Partridge and Secretary, Department of Family and Community Services

[2002] AATA 146

DECISION AND REASONS FOR DECISION [2002] AATA 146

ADMINISTRATIVE APPEALS TRIBUNAL       No Q2001/782

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

DECISION

Tribunal       Mr R G Kenny, Member    

Date7 March 2002

PlaceBrisbane

Decision      The Tribunal affirms the decision under review           
  ...................(Sgd)..................
  R G Kenny
  Member
CATCHWORDS
SOCIAL SECURITY - disability support pension - whether applicant has physical, intellectual or psychiatric impairment – whether applicant has impairment rating of 20 points or more - relevant time-frame - whether applicant has continuing inability to work

Social Security Act 1991 - Section 94, Schedule 1B

REASONS FOR DECISION

7 March 2002           Mr R G Kenny, Member                

Background

1. On 7 December 2000, Robin Partridge (the applicant) lodged a claim with Centrelink for payment of disability support pension in respect of the effects upon him of osteoarthritis of both wrists and a frozen right shoulder.

2. On 17 January 2001, a delegate of Centrelink rejected the applicant's claim. That decision was affirmed by an authorised review officer on 10 April 2001 and, in turn, by the Social Security Appeals Tribunal on 4 July 2001. On 31 August 2001, the applicant sought a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

Appearances

1. The applicant attended the hearing but was not represented. Mr T Ffrench, Manager of the Advocacy and Administrative Law Team with Centrelink, appeared on behalf of the Secretary, Department of Family and Community Services (the respondent).

2. At the hearing, the following material was taken into evidence from:

• the respondent:

  Exhibit 1 – documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents: T1 – T29);

  Exhibit 2 – a medical report, dated 11 January 2002, from Dr G Lister, the applicant's treating doctor;

  Exhibit 3 – a medical report, dated 4 February 2002, from Dr G Ballenden, medical adviser with Health Services Australia.

• the applicant:

  Exhibit A - a medical report, dated 15 December 2001, from Dr G Lister; and

  Exhibit B – a radiology report, dated 7 December 2001, from Dr P Landy from Queensland Diagnostic Imaging.

Issues and Legislation

1. The issues in this matter relate to whether or not the applicant is qualified to receive a disability support pension which is payable in accordance with the terms of section 94 of the Social Security Act 1991 (the Act) which relevantly reads:

94. Qualification for disability support pension
(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; …

(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 form 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).
(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.

(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do the work, have regard to the likely availability to the person of work in the person's locally accessible labour market.
(5) In this section:
"educational or vocational training" does not include a program designed specifically for people with physical, intellectual or 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."

1. In accordance with that provision, the Tribunal must determine:

• whether the applicant has a physical, intellectual or psychiatric impairment; and, if so

• whether he has an impairment rating of 20 points or more which is calculated under the Impairment Tables in Schedule 1B of the Act as required by paragraph 94(1)(b) thereof; and, if so

• whether he has a continuing inability to work as required by subparagraph 94(1)(c)(i) of the Act.

1. To qualify for a disability support pension all three of the requirements must be met by the applicant. Further, they must be met at the time of the initial claim or in the period of three months starting immediately after the day on which his claim was lodged as provided for in section 100 of the Act which relevantly reads:

100. Early claim
(3) If:

(a) a person lodges a claim for a disability support pension; and
(b) the person is not, on the day on which the claim is lodged, qualified for a disability support pension; and
(c) the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;

the person's provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia.

1. The tables in Schedule 1B with potential relevance in this matter are Tables 3 and 20 which read:

TABLE 3. UPPER LIMB FUNCTION
All upper limb problems are assessed under the upper limb Table (Table 3). Each arm is assessed separately. Determination of upper limb impairments must be based on a demonstrable loss of function.

Rating Criteria
NIL Can use dominant limb effectively and/or demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.
FIVE Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function or manual handling.
TEN Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.
FIFTEEN Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes significant interference with hand function or manual handling.
TWENTY Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes significant interference with hand function or manual handling or unable to use non-dominant upper limb at all.
THIRTY Unable to use dominant upper limb at all

TABLE 20. MISCELLANEOUS - MALIGNANCY, HYPERTENSION, HIV INFECTION, MORBID OBESITY (ie BMI >40), HEART/LIVER/KIDNEY TRANSPLANTS, MISCELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN
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 cannot 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 prognosis. Minor 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 prognosis. Heart/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, uncontrolled. Inoperable, 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.

