Leonard Gilchrist and Secretary, Department of Social Services
[2014] AATA 111
•27 February 2014
[2014] AATA 111
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/3174
Re
Leonard Gilchrist
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr J Chaney, Member
Date 27 February 2014 Place Perth The Tribunal affirms the decision under review.
.....(Sgd) J Chaney.....................
Dr J Chaney, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension (DSP) – qualification for DSP – applicant’s impairments total 10 points under Impairment Tables – applicant not qualified for DSP – decision under review affirmed
LEGISLATION
Social Security Act 1991(Cth), s94(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr J Chaney, Member
27 February 2014
INTRODUCTION
Mr Gilchrist seeks a review of the decision of the Social Security Appeals Tribunal made on 28 May 2013 which affirmed a Centrelink Authorised Review Officer’s decision to reject his claim for disability support pension (“DSP”) lodged on 10 January 2013.
The role of this Tribunal is to decide whether Mr Gilchrist was qualified for DSP as at the time of his DSP application or in the 13-week period thereafter, namely, the period from 10 January 2013 to 11 April 2013 inclusive (“the relevant period”). Mr Gilchrist’s health condition as assessed after 11 April 2013 is irrelevant to these proceedings and will not be considered by the Tribunal.
THE LEGISLATIVE FRAMEWORK
The conditions which must be satisfied before a person is qualified for DSP are set out in section 94(1) of the Social Security Act 1991 (“the Act”) which relevantly provides:
“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
…”
The Impairment Tables referred to in section 94(1)(b) are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).
THE ISSUES
As the respondent accepts that, during the relevant period, Mr Gilchrist was suffering from the following physical impairments, namely, osteoarthritis and diverticulitis/oesophagitis, and therefore satisfies section 94(1)(a) of the Act, the only issues are whether Mr Gilchrist’s impairments attract an impairment rating of 20 points or more under the Impairment Tables in accordance with section 94(1)(b) of the Act and, if so, whether he has a “continuing inability to work” within the meaning of section 94(1)(c) of the Act.
THE EVIDENCE
The evidence before the Tribunal comprised the Section 37 Documents (T-Documents) lodged on behalf of the respondent, and the oral evidence of Mr Gilchrist.
The Evidence of Mr Gilchrist
Mr Gilchrist stated that he lives in a rural property out of Nannup. He cares for two small dogs but has no garden. He stated that in the last two to three years he has suffered from increasing back pain. In the past, he received treatment including physiotherapy and injections which did not help him.
Eighteen months ago he purchased a Tens Machine and uses this in addition to heat packs which give him some temporary relief. At the beginning of the year around the time of his application for DSP Mr Gilchrist was taking Nurofen which he said gave him very little relief from his ongoing pain. He has since seen a new GP as his previous GP, Dr Leavy, has left the country, and has been prescribed Panadol-OSTEO, meloxicam and Endep.
Mr Gilchrist (who gave evidence by telephone) did not have a copy of the decision of the Social Security Appeals Tribunal before him but stated that he could not understand how it could have been written that he uses a “fifth arm” to play bowls. He stated that he would love to play bowls but he is unable to because of his pain and was not playing bowls at the time of his application for DSP. Mr Gilchrist stated that he was upset that this had been written as a fact when it was simply not true. Mr Gilchrist stated that he tried not to do anything too exuberant. He occasionally has to lie on the floor and cannot sit down to eat his meals. He stands to watch television and it takes him about an hour to drive the 50 kms to Busselton but he has to stop and walk around frequently. He also reads standing up. He is able to shower and, in fact, he finds that it helps his pain on a temporary basis, and dresses himself although he has difficulty straightening up after bending over to put on his shoes and socks. He has some difficulty putting on a T-shirt and has to extend his arm horizontally to do this before slipping it over his head. He uses a top loading washing machine and dries his clothes in a dryer which is mounted above the washing machine. He is able to bend over but experiences pain when straightening up. He is able to get up out of a chair unaided.
Mr Gilchrist owns a 10-year old ute but doesn’t like to drive it long distances and never has to reverse it. He usually gets other people to shop for him and he is driven to Busselton once a fortnight to shop as it is too expensive in Nannup. He reiterated that the 50 km journey takes him an hour. Mr Gilchrist told the Tribunal that he has not worked for two to three years, prior to that he was working as a fly-in fly-out plant operator but had to stop because of increasing levels of back pain. This was increased by him having to sit on a plane for 3 hours and then sitting on machinery all day.
