Morwood and Department of Family and Community Services

[2000] AATA 408

DECISION AND REASONS FOR DECISION [2000] AATA 408

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1999/214

GENERAL ADMINISTRATIVE  DIVISION       )       
           Re      PHILIP JOHN MORWOOD          
  Applicant

And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Dr EK Christie, Member    

Date24 May 2000

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.           

(Sgd)  EK CHRISTIE
  MEMBER
CATCHWORDS
SOCIAL SECURITY - disability support pension - medical evidence - inference and assessment of impairment - whether continuing inability to work.

Social Security Act 1991 ss 94

Caswell v Powell Duffryn Associated Collieries (1939) 3 All ER 722 at 733

REASONS FOR DECISION

24 May 2000 Dr EK Christie, Member                

1. This is an application by Philip Morwood to review a decision of the Social Security Appeals Tribunal ("SSAT") made on 15 January 1999 to cancel payment of disability support pension (DSP).  The DSP was cancelled on 14 July 1998 (Document T27).  The SSAT decision affirmed the decision of an Authorised Review Officer of Centrelink made on 27 November 1998.

2. In reaching its decision the SSAT concluded:-

   "Because Mr Morwood's conditions did not have a rating of 20 points or more, he does not qualify for payment of DSP.  It was therefore not necessary, in this instance, for the Tribunal to consider if he has a continuing inability to work.  The Tribunal wishes to note Mr Morwood's evidence that he currently undertakes voluntary teaching and encourages him to pursue his plans for retraining." (Document T2 Folio 7, paragraph 21)

3. At the hearing the applicant was represented by Mr A Harding of Messrs Gilshenan and Luton.  The respondent was represented by Ms T Guthrie, a Departmental Advocate.

4. At the hearing the Tribunal had in evidence before it documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975, the "T" Documents (Exhibit 1) and the following exhibit:-

• Exhibit 2            Treating Doctor Report – Dr J Curtis, 29 July 1999

Issues before the Tribunal

1. The only issue for the Tribunal to decide was whether Mr Morwood qualified for DSP.
   SSAT Findings of Fact

2. The SSAT made the following findings of fact at its hearing:-

• "Mr Morwood was in receipt of DSP since 1994 which was cancelled on review [on 14 July 1998] because of a zero rating on the Impairment Tables;

• Mr Morwood suffers from low back pain but has normal or nearly normal range of movement;

• He also has minor symptoms of asthma which are easily tolerated;

• Symptoms related to sleep apnoea are easily tolerated and have no appreciable effect on his ability to work;

• Symptoms related to sinusitis and rhinorrhea are easily tolerated and have no appreciable effect on his ability to work;

• He has minor symptoms of neck problems but has normal or near normal range of movement;

• The conditions, particular the back problem, would prevent him from undertaking any work which involved heavy lifting; and

• The impairment is not of itself sufficient to prevent him from undertaking educational or vocational training during the next 2 years."

1. Following this decision, Mr Morwood has obtained a further Treating Doctor's Report – Dr J Curtis, an Orthopaedic Surgeon (Exhibit 2, 29 July 1999) and has relied on this report in this application for review.
   Evidence of Philip Morwood

2. Mr Morwood said that his main problem was associated with his back as well as radiating pain along his legs.  He described the pain as resembling "a knife in the lower back at all times" and that "[his back] sometimes feels twisted".  He had spasms in his shoulders and frequent headaches.  The pain in his back and neck occurred daily;  activity increased the pain.  The pain affected his ability to sit and he became fidgety requiring him to change position to offset pain.  He had avoided a medication pathway to reduce pain because of the addictive properties of painkillers.

3. Mr Morwood said that he had commenced a Bachelor's Degree in "Adult and Workplace Education" at the start of 1999.  He found it difficult to study full-time as his concentration was affected by pain.  In addition, the practical teaching component of his degree programme at a High School was also severely limited by his medical conditions as it affected his teaching performance.  His disability had led to a situation where he "almost failed" the practical component of his degree studies.  He had now reduced his enrolments in his degree studies from 4 to 2 subjects in order to cope with his studies.

4. Mr Morwood believed that his prospects of eventually working as a teacher were limited because his needs to deal with pain would affect his capacity to work.

