Roccaro and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 299
•15 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 299
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/0981
GENERAL ADMINISTRATIVE DIVISION ) Re PETER ROCCARO Applicant
And
SECRETARY DEPARTMENT OF EDUCATION EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr I Alexander, MemberDate15 April 2008
PlaceSydney
Decision The decision under review is affirmed.
.................[sgd].......................
M D Allen
Presiding Member
CATCHWORDS
DISABILITY SUPPORT PENSION – review of decision affirming prior determination by respondent to cancel applicant’s disability support pension – incapacity to be assessed under most appropriate impairment table at time of assessment – qualify for disability support pension if have physical, intellectual or psychiatric impairment amounting to 20 points or more under impairment tables and have continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 section 94 and Schedule 1B
Administrative Appeals Tribunal Act 1975 section 42C
CASE LAW
Lighthouse Philatelics Pty Ltd v Commissioner of Taxation (1991) 32 FCR 148
REASONS FOR DECISION
15 April 2008 Senior Member M D Allen Dr I Alexander, Member
1. By application made the 4th day of August 2006 the Applicant sought review of a decision by the Social Security Appeals Tribunal on 3 July 2006 to affirm a prior determination made on the 24th of August 2005 to cancel his Disability Support Pension.
2. The history of this matter is that the Applicant made an application for DSP on 2 September 2002. That claim was initially refused but on 13 October 2003 a decision by consent pursuant to section 42C of the Administrative Appeals Tribunal Act 1975 granted a DSP to the Applicant.
3. The basis upon which that decision was agreed by the parties is unsure. A file Memorandum dated 17 October 2003 (T34) refers to an impairment of a 20 per cent points under Table 20 (to Schedule 1B of the Social Security Act 1991) whereas a record of Decision dated 20 October 2003 (T36) refers to an impairment of 20 points under Table 5.2 of Schedule 1B.
4. The only medical report at this time that refers to an impairment of 20 points is a report by Orthopaedic Surgeon Dr Loefler dated 25 August 2003 but that report does not state under what Table the Applicant was assessed nor does it provide any explanation for the conclusion reached.
5. In these proceedings the Applicant submitted that as the original grant of DSP was based on an assessment of incapacity under Table 20 of Schedule 1B that any decision to cancel that pension could only be made having regard to Table 20. We do not regard the Respondent as being in any way bound to continue to assess the Applicant’s degree of incapacity under that particular Table. The duty of the Respondent is to administer the Social Security Acts and therefore may assess or reassess a social security applicant or recipient under what impairment Table is most appropriate at the time of assessment. The duty of the Respondent is not dissimilar to that of the Commissioner of Taxation as discussed in Lighthouse Philatelics Pty Ltd v Commissioner of Taxation (1991) 32 FCR 148 at 155 line 33.
6. The criteria for the grant of DSP are set out in section 94 of the SSA. That section reads inter alia:
“A person is qualified for disability support pension if they have a physical, intellectual or psychiatric impairment which amounts to 20 points or more under the Impairment Tables and has a continuing inability to work.”
7. The Impairment Tables referred to in paragraph 94(1)(b) of the SSA above are found at Schedule 1B to the said Act. Table 5.2 of Schedule 1B is referrable to the thoraco-lumbar spine whereas Table 20 is a miscellaneous category including amongst other incapacities chronic pain. Paragraph 8 of the Introduction to Schedule 1B states:
“In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, 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. Medical officers must use their clinical judgement and 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.”
8. Both the Applicant and his wife gave evidence in these proceedings. The Applicant’s wife corroborated the Applicant‘s evidence and we do not need to refer to her evidence in detail.
9. Having been born in Italy the Applicant left school at age seven years to work on his grandfather’s farm. He arrived in Australia in 1968 aged 22 years. He can read Italian but is not literate in English.
10. At some time in 1999 the Applicant was injured while carrying out his work as a gravedigger at Bondi Cemetery. He had been employed as a gravedigger for 20 years but his employment was terminated while he was still absent from work on Workers Compensation payments. He has not worked since.
