Rich and Secretary, Department of Employment and Workplace Relations

[2006] AATA 135

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 135

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/982

GENERAL ADMINISTRATIVE DIVISION		)
Re		WILLIAM JAMES RICH

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date17 February 2006

PlaceSydney

Decision The decision under review is set aside. The Applicant is eligible for a Disability Support Pension with the date of effect being 24 February 2005.

…………………………………..

Rear Admiral A R Horton AO, Member

CATCHWORDS

SOCIAL SECURITY – eligibility for Disability Support Pension – application of section 94 of the Social Security Act 1991 – permanent impairments – total rating of impairments under schedule 1B assessed as 20 points – applicant has continuing inability to work – decision under review is set aside – applicant eligible for pension.

Social Security Act 1991 – section 94, Schedule 1B

Social Security (Administration) Act 1999 – schedule 2 part 2

REASONS FOR DECISION

17 February 2006 Rear Admiral A R Horton AO, Member   

1.      Mr William James Rich (“the Applicant”) lodged a claim for the Disability Support Pension (“DSP”) on 24 February 2005.  This was preceded by an examination by Dr E Wassenaar of Health Services Australia (“HSA”) on 3 February 2005 in conjunction with a review of eligibility for Newstart Allowance.   The claim was accompanied by a Treating Doctors Report (“TDR”) by Dr R Armstrong of the Lake Side Medical Practice, Warilla.

2. Centrelink rejected the claim on 10 March 2005 on the basis that Mr Rich’s medical impairments did not rate at 20 points or more as required under section 94(1)(b) of the Social Security Act 1991 (“the Act”).   This decision was affirmed by an Authorised Review Officer (“ARO”) on 27 April 2005, and by the Social Security Appeals Tribunal (“SSAT”) on 29 June 2005.

3. At a hearing before me at Port Kembla on 30 January 2006, Mr Rich was self represented. Mr Zhang, an advocate for Centrelink, represented the Respondent, the Secretary, Department of Employment and Workplace Relations. I took into evidence the documents (T documents) provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.  I also took into evidence reports from Doctors G Hall (Exhibit A1), W Lee (Exhibit A2), P Whistler (Exhibit A3), R Armstrong (Exhibit A4) and R Mills (Exhibit A5) and the Respondent’s Statement of Facts and Contentions dated 28 November 2005 (Exhibit R1).

4. For the reasons given under, and based on the oral evidence of Mr Rich, and the medical evidence, particularly that of Dr Armstrong (the Treating Doctor) and Dr Mills, I find that Mr Rich has physical impairments of thoraco lumbar spine and associated pain, psoriasis and emphysema, with a total impairment rating of 20 points. I further consider him to have a continuing inability to work under the criteria prescribed in section 94 of the Act. He is thus eligible for the DSP, the date of effect being 24 February 2005.

LEGISLATION

5. Section 94 of the Act relevantly states:

“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;
           (ii)        …; and
(d)      the person has turned 16; and
(e)      the person either:
           (i)       is an Australian resident at the time when the person first                 satisfies paragraph (c); or
           (ii) …
           (iii) …

Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

Note 2: for Impairment Tables see section 23(1) and Schedule 1B.

94(2) 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 within the next 2 years; and
(b)      either:
           (i)         the impairment is of itself sufficient to prevent the person                  from undertaking educational or vocational training or on-               the-job training during the next 2 years; or
           (ii)       if the impairment does not prevent the person from   undertaking educational or vocational training or on-the-  job training—such training is unlikely (because of the   impairment) to enable the person to do any work within            the next 2 years.

Note: For work see subsection (5).

94(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a)      the availability to the person of educational or vocational training      or on-the-job training; or
(b)      if subsection (4) does not apply to the person—the availability to      the person of work in the person's locally accessible labour           market.

94(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.

94(5) In this section:

educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.

on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.

work means work:

(a)       that is for at least 30 hours per week at award wages or above;      and
(b)      that exists in Australia, even if not within the person's locally accessible labour market.”

