McDonald and Secretary, Department of Family and Community Servic Es
[2003] AATA 462
•20 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 462
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/315
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN BOSTON McDONALD Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Senior Member J.R Dwyer Date20 May 2003
PlaceAdelaide
Decision The decision under review is affirmed. (signed)
J.R Dwyer
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether the applicant should be given an impairment rating of 20 points – whether the applicant has a continuing inability to do any work or educational, vocational or on-the-job training within the next two years – applicant did not list all of his disabilities on the initial claim form – advised to put in a new application for disability support pension – decision affirmed
REASONS FOR DECISION
20 May 2003 Senior Member J.R Dwyer 1. This is an application under section 179 of the Social Security (Administration) Act 1999 for review of a decision of the Social Security Appeals Tribunal (The SSAT) made on 11 July 2001. The SSAT affirmed a decision made by a Centrelink officer on 23 February 2001, which decision had been affirmed by an authorised review officer on 23 April 2001, to reject a claim for a Disability Support Pension lodged by Mr McDonald at Centrelink, Mandurah, on 27 October 2000.
2. Mr McDonald, who lives in Cooper Pedy, attended the hearing by telephone from Port Augusta, where he was visiting his wife and children. He gave evidence. Mr C. Goldsworthy, an advocate with Centrelink, appeared for the Secretary Department of Family and Community Services. With the consent of Mr McDonald, Mr Goldsworthy remained in the hearing room, rather than go into another room at the Tribunal to speak on the telephone. This was of assistance in helping the Tribunal locate provisions in the legislation as they were referred to, and also in helping the Tribunal to locate comments in documents as they were referred to by Mr McDonald over the telephone.
3. The Tribunal had before it the documents (the T documents) lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and the exhibits tendered during the hearing. It must be said that this hearing did demonstrate that there are difficulties facing applicants who live in areas which are far from city medical services and from Government medical officers and where the doctors, who are present, are very busy treating patients and, thus, might be reluctant to fill in the sort of forms which are required to support a claim for Disability Support Pension.
4. When Mr McDonald lodged his claim he was living in Mandurah, Western Australia. He lodged a claim for Disability Support Pension which was brief and contained the barest minimum of relevant information. The only condition which he claimed rendered him unable to work, was degenerative arthritis. He gave no detail at all as to the nature of the disabilities he attributed to the degenerative arthritis, or as to when they had started to make it difficult for him to work full-time.
5. Beyond ticking boxes he gave no explanation as to the problems which affected his ability to work. The claim contained a report from Dr Low, a treating general practitioner, which stated that Mr McDonald had been diagnosed with osteoarthritis and joint pain and that the condition was long term and likely to last more than two years, but was a fluctuating condition, and that Mr McDonald was unlikely to ever be able to return to any type of work for more than 20 hours a week.
6. However, Dr Low failed to answer a number of questions designed to demonstrate the nature of any inability to work. He wrote across the whole page of nine questions:
“Cannot answer sensibly.”
7. The T documents at T5, page 13, confirm that X-rays on 12 May 1999 showed evidence of osteoarthritic change at L5-S1 and at L4-5. A chest X-ray, T8, page 26, was reported as showing:
“generalised loss in vertebral body height involving vertebrae in the mid thoracic spine … consistent with compression deformities.”
8. The T documents at T4, page 12, also contain a report of a barium meal on 24 February 1999, which demonstrated:
“a small sliding hiatus hernia … with minor gastro oesophageal reflux.”
There was no reference in the claim to the hiatus hernia or gastro oesophageal reflux. Mr McDonald said he had that condition long before 2000.
9. For some reason which was not explained, but may have been because of a shortage of doctors at Mandurah, Mr McDonald was not examined for Centrelink by a doctor, but by a nurse, Ms Reed, from Health Services Australia. She completed a printed form as to symptoms and impairment in the upper and lower limbs. (T9, pp.29-30).
