McClenahan and Department of Family and Community Services
[2000] AATA 268
•4 April 2000
DECISION AND REASONS FOR DECISION [2000] AATA 268
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/937
GENERAL ADMINISTRATIVE DIVISION )
Re WARREN McCLENAHAN
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr J D Campbell, Member
Date4 April 2000
PlaceSydney
Decision The decision under review is affirmed.
(Sgd J D Campbell)
..............................................
Member
CATCHWORDS
SOCIAL SECURITY - Disability Support Pension - impairments - back pain - assessment - continuing inability to work - ability to undertake vocational, educational or on-the-job training program.
Social Security Act 1991 – s 94, schedule 1B
REASONS FOR DECISION
Dr J D Campbell, Member
Mr Warren McClenahan ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal dated 1 June 1999 which affirmed the decision of an Authorised Review Officer of Centrelink dated 24 February 1999. This latter decision affirmed the decision of a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 11 February 1999, to reject the Applicant's claim for Disability Support Pension.
A hearing was held in Newcastle on 16 December 1999, at which the self-represented Applicant presented oral evidence. The Respondent was represented by Ms Alex, a solicitor from the Administrative Law Section of Centrelink.
The following written material was placed in evidence before the Tribunal:
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 Respondent's Statement of Facts and Contentions dated 14 December 1999 Medical Report of Dr A Isaacs dated 14 December 1999T1 – T18 P1 – 92 Exhibit R1 Exhibit A1
ISSUES
The relevant issues in this matter are:
Whether the Applicant meets the qualification requirements for a Disability Support Pension under subsection 94(1) of the Social Security Act 1991 ("the Act") in that:
(i) the Applicant does have an impairment; and
(ii) the impairment has an impairment rating of 20 points or more as assessed under the Tables for the assessment of work-related impairment for disability support pension ("the Impairment Tables") contained in Schedule 1B of the Act; and
(iii) the Applicant has a continuing inability to work as enumerated within subsection 94(2) of the Act.
LEGISLATION
The relevant legislation in this matter is the Social Security Act 1991 and in particular subsections 94(1), (2), (3), (4) and (5) and the Schedule 1B Impairment Tables.
BACKGROUNDThe Applicant submitted an application for a Disability Support Pension which was received by the Respondent on 19 December 1998. In his application, the Applicant wrote of a history of back pain since the age of 11. Following medical assessment on 5 February 1999, the Applicant's claim was rejected in a letter dated 11 February 1999. The claim was subject to further review by an Authorised Review Officer on 24 February 1999 and the Social Security Appeals Tribunal on 1 June 1999, and on each occasion the original decision to reject the Applicant's claim for Disability Support Pension was affirmed.
APPLICANT'S EVIDENCEThe Applicant told the Tribunal that he was born in Malaysia on 23 February 1963 and that he left school before the completion of year nine. In general comment, the Applicant stated that he had never had a job for longer than 12 months and that most of his employment experiences had been as a general labourer in a variety of places for periods averaging six months. Further, the Applicant stated that he lives on his own, is not married, and has no car but has a dog. The Applicant stated that he "stays home a lot", gets up most days and "does not do a lot"; that "he has no money, no life, no television" and is not a great reader. Further, he stated that he cooks some meals, buys others, does his own laundry and occasionally cleans the flat, and "does not have any mates".
The Applicant informed the Tribunal that he has been coping with his back since the age of 13when one day, after playing sport, he was forced to bed at home because of low back pain, after which he was admitted to hospital and he had a significant period off school. After this episode the Applicant stated that, with any unusual activity, his back would become painful and that this has resulted in days off work with eventual loss of job.
The Applicant stated that some 14 months ago, he was employed by the State Transit as a bus driver in Sydney for three and a half months. During this period he found that he could not sit all day and that he had to have several days off, because of his back pain, as well as finding it difficult to cope with the abuse from the general public.
In further comment the Applicant stated that he has learnt to cope with his back and that walking 20 minutes each way to a particular place causes him pain, although he does continue to walk to and from the shops. Further, the Applicant stated that he is unable to sit for an hour, nor can he stay in the one spot for any length of time, and that he has difficulty sleeping.
The Applicant stated that he used to take Valium but he ceased this medication some years ago. Further, he stated that he no longer uses either anti-inflammatory or analgesic medication and that, while physiotherapy and hydrotherapy were of limited assistance, the use of a lumbar corset is helpful while it is on. The Applicant concluded by saying that he tries not to do anything that aggravates his back for there is nothing else he can do but look after himself.
