Oriti-Niosi; Secretary, Department of Family and Community Servic Es
[2003] AATA 437
•15 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 437
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2001/1657
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES Applicant
And
MARK ORITI-NIOSI
Respondent
DECISION
Tribunal Ms N Bell, Member Date15 May 2003
PlacePort Macquarie
Decision The decision under review is affirmed. (Sgd) Ms N Bell ...............................................
Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – whether the Respondent’s disability attract an impairment rating of 20 points – whether the Respondent has a continuing inability to work – Tables in the Social Security Act does not take into account “pain”.
Social Security Act 1991 – section 94; Schedule 1B
REASONS FOR DECISION
15 May 2003 Ms N Bell, Member 1. This is an application by the Secretary of the Department of Family and Community Services ("the Applicant") for review of the decision of the Social Security Appeals Tribunal ("the SSAT") dated 26 September 2001 to set aside the Applicant's original decision and to send it back to Centrelink with directions that Mr Mark Oriti-Niosi ("the Respondent") satisfies the requirements in section 94(1)(a), (b) and (c) of the Social Security Act1991 ("the Act"). The Applicant's original decision dated 2 July 2001 was to reject the Respondent's claim for Disability Support Pension.
2. At the hearing before the Tribunal, Ms Hannelore Schuster appeared for the Applicant and Mr Martin English appeared for the Respondent. The Respondent gave oral evidence to the Tribunal and the Tribunal had before it the following documentary evidence:
Exhibit
Description
Date
T1-T24
pp1-131Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1
Applicant's Statement of Facts and Contentions
A2
Nick Neville, Occupational Therapist's Assessment
12 May 2002
A3
Vocational Assessment by Tracey Barron, Rehabilitation Counsellor/Vocational Consultant
29 March 2002
A4
Report of Dr McGinty
28 June 2002
R1
Respondent's Statement of Facts and Contentions
background
3. It is not in dispute that following a motorcycle accident in 1995 the Respondent claimed Disability Support Pension in January 2001. He was assessed by officers of Health Services Australia on two occasions in 2001 and was assigned an impairment rating of 10 points pursuant to Table 4 of the Impairment Tables contained in Schedule 1B to the Act.
issue
4. Section 94(1), (2) and (3) of the Act provide:
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
(d) the person has turned 16; and
(e) the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident.
Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2: for Impairment Tables see section 23(1) and Schedule 1B.
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).
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 educational or vocational training or on-the-job training; or
(b)if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.”
5. There is no dispute that the Respondent suffers from a physical impairment and so he satisfies the requirement in section 94(1)(a) of the Act.
6. The issues that remain for the Tribunal to consider are whether the Respondent satisfies the other requirements of section 94(1), ie whether his condition attracts an impairment rating of 20 points or more [s94(1)(b)] and, if so, whether he has a continuing inability to work [s94(1)(c)].
applicant's evidence
7. The Applicant relied on the reports of Dr Arad of Health Services Australia dated 22 February 2001 and 2 May 2001. In his report of 2 May 2001, Dr Arad said:
"Mr Oriti-Niosi has been suffering from:
1. Pain in the right lower limb with moderate interference to walking. Mr Oriti-Niosi had an injury in 1993 and fractured his tibia bone. His knee was injured. Mr Oriti-Niosi had two arthroscopic operations and will need a knee reconstruction in the future. Mr Oriti-Niosi can stand 30 minutes and walk 300 meters. Mr Oriti-Niosi's gait is slow and mildly limping. He can walk on tiptoes with difficulties and can squat with difficulties.
2. Back pain with adequate range of movements. Mr Oriti-Niosi can sit 1.5 hours. He was found to have spondylolisthesis of L5/S1.
Mr Oriti-Niosi's condition is permanent. Mr Oriti-Niosi's impairment rate is 10 according to table 4. Because of his genuine pain Mr Oriti-Niosi is permanently unfit for his duties as a glasier. Furthermore, he is unfit for any type of manual work.
