ROBERT DUNNING and SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
[2005] AATA 476
•16 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] 476
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/47
GENERAL ADMINISTRATIVE DIVISION )
Re ROBERT DUNNING Applicant
And
SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICESRespondent
DECISION
Tribunal Dr EK Christie, Member Date16 May 2005
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution decides that Mr Dunning was entitled to disability support pension when it was cancelled on 28 May 2003. This means Mr Dunning’s application is successful. .................[Sgd]........................
EK Christie
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – spinal function pain – ischaemic heart disease – assessment of impairment – inability to work – expert evidence: evaluation of competing medical opinions
Social Security Act 1991 s 94
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Australian Tea Tree Oil Research Institute v Industry Research and Development Board(2002) 124 FCR 316WRITTEN REASONS FOR ORAL DECISION
26 May 2005 Dr EK Christie, Member 1. This is an application by Robert Dunning for a review of a decision of the Social Security Appeals Tribunal made on 11 December 2003 which affirmed an earlier Centrelink decision to cancel disability support pension. Mr Dunning was granted disability support pension in 1998. Centrelink decided to cancel his disability support pension on 28 May 2003 and re-affirmed this decision on 1 September 2003.
2. In reaching its decision, the Social Security Appeals Tribunal concluded that:
(a)no impairment rating could be assigned to Mr Dunning’s heart condition as he was still awaiting coronary bypass surgery and, as a consequence, this condition had not been fully treated;
(b)Mr Dunning had a loss of a quarter of the range of movement in his thoraco-lumbar-sacral spine and pain with many physical activities; the appropriate rating was 10 points under Table 5.2;
(c)the use of Table 20 was not warranted in Mr Dunning’s case as Table 5 adequately reflected the level of pain experienced by him; and
(d)Mr Dunning did not qualify for disability support pension as his impairment rating under Table 5.2 was only 10 points. The Social Security Appeals Tribunal did not consider his capacity for work.
3. At the hearing Mr Dunning represented himself. Ms H Wallis-Dunn, a Departmental Advocate, represented the respondent. Mr J Howard, a Departmental Advocate, represented the respondent at the resumed hearing.
4. At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the “T” Documents (Exhibit 1) and the various exhibits lodged by the parties.
5. At the end of the hearing the Tribunal adjourned the hearing in order to exert its inquisitorial powers in relation to clarifying the extent Mr Dunning’s longstanding chronic pain condition was a significant factor contributing to his overall functional impairment. The information and evidence before the Tribunal indicated a degree of uncertainty as to whether Table 5 may have under-estimated the level of disability because of the presence of chronic pain. The parties consented to a Tribunal direction that Mr Dunning have his chronic pain condition examined and evaluated by an independent medical practitioner, specialising in pain assessment and pain management.
6. The Tribunal took this course, given that Mr Dunning was not represented, to ensure procedural fairness in the evaluation of expert evidence and to ensure the correct and best informed decision could be made.
Facts
7. Mr Dunning lodged a claim for disability support pension on 25 May 1998 and it was granted from 28 May 1998. Mr Dunning’s disability support pension was cancelled on 28 May 2003.
8. Based on the evidence before it, the Social Security Appeals Tribunal made the following findings of fact:
“(i)Mr Dunning was in receipt of disability support pension, which had been granted in 1998, when it was cancelled on 28 May 2003.
(ii)(a) He has spondylolisthesis of L5/S1 and associated degenerative changes in the apophyseal joints. (b) He has a quarter loss of the normal range of movement in the thoraco-lumbar-sacral spine, and (c) experiences pain with many physical activities.
(iii)He has ischaemic heart disease, and suffered a heart attack on 28 September 2002.”
9. At the commencement of the hearing, Mr Dunning acknowledged the above findings of the Social Security Appeals Tribunal in (i), (iia), (iic) as being correct. However, he disagreed with the finding in (iib).
Issues Before The Tribunal
10. There were two issues for the Tribunal to decide:
(a)whether Mr Dunning had an impairment rating of 20 points or more; and
(b)whether Mr Dunning had a continuing inability to work.
Statutory Requirements and Relevant Case Law
11. The relevant legislation is the Social Security Act 1991 (“the Act”).
12. Section 94 of the Act sets out the requirements for eligibility for disability support pension as well as the question of “continuing inability to work”.