In response to questions from the Respondent, the Applicant confirmed that he has "no trouble reading, writing or concentrating" and that light work aggravates his back. Further, the Applicant stated that he would like to return to work but he refuses to do anything which would aggravate his back and he does not believe that rehabilitation will be of great assistance to him.
MEDICAL EVIDENCEIn a letter of referral dated 19 November 1997, Dr T Chock details a history of the Applicant having had lower back pain for "all his life" which has worsened over the last six months (T4 p51). Dr Chock refers to an x-ray report of the lumbar spine in which Dr K Thong concludes that the Applicant has a:
"Developmental anomaly with herniation of disc material into the end plates at T12-L1, L1-2 and L3-4 levels." (T5 p54)
Following referral by Dr A G De Lyall for further radiological examination, Dr D O'Dell reported on 2 December 1998 that, as regards the thoracic spine, the appearances demonstrated on plain x-ray are suggestive of old Scheuermann's disease. Further, Dr O'Dell reported that, in relation to the lumbosacral spine, the plain x-ray revealed changes consistent with Schmorl's nodes, the clinical significance being doubtful. In relation to a lumbosacral CT scan Dr O'Dell reported:
"Intact discs. Normal canal diameter. Clear foramen... Normal interfacet joint. No pars defect in L5 arch.
… No disturbance of the thecal sac or associated nerve roots." (T5 p53)
In a treating doctor's report dated 16 December 1998. Dr De Lyall described the Applicant's condition as low back pain, which has been present since age 11 and increasing in recent years. Dr De Lyall considered that the Applicant was unfit to return to his normal job (labourer) or any full-time employment for more than two years but may benefit from vocational training in non-physical work (T6 p57).
In a medical report dated 5 February 1999 Dr C Aus, a medical practitioner from Health Services Australia, detailed a back pain history of the Applicant which was consistent with earlier histories, in that the Applicant was described as having:
"… back pain with most activities and problems with sleeping. He can walk for one km, does some gardening and has stopped playing sport. His limitation of back movement was approximately 25%."
Dr Aus concluded:
"I am not satisfied that his back condition has been adequately diagnosed and treated. I have no specialist report and no independent assessment of his functional impairment. His impairment would seem to be consistent with sedentary work, but I am unclear about the nature and severity of his chronic pain." (T7 p73)
Dr Aus also concluded that the Applicant's medical condition would not prevent him from undertaking vocational rehabilitation or training and that he would require such for him to be able to return to work. Further, Dr Aus was unable to give a permanent assessment rating, as the Applicant has not had an adequate specialist diagnostic opinion.
Dr A Isaacs, a consultant orthopaedic surgeon, in a report dated 13 April 1999, concluded:
"Basically, Warren is suffering from severe lower lumbar instability and I feel he has to improve his abdominal and spinal muscles to a large extent to compensate for the weakness. In the meantime his lumbar spine can be braced by a lumbosacral corset. Though that will help his pain temporarily he must make sure that he improves his abdominal and spinal muscles by appropriate exercises or regular swimming and if the swimming is aggravating the pain then he can go through a graduated hydrotherapy programme regarding which I have already discussed with him. I am sure given another three months if he can have the corset and do his graduated hydrotherapy he will be able to decrease the number of aggravations and minimise the amount of pain he is suffering from. I do not think we are going to completely relieve him of his present pain. I also do not think that he will be able to return to any manual work now or in the future." (Exhibit A1)
SUBMISSIONS
The Applicant contends that his claim for Disability Support Pension should be granted as his back pain is increasing and will further increase over time, and that this limits his ability to work, to play sport, to stand or sit in one position for any period of time, to sleep and to walk extended distances.
The Respondent submits that there is insufficient factual or medical evidence to support an impairment assessment of 20 points or greater, and further all the medical evidence suggests that the Applicant is able and should receive vocational or rehabilitation training to allow him to undertake semi-sedentary employments that do not involve heavy lifting.
