent

DECISION

Tribunal       Rear Admiral A R Horton AO, Member   

Date20 February 2001

PlaceSydney

Decision      The Tribunal affirms the decision under review.

.
  [sgn] A R Horton
  Member
CATCHWORDS

SOCIAL SECURITY – claim for disability support pension – whether Applicant has physical, intellectual or psychiatric impairment – whether impairment is 20 or more points vide Schedule 1B - ability to undertake work – ability to undertake educational or vocational training.

Social Security Act 1991 – ss 94(1),(2), (3) and 100(3)
Social Security Legislation Amendment Act No 1(1995)

Re Pirie and Repatriation Commission (AAT 11505, 20 December 1996)

REASONS FOR DECISION

Rear Admiral A R Horton, Member

This is an application for review of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 11 April 2000,  which affirmed a previous decision of a delegate of the Secretary, Department of Family and Community Services ("the Respondent"), dated 13 January 2000 and that of an authorised review officer dated 22 February 2000, that Bruce Ivery ("the Applicant") is not eligible for a disability support pension. The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 17 May 2000.

A hearing before the Tribunal was scheduled for 1 February 2001.  In his letter to the Tribunal of 24 January 2001, the Applicant requested the hearing be cancelled as in his view the Respondent was misrepresenting, or not understanding, medical evidence.  By telephone on 1 February 2001, the Applicant requested the Tribunal conduct the review and make its decision on the papers before it.  The Respondent agreed with this request.
The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"), letters from the Applicant to the Tribunal dated 7 September 2000, 31 October 2000 and 24 January 2001, and the Respondent's statement of facts and contentions dated 3 November 2000.

ISSUES BEFORE THE TRIBUNAL AND LEGISLATION
The issues before the Tribunal are whether the Applicant has a physical, intellectual or psychiatric impairment that is assessed at 20 points or more under the impairment tables in Schedule 1B of the Social Security Act 1991 ("the Act") and if so, whether he has a continuing inability to work because of that impairment pursuant to the conditions in subsections 94(2) and (3) of the Act.
Section 94 of the Act states, relevantly:

"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)the health secretary has informed the secretary that the person is participating in the supported wage system administered by the health department, stating the period for which the person is to participate in the system; 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)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

…

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 two year; 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)For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market."

Sub section 100(3) of the Act states:

"If:       

a)a person lodges a claim for a disability support pension; and

b)the person is not, on the day on which the claim was lodged, qualified for a disability support pension; and

c)the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;

the person's provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia."

Impairment is assessed against the work related Impairment Tables at Schedule 1B of the Act. The introduction to the Tables states, relevantly:

"…

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.  These Tables are function based rather than diagnosis based…

3.These tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work…

4.A rating is only to be assigned after a comprehensive history and examiniation.

…

5.        The condition must be considered to be permanent…
…
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 judgment 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.
…"

BACKGROUND
The Applicant is aged 52.  He completed the leaving certificate in 1966, and was subsequently employed as a bank clerical manager in the Bathurst/Orange area until 1986, when he took up full-time self employment as a newsagent.  From 1988 to 1995 he was employed as an insurance manager.  He subsequently became a self-employed driving instructor on a part-time basis from 1995 to 1998, during which time he moved to Sydney.  He has not worked since April 1998.  Over the years, he has undertaken a number of courses to gain specialist qualifications in management, insurance and driver training, his most recent being to gain a real estate certificate in 1998.  He apparently lives alone, and at the time of the lodgment of the claim was in receipt of a social security payment.
In his claim for the disability support pension, submitted on 11 October 1999, the Applicant stated that he did not think he would be able to return to work for more than two years.  He listed his illnesses/disabilities as follows:

"1.Bullet injury to both left and right legs.  Bullet lodged in right thigh, causing movement disability since 16 March 1963.

2.Back scoliosis disability occurs daily to spine since 1969.

3.Lower back spinal disc rupture since 7/92 causing movement disability." 

