PETER BOOTH And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2011] AATA 558

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 558

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/1402

GENERAL ADMINISTRATIVE  DIVISION		)
Re		PETER BOOTH

Applicant

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

Respondent

DECISION

Tribunal Dr M Denovan, Member

Date16 August 2011

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and substitutes the decision that Mr Booth be paid disability support pension from 26 August 2010.

...............[Sgd]...............................

District Registrar

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Impairment Tables – Accepted physical impairments of lower back pain and bilateral osteoarthritis of the hips – Impairment rating of 20 points – Continuing inability to work – Applicant qualified to receive disability support pension – Decision under review set aside

Social Security Act 1991 (Cth) s 94, Schedule 1B

Social Security (Administration) Act 1999 (Cth) Schedule 2, cl 4(1)

Crossland and Secretary, Department of Family and Community Services [2004] AATA 864

Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444

REASONS FOR DECISION

16 August 2011 Dr M Denovan, Member    

INTRODUCTION

1.      The applicant, Mr Peter Booth, was a jockey for most of his life. He has experienced several falls from horses during his career, and now suffers from a number of significant medical problems. These include chronic lower back pain, hip pain, bilateral knee pain, shoulder and elbow pain, hiatus hernia, Helicobacter Pylori infection, atrial fibrillation, hypertension and muscle aches and malaise which he attributes to Ross River Fever.

2.      Mr Booth claimed disability support pension (DSP) on 26 August 2010.  Centrelink made a decision to reject his claim on 14 October 2010.

3.      An authorised review officer affirmed the decision on 8 February 2011, as did the Social Security Appeals Tribunal (SSAT) on 30 March 2011.

4.      The application for review of the decision by the Administrative Appeals Tribunal (AAT) was lodged on 15 April 2011.

ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION

5. Under Schedule 2, clause 4(1) of the Social Security (Administration) Act 1999 (Cth) an applicant must qualify for a social security payment, in this case DSP, on the day on which the person made the claim, or within 13 weeks of that date. In this case, that period is from 26 August 2010 to 25 November 2010.

6. The qualification criteria for DSP are set out in s 94 of the Social Security Act 1991 (Cth) (“the Act”). In this case, in order to qualify, Mr Booth:

·     must have a physical, intellectual or psychiatric impairment;

·     his impairment must be of 20 points or more under the Impairment Tables; and

·     he must have a continuing inability to work.

7. Before an impairment rating can be assigned under the Impairment Tables in Schedule 1B of the Act, it is necessary to determine whether Mr Booth’s impairments arise from a condition or conditions that has been fully documented, diagnosed condition which has been investigated, treated and stabilised, and can be regarded as being permanent

8.      Pursuant to the Introduction to the Impairment Tables:

For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. 

…

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.

9.      Ms Forsyth for the respondent contended that the only condition suffered by Mr Booth that can be considered fully diagnosed, treated and stabilised is his lower back pain. It is contended that all his other conditions cannot be given an impairment rating as treatment was continuing.

10.     The issues that I must determine are:

·     what, if any, physical, intellectual or psychiatric impairments Mr Booth has;

·     whether all or any of those conditions are permanent, and fully diagnosed treated and stabilised, and, if so, what rating they should be allocated; and

·     if he has an impairment rating of 20 points or more, whether he has a continuing inability to work.

What if any, physical, intellectual or psychiatric impairments does Mr Booth have, and which of those can be rated under the impairment tables?

11.     Mr Booth has identified his medical aliments to include lower back pain, hip pain, shoulder and elbow pain, neck pain, bilateral knee pain, hiatus hernia, Helicobacter Pylori infection, atrial fibrillation, hypertension and Ross River Fever.

12.     The respondent contends that only Mr Booth’s lower back pain has been fully diagnosed, treated and stabilised and can be regarded as permanent, and on that basis is the only condition that can be given a rating from the Impairment Tables.

Lower Back Pain

13.     Mr Booth said that his back pain was present every day; for relief he takes a combination of Panadeine Forte and Voltaren tablets, and Norspan patches.

14.     The pain. According to Mr Booth, radiates into his left leg. The pattern of pain is unpredictable; he may have left leg pain once a week or more, depending on what he has been doing. He has trouble sitting,  standing and lying for periods of more than 30 minutes.

