Jackson and Secretary, Department of Family and Community Services
[2005] AATA 746
•5 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 746
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1179
GENERAL ADMINISTRATIVE DIVISION ) Re PETER JOHN JACKSON Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal REAR ADMIRAL A R HORTON AO Date5 August 2005
PlaceSydney
Decision The decision under review is affirmed
[sgd] Rear Admiral A R Horton AO
Member
CATCHWORDS
SOCIAL SECURITY - Eligibility for disability support pension - application of section 94 of the Social Security Act 1991- permanent impairments – rating of impairments under Schedule 1B – whether rating meets the total impairment rating of 20 points – adequacy of medical evidence – total impairment rating of 15 points under table 20 – decision affirmed applicant not eligible for disability support pension
Social Security Act 1991 (Cth) – section 94, Schedule 1B
Social Security (Administration) Act 1999 – schedule 2 part 2
REASONS FOR DECISION
5 August 2005 REAR ADMIRAL A R HORTON AO 1. This is an application to the Administrative Appeals Tribunal (“the Tribunal”) to review a decision of the Social Security Appeals Tribunal (“the SSAT”) of 9 August 2004 that affirmed a decision of an Authorised Review Officer (“ARO”) of Centrelink on 24 June 2004 that Peter John Jackson (“the Applicant”) was not eligible for the Disability Support Pension (“DSP”). The original decision in this matter was made by Centrelink on 9 June 2004.
2. At a hearing before me at Wollongong on 4 July 2005, Mr Jackson was self represented and gave evidence. Ms Jane Green, an advocate of the Legal Services Branch, appeared for the Secretary, Department of Family and Community Services (“the Respondent”). I took into evidence the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (“T docs”), a letter to the Tribunal from the Applicant dated 4 April 2005, forwarded under cover of an explanatory letter from Legal Aid also dated 4 April 2005 (Exhibit A1), a Medical Assessment by Dr E Wassenaar dated 4 May 2005 (Exhibit R1) and the Respondent’s Statement of Facts and Contentions dated 22 June 2005 (Exhibit R2).
BACKGROUND AND LEGISLATION
3. On 14 April 2004, Mr Jackson lodged a claim with Centrelink for the DSP, listing his impairments as fractured vertibra, knee reconstruction and artrhritis. At that time he was in receipt of Newstart Allowance; he was still in receipt of that allowance at the time of the hearing, with no requirement to meet the job search conditions of that allowance.
4. Accompanying his claim was a Treating Doctor’s report by Dr Ken Le dated 8 April 2004. Dr Lee indicated that Mr Jackson had been his patient since the previous month, and had been a patient in the practice for the previous year. Dr Le diagnosed osteoarthritis and compression of the spine, that latter have followed a motor vehicle accident some years before. His report is sparse, but he considered Mr Jackson to have difficulties with bending and standing for long periods, the condition to persist for more than 24 months.
5. Centrelink referred Mr Jackson for a Work Capacity/Participation Assessment which was carried out by Ms Melanie Boon, a rehabilitation consultant of Advanced Personnel Management (APM) at Wollongong. Her assessment was that Mr Jackson’s medical condition in respect of his back and knee led to some physical limitations in work options, and vocational training and voluntary work would be of assistance. She noted his limited consideration of potential work options, few transferable skills, and his domestic situation and the loss of custody of his children. She assessed his work capacity without any intervention programme as currently 8 – 14 hours per week, increasing to 30 plus hours within 6 – 24 months, and made recommendations as to work she considered suitable. Ms Boon recommended an impairment rating of five points under Table 5.2 (thoraco-lumbar-sacral spine) of the Impairment Tables at Schedule 1B of the Social Security Act 1991 (“the Act”). She made no recommendation as to any rating for a knee condition.
