Johnston; Secretary, Department of Education, Employment and Workplace Relations and

[2008] AATA 188

Administrative Appeals Tribunal

DECISION AND WRITTEN REASONS FOR ORAL DECISION [2008] AATA 188

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1577

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

Applicant

And ELIZABETH JOHNSTON

Respondent

DECISION

Tribunal   Senior Member, Mrs Josephine Kelly

Date of decision                22 February 2008

Date of written reasons    6 March 2008

Place  Sydney

Decision The decision of the Social Security Appeals Tribunal dated 10 October 2006 is affirmed.  

..................[sgd]........................

Senior Member, Mrs Josephine Kelly

WRITTEN REASONS FOR ORAL DECISION

1. After the hearing of this matter at Newcastle, the terms of the decision made and the reasons for that decision were stated orally at Sydney. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited to the extent necessary to ensure clarity of expression.  The reasons for the Tribunal’s decision is annexed, and is furnished to the Applicant and to the Respondent. 

CATCHWORDS

SOCIAL SECURITY – disability support pension – conditions claimed – anxiety and depression – lower back / lumbar pain – arthritis in shoulders, hips, knees – carpal tunnel syndrome – assessed within 13 weeks from claim - whether impairment rating of 20 points or more – whether continuing inability to work – held 20 points – continuing inability to work – reviewable decision affirmed

Social Security Act 1991 s 94, Schedule 1B

WRITTEN REASONS FOR ORAL DECISION

6 March 2008 Senior Member, Mrs Josephine Kelly     

1. This is my decision in the matter of the Secretary, Department of Education and Employment and Workplace Relations (who is the applicant in these proceedings) and Elizabeth Johnston. The Secretary seeks the review of a decision made by the Social Security Appeals Tribunal (“SSAT”) on 10 October 2006, which effectively found that Mrs Elizabeth Johnston was eligible for the disability support pension, that is, she satisfied the criteria set out in section 94 of the Social Security Act 1991 (“the Act”), on 15 February 2006, when she lodged her application or within a period of 13 weeks thereafter.

2. The issues are whether Mrs Johnston has 20 impairment points as required by section 94(1)(b) of the Act, and, if she satisfies that criterion, whether she has a continuing inability to work, that is, to perform 30 hours per week of any work or undertake educational vocational training, on-the-job training which would enable her to work within the next 2 years.

3.      Ms Maclean, who appeared for the respondent, argued that Mrs Johnston had zero points and the capacity to work 30 hours per week. 

4. I should note that there is no dispute that Mrs Johnston satisfies section 94(1) (a) of the Act, in that she has a physical and psychiatric impairment.

5.      There are a number of conditions which Mrs Johnston has, but they can be summarised as anxiety, depression, low back pain or lower lumbar pain, arthritis in shoulders, hips and knees and fingers, and an upper limb condition, which is carpal tunnel syndrome. There was also mention of irritable bowel syndrome during the course of the proceedings; however, that clearly was not a condition that was apparent within the 13-week period, and I take no further account of it.  

6.      I note that there were three job capacity assessment reports by Mr Robilliard, physiotherapist.  They were prepared in February 2007, when he saw Mrs Johnston, a review on the papers in July 2007 when he considered further material that had been provided Mrs Johnston, and the final report in October 2007 when Mr Robilliard took into account the report of Dr Vickery, a psychiatrist, who reported on the anxiety condition that Mrs Johnston suffers.

7.      I’ll indicate at this stage that I’ve taken into account all the other evidence in relation to that condition, including that of Dr Dobler, Dr Bonert, Dr Beiers, a rehabilitation and occupational physician, and also the evidence of Mrs Johnston.

8. I accept, as does the department, that that anxiety condition is permanent. However, during the relevant time, I am satisfied that she was only entitled to zero points in relation to condition. I take into account, in coming to that conclusion, in particular, that she was working at the time and her evidence about the incapacity that it has caused, in my submissions, warrants only 0 points under the relevant table, which is Table 6 (Schedule 1B of the Act).

9.      In relation to the Job Capacity Assessment reports by Mr Robilliard, he said that he assessed Mrs Johnston’s condition as it was during the 13-week period.  However, with respect to Mr Robilliard, I don’t accept that he necessarily did that, and I have some doubt about the assessments that he has made.  For example, in his reports, in particular his October 2007 report, he found that the upper limb condition, which was essentially carpal tunnel, and with perhaps some consideration of the arthritic condition in the hands, was confirmed and optimally treated, that is, it was a permanent condition.  That was based, however, quite clearly on the fact that nerve conduction studies have been undertaken and that night splints were being used.

10.     The nerve conduction study and the night splints only occurred in the middle of 2006, that is, outside the 13-week period.  So it was clearly not a matter that could properly be taken into account, and for that reason, I find that the upper limb condition was not fully treated and stabilised, and therefore, that it wasn’t permanent in the period, within the 13 weeks after the application was made.  It is therefore unnecessary to allocate points to that condition. 

11.     In relation to the low back pain, in his treating doctor’s report of 12 March 2006, Dr Dobler wrote that:

Mrs Johnston had a long history of steadily worsening back pain, radiating to both buttocks and she was in constant pain.  It was worse with physical activity.  The current treatment was analgesics and anti-inflammatory medication.  Past treatment had also included physical therapy.