Mr Gilchrist said that although there had been some deterioration in his condition since January there had been no significant change in the previous 12 – 18 months.
In regard to his oesophagitis, Mr Gilchrist told the Tribunal that he had some polyps removed about 18 months ago and that although he used to have digestive problems they settled when he stopped drinking coffee and eating rich food. He ceased taking medication for his stomach problems about 18 months ago.
When questioned about the Job Capacity Assessment Report conducted on 29 January 2013 at which specialist disability employment intervention was suggested, Mr Gilchrist stated that he would not be suitable for re-training as he had never been any good at school and knows nothing about computers. He would find it difficult to get into Busselton for light work and all the work in his area was physical. He told the Tribunal that the saw mills had just put off 24 workers. He stated that there was no light work available in Nannup and it was like a retirement village which is the reason why he had moved there.
Medical Evidence
Dr Richard Leavy in medical certificates for Centrelink dated 19 July 2012 (T4) and 10 October 2012 (T6) notes a diagnosis of diverticulitis/oesophagitis only, making no mention of any condition concerning the back. The Tribunal notes, however, a report of an x-ray of the lumbar spine conducted by West Coast Radiology on 5 July 2012 (T3) in which a clinical history of right lower back pain was recorded with the x-ray showing early facet joint arthropathy at the lower lumbar spine.
An Employment Services Assessment Report (T5) conducted by telephone from Centrelink, Busselton on 18 September 2012 lists the only condition as being diverticular disease. Various abdominal symptoms were recorded in the report but the conditions were said to be temporary and Mr Gilchrist’s capacity for work within 2 years with intervention was assessed at 30+ hours per week. It was recommended that he would benefit from DES-DMS support but that he would be temporarily not job ready until 19 January 2013.
Dr Leavy completed a medical report for the purposes of Mr Gilchrist’s application for DSP on 10 January 2013 (T9). In this report he refers to a primary diagnosis of osteoarthritis of the lower back, the current treatment of which was anti-inflammatories and analgesics. He notes that acupuncture and analgesics had been prescribed in the past and that Mr Gilchrist had seen a specialist approximately 10 years previously, but did not recall the name. Dr Leavy noted the current symptoms to be pain and stiffness in the back and wrote that Mr Gilchrist had problems with endurance in walking, bending and standing for long periods. He noted a second medical condition of reflux oesophagitis and stated that Mr Gilchrist had digestive problems.
A medical certificate for Centrelink issued on 14 February 2013 by Dr Leavy referred to a diagnosis of diverticulitis/oesophagitis with the symptom being pain which in Dr Leavy’s opinion rendered Mr Gilchrist unfit for work for a period of one month (T12). However, a letter written on the same day by Dr Leavy certified that Mr Gilchrist was receiving medical treatment for his back, had “severe difficulties doing work overhead” and found it “very hard in sitting for 10 minutes” (T13). A further medical certificate for Centrelink issued by Dr Leavy on 28 February 2013 referred to a diagnosis of back pain with symptoms being pain and stiffness (T14). A more comprehensive DSP medical report provided to Centrelink by Dr Leavy, dated 20 March 2013, referred only to a diagnosis of arthropathy of the lumbar spine with symptoms of pain and stiffness in the lower back, insomnia, pain sitting and inability to sit in a car for long periods due to pain. Dr Leavy noted functional impairments of endurance and stiffness in the lower back and neck. Dr Leavy noted the treatment as being analgesics and anti-inflammatory medication (T17).
Mr McCloskey, Orthopaedic Spinal Surgeon, issued a report dated 9 August 2013. He noted that the MRI scan shows discogenic changes over the lower lumbar spine with potential for both right L4 and right L5 nerve compression. He also noted that he had advised Mr Gilchrist that he was very reluctant to offer him surgery as he did not think surgery would have a high chance of success, and that the other option was just “to live with his symptoms and manage them as best as he can”.