15.     In his report dated 5 November 2010, general practitioner Dr Fogarty indicated that Mr Booth suffered from low back pain with bilateral sacro-iliac and lumbar spondylitis. He indicated that this was a permanent condition, with onset in 2008 when Mr Booth fell off a horse. Dr Fogarty stated that as a result of this condition Mr Booth suffers from severe lower back pain radiating down the left leg; that he can only stand for twenty minutes before the pain becomes severe; and that he cannot ride horses or lift more than 5 kilograms. He opined that the condition would likely impact on Mr Booth’s capacity to function for more than two years, and would likely deteriorate.

16.     Mr Booth told me that he was treated with an injection into his joints (sacro‑iliac), which provided only a few hours of pain relief.

17.     An MRI was performed on Mr Booth’s lumbar spine and sacroiliac joints on 12 October 2010. The results were consistent with the report of Dr Fogarty, and indicated that Mr Booth had multilevel lumbar degenerative disc and facet joint disease, most pronounced at L3/4 and L4/5 levels, contributing to bilateral lateral recess and foraminal stenosis.[1]

[1] Exhibit 3.

18.     The medical evidence supports a finding that Mr Booth’s bilateral sacro-iliac and lumbar spondylosis is a permanent condition, and that it has been fully diagnosed, and treated and stabilised with the relevant time frame to qualify for DSP.

19.     I note there is evidence that Mr Booth also suffered from an additional condition that affects his lower back. Dr Fogarty indicated in his report of 20 January 2011 that Mr Booth had a lumbar disc prolapse with pressure on L5 and S1 nerve roots. That condition had an onset in July 2010 and was regarded by Dr Fogarty as temporary.[2] Accordingly, it is not a permanent condition and does not attract an impairment rating.

[2] T-Document 27.

Ross River Fever (RRV)

20.      Serology has confirmed that Mr Booth was exposed to RRV in the past.[3]

[3] T-Document 11.

21.      Mr Booth believes that he still suffers from the effects of RRV, these being fatigue, muscle aches and muscle pains. The medical evidence available in relation to RRV indicates that this condition does cause fatigue; however, the condition is temporary and likely to improve in six to twelve months. That was the opinion stated in the report of general practitioner Dr Rigg and also that of Dr Wolstencroft, who opined that the condition was generally well managed and causes minimal or limited impact on Mr Booth’s ability to function. For these reasons the condition cannot be regarded as permanent, and therefore cannot be rated under the impairment tables.

Shoulder and Elbow Pain

22.      Mr Booth told me that he suffers from shoulder, arm and elbow pain regularly. There is radiologic evidence in the T-Documents[4] that confirms Mr Booth suffers from degenerative changes in his left elbow and also a rotator cuff tear in his left shoulder. He was scheduled to undergo surgery for the rotator cuff tear in April 2011; however, this has been postponed because the Caloundra Hospital is no longer conducting day surgery, so Mr Booth has gone onto a waiting list at Nambour Hospital. He told me that his heart condition has also been a reason that surgeon Dr A Clarke has delayed the shoulder surgery.[5]

[4] T-Document 25, Folio 96.

[5] T-Document 41.

23.     As this condition has not been fully treated during the relevant time period, it cannot be given a rating from the Impairment Tables.

Hip Pain – osteoarthritis and labial tear

24.     Mr Booth told me he experiences pain in both hips daily, and treated this pain with the same medications that he uses for  lower back pain.

25.     In his report dated 5 November 2010, Dr Fogarty stated that Mr Booth suffered from osteoporosis of both hips, and that this condition had an onset when he fell off a horse in 2008. Dr Fogarty stated that it causes him severe pain in the left leg and moderate to severe pain in the right leg. He indicated that this condition prevented Mr Booth from standing for more than twenty minutes and that the effect of this condition on Mr Booth’s capacity to function would deteriorate within the next two years.        

26.     On 28 September 2010, a Job Capacity Assessment Report (JCA) was performed by Ms McQueen and Mr White. They concluded that Mr Booth’s hip condition was fully diagnosed, treated and stabilised and could be rated under the Impairment Tables. I agree with this conclusion.

