Simmons and Secretary, Department of Employment and Workplace Relations

[2006] AATA 199

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 199

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/535

GENERAL ADMINISTRATIVE DIVISION		)
Re		BEVERLEY SIMMONS

Applicant

And SECRETARY, DEPARTMENT
OF EMPLOYMENT AND
WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date7 March 2006 

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

.....................Sgn......................

RG Kenny
  Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – physical impairment from injuries to back, neck and left arm  – relevant timeframe for qualification –– impairment rating less than 20 points - no continuing inability to work

Social Security Act 1991 ss 94, Schedule 1B
Social Security (Administration) Act 1999 Schedule 2

REASONS FOR DECISION

7 March 2006 Mr RG Kenny, Member

Background

1.        Beverley Simmons (the applicant) has been in receipt of disability support pension, a type of social security payment made in accordance with the terms of the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act). Following a review of Mrs Simmons’ circumstances, a delegate of Centrelink, the statutory authority within the portfolio of the Department of Employment and Workplace Relations (the respondent), determined that the pension should no longer be paid to her. That decision, made on 3 March 2005, was affirmed by an authorized review officer on the 21 June 2005 and, in turn, by the Social Security Appeals Tribunal on 27 July 2005. Ms Simmons lodged an application for review by the Administrative Appeals Tribunal (the Tribunal) on 16 August 2005.

Hearing

2.        Mrs Simmons attended the hearing and was represented by Patrick Cain, solicitor.  The respondent was represented by Ms Jasmine Forsyth.  In evidence was material which included documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1976 (the T documents).

Issues and Legislation

3. To qualify for a disability support pension, the requirements in subsection 94(1) of the Act must be met. It reads:

“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)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; 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) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A)       is not an Australian resident; and

(B)       is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.”

4.        It is not disputed that Mrs Simmons has a physical impairment related to her spine and left arm.  It is also not disputed that she meets the age and residential requirements in that provision.  The issue is whether Mrs Simmons can be allocated an impairment rating and, if so, whether the threshold of 20 points is satisfied on the date of cancellation of her disability support pension. 

Submissions

5.        Mr Cain submitted that the condition of Mrs Simmons had not improved since the initial grant of disability support pension by the respondent in 1995.  He noted that, at that time, an impairment rating of 24 points had been allocated and he submitted that a rating no lower than that was still appropriate.  He relied upon medical reports prepared by Mrs Simmons’ treating doctor, Dr Jane Barker, who indicated that, in her opinion, 20 impairment points should be allocated for Mrs Simmons’ lower back and 10 points for her upper spine.  Mr Cain also submitted that Mrs Simmons had a continuing inability to work.

6.        For the respondent, Ms Forsythe submitted that the appropriate impairment rating for lumbar spine injury in Mrs Simmons’ case was 10 points and that, for cervical spine pain, the appropriate rating was 5 points.  She relied upon the report prepared by Ms D Shulz, a rehabilitation consultant with Advanced Personnel Management.  Ms Forsythe also relied upon the report of Ms Shulz to indicate that Ms Simmons did not have a continuing inability to work.  Ms Forsythe referred to the original impairment assessment of 24 points and the report, dated 24 May 1995, relating thereto by Dr G Douglas.  She submitted that it was inappropriate to rely upon the allocation of impairment ratings at that time because the report of Dr Douglas had also recommended that Ms Simmons be reviewed in two years

Evidence

7.        Mrs Simmons said that she has constant pain in her lower back with radiation into her legs.  She also experiences some numbness.  She described the level of pain as being “moderate” when she is not involved in any activity but a deterioration to a high level of pain when she is engaged in undertaking activities.  She described pain in her cervical spine which was moderate to high all of the time and a constant ache in her left shoulder with numbness to the left side of her face.  She said she finds it difficult to rotate her neck and that she is troubled by severe headaches and blurred vision when the pain persists.  She said that these conditions limited the extent she is able to engage in activities and takes pain relief medication on a daily basis.  She also needs to have frequent rests.

8.        Mrs Simmons has been involved in a variety of employment situations both privately and in a resort complex.  She has worked in a shop, in cleaning, garden maintenance and pool maintenance but, in recent times, she has been a surfing coach and a judge of surfing competitions.  She became qualified in those surfing-related roles in 1987 and her most recent associated engagement was in June 2005 at Byron Bay.  She has been unable to accept any such positions since then because of her back problems.  Even when she judges in surfing competitions she is limited in the extent to which she is able to complete her judging rosters. 