“Qualification for disability support pension—continuing inability to work
94.(1) [Qualification – continuing inability to work] 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;
…
Meaning of continuing inability to work
94.(2)[Meaning of ‘continuing inability to work] 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.
94.(3)[Secretary not to have regard to certain matters] 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(5) [Interpretation] in this Section:
…
‘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.”
The Tribunal’s Decision-Making Powers
13. Mr Dunning’s application for a review of a decision made by an Authorised Review Officer (that cancelled his disability support pension) was made to the Social Security Appeals Tribunal on 29 September 2003.
14. The question for the determination of the Tribunal is whether the decision [under review] was the correct one [that is, when there is only one decision] or preferable one [that is, when a range of decisions is available] on the material before the Tribunal: see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, [per Bowen CJ and Deane J, at 68].” In Mr Dunning’s case, there is only one decision possible – whether Mr Dunning is entitled to the DSP.
15. Administrative decision-makers are generally required to address the evidence before them and not confine themselves to evidence before a prior decision-maker whose decision is being reviewed unless the relevant legislation requires a decision to be based upon the circumstances at a particular point of time: see Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316 at 324-326.
16. In Mr Dunning’s case the only period the Tribunal can consider evidence in relation to the nature of his impairment(s) and his entitlement for disability support pension, is prescribed by statute as the date Mr Dunning’s disability support pension was cancelled i.e. 28 May 2003.
Examination of the Oral Evidence: Robert Dunning
17. Mr Dunning stated that when examined by Dr Gregg in 1998, Dr Gregg had determined that he had a loss of ½ of the normal movement of his thoraco-lumbar-sacral spine. However, following a review by Dr Lee in 2003, she had determined that the loss of range of normal movement was now only ¼. Mr Dunning stated that Dr Lee had not carried out any physical examination and only had access to one X-ray that he had provided to her (Exhibit 6, 16 March 1998). He stated that he had not had any surgery undertaken for his back over the period 1998-2003.
18. Mr Dunning said that he 1998 X-rays indicated degenerative changes in his back. He queried, without a physical examination and further X-rays, that there was a medical basis for Dr Lee to conclude that his back condition had improved.
19. Mr Dunning said that the subsequent reviews of his back condition by HSA doctors (Dr Redmond; Dr Mitchell) were based on the material on file and did not involve any physical examination.
20. Mr Dunning challenged the credibility and the insight that should attach to the “Work Capacity Report” undertaken by Emma Muir, a psychologist. Specifically:-
(a)her claim that he suffered a sciatica condition when, in fact, this was never the case;
(b)her statement that “his GP has not reported a pain disorder”; this statement was completely wrong and at odds with Dr Smith’s many reports over time;
(c)her assessment of the impact on his capacity to work did not involve any review of X-rays, physical examination – yet she concluded that his impairment under Table 5.2 was 10 points, because he had a loss of ¼ movement in his spine;
(d)her conclusion that he had “nil interest” in pursing intervention with respect to vocational or rehabilitation assistance had been based on taking comments he had made out of context. He had said to Ms Muir “who would employ a 50 year old on social security with a crook back”. Ms Muir had replied: “I get asked this question every day. There is a need to educate the employer.” Later, in his evidence, Mr Dunning agreed that he would be willing to seek assistance if it would lead to improved opportunities for employment.
21. In response to a Tribunal question, Mr Dunning said that it was not clear whether Ms Muir’s conclusions on his ability to “return to work” were based on his back and pain conditions – or only his coronary condition.
22. With respect to the conclusions of the Social Security Appeals Tribunal, Mr Dunning stated:
(a)Their statement “Dr Lee found less restriction than had Dr Gregg in 1998. There could be a number of explanations for this e.g. Mr Dunning may have rested his back more in recent years.” (T2, Folio 9) was “ridiculous”; and
(b)Their statement “The limitation in Mr Dunning’s walking, to less than 500 metres (or perhaps even to less than 250 metres), is primarily a feature of his heart condition” (T2, Folio 12) was wrong as his walking was affected by numbness in his legs and back pain – not angina. He only ever had to use his angina spray once.
