Pattle v Department of Social Services
[2015] FCA 556
•5 June 2015
FEDERAL COURT OF AUSTRALIA
Pattle v Department of Social Services [2015] FCA 556
Citation: Pattle v Department of Social Services [2015] FCA 556 Appeal from: Application for extension of time: Daryl Pattle v Secretary, Department of Social Services [2014] AATA 683 Parties: DARYL PATTLE v SECRETARY OF THE DEPARTMENT OF SOCIAL SERVICES File number(s): WAD 22 of 2015 Judge(s): SIOPIS J Date of judgment: 5 June 2015 Catchwords: SOCIAL SECURITY – application for an extension of time within which to appeal – three month delay - impairment ratings – whether the Administrative Appeal Tribunal erred in the construction of Table 4 of the Impairment Tables – whether there was an adequate explanation for the delay. Legislation: Social Security Act 1991 (Cth) ss 94(1), 94(1)(b)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), Table 4
Evidence Act 1995 (Cth), s 160Cases cited: Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 Date of hearing: 19 May 2015 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 29 Counsel for the Applicant: The Applicant appeared in person. Counsel for the Respondent: Ms A Ladhams Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 22 of 2015
BETWEEN: DARYL PATTLE
ApplicantAND: SECRETARY OF THE DEPARTMENT OF SOCIAL SERVICES
Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
5 JUNE 2015
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The applicant’s application for an extension of time to file a notice of appeal filed on 27 January 2015 is dismissed.
2.The applicant is to pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 22 of 2015
BETWEEN: DARYL PATTLE
ApplicantAND: SECRETARY OF THE DEPARTMENT OF SOCIAL SERVICES
Respondent
JUDGE:
SIOPIS J
DATE:
5 JUNE 2015
PLACE:
PERTH
REASONS FOR JUDGMENT
This is an application for an extension of time within which to appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) made on 18 September 2014. The Tribunal affirmed a decision of the Social Security Appeals Tribunal (the SSAT) which affirmed the decision of a Centrelink Authorised Review Officer (ARO) to reject the applicant’s claim for a disability support pension.
In 2009, the applicant, who was then working as a factory labourer handling concrete panels, developed back pain. The pain continued for a number of years and the applicant was examined by a number of doctors, including Dr Victoria Buntine, Dr Phillip Hardcastle, an orthopaedic surgeon, Dr Paul Taylor, an orthopaedic surgeon and Dr Jon Laugharne, a psychiatrist.
The applicant lodged a disability support pension claim with Centrelink on 4 April 2013. The applicant indicated that his disability was “degenerate disc at L5/S1 (spine) and protrusion” and that his treatment comprised “pain killers and doctors check ups”. A disability support pension medical report dated 2 April 2013 was completed by Dr Buntine which referred to two medical conditions affecting the applicant, namely, chronic back pain and paranoid personality traits. Dr Buntine indicated that the former condition impacted the applicant’s ability to function whereas the latter condition had minimal impact on his ability to function.
On 12 April 2013, a job capacity assessment of the applicant was conducted by a social worker and on 28 May 2013, the applicant was notified by Centrelink that it had been decided that he was not eligible for a disability support pension.
On 9 December 2013, the SSAT affirmed the ARO’s decision of 4 September 2013.
The applicant applied to the Tribunal to review the decision of the SSAT.
THE TRIBUNAL DECISION
In addition to the disability support pension medical report of Dr Buntine, the Tribunal had in evidence before it, a report of a CT scan of the applicant’s lumbosacral spine, two MRIs, the report of Dr Taylor, the report of Dr Hardcastle and the report of Dr Laugharne.
The issue for the Tribunal’s determination was whether the applicant qualified for a disability support pension under s 94(1) of the Social Security Act 1991 (Cth). The section relevantly provides as follows:
(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;
…
The reference to the “Impairment Tables” in s 94(1)(b) is a reference to the tables comprising part of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) under the Social Security Act 1991 (the determination).