5. Mr Morwood said that he had "done everything possible" to try to work.  He had tried working at a bar by working casual shifts of 2½ - 3 hours;  these shifts were much shorter than the regular shifts.  However, the constant standing, together with only a limited break of 15 minutes, caused pain problems for him.  He required 1 – 2 days to recover from the pain.
   Evidence of Dr James Curtis

6. Dr Curtis was an Orthopaedic Surgeon who had been Mr Morwood's treating doctor for a 7 – 8 year period.  Dr Curtis said -

• that Mr Morwood had a 50% restriction in the movement of his lumbar spine when he prepared his report dated 14 March 1995 (Document T9 Folio 49);

• that Mr Morwood had a 50% restriction in the range of movements of his cervical spine and a 75% restriction of movement of his lumbar spine in his report dated 15 February 1999 (Document T39 Folio 155);

• that it was his opinion that the restriction in Mr Morwood's movement, around July 1998, would have been the same, or slightly better, than as described in his report of 15 February 1999;

• that there had been a significant deterioration in the condition of Mr Morwood's neck, together with a moderate deterioration of his lumbar spine condition over time;

• that there had been a fairly steady decline, since 1992, in loss of movement in Mr Morwood's neck;

• that Mr Morwood had a history of intermittent episodes of neck pain present for around 50% of the time associated with headaches and "virtual constant low back pain" radiating to his right buttock, to the ankle and foot; and

• that, in his final report (July 1999), he had described Mr Morwood's condition as cervical spondylosis and lumbar spondylosis together with intervertebral disc protrusion.

1. Dr Curtis said that he had considered the possibility whether Mr Morwood's condition was real.  Because he could only assess two of the five indicators ["the Waddell Test"], no firm conclusion could be made.

2. Dr Curtis stated, in terms of Mr Morwood's continuing ability to work –

• that he felt that Mr Morwood could be employed as a counsellor or social worker as these occupations could accommodate his endurance limits for sitting, standing and walking;

• that such occupations would require at least 5 years of study to become qualified;

• that Mr Morwood would require more than 2 years to return to any kind of full-time work (ie working for more than 30 hours per week) or to be able to work more than 20 hours per week; and

• that Mr Morwood would only have a limited ability for light clerical or sedentary work of a light nature because of his sitting and standing to tolerances of 5 minutes;  Mr Morwood would not be able to sit long enough to work in a sedentary job.

1. During cross-examination by Ms Guthrie, Dr Curtis acknowledged that his assessment of Mr Morwood's condition was an assessment of his clinical condition rather than his functional capacity.  In relation to Dr Yang's (HSA) assessment (Document T25 Folio 104), Dr Curtis stated that he had found a far greater restriction of both active and passive movement of Mr Morwood's spine.  In addition, there was no indication that Mr Morwood was voluntarily withholding these movements.

2. With respect to Dr Reye's (HSA) report (Document T18 Folio 73), Dr Curtis stated that he did not agree with the assessment of Mr Morwood's clinical condition.  Furthermore, Dr Curtis said that he did not agree with Dr Reye's opinion that Mr Morwood would be capable of doing light to moderate work of the nature described ["light and moderate unskilled and semi-skilled categories"].

3. During further cross-examination on Mr Morwood's ability to work, Dr Curtis said that his opinion was based on Mr Morwood's clinical condition in February 1999, together with a re-assessment of his symptoms some 6 months later.  However, he acknowledged that the latter assessment did not include a further clinical examination but relied on questioning Mr Morwood.

4. In forming his opinion that Mr Morwood could not return to work for more than 2 years, Dr Curtis said that he had taken a mixture of both medical and work factors into account, such as –

• the continuing nature of his symptoms and their relationship to neck and back pain;

• the lack of progress following different forms of treatment;

• his observations on several occasions of significant restrictions in the movement of the whole of Mr Morwood's spine;

• the limited "endurance time" Mr Morwood had for sitting of "5 – 10 minutes".  Dr Curtis stated that he believed Mr Morwood would need a very sympathetic employer to be tolerant of this restriction by not requiring Mr Morwood to maintain any tasks or postures for more than 5 or 10 minutes without a suitable break in between; and

• that Mr Morwood had no professional training and the time for him to take to complete formal re-training "would be likely to last more than 2 years".

1. In response to a Tribunal question concerning the accuracy of medical opinion on Mr Morwood's condition based on CT scans carried out in April 1995 and August 1998, Dr Curtis stated that he thought the assessment of impairment would be limited if both scans were not used and –

   "It would depend on the purpose of the assessment.  If it was purely a functional assessment, then the radiological changes don't really come into it because one is not considering the diagnosis, the treatment, or the future prognosis.  But if you're looking at the overall picture, one really does need to have serial investigations of that quality in order to come to a fuller assessment of the whole picture."