11. Currently the Applicant’s activities are severely reduced as compared to his pre-accident activities. Previously he maintained a garden growing flowers and vegetables. He would go rock fishing and enjoyed dancing. He does none of these activities now. We also accept the evidence of the Applicant and his wife that he does not now mow his lawn.
12. At no time has the Applicant held a drivers licence but currently he is able to catch public transport. He can undertake shopping with his wife but groceries are home delivered. He can walk approximately 200 metres before he has to stop, and takes his dog for a walk every evening. During this time he would stop and sit as required. Using buses causes back pain due to jolting. He does watch TV but sits on the floor with his legs stretched out in front of him. He can sit for one to one and half hours but moves position. According to Mrs Roccaro the walk home from the shops takes 20 minutes to half an hour with stops as required. The Applicant can still do some work in the garden.
13. The Applicant’s treating general practitioner has referred to the Applicant as experiencing chronic back pain.
14. Previously we have referred to the report of Dr Loefler dated 25 August 2003 assigning an impairment rating of 20 percentage points. Dr Loefler’s report simply states:
“The patient is presently applying for a disability pension. He has a marked restriction of movement with ongoing pain. I do think that he attracts at least 20 points when looking at the disability scale and I would support his application for a disability pension.”
Dr Loefler neither states the Table pursuant to which the rating was assigned nor does he set out any reasoning for his opinion. For these reasons we find we can place no reliance upon the report of Dr Loefler.
15. Dr Barold in a report dated 1 December 2006 assigned 20 points under Table 5.2 on the basis of a “loss of half normal range of movement of the back as well as referred radicular pain in the left thigh with associated muscle wasting”. Dr Barold had noted in his report that Mr Roccaro had recently developed L3/L4 radicular symptoms in the left thigh and that the symptoms had been associated with muscle wasting. Dr Barold admitted in that report that he had not reviewed any recent radiological imaging.
16. We note the results of a CT scan performed on the 30th of May 2006 where it was reported that the “disc at L2/3 and L3/4 are normal and show no herniation or bulging and the facet joints at these levels are unremarkable”. It is clear that Dr Barold’s clinical assessment and conclusions are not supported by the radiological evidence. Furthermore we note that Dr Barold describes himself as a “Certified Independent Medical Examiner” but has no recognised specialist qualifications. For the above reasons therefore we place no weight on Dr Barold’s opinion.
17. Dr Bowles, an Occupational Physician, in a report dated 16 July 2007 noted restriction in extension and lateral flexion of the lumbar spine but did not assign an impairment rating under any of the relevant Tables.
18. Dr Matalani, Occupational Physician, in a report dated 16 January 2007 assigned an impairment rating of ten percentage points under Table 5.2 although he did note that the Applicant complained of chronic low back pain. He also noted some inconsistency in the Applicant’s presentation. In a later report dated 5 February 2007 Dr Matalani opined that the Applicant’s condition has been fully diagnosed and that his current symptoms are related to mechanical back pain which has become chronic.
19. Given the criticisms we have with the reports of Drs Loefler and Barold, the only medical opinion upon which we can rely is that of Dr Matalani whom we know is experienced in assessments under Schedule 1B. He assessed the Applicant as having an impairment rating of 10 under Table 5.2 which is the more specific Table.
20. Paragraph 9 of Introduction to Schedule 1B states:
“Always use a Table specific to the functional impairment being rated unless the instructions in a section specify otherwise. The system-specific Tables provide appropriate criteria with which to rate a disorder. The procedure is to identify the loss of function, refer to the appropriate system Table and identify the correct rating…”
21. Although chronic pain has been referred to in various medical reports given the Applicant’s evidence we do not accept that the Applicant has such a degree of chronic entrenched pain that Table 20 should be used in preference to the specific table for spinal function.
22. As the Applicant has not met the threshold requirement of an impairment of 20 points under the impairment tables, the decision under review is affirmed.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr I Alexander, Member.
Signed: ........[sgd]........
Mwela Kapapa, AssociateDate/s of Hearing 17 January 2008 and 31 March 2008
Date of Decision 15 April 2008Solicitor for the Applicant Stephen Hodges Solicitor
Solicitor for the Respondent Centrelink Legal Services
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