27.     Although Dr Fogarty indicated in his report that the diagnosis of osteoarthritis of the hips was presumptive, I note that radiological imaging performed on 12 October  2010 supports the diagnosis, stating that moderate degenerative changes were noted in both hip joints with some joint space narrowing and marginal osteophytes at the superolateral aspect of each acetabulum (of the hip).[6] There is no suggestion in the medical reports that further investigation or alternative treatment is planned for this condition. For these reasons, I accept that the condition of osteoarthritis of both hips was fully documented treated and diagnosed and can be regarded as permanent during the relevant time frame to be eligible for DSP.

[6] T-Document 25.

28.     Specialist Dr Morgan reported that Mr Booth has a labral tear in his hip joint and opined that he may need surgery.[7] That, of course, is a different and totally separate condition to osteoarthritis of the hips. I do not consider that condition as one that can be rated under the Impairment Tables.

[7] T-Document 8.

29.     On 3 November 2010, another JCA report was performed by psychologist, Ms Milner. She concluded that Mr Booth’s hip condition was not fully diagnosed, treated and stabilised, and therefore did not give the condition an impairment rating. It appears from her report that she came to this decision because she decided that Mr Booth was awaiting hip replacement surgery and a steroid injection to his left hip.

30.     On 30 November 2010 occupational therapist Ms Walker completed a Functional Capacity Evaluation report at the request of Ms Milner. She concurred that the only condition that was fully diagnosed, treated and stabilised was his lower back pain.

31.     I do not accept the opinion of either Ms Milner or Ms Walker with respect to osteoarthritis of the hips. To do so would require me to disregard the evidence of a qualified medical doctor, who has known Mr Booth and treated him for over a year, and replace his opinion with that of a psychologist. Respectfully, a psychologist does not have medical training equivalent to that of a doctor and is not well-placed to comment on orthopaedic, neurological and pain management. As an occupational therapist Ms Walker is somewhat better qualified to assess such issues. However, I also decline to give greater weight to her opinion about the likely permanence of Mr Booth’s orthopaedic problem, on the basis of her limited expertise and the fact her opinion was formed after one examination of Mr Booth.

32.     It may be that both Ms Walker and Ms Milner were referring to the condition of labral tear of the right hip only when they reported on the applicant’s hip condition.

33.     The only medical evidence which supports a finding that Mr Booth’s osteoarthritis of both hips is not permanent is a report of Dr Fogarty. That is a one page report, and no doubt written for the purpose of keeping Mr Booth on newstart allowance while excluding him from looking for work. I note the respondent did not ask for Dr Fogarty to be made available to give evidence. I therefore prefer the longer, more detailed report of Dr Fogarty and conclude that Mr Booth’s hip osteoarthritis is a permanent condition that has been fully diagnosed, treated and stabilised and which should be given a rating from the Impairment Tables.

34.     I agree that the labral tear of the right hip is not a fully treated and stabilised condition as it requires further treatment, as per Dr Morgan’s report.

Hiatus hernia

35.     Mr Booth said that he vomited blood whilst he was hospitalised for his heart condition. Dr Wolstencroft indicated in his report of March 2011 that Mr Booth was awaiting an endoscopy in relation to this vomiting incident. Mr Booth told me that the hiatus hernia was diagnosed when the endoscopy was performed.

36.     There is no medical evidence to suggest that this condition existed during the period 26 August 2010 to 25 November 2010, and, even if it was present during that time, it clearly had not been fully investigated and treated. Therefore, it cannot be assigned an impairment rating.

Helicobacter Pylori infection

37.     There is serological evidence dated 25 January 2010 that indicates that Mr Booth suffers from a Helicobacter Pylori infection in his stomach. Mr Booth told me that he was treated with medication, but repeat serology testing on 23 March 2010 indicated that the infection was still active. He has been treating the infection by watching his diet and eating more fish. He is also still taking medication.  There is insufficient medical evidence available to support a finding that this condition has been fully diagnosed, treated and stabilised, or that it is permanent. It follows that no rating can be allocated for this condition during the relevant time frame.

Intermittent Atrial Fibrillation (AF) and Hypertension

38.     Mr Booth told me that he has been taking a drug named Metoprol to treat this condition; however, he has had to cease that drug because it gave him bad dreams and was otherwise unacceptable with him. He is currently awaiting further review with a specialist, Dr Rami, scheduled for 18 August 2011. He gets palpitations and chest pounding every day, and after each episode he feels like he has “gone eight rounds in a boxing ring”.