Evidence of Dr Yang

1. Dr Yang acknowledged that the assessment of impairment ratings was predominantly a functional assessment;  that in Mr Morwood's case, ie a back condition, there was an option of using Table 5.1 Spinal Function:  Cervical Spine, Table 5.2 Spinal Function:  Thoraco-lumbar-sacral Spine or Table 20 Miscellaneous (including Pain).  He said that the choice of the appropriate Impairment Table depended on whether the person suffered from significant chronic pain symptoms.

2. Dr Yang stated that based upon the assessment of Mr Morwood's functional capacity as "demonstrated by his clinical examination and his reported functional abilities", it was his opinion that Mr Morwood would not get any impairment points under Tables 5.1, 5.2 or 20.

3. In relation to the reports of Mr Morwood's treating doctor, Dr Curtis (15 February 1999, Document T39 and 29 July 1999, Exhibit 2), Dr Yang stated that it would be difficult to change his opinion as they were "different points in time examinations";  that they were different assessments, separated by periods of time, and so difficult to be considered as equivalent assessments.

4. In relation to the application of CT scans to the assessment of Mr Morwood's impairment, Dr Yang stated:

   "A CT Scan would only reflect – would reflect radiological findings but it doesn't correlate well with functional impairment again.  Someone could have quite significant findings on a CT Scan or an x-ray but still functionally be quite capable and vice versa, and you could have someone in quite significant pain and very high level of impairment but have minimal changes on a CT Scan."

5. During cross-examination by Mr Harding, Dr Yang emphasised that his work assessment of Mr Morwood, as well as his impairment rating, was based primarily on his functional abilities and that his opinion did not discount that Mr Morwood was impaired by pain.  Accordingly, Dr Yang's assessment was made by considering the level of severity of pain on Mr Morwood's ability to lead a normal life and to perform activities.

6. Mr Harding referred Dr Yang to Dr Curtis' reports (Document T39 Folio 155, 15 February 1999;  Exhibit 2, 29 July 1999) which indicated that at this time Mr Morwood had –

• 50% range of movement of the neck; and

• a loss of 75% of range of movement in his lumbar spine.

Whilst Dr Yang acknowledged that this date was later than the date of his examination, he stated that Dr Curtis' examination was "silent" on the point as to how he had assessed the restriction to Mr Morwood's range of movement.  For example, in his [Dr Yang's] report (Document T25 Folio 105), he had indicated:

"Ability to sit forward in bed to greater than 90 degrees of legs outstretched indicating good flexion ability in lumbar spine."

1. Dr Yang said that, whereas Dr Reye (HSA) had considered the ability of Mr Morwood to sit forward, he was uncertain as to how Dr Curtis has concluded there was a loss of 75% in the range of movement.  However, Dr Yang agreed with Mr Harding's proposition that if Dr Curtis was satisfied that there was "an objective loss of 75%" then Mr Morwood "would get 20 points without a doubt".

2. Finally, in relation to CT scans, Dr Yang said that from his viewpoint –

   "…CTs add very little to our types of assessment.  Basically, if there is a significant finding on CT basically confirms the presence of organic pathology and then the next question is, would any treatment make a difference to that level of impairment."

Contentions and Submissions of the Parties

1. Mr Harding submitted that the medical evidence of Dr Curtis equated to Mr Morwood having at least 20 points under the Impairment Tables, as at July 1998.  Dr Curtis' report of February 1999 indicated Mr Morwood had a 50% restriction in movement of his cervical spine.  This condition had deteriorated from one where he had a zero loss of movement in 1995.

2. In addition, Mr Harding contended that Dr Curtis' report had also stated that Mr Morwood had a 75% loss of range of movement of a condition diagnosed as lumbar spondylosis – a condition which had also deteriorated over time.  Mr Harding acknowledged that this conclusion, as well as the conclusion for movement of the cervical spine, were made by Dr Curtis some 6 months after Mr Morwood's DSP was cancelled.  However, he contended an assessment of Dr Curtis' oral evidence, together with Mr Morwood's oral evidence [viz. that these "neck and back conditions" were about the same or slightly worse for the 6 months following July 1998] made it "reasonable" for the Tribunal to assign impairment ratings based on the reports of Dr Curtis prepared after the DSP had been cancelled.