6. Based on that report, Centrelink rejected the claim for DSP, this decision being affirmed by an ARO. The SSAT in turn affirmed the decision, assigning a total impairment rating of 15 points under Table 20 (miscellaneous conditions) of the Impairment Tables for back and right knee pain. In the course of his evidence before the SSAT, Mr Jackson referred to the effects of an earlier fracture of his back, right ankle and knee problems, to being “riddled with arthritis”, cramps in his hands and asthma which comes on in spring and sometimes in summer. The SSAT did not allocate any points from the Impairment Tables for the latter conditions, as it is considered these had not been fully diagnosed, treated and stabilised. The only medical reports before the SSAT other then that of Dr Lee were those of Dr Herbert Ho of IRG Medical Imaging and Dr Ian Schmanan of Southcoast Xray, both originating in early 2002, and respectively referring to the left forearm and the left hand. The former showed no bony lession or fracture, the latter an infected inflammatory tenosynovitis.
7. Following his application for review by this Tribunal, Centrelink referred Mr Jackson for examination by Dr E Wassenaar, Medical Adviser to Health Services Australia (“HSA”). Her report of 4 May 2005, that is some 13 months after lodgement of the claim, is before me (Exhibit R1) for consideration. Suffice to note at this point that Dr Wassenaar diagnosed lumbar/thoracic back pain, a knee/ankle condition, hand cramp/shoulder injury and asthma, and assessed current work capacity as 30 plus hours per week in a light/sedentary environment. The only recommended impairment rating was ten points under Table 5 for loss of lumbar/thoracic movement.
8. Qualification for the DSP is that prescribed in section 94 of the Act, which relevantly states:
"94.(1) A person is qualified for the 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;
...
(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, ...
...
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 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.
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 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."
9. Pursuant to Schedule 2 Part 2 of the Social Security (Administration) Act 1999, Mr Jackson must qualify for the DSP in the period between the date of lodgment of the claim, that is 14 April 2004 and a date 13 weeks thereafter, that is 14 July 2004.
EVIDENCE
10. Mr Jackson, born in 1941, lives in rented accommodation in Port Kembla. He gave evidence that in 1985, when working as a storeman in a warehouse for Metal Manufacturers Pty Ltd, he had a motor cycle accident and suffered a smashed right knee and right femur and a punctured lung, leading to a month in hospital and the use of a walking stick for the subsequent three years. He did not suffer a back injury in that accident. Almost a year after the accident, he returned to work on light duties in the firm’s wire mill, having further operations some six months later to remove staples and metal pins. He subsequently worked in a different mill but found he could not cope with the bending and lifting, and for a period worked in the machine shop and as a fork lift driver. In 1987, he had what he believed to be cruciate ligament problems, and underwent an arthroscopic intervention. This cost in the order of $20,000 and he opined that it was the last time he would undergo an operation.
11. During that period, he had problems with drinking, being convicted of a number of driving offences, and serving a prison sentence. At one point, he bought a car, had an accident on the way to work and fractured two vertebrae, being hospitalised for three weeks for bed rest. His evidence in respect of these accidents is somewhat at variance in terms of time and dates with that recorded in the SSAT decision, but nothing hangs on those differences. In evidence he stated that he suffered a fractured ankle in 1993, resulting I believe from another motor cycle accident, and resulting in a plaster cast for three months.
12. Mr Jackson undertook a $2000 course to qualify as a crane/bulldozer/grader driver, with two weeks of that course being funded by the Commonwealth Rehabilitation Service (“CRS”). He subsequently found full-time employment hard to come by and undertook casual work, which he continued to 1994. The following year he obtained employment with Sutherland City Council, ostensibly to operate earth moving machinery. However the Council usually employed him on manual labouring tasks, giving, as he put it, the mechanical tasks to contractors. As this impacted on his back and knee conditions, he left the council’s employ and has not worked since. That cessation of work coincided with his difficulty in coping with work, advice by his doctor that in view of his pain he should stop work, and the birth of his first child.
13. As to his present medical conditions, which he sees as being those similar to his conditions in the relevant period under review, he described considerable knee pain and suffering, “some days hard to live with”, to the extent that about three months ago, he went to Wollongong Hospital, where he was given morphine. He was not admitted but returned home that evening by train. The hospital staff made no particular comment about his knee, but he is not prepared to have any further operations. That said, he had enquired about a knee replacement, but considered such surgery was more for an older person, and for that reason and because it was not yet bad enough, he did not want to consider that option. These days, he is not walking as far as he used to, and less so now than a year or more ago. He stated that he could walk to the shops and return, a distance of about one kilometre each way. After his accident in 1985, workers compensation made physiotherapy treatment available for about three years, but he has had none since.