6. The Impairment Tables are at Schedule 1B of the Act. They are function based and designed to assess impairment in relation to work. A rating can only be assigned after “comprehensive history and examination” and the condition must be fully documented, diagnosed, investigated, treated and stabilized, and considered to be permanent. Mr Rich must meet the criteria for the DSP between the date of lodgment of his claim and 13 weeks thereafter under Schedule 2 Part 2 of the Social Security (Administration) Act 1999 (“the Administration Act”).

EVIDENCE

7.      Mr Rich is 55 years of age.  He lives alone in a large home (6 bedrooms with a housekeepers unit at the rear) at Warilla.  He purchased this property, which had been used to house backpackers, in order to move into the area from Adelaide about 5 years ago, his intent being to establish a bed and breakfast/boarding house facility, which he believed he could manage in spite of his medical conditions, with appropriate help.  This project has not proceeded as he was unable to obtain insurance cover.  He divorced some 15 years ago; he has been estranged from his two children for many years.  His girlfriend lives locally, and at present, but not at the relevant period under consideration, his girlfriend’s sister lives in the “manager” flat at the rear of his home.  

8.      Mr Rich left school at 14 having obtained the then Intermediate Certificate. His only trade or professional qualification is that of a telegraphist, a career he observes as no longer available due to technology advances.  He has intermittently worked in a variety of other jobs; when unemployed on numerous occasions, he was eligible for, and received, Newstart Allowance.  He anticipated in his move from Adelaide that he would find it easier to obtain employment; in the event, he has had 2 temporary jobs, as well as the odd day or two. He ceased his employment at Chullora after 3 and a half weeks, finding he could not physically cope with the travel times to Sydney; employment as a part time cleaner lasted 5 to 6 weeks.  Mr Rich remains in receipt of Newstart Allowance, for which there is currently no job search requirement; he has a concession health card.  

9.      Dr Wassenaar refers to the development of significant back pain in November 2004.  Mr Rich gave evidence that whilst it became much worse at that time, it had been present for many years, and this accords with the history obtained by Dr Mills (Exhibit A5).  Mr Rich considers his back problem and associated pain to be his most serious ailment, and the one that significantly effects his lifestyle, his ability to undertake routine tasks, and his ability to return to the workforce.  He described the pain as being “really bad” until about a year ago, when his general practitioner put him on anti-inflamatories, briefly voltaren then celebrex in continuation. He professes to have concerns at the long term effect of this medication, but acknowledges that it has reduced his episodes of pain and disability.  He stated that he takes panamax on four occasions virtually every day.

10.     As to the frequency of severe painful episodes, Mr Rich stated that severe pain was experienced once a month or more in the last year.  This is at odds with the history recorded by Dr Mills – which Mr Rich states does not properly reflect the responses he gave to Dr Mills – which notes that back pain “has been lasting a couple of days occurring approximately once a month, over the last 5 years being worse (the last) 18 months …approximately 5 pain episodes a week, each episode lasting half to a whole day…”   Mr Rich agreed with the comment by Dr Mills that overall his current level of back pain is slightly worse now compared to 12 months ago. 

11.     In his Treating Doctors Report, Dr Armstrong refers to Mr Rich receiving a local steroid injection after examination by a neurosurgeon, Dr Day, and Mr Rich thought this occurred in early 2005.  No further appointments with Dr Day are planned, as also recorded by Dr Armstrong.   Mr Rich stated that the steroid injection was of no value, and other than back surgery – which he was not prepared to go through given the possibility of serious consequences that might result – there was nothing else that could be done for his condition.   