3. Accordingly, Mr Harding submitted that:

• under Table 5.1 Mr Morwood would have an impairment rating of 10 points; and

• under Table 5.2 Mr Morwood would have an impairment rating of 20 points.

1. Mr Harding contended that the divergence in medical opinion between Drs Curtis and Yang could be explained because Mr Morwood's condition was intermittent and fluctuated over time.  He said that both doctors had acknowledged this point.

2. In terms of assessment for pain, Mr Harding acknowledged that Dr Curtis had not "actually turned his mind" to the factors to be taken into account in assigning a value under Table 20.  However, by complementing Dr Curtis' evidence that "back pain is present constantly" with Mr Morwood's oral evidence (paragraph 8), it was Mr Harding's contention that Mr Morwood would have an impairment rating of at least 20 points under Table 20.

3. In terms of Mr Morwood's "inability to work", Mr Harding made the following submissions as relevant matters for the Tribunal to consider:

• that Mr Morwood had experienced major difficulties in his degree studies, specifically, that he found he could only manage a half-time workload which effectively involved 2½ contact hours per week, some tutoring plus some reading;

• that Mr Morwood's back and neck problems affected the amount of time he could sit and so be able to read texts;

• that he needed an opportunity to get up and walk around whilst attending classes in order to relieve pain; and that pain caused him to lack concentration;

• that he had real difficulties doing part-time bar work.  A consequence of this work was that he had endured considerable pain which needed time for him to recover after completing each shift;

• that Mr Morwood had an excellent work history, prior to his accident, illustrated by his determination to overcome huge adversities in his personal life and to accomplish education and career goals; and

• his work ethic was such that, rather than remain idle, he had volunteered and found work as a tutor.  He could only do this work as he "could have breaks and duck out of the classroom".

1. Based on these submissions, Mr Harding stated that Mr Morwood had an "inability to work", because of his impairments, for any job involving 30 hours, or more than 30 hours work per week, over the next 2 years.  Moreover, by reference to Dr Curtis' evidence, Mr Harding contended that for Mr Morwood to be re-trained into a job which could allow him to work – notwithstanding his medical conditions - at least 5 years re-training would be required.  The 2 year limit imposed for re-training by the legislation would be clearly inadequate in Mr Morwood's situation.

2. Mr Harding concluded with the submission that Dr Curtis' evidence, in relation to Mr Morwood's impairment rating and "ability to work", should be given greater weight by the Tribunal because he had seen Mr Morwood over a 7 – 8 year period in his capacity as an Orthopaedic Surgeon.

3. Ms Guthrie, the Departmental Advocate, submitted that in assigning a rating under the Impairment Tables, a functional assessment was made and that clinical findings, alone, were not sufficient to enable a rating to be given.  In this regard, it was important to recognise that Dr Curtis' evidence was that he was not doing a functional assessment – but a clinical assessment.  Furthermore, any conclusion based on what his opinion might have been under the Impairment Tables was speculation.  Furthermore, she contended that Dr Curtis' consideration of pain in his medical reports was not his "opinion about the pain", but rather what Mr Morwood had told him about the pain.

4. Ms Guthrie stated that when Dr Yang examined Mr Morwood in June 1998, he had noted "that there was a full range of movement in the lumbar spine and he described good level of daily function despite symptoms".  Furthermore, Dr Yang's assessment, based on the information he received from Mr Morwood, as well as his clinical findings, resulted in a zero points rating under Table 5.2.

5. In terms of cervical spine assessment (Table 5.1), Ms Guthrie submitted that the applicant's medical evidence in February 1999 – some 6 months after DSP was cancelled, should not be preferred to the medical evidence closer to the time DSP was cancelled.  She contended that Mr Morwood's condition was described as a degenerative condition.  In addition, Dr Curtis' evidence, in terms of Mr Morwood's condition at the time his DSP was cancelled, relative to his condition some 6 months later, was that he "would have expected his condition to be about the same but probably a little better".

6. Ms Guthrie's concluding submissions on the assessment of Mr Morwood's impairment were that the respondent's medical evidence should be preferred because:-

• Dr Curtis had not taken into account functional assessment;

• Dr Yang's opinion was subsequently confirmed by Dr Toft (Document T31, 25 September 1998); and

• that Dr Yang's evidence was that he had considered assessment of impairment under Table 20 (Pain) as an alternative to Table 5 and had arrived at an impairment rating of zero points for pain.

