Ronald Evans and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 308

[2013] AATA 308 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/1806
Re	Ronald Evans
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Senior Member J L Redfern
Date	15 May 2013
Place	Sydney

The decision under review is affirmed.

.................................[sgd].......................................

Ms J Redfern, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension - DSP - Impairment tables - whether Applicant had impairment of 20 points or more under Impairment Tables and was eligible for DSP - Decision Affirmed

LEGISLATION

Social Security Act 1991; s 94, Sch 1B

Social Security (Administration) Act 1999; s 80(1)

REASONS FOR DECISION

Senior Member J L Redfern

15 May 2013

BACKGROUND

1. The applicant, Mr Ronald Evans, is a 50-year-old man who was granted a disability support pension on 31 March 2004 in respect of spinal and gastrointestinal disorders. For reasons that were not explained, Centrelink commenced a review of Mr Evans’ eligibility to receive the disability support pension in early 2010. On 3 August 2010, at the request of Centrelink, Mr Evans underwent a job capacity assessment. The assessor concluded that Mr Evans’ spinal disorder attracted an impairment rating of 10 points but his gastrointestinal disorder did not attract any impairment rating because this condition was said to have had no functional impairment on Mr Evans’ work capacity.

2. Entitlement to the disability support pension is dependent on, amongst other things, Mr Evans having an impairment rating under the social security legislative scheme of at least 20 points.  Centrelink made the decision to cancel Mr Evans’ disability support pension on 15 September 2010 on the basis of the job capacity assessment because Mr Evans was assessed as having less than the required impairment rating.

3. Mr Evans requested that this decision be reconsidered but on 28 October 2010 an authorised review officer with Centrelink affirmed the decision to cancel Mr Evans’ pension.  He appealed that decision to the Social Security Appeals Tribunal (SSAT), which affirmed the decision on 31 March 2012.  Mr Evans now seeks a review of the decision of the SSAT.

   LEGISLATIVE SCHEME AND ISSUE FOR DETERMINATION

4. The issue for determination by the Tribunal was whether Mr Evans remained entitled to the disability support pension as at 15 September 2010.

5. The relevant legislation is the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).

6. To qualify for a disability support pension a person must have a physical, intellectual or psychiatric impairment, the impairment must attract a rating under the Impairment Tables of at least 20 points and the person must have a “continuing inability to work”: s 94(1) of the Act.

7. The Impairment Tables are set out in Schedule 1B of the Act. According to the Introduction to Schedule 1B [at paragraph 1]:

   These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work. Work is defined in section 94(5) of the Social Security Act 1991. The Tables represent an empirically agreed set of criteria for assessing the severity of functional limitations for work related tasks and do not take into account the broader impact of a functional impairment in a societal sense. For this reason, no specific adjustments are made for age and gender. The outcome of the application of these Tables following a medical assessment is termed work related impairment and this term is used throughout this document.

8. The Introduction provides guidance to assessors in applying the Tables. Relevantly, paragraph 8 provides guidance about the approach to be taken when assessing chronic pain or fatigue and 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.

9. Schedule 1B contains Impairment Tables which deal with particular impairments. The relevant Tables for consideration in the present case are:

   Table 5.1         Cervical spine 

   Table 5.2         Thoraco – lumbar-sacral spine

   Table 11.2       Gastrointestinal: Pancreas, Small and Large Bowel, Rectum and Anus

   Table 20Miscellaneous – Malignancy, Hypertension, HIV Infection, Morbid Obesity (ie BMI >40), Miscellaneous Ear/Nose/Throat Conditions & Chronic Fatigue or Pain

10. Section 80(1) of the Administration Act provides that if the Secretary is satisfied a pension is being paid to a person who is not, or was not, qualified for the payment, the Secretary is to determine the payment is to be cancelled or suspended. The relevant time to determine the question of entitlement is 15 September 2010, when the decision was made to cancel Mr Evans’ disability support pension.

11. The Secretary accepted that at the time Mr Evans’ disability support pension was cancelled Mr Evans had physical impairment and continuing inability to work within the meaning of s 94(1) of the Act. However, it was contended that Mr Evans’ impairment rating under the relevant Impairment Tables at the time of cancellation was 10 points, which falls short of the statutory threshold. As such, Mr Evans was not entitled to the disability support pension and his pension should have been cancelled.

