McDonald and Department of Family and Community Services

[2002] AATA 168

DECISION AND REASONS FOR DECISION [2002] AATA 168

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/1292

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      Paul McDonald     
  Applicant
           And    Department of Family and Community Services    
  Respondent

DECISION

Tribunal       Mr R P Handley      

Date14 March 2002

PlaceSydney

Decision      The Tribunal sets aside the decision under review and substitutes a new decision that, at the time of the decision, Mr McDonald satisfied the requirements of s 94 (1) of the Social Security Act 1991.
  ..............................................
  R P Handley
  Deputy President
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension - whether Applicant entitled to Disability Support Pension – assessment of disability at time of application – assessment of impairment points - inability to work.
Social Security Act 1991 – ss 94(1), 94(2), 94(5)

REASONS FOR DECISION

14 March 2002                 M R P Handley  

1. This is an application by Paul McDonald ("the Applicant") for a review of a decision of the Social Security Appeals ("the SSAT") made on 14 March 2001 to affirm a decision of a delegate of the Secretary of the Department of Family and Community Services ("the Respondent") and an authorised review officer to reject the Applicant's claim for a disability support pension (DSP). 

2. At the hearing, Mr McDonald represented himself and the Respondent was represented by Paul Konowsky of Centrelink. Evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") together with the documents tendered by the Respondent. Mr McDonald gave oral evidence at the hearing.
   BACKGROUND

3. Mr McDonald was born on 20 August 1967 and is aged 34.  He is married to Sonya McDonald and they have four daughters aged 5, 8, 11 and 13.  Mr McDonald left school at the age of 15 and was in heavy manual employment until injuring his right knee in an accident at work on 2 February 1997.  Mr McDonald returned to work in June 1997 and undertook light duties until he received a workers' compensation settlement of $80,000 on 20 May 1999, when he was retrenched.  He has not worked since. Mr McDonald also suffers pain in his left leg, which he broke at the age of 16, and lower back pain following an accident at work in 1996. 

4. After receiving his workers' compensation settlement on 18 May 1999, Mr McDonald was subject to a preclusion period for the payment of benefits of 58 weeks. On 8 August 2000, he lodged an application for a DSP. He was examined by a Regional Medical Adviser of Health Services Australia ("HSA"), Dr. M I Greacen who assessed the level of Mr McDonald's impairment at 30 points according to the Tables in Schedule 1B of the Social Security Act 1991 ("the Act"), but found him "medically fit for full-time desk, bench or console based work". Dr Greacen said Mr McDonald would benefit from assistance from the Commonwealth Rehabilitation Service ("CRS") "due to his poor sitting tolerance, which may be improvable with attention to his weight and fitness".

5. On 23 August 2000, a delegate of the Respondent decided to reject Mr McDonald's claim for DSP on the ground that he does not have a continuing inability to work.  This decision was affirmed by an authorised review officer on 10 October 2000 and by the SSAT on 14 March 2001.   Whereas Dr Greacen had attributed an impairment rating of 5 points for exacerbation of Mr McDonald's thoraco lumbar spine, 5 points for his old left leg fracture and 20 points for his right knee dysfunction, giving a total of 30 impairment points, the SSAT assessed Mr McDonald's right knee pain and left lower leg impairment at a total of 20 impairment points under Table 4 of the Impairment Tables and treated Mr McDonald's back pain as being "temporary" because it had not been fully investigated.  On 9 April 2001, Mr McDonald lodged an application for a review of the SSAT decision by the Tribunal.

APPLICABLE LEGISLATION

1. The qualifications for DSP are set out in section 94(1) of the Act. Section 94(1) provides in part:
   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
…

1. The term "continuing inability to work" is explained in section 94(2) of the Act:

   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.

2. The term "work" is defined in section 94(5) of the Act:

   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.

THE APPLICANT'S EVIDENCE

1. Mr McDonald told the Tribunal that he broke his left leg at the age of about 16 requiring his tibia and fibula to be pinned and plated.  He said that he was to have the plates removed in late 1996 but did not do so, and, shortly thereafter, injured his right knee.  Mr McDonald said he will have to have the plate in his left leg removed soon and he has been advised that, following surgery, he will require 6 to 8 months physiotherapy.   The surgery will involve cutting into the bone which has grown around the plate.  Mr McDonald hopes to have this done either late this year or next year.  He said that because of the injury to his right knee, he carries additional weight on his left leg and, with the plate, his left leg becomes inflamed and infected and turns bright red.  Mr McDonald said he has to take antibiotics approximately every 4 to 6 weeks to counter the infection.  He said the problem with his left leg prevents him from walking distances, bearing weight and climbing stairs. 

