JOSEPH GRIMA and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 537

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 537

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3746

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOSEPH GRIMA

Applicant

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

Respondent

DECISION

Tribunal Mr S E Frost, Senior Member

Date20 July 2010

PlaceSydney

Decision The decision under review is affirmed.

...................[SGD]...................

S E Frost
  Senior Member

CATCHWORDS

Social Security – disability support pension – assessment – demonstrable evidence of impairment - impairment rating.

Social Security Act 1991, section 94

REASONS FOR DECISION

Mr S E Frost, Senior Member       

Introduction

1.      Joseph Grima was born in Malta in 1945.  He left school at the age of fourteen.  He arrived in Australia in 1961 and became an Australian citizen in 1978.  He worked for some years with the Water Board and started his own business in 1977 as a backhoe operator.  He stopped working in 2007 because he had developed back pain and he found it too difficult to sit for long periods operating his machinery. 

2.      In 2009 he lodged a claim for disability support pension (DSP).  His claim form said that his “disabilities, illnesses or injuries” were “lower back” and “shoulder”.  His claim for DSP was rejected.  That rejection was eventually confirmed by the Social Security Appeals Tribunal (SSAT).  He has now applied to this tribunal for review of the decision.

Issues

3.      The central question is whether Mr Grima qualified for the DSP either when he lodged his claim or within thirteen weeks after lodgement – in other words, at any time during the period 27 February 2009 to 29 May 2009 (the “claim period”). 

4. The answer to that question depends on the terms of s 94 of the Social Security Act 1991 (the Act). The Secretary accepts that Mr Grima had a “physical, intellectual or psychiatric impairment” within paragraph (a) of s 94(1) and it is clear that Mr Grima also satisfied paragraphs (d), (e) and (f) of s 94(1) in that he was over 16 years old, he was an Australian resident, and he was not qualified for the DSP under the alternative s 94A of the Act. That leaves paragraphs (b) and (c) for consideration.

5. To satisfy paragraph (b), Mr Grima’s impairment must attract 20 points or more under the Impairment Tables in Schedule 1B to the Act. To satisfy paragraph (c) it must have been the case during the claim period that Mr Grima had a “continuing inability to work”; an expression which is affected by s 94(3) and 94(5) of the Act.

6.      I will deal with paragraph (b) first.

Did the impairment attract 20 points or more?

7.      Mr Grima’s DSP claim form was accompanied by a “Medical Report – Disability Support Pension” completed by Dr T Schindler, who had been Mr Grima’s general practitioner for about 25 years.  The form invites the doctor to give details about “the conditions that have a significant impact on the patient’s ability to function” (the emphasis is as it appears on the form).

8.      In the section entitled “Condition 1 – condition with most impact”, Dr Schindler provided his diagnosis of “lumbar disc prolapse”, and noted that the diagnosis was “confirmed”, rather than “presumptive”.  He provided the following details:

Pain in lower back – restrictions of movement Xray & CT show degenerative changes & disc bulging & canal stenosis

9.      He also noted that the current symptoms were “pain & restriction of movement present all the time”.  In relation to the impact on Mr Grima’s ability to function, Dr Schindler noted that Mr Grima was “unable to lift heavy objects, sit or stand for long periods”. 

10.     “Condition 2” was described as “soft tissue injury to left shoulder” (another “confirmed” diagnosis) with a history of “pain in shoulder several months (18)”.  Although X-ray and ultrasound results were apparently “normal”, there was “pain & limitation of movement”.  Dr Schindler noted the possibility of referral to an orthopaedic surgeon as a future treatment of the condition.

11.     There were three other conditions identified by Dr Schindler on the form but they were said to have only a “mild” impact on Mr Grima’s ability to function.

The back condition

12.     Although this condition was originally assessed as attracting “nil” points in the relevant Impairment Table, the SSAT concluded that in Mr Grima’s case it attracted 10 points under Table 5.2.  The ratings and criteria in Table 5.2 are:

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 seating 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

·we've standing for about 15 minutes and

·with seating or driving for about 30 minutes.

or

Loss of three-quarters of normal range of movement.

FORTYAnkylosis in an unfavourable position, or unstable joint.

13.     A recent, very thorough Job Capacity Assessment (JCA) undertaken by Mr Michael Morris, a Registered Occupational Therapist, confirms the 10-point rating.  The assessment undertaken by Mr Morris was of Mr Grima’s condition as it was during the claim period.  A Range of Movement assessment revealed that Mr Grima has a functional range of movement loss of 31% in his thoraco-lumbral spine, which translates into a loss of one-quarter for the purposes of Table 5.2.