10. There is no dispute about Ms Reed’s comments as to the upper limbs. Mr McDonald, it is conceded, has a 10 point impairment rating on Table 3 in schedule 1B to the Social Security Act 1991 (the Act). However, there is an issue as to the report of the nurse assessor in respect of the lower limbs. She noted as to Restriction of Walking:
“Present but able to walk more than 500 metres.”
Ms Reed was asked to describe how the lower limb impairment interfered with Sitting, Squatting, Kneeling and Climbing and she wrote as to Sitting:
“occasionally has problems”.
As to Squatting she wrote:
“experiences pains in back and knees”.
Where asked to comment on Kneeling, Ms Reed wrote:
“can kneel for short periods, but experiences back pain.”
In respect of Climbing she wrote:
“requires rails to climb stairs..”
Ms Reed also noted:
“good range of movement of both legs.”
11. Ms Reed made no reference to testing the range of movement of the cervical or thoraco lumbar spine. Surprisingly, a doctor then assessed Mr McDonald's impairment without examining him at all, simply on the basis of the nurse's comments.
12. Without performing any assessment of range of movement of the thoraco lumbar spine, Dr Shaw felt able to tick boxes showing that Mr McDonald had a full range of movement of the thoraco lumbar spine, even though the nurse assessor had not tested the range of movement of the thoraco lumbar spine. Dr Shaw's report where he ticked those boxes is at T10, page 33 of the T documents - as to the cervical spine, see question 1, and as to the thoraco-lumbar spine see question 2. Dr Shaw ticked those boxes even though he noted at T10 page 37 “(? ROM unclear)”.
13. The nurse assessor commented that Mr McDonald had restrictions of walking present, but was able to walk more than 500 metres. That was taken by Dr Shaw to mean there was a nil impairment rating for the lower limbs. Dr Shaw expressed the opinion that Mr McDonald would not be able to return to his usual work as a gemologist or carpenter, but wrote that he was:
“suitable for full-time work as of now, but only in light/sedentary type jobs.”
14. On the basis of that report Mr McDonald's claim for Disability Support Pension was rejected on the ground that his impairment was less than 20 points, as calculated on the tables in Schedule 1B to the Act. In order to understand the relevant issues, it is necessary to refer to sections 94(1) and (2) of the Act. They provide, so far as relevant, as follows:
“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.
Note: For work see subsection (5).
15. The impairment tables appear in Schedule 1B. There are tables specifically addressing various parts and functions of the body. Mr McDonald had only referred to the condition of degenerative arthritis. Tables 3 and 4 dealing with upper and lower limbs were addressed but for some reason Tables 5.1 and 5.2 dealing with the cervical and thoraco-lumbar sacral spine were not addressed by Dr Shaw prior to the making of a decision to reject this matter, or by Dr Street who provided a report dated 11 October 2001 (R1).
16. Mr McDonald appealed to the SSAT, which after a telephone hearing affirmed the decision of the Centrelink officer that Mr McDonald had only a 10 per cent impairment rating for his arms and no impairment rating in respect of the effect of the osteoarthritis on his legs. Mr McDonald in evidence at this hearing said he found that decision difficult to understand as he had more trouble with his back, hips and ankles than with his upper arms.
17. When Mr McDonald lodged his application for review by the Administrative Appeals Tribunal, he pointed out that it was inappropriate for him to have his case decided on the basis of a report from Dr Shaw who had not examined him. Accordingly, as Mr Goldsworthy explained, arrangements were made for Mr McDonald to be examined by a Health Services Australia medical officer, Dr Street. Her unsigned report of 11 October 2001, exhibit R1, was written as a result of her interviewing Mr McDonald. Dr Street wrote:
“On examination, Mr McDonald had a good range of movement of the lumbar spine, but stiffness on most movements of his thoraco lumbar spine and decreased range of movement of his cervical spine, particularly on rotation on the right side.”
