MICHAEL TURNER and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2013] AATA 160
[2013] AATA 160
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/2593
Re
MICHAEL TURNER
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Dr P McDermott, RFD, Senior Member
Date 22 March 2013 Place Brisbane The Tribunal affirms the decision under review.
..................[Sgd]................................................
Dr P McDermott, RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Physical, intellectual or psychiatric impairment – Spinal condition – Impairment tables – Impairment rating of 20 points required – Loss of half normal range of movement – Pain not present with most physical activities, standing, sitting or driving – No continuing inability to work – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94, sch 1B
Social Security (Administration) Act 1999 (Cth) sch 2
REASONS FOR DECISION
Dr P McDermott, RFD, Senior Member
INTRODUCTION
I have to decide whether Mr Michael Turner (“the applicant”) is entitled to receive disability support pension. In making a decision about his eligibility for that benefit I have to examine whether he had medical conditions which impaired his ability to work at the date of his claim or within a period of 13 weeks following the date of his claim.
PRIOR DECISIONS
On 4 November 2011, the applicant made a claim for disability support pension.
On 25 November 2011, Centrelink made a decision that the applicant was not qualified to receive disability support pension. On 5 January 2012, this decision was affirmed by an authorised review officer.
On 30 May 2012, the Social Security Appeals Tribunal (“SSAT”) affirmed the decision of Centrelink which decided that the applicant was not entitled to disability support pension.
On 22 June 2012 the applicant lodged an application for review to this Tribunal.
ELIGIBITY CRITERIA
The entitlement to a disability support pension is conferred by s 94 of the Social Security Act 1991 (Cth) (“the Act”).
A person is qualified for a disability support pension if the person has a “physical, intellectual or psychiatric impairment” (sub 94(1)(a)); and “the person’s impairment is of 20 points or more under the Impairment Tables” (sub 94(1)(b)); and “the person has a continuing inability to work” (sub 94(1)(c)(i)). All of these requirements must be satisfied before a person is entitled to a disability support pension.
In considering whether the applicant had a “continuing inability to work”, I must have regard to the definition in sub 94(2) of the Act. That definition requires a claimant to have an impairment which is, of itself, sufficient to prevent a person from doing any work or training within the next two years. In considering whether a claimant has a continuing inability to work the Secretary cannot have regard to the factors in sub 94(3) of the Act. The term “work” is defined to be work of at least 15 hours per week that exists in Australia even if that work is not locally accessible (sub 94(5)).
I should mention that there are other provisions in s 94 that the applicant satisfies. He is over the age of 16 years (sub 94(1)(d)) and is an Australian resident (sub 94(1)(e)(i)).
IMPAIRMENT TABLES
The Impairment Tables which I am required to apply are in Schedule 1B of the Act.
It is also necessary for me to have regard to the instructions in the Introduction to the Impairment Tables (“the Introduction”).
Paragraph 2 of the Introduction provides that the Tables “are designed to assess impairment in relation to work”.
Paragraph 4 of the Introduction provides that “[a] rating is only to be assigned after a comprehensive history or examination”. The paragraph states that for “a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”.
Paragraph 5 of the Introduction states that a condition must be considered to be permanent. That paragraph states that:
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.
The paragraph concludes with a statement that a condition may be considered to be fully stabilised “if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years”.
Paragraph 6 of the Introduction states:
In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
what treatment or rehabilitation has occurred;
whether any treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
Paragraph 8 of the Introduction states:
In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. Table 5 should be used for spinal pathology, however, where the assessor is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that would otherwise be used to assess the loss of function to which the pain relates.
In considering this application I have come to the conclusion that the appropriate table for the applicant to be assessed for his spinal condition is Table 5.2 (Thoraco-lumbar-sacral spine).
TIME FOR DETERMINING ELIBILITY
At the hearing of this application I informed the applicant that to be qualified to receive the disability support pension, he must meet the eligibility criteria on 4 November 2011, which is when he made his claim, or within 13 weeks of the date of his claim.[1] Thus, in considering this application, I am confined to considering the eligibility of the applicant in this 13 week period (“the relevant period”).