12.     Mr Rich stated that whilst he could get on and off public transport, his back pain precluded anything but a minimum use of such transport.  He could neither stand nor sit for any distance.  He drives a car, and indeed did so from his home to the hearing, but invariably this can only be for short distances or duration.  He stated he can walk without undue difficulty, but can only sit for short periods.  He is limited in his ability to do household chores because of his back pain, his difficulty in bending, and his inability to lift items other than those of minimal weight, but he can care for himself.  The SSAT noted that Mr Rich had been referred – I assume by Dr Armstrong or Dr Day - for a pain management course, but the waiting time for appointment was very long.  When asked, Mr Rich confirmed that some 6 months later, he has not taken action to get on a waiting list.  

13.     Psoriasis has been diagnosed and accepted by the Respondent.  Mr Rich applies betnovate and daivonex as necessary.  He strongly disagrees with the opinion of Dr Armstrong and the SSAT that this condition does not prevent him from engaging in normal activities, citing the adverse reaction of the public to this skin disorder, that it precludes him from employment in a variety of jobs, both from the perspective of public and work mate reactions, and that it dictates some restrictions in dress. He stated that a side effect is psoriatic arthritis, which effects his hands and fingers, and hence his grip, as well as his knees.  Whilst he stated that the psoriasis condition was not something that precluded him from working, it clearly inhibited his options.  He was in agreement with Dr Mills who considers that the condition does interfere with daily activities, and hence an impairment rating under table 18 of 10 points was appropriate.

14.     A condition of emphysema has also been diagnosed and accepted by the Respondent. Mr Rich describes himself as a nicotine addict.  He agrees with the various doctors reports that the condition has no significant impact on his lifestyle and warrants no impairment points under the relevant table.  He stated that the condition in itself would not prevent him working.

15.     Mr Rich spoke of stress, which he attributes to the painful back condition, his inability to work, his inability to use his property as a boarding house in order to better his financial resources, and various circumstances in his life.  The only reference to any such condition is that by Dr Armstrong (in Exhibit A4 but not in the earlier TDR) where he refers to difficulty in communicating with Mr Rich, a perceived inability to listen and to concentrate on an issue, and a degree of psychomotor agitation.  He concludes that in his view, Mr Rich has a significant psychological impairment “the exact nature of which is to be elicited” but querying bipolar depression or adult attention disorder.  He notes the agreement by Mr Rich to undergo a full psychological evaluation when this can be arranged.  In evidence, Mr Rich said that Dr Armstrong had overstated the case, and in any event, he could not afford such an evaluation.

16.     Mr Rich stated that he could only work if he could operate (hence manage) his boarding house.  Somewhat contradictorily, he stressed that his psoriasis was a real problem when dealing with the public.  His back condition is such that he could only work 2 to 3 days a week, and “who would employ me under those circumstances?”.   Further, his inability to get a good night sleep, often only one to two hours precluded him from returning to the workforce.  He has previously done a computer course and a first aid course, but could see no value in undertaking any further vocational training, and in the event, his back pain and psoriasis would make it impossible to concentrate and undertake the studies, or indeed undertake office employment.  He would have problems because of the need to stand up and walk around quite frequently.  He summarised his position in that if he could work, he would be doing so.   

MEDICAL EVIDENCE

17.     Further to the above comments, the report by Dr Wassenaar of 3 February 2005 records his view that an Xray report (not before me) showed degenerative changes of the lumbar spine consistent with age. He recorded ¼ loss of range of movement and pain, but considered the condition temporary and not yet stabilised and hence no impairment rating could be given.  He gave nil ratings under the relevant tables for psoriasis and emphysema. 

18.     The medical reports at Exhibits A1, A2 and A3 show no significant abnormalities or conditions.  There is nothing further of relevance in the TDR by Dr Armstrong, other than to note his opinion that the prolapsed lumbar disc condition remains unchanged, with the impact expected to persist for more than 2 years.  His only comments in respect of the ability of Mr Rich to return to work are to the effect that he is “unable to bend, unable to lift, has back pain when sitting …can walk well”.   