Applicant's evidence

1. The applicant, who was born on 1 March 1940, gave oral evidence to the Tribunal including the following history of his wrist and shoulder problems. He said that had been experiencing pain in his wrist and that he attributed this problem to work he had done as a wool presser over many years. He stopped undertaking that work in the 1980s and then was a shearer's cook for some years. Again, he ceased this work because of wrist pain and also because of a developing problem with his lower back which prevented him from standing or sitting in one position for very long. He was engaged in various short term jobs after that, the most recent being as a cleaner in 1998. He said that he ceased that work because of both his wrist and back pain.

2. The applicant also referred to the limitations he has because of his health problems. He is able to undertake most household duties such as vacuuming, cleaning, cooking and washing but experiences pain in his wrists with jerking and twisting movements. He also mows his lawn as required and this takes about 20 minutes. He notices a tendency to drop things and believes that this is due to a weakened grip strength. He said that this can happen once or twice a day but he also said that "it was not a huge problem". He is right handed and drives a car with a manual gearbox and without power steering and said that he has wrist and back pain on distance driving and wrist pain associated with changing gears. In relation to his shoulder, he said that this hurts from time to time with jerky movements of his arm and when he is using his arm in an elevated position.

3. The applicant said that he resists the taking of medication for his conditions. He does not take pain relief medication such as Panadol but did complete a short course of non-steroidal anti-inflammatory drugs. He discontinued these about 12 months ago because he found that they offered little assistance and because he was told that they had the potential to cause adverse reactions in his digestive system. He said that a new form of such medication had been described by Dr Lister but had not been prescribed because of a sulphur intolerance. A wrist splint had been applied for a short time to his left wrist but he found it of little benefit. The applicant also said that he had been advised by a specialist he had seen at Princess Alexandra Hospital that a surgical procedure could be carried out on his wrists and that this might have the effect of reducing pain. However, he did not favour that option because he had also been told that surgery may result in the development of a decreased range of movement.

4. In cross examination, the applicant said that, when he had lodged his claim, his back was troublesome for him but that he did not consider that he should include the condition as part of the claim because, over the years, he had "just accepted it". He had not advised his doctor of the back problem at that time. The applicant also said that he tries to keep up an exercise regime and that he rides a bicycle for up to two hours per week. He said that he has no difficulty in using a telephone and that he is no longer as involved with volunteer work as much as he used to be. He still gives occasional assistance to the Queensland AIDS Council and that, as recently as last week, he was able to assist by drilling some holes in a piece of aluminium. Also, he said that reading newspapers is one of his interests and he does this for about half an hour each day sitting in the local library which is near his home. In relation to his ability to undertake work, the applicant said that he would need a job which enabled him to alternate frequently between a sitting and a standing position because of the rapid onset of back pain.
   Medical evidence

5. In evidence before the Tribunal were reports from Dr Lister, the applicant's treating doctor. In the first report, dated 5 December 2000, which accompanied the initial claim, Dr Lister diagnosed right rotator cuff syndrome and bilateral wrist osteoarthritis. In the treating doctor's report attached to the claim and dated 7 December 2000, Dr Lister again described the applicant as having osteoarthritis of the wrists and as having frozen shoulder. He described these conditions as being long term in that they were likely to persist for at least two years. He referred to the wrist condition as causing chronic and severe pain and stiffness in the joints. For the shoulder conditions, he referred to pain and stiffness and difficulty lifting, manipulating or carrying objects. He said that the applicant could not work and would not be able to do so for at least two years.

6. In a further report, dated 15 December 2001, Dr Lister said that the wrist condition caused generalised weakness of grip and weakness and limitation of both extension and flexion of the wrists bilaterally resulting in limitations on the ability to lift, hold and grip. He said that this led to the applicant's dropping of things. He referred to sudden movements causing sharp and persisting pain. In relation to the shoulder condition, Dr Lister said that the applicant feels pain if he attempts to raise his arm above the shoulder. Dr Lister said that both the shoulder and the wrist conditions were progressive in nature and worsening. Those descriptions were repeated by Dr Lister in his report of 11 January 2002 and, in each of those reports, he described each of the applicant's arms in the following way:

… moderate to severe symptoms which are distressing but prevent few everyday activities. Self care is unaffected [but in his case more difficult than for an unaffected person] and independence is retained. Symptoms may have mild to moderate impact to perform or persist with work-related tasks…

1. An orthopaedic surgeon from the hand clinic at Princess Alexandra Hospital, Dr P Rowan, completed a report on 27 July 2000 (see T7). There, Dr Rowan referred to the applicant as being in receipt of sickness benefits at that time because of his wrists. He said:

At present he has wrist pain which only prevents him from working. It is otherwise not too bad. He does have some mild pain at night but this also doesn't seem too bad.

