NOYE and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 685

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 685

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1840

GENERAL ADMINISTRATIVE DIVISION		)
Re		BERNARD NOYE

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr K S Levy RFD, Senior Member

Date9 September 2010

PlaceBrisbane

Decision The decision under review is affirmed.

.................[Sgd]........................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Applicant has physical impairment – Physical impairment considered to be permanent – Condition does not attract required impairment rating – No continuing inability to work – Decision under review affirmed.

Evidence Act 1995 (Cth) ss 79, 193

Social Security (Administration) Act 1999 (Cth) Sch 2

Social Security Act 1991 (Cth) s 94

REASONS FOR DECISION

9 September 2010 Dr K S Levy RFD, Senior Member           

INTRODUCTION

1.      The applicant, Bernard Noye, made an application on 23 November 2009 for disability support pension.  He had made an enquiry on 11 November 2009 and there is a record of his intention on that date to claim disability support pension.  His application was considered but rejected on 4 February 2010.  It was further reviewed and rejected by an authorised review officer (“ARO”) on 12 March 2010; and also by the Social Security Appeals Tribunal on 20 April 2010.

ISSUES

2.      The issues for determination are as follows:

(1)Does the applicant have an impairment which satisfies the requirements for disability support pension?

(2)If so, is any such condition permanent?

(3)If so, does that permanent medical condition(s) justify a rating of 20 points or more under the Impairment Tables?

(4)If so, does the applicant have a “continuing inability to work”? 

EVIDENCE

3.      This matter was heard in the Warwick courthouse on 17 August 2010.  Mr Noye was self represented.  The Tribunal heard oral evidence from the applicant and also from a job capacity assessor, Ms Leah Percival.  In addition, the Tribunal had the decisions under review together with medical reports and other evidence previously available.

Medical Evidence

In summary, the following medical evidence was available:

(1) Work cover report, Associate Professor Bruce McPhee, 2 September 2009 

4.      This report outlined the background to the applicant’s condition.  He had been a long distance truck driver for many years.  He had significant back pain in 1996 and had surgical correction (laminectomy).  He was off work for two years and on a pension for much of that time, which included six months off work after the operation.  He returned to work where there was apparently less stress and a reduction in loading and unloading trucks. 

5.      On 18 June 2009, Mr Noye was employed as a meat industry worker.  As he lifted a heavy tub of meat and was leaning forward to place it on a rail, he felt sharp pain in his lower back.  He was given time off work.  As at 29 August 2009, he had had 20 sessions of acupuncture and physiotherapy but he indicated no improvement to his condition.  As at September 2009, Associate Professor McPhee reported that Mr Noye had chronic back pain radiating to his legs which affected his left more than his right side.  As it was not three months since the incident, Professor McPhee concluded that the injury could not be deemed stable or stationary.  There was evidence also of a degenerative condition in the lumbo-sacral region.  Professor McPhee recommended that the applicant participate in a rehabilitation program and thought his condition would not stabilize for a further three months at that time. 

(2) Discharge report, Dr Bill Ryan, 20 October 2009

6.      This report is shown at T6/25-26 of the T Documents.  Mr Noye attended this program from 5 to 16 October 2009.  Dr Ryan concluded that Mr Noye’s physical assessment improved in some areas after his participation in the rehabilitation program. 

(3) Multi-disciplinary report, 20 October 2009

7.      This report was compiled by an occupational therapist, a physiotherapist, a psychologist and an exercise physiologist.  That report shows Mr Noye had a pain intolerance or pain self-efficacy as being “very high” on both admission and discharge from the Gregory Terrace rehabilitation program.  His psychological testing was seen to be “normal” based on a battery of tests on anxiety, depression and stress, however it showed he was “interpersonally distressed”.  That report further shows that:

·   By conclusion of the program Mr Noye could walk six kilometres per day (T6/28).

·   He has independent self management (T6/29).

·   Crouching and kneeling was a problem (T6/30).

·   He was not fit for work at that time, but “with time, it is envisaged that he would be capable of sedentary work such as in the driving profession” (T6/31).

·   He reported minimal benefit from attending the course but did not appear distressed by pain and appeared to be coping well (T6/32).