As most people with similar impairment can cope with gainful employment I find that Mr Oriti-Niosi is suitable for 30 hours per week of light duties. Doing these duties Mr Oriti-Niosi should not be required to climb, kneel, run, lift more than 5kg, walk long distance or be in the same position (sitting or standing) more than 30 minutes.
Positions as a car park attendant, an information/inquiries officer, a ticket collector and a museum attendant are in agreement with the above recommendations."
8. The Applicant also relied on the report of Nick Neville, Occupational Therapist dated 12 May 2002 (Exhibit A2). Mr Neville reached the following conclusions:
"A full Functional Capacity Evaluation was completed. The results of the assessment indicated that Mr Oriti-Niosi has some work potential, however he demonstrates poor work fitness and high pain levels post activity.
……..
Mr Niosi moves more slowly and is cautious about sudden movements. He also limits the amount of activity he might perform in a day. He appears to self-limit and self protect by leading a restricted lifestyle. Mr Niosi reports that he no longer plays sport or goes rock fishing. He also reports that he avoids relationships and contact with others stating that he is often irritable and ‘hates to be touched’.
……...
The results of the Functional Capacity Evaluation indicated that Mr Oriti-Niosi is currently fit to perform part-time light sedentary work. With improved work fitness and pain management and the work is non-manual in nature Mr Niosi may be able to find suitable employment.
These restrictions may be reduced if pain levels reduce and his physical fitness improves."
9. The Applicant also relied on the report of Tracey Barron, Rehabilitation Counsellor/Vocational Consultant (Exhibit A3), who reached the following conclusions:
"Physically, it appears inappropriate for Mr Oriti Niosi to return to his previous forms of employment. Mr Oriti Niosi's ability to only stand, sit or walk for 20 minutes presents as the main barrier to his return to work.
A positive is his ability to perform moderate lifting as required. He will require work where he is able to alternate positions frequently, however his tolerances may improve with treatment or exercise programs.
The transferable skills Mr Oriti Niosi possess are predominantly in the heavy labouring, manufacturing and mechanical fields. He may be able to use his mechanical skills to pursue employment in motorcycle sales, spare parts sales (although his standing tolerance would present a barrier) and service station attendant fields.
Mr Oriti Niosi reported he would be able to drive for 6 hours. It may be appropriate at some stage for him to review taxi or bus driving as an option. He would be able to alternate positions between jobs and frequent lifting ifs (sic) not required.
Mr Oriti Niosi appears very injury focused at this time and it would be unlikely he would cope with retraining as a result of his poor concentration and motivation. When questioned as to what Mr Oriti Niosi would like to do he reported he wanted to secure the Disability Support Pension to allow him time to develop a prototype of a motorcycle helmet invention. Mr Oriti Niosi reported he is currently in receipt of Newstart Allowance and is required to actively job seek in order to keep his benefits..
Recommendations
ãThat methods be reviewed to improve Mr Oriti Niosi's tolerances.
ãThat Mr Oriti Niosi pursue employment in motorcycle and service station attendant fields.
ãThat taxi or bus driving options be reviewed if physically appropriate."
10. The Applicant also relied on the report of Dr M L McGinty, General Manager of Health Services Australia dated 28 June 2002 (Exhibit A4), who reported:
"He is currently fit for part-time work of a light nature, though he should be able to change posture as required. He should avoid activities that require prolonged standing or walking, carrying or lifting. The testing indicated that Mr Oriti-Niosi has poor work-fitness and pain behaviour and would benefit from intensive assistance to address this. I am of the opinion that with an appropriate combination of work-hardening and retraining Mr Oriti-Niosi would become fit for full-time (ie 30 hours work a week) within the next two years."
respondent's evidence
11. The Respondent confirmed the evidence he had given to the SSAT, as summarised by the SSAT. In part, that evidence was:
"11.The injury to the right lower limb prevents Mr Oriti-Niosi from engaging in many activities he previously enjoyed. He can no longer snow board or ride a motorcycle. He added that if he fractured his right leg again, he could 'lose the leg'.
