Secretary, Department of Social Services and Ricky Bunworth

[2014] AATA 348

[2014] AATA 348 

Division	General Administrative Division
File Number(s)	2013/6032
Re	Secretary, Department of Social Services
APPLICANT
And	Ricky Bunworth
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	3 June 2014
Place	Brisbane

The decision under review is set aside. It is decided in substitution that Mr Bunworth does not qualify for the Disability Support Pension.

........................................................................

Senior Member Bernard J McCabe

CATCHWORDS

DISABILITY SUPPORT PENSION – Appeal from decision of Social Security Appeals Tribunal – SSAT decided that applicant for DSP rated twenty points on Impairment Tables – Centrelink Job Assessor rated ten points – Medical evidence does not support rating of twenty points – Reviewable decision set aside – Decided in substitution that respondent does not qualify for DSP.

LEGISLATION

Social Security Act 1991 (Cth) ss 94(1)(a); 94(1)(b); 94(1)(c); 94(2)(aa); 94(5); 94(3B)

Social Security (Administration) Act 1999 (Cth) sch 2, cl 4

SECONDARY MATERIALS

Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension

REASONS FOR DECISION

Senior Member Bernard J McCabe

3 June 2014

1. This case is about Mr Ricky Bunworth’s entitlement to the disability support pension (DSP). Mr Bunworth suffers from a back condition (amongst other things) which he says attracts twenty points under Table Four, the relevant impairment table.

   
   

   The Social Security Appeals Tribunal (SSAT) agreed with him and decided he was entitled to receive the pension. The Secretary of the Department of Social Services has asked this tribunal to review the SSAT’s decision in favour of Mr Bunworth.

   
   

   The Secretary’s representative came to the hearing armed with fresh evidence in the form of a specialist report from an occupational physician. The Secretary says the report confirms Mr Bunworth should only receive ten points under the relevant impairment table, and that he is therefore not entitled to the DSP.

   THE RULES

2. Section 94 of the Social Security Act 1991(Cth) (“the Act”) sets out the criteria governing entitlement to the DSP. The first (in s 94(1)(a)) is a requirement that the applicant for DSP have a physical, intellectual or psychiatric impairment. That requirement is clearly satisfied in this case: Mr Bunworth suffers from lumbar spondylosis (a degenerative disease in his lumbar spine), and he has Hepatitis C. He also has a hearing impairment, although that has not been discussed in any of the material before the Tribunal.

3. The second requirement – set out in s 94(1)(b) – is at issue in this case.

   
   

   The decision-maker must be satisfied Mr Bunworth’s impairment attracts at least twenty points under the relevant impairment table. In this case, the relevant table is Table Four, which deals with spinal conditions. (The Secretary says there is no evidence to show the Hepatitis C condition impairs Mr Bunworth in any way, so there is no need to discuss an award of points with respect to the Hepatitis condition. I accept that is so.) The Secretary agrees the spinal condition has been fully diagnosed, treated and stabilised. That is important because points cannot be awarded without a finding to that effect. The dispute here is over the number of points that should be allocated. I shall return to this issue shortly.

4. The third requirement – found in s 94(1)(c) – is that the individual in question have a continuing inability to work. That expression is defined elsewhere in s 94. It includes a requirement in s 94(2)(aa) that the applicant for DSP has undertaken a program of support within the meaning of s 94(5) unless that person has a severe impairment – which means he has at least twenty points under one impairment table: s 94(3B).

   
   

   Mr Bunworth has not engaged in a program of support for the requisite length of time, but that will not be an issue if his impairment attracts more than twenty points under Table Four.

   THE MEDICAL EVIDENCE

5. The application for DSP was lodged on 5 March 2013. That means I must have regard to Mr Bunworth’s condition at that point and in the thirteen-week period that followed:  

   
   

   sch 2, cl 4 of the Social Security (Administration) Act1999 (Cth).

6. There is no doubt Mr Bunworth suffers from a degenerative condition in his lumbar spine and Hepatitis C, and that he suffered from those conditions at the relevant time. His treating general practitioners have described his lower back condition in reports provided to Centrelink. The report of Dr Peyton in particular (Exhibit One at p 80) records “[p]ain, can’t sit for too long, can’t drive for too long. Can’t lift”. The report notes Mr Bunworth was prescribed Endone, a powerful painkiller, following surgery in 2011; Mr Bunworth told me he still takes that drug regularly.

7. The SSAT was provided with a report from a job capacity assessor which suggested Mr Bunworth’s impairment only attracted ten points under the relevant table. The report offered an optimistic view of Mr Bunworth’s prospects of getting some sort of work if he received appropriate support. The SSAT rejected that opinion on the strength of its own assessment of Mr Bunworth at the SSAT hearing.

8. The Secretary subsequently arranged for Mr Bunworth to be reviewed by Dr Adam, an occupational physician, for the purposes of these proceedings. Dr Adam was provided with the other medical evidence, a copy of the impairment tables and the
   Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension (“the Guidelines”). Dr Adam provided a report and appeared in person at the hearing where he was questioned in detail about his observations and conclusions. Mr Bunworth was present and exhibited signs of persistent discomfort throughout the hearing. He would sit for a short while before standing and occasionally walking around.