12. The key issue in dispute was the appropriate impairment rating for Mr Evans’ medical conditions as at 15 September 2010. To determine this question it is necessary to examine the available evidence about Mr Evans’ condition, including medical evidence, and the relevant Impairment Tables.

    THE EVIDENCE

13. Mr Evans left high school at 15 before finishing Year nine. He worked firstly as a sales assistant, and then in bakeries for seven and a half years in Bundaberg and Brisbane. He later worked as a brick sorter, extruder, setter and fireman in a brickworks factory in Townsville for around 10 years. In or around 1997 he began experiencing lower back pain, resulting from strain of the lumbar ligaments. Lighter duties were not available at the factory and Mr Evans took a redundancy package. He subsequently worked in various roles, including volunteering for Work for the Dole and CRS Australia, before he found work as a casual school bus driver. He has continued working as a school bus driver since moving to Inverell in 2010. He currently drives 18.75 hours per week but says he would drive more if he could obtain further shifts.

14. Mr Evans was granted the disability support pension on 31 March 2004. His application was supported by a medical report from Dr Gidall, his treating doctor at the time, dated 16 March 2004. Dr Gidall diagnosed Mr Evans as having Lumbosacral/thoracic spinal pain and chronic reflux and pancreatitis. He assessed Mr Evans as being unable to stand or bend for more than 20 minutes, unable to sit for more than 20 minutes and unable to lift weights heavier than five kilograms. Dr Gidall also noted that Mr Evans had pancreatitis 14 years previously and had symptoms of burping, pain and reflux which made it difficult for him to function in the mornings.

15. Mr Evans was reviewed by a work capacity assessor, on behalf of Centrelink, who attributed an impairment rating of 10 points under Table 20 in respect of Mr Evans’ spinal condition and an impairment rating of 10 points under Table 11.2 in respect of his pancreatitis. The assessor noted that she had assessed Mr Evans’ spinal condition under Table 20 because she considered Mr Evans’ pain levels were more indicative of his restricted work capacity than the range of movement rating under Table 5.2. She determined Mr Evans had a continuing inability to work, on the grounds he was unable to work for more than 30 hours per week within the next two years.

16. On 2 January 2010 Mr Evans was selected to have his disability support pension eligibility reviewed. Centrelink provided him with a medical review form: Section A was to be completed by Mr Evans and Section B was to be completed by his treating doctor. Mr Evans provided Section A to Centrelink on 10 February 2010, but did not provide a completed Section B. Mr Evans was reviewed by Mr Christopher Cherry, registered nurse and accredited exercise physiologist from Health Services Australia Limited, on 3 August 2010. Mr Cherry recorded his findings in a report dated 22 September 2010. He used Table 5.2 Thoraco-lumbar-sacral spine function to assess Mr Evans’ range of movement loss and concluded as follows:

    The client has a loss of ¼ ROM at best and report back pain with prolonged sitting, standing and walking as well as other physical activities such as standing at the sink washing up and standing playing darts. He did report that most physical activity causes his pain to increase which is why he avoids a lot of physical activity.

17. Mr Cherry assessed Mr Evans as having an impairment rating of 10 points for his spinal condition under Table 5.2.

18. In his report, Mr Cherry noted that Mr Evans described his gastroenterological condition as having minimal effect on his ability to work. He concluded that this condition had “no functional impairment on the client’s work capacity” and therefore assigned this condition with zero impairment rating under Table 11.2. As such, Mr Evans’ total impairment rating was assessed as 10 points, which was less than the impairment rating required under s 94(1) of the Act.

19. A delegate of the Secretary cancelled Mr Evans’ disability support pension on 15 September 2010 based on the report of Mr Cherry.

20. Mr Evans informed Centrelink that he believed the assessor had not considered all his medical conditions and Centrelink assisted him to obtain an initial consultation with Dr Thatcher, a local doctor in Inverell, who completed a disability support pension pro forma medical report dated 25 October 2010. Dr Thatcher recorded back pain as Mr Evans’ only condition significantly affecting his ability to function. He described the functional impact as “Able to sit for one hour. Stand up to ½ hour. Unable to lift/bend”. Dr L H Thatcher did not refer to Mr Evans having a gastroenterological condition and did not attribute an impairment rating to Mr Evans’ conditions.