[1] Social Security (Administration) Act 1999 (Cth), sch 2, cl 4.
TREATING DOCTOR’S REPORT
Centrelink was provided with a treating doctor’s report dated 3 November 2011.[2] The treating doctor reported a number of conditions. As these reasons are a matter of public record, it is not necessary to discuss his various conditions which the treating doctor stated were generally well managed and caused minimal or limited impact on the ability of the applicant to function and, for that reason, cannot be assigned an impairment rating.[3] The applicant, in giving evidence, also confirmed that this was the case.
[2] Exhibit 1, T-document 5, pp. 25-31.
[3] See Exhibit 1, T-document 5, p. 29, (Condition, 1, 2 and 3).
The treating doctor reported that the condition with the most impact was “lumbar spondylolithesis” and that the diagnosis of the condition was confirmed by x-ray in about 1998. The treating doctor states that there has been a “long history of low back pain + reduced mobility” and reported that the treatment for this condition is “panadeine forte if needed”. The treating doctor reported that the condition makes “standing/ lifting/ driving difficult due to trouble twisting head”. The treating doctor noted that the current impact on the patient’s ability to function is expected to persist for “more than 24 months” and that within the next two years the effect of the condition on the applicant’s ability to function was “uncertain”. It was also reported that there was no planned future treatment.
The treating doctor reported that the applicant also has “bilateral foot pain, secondary to osteoarthritis (? Diabetic peripheral neuropathy)”. The symptoms were noted as being “currently not being able to walk far outside home due to pain” and current treatment as “nil appropriate – seeing podiatrist”. The treating doctor noted that the current impact on the patient’s ability to function is expected to persist for “more than 24 months” and that within the next two years the effect of the condition on the applicant’s ability to function was “uncertain”.
OTHER MEDICAL REPORTS
The applicant has provided a number of reports.
The applicant tendered in evidence a report from Dr G Harding, dated 11 December 2012.[4] Dr Harding reported:
I believe that Mr Turner is also suffering from a degree of central canal spinal stenosis in his lumbrosacral spine although there are no Cat Scans or MRIs to clearly demonstrate this.
Dr Harding also reported on the foot condition as follows:
My examination of his musculoskeletal system also suggests that Mr Turner also has parasthesia in his feet as a result of Morton’s Neuroma in both feet. This I believe is the origin of his parasthesia as not necessarily peripheral neurology of unknown aetiology.
In giving his evidence Dr Harding stood by his report.
[4] Exhibit 3.
The respondent tendered a report from Dr Smith, dated 21 February 2013.[5] Dr Smith has reviewed all of the available medical reports but has not personally examined the applicant.
[5] Exhibit 5.
WORK CAPACITY ASSESSMENT REPORTS
On 23 November 2011, a Job Capacity Assessment Report was completed by Ms K Edwards, a registered occupational therapist.[6] In the report the applicant’s medical conditions were set out. An impairment rating of 10 points was assigned for the spinal condition. Ms Edwards considered that the foot condition of the applicant was not fully treated and stabilised as the applicant was awaiting a nerve conduction test for the peripheral neuropathy.
[6] Exhibit 1, T-document 9, pp. 64-70.
Ms Edwards considered that the current baseline capacity for work of the applicant was 8-14 hours per week or 15-22 hours per week with intervention. It was recommended that any work be “light less skilled”.
Ms Edwards recommended that the applicant be referred to Disability Management Services for specialist employment advice. However, the applicant declined to be assessed by Disability Management Services.
On 5 September 2012, a Job Capacity Assessment Report was completed by Mr W Moore, accredited exercise physiologist and rehabilitation counsellor.[7] Mr Moore considered that Table 5.2 was the most appropriate table to assess the spinal condition of the applicant and associated pain symptoms. He recommended that the applicant be assigned an impairment rating of 10 points.
[7] Exhibit 4, annexure “ST-1”.