12.     Dr Bonnert, in April 2006, found a loss of a quarter of a range of movement and, again, he found the same in June.  Now, Dr Bonert and Dr Beiers have given 10 points to that condition under the relevant table.  The department’s position is that it was not a permanent condition because there had not been referral to a specialist and no physiotherapy had been undertaken.  In relation to this condition, I am satisfied that it is permanent. 

13.     Although I accept that Dr Dobler said during his oral evidence that physiotherapy might assist in increasing Mrs Johnston’s functionality, relevantly, I am satisfied that, on his treating doctor’s report that in fact she had had physical therapies in the past, that her condition had been fully diagnosed and treated at that time. It may be that at different times it might be helpful in the future, as it was found by Dr Beiers in the beginning of 2007. However, at the relevant time. Dr Dobler has been treating Mrs Johnston since 1993.  He knows her condition well.  On that evidence of his treating doctor’s report, he had provided appropriate treatment.  A diagnosis does not need to be confirmed by imaging before it has been properly or fully diagnosed. 

14. There is no doubt that Mrs Johnston has suffered from this lower back pain and lumbar condition for years, I think back to the 1990s according to Dr Dobler. Therefore, I am satisfied that relevantly that was a permanent condition. I am also satisfied that it does merit 10 points under Table 5.2 of Schedule 1B the Act because there is certainly a loss of one quarter of a normal range of movement as well as back pain or referred pain with many physical activities, with standing for about 30 minutes and with sitting or driving for about 60 minutes. However the evidence is not sufficient to warrant a 20 point determination.

15. There is some difficulty with categorising Mrs Johnston’s condition in relation to the arthritic conditions in her shoulders, hips and knees, and her shoulder and knees in particular. In relation to her lower limbs, the SSAT chose to allocate points for them from Table 4 of Schedule 1B of the Act. I have some difficulty with that because Mrs Johnston’s lower limb condition is a consequence of two things: a lumbar spinal problem with pain radiating down, particularly into her leg to her great toe, plus there seems to be arthritic pain in the knee. Her evidence before me was somewhat inconclusive in relation to any arthritic condition in her legs. She talked about pain in her legs and most of it seemed to be related to the radiating pain from her back.

16.     So, doing the best I can, and I do prefer to adopt the approach of Mr Robilliard in relation to the miscellaneous, if I can call it that, arthritic conditions of shoulders and knees, and so on.  Given the evidence, in relation to those matters, I would accept that Table 20 is an appropriate table. I accept that it is a permanent condition.  I am not satisfied that any further investigation or physiotherapy in relation to the arthritic aspects of Mrs Johnston’s condition would assist her.  However, I note that the evidence in relation to the impact of those conditions is somewhat difficult to establish on the evidence before me, and that is because some of it’s, perhaps, mixed up with the lumbar spine condition and the carpal tunnel condition in Mrs Johnston’s hands.

17.     Just going to the rating under Table 20, nil is relevantly:

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

18.     Then 10 points is:

Mild 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.

19.     Although there is some difficulty in this case, it seems to me that Mrs Johnston does satisfy the 10 points in relation to the arthritic symptoms in her shoulders and knees. I am therefore satisfied that she does have 20 point incapacity in relation to her conditions. 

20.     We then come to the question of her ability to work.  It is the case that she was working something like 20 to 28 hours a week - it varies on whose report that one considers - during the relevant time, and that involved doing physical work.  In terms of the 30 hours per week, there was not a question of whether or not she could do physical work, but rather could she do some other sort of work?  Dr Bonert thought that she could.

21.     Dr Beiers opinion was that it was unlikely that any training would enable Mrs Johnston to work for at least 30 hours per week at award wages or above.  The doctor thought she would have difficulty given her age, and lack of transferable skills in being retrained.  This would make securing employment quite difficult. It is my opinion that Dr Beiers’ assessment is a fair assessment of the likelihood of Mrs Johnston being able to satisfy the criteria in terms of her ability to work. 

22. I note that section 94(2)(a) of the Act provides:

A person has a continuing inability to work because of an impairment if the Secretary is satisfied that the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years.

That is, I am bound to consider only the impairment which is permanent, that is, in relation to the lower back and the arthritis, as I have previously described.

23. Section 94 (2) (b) and (c) of the Act provides further:

(b), either:

(i)        the impairment is of itself sufficient to prevent the person from undertaking education or vocational training or on-the-job training during the next two years, or

(ii)       if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job -- such training is unlikely (because of the impairment) to enable the person to do any work within the next two years.

24.     The type of work that was suggested by Dr Bonert and by Mr Robilliard, in particular, that Mrs Johnston might be capable of included retail sales, cashier and similar sorts of positions. 

25. Given her lower back pain and her inability to stand or sit for prolonged periods, I am satisfied that the impairment satisfies section 94(2) of the Act, and that while she might be able to undertake some educational, vocational training or on-the-job training, it is unlikely, because of the impairment, to enable her to do any work within the next two years.

26.     For those reasons, I affirm the decision under review and the result is that Mrs Johnston is entitled to, and does satisfy the criteria for, a disability support pension.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly.

Signed: Steven Mulipola
Associate

Date of hearing:   20 February 2008

Date of oral decision:  22 February 2008

Date of written reasons:                 6 March 2008

Solicitor for Applicant:  Centrelink Legal Services

Representative for Respondent:   Self-represented