19.     The later report by Dr Armstrong of 15 January 2006 (Exhibit A4) is more explanatory.  He refers to a loss of one-quarter of normal range of movement as well as back pain and radicular pain with many physical activities.  He refers to sleeping difficulties due to pain when resting.  He is in agreement with the SSAT that the condition warrants an impairment rating of 10 points under table 5.  He better describes the extent of severe psoriasis and its impact on Mr Rich’s life.  He refers to the difficulty of undertaking manual work, (but not in the context of psoriatic arthritis), the need to avoid contact with chemical agents that might aggravate the condition and severe itch.  He concedes that Mr Rich is on sub-optimal treatment, but relates this to the psychological impairment previously referred to. He agrees with Dr Mills that the condition warrants an impairment rating of 10 points. 

20.     The remaining medical report is that of Dr Mills, a Consultant Physician in Occupational Medicine.  Further to earlier comments, he observes that Mr Rich conducted his movements in an active manner, with a brisk and normal gait.  He refers to arthritis of the right foot instep, both wrist and MCP joints of both hands, occurring about once a month, but observes no stiffness or swelling. He sees the psoriasis condition as marked, but no shortness of breath due to emphysema.

21.     Dr Mills assesses the psoriasis condition as being appropriate to a 10 impairment point rating under table 18, “as there is some interference with normal daily activities”.   He gives no impairment points for the respiratory condition (Table 2).  Unlike Dr Armstrong and the SSAT, both of which considered the condition permanent and stabilized and worthy of a 10 point impairment rating under table 5, Dr Mills considers the range of movement near normal and thus a nil rating is appropriate.  He considers Mr Rich unfit for employment, but in doing so, takes into consideration his education and vocational training and opines that his history of disturbed sleep, and lack of transferable skills and age would make him unfit to undertake training to equip him for work in the next two years.

CONSIDERATION AND DECISION

22.     In summation, Mr Rich stated that whilst the medical reports before me didn’t necessarily agree as to the impact on his life of his various medical conditions, that of Dr Armstrong should be given appropriate weight as his treating doctor.  Even then, he considered Dr Armstrong to err on the conservative side; the back condition in itself made it impossible to work and undertake vocational training, and the effect of psoriasis, a condition that would not go away, should be recognized.

23.     The Respondent confirmed acceptance of the three medical conditions as being permanent impairments.   The Respondent also accepted the view of Dr Armstrong and the SSAT that an impairment rating of 10 points under table 5 was appropriate for the back condition.  I have no wish to disturb this rating, albeit I note that Dr Mills was not in agreement.  In doing so I have considered whether a rating of 20 points would be more appropriate but I find this not to be the case.  Whilst Mr Rich has attested to limitations in physical activities and standing and sitting, there is no evidence that he has lost one half of the range of movement, which is a criteria under that rating. 

24.     The Respondent submitted that the condition of emphysema is not yet fully treated nor stabilized.  This accords with the view of the SSAT.  Dr Wassenaar described the condition as permanent and assessed a rating of nil impairment points against a symptomatic activity level of 7 – 8 METS.  Dr Armstrong is of the opinion that emphysema is not a significant impairing condition at this time, and Dr Mills, in the absence of formal tests, nonetheless saw no reason to disagree and assessed a nil impairment rating.  Mr Rich gave no evidence to suggest that he was significantly disadvantaged by the condition, only noting a brief shortness of breath when arising.  I consider an impairment rating under Table 1 of nil points to be appropriate.

25.     The remaining condition to be considered is that of psoriasis under Table 18.  Whilst Dr Wassenaar saw no limitation in performance, and hence assessed a nil rating, Dr Armstrong proposes a rating of 10 points for the reasons earlier given and Dr Mills is of a like mind.  I find their opinions persuasive, and given the evidence of Mr Rich, it seems evident to me that the condition does limit his functional ability.  I note the views of Dr Armstrong in respect of the reasons as to why treatment is sub optimal, but in the light of the interference to his daily activities, and the opinions of Drs Armstrong and Mills, find that an impairment rating of 10 points is appropriate.