39.     The first mention of this condition was in the report of Dr Wolstencroft, dated 2 March 2011. Dr Wolstencroft indicated that the onset of this condition was on 3 February 2011, and that Mr Booth had been referred for specialist treatment.

40.     As there is no medical evidence to suggest the condition existed within the relevant 13-week period, it cannot be given a rating under the Impairment Tables.

41.     Mr Booth told me that he has only recently been diagnosed with hypertension. There is no medical evidence available before me in relation to this condition. Therefore, I cannot regard that condition as fully diagnosed, treated and stabilised.

Knee Pain

42.     Mr Booth told me that he had surgery in his left knee in April 2010. He continues to suffer from pain in that joint and now has developed pain in his right knee, which has not been investigated.

43.     There is no medical evidence which points to Mr Booth’s knee pain being due to a condition that has been fully documented, diagnosed and treated and stabilised during the relevant time frame. The condition therefore cannot be given a rating.

Neck Pain

44.     Mr Booth told me that he regularly suffers from neck pain, however he has not complained to his treating medical practitioners about this condition because the severity of the other conditions that he suffers from means they take priority at every consultation.

45.     There is no recent medical evidence in relation to this condition. The T‑Documents include some reports about a neck injury and subsequent pain from 1996 to 1998.  Because of the lack of recent medical evidence relating to Mr Booth’s neck pain, the condition cannot be considered fully diagnosed, treated and stabilised. I am unable to rate it under the Impairment Tables.

What rating should be allocated to those conditions that Mr Booth suffers from that can be regarded as permanent and fully diagnosed, treated and stabilised?

46. For the reasons stated above, the only conditions that I consider are able to be given a rating from the Impairment Tables in Schedule 1B of the Act are lower bilateral sacro-iliac and lumbar spondylosis, and bilateral osteoarthritis of both hips.

47.     Ms Forsyth submitted that the appropriate rating for Mr Booth’s back condition is 15, from Table 20.

48.     Table 20 of the Impairment Tables reads:

TABLE 20.MISCELLANEOUS – MALIGNANCY, HYPERENSION, 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 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.

RatingCriteria

...

FIFTEENModerate 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.

TWENTYMore 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.

49.     In the first JCA conducted by Ms McQueen and Mr White on 28 September 2010, Mr Booth’s hip condition was allocated 15 impairment points from Table 20. His lower back pain was rated nil, as the functional incapacity from that condition had already been taken into account when assessing the osteoarthritis of the hips.

50.     The rational for this rating was that, in relation to his hips, Mr Booth suffers pain symptoms in his leg restricting his ability to sit for more than two hours and causing difficulty walking on uneven surfaces or stairs. In relation to his back, he reported restricted standing/sitting tolerances and restricted range of movement. He also reported that he can manage most activities of daily living, but only in small amounts.

51.     Ms McQueen’s and Mr White’s conclusions in relation to Mr Booth’s hip condition are at odds with the report of Dr Fogarty, who indicated that Mr Booth gets severe back pain radiating down his leg if he sits or stands for more than twenty minutes, and severe hip pain if he stands for thirty minutes. I find that the points allocated in the JCA are insufficient, and do not reflect the true nature of the functional incapacity Mr Booth experiences from these two conditions of back pain due to bilateral sacro-iliac and lumbar spondylosis, and osteoarthritis of the hips.

52.     In the subsequent JCA conducted by Ms Milner, only Mr Booth’s back condition was regarded as permanent. Mr Booth’s hip osteoarthritis was not regarded as fully diagnosed, treated and stabilised. It was concluded that Mr Booth’s back condition alone should be given 15 impairment points from Table 20. The conclusion was supported by Ms Walker in the Functional Capacity Evaluation report.

53.     In allocating an impairment rating of 15, Ms Milner considered that he is unable to manage tasks of a heavy physical nature. She said he was able to manage light tasks and was capable of self‑care, and that he is “unlikely to sustain work of a physically demanding nature”.[8]

[8] T-Document 24, Folio 82.