(4) Report of external medical officer, Dr Wolfgang Seckler, 2 November 2009

8.      At the date of this report, Dr Seckler assessed Mr Noye’s condition as being permanent, stable and stationary.  He noted degenerative changes in the lumbar spine at L5/S1 which he said had been pre-existing for ten years.  Dr Seckler saw no additional change from the degenerative condition and said the aggravation from the work related injury had ceased with no additional impairment.  He assessed the pre-existing impairment as 10% permanent impairment and rated the recent injury to his back as having a 0% impairment. 

(5) Report by Dr David Doolan, 19 November 2009

9.      Dr Doolan is Mr Noye’s general practitioner.  He reported that in relation to the workplace injury (a lumbar back strain), that injury would be present for 3-24 months and that its effect on Mr Noye’s functioning over the following two years would be regarded as “uncertain” (T9/42).  In relation to the longer term degenerative back condition, he confirmed the diagnosis of that condition (T9/43).

10.     Dr Doolan concluded (T9/39) that Mr Noye was unable to stand for prolonged periods and would be unable to do heavy labouring work.  In other words, he could not continue with his previous occupation.  However, his assessment was that Mr Noye would still be able to undertake some work for eight hours or more per week.

(6) Job Capacity Assessment Report, Leah Percival, 25 November 2009

11.     This report considered that Mr Noye could benefit from three interventions:

(1)  vocational rehabilitation;

(2)  secondary rehabilitation (physiotherapy); and,

(3)  work experience (T14/60).

12.     Ms Percival gave evidence at the Tribunal and responded to cross examination by Mr Noye.  Ms Percival is a senior assessor and is trained as an occupational therapist.  She took account of the medical and other professional reports available and concluded that Mr Noye had a present capacity to work of 15‑22 hours per week.  She further assessed that he had a future capacity of 15-22 hours per week if there was no intervention and had the potential to be able to work 30 hours per week if he had the benefit of some of the interventions which she had proposed.  Her determination was that Mr Noye was suitable for light semi-skilled work and suggested that he could undertake work as a courier driver; transport organiser; console operator; ticket collector; or carpark attendant.

(7) Report by Dr Blair Koppen, 16 March 2010

13.     Dr Koppen provided this report in relation to the applicant’s claim for disability support pension.  In relation to the condition of degenerative lumbo-sacral pain, he considered the diagnosis should be confirmed with a date of onset of June 2009.  From information provided to him, he would regard the date of diagnosis (if confirmed) as being July 2009 (T21/79).  At item H of his report he has noted that Mr Noye has ability to sit, stand and move and while he has “ability to bend, lift, twist, carry, push, pull, [he] is not capable of doing manual work”.  He thought the impact of the condition would be likely to persist for more than 24 months and that Mr Noye’s ability to function for the next two years would fluctuate and would be uncertain (T21/80).

14.     There was a further condition raised with Dr Koppen and that report shows that there was a condition of left wrist arthralgia.  Dr Koppen said that diagnosis would be “presumptive” rather than “confirmed” and appeared to have a date of onset of October 2009 (T21/81).  He also thought that this condition would last more than 24 months and could fluctuate (T21/82).

Oral Evidence

15.     Mr Noye indicated that he was confused by some of the medical evidence and could not understand why he should not be on a pension.  Under cross examination, he conceded that the pain had not increased since November 2009 and that standing sometimes becomes uncomfortable for him.  He described his condition as: “I don’t feel that it is crippling but it is definitely restricting”.  He told the Tribunal that he could sit for perhaps one or two hours (depending on how comfortable the chair was) and that he could stand for perhaps one hour (maximum) but he would need to move around rather than stand in the one position.  He does all of his domestic work at home.  He also told the Tribunal that he had diabetes but that was being treated and was not so much of a problem functionally for him as is his back pain.

16.     He told the Tribunal that once he walks 50 to 100 metres, he gets extreme pain in his hips.  The Tribunal asked for clarification about the report by the Gregory Terrace Rehabilitation program because it appeared that he was able to walk two kilometres at the commencement of the program and six kilometres by the conclusion of the program in November 2009.  While he initially denied that that was the case in the daily walk along Gregory Terrace, he did concede that he then returned to the gymnasium and walked on a treadmill and did work on an exercise bike.  It appears that the work in the gym was also assessed and recorded as part of the rehabilitation program.  In re-examination he also said that he did not take pain killers during the rehabilitation program although he has more recently taken some pain medication.