14. He referred to three occasions of attendance at hospital, but as the problem was muscular, nothing could be done. He spoke of constant back pain, and an inability to lift any heavy items and problems lifting his children. He takes panadeine forte when absolutely necessary, but does not like to resort to any medication and he thinks pain killers are addictive. In his opinion all medications have side effects. He was prescribed viouxx at one point but it made him ill. His arthritis affects the use of his hands – he cannot hold a spanner nor write for long - and his general mobility. And his asthma requires use of a preventer and reliever “when I have to”. He drives, his limit being about two hours due to back pain and hand cramps. He is presently self sufficient in that he lives by himself in a flat, but has difficulty with the steps, it being on the second floor of the building. In summing up his situation, he stated that on a good day, he can do what is necessary. On bad days, he copes “with difficulty”.
15. He referred to the opinion of Dr Le that he is “riddled with osteoarthritis”, but he did not note any details supporting that opinion. Nor did he consider that Dr Le provided him with sufficient advice. Mr Jackson last saw Dr Le in April 2005; he has seen no other doctor since then other to have a flu injection at the medical centre. In 2004, he was required to take weekly drugs tests, this problem resulting from the break up of his marriage. There are minimal medical records before me, and Mr Jackson stated that in the last few years, he has seen different doctors three or four times. But he does not believe he is given personal service, and he has no success in obtaining medical records. He believes the current system is not up to the standard of the workers medical centre that he was able to attend in the past.
16. Resulting from the accident when on his way to work, Mr Jackson received a lump sum compensation in 1992, from which he purchased a home in Perth Road, Port Kembla. He married in 1994, the marriage resulting in four children, the eldest now being nine years of age, the youngest three. He started caring for the children from the birth of his first child, while his wife worked. They separated in 2002, and a divorce has been finalised. His former wife has custody of the children, and he has rights to have them with him every second weekend. A further arrangement, which he stated was very much to his satisfaction as he wants to see them as often as possible, is that he also has custody of the children on Tuesday and Thursday each week, picking them up by car in the morning and dropping the elder children at school, whilst the younger children stay with him for the day. In the afternoon, he collects the elder children from school, and he returns all four children to their mother at 7 pm that evening. On his allocated weekend with the children, he may take them to the farm of a friend.
17. His former wife works every day and when asked what arrangements were in place on the remaining days of the week for looking after the children, he stated that they went to her mother, an arrangement with which he was clearly not comfortable. Throughout, it was made very clear to me that Mr Jackson found the matter of the breakdown of the marriage and the uncertainty of having a full and loving ongoing relationship with his children, quite distressing.
18. Mr Jackson professed unhappiness with the manner in which his medical conditions had been assessed in this claim. He could not understand how the original decision was made on the advice of a non-medical person (Ms Boon) and had formed the belief that Dr Wassenaar, when examining him “for about 20 minutes” a year later, had been “instructed” as to which table to use. (The latter impression seemingly arose from a remark at a tribunal conference some time before the hearing). He had been referred to a CRS case worker, but nothing came of this referral, his belief being that the case worker was not interested as he had been told to apply for DSP. But apparently CRS offered a pain management course which he understood from a friend provided no real benefit, and in any event, he was precluded from attending such a course because of his commitment to the children two days each week.
19. Mr Jackson is somewhat critical of Centrelink to the extent that he receives “not much help” and contradictory advice from different offices. He expressed concern that whilst it is seemingly accepted that he cannot undertake heavy work, he receives no realistic advice as to what other job or career opportunities might be available. In considering light work, he would have to take account of his inability to walk or stand for long periods, or to drive a vehicle for long periods, or the problems of getting in and out of a vehicle. As to the suggestion by the Respondent that given his interest in his children, a youth worker position might be considered, he accepted that idea, but considered it impracticable given his criminal record. As to whether he could return to work after some ten years, he replied “it is hard to say”. Perhaps in the context of his problems with handling his domestic circumstances and his dealings with authorities in seeking the DSP, Mr Jackson referred to depression and that he had been prescribed some medication. He referred to a diagnosis of depression in his written reasons accompanying his application for review, but there are no medical reports on this condition before me.