14.     Although Mr Grima says, and I accept, that he suffers unrelenting pain (as was evident through Mr Grima’s continually changing his seating position during the hearing), his condition cannot attract more than 10 impairment points in Table 5.2 unless his loss of range of movement is at least one-half.  Mr Morris’s assessment leaves Mr Grima’s loss of movement well short of that measurement.

15.     On the basis of this assessment, I find that, during the claim period, Mr Grima’s back condition attracted 10 impairment points under Table 5.2.

The shoulder condition

16.     This condition was also originally assessed as attracting an impairment point rating of nil.  The SSAT agreed with that rating.

17.     The original JCA report, dated 4 March 2009, dealt with the condition only briefly, as follows:

Left shoulder pain – onset of work-related pain since 10 yrs ago, having physio on and off 2 yrs ago, has had 6 sessions so far since 01/09.  Has had x-ray and ultrasound 1 wk ago.  Nil medication and no consultation with specialist, monitoring by GP.

18.     Mr Morris’s more recent JCA report is much more thorough, and the relevant part of it is set out below:

Mr Grima reported having experienced left shoulder pain for 10+ years.  Dr Schindler was contacted on 29/4/2010 and indicated that the client first reported left shoulder pain in 2000 but further investigations into reasons for this initial report could not be found on Mr Grima’s record.  Mr Grima’s condition was diagnosed as a soft tissue injury in the Medical Report dated 19/2/2009 and as having been present for approximately 18 months.  X-rays and Ultrasounds of the left shoulder joint indicated mild left acromio-clavicular joint degeneration however there was no evidence of rotator cuff pathology (X-ray and Ultrasound reports 18/2/2009).  Mr Grima reported that the physiotherapist addressed the pain by physiotherapy sessions, and has provided him with some shoulder exercises to manage and maintain shoulder movement.  His treating GP has indicated in his Medical Report that he may require referral to an orthopaedic surgeon if deterioration occurs.  Mr Grima indicated that there has been no significant deterioration since last JCA and as such has not been referred to a specialist.  As there appears to be some uncertainty regarding the diagnosis, cause, duration and expected prognosis of this condition during the date of consideration (identified as at 4/3/2009 plus 13 weeks), the condition is not considered to be fully diagnosed, treated and stabilised.

19.     That concluding reference to the condition not being, in Mr Morris’s view, “fully diagnosed, treated and stabilised”, recalls the language of paragraphs 4 and 5 of the Introduction to Schedule 1B to the Act, which say:

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.

20.     In the form that he completed in February 2009, under the heading “Impact on ability to function”, Dr Schindler was asked how long the “current impact of this condition on the patient’s ability to function” was expected to persist.  Faced with the options “Less than 3 months”, “3-24 months” and “More than 24 months”, Dr Schindler chose none of them, and wrote instead “Not known”.  Then, when asked whether within the next 2 years the effect of the condition of the patient’s ability to function was expected to:

·Significantly improve

·Somewhat improve

·Fluctuate

·Remain unchanged

·Deteriorate

·Uncertain

·Not applicable

he ticked the box labelled “Uncertain”.

21.     These two assessments, combined with apparently “normal” X-ray and ultrasound results, support Mr Morris’s conclusion that Mr Grima’s shoulder condition was not fully diagnosed, treated and stabilised at the time he lodged his DSP claim.  Indeed, Dr Schindler in his report noted “? referral to orthopaedic surgeon” in relation to “Future/planned treatment” and that also indicates that the appropriate treatment, at least, had not at that time been identified, let alone carried out.

22.     During the hearing, Dr Schindler confirmed that Mr Grima can lift his arm to shoulder height, but then he experiences pain and discomfort.  Dr Schindler said he had not conducted any range of movement testing on Mr Grima, and indicated that it was “probably true” that the condition was not fully diagnosed, treated and stabilised.

23.     The relevant Impairment Table for “upper limb function” is Table 3.  Putting aside (as irrelevant) two references in the table to a person’s inability to use an upper limb at all, each of the “criteria” in Table 3 is expressed as “demonstrable evidence of [varying degrees of] loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes [varying degrees of] interference with hand function or manual handling”. 

24.     On the information available, including Mr Morris’s JCA report and Dr Schindler’s oral evidence, it is not possible to allocate any ratings in relation to any of these criteria.

Conclusion

25. The total impairment rating in the Impairment Tables is 10 points, and it follows that, during the entire claim period, Mr Grima failed to satisfy paragraph (b) of s 94(1) of the Act. It is not necessary to determine whether he satisfied the “continuing inability to work” condition in paragraph (c).

Decision

26.     The decision under review is affirmed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Senior Member

Signed:         ......[SGD]............................................................
  Associate

Dates of Hearing  2, 23 and 29 June 2010
Date of Decision  20 July 2010
Applicant self-represented               
Appearance for the Respondent     Ms P Lee, Centrelink Legal Services