Ms Percival

17.     Ms Percival is the manager of Advanced Personnel Management and has a Bachelor of Occupational Therapy.  She has been undertaking work as a Job Capacity Assessor for five years.  She regarded Mr Noye’s condition as fully diagnosed, treated and stabilised.  She also told Ms Forsyth that it was more appropriate to assess Mr Noye under Table 5.2 rather than under the pain scale shown in Table 20 of the Impairments Table.  She said that these were the professionally recognised standards. 

18.     Her assessment took account of the reports by the relevant medical practitioners which concluded that there was a one quarter loss of range of movement in Mr Noye.

19.     Mr Noye questioned Ms Percival about some of her conclusions and noted that the medical reports reported that he had a problem with bending, lifting etc.  He therefore said that it would not be possible for him to be a courier driver and explained to the Tribunal the relevant duties of such a role.  Ms Percival agreed she had not assessed Mr Noye as to his ability to get in and out of a vehicle frequently as would be required by a courier driver.  Mr Noye made similar comments about the other roles suggested in Ms Percival’s report but she responded by saying that those jobs allowed for regular changes and breaks.  She was also challenged about Mr Noye’s apparent statement that he did not undertake the home exercise program as recommended by professional advisors.  He nearly said that even if it was true he would not have said that to her.  However, Ms Percival stated that it was recorded in her notes and is shown on folio 57 and 59 of the T Documents. 

SUBMISSIONS

20.     Mr Noye referred to the report of Dr Seckler in particular and said that despite the medical reports, he now regarded himself as unemployable.  However, he said that if he could find meaningful work which took account of his medical condition, then he would be happy to go back to work.

21.     I indicated to Mr Noye that it seemed as though courier driving would not be an appropriate or realistic occupation for him.  However, given the evidence and the periods of time that he said he could stand or sit for, he conceded that he may be able to do the work of a transport organiser, console operator, ticket collector etc, where he had the capacity for mobility within his limitations.  He conceded that he would be able to undertake those roles although he expressed some concern about his level of education if he had to handle money. 

22.     Ms Forsyth emphasized that the lower back condition was the main condition to be determined and that Ms Percival’s contention that the conditions were not fully diagnosed and treated or stabilised should be accepted, based on her experience in these matters.  But it was argued that even if the Tribunal accepted that the condition was permanent then it could not attract more than 10 impairment points because of the loss of range of movement.  She also contended that the diabetes condition had no functional impact on My Noye’s condition and that the right wrist condition as put by Mr Noye, is not yet stabilised and therefore cannot be assessed for impairment purposes.

CONSIDERATION

23.     I have had regard to all of the factual and medical evidence as well as the legal considerations in making a determination in this matter. 

24.I make the following findings of fact based on the evidence:

(1)  The degenerative back condition is now stabilised and should be regarded as a permanent condition.

(2)  The back injury which occurred in 2009 has been resolved and attracts zero impairment points.

(3)  The wrist condition more recently raised is outside the period of assessment and in any event is not fully treated or stabilised.

(4)  Mr Noye has a quarter loss of the range of movement and satisfies the criteria for 10 impairment points.  He does not satisfy the criteria for a rating of 20 impairment points.

(5)  Mr Noye’s physical ability (and his skill and aptitude), are such that he could not perform the role of courier driver or console operator.

(6)  Mr Noye concedes, and the Tribunal accepts, that he can perform the work of a transport organiser, ticket collector or carpark attendant or similar working roles.

(7)  Mr Noye could perform work for 15-22 hours per week at present for the next two years without further rehabilitation intervention.

25. In making those findings I have considered items 3 and 4 of Schedule 2 of the Social Security (Administration) Act 1999 (Cth) and determined that the period of review must be 11 November 2009 to 23 January 2010, both dates inclusive.