18. Dr Street, surprisingly for a Health Services Australia doctor, gave no ratings on any table in Schedule 1B. She concluded that Mr McDonald was temporarily unfit for work and was of the view that he should seek specialist advice and further X-rays and be reviewed in 6 to 12 months. Unfortunately, as was discussed at the hearing, the operation of sections 41 and 42 of the Social Security (Administration) Act 1999, and schedule 2, clauses 3 and 4 of that Act, means that unless Mr McDonald was qualified for Disability Support Pension when he lodged his claim, or within 13 weeks of lodging that claim, he cannot be paid in respect of that claim. Thus, Dr Street's recommendation of a review in 6 to 12 months could not help Mr McDonald succeed in this claim.
19. Prior to the hearing, Mr McDonald had lodged with the Tribunal two reports from treating doctors, Dr Kamatakahara, (A1), and Dr Khosa, (A2). Dr Kamatakahara, wrote that he had known Mr McDonald as a patient for 20 years off and on, predominantly with back problems. However, he added as to the period after May 2002:
“Since that time I believe he returned to Western Australia to return again [to Coober Pedy] about May 2002. Since then I have seen him on numerous occasions with complaints of osteoarthritis, severe lower back pain, neck pain, hiatus hernia and extreme depression for which he sought psychiatric assessments and advice.
These appear to be ongoing and due to the nature of his osteoarthritis and multiple pains, he is very depressed at this moment. I understand that he is coming before the Tribunal to re-assess his claim for Disability Pension. Furthermore, he has had major domestic problems and in my opinion he is not capable of holding a job under his current conditions.”
20. Dr Khosa has only known Mr McDonald in the year 2003. He described him having clinical symptoms of gastro oesophageal reflux disease, but he did not refer to Table 11.1 of Schedule 1B, which deals with that disease. Dr Khosa also referred to Mr McDonald having symptoms of depression but, once again, did not refer to the relevant table for psychiatric conditions, which is Table 6.
21. As I said at the hearing, I have decided that Mr McDonald does have an impairment rating of at least 20 points on the Tables in Schedule 1B. I accept the 10 per cent impairment rating on Table 3 in respect of function of the upper limbs which applies when there is “Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb, which causes moderate interference with hand function or manual handling.”
22. However, on the evidence I find there is also a 10 per cent impairment rating in respect of function of the lower limbs on Table 4 as at the relevant date, which was late 2000. The nurse assessor recorded that there was restriction of walking present, but that Mr McDonald was able to walk more than 500 metres. However, it is not clear from her notes whether the 500 metres required any rest before walking further. However a "nil" rating applies where a person “Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500 metres.” Mr McDonald, so far as the nurse's record shows, never said that he could walk without difficulty for more than 500 metres and on his evidence to the Tribunal and on the form completed by the nurse it seems more likely that he could walk 500 metres, or perhaps more than 500 metres on some days, but only with difficulty. That seems to me to fit a rating of 10, for which the criteria are:
“Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation, such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking to 250-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.”
23. It is clear that Mr McDonald reported to the assessor that he had difficulty squatting, rising from sitting and kneeling. I accept his evidence that he has some interference with walking which I find is properly described as moderate. He said it varied from day to day but he did not think he could usually walk 500 metres. Alternatively I find that pain sometimes restricts walking to 250 to 500 metres or less at a slow to moderate pace.
24. Overall, I find that the evidence as at the relevant period shows that there was difficulty in walking 500 metres and there was also difficulty with squatting, sitting and kneeling and, therefore, I find that a 10 per cent impairment rating was appropriate for the lower limbs, as well as the 10 per cent for the upper limbs.
25. However, it seems to me that there was probably also an appropriate impairment rating for a loss of range of movement of the spine, but the medical evidence is not sufficient for me to be sure and make a finding to that effect. As I have said, Dr Street did refer to:
“Stiffness on most movements of the thoracolumbar spine and decreased range of movement of the cervical spine.”
She did not however measure those limitations against table 5.1, or 5.2 and say whether the 5 rating for loss of quarter of normal range of movement of the cervical spine was appropriate, or whether perhaps a 10 rating for the cervical spine was appropriate, nor did she explain whether the stiffness on most movements of the thoraco lumbar spine, equated to a loss of one quarter of normal range of movement, which would have allowed a 5 rating there.