CONSIDERATION
There is evidence that the applicant has a physical, intellectual or psychiatric impairment for the purposes of sub 94(1)(a) of the Act. This impairment is his spinal condition. Both Dr R Mathews, in his report of 10 July 1998,[8] and Dr I Highet, in his report of 23 January 2007,[9] have reported that the applicant has a spondylolisthesis condition at the L5‑L6 level. Ms K Edwards, in her report of 11 November 2011, has recognised that the applicant has a spondylolisthesis condition.[10] As there is evidence that the spondylolisthesis condition is a long-standing condition I am satisfied that the applicant satisfied sub 94(1)(a) of the Act at the time of his claim.
[8] Exhibit 1, T-document 8, p. 59.
[9] Exhibit 1, T-document 8, p. 60.
[10] Exhibit 1, T-document 9, p. 64 (see “Remarks” section of report).
I must next consider whether the spinal condition of the applicant warrants his being assigned an impairment rating of 20 points or more under the appropriate table or tables in the Impairment Tables for the purposes of sub 94(1)(b) of the Act.
I have given some consideration to the appropriate table to assess the spinal condition of the applicant. I consider that it is appropriate to assess the condition of the applicant under Table 5.2 which is entitled “Thoraco-lumbar-sacral spine”. This is because this table “measures overall mobility of the trunk”. I appreciate that the SSAT regarded Table 20 as being appropriate to assess the condition of the applicant.
Paragraph 8 of the Introduction provides that Table 5 should be used for spinal pathology. I appreciate that in certain circumstances Table 20 should be used instead to assign an impairment rating. However, Table 20 should be utilised, instead of the Table that would be used to assess the loss of function to which the pain relates, where the Table underestimates the level of disability because of the presence of chronic entrenched pain. In my view the medical evidence does not establish that the applicant has chronic entrenched pain which would warrant an assessment under Table 20.
The treating doctor states that the treatment of the applicant is “panadeine forte if needed”. The applicant states that he takes other medication such as Panadol Osteo. However, the applicant elected not to give evidence and so this statement is not verified on oath or affirmation. I advised the applicant that I would ordinarily give greater weight to evidence given upon oath or affirmation. The report of the treating doctor does not confirm that the applicant takes Panadol Osteo. The treating doctor also does not recommend any further treatment. There is no suggestion that the applicant should be referred to a specialist for the assessment of his pain or to a pain management clinic.
There is certainly a difference of opinion as to the magnitude of the loss of range in the movement of the applicant’s spine. Both Mr Moore and Dr Smith consider that a rating of 10 points is appropriate as the assessor suggests that there is a loss of movement of 25%. Dr Harding considers that there is a greater loss of range of movement. In his report, Dr Harding states that there is a “marked loss of range of movement” in the spine which he considers “would equate to a loss of more than half of a normal range of movement for this man’s age”.[11] I give some weight to the report of Dr Harding as he practices in the field of musculoskeletal medicine. Dr Harding has provided measurements of the loss of movement of the spine; he is the only medical practitioner who has assessed the loss of range of movement of the spine. The evidence of Dr Harding as to the loss of range of movement has not been contradicted by any medical practitioner who has examined the applicant and measured the movement of the spine. In these circumstances I consider that it is only fair to rely upon the assessment of Dr Harding. I find that there is a loss of half the normal range of movement of the spine which would satisfy the first criteria for an impairment rating of 20 points under Table 5.2.
[11] Exhibit 3.
In order for the applicant to be assigned a rating of 20 points under Table 5.2, as well as having a loss of half the normal range of movement in his spine, it is also necessary that the applicant have back pain or referred pain with most physical activities, with standing for about 15 minutes and with sitting or driving for about 30 minutes. While I certainly accept that the applicant does experience back pain, I cannot be satisfied that he has such pain which would warrant him being assigned a rating of 20 points. The applicant declined to give evidence before this Tribunal. The treating doctor does not report that the applicant regularly takes pain medication but that such medication is taken “if needed”. While the treating doctor acknowledges that “standing/lifting/driving” is difficult, there is no suggestion in his report that this is due to pain but rather to his trouble in twisting his head. In a case where a person experiences pain it is usual for the person to explore treatment options. The applicant has not tendered any reports to show that he is obtaining treatment to alleviate pain in regard to his spinal condition. There is a suggestion that the applicant may have central canal stenosis in his lumbrosacral spine although there are no cat scans or MRIs which clearly confirm this.