26. In making the findings of fact above, I have also taken account of Mr Noye’s submissions that the findings of the medical reports are to some degree indeterminate. While that is unfortunate, it is nearly a reflection of the developing nature of disability conditions and the doctors are not in a position at various points in time to be definitive in their conclusions. It also reflects the relatively tight wording of the statutory provisions against which the legal determinations may be made in relation to an application for disability support pension. The medical opinions are admissible evidence under s 79 of the Evidence Act 1995 (Cth).  That section provides that the opinion of a professional person who has specialised knowledge is admissible provided the opinion is based “wholly or substantially” on that knowledge.  It might be suggested that the degree of uncertainty by most of the medical practitioners involved might cast some doubt on whether firm opinions are being provided at all.  While there is clearly a degree of uncertainty for crystallisation of medical opinions at particular dates they do not illustrate that no opinion was being intended by those practitioners.  Indeed, a purposive approach to the interpretation of that section, requires that those opinions be admitted into evidence and inferences drawn which are reasonable (s 193 Evidence Act 1995 (Cth)). Those medical reports are relatively consistent and, together with the long history of back pain dating back to 1996, with back surgery, and, the opinions of Dr Seckler and Dr Koppen which conclude that the lower back pain condition is a permanent one, the permanency of that condition tends to be confirmed.

Assessment under legislative provisions

27. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) is the relevant provision which determines the issues in question.

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 independently of a program of support within the next 2 years; and

(b) either:

(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii) if the impairment does not prevent the person from undertaking a training activity-such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

94(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a) the availability to the person of a training activity; or

(b) the availability to the person of work in the person’s locally accessible labour market.

94(5) In this section:

Training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

(a) education;

(b) pre-vocational training;

(c) vocational training;

(d) vocational rehabilitation;

(e) work-related training (including on-the-job training).

“work” means work:

(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

(b) that exists in Australia, even if not within the person’s locally accessible labour market.

28.Based on the findings of fact, s 94(1)(a) is satisfied.

29. The question in s 94(1)(b) is whether the applicant has an impairment of 20 points or more under the Impairment Tables. Based on the findings of fact, the degenerative condition of lower back pain is the only condition which is “fully documented, diagnosed…investigated and treated and stabilised” (see para 4 of the Introduction to the Impairment Tables). Based on the evidence of the Gregory Terrace Rehabilitation Program, the professional evidence provided and the applicant’s concessions that he could work in the occupations shown in the findings of fact (with some requirements to take account of his circumstances), loss of a quarter of the range of movement would amount to 10 impairment points. To obtain 20 impairment points, the additional criteria for back pain or referred back pain with most physical activities and in addition, standing for about 15 minutes and sitting or driving for 30 minutes only must be met. Those more severe restrictions are not characteristics of Mr Noye’s condition. I find therefore that he satisfies the requirements for 10 impairment points. Section 94(1)(b) is therefore not satisfied.

30. The next question is whether Mr Noye has “a continuing inability to work” as required by s 94(1)(c)(i). This is explained in s 94(2). It is noted that the failure to satisfy s 94(1)(b) means that Mr Noye is not presently qualified for disability support pension. . But for completeness, s 94(2) is examined. The latter sub-section requires an impairment sufficient to prevent the person from doing any work independently of a program of support within the next two years and in addition, that impairment must either be sufficient to prevent an applicant from undertaking a training activity within the next two years or that such training would be unlikely to enable the person to do any work independently of a program of work. In assessing this question, the availability of a training activity or indeed the availability of work cannot be taken into account (s 94(3)). Given Mr Noye’s concession at the hearing that some work within the categories shown above in the findings of fact are types of work which the applicant could well do at present, then it cannot be said that he has “a continuing inability to work”. “Work” is defined as including work for at least 15 hours per week. Taking into account all of the medical evidence, the evidence and experience of the job capacity assessor and her conclusion (which itself takes account of the medical and other professional reports), I find there is no “continuing inability to work” as defined by the legislature.

31.     I therefore answer the issues as follows:

(1)  Mr Noye has a physical impairment which is a permanent condition.

(2)  The condition does not attract an impairment rating of 20 points or more -an impairment of 10 points only can be demonstrated.

(3)  Mr Noye does not have “a continuing inability to work” because of the impairment.

32.     The decision under review is therefore affirmed.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member

Signed: .......................[Sgd]....................................................
  Kate Slack, Research Associate

Date/s of Hearing  17 August 2010
Date of Decision  9 September 2010
The Applicant was self represented
For the Respondent                  Jasmine Forsyth, departmental advocate