Pitrowski and Secretary, Department of Employment and Workplace Relations

[2006] AATA 926

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 926

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/337

GENERAL ADMINISTRATIVE DIVISION		)
Re		KRZYSZTOF PITROWSKI

Applicant

And SECRETARY, DEPARTMENT
OF EMPLOYMENT AND
WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr M Denovan, Member

Date31 October 2006

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

……….…………..

M Denovan
  Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – knee injury – relevant timeframe for qualification – condition not investigated, treated and stabilised in relevant timeframe – impairment rating less than 20 points

Social Security Act 1991 s 94, Schedule 1B
Social Security (Administration) Act 1999 Schedule 2

REASONS FOR DECISION

31 October 2006 Dr M Denovan, Member     

Background

1.      On 29 November 2005, Mr Pitrowski lodged a claim with Centrelink for disability support pension, a type of social security payment which is payable in accordance with the terms of the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act). His claim was rejected by a delegate of Centrelink on 4 January 2006 and, on further review, by an authorised review officer on 21 February 2006 and the Social Security Appeals Tribunal on 20 April 2006.

2.      Mr Pitrowski lodged an application for review by the Administrative Appeals Tribunal (the Tribunal) on 19 May 2006.

Issues and Legislation

3. To qualify for a disability support pension, the requirements in subsection 94(1) of the Act must be met. It reads:

“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; ….”

4.      It is not disputed that Mr Pitrowski has a physical impairment in that he suffers from cervical spondylosis and lumbar spondylosis.

5. The respondent conceded at today’s hearing that Mr Pitrowski meets the requirements of s 94 (1) (c) of the Act, that is, he has a continuing inability to work.

6.      The issues therefore are

·     whether Mr Pitrowski can be allocated an impairment rating for some or both of those conditions, and, if so,

·     whether the threshold of 20 points is satisfied. 

7. In accordance with subsection 39(3) and clause 4 of Schedule 2 of the Administration Act, the qualifying criteria must be met on the date of his claim or within 13 weeks of that date.

Cervical spondylosis

8.        Mr Pitrowski feels that his main problem is his neck and resultant upper limb pain and weakness, and fatigue, from which he has suffered for many years.  He also has pain in his shoulders.  He saw an orthopaedic surgeon two months ago and was told that there was nothing that could be done medically to treat his problem.  He now awaits a neurological review.

9.        Dr McDade of Health Services Australia told the Tribunal that when he examined Mr Pitrowski on 14 December 2005, he noted that he suffered from loss of ¼ normal range of movement.

10. Schedule 1B of the Act, states that pain or fatigue should be assessed in terms of the underlying medical condition which causes it. Functional impairment due to cervical spinal conditions is assessed under Table 5.1 in Schedule 1B of the Act. 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.  The medical officers must 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. Dr McDade said that he was not of the opinion that Table 20 should be used instead of Table 5.1, as the medical reports do not indicate that Mr Pitrowski has chronic pain.

11.      The criteria in Table 5.1 read:

NIL Normal or nearly normal range of movement.

FIVE Loss of quarter of normal range of movement.

TEN Loss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain.

TWENTY Loss of three-quarters of normal range of movement and constant neck pain.

THIRTY Loss of almost all movement, or complete ankylosis in position of function.

FORTY Ankylosis in an unfavourable position, or unstable joint.

12.      Dr McDade observed Mr Pitrowski to have loss of approximately ¼ of the normal range of movement of his neck. Under these circumstances the Tribunal concludes that 5 impairment points from Table 5.1 is the appropriate rating for this condition.

13.      Dr McDade noted the applicant had some weakness of his upper limbs, but no demonstratable evidence of loss of mobility, coordination, dexterity/and or sensation of the upper limb. Dr McDade concluded that any impairment in Mr Pitrowski’s upper limbs would cause only mild interference with hand function or manual handling.

14.      In response to questions from Mr Pitrowski, Dr McDade conceded that he had not tested Mr Pitrowski for loss of strength, mobility, coordination, dexterity and sensation under circumstances in which fatigue would play an element.  Mr Pitrowski contends that his muscle weakness is much worse than observed by Dr McDade in ordinary circumstances. Mr Pitrowski said that his upper limbs are so weak that he can not even carry two apples home from the supermarket.

15.      Other than Dr McDade, no medical practitioner has commented on Mr Pitrowski having weakness of his upper limbs or difficulty in using them. Dr Hussain in his report dated 24 November 2005 did note that Mr Pitrowski has numbness at times in his arms and fingers and pain in both arms.

16.      Impairment of upper limb function is assessed under Table 3.  Determination of upper limb impairments must be based on a demonstrable loss of function. The criteria read:

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.

TENDemonstrable 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.

17.      As no doctor has noted a demonstrable evidence of loss of mobility, coordination, or dexterity of upper limb which causes mild interference with hand function or manual handling, the appropriate rating from Table 3 for each of Mr Pitrowski’s upper limb is nil.

Lumbar spondylosis

18.      Mr Pitrowski said that his lower back pain was not as bad as his neck pain.  He said that he could sit for up to one hour but not for several days in a row.  He said that he could push himself to stand for up to 30 minutes, however if he did, he would suffer from severe pain for the next few days and require prolonged bed rest.

19.      Dr McDade observed the applicant to have approximately ¼ loss of normal range of movement of his thoraco-lumbar spine, and a sitting tolerance of less than 60 minutes and a standing tolerance of less than 30 minutes.

20.Table 5.2 is used to assess impairment due to thoraco-lumbar spinal conditions. The criteria are as follows:

NIL Normal or nearly normal range of movement.

FIVELoss of one‑quarter of normal range of movement.

TENLoss of one‑quarter of normal range of movement as well as back pain or referred pain:

-with many physical activities and

-with standing for about 30 minutes and

-with sitting or driving for about 60 minutes.

or

Loss of half of normal range of movement.

TWENTYLoss of half of normal range of movement as well as back pain or referred pain:

-with most physical activities and

-with standing for about 15 minutes and

-with sitting or driving for about 30 minutes.

or

Loss of three‑quarters of normal range of movement.

FORTYAnkylosis in an unfavourable position, or unstable joint.

21.     As Mr Pitrowski has loss of ¼ of normal range of movement, as well as back pain associated with many physical activities and back pain with standing for about 30 minutes and sitting or driving for about 60 minutes, I am satisfied that he should be allocated 10 impairment points from Table 5.2.

22.      The medical evidence does not suggest that Mr Pitrowski’s functional impairment due to his lumbar spondylosis would be more appropriately assessed under Table 20.

Conclusion

23. Mr Pitrowski has a total of 15 impairment points. He therefore has insufficient impairment points to meet the threshold of 20 points. This means that the terms of paragraph 94(1) (b) of the Act are not met and that Mr Pitrowski is not qualified for the disability support pension.

Decision

24.      The Tribunal affirms the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

Signed: ....................................................................................
  Legal Research Officer

Date/s of Hearing  25 September 2006
Date of Decision  31 October 2006
The Applicant was unrepresented
For the Respondent                  Mr M Black, Departmental Advocate