(T4, P54)

The Applicant further described the effect of these disabilities:

"My back pain and disability is controlled with periods of rest, daily, and medication in the form of digesics, valium and voltaren.  I have been advised to endure the pain and disability as long as possible as an operation may be needed at a future date to correct the lower back disc disability.  The scoliosis is a back muscular cramp disability and is controlled with the medication and mild exercise.  Other conditions also complicate the lower back disability including drop-foot and numbness in the legs due to the disc abnormality.  The bullet disability injury (resulting from a shooting accident) is constantly present when walking and moving and may need to be removed if the disability deteriorates."          (T4, P59)

1. The claim was refused by the Respondent on the basis that the assessed impairment rating under Schedule 1B of the Act was 10 impairment points. In reviewing this decision, and at the request of the Applicant, the Respondent sought further advice from the treating general practitioner, Dr Campbell (T19). Dr Campbell's telephone response (T22) was to the effect that he had no further detailed comment, and that he had referred the Applicant to an orthopaedic specialist. The primary decision was affirmed at review on the basis that the Applicant could not meet the conditions of subsection 94(1)(b) of the Act in respect of a minimum of 20 impairment points, nor 94(1)(c)(i) regarding a continuing inability to work. Subsequently the SSAT affirmed the decision on the basis the Applicant did not meet the conditions of subsection 94(1)(b) regarding impairment points. The SSAT did not proceed to consider the matter of subsection 94(1)(c)(i).
   MEDICAL REPORTS

2. The T documents include a number of medical reports relating to 1992, when the Applicant was resident in the Bathurst/Orange area. His general practitioner, Dr Rowse, referred him to Dr Burgess, orthopaedic surgeon, in July 1992 for investigation of "his history of ten years of intermittent low lumbar back pain". Dr Burgess understood these "attacks apparently occur every couple of years, last a couple of weeks and go away", and that they are best treated by rest, voltaren and valium. He opined that recent X-rays were normal, but that a CT scan was necessary as "it looks as though he has prolapsed a disc". (T6)

3. Following a CT scan by Dr Neale (T7), Dr Burgess reaffirmed his view that the Applicant had a ruptured disc and sought a second opinion from Dr Hargraves, orthopaedic surgeon.  The latter variously states (T9) that "there has been no significant radiation of the lower limbs", that the "scoliosis" referred to by the Applicant "suggests some sort of sciatic tilt" and that "the range of back movements is somewhat limited".  He considered the CT scan to be "impressive, with a huge and almost certainly sequestered disc fragment sitting behind L4/5 and extending down towards L5/1", but opines that "an epidural steroid injection might well obliterate his pain and possibly improve the fairly low degree of weakness that he now exhibits".

4. Further referral to Dr Gordon, consultant neurologist, suggested that the Applicant's condition had improved with the epidural steroid, with some weakness evident in the left leg functions.  There was also confirmation from a nerve conduction study of a "severe left L5 nerve root lesion" (T10).  Dr Burgess concluded in his report to Dr Dowse of 6 August 1992 that disc prolapse was an agreed diagnosis, and that conservative treatment was appropriate (T12).

5. There are no further medical reports available to the Tribunal until the Treating Doctor's Report, dated 16 December 1999, by Dr Campbell.  Noting that the Applicant had become his patient some four weeks previously, Dr Campbell diagnosed postero-lateral herniation of L4/5 disc with clinical features of back pain with weakness of the left leg.  He also reported the bullet in the right thigh anteriorly, causing some pain occasionally.  Dr Campbell considered these conditions to be long term and stable and that the Applicant would not be able to return to work within two years.  Whilst not otherwise evident from the papers, the SSAT decision notes that Dr Campbell was referring the Applicant to an orthopaedic surgeon (appointment in June 2000).  The Applicant refers in his letters of 31 October 2000 and 24 January 2001 to a report by Dr Hudson, orthopaedic surgeon, but no such report is before the Tribunal.

6. The absence of such a report raises the issue of its possible relevance, depending on what material and conclusions it might contain in respect of the period under assessment in of this claim. Section 100(3) of the Act states in effect that the Applicant has a three month period, starting immediately after the day on which the claim is lodged, to become qualified for a disability support pension. Following Re Pirie and Department of Social Security (AAT11505, 20 December 1996), additional medical conditions raised subsequent to that period, and therefore not subject to the original claim, would be considered under a new claim and assessed and rated accordingly under that new claim.