26. In summary, I find that Mr Rich has a total impairment rating under Schedule 1B of the Act of 20 points and he therefore meets the requirements of section 94 (1)(b) of the Act.

27. Section 94(1)(c) of the Act relevantly requires that Mr Rich have a continuing inability to work because of his impairments alone within the next two years and such impairments prevent him undertaking educational or vocational training or on-the –job training. Dr Wassenaar saw him (in February 2005) as being unfit for all work for 6 to 12 months because of low back pain and sciatica. She considered the condition to be temporary, whereas it has been accepted that the condition is permanent. Dr Armstrong gave no opinion as to fitness for work in his TDR, and makes no recommendation in his later report of 15 January 2006. He does comment on the extremely disadvantaged upbringing of Mr Rich, and his limited education, as being reasons for granting a DSP; both of these issues fall outside the requirements of the legislation viz section 94(2) where the impairments of themselves must be sufficient.

28.     Dr Mills considers Mr Rich as being unfit for employment based on his psoriasis.  He considers this the only relevant impairment in respect of any inability to work but such work would avoid working in extreme temperatures or humid environments, or handling food.   He would need to avoid tight or repetitive gripping or the use of impact tools; he considered Mr Rich unfit for heavy manual labouring duties, and he considered his views were reflective of the situation in February 2005.  As to educational or vocational training, he states “taking into consideration his education and vocational training, I would consider Mr Rich unfit for employment”, a response which does not address the question.  He went on to say that “given Mr Rich’s history of disturbed sleep, lack of transferable skills and age, I would consider him to be unfit to undertake training which is likely to equip him to do any work in the next two years”.          

29. The Respondent submitted the opinion of Dr Mills place undue weight on matters other than the impairments themselves. This is a valid criticism, but the issue of age can be considered in the context of section 94(4) of the Act which makes provision to consider likely availability of work in the locally accessible labour market if the applicant has turned 55. There are no statistics before me in this regard, but I acknowledge the view of Mr Rich that there has been a downturn in the labour market in his area, and as technology has advanced so his telegraphist qualifications have become redundant and the labour market has shrunk.

30.     Mr Rich is of the opinion that he can not return to work, nor indeed undertake any educational or vocational training because of his back conditions, and to a lesser extent, his psoriasis condition.  He presents with a very clear mindset that he cannot work and indeed is most eligible for the DSP.  He has in the past demonstrated an ability to pursue a variety of non-skilled jobs, and he concedes that he is a “typist” and has computer skills.  I believe they would be sufficient for him to gain employment, were it not for his accepted back condition.   His evidence is that any employment would be effected by his requirement to frequently stand and move around in order to alleviate his back pain, and that he would be effected by such severe pain at times that he would be unable to attend work or vocational training.  In addition, his evidence is that he is severely affected by sleep deprivation, cannot effectively use public transport and can only drive for limited periods.

30. I treat with some reservations the decision by Mr Rich that further neurological consultation serves no purpose; notwithstanding the cost, it would seem sensible to seek further advice as a possible means of minimizing his disability. On balance however, I consider that the impairments suffered by Mr Rich, particularly back pain and limitations, as well as psoriasis and the arthritic implications, are such as to prevent him doing any work in the next two years, or undertaking educational, vocational or on-the–job training in that period. Accordingly, I find that he meets the criteria for a continuing inability to work pursuant to section 94(1)(c) of the Act.

31.     The decision under review is therefore set aside, and Mr Rich is eligible for the Disability Support Pension, the date of effect being 24 February 2005.  

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of REAR ADMIRAL A R HORTON AO

Signed:         Associate

Date of Hearing  30 January 2006 
Date of Decision  17 February 2006
Representative for the Applicant               Mr Rich, Self-Represented
Advocate for the Respondent                    Mr Zhang, Centrelink