Polwart and Secretary, Department of Employment and Workplace Relations

[2006] AATA 975

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 975

ADMINISTRATIVE APPEALS TRIBUNAL      )           No Q2006/7

GENERAL ADMINISTRATIVE DIVISION		)
Re		RAYMOND POLWART

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms M J Carstairs, Senior Member

Date17 November 2006

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

M J Carstairs
  Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – back condition – other conditions – back condition not meeting the requirement of 20 points impairment – decision under review affirmed

Social Security Act 1991 s 94(1), schedule 1B

REASONS FOR DECISION

17 November 2006   Ms M J Carstairs, Senior Member   

1.        Mr Polwart currently receives newstart allowance – a benefit for people who are not working.  He has not been employed since he developed an injury at work in 2004, which immobilised him for some time and resulted in his doctor advising him to stop work.

2.        Mr Polwart now claims disability support pension, but he sees his need for this pension as short lived.  He wants to return to work and is confident that he can do so.  He accepts on the one hand that he cannot do heavy work anymore, but he believes that there is work for which he is qualified that would be within his capacities, particularly if he has surgery for his back condition.  Mr Polwart holds a number of tickets and qualifications related to driving vehicles and operating machinery. 

3.        The question for the Tribunal is whether Mr Polwart qualifies for disability support pension at the time of his claim in 2005.  On the view that I have taken, the issues are confined to those of assessment under the Tables that apply in assessing medical conditions for disability support pension.

ISSUES

4. For Mr Polwart to be eligible to receive disability support pension he must satisfy s94(1) of the Social Security Act 1991 (the Act).  For this he must have impairment or impairments that total at least 20 points under the Tables for the Assessment of Work Related Impairment for Disability Support Pension.[1]

[1] Social Security Act 1991 Schedule 1B, Impairment Tables

5.        I will address the question of whether Mr Polwart’s impairments amount to 20 points or more under the relevant Tables by examining the evidence presented with regard to the following conditions:

§  a back condition described as advanced osteoarthritis LS vertebra

§  ischaemic heart disease

§  diabetes mellitus

§  arthritis of left shoulder

MR POLWART’S BACK CONDITION

6.      Mr Polwart has worked hard during his life and the injury to his back in 2004 is the first time that he has been prevented from working.  Mr Polwart is now aged            fifty-eight, so his is an impressive work record.  His background includes some twenty years experience in the logging industry in New Zealand before coming to Australia, where he has been engaged operating heavy plant and machinery for the most part.  At the time that he was injured he was employed in meat deliveries.

7.      Mr Polwart told me that in the past he had been troubled by back pain from time to time, but his doctor thought this was muscular in origin.  The documentary materials suggest that his work delivering meat exposed him to loads that were heavier than advisable.  Mr Polwart has recently settled litigation concerning the work injury. 

8.      X-rays were taken of Mr Polwart’s back at the time of the injury and revealed quite widespread degenerative changes; as well as arthritic changes at the thoracic and cervical levels of the spine; a prominent thoracic scoliosis, convex to the right and a tilt to the right at the lumbar level. [2] 

[2] Document T5

9.      Taking into account those x-rays and after clinical examination, Dr G Gillett, orthopaedic surgeon, concluded in a report dated 24 May 2005[3], that Mr Polwart was capable only of very sedentary work in an occupation that provided the opportunity to change positions regularly.  Dr Gillett concluded that Mr Polwart was incapable of manual handling work and that he would be likely to experience pain and discomfort in jobs involving driving machinery or trucks. 

[3] Exhibit A1

10.     Mr Polwart takes Tramal (100mg per day) to control pain.  He said that with the medication he experiences discomfort rather than pain from his back condition.  His chief concern is that his back condition limits his mobility.  He finds that he has to rest after 15 minutes of any exertion, and cannot walk more than that without resting.  He can ride a bike and said he takes the dog on 5km runs while he rides the pushbike.  He said that he could mow a lawn for about 2 hours but would have to take rest breaks.  He strictly avoids lifting any weights on medical advice. 

11.     What Mr Polwart told me about the way his back interferes with his activities accorded with the observations of Dr Gillett.