26. Further, Mr McDonald said in evidence that he had had the hiatus hernia for a considerable time and it was certainly present in 1999. He did not note it in his claim form so nobody assessed it, but it is possible that it would have allowed for a rating on table 11.1. On the other hand, it may be that it would not. It may be that the accurate description was “mild symptoms, despite optimal treatment.”
27. However, it is not necessary for me to pursue those matters further, because I have concluded that the evidence does not satisfy me that as at October 2000, Mr McDonald had a continuing inability to work as required by section 94(1)(c)(i) of the Act, as explained in section 94(2) of the Act. The evidence before me was not sufficient for me to be satisfied of that matter.
28. It was suggested by Dr Shaw, who admittedly did not examine Mr McDonald, that he was suitable for light sedentary work, such as a teacher's aide (T10 page 37). Also, Dr Street thought that Mr McDonald needed further review before a decision could be made on those issues. Mr Goldsworthy pointed out that Mr McDonald had told the SSAT that he was quite active, first in assisting his wife in the jewellery shop, second, in looking after the children and, thirdly, in going boating and fishing or crabbing. There was also some reference to installing cupboards in a jewellery shop run by his wife.
29. Mr McDonald himself could not explain how he would have been unable to work in light work and said that if he had been offered suitable work in a jewellery shop he would have tried it, although he may not have been able to do things like bending to get trays of opals, or carrying trays across the shop, but he would have given it a try.
30. From the reports of Dr Khosa and Dr Kamatakahara, it appears that Mr McDonald may now be worse, so that a decision-maker or a Tribunal may find that he did have a continuing inability to work as a result of diagnosed physical and mental impairment, if it looked at his current situation.
31. However, in order to establish that Mr McDonald needs to put in a new claim for Disability Support Pension. It is worthwhile him and, hopefully, a doctor taking time to make that claim as good and as full as it can be, so that it will increase the chances of the original claim being persuasive, so that there may not need to be an SSAT or an AAT hearing of the matter. Mr McDonald and his doctor should take care to see that all possible conditions causing impairment, which result in inability for work, are mentioned in the claim and that the way they prevent him working is described in the claim form and in reports by the doctor as well as by Mr McDonald.
32. On the evidence I have heard today it appears that the first relevant condition would be the degenerative osteoarthritis, which affects the cervical and the thoraco- lumbar spine and also the upper limbs and the lower limbs. The medical report in support of the claim for Disability Support Pension should give details of the loss of range of movement and should be prepared by a doctor who has looked at all the relevant tables in Schedule 1B, to which I have referred in these reasons, namely, Table 3, Table 4, Table 5 for the degenerative osteoarthritis, Table 6 for the psychiatric condition, and Table 11 for the gastric condition. The second condition which should be mentioned is the gastro oesophageal reflux and hiatus hernia as to which Table 11 applies. The third condition which should be mentioned is the consequences of the incident when Mr McDonald was hit on the head with a bottle while in Adelaide last year. That is referred to by Dr Khosa in his report, (A2). Mr McDonald should attach to his further claim a copy of the police statement and a copy of any medical records relating to that incident. The fourth medical condition which should be mentioned is the depression which, on the evidence from Dr Khosa and from Mr McDonald, seems to be related to the incident with the bottle, the pain from the degenerative osteoarthritis, the reflux oesophagitis and also matrimonial problems.
33. It would be helpful for Mr McDonald to himself write a full statement as to how he believes his conditions affect his ability to work. As I have said, the doctor should then do an assessment on all the relevant Tables as well as explaining the impact of each condition on his ability to work. The doctor should also state as to each condition whether it is stabilised and what treatment Mr McDonald has and whether it is likely to last more than two years. I realise that the doctors at Coober Pedy are very busy treating patients and that Mr McDonald is anxious about taking up their time but the more complete the new claim is the more likely it is to be accepted.
34. The decision under review will be affirmed.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.R Dwyer
Signed: .......................................................................................
AssociateDate/s of Hearing 20 May 2003
Date of Decision 20 May 2003
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Mr C. Goldsworthy
Solicitor for the Respondent Centrelink
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