CONSIDERATION AND FINDINGSThe Tribunal, after consideration of the evidence presented in this matter, finds the following matters of fact:
(a)the Applicant has had a history of low back pain since the age of 11. The pain is situated in the lower lumbosacral area with some evidence to suggest radiation to both upper thighs posteriorly (Applicant's history); and
(b)the Applicant has a lumbosacral developmental condition, namely Scheuermann's disease (Radiological Report) and his condition causes lumbosacral instability (Dr Isaacs); and
(c)the Applicant has a permanent condition; and the level of any symptomatology arising from it will directly relate to the state of the Applicant's abdominal and spinal musculature, and the rate of any change of any existing degenerative spinal processes (Dr Isaacs); and
(d)at the time at which the decision under review was made, the Applicant's complaint was of low back pain for which he did not take medication and, as a result of which, he had loss of a quarter of the normal range of movement of the thoracolumbar spine.
In placing these findings of fact within the legislative framework, the Tribunal notes the relevant legislation, namely subsections 94(1), (2), (3), (4) and (5) of the Act:
"94 Qualification for disability support pension
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;
…
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 2 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(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.
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 for 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.
…"
As a consequence of the Tribunal's earlier finding of fact in this matter, the Tribunal further finds that the Applicant does have a physical impairment, namely lumbosacral instability and, accordingly the Tribunal concludes that by virtue of this impairment the Applicant satisfies subsection 94(1)(a) of the Act.
The Tribunal, in having established the nature of the Applicant's physical impairment, finds that the appropriate Schedule 1B Table for assessment of this impairment is Table 5.2, which in part states:
"TABLE 5.2 THORACO – LUMBAR-SACRAL SPINE
…
NIL Normal or nearly normal range of movement.
FIVE Loss 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 sitting or driving for about 60 minutes.
or
Loss of half of normal range of movement.
TWENTY…"
The Tribunal, in acknowledgment of the Applicant's history, the earlier findings of fact and the medical opinions of Dr Aus and Dr Isaacs, finds that the Applicant has a 10 point assessment under Table 5.2, by virtue of the loss of one quarter normal range of movement, as well as back pain, with many physical activities, with standing for about 30 minutes and with sitting or driving for about 60 minutes.
As a consequence of the Tribunal's finding that the Applicant's impairment is assessed at 10 points under the Schedule 1B Impairment Tables, the Tribunal further finds that the Applicant fails to satisfy subsection 94(1)(b) of the Act.
In considering the issue of whether the Applicant has a continuing inability to work, the Tribunal notes the history of the Applicant's employment record, including his activities as a bus driver. Further, the Tribunal notes the medical opinions that the Applicant should not be involved in categories of work that require heavy lifting, repetitive bending or prolonged standing, sitting or walking. Further, the Tribunal notes the age of the Applicant, the expressed symptomatology arising from the Applicant's impairment at the time of the decision under review, and concludes that the Applicant does not have a continuing inability to work. In so finding, the Tribunal has given weight to all the medical opinions tabled in evidence, in that:
(a) the treating doctor, Dr De Lyall, states that the Applicant could return to part-time work immediately and that he may benefit from vocational training in non-physical work; and
(b) the examining doctor, Dr Aus, believes the Applicant could return to work for 30 hours per week within two years in sedentary type activities; and that his impairments do not prevent him from undertaking vocational rehabilitation or training and that he does require this training assistance to enable him to return to work; and
(c) the orthopaedic specialist, Dr Isaacs, considers it important that he improve his abdominal and spinal musculature, and it is unlikely that the Applicant will be able to return to any manual work now or in the future.
It is as a consequence of these opinions, and the history as related by the Applicant, that the Tribunal finds that:
(a) the Applicant's impairment does not prevent the Applicant from doing any work within the next two years;
(b) the Applicant's impairment does not prevent him from undertaking educational or vocational or on-the-job training during the next two years; and
(c) while the impairment will not prevent the Applicant from undertaking such re-training, the training is likely (despite the impairment) to enable the Applicant to do work within the next two years.
As a result of the Tribunal's findings, the Tribunal concludes that the Applicant fails to satisfy subsection 94(1)(c)(i) of the Act in that the Applicant has failed to satisfy any of the requirements nominated in subsection 94(2).
By virtue of the Tribunal's findings that the Applicant has failed to satisfy subsections 94(1)(b) and 94(1)(c)(i) of the Act, the Tribunal concludes that the Applicant does not possess the qualifications for a Disability Support Pension at the time of the decision under review.
DETERMINATIONThe decision under review is affirmed.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of:
Dr J D Campbell, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 16 December 1999
Date of Decision 4 April 2000
Solicitor for Applicant Applicant was self-represented
Advocate for the Respondent Ms A Alex, Centrelink
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