Partridge and Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2000] AATA 514

ADMINISTRATIVE APPEALS TRIBUNAL )

) No n1999/469

GENERAL ADMINISTRATIVE DIVISION        )
           Re      MS R PARTRIDGE
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal DR J D CAMPBELL

Date27 June 2000
PlaceSydney

Decision The Tribunal affirms the decision under review.

………………………………
Dr J D Campbell
Member
CATCHWORDS
Social Security – Disability Support Pension – Cancellation - Impairments – Assessment – Continuing inability to work.
Social Security Act 1991 – sections 94, 100, Schedule 1B

REASONS FOR DECISION

DR J D CAMPBELL

Ms R Partridge ("the Applicant") in this matter seeks a review of the decision dated 9 March 1999 of the Social Security Appeals Tribunal which affirmed an earlier decision dated 1 December 1998 of an authorised review officer of Centrelink. This latter decision affirmed a decision dated 2 September 1998 made by a delegate of the Secretary of the Department of Family and Community services ("the Respondent") to cancel the Applicant's disability support pension.
A hearing was held before the Tribunal at Armidale on 15 February 2000 at which the self represented Applicant, assisted by her father, Mr Simpson, gave oral evidence. The Respondent was represented by Ms Schuster, an advocate from the Administrative Law Section of Centrelink.
The following written material was placed in evidence before the Tribunal.
Documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 T1 – T23 PP1 - 67
Supplementary documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 T24 – T31 PP68-108
Statement by the Applicant, Ms Partridge dated 10 February, May 2000     Exhibit A1
Medical Report, Dr Clery dated 21 July 1993     Exhibit A2
Medical Report, Dr Craddock dated 20 October 1999 Exhibit A3
Radiology Report, Dr Barker dated 25 February 1999 Exhibit A4
Medical Report, Dr Batt dated 1 March 1999     Exhibit A5
Medical Report, Dr Craddock dated 2 February 2000   Exhibit A6
Medical Report, Dr Batt dated 10 February 2000         Exhibit A7
Respondent's statement of facts and contentions dated 24 December 1999          Exhibit R1

issues:

The relevant issues in this matter were nominated as:
1.whether, for the purposes of subsection 94(1) of the Social Security Act 1991, the applicant has a physical, intellectual or psychiatric impairment and that impairment is 20 points or more under the impairment tables in schedule 1B; and
If so, whether the impairment is of itself sufficient to prevent the applicant

(a)from doing any work within the next 2 years; and
(b) from undertaking educational or vocational training or on-the-job training during the next 2 years; or
(c)whether such training is unlikely (because of the impairment) to enable the application to do any work within the next 2 years.

legislation:

The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular sections 94, 100(3) and Schedule 1B – Tables for Assessment of Impairment for Disability Support Pension ("Schedule 1B Impairment Tables").
background:
The Applicant was granted disability support pension on 14 January 1993. The Applicant's medical impairments were reviewed by Dr Jones on 11 May 1998 (T9). A decision to cancel the Applicant's disability was made on 2 September 1998 (T10) and advice of this decision was forwarded to the Applicant on the same day (T11). This decision was affirmed by a delegate of the Respondent on 19 October 1998 (T17) following further reconsideration after receipt of further letters from the Applicant and medical reports from Drs Clancy and Batt (T18). Following a review by an authorised review officer, the earlier decision was affirmed on 1 December 1998 (T20). The matter was further considered by the Social Security Appeals Tribunal, who, having considered further medical reports, affirmed the decision to cancel the Applicant's disability support pension, as she did not have a continuing inability to work (T2).
applicant's evidence
Ms Partridge told the Tribunal that she was born on 30 August 1964, and left school at aged 17 having completed the fourth form (school certificate). The Applicant stated that she passed a typing course after finishing school and considered herself to have a good aptitude for typing. The Applicant stated that the only formal employment she has had was as a clinical messenger for two and half weeks in 1983, in Sydney, but was unable to continue because of the effect that walking on hard pavements had on her feet. After ceasing this activity she returned home to Walcha and since has been unsuccessful in securing employment, despite a desire to work.
In 1989 the Applicant stated that she was, as a passenger, involved in a car accident, which resulted in the car rolling and landing on its roof rack. The Applicant was conscious, lying on the side of the road with severe back pain. She was taken to hospital, where she remained for one week and where she was treated for crush fractures to the ninth and eleventh thoracic vertebrae. She was treated at home with a back brace for two months, was referred to a back specialist in Tamworth and recovered a small settlement ($25,000 – $40,000) for her injury. At this time the Applicant stated she was receiving sickness benefits and that she recovered slowly, using bed boards for sleeping while doing little during the day. Eventually the Applicant applied for and received a disability support pension in 1993.
The Applicant informed the Tribunal that she used the settlement money from the accident to help purchase a 40 acre property some 26 kilometres outside Walcha. The Applicant stated that the property is owned by a partnership of which she and one other partner are the two property partners. She stated that the property is about 40 acres in size and is used for Appaloosa horse breeding (eight), milking goats (20) and cows (eight to nine). The Applicant stated that she has three children aged five, four, and three and that she lives and cares for the three children in the house, with her partner retaining accommodation elsewhere on the property. The Applicant told the Tribunal that the property was isolated, with mail service three times a week, no telephone and that she has coped with much help from her parents and the property partner. At the time of the hearing she and her property partner were expecting to have the loan secured over the property finalised within three months, the loan having been raised some years past.
In describing her various medical conditions, the Applicant stated that her back aches all the time, with intermittent episodes of sharp pain occurring quite often and lasting some 15-30 minutes. The pain is located in an area, about the size of a hand, over the lower thoracic upper lumbar vertebrae. The aching is accentuated with weather change and the acute pain is relieved by moving around. The Applicant states that she needs to move frequently, and is unable to sit or lay down for too long. Further she is forced to walk slowly and at the time of the hearing she was not taking medication for the back soreness and/or pain.
In relation to her obesity, the Applicant was of the opinion that this had decreased since the birth of her three children, although she had no idea by how much. She believed her obesity arose as a consequence of her back pain, the relative isolation of the property and the children. Nevertheless it was the Applicant's belief that the obesity did interfere with her ability to move, bend and walk quickly.
In her statement to the Tribunal (Exhibit A1), the Applicant nominated the following issues as being of concern to her;

a)Isolation of the property:         30 kilometres from Walcha, no public transport and mail three times a week.
b)Social circumstances:             unmarried mother with three young children to care for.
c)Chronic Spinal condition:       pain and nocturnal discomfort, with gradual deteriation over time.
d)Stress:  brought on by difficulties with Centrelink, concerns for children's pre-school attendance and financial worries.

medical evidence:

Dr Barter, a consultant radiologist, in a report dated 15 December 1992 stated the following opinion concerning an x-ray of the thoracic spine:
"There is an old compression fracture of the T11 vertebral body with substantial anterior wedging of this vertebral body. There is lesser collapse of the T9 vertebral body and this would also be the result of an old fracture.
Osteophytic disc margin changes are present across the anterior aspect of the 10/11 disc and posterior aspects of discs between T9 and T12 area little narrowed. There is some increase in the low dorsal kyphosis.
Overall appearances are similar to those seen on Tamworth films of May 1990, although since then there has been further ossification across the anterior aspect of the 10/11 disc." (T3, p12)
In a medical report dated 14 January 1993, Dr B Batt, the treating general practitioner stated that the Applicant had compression fractures of T9 and T11 vertebral bodies, with substantial anterior wedging of T11. Dr Batt further commented that there was some increase in the Applicant's dorsal kyphosis, which will be permanent, and that osteophytic disc margin changes and obesity will lead to increasing spinal disability characterised by the probability of continuing pain in her back. (T4, p13)
In a medical report dated 3 August 1993, Dr Clery, an orthopaedic surgeon opined:
"I believe that her present complaints of pain are absolutely genuine and are the result of these fractures. I believe that the long term prognosis must be guarded as it is to be expected that there will be gradual deterioration in the condition of the back in the future
…
In my opinion Rhonda Partridge is not fit to do any work that requires bending, lifting or remaining seated in the one position for more than half and hour." (T5, p16)
In a treating doctor's report dated 22 January 1998, Dr Batt nominated the Applicant's clinical conditions and their effect on her ability to work, in the following manner.
a) Gross Obesity: no change in weight between December 1992 (235lbs) and January 1998 (235lbs). Commenced in 1975, and restricts both the speed and range of the Applicant's movements which limits the Applicants abilities to cope with active physical work. Weight unlikely to alter, but may lose a little by swimming.
b) Low posterior thoracic pain:
Commenced following injury and is unable to sit for long, and aggravated by carrying weights. Currently stable but will probably become worse.