21. Mr Evans consulted with an Orthopaedic Surgeon, Dr Robin Diebold on 10 December 2010. In his report dated the same day as the consultation, Dr Diebold noted that Mr Evans had “mild decreased movement of the lower back”. He concluded Mr Evans would have “difficulty with any job that involves lifting or standing or walking for more than four hours at a time” but he would be “able to drive buses or other vehicles for an unlimited period of time”. Dr Diebold did not consider that Mr Evans’ neck or oesophageal reflux would qualify as conditions for a disability support pension and did not attribute an impairment rating to Mr Evans’ conditions.

22. On 13 March 2012 Legal Aid obtained a consultation for Mr Evans with an Occupational Physician, Dr C Oates. Dr Oates provided a detailed medical examination report, in which he recorded Mr Evans’ current medical conditions as atrial fibrillation, oesophageal reflux and fatty liver (not requiring treatment), chronic low back pain and intermittent neck pain. He noted Mr Evans was in constant low back pain of variable severity, but that his neck pain was not limiting or disabling him to any significant extent.

23. In response to a request to give an impairment rating for each of Mr Evans’s conditions using the Impairment Tables from the Act, Dr Oates assessed his conditions as:

    Referring to Table 5 specifically Table 5.1 cervical spine I assess 5 points for loss of quarter of the normal range of movement. From Table 5.2 thoracolumbosacral spine I assess 10 points as there is back pain with many physical activities with standing for about 30 minutes and with sitting or driving for about 60 minutes or alternatively there is loss of half normal range of movement. The reported physical tolerances for standing and sitting or driving combined with the loss of half normal range of movements are not sufficient to ascribe 20 points.

24. Dr Oates assessed Mr Evans as having a total of 15 points combined under Table 5.1 and Table 5.2. He considered Mr Evans as being unlikely to sustain 30 hours’ work per week because of the progressive deterioration expected in the state of his degenerative lumbar spine condition. In reference to Mr Evans’ conditions, Dr Oates concluded as follows:

    His gastrointestinal and cardiac condition (atrial fibrillation) are well controlled. He has ongoing problems with low back pain and neck pain with restricted range of movement. There is also restriction of physical tolerances.

25. Mr Evans said that he has undertaken physiotherapy in the past but without improvement to his symptoms. Mr Evans stated in the hearing that his back condition has deteriorated since its onset and his pain increases with bending, carrying heavy objects and lifting. He has difficulty driving for periods longer than one hour without taking breaks. Since moving to Inverell, Mr Evans said has struggled to find doctors willing to provide medical reports to support his disability support pension application.

26. Because he did not specifically express an opinion about these issues in his report dated 13 March 2012, Dr Oates was asked by Centrelink to opine on the following by letter dated 27 February 2013 :

    (a)Are the impairment ratings assigned in your report your opinion of Mr Evans’ condition as at 27 February 2012?

    (b)If yes, are you able to express an opinion about whether Mr Evans’ impairments would have been significantly different on or about 15 September 2010, i.e. the date of cancellation of disability support pension?

    (c)Please advise whether you considered allocating a rating under Table 20 of the Impairment Tables and why you did, or did not.

27. Dr Oates provided a report dated 20 March 2013, responding to each of the questions as follows:

    (a)Yes. The impairment ratings are based on my clinical examination and consideration of his symptoms at that time.

    (b)In my opinion the impairments would not have been significantly different on or about 15 September 2010. He indicated that his neck condition had been stable for a period of time and that his back condition was getting marginally worse over time. This would indicate that the condition of the neck and back in September 2010 would not have been worse previously, that is, had qualified for a greater impairment assessment.

    (c)I note Table 20 is used for miscellaneous conditions including hypertension, transplants, miscellaneous ear, nose and throat conditions and chronic fatigue or pain, but that double-counting of a particular loss of function by the use of more than one table must be avoided. I did not use Table 20 as his atrial fibrillation condition is well-controlled and would rate a nil rating. He also indicated that his oesophageal reflux is stable and has a low level of symptomatology in the form of mild flatulence only with no acid reflux and that he had stopped medications for this as nothing seemed to work. This would attract nil rating under Table 20 as they are minor symptoms which are easily tolerated and have no appreciable effect on the ability to work.