12.Mr Oroti-Niosi said that he used to be very independent in the work force. This was his main asset. He could do everything. This is not the situation now as he relies on others to assist him with many tasks.. He is also unreliable in terms of punctuality because he is always tired. He cannot just jump up and get into tasks.
13.Mr Oriti-Niosi said he only sleeps for about two hours at night. This has been the situation for the past seven years. The reason he cannot sleep is due to pain. He does not sleep through the day. He does some domestic tasks at his own pace. If the housework does not get done he does not worry about it. It is not a priority.
14.If Mr Oriti-Niosi becomes exhausted through the day it takes him hours to relax. He is unable to get into a comfortable position due to pain. He said the pain is 'driving me crazy'. He does not however, like taking medication due to an experience in which he became addicted to pain killing medication.
15.The Tribunal asked Mr Oriti-Niosi whether the pain or loss of ease in mobility was the main problem. He said that both are significant issues. He added that he no longer has the mental strength to cope with these problems or to be retrained into another occupation.
16.Mr Oriti-Niosi told the Tribunal that all the specialist reports obtained for the purpose of his insurance claim had been provided to Centrelink. He added that he was awarded a gross settlement sum of $222,000 (net.$169,000). A preclusion period was now at an end.
17.Mr Oriti-Niosi also mentioned ongoing problems with his ankle and hips. He said surgery was required on the hip problem and the damage to his ankle resulted in marked weakness. This surgery is separate to the full knee reconstruction to be undertaken in the future.
18.Mr Oriti-Niosi lost his balance and fell two days prior to the hearing. He said he can walk only 100 metres at a slow pace. He disagreed with the assertion of Health Services Australia that he can walk 300 to 500 metres.
19.When walking Mr Oriti-Niosi experiences a sharp shooting pain around the fracture site. Sometimes he must stop walking to obtain relief. He cannot kneel.
20.Mr Oriti-Niosi cannot carry anything or climb more than three steps. When going up steps Mr Oriti-Niosi uses his hands on his knees for support. If he is on uneven ground he must 'hang on'. Prolonged standing is difficult although the actual time varies. He is unable to sit comfortably although he can drive his automatic car long distances. He does this by using his left leg on the brake. The right leg is not strong enough.
21.Mr Oriti-Niosi said that his lower limb impairments are deteriorating and he is becoming more tired due to the constant pain. He described the level of pain in a continuum of 1 to 10 as being 7/8 on a good day and 10+ on a bad day. His mental status has changed. He now becomes suddenly explosive. He was not like that previously. His life has altered significantly and this adds to the difficulty of coping with constant severe pain. He added that he had been so badly injured that he had to learn to walk again.
22.Prior to the motorcycle accident Mr Oriti-Niosi had no back pain. After the onset of this problem he saw Dr Hopcroft at Taree and was advised he may need a back brace. He must hold his stomach muscles tight all the time to control the constant pain in the thoraco-lumbar area.
23.The level of day to day pain impacts on Mr Oriti-Niosi's concentration. He used to spend time restoring old cars at his own pace. He can no longer do this. He does very little day to day.
24.Mr Oriti-Niosi said he had 'tried everything' to obtain more mobility and to reduce the pain. Nothing has worked. He is hoping that further surgery on his knee will enable him to engage in some activities. There is no time stated by his doctor/s as to when this surgery may take place. His health is the most important factor in life.
25.Retraining for computer work is not possible as Mr Oriti-Niosi has no patience."
12. In his oral evidence to the Tribunal, the Respondent said that he spends 20 minutes to one hour every morning doing stretches in order to become mobile. He said he cannot move suddenly without "pinching a nerve" and being in severe pain. He has undertaken a fitness regime which has made him lose some 25kg in weight and involves walking, swimming and being careful about his diet.
13. The Respondent said that he never has a day with no pain and that on a bad day he would rate his pain at the "high nines". He said his pain is at its worst first thing in the morning and last thing at night and that the weather has a profound effect on his degree of pain.
14. The Respondent said that he has started part-time employment of up to eight hours per week at Slipstream Plastics. He said he can work at his own pace doing very light manual work, sitting or standing when he wishes.