23. He stated that the following conclusions by Dr Biggs (T29, 16 July 2003) had not been considered by the HSA doctors:
“With regard to his spinal pathology it is established that he suffers a spondylolisthiesis [sic] at the lumbo-sarcal [sic] junction some osteoarthritis in the lower facet joints. Additionally there are defects in the pars interarticulares of the fifth lumber [sic] vertebra associated with this. These changes in his spine are a source of low back pain both sitting (producing restlessness) and on walking and/or remaining erect.” (Folio 146);
and
“Clinical examination of his lumbar spine reveals back movements limited by pain; subjective evidence of sensory loss in both legs; absent knee jerks and ankle jerks. Straight leg rasing [sic] is limited – by pain and also spasm of the hamstrings.” (Folio 147).
24. Mr Dunning referred to the following statement in the report of Dr Mitchell (Exhibit 2):
“It is interesting to note however that he apparently had an episode of angina in late 2002 or early 2003 while attempting to move a heavy item of furniture. This would indicate that the symptoms due to his back condition were not sufficiently severe to prevent him from undertaking moderately heavy physical exertion, at least on that particular occasion.”
Mr Dunning stated that no-one had asked him anything about the features (weight, dimensions) of the furniture and had simply presumed that it was a heavy item of furniture. In fact it was a light chipboard cabinet, about 120 cm x 60 cm x 90 cm, that he had moved along to reach a mousetrap.
25. In response to a Tribunal question, Mr Dunning said that he did not take painkillers because of their addictive properties. In addition, he had taken anti-inflammatories in the past, but had discontinued their use because of their adverse effects on the stomach. Because the taking of painkillers and anti-inflammatories was a long-term need for his conditions, he had decided to forego their use.
Contentions and Submissions of the Parties
26. Ms Wallis-Dunn submitted that an analysis of the “T” Documents indicated that, over the period 1999-2002, there was a great deal of information available to Dr Lee to reach an opinion as to determining the impairment points. Dr Lee had summarised Mr Dunning’s condition as follows:
“This 50 year old client has chronic low back pain. He has an L5/S1 spondylolisthesis which is being managed without surgery. He discontinued truck driving in 1998 because of back pain. His tolerance for driving is only 10-15 minutes. He can sit or stand for 1 hour. He has ¼ loss of range of back movement. Impairment 10.” (T21, Folio 133, 24 March 2003).
27. It was her contention that Dr Lee had a discretion whether or not to physically examine Mr Dunning with respect to determining the extent of impairment due to his back condition.
28. Impairment ratings had been allocated by HSA doctors only in Mr Dunning’s case. Medical reports supplied by Mr Dunning had been taken into account when Dr Edmonds of HSA had reconsidered the case on two occasions (T25 and T33).
29. She further contended that the reports of the doctors experienced with using the Impairment Tables i.e. the HSA doctors, should be preferred, especially as the other medical reports had been taken into account when the Impairment Tables were considered by the medical doctors employed by HSA.
30. Ms Wallis-Dunn submitted that Mr Dunning’s condition attracted a rating of no more than 15 points as stated by Dr Mitchell in his report of 18 June 2004. Dr Mitchell had allowed for a misunderstanding about Mr Dunning’s sitting and standing tolerances. Dr Mitchell’s assessments were as follows:
Table 5.2 10 points
Table 20 15 points (maximum)
31. Ms Wallis-Dunn submitted that, as Mr Dunning’s heart condition had not been fully documented, diagnosed, treated and stabilised by 28 May 2003, it could not be allocated a rating when considering Mr Dunning’s condition at the time the decision was made to cancel disability support pension. Furthermore, the condition had still not been treated and stabilised.
32. It was her contention that Mr Dunning’s condition did not meet the statutory threshold for 20 points; at best, it was only 15 points.
33. Ms Wallis-Dunn concluded with the following submissions with respect to Mr Dunning’s continuing ability to work:
(a)that his back condition should not, in its own right prevent light semi-sedentary full-time work (T33 Dr Edmonds, 19 August 2003). Dr Mitchell’s report of 18 May 2004 was in accord with this as he stated that Mr Dunning was fit for full-time sedentary work (Exhibit 2);
(b)the medical evidence before the Tribunal supported the view that Mr Dunning would benefit from education, training and rehabilitation;
(c)two expert opinions indicated that Mr Dunning showed minimal or nil interest with respect to rehabilitational or vocational assistance. Furthermore, she submitted answers he had given in the surveys were “evasive”; and
(d)given that he had some clerical work history in the past, training would assist him to return to the workforce.