2. Mr McDonald said he injured his back in an accident at work in 1996.  He now has a prolapsed disk at L5/S1.  He said he was on workers' compensation for this injury about 6 months before his right knee injury.  He was off work for his back injury for 2 weeks and then went back to light duties.  However, it was necessary for him to take time off intermittently over the next few months.  Of the three conditions from which Mr McDonald suffers, he said the back pain is the one which affects him most significantly because he has pain most of the time, on some days worse than others.  He only has about one good day per week.  The medication which he takes currently is Tramol, a delayed pain reliever, and Valium.  He takes Tramol, once every four hours and Valium when necessary. 

3. Back pain limits Mr McDonald's ability to squat, kneel, sit and walk.  If he tries to sit and walk for more than a short period he gets very numb.  Mr McDonald gave an example of the restrictions caused by his back.  He said if he tries to throw the quilt over his and his wife's bed, his back will "snap" and he may then need to lie flat for at least a day and sometimes for more than a week for the pain to settle.  He said the back pain is getting progressively worse.  When he consulted his General Practitioner ("GP"), Dr More, about this, Dr More advised physiotherapy.  However, Mr McDonald had physiotherapy in 1996 following his accident and found, after having physiotherapy daily for 7 days, that this aggravated his back.  He has therefore avoided having physiotherapy since.  Otherwise, Dr More was only prepared to prescribe Panadeine Forte.  Because Mr McDonald was dissatisfied with the advice received from Dr More, he has recently consulted another GP, Dr Aiken, since late December 2001, who prescribed the Tramol and Valium.  Mr McDonald said he has not seen a specialist about his back recently.  The last time he saw such a specialist was in 1999 in relation to his claim for workers' compensation.

4. Following the injury to Mr McDonald's right knee in February 1997, and despite surgery, Mr McDonald has been significantly limited in his ability to walk His knee makes a grating noise with every step and he gets severe pain.  Dr M Cross, the specialist whom he consulted, said "this is likely to be the best it is going to get".  Mr McDonald wears a steel brace on his right knee whenever he walks because otherwise his knee is liable to give way.  He said he can walk less than 100 metres and for this reason, he has been provided with a disability permit by the Road Traffic Authority.  Mr McDonald said he has been advised that he will not be able to have a knee joint replacement until the age of about 65 because prosthetic knee joints have a life span of only about 15 years.  He said his knee feels the same every day.  This includes his having no feeling on the right side of his leg to about 6 inches below the knee and 6 inches above the knee.  Mr McDonald says he only has one step up to his house.  He goes up steps sideways putting his left foot up first and then bringing his right leg up afterwards.  As a result of his knee condition, Mr McDonald is unable to kneel, squat or carry any weight on that leg. 

5. Mr McDonald said that as a result of his knee and back condition, he has given up his favourite pastimes of playing golf and bushwalking.  He is very limited in what he can do at home.  He washes up but cannot wipe up because of his inability to stand for more than a short period.  His house does not have much garden and Mr McDonald is unable to mow for more than about 5 minutes.  He said he has bought a self-propelled mower and his wife does the mowing.  When he washes the car, he does it with a broom, and he is unable to do car maintenance because he cannot lean over the bonnet.  Mr McDonald said he can drive for between an hour and an hour and a half and then he has to stop and change position because his back and knee become numb.  Thus, on any longer journey, he shares the driving with his wife.  He said he is unable to carry anything and if, occasionally, he goes shopping, he parks his car so that he can place things directly in the boot.  Mr McDonald described his demeanour as being very grumpy and said it has affected his relationship with both his wife and children.  His children find it difficult to understand when he is unable to take them out. 

6. Mr McDonald said he left school at the age of 15 because he had run-ins with the teachers and wanted to get a job.  For the next few years, he worked in the construction and transport industries and eventually obtained a truck driver's licence.  He worked in Sydney for some years before moving to Parkes where his family live.   There he worked for Mini Mix part-time for 6 – 8 months driving a small concrete mixer.  Then, in November 1995, he obtained employment as a combing operator for Australian Topmaking Services in Parkes, where he worked until he was retrenched on 20 May 1999.  After his retrenchment, Mr McDonald and his family moved to Coffs Harbour because he found the cold winter conditions in Parkes aggravated his back and legs. 