7. On 11 January 2001 Dr Lovett-Iskander of Health Services Australia undertook a medical assessment of the Applicant for Centrelink (T14).  He confirmed the conditions of postero-lateral herniation of L4/5 disc, bullet in the right thigh and a left sided sciatica.  He summarised his conclusions thus:

   "…
   On examination he was mobile with symmetrical gait, with peroneal wasting of the left leg of 1.5cm and mild foot drop, ankle jerk was reduced with other DTRs well preserved.  SLR was 90 degrees bilaterally, he was able to toe and heel walk.  Forward flexion his fingertips reached midshins and sideward flexion knee high.   He declined to squat but waas [sic] able to kneel.  He was able to sit through the interview reporting that he had 2 Digesics this a.m.  He lives on his own, he can walk for ½ hour, sit > 2 hours and go to the movies, stand ½ hour.

   He is independent in daily functioning avoiding lifting > 5 kg, vacuum cleaning and gardening.  Based on presentation today, he has work related impairment of 10%.
   He is medically fit to work in sedentary light duties where prolonged weightbearing, benading [sic], heavy lifting/carrying > 5 kg, twisting of the spine, frequent climbing of the steps/stairs and prolonged postures with inability to vary are not required (managerial position, console operator, telemarketer, sales assistant, administrative duties).  Vocational rehabilitation program is not essential as he has sufficient transferable skills."

8. Dr Lovett-Iskander assessed the impairment rating for postero-lateral herniation of L4/5 disc under Table 5.2 in Schedule 1B of the Act as 10 impairment points, and for bullet in the right thigh under Table 3 as nil impairment points, a total rating of 10 impairment points. A file note by the Respondent seemingly dated 11 January 2000 (T16) refers to the Applicant's concerns relating to the side effects of medication on his ability to work. Dr Lovett-Iskander notes in his assessment report that the Applicant takes voltaren, digesic and valium. Whilst he states "dependency on digesic cannot be excluded", he makes no comment as to any adverse effects that might result from the medication. In response to a later request for advice from the Respondent, Dr Lovett-Iskander is quoted as advising that "people who take valium over a long period of time, would adjust to it and learn to function normally" (T21).

18.An ultrasound of the abdomen and a CT scan of the lumbar spine was undertaken at Pittwater Radiology on 12 January 2000. (T17).  The results of the former were assessed as normal, and the lumbar scan revealed that:

"…
At L4/5, there is generalised bulging of the intervertebral disc.  Some calcification extends down to the left of the midline in the vertebral canal posterior to the L5 vertebral body.  There is only minor deformity of the thecal sac at this level.'

APPLICANT'S SUBMISSIONS

1. The Applicant's submissions to the Tribunal, by way of the three letters referred to in paragraph 3 zbove addressed the following issues:

   ·    That Centrelink and Health Services Australia failed to acknowledge the medical opinion of the treating doctor.  This included the long term nature of the conditions and the views of Dr Hudson in a written report in June 2000, particularly in regard to "chronic back pain", and "clinical segmental instability" and the resultant inability to work the required 30 hours per week;

   · That in accordance with the option provide at paragraph 8 of Schedule 1B of the Act, Table 20 was more appropriate than Table 5.2 for the assessment of the level of disability resulting from chronic back pain;

   ·    That four conditions exist, as defined in a further medical review form completed by the Applicant and forwarded under cover of his letter dated 31 October 2000.  Those conditions are bullet injury to both the left and right legs, warranting in his view a 10 impairment point assessment under table 4; chronic lower back pain and intermittent spasms warranting a 30 point assessment under Table 21; back disc L4/5 instability of joint and nerve root dysfunction warranting 40 points under table 5.2 and drug dependency warranting 20 points under Table 7; and

   ·    That the Respondent's facts and contentions are inconsistent with the latest medical evidence.

RESPONDENT'S SUBMISSIONS

1. The Respondent's submissions are as stated in the statement of facts and contentions dated 3 November 2000. The Respondent accepts that the Applicant has a permanent medical condition involving his lower back and that he therefore satisfies subsection 94(1)(a), but disputes "that he has an impairment rating of 20 points or more, and if so, whether he has a continuing inability to work".

2. In respect of the lumbar spine, the Respondent draws on the diagnosis of the treating doctor and that of the Dr Lovett-Iskander.  It was submitted that Table 5.2 is appropriate for assessment and, on the basis of the assessment by Dr Lovett-Iskander in respect of a 25% reduction in the range of movement, and the evidence given by the Applicant to the SSAT in respect of walking, sitting and standing, it was submitted that the impairment rating is 10%.

3. In respect of the effect of the bullet lodged in the right thigh, the Respondent submitted that a rating of nil points under Table 4 is appropriate, based on the statements by Dr Campbell that there was "some pain occasionally", (T13, P76) and Dr Lovett-Iskandar of "occasional pain" and "full range of movement."