34. Mr Dunning expressed a significant concern as to the process HSA doctors had used to evaluate his conditions and to assign points under the Impairment Tables. He contended that there were limitations in that no HSA doctor had physically examined him to determine the loss of movement in his spine. Moreover, the opinions from Dr Lee and other HSA doctors thereon, in sequence, concluded that he had only ¼ loss of normal range of movement. However, in contrast, Dr Gregg in 1998 (T12, Folio 63) had concluded that he had ½ loss of normal range of movement. Mr Dunning submitted, given the absence of physical examination by Dr Lee in 2003 and by other HSA doctors from this time, together with the limited radiological evidence, that there was insufficient medical evidence available to Dr Lee (and, subsequently the other HSA doctors) to conclude that he had ¼ loss of the normal range of movement in his spine.
35. Mr Dunning stated that Dr Lee’s review (T21, Folio 133) was incorrect in recording that his tolerance for driving was “only 10-15 minutes” and that he could “sit or stand for one hour”. Mr Dunning said that the correct figures, based on his condition were a tolerance of ½ hour for driving and that he could sit or stand for only ½ hour. The numbness in his legs was a major limitation to his walking and driving motor vehicles.
36. Mr Dunning stated that the decision to not take painkillers or anti-inflammatory medication was a personal decision on his past. He had discontinued the use of anti-inflammatory medication because of an adverse stomach reaction. He did not take painkillers because of their addictive qualities and his needs were long-term.
37. Whilst he acknowledged he had some clerical experience in the past associated with a landscape business, his inputs were very minor and limited to a period of about a year.
38. Mr Dunning concluded with the submission that his past work ethic, prior to his back condition limitations affecting his capacity to work, indicated that he had demonstrated “enthusiasm” to undertaking paid work.
Supplementary Submissions
39. In his expert report filed with the Tribunal on 1 November 2004, Dr Graham Rice, a specialist in pain medicine and psychiatry, expressed the following opinion in relation to the extent of Mr Dunning’s impairment and capability for doing his usual work:
“1. Did the person have an impairment?
Yes with spinal degeneration, spondylolisthesis, loss of fitness, and weight gain. He has had a myocardial infarction and is listed for surgery. He has limited motivation to work, and presents with behaviour consistent with seeking pension status.
2. Was the condition permanent?
The spinal changes are permanent. He may be able to improve his function but not to the point where he will be able to drive a truck, either short or long haul on a full time basis.
3. Symptoms:
See history above.
4. Assessment of impairment:
Table 20 rating 15
5. Did the impairment itself prevent the person from doing their usual work?
Yes.
6.Did the impairment prevent the person from undertaking education or vocational training?
He could be considered for training in light duties only. As mentioned above he would need a work position where he would be able to move frequently….”
40. Furthermore, it was Dr Rice’s opinion that based on the history given to him, that Mr Dunning’s condition on 28 May 2003 was the same as at the time he completed this report (26 October 2004).
41. In response to this expert medical report, Mr Dunning made the following supplementary submissions:
(a)that no physical examination to assess his back movement restriction was undertaken by Dr Rice;
(b)that he challenged the veracity of statements made by Dr Rice as to his motivation to regain fitness or to become re-trained for work;
(c)that the factual bases for the opinion expressed by Dr Rice in relation to pain were inconsistent and incorrect; and
(d)that Dr Rice failed to understand the link between a fitness program, pain, the need for medication and the side effects that arose.
42. Mr Howard, for the respondent, stated that Dr Rice specialised in pain medicine and his report focussed on how Mr Dunning experienced and managed pain rather than his physical condition. Mr Howard contended that as Dr Rice’s reports clearly stated the pain Mr Dunning experienced only attracted an impairment rating of 15 points, Mr Dunning did not meet the DSP qualification criteria. Mr Howard also referred to Dr Rice’s report in relation to pain and Mr Dunning’s functioning ability. In particular, that pain would not prevent him from being retrained, or from working in light sedentary jobs.
Resumed Hearing: 3 February 2005
43. Following the filing of Dr Rice’s expert medical report, the subject of the Tribunal’s Direction, and the closing date for supplementary submissions, Mr Dunning took independent action to obtain further expert medical evidence from Dr John Pentis, an orthopaedic surgeon. The date of consultation was 15 December 2004. The report was filed with the Tribunal on 21 January 2005.
44. The Tribunal reconvened at a hearing on 3 February 2005 to hear submissions from the parties as to whether Dr Pentis’ report was admissible and/or relevant and subject to review by the Tribunal’s decision-making process.
