Pattinson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs - [2011] AATA 738

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 738
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/2102

GENERAL ADMINISTRATIVE DIVISION )

Re JOHN PATTINSON

Applicant

And

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

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date21 October 2011
PlaceBrisbane (heard in Bundaberg)

Decision The decision under review is affirmed.
................[Sgd]..................
Deputy President

CATCHWORDS
SOCIAL SECURITY – disability support pension – impairment to cervical spine - neck pain – appropriate impairment table – tinnitus - assignment of rating according to the impairment tables – decision under review affirmed
Social Security Act 1991 (Cth) s 94
REASONS FOR DECISION

21 October 2011
Deputy President P E Hack SC

Introduction

The applicant, Mr John Pattinson suffers from neck pain (diagnosed as mild to moderate spondylosis to the cervical spine at C4-C7) and tinnitus and complains of problems with his eyesight. On 7 September 2010 he lodged a claim for disability support pension. In October 2010 the claim was refused on the grounds that his condition was not fully treated and stabilised.
The decision to refuse the claim was affirmed by an Authorised Review Officer in March 2011 and by the Social Security Appeals Tribunal on 17 May 2011.
Mr Pattinson now seeks a review of the decision in this Tribunal.
The legislation
By virtue of s 94(1) of the Social Security Act 1991 (Cth) a person is qualified for a disability support pension if, relevantly:
(a)the person has a physical, intellectual or psychiatric impairment;
(b)the impairment attracts a rating of at least 20 points under the Impairment Tables that are set out in Schedule 1B of the Social Security Act; and,
(c)the person has a continuing inability to work.
The opening paragraph of the Introduction to the Impairment Tables explains that they:
“… are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work.”
This purpose is sought to be achieved by assigning ratings based on the severity of the impact of the medical condition on normal function.
Given the issues in the proceedings it is also relevant to extract further passages from the Introduction that deal with the process of rating in these terms:
“4.… For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised….
5.The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6.In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
·what treatment or rehabilitation has occurred;
·whether treatment is still continuing or is planned in the near future;
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
·treatment that is feasible and accessible ie, available locally at a reasonable cost;
·where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
…
8.In general, pain and 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 assessor 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. Assessors must use their 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.”
By virtue of the Social Security (Administration) Act 1999 (Cth) the matters of qualification for disability support pension are to be considered on the date of lodgement of the claim, viz. 25 August 2010[1] or within 13 weeks thereafter.
[1] The date on which Mr Pattinson gave notice of his claim which was subsequently lodged on 7 September 2010.
Consideration
There is no doubt that Mr Pattinson suffers from two impairments – spondylosis of the cervical spine and tinnitus. There is some doubt that his eye complaint amounts to an impairment although he does need to wear corrective lenses. He has been affected by the spondylosis for many years. The Secretary submits that, while the condition is permanent, it has not been fully diagnosed, treated and stabilised. It is said, in reliance on a note by a job capacity assessor of a conversation with Mr Pattinson’s general practitioner, that Mr Pattinson would benefit from “…secondary rehabilitation such as further physiotherapy, other physical conditioning and pain management”. The better evidence is the report of Dr Anura Tennakoon of 3 August 2011. That doctor was asked whether there were any treatments reasonably available to Mr Pattinson that would be likely to lead to an improvement in his condition within two years from late August 2010. Dr Tennakoon said:
“For his neck pain other strong analgesics could be tried but they can have side effects and probably radio frequency therapy under specialist guidance would be an option. However it will be a long waiting for him to start treatment as public patient under specialist.”
The better view of the evidence is that Mr Pattinson’s spondylosis has been fully diagnosed, treated and stabilised. That being so the question is how that impairment is to be assessed. Without more, paragraph 8 of the Introduction to the impairment tables would require the impairment to be assessed by reference to Table 5. Mr Pattinson complains of frequent neck pain and Dr Tennakoon reports a loss of up to half of the normal range of movement of his neck. Thus a rating of 10 points is appropriate. The evidence does not justify a rating of 20 points for which the descriptor is,
“Loss of three-quarters of normal range of movement and constant neck pain.”
But Mr Pattinson submits that his condition ought to be assessed by reference to Table 20.
That Table can be used for, amongst other conditions, chronic pain however paragraph 8 requires that I be convinced that the pain is a significant factor contributing to Mr Pattinson’s overall functioning impairment. I am not satisfied that that is so. The medical reports do not evidence chronic entrenched pain. The observations of Mr Dean Sinclair, an exercise physiologist employed by the Department of Human Services, suggests inconsistent presentation between the reported and observed range of movement. I would then assess the spondylosis as warranting a rating of 10 points on Table 5.1. In reaching this conclusion I have not overlooked the evidence of Mr Pattinson’s friend, Ms Kim Fitzgerald and of his daughter, Ms Melissa Pattinson-Lark. I am not satisfied that those witnesses can provide a reliable account of the extent of Mr Pattinson’s neck pain in late August 2010, and in the period of 13 weeks thereafter. They certainly have an impression that his neck pain has worsened of recent times however I do not regard either of them as reliable guides to the condition at the relevant time.
The Secretary accepts that the tinnitus is fully diagnosed, treated and stabilised despite some reservations expressed by Mr Sinclair. I think, with respect to Mr Sinclair, that he has misread the audiologist’s report on Mr Pattinson’s tinnitus. Tinnitus is assessed under Table 20. In my view an assessment of nil points is warranted. Mr Pattinson’s tinnitus symptoms are minor, easily tolerated and have no appreciable effect on his ability to work. They certainly do not warrant an assessment of 10 points for which the descriptor is,
“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.”
The medical evidence is that Mr Pattinson requires prescription lenses but that, appropriately corrected, his eyesight is 6/6. In these circumstances I am unable to see how that could amount to an impairment but even if it were to be so it warrants a rating of nil points under Table 13, relating to visual acuity.
The result is that Mr Pattinson warrants an impairment rating of 10 points and does not satisfy the requirement of s 94(1)(b) of the Social Security Act that the impairment be of 20 points or more under the Impairment Tables. It is unnecessary to consider whether Mr Pattinson has a continuing inability to work.
The decision under review will be affirmed.
I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: ............[Sgd]................................................................
  Associate
Date/s of Hearing  20 October 2011
Date of Decision  21 October 2011
Applicant  In person
For the Respondent                  Departmental advocate

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN PATTINSON