20. Exhibit A1 is a letter dated 4 April 2005 from Mr Jackson to the Tribunal. It was forwarded under cover of a letter from Mr James Dagnall, solicitor in the Legal Aid Commission of New South Wales. Mr Dagnall notes that he assisted Mr Jackson to prepare his letter given his low level of literacy, and because “Mr Jackson recently applied for legal aid in respect of the above matter. I would have granted legal aid were it not for the fact that he is not within the Commission’s Income and Assets Test”. In his letter, Mr Jackson recounts his work and medical history which broadly accords with his oral evidence, although he does state that he was employed as labourer prior to his motor cycle accident in 1985. He re-affirms his concerns at the report by Ms Boon, given she is not a doctor and “did not seem to understand the extent of my problems”. He considers that the impairment rating of 15 points under Table 20 by the SSAT underrated the effect of his medical conditions on his ability to “self-care”, whereas he does have severe symptoms which affect his everyday life and his ability to cope.
21. Finally, and in respect of medical evidence, reference has been made to the report of Dr Wassenaar, in which she assessed impairment at ten points under Table 5 relating to loss of one quarter of normal lumbar/thoracic spine movement, with constant pain. She noted that treatment of low back pain was by medication only, and then only panadeine forte occasionally, and that there had been no specialist intervention. She noted that after taking a pain killer, Mr Jackson may have had to lie down for one half to two days. Such serious limitation was not given to me in evidence. The thoracic compression fracture was treated by resting, but there had been no further treatment. In both cases, she noted gradually increasing pain and some limitations in moving, walking and using stairs.
22. In respect of the knee, Dr Wassenaar noted the history of the injury and the complaint of constant pain worse in cold weather and the need to concentrate in order to avoid limping. The fractured ankle gave “a bit of pain”. Hand cramps and a right shoulder injury were untreated and respectively reduced hand strength and intermittent pain and range of movement. The conclusion of Dr Wassenaar was “he presented very well today with no pain behaviour at all. I do not feel that he is incapable of suitable work and thus regard him as capable of fulltime light/sedentary work.”
CONSIDERATION AND DECISION
23. The Respondent concedes that Mr Jackson has permanent impairments as diagnosed by Dr Wassenaar of lumbar/thoracic back pain, right knee/ankle pain, hand cramps/shoulder injury and asthma. The report by the Treating Doctor, Dr Le contains, as previously noted, and also commented upon by Dr Wassenaar, little information. There are no other medical reports before me. Whilst Dr Wassenaar’s examination took place some thirteen months after the claim was lodged, some ten months outside the period within which the conditions of section 94 of the Act must be met, and somewhat surprisingly after the original decision on the claim and review by an ARO, I accept that these conditions, on the evidence given by Mr Jackson, were present within the claim period, and hence the conditions of subsection 94(1)(a) of the Act are met.
24. Subsection 94(1)(b) requires that the total impairment be of 20 points of more as determined from the Impairment Tables at Schedule 1B of the Act. Ms Boon in her Work Capacity Report recommended a rating under Table 5.2 of five points for the back condition on the basis of restricted movement and pain, and no points under Table 4 for a knee condition. I acknowledge the concerns of Mr Jackson as to her qualifications to make such recommendations, but I take notice of those recommendations which are appropriately made by a rehabilitation specialist. On examination, Dr Wassenaar similarly rated back pain under Table 5 at five points, but gave a nil rating under Table 4 for the knee and ankle condition.
25. The SSAT, without benefit of Dr Wassenaar’s report, formed the view that neither Table 5.2 nor Table 4 adequately rated these impairments, and considered Table 20, miscellaneous conditions, to be more appropriate. Table 20 in the context before the SSAT addresses “chronic fatigue and pain” and a rating of 15 points was given. No points were awarded in respect of cramps or asthma as these conditions were not considered to be “fully diagnosed, treated and stabilised” as required for consideration vide paragraph four of the Introduction to the Impairment Tables.