4. The Respondent submitted that there is no evidence of drug dependency, no documented history and no suggestion that taking the prescribed medications has led to a functional loss or treatment for any condition. The Respondent referred the Tribunal to paragraph 4 of the introduction to Schedule 1B of the Act, wherein there is a requirement for a "comprehensive history and examination" before a rating can be assigned. It was submitted that no such evaluation has been undertaken. Hence the Respondent submitted that a nil impairment rating under Table 7 is appropriate. In summary the Respondent submitted that the Applicant has an impairment rating of 10 points and does not meet the criterion in subsection 94(1)(b).

5. Finally, the Respondent submitted that whilst the Applicant would be restricted in what work he could undertake he would, on the evidence, be fit for light sedentary duties and therefore does not have a continuing inability to undertake work in accordance with the conditions of section 94 of the Act.
   ANALYSIS OF EVIDENCE AND FINDINGS

1. The medical evidence available to the Tribunal is that of various specialists in respect of lumbar problems, reports by the treating doctor, Dr Campbell, following an initial consultation in November 1999, and the subsequent medical assessment by Dr Lovett-Iskandar for Centrelink. Further reports by Dr Campbell confirm his earlier diagnoses, but also relate to other conditions raised by the Applicant. The Applicant gives opinions on his conditions in the three letters to the Tribunal already referred to, and makes reference to the opinions of Dr Hudson, from whom no report was received by the Tribunal. Taking account of the implications in subsection 100(3) of the Act in respect of the period of assessment, claims in respect of different medical conditions would seem to be the subject of a new claim and relevant assessment. Hence the Tribunal must consider the issues on the evidence relevant to the period of assessment.

2. In terms of medical conditions relating to the degree of permanent impairment, Dr Campbell provided his diagnoses and assessed that the Applicant would not be able to return to any full-time work (that is at least 30 hours per week) for more than two years. Dr Lovett-Iskandar substantially agreed with those diagnoses, but on the evidence presented to him in examination, considered that the Applicant had good transferable skills and was medically fit to work in sedentary light duties, the nature of which he defined. The Tribunal accepts that the Applicant has postero-lateral herniation of L4/5 disc causing lower back pain and a bullet lodged in the right thigh, and thus meets the requirements of subsection 94(1)(a) of the Act.

3. On the evidence in the papers and the responses provided to Dr Lovett-Iskandar, particularly in terms of the Applicant's ability to walk, sit and stand, and taking account of the opinions in the assessment period of Dr Campbell and that the Respondent sought further advice from Dr Campbell in January 2000, the Tribunal is in accord with the extant assessments of 10 points for postero-lateral herniation of L4/5 disc under Table 5.2 and Nil points for the bullet in the right thigh under Table 3.

4. The Tribunal turns to the relevance of Table 20 in this matter, as argued by the Applicant.  The Tribunal notes the qualifications in respect of the use of this table by medical officers where the otherwise relevant table (Table 5.2 Thoraco–lumbar-sacral spine) may be considered to underestimate the level of disability, and that "medical reports and the person's history" should consistently indicate the presence of chronic entrenched pain.  Notwithstanding that the available history identifies long term back problems, there is insufficient medical evidence and history to support such a requirement.  On the evidence, the Tribunal finds that Table 5.2 adequately deals with the conditions of the Applicant.

5. Having determined that the Applicant does not meet the legislative requirements of subsection 94(1)(b) of the Act, he does not meet the legislative requirement of section 94 in its entirety and hence does not qualify for a disability support pension.

6. It is therefore not necessary to formally consider the question of the ability of the Applicant to undertake work pursuant to subsection 94(1)(c).  However on the assessment of Dr Lovett-Iskander at the time of the claim, and the evidence given to the SSAT, the indications are that he could undertake light work.  In making that comment, the Tribunal takes account of the considerable experience of the Applicant in work situations such as the clerical and insurance environments and that he has recently obtained a real estate certificate.  This is supported by Dr Lovett-Iskandar who assessed that the Applicant has "sufficient  transferable skills".

7. For the reasons set out above, the Applicant is not qualified for the disability support pension.  The decision is therefore affirmed.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of

Rear Admiral A R Horton AO, Member

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

Date of Decision  
Representative for the Applicant   Self-represented
Advocate for the Respondent       Ms H Schuster