45. Mr Howard, for the respondent submitted that, given that Mr Dunning was not represented, it was open for the Tribunal to admit Dr Pentis’ report. However, the opinion contained in the report was not relevant as the evaluation of Mr Dunning’s lower back condition only applied at the date of the consultation with Dr Pentis (December 2004) and not at the date his DSP was cancelled (May 2003).
46. Mr Dunning submitted that Dr Pentis should be given an opportunity to revise the opinion contained in his report in order to address the issues raised by the respondent.
47. The Tribunal exerted its inquisitorial powers and concluded that given Mr Dunning was not represented, the requirements for procedural fairness (formerly referred to as “natural justice”) dictated that Dr Pentis be given an opportunity to revise his report that had been independently commissioned by Mr Dunning and filed in January 2005 to address two issues:
(a) the status of impairment rating under Table 5.2 as at May 2003; and
(b)the impact of the impairment on continuing ability to work as prescribed by the Act.
48. The Tribunal issued a Direction on 3 February 2005 to give effect to these issues and for them to be addressed by Dr Pentis i.e. by revising the report he filed on 21 January 2005.
Revised Report of Dr Pentis
49. Dr Pentis’ expert report in response to the Tribunal Direction made on 3 February 2005 was filed on 15 April 2005 (Exhibit 9).
50. The expert opinion of Dr Pentis contained the following conclusions:
(a)“Using table 5.2, as of 28 May 2003, I would assume it would be similar to currently and would be a twenty rating due to the loss of range of movement of half of his spine with the associated spondylolisthesis that he does have.”
(b)“With this disability he would have difficulty carrying out any manual work. He would have difficulty walking distances, would have difficulty climbing stairs and the like for extended periods of time. He would be at a disadvantage sitting for long periods of time or driving for long periods of time, as his spine would stiffen as well. It would be advisable that work activities would be at his own pace and limit any lifting if he was to work during the period of time in question. It is unlikely to see anyone employing him with a history of back problems and a back condition as he does have in his spine which would be the other detriment to finding work.”
51. In response to the revised report of Dr Pentis (Exhibit 9), Mr McQuinlan submitted:
(a)that the HAS report by Dr Lee on 21 March 2003 (see T21, Folio 122) was a more accurate reflection of Mr Dunning’s loss of range of movement to the spine (ie 25%) and on that basis, only warranted 10 points under Table 5.2;
(b)whilst acknowledging that Mr Dunning would have difficulty carrying out any manual work there was nothing in Dr Pentis’ report which would support the view that Mr Dunning was incapable of any kind of light sedentary work on a full-time basis. Furthermore, there was unequivocal medical opinion by HSA that Mr Dunning’s back condition should not, in its own right, prevent light semi-sedentary full-time work (e.g. see Dr Edmond’s report T33, Folio 152).
Consideration Of The Issues
52. Mr Dunning’s heart condition had not been fully treated and stabilised at the time his disability support pension was cancelled: see Report of Treating GP, Dr D Smith [Exhibit 8] and his expert opinion in relation to ischaemic heart disease in this regard. Accordingly, the Tribunal concludes that, based on this opinion of Dr Smith, as well as Dr Smith’s earlier report (T20), no impairment rating can be given from Mr Dunning’s ischaemic heart disease condition for the relevant period commencing 28 May 2003.
53. The first issue for the Tribunal to decide is whether Mr Dunning satisfies the requirements of having an impairment rating of 20 points or more, under the various Tables. It is clear that the outcome of this issue is dependent on the expert medical evidence before the Tribunal of Dr Lee, Dr Redmond, Dr Mitchell, Dr Rice, Dr Smith and Dr Pentis that applies at the relevant time period – the date Mr Dunning’s disability support pension was cancelled. The impairment ratings given by these medical experts that apply are as follows:
Table 5.2 (Thoraco-Lumbar-Sacral Spine)
§Dr Lee [T21, 21 March 2003]: 10 points
§Dr Redmond [T25, 20 June 2003]: 10 points
§Dr Redmond [T33, 19 August 2003]: 10 points
§Dr Mitchell [Exhibit 2, 18 June 2004]: 10 points
§Dr Smith [Exhibit 8, 1 April 2004]: 20 points [approximate only] –
but qualified with the notation: “It is difficult to make a meaningful assessment consistent with the Schedule. Back impairment is measured largely in the form of loss of mobility. In this case, the problem is pain. Loss of mobility gives no measure of this.”