As a consequence of her understanding of the Applicant's condition Dr Batt opined
that the Applicant was not fit for work of any nature, either full or part time at that
time or for a period of more than two years (T6).

In a medical report dated 11 May 1998, Dr Jones, a Health Services Australian medical practitioner expressed the following opinion consequent to his examination of the Applicant on the same day:
"Ms Partridge is an alert intelligent 33 year old with a pleasant cooperative manner, who currently is a partner in a 40 acre property venture breeding Appaloosa horses, and running milking goats. Ms Partridge has 3 children in her care (aged 3, 4 and 13 months). She states she was last in formal employment doing clerical work for 2-3 weeks in about 1982-3, from which she resigned because her feet became painful.
She is truncally obese with a BMI of 42, although the weight has been stable for over 10 years, and she is on no special diets or treatment regimes. There was a crush injury to a lower thoracic vertebra in a motor vehicle accident in 1989, and she report lumbar pain since then and more recently neck pain. There is about ¼ limitation of spinal range and activity related back pain. She exhibited normal gait and agility of postural change of sitting to standing and sat normally for 30 minutes.
Her medical conditions would not preclude her undertaking light duties e.g. office work light sales, light process work. Her doctor had taken childcare responsibilities in to account when assessing work capacity.
She raised some issues related to the care of her children and I have advised her to contact the Centrelink social worker for a possible home visit and I also discussed this matter with her doctor." (T9, p40)
Dr Jones opined that the Applicant had a capacity to work at 30 hours per week in light skilled, semi skilled and lesser skilled categories (T9, p36); that the Applicant's impairments do not prevent her from participation in educational or vocational training programs during the next two years, but her impairments will affect such participation in that the Applicant will not be able to sit for more than 30 minutes at a time (T9, p38); and that while a vocational rehabilitation program is not essential for her return to full time work, such a program would certainly assist in this activity (T9, p39).
In a radiological report on the thoracicolumbar spine dated 25 February 1999, Dr Barter reported:
"There are old post fracture anterior compression deformities of T9 and T11, anterior compression at T11 being quite marked and associated with these vertebral compressions, there is a mild lower thoracic kyphosis. Degenerative features are present at the T10/T11 disc, and there is early degenerative osteophytic change also at the 8/9 and 9/10 thoracic levels. The only further thoracic spine feature of note is a slight scoliosis convex right.
There is moderately severe degenerative narrowing of the lumbosacral disc. Interlumbar discs are not narrowed. No further abnormality is visible in the lumbar spine.
The anterior T9 and T11 vertebral body collapse deformities are similar to those seen on films from 1992." (T22, p66)
In a medical report dated 1 March 1999, Dr Batt stated that the Applicant is severely handicapped by increasing back pain, which has increased as a result of stress associated with the care of three young children. Dr Batt considered the Applicant unsuited for any type of work (Exhibit A5).
In a further medical report dated 10 February 2000, Dr Batt confirmed her earlier opinion and stated that the Applicant's obesity, heavy work and her difficulty in dealing with her many worries aggravates the back pain. Dr Batt considered that the Applicant was fully extended in caring for her home and family and was not capable of working. (Exhibit A7)
In a medical report dated 20 November, Dr Craddock, a locum within Dr Batt's practice considered that the Applicant would be unable to work, because she is unable to leave the three preschool children. Further Dr Craddock, in noting the geographical isolation of the family considered that the family situation is one of socio-economic hardship. (Exhibit A3)
In a further medical report dated 2 February 2000, Dr Craddok reinforced his view that the Applicant's ongoing back pain for which she was regularly taking analgesics coupled with her care of three young children would put any gainful occupation currently out of the question. (Exhibit A6)
submissions:
The Applicant contends that because of her impairments, namely her back condition and her obesity, that she is unable to work. In relation to her back condition, it is her contention that the nature of the condition, and the likelihood of continued deterioration does prevent her from doing many of the activities associated with a workplace. Further it is her contention that her obesity condition aggravates the back condition.
The Applicant submits that she has physical impairments, which on assessment have a combined rating of 20 points or more and that they, when considered in association with the geographical isolation of her property and that she has the responsibility for caring for three children under five, prevent her from undertaking any paid employment.
The Respondent, in conceding that the Applicant has physical impairments and that assessment of these impairments exceeds a combined rating of 20 points or more, submits that the impairments alone are not preventing the Applicant from returning to full time work and/or undertaking educational or vocational training programs during the next two years.
consideration and findings:
The Tribunal in considering this matter notes the following relevant legislation, namely subsection 94(1) in part, (2),(3),(4) and (5):
"94 Qualification for disability support pension
          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
          undertaking educational or vocational training or on-the-job training
          during the next 2 years; and
(b) either:
      (i)..; or
      (ii) 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.
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 education or vocational training or
      on-the-job training; or
(b) if subsection (4) does not apply to the person – the availability to the
  person to work in the person's locally accessible labour market.
94(4) for the purposes of subparagraph (2)(b)(ii), if a person has reached 55,
  the Secretary may, in considering whether educational or vocational
  training is likely to enable the person to do work having regard to the
  likely availability to the person or work in the person's locally accessible
  labour market.
94(5) in this section:
Educational or vocational training does not include a program
designed specifically for people with physical, intellectual of psychiatric
impairments.
On-the-job training does not include a program designed specifically
for people with physical, intellectual or psychiatric impairments.
Work means work:
  (a) that is for at least 30 hours per week at award wages or above,
   and
  (b) that exists in Australia, even if not within the person's locally
  accessible labour market.