I find that the spinal condition of the applicant should be assigned a rating of 10 points under Table 5.2, as in force at the date of the claim. I assign this rating because Table 5.2 provides that a rating of 10 points is appropriate where there is a loss of half of the normal range of movement.
As a matter of completeness, I should record that the evidence before me does not enable me to assign a higher rating under Table 4 in the new Impairment Tables in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. I have thought it appropriate to consider this matter as the new Impairment Tables came into force during the relevant period.[12]
[12] See Social Security (Administration) Act 1999 (Cth), sch 2, cl 4, whereby “a claim is taken to be made on the first day on which the person is qualified for the social security payment” during the 13 week period immediately after the claim was lodged.
At the hearing of this application the applicant based his case solely on his spinal condition. However, it is important for me to consider his foot condition in view of the fact that his treating doctor considers that the foot condition has a significant impact on his ability to function. I have already mentioned that para 4 of the Introduction provides that for “a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”. It is my opinion that the foot condition cannot be assigned a rating as it has not, in my view, been fully investigated. There is a divergence of opinion as to what is the cause of the condition. The treating doctor has diagnosed diabetic peripheral neuropathy. Dr Harding disagrees with a conclusion that the applicant has peripheral neuropathy of unknown aetiology; he suggests that the applicant has parasthesia which may have an origin as a result of Morton’s neuroma in both feet. A neurologist also considers that alcohol consumption is a contributor to the foot condition.
In these circumstances I am unable to assign a rating for the foot condition which has not been fully investigated within the period of 13 weeks following the date of the claim.
CONTINUING INABILITY TO WORK
As the applicant cannot be assigned a total of 20 impairment points it is not strictly necessary for me to determine whether he has a continuing inability to work. However, I feel that it is appropriate for me to make some observations on the application of sub 94(2) of the Act.
In order for the Secretary to conclude that a person has a continuing inability to work because of an impairment it is necessary that the criteria in both subs 94(2)(a) and (b) of the Act be met. This is indicated by the presence of the distributive word “and” in sub 94(2).
In considering the application of sub 94(2)(a) of the Act, which refers to work, I must refer to the definition of “work” in sub 94(5), which refers to work for at least 15 hours per week.
Ms Edwards, in her report, opined that the current baseline capacity for work of the applicant was 8-14 hours per week or 15-22 hours per week with intervention. Ms Edwards was cross-examined by the applicant who did not challenge her assessment of the current baseline capacity for work. Her report, which I consider to be a fair and balanced report, is therefore unchallenged evidence which I have decided to accept. I therefore find that the applicant had, during the relevant period, a current baseline capacity for work of 8‑14 hours per week or 15-22 hours per week with intervention. The applicant therefore does not satisfy the test in sub 94(2)(a) of the Act.
There is no evidence before me that the impairments of the applicant are of themselves sufficient to prevent him undertaking educational or vocational training or on-the-job training during the next two years in terms of sub 94(2)(b)(i) of the Act. It is important to mention that the applicant has an associate degree in engineering as well as experience in computers. I would recommend that some assistance should be provided to the applicant to identify any suitable training programs.
Having regard to all of the evidence before me I have come to the conclusion that the applicant is not entitled to disability support pension. The respondent has quite properly advised the claimant that he can make another claim for disability support pension; this will enable his condition to be assessed as at a later period.
DECISION
I affirm the decision under review.
I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member ...................[Sgd].........................................
Associate
Dated 22 March 2013
Date of hearing 26 February 2013 Applicant In person Solicitor for the Respondent Ms Brooke Carruthers, DLA Piper
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