§Dr Pentis [Exhibit 9, 15 April 2005]: 20 points
Table 20 (Chronic Pain – Back)
§Dr Redmond [T25, 20 June 2003]: 10 points
§Dr Mitchell [Exhibit 2, 18 June 2004]: 15 points
§Dr Rice [Expert Report, 18 June 2004]: 15 points
54. In relation to expert medical opinion and assessment of DSP applications, the Tribunal made the observation in Mustafay and Secretary, Department of Family and Community Services [2004] AATA 819 that medical opinion is based on (i) the history and symptoms of the condition given by the patient to the doctor; (ii) physical examinations and diagnostic tests ordered and/or undertaken by the doctor to investigate the symptoms of the patient, together with (iii) the observations made by the doctor during the consultation and (iv) the connection between the patient’s symptoms, physical examination and observations during consultation, diagnostic tests, medical condition diagnosed and the impairment rating given.
55. The Tribunal has considered these observations in relation to the opinion evidence provided by the respondent’s medical experts in relation to Table 5.2 and concludes:
(a)Dr Lee (T21, 21 March 2003) – the report contains very limited notes with respect to physical examination (Folios 121, 122). Dr Lee only had the radiograph of 16 March 1998 (Exhibit 6) available at the consultation.
(b) Dr Redmond (T25, 27 June 2003, Folio 141; T33, Folio 152)
Opinion contained in the report is based on a review of the file, only.
(c) Dr Mitchell (Exhibit 2, 18 June 2004)
Opinion contained in the report is based on material supplied. No interview with the applicant or physical examination has been undertaken (page 1).
56. The Tribunal concludes that these approaches to diagnosis and analysis and assessment of Mr Dunning’s impairment are consistent with the applicant’s oral evidence: that Dr Lee had not carried out any physical examination and only had access to one earlier x-ray (1998); reviews of his back condition by Dr Redmond and Dr Mitchell were based wholly on the material on file and did not involve any physical examination.
57. The assessment of impairment rating by Dr Pentis (Exhibit 9, plus report filed 21 January 2005) involved a full physical examination and review of recent diagnostic radiology. In this report, Dr Pentis refers to x-rays of the lower spine, specifically a spondylothesis “with forward displacement of L5 on S1, associated degenerative changes in the apophyseal joints…”. This description is contained in the radiology report of 17 July 2003 (T30, Folio 148).
58. The Tribunal concludes that an evaluation of impairment rating under Table 5.2 which specifically requires an evaluation of “loss of normal range of movement in the thoraco-lumbar sacral spine” should be consistent with the Tribunal’s analysis in Mustafay (see paragraph 54 of these Reasons). Accordingly, the Tribunal prefers the evidence of Dr Pentis compared with the respondent’s medical experts as it is far more objective in terms of diagnosis and opinion. In contrast, the Tribunal considers the opinion evidence of the respondent’s medical experts to be subjective because of limitations in their approach to diagnosis and assessment of impairment. Moreover, independent corroboration of Dr Pentis’ conclusion, with respect to impairment rate under Table 5.2, is found in the medical opinion of Mr Dunning’s treating GP (Dr Smith). The Tribunal concludes that Mr Dunning has an impairment rating of 20 points under Table 5.2.
59. Given this finding, the Tribunal has no need to consider the impairment rating under Table 20.
60. The next issue for the Tribunal to consider is Mr Dunning’s continuing ability to work in respect of:
(a)the finding on his impairment rating of 20 points under Table 5.2: “loss of ½ of normal range of movement as well as back pain or referred pain”; and
(b) the meaning of “work” as prescribed by the Social Security Act.
61. Given the above qualification [paragraph60(a)], the Tribunal has assigned little weight to the opinion of Dr Lee, Dr Redmond and Dr Mitchell as their opinion is based on his functioning ability equating to a loss of ¼ range of movement only (see paragraph 52].