7. Mr McDonald said that when he returned to work in June 1997, he was on light duties until he was retrenched.  A Rehabilitation Officer, Brenda O'Toole, devised a rehabilitation program for him.  This involved his replacing the bearings in rollers whilst either standing or sitting at a bench.  He was provided with a special chair and a rubber mat for standing on, but he had difficulty even with this work and, therefore, was placed in the office and asked to do filing.  This was shortly before he was retrenched.  He spent a week or two in the office filing, but found he could not bend to pick up the files.  Overall, Mr McDonald said the rehabilitation program was a total failure. 

8. Mr McDonald said he could sit for about 20 minutes but after that he needs to change position and either lie down, walk around or find some other more comfortable position.  In early 2001, he purchased a computer in order to try computer work, but found that he could only sit in front of the computer for a short time and not for long enough to undertake any work on it.  He said he found sitting in front of the computer gave rise to a burning pain starting in his shoulders which worked its way down his back.  After 15 minutes of sitting, he starts twisting and fidgeting, and after 30 minutes he needs to get up.  He said the money spent on the computer has been a total waste.

9. Mr McDonald said his average day is very boring.  He spends most of the time at home and rarely goes out.  He and his wife have only been out once in the last two years.  He sees little of his family. The education courses of which he is aware would not be suitable because of his inability to sit for more than short periods.  He said he believes that his life has been totally ruined by his condition.  Even though he is only 34 years old, he feels about 60.  Mr McDonald said he is not lazy.  When he went to consult the CRS in September 2001, he was told by the Rehabilitation Consultant, Mark Riley, that they were unable to help him at the moment. 

10. Mr McDonald was sceptical about the relevancy of the reports of the specialists who provided reports on his condition for the purposes of his workers' compensation claim.  He said that when he lodged his claim for DSP in August 2000, these reports were out of date and did not accurately describe his condition.  He denied that, at the time of his claim in August 2000, he could walk 200metres.  He said he could only walk about 100metres.  With regard to his back pain, Mr McDonald said he made a mistake in completing his claim form when he described his lower back as involving "numbness and soreness periodically".  He said he should have said that his lower back pain is almost constant.  He said he had had x-rays of his back in 1996 after his accident and that Dr Pillay, his former GP in Parkes, would have had these.  However, one of the two boxes of reports sent by Dr Pillay to Dr More in Coffs Harbour was lost.  Mr McDonald said that since having seen specialists at the time of his accidents, he has only consulted general practitioners.  He cannot afford to see a specialist and was frustrated that even though the Department said that he would be referred to a specialist for a report, they have not done this. 

11. Mr McDonald was also critical of various statements made by the SSAT in their Statement of Reasons.  He said he would not be able to undertake console work, for example in a car park, because he would not be able to sit for more than a short period of time after which he would be in pain and, as a result, would be  unco-operative and cranky with customers.  Mr McDonald said his wife would be able to confirm the mistakes made by the SSAT in their report but, unfortunately, she was unable to attend the Tribunal hearing. 

12. Mr McDonald was asked about the 3.5 metre runabout which he listed in his assets.  He said he has not used this boat for about 3 months because of the pain which affects him and which prevents him being able to fish.  He said he is now trying to sell the boat in order to pay for braces on his daughter's teeth which are of much greater importance.
    SUBMISSIONS
    Respondent

13. Mr Konowsky for the Respondent said that an impairment assessment of 20 points under Table 4 in respect of the loss of mobility in both Mr McDonald's right and left legs is appropriate, as attributed by the SSAT. Moreover, the Respondent submits that the SSAT's view that Mr McDonald's back condition should be treated as "temporary" is appropriate because that condition has not, as required by the introduction to the Tables in Schedule 1B of the Act, been "investigated, treated and stabilised". For a condition to be considered permanent, it must have been "diagnosed, treated and stabilised". While Mr McDonald says that he had physiotherapy and underwent rehabilitation in 1996 following the injury to his back, Dr Greacen, in his report dated 21 August 200 (T9), states that Mr McDonald would benefit from "CRS assistance due to his poor sitting tolerance, which may be improvable with attention to his weight and fitness". Mr Konowsky also noted that Dr Christopher Brown, Physician, in a report dated 6 May 1999 (T15), stated that

    There is certainly scope for improving his condition with physiotherapy and
    quadriceps strengthening exercises and other medical management.