9. Dr Adam agreed with the earlier job capacity assessment to the effect that
   Mr Bunworth’s impairment only attracted ten points under Table Four – although I note he offered a much more negative (and, I suspect, realistic) view of Mr Bunworth’s employment prospects.

10. I asked Dr Adam in the course of his evidence to explain why he formed the view
    Mr Bunworth’s condition did not have a severe functional impact that would result in the award of twenty points – especially in light of the fact Dr Adam thought it unlikely
    Mr Bunworth could undertake any work.  The Table explains a person experiences a severe functional impact on activities involving spinal function where:

    (1)   The person is unable to:

    (a) perform any overhead activities; or

    (b) turn their head, or bend their neck, without moving their trunk; or

    (c) bend forward to pick up a light object from a desk or table; or

    (d) remain seated for at least 10 minutes.

11. Dr Adam said Mr Bunworth could not  be said to be “unable to…perform any overhead activities” or “unable to…turn [his] head, or bend [his] neck, without moving [his] trunk” because he suffers from a lower back condition, and those restrictions are mainly associated with neck conditions. He noted Mr Bunworth was able to wash his hair, for example, although he acknowledged there might be some discomfort in doing so.

    
    

    Dr Adam also said he observed Mr Bunworth bend forward to pick up a light object from a desk or table. The real issue was whether Mr Bunworth was able to remain seated for at least ten minutes during the assessment period.

12. Mr Bunworth did not remain seated for at least ten minutes during the course of the hearing. He sat for shorter periods but then stood and walked around or leaned on the back of the chair at the bar table throughout the hearing. (He did the same thing when he was before the SSAT, and it was that observation that appears to have been decisive in the SSAT’s decision to reject the evidence of the job capacity assessor.) Ms Hobbs,

    
    

    Mr Bunworth’s wife, pointed out Mr Bunworth had not taken his painkilling medication on the morning of the hearing because it tended to make him groggy, and he wanted to be alert during the proceedings. Unfortunately, that made it harder for him to sit for longer periods.

13. Dr Adam saw all of this, but he did not resile from his view that Mr Bunworth could sit for at least ten minutes at the time of the consultation in January 2014. He relied in particular on the fact Mr Bunworth had travelled to Brisbane from the Gold Coast on the day of the consultation with only a single break on the way. Dr Adam acknowledged that someone would not meet the criteria of being able to sit for ten minutes if he or she would endure serious pain, and would only remain seated if forced to do so.

14. What of the situation where the person can remain seated for at least ten minutes if he or she takes powerful painkillers? That question turns on the proper interpretation of the Guidelines. The Guidelines emphasise at p 33 that a decision-maker should not rely on self-reporting of symptoms but adds:

    …consideration must be given to whether the person suffers pain on undertaking the activities. For example, under the 20 point descriptor, if a person is able to remain seated for 10 minutes but suffers significant pain on doing so, it should be considered that the person is therefore unable to remain seated for at least ten minutes.

15. Mr Bunworth might now be at the point where he is unable to sit for more than ten minutes without powerful painkillers. I note he has regularly been using Endone for some time, and I have no reason to doubt the suggestion (albeit that it was made from the bar table by Ms Hobbs) that Endone has a stupefying effect if taken in sufficient quantities to relieve the pain. But whatever the situation now, what was the position at the time of assessment?

16. The Guidelines make it clear I must look to the medical evidence rather than

    
    

    self-reporting. The medical report of Dr O’Keefe dated 13 June 2013 – not long after the assessment period – says (at Exhibit One, p 104) Mr Bunworth can sit for up to half an hour. It is unclear whether he was using Endone to the same extent at that point.

    
    

    The evidence of Dr O’Keefe is clearly consistent with the opinion of Dr Adam. I think I am constrained to accept it – which means Mr Bunworth is only entitled to ten impairment points. That means he does not qualify for the DSP.

17. Mr Bunworth will presumably be required to persist on Newstart. (I express no view on whether he would be successful if he were to make a fresh application for DSP.)

    
    

    Ms Hobbs expressed concern that her husband would have trouble complying with activity requirements under the Newstart program if they were imposed insensitively.

    
    

    I assume any assessment of Mr Bunworth’s capacity would proceed on the basis of

    
    

    Dr Adam’s opinion, taking careful note of his view that Mr Bunworth is practically incapable of work notwithstanding the conclusion that he does not receive twenty impairment points. So as to avoid any doubt, I expressly prefer that report which was prepared by a highly-credentialed and experienced expert medical practitioner over the report prepared by the job capacity assessor.

    CONCLUSION

18. The decision under review is set aside. It is decided in substitution that Mr Bunworth does not qualify for DSP.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

........................................................................

Associate

Dated  3 June 2014

Date of hearing	13 May 2014
Advocate for the Applicant	Rick McQuinlan Department of Human Services
Respondent	In person