1. Accordingly, Ms Guthrie submitted that Mr Morwood did not qualify for DSP because he did not meet the required 20 points under the Impairment Tables.

1. In relation to Mr Morwood's "ability to work", Ms Guthrie made the following submissions:-

• that Dr Yang's evidence was that Mr Morwood was capable of doing work for at least 30 hours per week.  She referred to examples of light sedentary work, e.g. clerical work, that could be undertaken;

• that in terms of re-training, Mr Morwood could acquire skills, within the next 2 years, which would equip him to do clerical work; and

• that whatever is causing Mr Morwood to report pain, "the fact remains he is capable of doing quite a lot of activities during the week which would suggest that he can't be assigned the 20 points or more under the Impairment Tables".

Consideration of the Issues

1. The objective of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times.  The relevant legislation is the Social Security Act 1991 ("the Act").

2. Section 94 of the Act has provisions for Qualification for Disability Support Pension – Continuing Inability to Work.

   "94(1) [Qualification – continuing inability to work]        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% or more under the Impairment Tables; and
   (c)       because of the impairment the person has a continuing inability to work; and
   …..

   94(2)    [Meaning of 'continuing inability to work']          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."

1. The first question for the Tribunal to decide is whether Mr Morwood meets the statutory requirement for impairment in that his medical conditions can be assessed at 20 points or more under the Impairment Tables.

2. In this regard, the medical evidence of Dr Curtis, which was not before the SSAT, is significant.  Mr Harding, the applicant's Advocate, contended that the reports of Dr Curtis, prepared some 6 months or more after Mr Morwood's DSP was cancelled, were a relevant consideration in the assessment of impairment.

3. In considering whether such an inference can be made, the Tribunal has given weight to –

• the oral evidence of Dr Curtis that the restrictions in Mr Morwood's movement in July 1998, compared to February 1999, would have been the same or slightly better;

• the lack of objective evidence upon which this opinion was based; and

• the evidence that Mr Morwood's neck and lumbar spine conditions were deteriorating over time.

1. The decision of LJ Wright in Caswell v Powell Duffryn Associated Collieries 3 (1939) All ER 722 at 733 is particularly relevant in relation to the weight to be placed on an inference where medical opinion is prepared at different points in time:

   There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish….But if there are no positive proved facts, from which any inference can be made, the method of inference fails and what is left is mere speculation or conjecture."

1. Accordingly, the Tribunal concludes that, on the balance of probabilities, no inference can be made that the medical evidence for Mr Morwood's cervical and lumbar spinal conditions at the time his DSP was cancelled was similar to the subsequent medical evidence of Dr Curtis, 6 months, or more, later.  There are no positive facts before the Tribunal upon which such an inference could be based.

2. Furthermore, the Tribunal concludes that the evidence before the Tribunal, as to the question of pain endured by Mr Morwood, is subjective.

3. Given both these findings (paragraphs 48 and 49), the Tribunal has no other alternative than to give weight to the medical evidence and assessment of impairment at the time Mr Morwood's DSP was cancelled.  This means that Mr Morwood does not meet the statutory test of having an impairment rating of 20 points or more under the Impairment Tables and so did not qualify for DSP at the time his entitlement was cancelled.  Given this finding, the Tribunal has no need to consider the question of whether Mr Morwood has a "continuing inability to work".

4. Whilst this conclusion may seem harsh, the Tribunal has no discretion under the legislation other than to make such a finding.  However, the Tribunal makes the observation that Mr Morwood's neck and back conditions are deteriorating conditions.  He has the option of making a new application for DSP based on a further clinical assessment of the current state of his medical conditions which, in turn, can be considered in terms of functional assessment and impairment rating by HSA.

5. For all of the above reasons, the decision under review is affirmed.  This means the decision to cancel Mr Morwood's DSP on 14 July 1998 was the correct decision.

   I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

   Signed:         Denise Burton
     Secretary

   Date/s of Hearing  24.3.00
   Date of Decision  24.5.00
   Counsel for the Applicant         
   Solicitor for the Applicant         Mr A Harding, Messrs Gilshenan and Luton
   Counsel for the Respondent     
   Solicitor for the Respondent    Ms T Guthrie, Departmental Advocate