Thus, the Respondent submits that Mr McDonald might be able to work within the next two years.

1. Mr Konowsky said the Tribunal should consider Mr McDonald's condition as at the time when the decision was made in August 2000.  He said Mr McDonald acknowledges that his condition has worsened since them.  The earlier specialist reports state that Mr McDonald could walk 200metres.  He now says he can only walk 100 metres.  Nevertheless, even though the SSAT state that Mr McDonald could drive for up to 2 hours and mow his lawn for 1 hour, he says that the SSAT's record of what he is able to do is inaccurate.  Mr Konowsky acknowledged that the majority opinion seems to be that Mr McDonald is unable to undertake heavy manual work of the kind which he previously undertook, which was obviously demanding. Nevertheless, the Respondent submits that Mr McDonald is able to undertake light work.  This is the opinion expressed by the specialists whom Mr McDonald has consulted who have said that he can undertake light work, subject to certain limitations.  For example, Dr Stephen Potter, Rheumatologist, states in his more recent report dated 10 May 1999 (T15), that Mr McDonald "is fit to work full-time as a machine operator", albeit "with sensible restrictions".

2. Mr Konowsky submitted that Dr Greacen's report (T9) is a balanced one which should be accepted.  In the Respondent's opinion, Mr McDonald is capable of retraining for employment in a sedentary position. Thus, the Respondent states that Mr McDonald does not have a continuing inability to work and the decision under review should be affirmed.
   Applicant

3. Mr McDonald was critical of Dr Greacen's report (T9) because he failed to take into account the rehabilitation program which Mr McDonald followed during his period of light duties for Australian Topmaking Services and Mr McDonald's experience in 1997 that physiotherapy aggravated his condition.  Mr McDonald noted that the consultation with Dr Greacen had only lasted about 5 minutes and had not included a physical examination.  Mr McDonald expressed his frustration that the Department has relied on outdated specialists reports and has not sent him for an up to date specialist report as he was told they would.  He said the specialist reports were not relevant to his condition at the time of the decision. 

4. Mr McDonald reiterated that the SSAT decision contains glaring errors of fact.  He noted that when he recently attended the CRS in 2001, they found that his medical condition is such that they were unable to help him.  Mr McDonald said he has not undertaken any work since May 1999 and since the expiry of the preclusion period in respect of payment of benefits, he has remained on Newstart Allowance with the Department recognising that he is incapacitated.
   CONSIDERATION OF LAW AND FINDINGS

5. The Respondent does not dispute that Mr McDonald suffered from a physical impairment at the time he lodged his claim for DSP (s 94(1)(a)). Nor does the Respondent dispute that Mr McDonald's impairment has been correctly assessed as being of at least 20 points according to the Impairment Tables in Schedule 1B of the Act (s 94(1)(b)). However, the Respondent contends that an assessment of 20 points, rather than the 30 points attributed to Mr McDonald's conditions by the original decision-maker, is appropriate given that Table 4 is to be used to assess the impairment of both lower limbs. Moreover, the Respondent agrees with the assessment of Mr McDonald's lower back condition by the SSAT - that the condition is to be regarded as "temporary" in accordance with the Introduction to the Tables, because the condition as not been fully investigated, treated and stablised.

1. The Tribunal agrees that Table 4 is to be used to assess the impairment of function of both lower limbs together.  Under the Table, the appropriate impairment assessment is that of 20 points given Mr McDonald's restriction in walking to 100metres.  With regard to Mr McDonald's lower back pain, the Tribunal does not agree that this condition has not been investigated.  The problem appears to be that X-Ray reports and other documentation relating to Mr McDonald's back was lost in transit between Parkes and Coffs Harbour when sent by Mr McDonald's previous doctor, Dr Pillay to his doctor in Coffs Harbour, Dr More.  Mr McDonald has suffered lower back pain since an accident at work in 1996.  This was a different accident from that which caused the injury to Mr McDonald's knee on 2 February 1997 and was not the primary focus of the specialists' reports which were prepared in relation to Mr McDonald's claim for workers' compensation in respect of  his knee injury. 