26. In considering the appropriate tables to use in respect of back and knee pain, paragraph eight of the Introduction to the Impairment Tables requires that in general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it, by reference to the appropriate table. Notwithstanding that I accept the seriousness of the injuries suffered in the accidents previously referred to, in the absence of adequate medical reports, and on the evidence given to me, that is somewhat too difficult to assess in the case of Mr Jackson’s conditions, other than in reference to a loss of range of movement under table 5.2. In any event, the introduction to the Tables provides that where opinion is that the relevant table for a condition “underestimates 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 would otherwise be used to assess the loss of function to which the pain relates”. I consider it appropriate to rate the conditions of lumbar and right knee pain under Table 20.
27. Relevantly, Table 20 defines the criteria for ratings as follows:
“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.
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 or 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 tasks 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 absence from work.”
28. I accept that resulting from accidents, Mr Jackson was unable to work in his previous occupations, and that whilst he undertook training to qualify as a machine operator, he could not obtain full-time employment in that field and casual work was limited. So too, his pain was aggravated by the conditions in that environment. I further accept the difficulties experienced in his marriage breakdown, the sale of the family home and his desire to have maximum access to his children. Keeping those issues in perspective, it is clear that whilst back and knee pain effect his day to day life, he is coping well. He is living independently, is self sufficient in looking after himself, and the only evidence he gave as to limitations in those circumstances related to some difficulty in coping with the stairs to his accommodation.
29. He can drive for up to two hours, and he drives, without apparent difficulty, to pick up his children each Tuesday and Thursday, and on alternate weekends, taking them to and from school, and on occasions to a friend’s farm. He gave no evidence that he has problems coping with the children on those occasions. He can walk for a reasonable distance, before pain requires him to rest. Only occasionally does he see a medical practitioner, there are no specialist reports before me, and Mr Jackson only occasionally take panadeine forte to counter pain. He is on no other medication. In all the circumstances, his back and knee conditions have an impact on his daily life, but not to the extent that a rating of 20 points under Table 20 can be considered. Hence I consider a rating of 15 points under that table to be appropriate for those conditions.
30. As to the conditions of hand cramps/shoulder injury and asthma, these must be considered under Tables 3 and 20 respectively. In the case of the former, I accord with the view of the SSAT that the condition has not been investigated, treated and diagnosed. The report of his Treating Doctor makes no reference to these conditions; there is no evidence of treatment or prognosis. In the circumstances, a nil rating only can be given. As for asthma, and on the evidence given me, the previously assessed rating of 15 points under Table 20 remains relevant. The total impairment rating pursuant to the Impairment Tables at Schedule 1B of the Act is therefore 15 points and the conditions of subsection 94(1)(b) of the Act, which requires an impairment rating of 20 points or more, has not been met. Accordingly, Mr Jackson is not eligible for the disability support pension.
31. It is not necessary to address the matter of whether Mr Jackson has an inability to work, pursuant to subsection 94(1)(c) of the Act, that would prevent him doing any work within the next two years, or to undertake vocational training, but I make the following comment. His loss of lumbar movement will preclude his ability to undertake heavy manual work, as noted by Dr Wassenaar, but there is no evidence before me to suggest that he could not undertake light work, albeit I accept that his level of literacy is not high and this may narrow the options. I acknowledge his view that Centrelink and the SSAT have not realistically suggested what that work might be, but he himself does not appear to be interested in considering options. Indeed, his admirable desire to maximise his time with his children, must inevitably leave him in a position where he would consider any work would only be of a casual nature. Whilst he remains in receipt of Newstart Allowance without the requirement to meet a job search commitment, he is able to cope. It would seem that notwithstanding the cost, should he again claim the disability support pension, adequate medical documentary support would be of assistance.
32. The decision of the SSAT dated 9 August 2004 that Mr Jackson is not eligible for the disability support pension is affirmed.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO, Member
Signed: L Feely
AssociateDate of Hearing 4 July 2005
Date of Decision 5 August 2005
Representative for the Applicant Self-representedAdvocate for the Respondent Jane Green
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