12.     Mr Polwart said that he wished it to be understood by Centrelink and others that with surgery to his back, he may be able to work again in the future.  He wishes to remain active and is not ready for retirement.  He is yet to discuss possible treatment options, including surgery, with his doctor. 

13.     The Tribunal notes that no doctor has raised any doubt that Mr Polwart is anything other than genuine in his presentation and honest in reporting his symptoms.  I accepted him as an honest man, who was not exaggerating his symptoms in any way.

14.     It was clear that all doctors who have examined Mr Polwart recognise that in the past, he has been engaged in types of work that his back would not now tolerate.  All doctors warned that in the future, Mr Polwart will be restricted to light work, where he has the opportunity to move around.  A number of doctors referred to the need for retraining, because the work for which he is physically now able is not the sort of work that Mr Polwart has done in the past. 

15.     Mr Polwart said that his solicitor had obtained orthopaedic reports for his litigation regarding the work injury.  I adjourned the hearing to obtain those reports and so that Centrelink could refer the additional evidence to the Senior Medical Officer, Dr G Rolls, for assessment under the Tables. 

16.     In a report dated 4 September 2006,[4] Dr Rolls converted the clinical observations made by Dr Gillett about Mr Polwart’s back condition, which accorded also with the clinical observations of Dr Heugh, a medical adviser with Health Services Australia who examined Mr Polwart in July 2005[5].  Dr Rolls concluded that Mr Polwart’s advanced osteoarthritis of the lumbo sacral spine attracted a rating of 10 points under Table 5.2. 

[4] Exhibit R1

[5] Document T14

17.     Table 5.2 provides the following ratings with reference to the areas of the spine that are affected in Mr Polwart’s case:

TABLE 5.2     THORACO—LUMBAR-SACRAL SPINE

As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.

Rating

Criteria

NIL

Normal or nearly normal range of movement.

FIVE

Loss of one-quarter of normal range of movement.

TEN

Loss 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.

18.     Mr Polwart had earlier been assessed under Table 20, a Table dealing with miscellaneous impairments, which allows for assessing pain, where pain is the predominant feature of a condition.  Under Table 20 Mr Polwart was also rated at the level of 10 points.  Mr Polwart’s main problem with regard to his back is restriction, rather than pain.  With more detailed information now provided in the report of Dr Gillett I agree that it is preferable to apply Table 5.2 as Dr Rolls suggests.  I was satisfied that the medical evidence supports a rating of 10 under Table 5.2 and Mr Polwart suffers loss of half the normal range of movement of his thoraco lumbar spine.

MR POLWART’S HEART CONDITION, DIABETES MELLITUS, AND ARTHRITIS IN LEFT SHOULDER

19.     Mr Polwart’s general practitioner, Dr Egerton[6] identified these conditions as ones that could be described as well managed medical conditions that cause limited or minimal impact on ability to function.

[6] Document T9

20.     As stated, Mr Polwart acknowledged that his main limitation is his back condition.  Whilst he must take significant amounts of medication for his heart condition and diabetes mellitus, these conditions are well stabilised.  He has had no angina for some years.  Under the applicable Tables these conditions rate NIL, as they are controlled by medication, and he is experiencing limited symptoms. 

21.     With regard to the current claim, Mr Polwart’s treating doctors did not mention any problem with Mr Polwart’s right shoulder.  However the condition had been mentioned in earlier reports.  Dr Gillett’s report noted that Mr Polwart had physiotherapy to his shoulder in 2004 shortly after his work injury, and that his shoulder and a neck problem had responded well, with Mr Polwart recovering fully.  Therefore there is no need to rate the condition of arthritis of the left shoulder.

CONCLUSIONS

22. Section 94(1) requires the minimum level of 20 points impairment in order for a person to qualify for disability support pension. As Mr Polwart is unable to satisfy that minimum requirement, on the basis of the medical evidence his claim for disability support pension was correctly rejected.

DECISION

23.     The Tribunal affirms the decision under review.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M J Carstairs.

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

Dates of Hearing  27 July 2006; 13 November 2006
Date of Decision  17 November 2006
The Applicant was self represented
For the Respondent                  Mr R McQuinlan, Departmental Advocate