1. Three medical reports were in evidence from doctors with Health Services Australia. These were from Dr S Yang, dated 4 January 2001 (T13); Dr G Rolls, dated 22 March 2001 (T22); and Dr G Ballenden, dated 4 February 2002 (exhibit 3). Dr Yang and Dr Rolls commented on the applicant's left and right upper limbs; Dr Ballenden did the same but also commented on minor degenerative changes in the applicant's back and to testicle pain. Dr Yang stated:

This 60 year old cleaner suffers bilateral wrist pain attributed to osteoarthritis. This condition, causes him constant mild aching but does not restrict him from light activities. He remains independent, reliably sustaining all activities of daily living including housework, simple chores, driving his car, grocery shopping and mowing the lawn. His wrist pain is exacerbated by more strenuous manual activities such as mowing the lawn but he did not describe severe or prolonged impairment following such activities. His chronic symptoms are bearable and he does not use any analgesic or anti-inflammatory medications. He also had problems with a right sided frozen shoulder last year but this appears to have mostly resolved and by his own account does not cause him significant problems now. Clinically, he demonstrated impairment causing moderate interference with manual handing and function in both wrists. This would preclude him from fulltime work in his previous occupation as a cleaner and in all other heavy manual employment.

Based on his clinical presentation and his described level of function, he remains able to perform full-time light work which does not involve strenuous or repetitive manual activities (eg. console operator, gate attendant, sales person, messenger, telemarketer.) There are significant nonmedical factors which would impact on his employability (eg. age) and his treating doctor may have considered these in his work capacity assessment.

1. Dr Rolls described the applicant's upper limb conditions in the following way:

This client was examined on 4/1/01. He has bilateral wrist pain. He is not on medication and can do most activities at home although mowing the lawn aggravates the wrist pain. His right frozen shoulder had resolved at the time of the examination. I have tried to contact the treating doctor on two occasions and he has been unavailable. He has reduced grip strength and range of movement in both wrists.

He is not fit for moderate to heavy work but would be medically capable of light work such as console operator or car park attendant.

1. Dr Ballenden stated:

He currently has pain in both wrists, which on x-ray show degenerative changes that are marked. He also has shoulder pain bilaterally. He has had x-rays of the shoulders as well and these show some degenerative changes also. He has seen two orthopaedic surgeons for the wrists, both of whom have advocated surgery for fusion of these joints, but have suggested he should have this when he feels he cannot manage. He has declined this option at this time. He has not even had a steroid injection into any of these joints. He wears no splints; he manages all his own housework, self-care, lawns, shopping, but has pain at rest, left worse than right and experiences increasing pain with all use. The heavier the use the worse the pain and the longer it lasts.

1. Each of the four doctors referred to above gave an opinion of what the appropriate impairment rating should be under the tables in Schedule 1B of the Act. Dr Yang and Dr Rolls relied on Table 3 and nominated 10 points for the applicant's right arm and 5 points for his left arm. Dr Ballenden also utilised the criteria in Table 3 and gave a global assessment of 15 points. Dr Lister did not refer to Table 3. Rather, he relied on the criteria in Table 20 and nominated 15 points for the applicant's right arm and 10 points for his left arm. 
   Applicant's submissions

2. The applicant submitted that the decision under review was wrong and that he met the requirements for the disability support pension. He said that reliance should be placed on the reports and opinions of Dr Lister rather than those from Health Services Australia. He also submitted that he would not be able to undertake any work and that this was mainly due to discomfort in his lower back.
   Respondent's case

3. Mr Ffrench conceded that the applicant suffered from a physical impairment in relation to his upper limbs but submitted that the only conditions that the Tribunal could consider were those referred to in the initial claim. On that basis, the Tribunal could not consider the effects on the applicant of a lower back condition. He also submitted that the appropriate Table of Schedule 1B to utilise was Table 3 because this was the system specific Table in this case. Under that Table, he submitted that the ratings nominated by Dr Yang, Dr Rolls and Dr Ballenden should be adopted because they reflected the descriptions of functional loss given by them in their respective reports. He conceded that Table 20 may be used where Table 3 is inadequate for assessment purposes but submitted that this was not the case with the applicant. Further, he submitted that, if Table 20 were to be used, only a single rating could be adopted and that, based on Dr Lister's report, the higher rating of 15 points should apply. Mr Ffrench also submitted that ratings from Table 3 and Table 20 could not be combined.