54.     Ms Milner and Ms Walker both limited their consideration of appropriate impairment points to the functional impact of Mr Booth’s back pain alone. I  do not accept the impairment rating they have given as appropriate for the total functional impairment Mr Booth suffers due to the two conditions I consider should be rated. As stated above, I have found that Mr Booth’s bilateral hip osteoarthritis is also to be considered when allocating an impairment rating. It is the evidence of Mr Booth and Dr Fogarty that his hip pain causes Mr Booth severe pain and restricts his capacity to function. Dr Fogarty has indicated that Mr Booth cannot stand for more than thirty minutes without severe pain, and that his functional capacity in relation to this condition is likely to deteriorate.

55.     Based on the available medical evidence and the evidence given by Mr Booth at the hearing, I do not consider that is accurate to say that Mr Booth’s conditions of sacroiliac and lumbar spondylosis, and bilateral hip osteoarthritis, prevent few everyday activities.

56.     I also find that Mr Booth’s sacroiliac and lumbar spondylosis and bilateral hip osteoarthritis do impact on ability to perform or persist with all domestic and work‑related tasks and that full time work would not be possible.

57.     I consider the appropriate impairment rating for Mr Booth, taking in consideration bilateral osteoarthritis of the hips and bilateral sacroiliac and lumbar spondylosis, is 20 points from Table 20.

Does Mr Booth have a continuing inability to work?

58.     For a person to have a ‘continuing inability to work’, the decision-maker must be satisfied that the continuing inability to work is directly caused by the impairment that has been assigned an impairment rating.[9]

[9] Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444 at 452; Crossland and Secretary, Department of Family and Community Services [2004] AATA 864.

59. Section 94(2) of the Act states that “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 independently of a program of support within the next 2 years; and

(b)       either:

(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

60. The term ‘work’ is defined in s 94(5) of the Act as meaning work:

(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

(b)that exists in Australia, even if not within the person's locally accessible labour market.

61.     The Guide to Social Security Law states that there are a number of factors which a decision-maker must disregard when assessing whether a person has a continuing inability to work:

·    the availability of the person's usual work in the locally accessible labour market;[10]

·    the availability of any work the person could do or be trained for, within the locally accessible labour market;

·    the availability to the person of a training activity that would assist in developing work skills;[11]

·      the availability to the person of any kind of transport (public or private) to travel to and from work;

·      the person's motivation to work or train, except when medical evidence indicates that the lack of motivation is directly attributable to the impairment, e.g. psychiatric disability;

·    difficulties with literacy, numeracy or language which are not directly attributable to a medical condition;

·    the person's preferences regarding the type of work or training

·    the person's potential attractiveness to an employer in a particular area of work, and

·    employer preferences and discriminatory practices that may exist in the open labour market.

[10] Social Security Act 1991 (Cth) s 94(3)(b)

[11] Social Security Act 1991 (Cth) s 94(3)(a).

62. The secretary contends that Mr Booth does not have a continuing inability to work pursuant to s 94(1)(c) and s 94(2) of the Act. Reliance is placed on the report of Ms Milner, who opined that Mr Booth had a future work capacity of 8 – 14 hours without intervention, and 15 – 22 hours with intervention.

63.     I accept that Ms Milner has had training in identifying areas that are barriers for employment, interventions and available programs, however in her determination relating to Mr Booth’s capacity to work she did not have regard to the effects of Mr Booth’s bilateral hip osteoarthritis on his ability to function. For that reason I conclude that her assessment of Mr Booth’s capacity to work can be used as a guide only, and does not accurately reflect his likely ability to work in the next two years.

64.     The JCA report of Ms McQueen and Mr White assessed Mr Booth’s capacity to work as baseline 8 – 14 hours per week, and a future work capacity of 15 – 22 hours with intervention. I have already stated the reasons why I have rejected the conclusions reached by Ms McQueen and Mr White. Based on the reports of Dr Fogarty and the evidence of Mr Booth, who I found to be a most credible and sincere witness, I conclude that Mr Booth has a work capacity of 8 – 14 hours a week and that due to the likely deterioration in his hip condition, is unlikely to have a capacity to work more than 14 hours a week, with or without intervention, any time in the future, and for at least more than the next two years

DECISION

65.     The Tribunal sets aside the decision under review and substitutes the decision that Mr Booth be paid disability support pension from 26 August 2010. 

I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

Signed: ...................[Sgd]..........................................................
              Research Associate

Date/s of Hearing  13 July 2011
Date of Decision  16 August 2011
Applicant was self-represented
Solicitor for the Respondent     Jasmine Forsyth, departmental advocate