62. The respondent further relies on the “Work Capacity Report” of Ms E Muir, a rehabilitation consultant (Exhibit 3). In her report, Ms Muir:
(a)has accepted the medical opinion of ¼ loss of range of movement i.e. she did not carry out any independent evaluation of Mr Dunning’s impairment rating; and
(b)under Part F, “General Summary of Customer’s Circumstances and Recommendations Arising From Assessment”, Ms Muir provides the following notation in her report (Exhibit 3, p.12) “…the subjective experience of his pain appears to be most distressing. His GP has not reported a pain disorder and assessment of this is a possibility…”
63. The latter conclusion by Ms Muir, in her evaluation, is surprising. It represents a limitation in her evaluation given that it is totally inconsistent with the medical evidence contained in Centrelink documents prepared by Mr Dunning’s treating GP (Dr Smith). In his reports, Dr Smith has stated:
§ T9, Folio 46 (8 August 1996): “Chronic low back pain condition that was stable with poor prognosis. Cannot sit or stand for long period” [Date of onset or diagnosis 1993]; and
§ T11, Folio 53 (27 February 1998): “Chronic low back pain/spondylothesis/severe degenerative change. Date of onset or diagnosis 1991. Constant pain. Cannot stand for long period. Condition [now] deteriorating. Prognosis no improvement.”
64. Accordingly, the Tribunal considers that Ms Muir’s “Work Capacity Report” has limitations in the foundation upon which it is based. That is, it fails to recognise pain and spondylothesis as a limitation to work, within the context of Dr Smith’s well-documented long history – as well as the appropriate impairment rating of 20 points under Table 5.2. Accordingly, the Tribunal concludes that Ms Muir’s report is subjective in dealing with the extent and nature of Mr Dunning’s impairment and its impacts on his functioning ability, and so attaches little weight to it.
65. The Tribunal notes that Dr Smith has been Mr Dunning’s treating GP since 1988 (see T11, Folio 55). Dr Smith has responded to questions relating to Mr Dunning’s continuing ability to work as follows:
“(a) T9 Folio 48 (8 August 1996)
6. Based on the person’s current medical condition(s), is the person fit for his/her usual work for at least 30 hours per week? No
√
Based on the current medical condition(s), is the person fit for any other work he/she could reasonably be expected to do for at least 30 hours per week? No
√
Based on the person’s current medical condition(s), is the person fit for part-time work? Yes
√
(part-time work is any work of least 8 hours per week, that the person could reasonably be expected to do.)
If Yes, please specify type of work: Could probably do light part time work (but no prolonged sitting or standing)
7.
When is the person likely to be able to work for at least 30 hours per week? more than 2 years
√
(b)T11, Folio 55 (27 February 1998)
6.
Based on the person’s current medical condition(s), is the person fit for his/her usual work for at least 30 hours per week? No
√
Based on the person’s current medical condition(s), is the person fit for any other work he/she could reasonably be expected to do for at least 30 hours per week?
√
No
Based on the person’s current medical condition(s) is the person fit for part-time work? No
√
(Part-time work is any work of least 8 hours per week, that the person could reasonably be expected to do.)
7. When is the person likely to be able to work for at least 30 hours per week? more than 2 years ”
√
66. There are limitations in the expert medical opinion of the respondent’s doctors and the report by Emma Muir that have been the subject of the Tribunal findings. The Tribunal prefers the medical opinion of Dr Smith, in this regard, as it is based on long standing consultation (more than 10 years) and is objective in the approach taken in arriving at the opinion expressed. Furthermore, Dr Smith’s opinion is supported by the observations made by Dr Pentis in his report filed on 15 April 2005 – given that the Tribunal Direction and instructions to Dr Pentis specifically required him to consider Mr Dunning’s ability to work within the statutory meaning of “work”: “that is, at least 30 hours per week at award wages or above”, for the period May 2003 – May 2005.
67. For all of these reasons, the Tribunal concludes that Mr Dunning had a “continuing inability to work” at the time his DSP was cancelled.
68. For all of the above reasons, the Tribunal finds that Mr Dunning is entitled to receive disability support pension from 28 May 2003, when his disability support pension was cancelled.
69. The Tribunal sets aside the decision under review and in substitution decides that Mr Dunning was entitled to his disability support pension when it was cancelled on 28 May 2003.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: Camille Banks
AssociateDate/s of Hearing 8 June 2004, 3 February 2005, 16 May 2005
Date of Decision 16 May 2005
Date of Written Reasons 26 May 2005
The Applicant appeared in personFor the Respondent Ms H Wallis-Dunn, Departmental Advocate (at the hearing on 8 June 2004) and Mr J Howard and Mr R McQuinlan, Departmental Advocates thereafter
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