15. The Respondent said that he usually sleeps for a couple of hours per night sometime between midnight and sunrise. He said that the worse he sleeps, the more pain he is in the next day. He said that he sometimes needs to sleep in the afternoon. He tries to avoid pain medication because he is frightened of becoming addicted to it but takes Panadeine Forte or Nurofen when he pinches a nerve or the pain becomes very intense.
16. The Respondent said that he does not have the skills or capacity to do non-manual work such as clerical or telephone work and has always been a "hands on" worker. In relation to such non-manual work he said that if he is having a bad day with his pain he would just snap and that he has a very short fuse. He said that unless he has a keen interest in what he is doing, his concentration span is limited to about half an hour.
17. The Respondent said that everything he does is associated with his pain or somehow takes into account his pain.
18. He made particular note of the fact that his examination by the Health Services Australia medical officer took less then ten minutes.
consideration
19. In order to satisfy the requirements of section 94(1) of the Act, in relation to qualification to receive Disability Support Pension, the Respondent must have the following:
“(a) a physical, intellectual, or psychiatric impairment;
(b) an impairment rating of 20 points or more; and
(c) a continuing inability to work.”
20. There is no dispute that the Respondent suffers from pain in his right lower limb and back pain. He therefore satisfies the first requirement.
21. As to whether the Respondent has an impairment rating of 20 points or more, the condition assessed by the Health Services Australia medical officer in both the Respondent's right lower limb and in his back was "pain".. The Respondent's evidence was of severe and constant pain which interferes with his ability to sit, stand and walk and impairs his concentration and mobility. His evidence was also of general fatigue which stems from lack of sleep due, in turn, to pain.
22. In his report of 12 May 2002 (Exhibit A2), Mr Nick Neville said that the Respondent "demonstrated observable pain behaviours and in the opinion of the evaluator limits Mr. Niosi in his activity. Mr. Niosi has adapted to long term pain and the evaluator came to the conclusion that Mr. Niosi engages in the level of activity he can manage despite the pain." He said later in his report: "Mr. Niosi moves more slowly and is cautious about sudden movements. He also limits the amount of activity he might perform in a day. He appears to self-limit and self protect by leading a restricted lifestyle."
23. Table 20 of the Impairment Tables contained in Schedule 1B to the Act provides:
“Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used. Double-counting of a particular loss of function, by the use of more than one Table, must be avoided.
Rating Criteria
NIL Controlled hypertension
Malignancy in remission with a good to fair prognosisMinor symptoms which are easily tolerated and have no appreciable effect on ability to work.
TEN Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.
Hypertension that is difficult to control despite intensive therapy but without end-organ damage
Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosisHeart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms.
FIFTEEN Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible.
Potentially life-threatening condition which is currently interfering with daily activities but self-care is unaffected.
TWENTY More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work.
THIRTY Very severe symptoms which lead to substantial difficulty with most daily tasks. Assistance with elements of self-care may be required. Symptoms cause severe interference with ability to work or attend work (ie. minimal residual work capacity).
Heart/Liver/Kidney transplants - poorly controlled (poorly functioning) with fairly severe symptoms which lead to substantial difficulty with most daily tasks
Malignant hypertension - severe, uncontrolledInoperable, symptomatic and life-threatening aneurysm or malignancy. Very poor prognosis with only a very limited lifespan.
FORTY Major restrictions in many everyday activities. Capacity for self-care is restricted, leading to dependence on others. No residual work capacity.”
24. The Tribunal considers that the evidence outlined above, which is accepted by the Tribunal, places the Respondent squarely within the description in Table 20 which attracts an impairment rating of 20 points.
25. The Tribunal notes that in the Introduction to the Impairment Tables the following appears:
“In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, where the medical officer 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 otherwise would be used to assess the loss of function to which the pain relates. Medical officers must use their clinical judgement and be convinced that pain or fatigue is a significant factor contributing towards the person's overall functional impairment. Medical reports and the person's history should consistently indicate the presence of chronic entrenched pain or fatigue.”