Based on the medical reports available to the Tribunal, the Tribunal was satisfied that the applicant, in the relevant period, had a physical impairment resulting from medical conditions, namely, chronic lower back pain and bilateral leg pain, and a psychiatric impairment, namely, pain disorder.
The next consideration for the Tribunal was whether the applicant’s impairment was 20 points or more under the impairment tables. The relevant impairment table for the purpose of this application is Table 4. Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck. Table 4 of the impairment tables relevantly provides for the following impairment ratings:
Points Descriptors 0 There is no functional impact on activities involving spinal function.
(1) The person can:
(a) bend down to pick a light object off the floor (eg a piece of paper); and
(b) turn their trunk from side to side; and
(c) turn their head to look to the sides or upwards.
5 There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (eg activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (eg to look to the sides or upwards.
10 There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (eg accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (eg turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
20 There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
30 There is an extreme functional impact on activities involving spinal function.
(1) The person is:
(a) completely unable to perform activities involving spinal function; or
(b) unable to bend or turn their trunk or their neck to complete the most basic of daily activities (eg dressing, bathing, showering or light housework).
Before the Tribunal, the respondent accepted that the applicant’s back pain was a condition that was permanent, having been fully diagnosed, fully treated and fully stabilised within the meaning of s 6 of the determination.
At [35] of its reasons, the Tribunal made the following finding in relation to the application of the impairment tables to the applicant’s spinal function condition:
Unfortunately, Dr Buntine’s DSP Medical Report of 2 April 2013…does not assist the Tribunal in assessing precisely the functional impact of the applicant’s chronic low back pain in the relevant period. Dr Hardcastle’s report of 26 October 2012…is, however, of some assistance in that his clinical examination of the applicant on that date demonstrated, in respect of his lumbar spine, “tenderness over the L3‑S1 segments on both sides with forward flexion” and “pain at the extreme” in the case of “lateral flexion” and “rotation”. In the Tribunal’s opinion, those findings are consistent with the descriptor for 5 impairment points and are indicative of a “mild functional impact on activities involving spinal function”. Although Dr Hardcastle’s examination of the applicant occurred approximately five months before the commencement of the relevant period, the Tribunal is prepared to accept Dr Hardcastle’s examination findings as indicative of the level of the applicant’s relevant impairment in the relevant period. Furthermore, there is no medical evidence before the Tribunal which supports the proposition that the level of the applicant’s relevant impairment exceeded that which is appropriate for an impairment rating of 5 points under Table 4 at any time in the relevant period.
I observe that the Tribunal also found that the applicant's impairment resulting from bilateral leg pain was 0 points, and that an impairment rating could not be assigned in relation to the applicant’s mental health function.
It followed from the above findings that the Tribunal decided that the applicant did not satisfy s 94(1) of the Social Security Act and was, therefore, not qualified for a disability support pension.
APPLICATION FOR AN EXTENSION OF TIME TO APPEAL
An appeal to the Federal Court on a question of law is required to be instituted no later than 28 days after the written reasons for decision of the Tribunal is given to the applicant.
As mentioned, the Tribunal’s written reasons for decision is dated 18 September 2014. The respondent contended that, assuming that the applicant received the decision in the ordinary course of post, the applicant would, on the application of s 160 of the Evidence Act 1995 (Cth), be presumed to have received the written reasons for decision by 24 September 2014. The 28 day time frame within which to appeal would then have expired on 22 October 2014. The applicant’s application for an extension of time to appeal was filed on 27 January 2015. The delay, therefore, was in the order of three months.
In considering whether to grant an extension of time, the Court has a discretion. In the exercise of that discretion, the Court will have regard to the length of the delay in filing the application for an extension of time to appeal, the explanation for the delay and also the merits of the proposed appeal. There are also other matters which, depending on the nature and circumstances of the case, the Court may also take into account. These include prejudice to the parties, and whether the applicant had given notice that he or she contested the impugned decision (Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344). However, the argument in this case concentrated on the explanation for the three month delay and the merits of the proposed appeal.