4. Mr Ffrench submitted that the medical reports revealed that the applicant's upper limb impairment did not take away his capacity to undertake employment. He conceded that this would not be the heavy type of work that he had engaged in previously but submitted that his upper limb impairment would not prevent him from employment of the types referred to by Dr Yang namely console operator, gate attendant, sales person, messenger or telemarketer.

Discussion of Evidence and Findings on Material Facts

1. It is not in dispute that the applicant suffers physical impairment from osteoarthritis of both wrists and from a right shoulder problem which has been variously described as pain in shoulder, frozen shoulder and rotator cuff syndrome. The Tribunal accepts the respondent's submission that these are the only conditions which it is able to take into account in applying section 94 of the Act to the applicant's circumstances. This means that the Tribunal is not able to take account of any effects on the applicant of other disabilities which have been referred to, in particular, in the report of Dr Ballenden.

2. In determining which Table in Schedule 1B of the Act to apply, the Tribunal notes paragraphs 8 and 9 of the Instructions for the use of that Schedule. They read:

8. 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.

9. Always use a Table specific to the functional impairment being rated unless the instructions in a section specify otherwise. The system-specific Tables provide appropriate criteria with which to rate a disorder. The procedure is to identify the loss of function, refer to the appropriate system Table and identify the correct rating eg. a person with a CVA (stroke) could be assessed under five different Tables: upper and lower limbs (3 and 4), neurological (8 and 9) and visual field disorders (15). Table selection would depend on the functions affected.

1. As the Tribunal understands those Instructions, the system specific table, in this case Table 3, should be used unless, by doing so, the condition(s) being considered would be under-assessed. The evidence shows that the applicant is capable of carrying out the vast majority of his every-day activities albeit with the feeling of pain in the process. The pain is not described as chronic or entrenched but rather episodic in nature in response to use. In that situation, the Tribunal is reasonably satisfied that Table 3 is the appropriate one to apply. Even if Table 20 were applied, the notes for applying that Table leave the Tribunal reasonably satisfied that only a single rating can be adopted for the overall level of pain that the applicant experiences. The highest rating advanced by Dr Lister was 15 points which is below the threshold of 20 points required by paragraph 94(1)(b) of the Act.

2. The applicant suffers a loss of some function in each of his upper limbs. There is evidence of loss of strength, of mobility, of coordination and of dexterity and of interference with hand function in each arm. However, given the range of activities that he is able to undertake and as set out in the evidence above, the Tribunal is reasonably satisfied that the level of interference can not be described as any more than of moderate degree. That is also the opinion of Dr Yang, of Dr Rolls and of Dr Ballenden. Significantly, the term "moderate" is also used by Dr Lister, although in the context of a reference to Table 20, in describing the level of symptoms that the applicant experiences.

3. Under Table 3, a level of function loss of moderate degree meets the rating criteria for 10 points for the dominant arm and for 5 points for the non-dominant arm. The Tribunal is reasonably satisfied that these are the appropriate ratings for the applicant's impairment. The combined impairment rating is 15 points.

4. For the applicant to qualify for the disability support pension, all of the requirements of section 94 of the Act must be satisfied. The level of the applicant's impairment is less than the threshold of 20 points required by paragraph 94(1)(b) of the Act. It follows that an essential component of the provision is not met and that, therefore, the applicant was not qualified for disability support pension at the time of his claim or at any time in the three month period thereafter.

Decision

1. The Tribunal affirms the decision under review.

   I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

   Signed:         .....................................................................................
     Associate

   Date/s of Hearing  19 February 2002
   Date of Decision  7 March 2002

   The Applicant appeared in Person          

   Solicitor for the Respondent    Mr T Ffrench
     Advocacy and Administrative Law Team
     Centrelink