2. The Tribunal accepts that Mr McDonald does suffer from a lower back condition which has been diagnosed by his local treating doctor.  The difficulty is its assessment given the lack of any specialist reports.  The restrictions described by Mr McDonald, in particular, his inability to stand for more than about 20 minutes, his difficulty with driving for more than one to one and a half hours and the general limitations on his daily physical activities, all suggest an impairment rating of 10 points according to Table 5.2 which is to be used in respect of the assessment of the thoraco lumbar spine.  The Tribunal also notes that Mr McDonald had physiotherapy for this condition in 1996, but stopped having this when the physiotherapy aggravated his back pain.  He is currently being treated by his GP, Dr Aiken, who has prescribed Tramol and Valium for pain relief.  However, the Tribunal is reluctant to make a definitive assessment given the lack of any specialist reports and, in its view, the appropriate course of action is for the Department to arrange a specialist medical assessment for Mr McDonald so that a report can be prepared on his lower back function. Mr McDonald is currently receiving Newstart Allowance and has a wife and four children to support.  Given his financial situation, the Tribunal considers it unreasonable to expect him to pay for a specialist report.

3. In any event, it is clear that Mr McDonald satisfies s 94(1)(b) of the Act in so far as his impairment assessment is of at least 20 points. The principal issue, therefore, is as the parties agree, whether he has a continuing inability to work (s 94(1)(c)). While Mr McDonald acknowledges that his condition is worsening, his description of the limitations imposed by his condition as at the time of the decision in August 2000, indicate to the Tribunal that the limitations at that time are not significantly different from the limitations which he currently experiences. There is no dispute that Mr McDonald would be unable to undertake manual work of the kind which he undertook before his accidents in 1996 and 1997. The question, therefore, is whether Mr McDonald has a continuing inability to work within the meaning of s 94 (2) and is unable to undertake light duty work within the next 2 years, for example full-time, desk or bench or console based work as suggested by Dr Greacen, the HSA doctor who assessed Mr McDonald on 21 August 2000 (T9). Alternatively, will Mr McDonald's impairment prevent him from undertaking educational, vocational or on –the job training during the next two years, which is likely to enable him to obtain work within that period? Work is defined in s 94(5) of the Act as meaning work for at least 30 hours per week.

4. The Tribunal finds that Mr McDonald's mobility and his ability to stand, sit, bend, kneel and squat is significantly affected by his knee and back conditions.  The Tribunal accepts his evidence that he can walk for about 100 metres and can only sit comfortably or stand for about 20 minutes before he needs to change position.  Moreover, even if he is able to change position at will, the Tribunal accepts that he is subject to lower back pain which affects him on most days of the week, such that he needs pain relieving medication.  His evidence is that the effect of pain is to make him "extremely grumpy".  This "grumpiness" was evident to the Tribunal in the course of the hearing, in so far as Mr McDonald quickly became irritated. In the Tribunal's opinion, the pain suffered by Mr. McDonald together with the restrictions on his mobility and agility, indicate that, at the time of the decision, he would not have been able to work for at least 30 hours a week. 

5. In the Tribunal's opinion, these limitations would also affect his ability to undertake retraining, in so far as he is unable to sit comfortably for more than about 20 minutes and because the back pain would also affect his concentration.  Moreover, even if he were able to undertake retraining, such retraining would not enable him to work within the two year period after the decision was made.  The Tribunal also notes the recent report from CRS dated 6 September 2001 (R4), which records that no CRS program was offered to Mr McDonald because he was convinced that he could not do any work or training at the present time.  The Rehabilitation Consultant, Mark Riley, noted that Mr McDonald fidgeted and moved about constantly at the interview.  While Mr Riley stated that Mr McDonald "could be referred back to CRS Australia if his motivation and perception of his disability improves", it would appear to the Tribunal that this would require that his back pain be better managed.  Now, 18 months after the decision in August 2000, Mr McDonald has been prescribed pain relieving medication for his back condition. While this appears to have ameliorated the pain, it has not led to any significant change in his condition or its effect on him. 

6. The Tribunal therefore concludes that, at the time of the decision, Mr McDonald had a continuing inability to work and, subject to meeting any other eligibility requirements, he was, at that time, and continues to be qualified for the DSP under s 94(1) of the Act. Thus, the Tribunal sets aside the decision under review and substitutes a new decision that in August 2000 Mr McDonald satisfied the requirements of s 94(1) of the Act.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President

Signed:         .....................................................................................
  Associate

Date of Hearing   4 February 2002
Date of Decision   14 March 2002
Representative for the Applicant   Self-represented
Solicitor for the Respondent    Mr Paul Konowsky, Centrelink