In further preliminary comment, the Tribunal notes that the effect of subsection 100(3) of the Act, is to bind the Tribunal to considering the medical status (and that of the Impairments) of the Applicant at the time of the decision to cancel the disability support pension (2 September 1998), including the medical reports leading to the cancellation and for a period of three months thereafter commencing the day after the decision was taken ("the operative period"). Medical evidentiary material either before or after the operative period can be used by the Tribunal to assist only in such circumstances as it allows the Tribunal to gain a better understanding of the impairments in existence during the operative period. The evidence of the Applicant in so far as it relates to her impairment status on the day of the hearing can likewise be used in such manner.
In considering the detailed medical reports and opinions outlined earlier in the decision and also the evidence of the Applicant as to the status of her medical conditions. The Tribunal finds that the Applicant had the following impairments during the operative period.
(a)Lower thoracic upper lumbar back pain, which has its origins in her vehicle accident in 1989 and impairs her ability to lift, carry, bend, sit for long periods and walk quickly as well as causing difficulties with sleeping. The Tribunal acknowledges the medical opinions expressed that the condition may slowly deteriorate over time, and further acknowledge the two reports of Dr Barter (15 December 1992, 25 February 1999) that are indicative of the minimal changes that occurred radiologically over the six year period.
(b)Morbid obesity characterised by an almost stable weight of 235lbs over the period 1992 to 1998. Causes difficulty with mobility and movement.

The Tribunal finds that the Applicant, because of these two physical impairments, satisfies ss94(1)(a) of the Act.
In assessing these two impairments, the Tribunal notes the assessment of Dr Jones, and further his examination details of the Applicant's clinical status (T9, p34) and the other medical reports in so far as they detail general observations concerning the Applicant's impairments at or around the operative period and concludes that the appropriate rating for each of the Applicant's impairments is:
Thoraco Lumbar condition: loss of ¼ range of movement of thoraco lumbar
spine with pain associated with many activities. 10 points under table 5.2.