26. Table 4 of the Impairment Tables is used to assess lower limb function and Table 5.2 is used to assess loss of function of the thoraco lumbar sacral spine. Table 4 provides as follows:
“TABLE 4. FUNCTION OF THE LOWER LIMBS
Table 4 is used to assess lower limb not spinal function (see Table 5). Assess both limbs together. Determination of lower limb impairments must be based on a demonstrable loss of functions.
Rating Criteria
NIL Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.
TEN 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.
TWENTY Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking (4km/h) to 50-250m or less at a time. Can walk further after resting orUnable to walk or stand but independently mobile using a self-propelled wheelchair.
THIRTY Pain or claudication restricts walking (4km/h) to 50m or less at a time. Can walk further after resting or restricted to walking in and around home and:
requires quad stick, crutches or similar walking aid, oris unable to transfer without assistance.
FORTY Unable to walk or stand and mobile only in a motorised wheelchair or wheelchair with an attendant.”
27. Table 5.2 is as follows:
“TABLE 5.2 Thoraco—lumbar-sacral spine
As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.
Rating Criteria
NIL Normal or nearly normal range of movement.
FIVE Loss of one-quarter of normal range of movement.
TEN Loss of one-quarter of normal range of movement as well as back pain or referred pain:
with many physical activities and
with standing for about 30 minutes and
with sitting or driving for about 60 minutes.
or
Loss of half of normal range of movement.
TWENTY Loss of half of normal range of movement as well as back pain or referred pain:
with most physical activities and
with standing for about 15 minutes and
with sitting or driving for about 30 minutes.
orLoss of three-quarters of normal range of movement.
FORTY Ankylosis in an unfavourable position, or unstable joint.”
28. Neither Table 4 nor Table 5.2 adequately takes account of pain at the level of severity described by the Respondent. For this reason, the Tribunal considers that Table 20 is the appropriate Table for use in assessment of the impairment arising from the Respondent's pain in his left lower limb and in his back. It follows that the Respondent satisfies the second requirement in section 94(1) of the Act.
29. Turning to the question of whether the Respondent has a continuing inability to work, the term "continuing inability to work" is defined in section 94(2) of the Act as follows:
“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).”
30. "Work" is defined in section 94(5) of the Act as being work for at least 30 hours per week at award wages or above that exists in Australia, even if not within the person’s locally accessible labour market.
31. It is not contended by the Applicant that the Respondent could return to manual work, given his physical condition. However, it is “any” work, of 30 hours per week, that must be considered by the Tribunal.
32. The Tribunal accepts the Respondent’s evidence that the pain he experiences adversely affects his ability to concentrate and his level of patience and that he becomes “suddenly explosive”. The Tribunal also accepts his evidence of his poor sleep patterns as a result of his pain and the effect this has on him during the day often requiring him to sleep in the afternoon.
33. While there is medical and other opinion to the effect that the Respondent could do light sedentary work (Dr McGinty and Dr Arad) and would benefit from retraining (Ms Barron and Mr Neville), these opinions do not appear to take into account the effect of the Respondent’s pain on his ability to concentrate, his level of fatigue and on his emotional responses. The Tribunal considers that these effects would prevent the Respondent from working for 30 hours per week, even in a very light sedentary occupation for the foreseeable future and at least for the next two years.
34. Similarly, the effects of the Respondent’s pain would interfere with his ability to be retrained by restricting his ability to absorb information and develop new skills. The Tribunal considers that the Respondent’s condition would prevent him from undertaking educational, vocational or on the job training for the next two years.
35. On this basis, the Tribunal considers that the Respondent has a continuing inability to work and therefore satisfies the requirement in section 94(1)(c) of the Act.
Determination
36. The decision under review is affirmed.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N. Bell, Member.
Signed: (Sgd) Kwai-Ling Wong .......................................................................................
AssociateDate/s of Hearing 11 March 2003
Date of Decision 15 May 2003Representative for the Applicant Ms H. Schuster, Department of Family and Community Services
Solicitor for the Respondent Donovan Oates Hannaford
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