Explanation for the delay
The applicant’s evidence in relation to the explanation for the delay is not fulsome. For example, the applicant’s evidence does not explain why his affidavit was dated 5 October 2014, and then sworn on 6 November 2014, but was only filed, in support of his application, on 27 January 2015 - over two months from the date of the affidavit being sworn.
Nevertheless, the applicant has provided written evidence that he tried to lodge an application for an extension of time to appeal by sending an email to the Registry on 14 October 2014. The email contained a PDF attachment comprising an application for extension of time. Curiously, this document was sent to the Registry during the time within which the applicant could have filed a notice of appeal. The application was not accepted at the Registry because its form was not in accordance with the Federal Court Rules 2011. The applicant claims that he tried filing the application a further two more times in person at the Registry but the lodgement was rejected.
In my view, in light of the applicant’s attempt to file an application for an extension of time to appeal before the expiry of the appeal period, the fact of the delay will not of itself preclude the grant of an extension of time to appeal.
Merits of the appeal
In his draft notice of appeal, the applicant set out two proposed grounds of appeal:
ŸWhether the Social Services Legislation (Guides to Social Security Law) was used as specified in that Legislation as a further explanation to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination.
ŸIn relation to reason No 35 of the reasons for the decisions of the tribunals, they have used the tables for spinal function as demonstrated on that page which is consistent with the determination. However there is further explanation to the determination which if read, detail the precise understanding of the activity descriptors and therefore make significant difference to decision the AAT made.
It is possible to conclude from the terms of the applicant’s complaint in the draft notice of appeal, that the question of law which he seeks to be determined on appeal is whether the Tribunal erred in its construction of the activity descriptors in Table 4 because the construction afforded by the Tribunal to those descriptors did not conform to the position stated in the guidelines issued by the Department of Social Services.
In support of the applicant’s contention that the Tribunal erred in its construction of the spinal function descriptors in Table 4, he referred specifically to para 3.6.3.40 of the guidelines. Those guidelines provide relevantly as follows:
3.6.3.40 Guidelines to Table 4 – Spinal Function
Summary
Table 4 is used to assess functional impairment when performing activities involving spinal function. Spinal function involves bending or turning the back, trunk or neck…
Determining the level of functional impact
…When determining whether the person is able to undertake the activities listed under the descriptors, consideration must be given to whether the person suffers pain on undertaking the activities. For example, under the 20 point descriptor, if a person is able to remain seated for 10 minutes but suffers significant pain on doing so, it should be considered that the person is therefore unable to remain seated for at least ten minutes.
The applicant went on to contend that the Tribunal should have found that, on a proper construction of the activity descriptors in Table 4 in accordance with the guidelines, he did not have any trunk movement function because Dr Hardcastle’s report stated that the applicant suffered pain at the extreme of the lateral flexion and rotational movement of his trunk. This, said the applicant, should then have led the Tribunal to find he was unable to turn his trunk to complete the most basic of daily activities, and that, accordingly, his disability condition fell into the 30 point descriptor.
In my view, the applicant’s argument that the Tribunal erred in its construction of the disability descriptors in Table 4 does not enjoy a sufficient prospect of success to justify an extension of time within which to bring the proposed appeal.
This is because the Tribunal did have regard to the fact that the applicant experienced pain at the extreme of his lateral flexion and rotational movement. However, the Tribunal found that up to the point that the applicant experienced pain, the applicant was able to engage in lateral flexion and rotational movement of his trunk. The Tribunal, therefore, found that there was a mild functional impact on the applicant’s activities involving spinal function. In my view, therefore, the Tribunal did not err in construing the descriptors in Table 4 and the decision to which it came was plainly open to it.
Further, it was not open to the Tribunal to make the finding that the applicant contended the Tribunal should have found, namely, that the applicant’s condition fell within the 30 point descriptor. This is because the Tribunal found that it did not have before it evidence upon which such a finding was available to be made. The Tribunal did not err in making that finding.
It follows that the applicant’s application for an extension of time to appeal will be dismissed with costs.
I certify that the preceding twenty‑nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 5 June 2015
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