Morbid Obesity: BM142. Weight relatively stable. Causes loss of

efficiency in daily activities. 10 points under table 20

The Tribunal in finding that the Applicant has a combined assessment rating of 20 points under the appropriate Schedule 1B Impairment Tables, concludes that the Applicant does satisfy subsection 94(1)(b) of the Act.
In considering whether the Applicant has a continuing inability to work, the Tribunal notes that the legislation in question is quite particular in nominating that the inability to work must be as a result of the impairments. The Tribunal, while noting the evidence of the Applicant as to her geographical location and her difficulties associated with the care of three young children, and the opinions of Drs Batt and Craddock on these issues, concludes that these are not matters relevant to the question at hand.
The Tribunal in further considering the issue of the Applicant's inability to work at the operative period notes the evidence of the Applicant, and in particular the activities which cause her pain and or difficulty and for which she seeks assistance. In nominating that she has been able to raise three children under five, albeit with some assistance in particular where it involves heavier cleaning tasks or lifting, the Tribunal notes that the Applicant is able to maintain a house, including light sweeping, cleaning, washing and shopping, but not vacuuming as well as undertaking minor tasks around the property (watering etc). Further the Tribunal notes the examination and opinion of Dr Jones and the various opinions of Drs Batt, Clery and Craddock, in so far as they relate to restrictions arising from the impairments and the Applicant's inability to work arising from these impairments.
As a result of these considerations, the Tribunal finds that the Applicant's impairments at the operative time, while causing restrictions in lifting, bending and mobility, did not of themselves (either singularly or combined) prevent the Applicant from working within the next two years. The Tribunal has already stated that there existed other social and geographical reasons that have been considered by Drs Batts and Craddock as contributing to the Applicant's difficulty is securing employment, and again the Tribunal reiterates that such factors are not pertinent to the consideration of whether the Applicant has, because of her impairments, a continuing inability to work within the next two years.
In making the finding that the Applicant did not have a continuing inability to work the Tribunal gave specific consideration to what the Applicant said she could and could not do at the operative period and to the report and opinion of Dr Jones, as well as reflecting upon the opinion of Dr Clery in 1993, where he stated that
"Rhonda Partridge is not fit to do any work that requires bending, lifting or remaining seated in the one position for more than half and hour." (T5, p16)
Further the Tribunal in accepting the opinion of Dr Jones finds that the Applicant at the operative period had the current capacity to work in a range of light skilled, semi skilled or lesser skilled categories. Further the Tribunal while acknowledging the limited employment, training and work experience of the Applicant, and recognising that she has had keyboard training, accepts the opinion of Dr Jones and finds that the Applicant at the operative period was not prevented by her impairments alone, from undertaking educational or vocational training or on the job training during the next two years. Further the Tribunal finds that having undertaken such training, the only continuing restrictive effects of her impairments in the work situation relate to lifting, bending and prolonged sitting, and these effects arising from her impairments will not prevent the Applicant from undertaking work within the next two years. The Tribunal would comment, however, that the Applicant would benefit from a rehabilitation program as part of her entry into the work place.
As a consequence of the Tribunal's earlier findings, the Tribunal finds that the Applicant fails to satisfy subsection 94(2) and 94(2)(b)(i) and (ii) and further because of these findings fails to satisfy subsecation 94(1)(c). Accordingly the Tribunal finds that the Applicant did not possess all the qualifications necessary for a disability support pension at the operative time.
determination:
The Tribunal affirms the decision under review.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of DR J D CAMPBELL
Signed:         .....................................................................................
  Associate
Date/s of Hearing  15 February
Date of Decision  27 June 2000
Representative for the Applicant                Self Represented
          Representative for the Respondent Ms Schuster

[2000] AATA 514

27 June 2000

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Administrative Decision-Making

Judicial Review

Social Security

Disability Support Pension

Impairment Assessment