A Centrelink Job Capacity Assessment Report, dated 24 January 2013 (T10), noted a condition of diverticular disease which was considered to be temporary and a permanent condition of osteoarthritis. An impairment rating of 10 points was awarded on Table 4, the table dealing with spinal function. The report concluded that while Mr Gilchrist was at that time currently not able to work for more than 7 hours a week, he had a baseline work capacity of up to 14 hours to work and with appropriate disability specific support he could expect to improve on this to a level of between 15 and 22 hours a week within 2 years.
ANALYSIS
Osteoarthritis
It is common ground that Mr Gilchrist suffers from a permanent condition of osteoarthritis in his lower lumbar spine, which has been fully diagnosed, treated and stabilised.
The issue is the impairment rating to be assigned in relation to the functional impact of Mr Gilchrist’s osteoarthritis.
The Tribunal considered that Table 4 of the Impairment Tables, which deals with spinal function, is the appropriate table for functional assessment. The Tribunal notes the specific requirements of Table 4, including the requirement, when assigning any impairment rating, that self-report of symptoms alone is insufficient and corroborating evidence, eg. a report from the person’s treating doctor, must be provided. Further, in the rules for applying the Impairment Tables in Part 2 of the Determination paragraph 11(1)(c) states that, if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.
The relevant descriptors in Table 4 are as follows:
Points
Descriptors
10
There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at
least one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items over head height; or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
20
There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
Taking into account the reports from Dr Leavy and Mr Gilchrist’s own evidence the Tribunal is satisfied that Mr Gilchrist is not unable to:
(a)perform any overhead activities; or
(b)turn his head or bend his neck without moving his trunk ; or
(c)bend forward to pick up a light object from a desk or table; or
(d)remain seated for at least 10 minutes.
He therefore does not satisfy the descriptors for 20 points in Table 4.
The Tribunal, however, accepts the respondent’s contention that the evidence is sufficient for Mr Gilchrist to satisfy the descriptors for 10 points in Table 4.
Diverticulitis/ Oesophagitis
Although Mr Gilchrist did not seek to rely on this condition, the medical evidence before the Tribunal confirms that he suffered from this condition during the relevant period and that it has been fully diagnosed, treated and stabilised. Accordingly, it is appropriate for the Tribunal briefly to consider the functional impact of this condition in the relevant period.
The Tribunal accepts the respondent’s contentions that:
·although there is evidence that Mr Gilchrist self-reported that he experienced occasional coughing of blood, toileting frequency, diarrhoea and pain, there is no corroborating evidence;
·the relevant medical evidence (comprising Dr Leavy’s medical reports of 10 January 2013 and 20 March 2013) goes no further than to confirm that the applicant had “digestive problems” and that the condition was generally well-managed and caused minimal or limited impact on ability to function.
The relevant descriptors in Table 10 (Digestive and Reproductive Function) are as follows:
Points
Descriptors
0
There is no functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.
(1) The person is not usually interrupted at work or other activity by
symptoms or personal care needs associated with a digestive or reproductive system condition.
5
There is a mild functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.
(1) At least one of the following applies:
(a) the person’s attention and concentration at a task are sometimes (on most days) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition; or
(b) the person is sometimes (less than once per month) absent from work, education or training activities due to the digestive or reproductive system condition.
On the basis of the medical evidence before it, the Tribunal is not satisfied that this condition had a mild functional impact on Mr Gilchrist’s daily activities such as to satisfy the descriptors in Table 10 for 5 points. Accordingly, the appropriate rating under Table 10 for this condition is 0 points.
CONCLUSION
The Tribunal finds that Mr Gilchrist’s impairments attract a total of 10 points under the Impairment Tables. That being the case, Mr Gilchrist does not satisfy s 94(1)(b) of the Act.
The Tribunal concludes, therefore, that Mr Gilchrist was not qualified for DSP in the relevant period.
That conclusion makes it unnecessary for the Tribunal to consider whether Mr Gilchrist had a “continuing inability to work” within the meaning of s 94(1)(c) of the Act.
DECISION
For the above reasons the Tribunal affirms the decision under review.
I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Dr J Chaney, Member ..(Sgd) T Freeman.............
Associate
Dated 27 February 2014
Date of hearing 5 December 2013
Representative of the Applicant In person (unrepresented) Representative of the Respondent Ms S Vahala Solicitors for the Respondent Australian Government Solicitor
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