28. Dr Oates did not refer in either report to the issue of whether assessing Mr Evans’ impairment under Table 20 for chronic pain would have been more appropriate than assessing his loss of function under Table 5. Dr Oates gave evidence by telephone and was questioned on this issue. He said that he was not aware of these particular provisions in paragraph 8 of the guidance notes and therefore had not turned his mind to the question of whether assessment of Mr Evans’ impairment under Table 5 would “underestimate the level of disability because of the presence of chronic entrenched pain”. Dr Oates was asked to consider this question. He gave evidence that Table 5 was the most appropriate tool to assess Mr Evans’ disability as he was not satisfied Table 5 underestimated Mr Evans’ impairment. While his examination recorded that Mr Evans had constant pain, it was noted that Mr Evans was managing the pain and was not taking any medication. According to Dr Oates, this was significant.

29. Mr Evans disagreed with this assessment and said that he used heat packs and moderated his activities to avoid pain. Notwithstanding this, Dr Oates did not change his opinion on this matter. 

    CONSIDERATION OF THE EVIDENCE AND DISCUSSION

30. As previously noted, the key issue in dispute is whether Mr Evans had impairments of 20 points or more under the Impairment Tables set out in Schedule 1B of the Act at the relevant time.

31. To establish loss of functioning of 20 points or more under Table 5 (there is no dispute the Table 11.2 is no longer relevant and Table 20 is in the alternative), there would need to be sufficient evidence of loss of function as described in Table 5.1 and 5.2 to meet the statutory threshold.

32. Table 5 provides as follows:

    TABLE 5. SPINAL FUNCTION

    Determination of spinal impairments must be based on a demonstrable loss of function.

    TABLE 5.1 Cervical spine

Rating	Criteria
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.

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.

TWENTY

Loss 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.

FORTY

Ankylosis in an unfavourable position, or unstable joint.

1. The evidence of Dr Diebold, Dr Oates and Mr Cherry is consistent and is to the effect that Mr Evans’ various injuries and complaints did not leave him with a loss of functioning of 20 points or more. Mr Cherry concluded the Mr Evans had impairment of 10 points for his spinal injury, after rating Mr Evans’ functional impairment for his neck and his oesophageal reflux as “nil”. Dr Diebold did not provide an opinion about Mr Evans’ overall impairment rating but noted mild decreased movement with pain when undertaking physical activity, which is consistent with the description for 10 impairment points in Table 5.2. Dr Oates conducted an examination and assessed Mr Evans’ impairment at 10 points for his spinal injury under Table 5.2, 5 points for his neck under Table 5.1 and did not allow any impairment rating for Mr Evans’ oesophageal complaint. After considering the matter further and being question extensively on the issue, Dr Oates confirmed his opinion and furthermore opined that Table 5 was the appropriate assessment tool as opposed to Table 20.

1. Mr Evans does not agree with these assessments and said the pain in his back and neck restricts his functioning to such an extent that he believes the doctors are wrong.

2. Dr Oates concluded that Mr Evans had loss of one quarter of the normal range of movement in his neck and therefore attracted five impairment points in respect of the injury to his cervical spine. He found that Mr Evans had loss of one quarter of normal range of movement in his lower back as well as back pain or referred pain. Dr Oates was not prepared to find any greater loss of function, notwithstanding Mr Evans’ objection and extensive questioning on the issue.

3. While I accept Mr Evans was in pain, was restricted in his functioning and could work more than 30 hours a week during the relevant period (and that continues to be the case), the evidence of Dr Oates is that Mr Evans’ loss of function as at 15 September 2010 would only attract an impairment rating of 15 points. Dr Oates’ report is detailed and records a lengthy assessment of Mr Evans functioning. He gave further consideration to this matter in response to specific questions posed by Centrelink and in his evidence before the Tribunal.

4. I am satisfied that Dr Oates has taken into account the level of pain and restriction in movement reported to him by Mr Evans and has appropriately applied the ratings set out in the Impairment Tables. I accept his findings about impairment in preference to Mr Evans’ subjective view about his incapacity and therefore find that Mr Evans did not have an impairment rating of 20 points or more as at 15 September 2010.

   CONCLUSION

5. Having regard to my findings about Mr Evans’ impairment, I am not satisfied that Mr Evans was eligible for the disability support pension under s 94(1) of the Act as at 15 September 2010 and, as such, it was appropriate for his disability support pension to be cancelled at that time.

6. For the reasons set out above, I affirm the decision under review.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member J L Redfern.

..................................[sgd]......................................

Associate

Dated 15 May 2013

Date(s) of hearing	25 February 2013, 12 April 2013
Applicant	In person
Solicitors for the Respondent	Jennifer Maclean, DHS