9.        Mrs Simmons was born on 12 October 1954 and completed High School to Year 10.  She lives in a rented room in a friend’s premises.  She is able to drive a car and does so from time to time and is limited to driving for one hour.  She is able to walk for about 20 minutes before she needs a rest and, on every second or third day, will undertake a walk near her home for about 20 minutes.  She completes an exercise regime each day which is designed to provide assistance for her back. 

10.      Dr Barker completed various reports including one on 23 December 2004 in which she described the symptoms of Mrs Simmons’ lumbar spine injury as constant low back pain and left hip pain and she noted that minor physical activity causes exacerbation of symptoms of sciatica and severely restricts her activity.  Dr Barker described her as being unable, because of pain, to sustain any physical activity for more than half an hour or to sit or stand for periods longer than half an hour.  In relation to her cervical spine, Dr Barker described constant neck pain which becomes more severe several times a week and which is exacerbated by minor activity.  In relation to an ulna nerve injury, she described the loss of sensation and touch in her left hand.

11. Dr Barker provided a further report on 13 October 2005 in which she allocated a percentage of impairment but without indicating the relevant tables upon which she relied. In a follow-up report, Dr Barker indicated that she had used the assessment tables as provided for in the Act and, for the back condition, described a loss of half normal range of movement with pain which in her opinion equated with an impairment rating of 20 points. For the cervical spine, she again nominated the range of movement loss as being half normal because of the limitations imposed by pain and she allocated an impairment rating of 10 points.

12.      Dr Barker noted that Mrs Simmons had not worked full time for more than ten years and said that her physical limitations would prevent her from doing any work for the next two years.  She also considered that the impairment would prevent her from undertaking educational or vocational training during the next two years and said that she is unable to do physical work without pain.  She noted that she develops sharp aches in her hips after 15 minutes of sitting and that sitting all day increases pain over her left side.  Nonetheless, she concluded that, if a program could be found that took those factors into consideration, she may be able to undertake educational or vocational training. 

13.      Ms Shulz prepared her report on 15 February 2005.  She interviewed Mrs Simmons and observed her for the purposes of assessing her under the impairment tables.  She described her physical limitations as comprising a “reduced ability to sit/stand/walk for long periods, heavy lifts, performing strenuous tasks”.  She described her as having limited skills and experience, as having only worked in one field for an extended period and as mainly being unemployed for many years.  She considered that she was suitable for vocational rehabilitation and would be able to commence in less than three months.  As for her work capacity, Ms Schulz listed suitable work without a need for vocational intervention as constituting “elderly companion, light courier driver, telesales, surf judging, console operator, light sales assistant”.  She considered that she would be able to do this for 14 hours per week currently and into the future.  However, she considered that full time work was unlikely.  Ms Shulz’ assessment of Mrs Simmons was that, if she had some form of educational, vocational or on the job training, suitable work would be “clerical duties, medical receptionist, customer services officer, real estate agent”.  She expressed the opinion that Ms Simmons would be able to work up to 14 hours per week currently, up to 29 hours per week within 6 months and more than 30 hours a week thereafter.

14.      Ms Shulz consulted the impairment tables in schedule 1B and recommended 10 points under Table 5.2 for lumbar spine injury, 5 points for cervical spine under Table 5.1, and 0 points for left ulna nerve injury under Table 3.  In the report where she recommended those ratings, she wrote:

“BACK:  Rated perm as fully treated and stabilised.  Reports constant pain with episodic bilateral referred leg pains. Reports some numbness in legs with prolonged sitting.  Does exercises, take mobic a few times a week, and uses panadeine on a less-than- weekly basis.  Observed full forward flexion, and slight loss of extension, lateral flexion and rotation. Reports she can sit for 60 mins iwth (sic) increased pain, and drive to Byron Bay with several stops.  Reports she can walk 20 mins at own pace.  Can cut toenails but avoids washing her feet.  Reports she wakes with pain, and often lies for 20 mins during the day.  Can grocery shop, push a light trolley, weed and water, vacuum a small area, hang washing, swim at the beach and perform light woodwork, restoring furniture. 

NECK: Rated perm as fully treated.  Reports pain in neck most days with activity, and a constant “pressure” onthe (sic) L side of her skulol (sic), which can become a headache.  She reports occasional dizziness.  Observed slight loss of forward and rotation movements.

L ARM: Rated perm as fully treated.  Reports constant pins and needles in 4 and 5^th fingers, and that her arm can ache and fingers can lock with activity.  Observed to form a fist, move finger, and to reach overhead.  Can drive, but can have difficulty changing gears.  Can wash hair, fasten clothing, hand washing, paddle on surf board occasionally, cook, open tins, use cutlery, weed, carry grocery bags.”

15.      Evidence was also given by Heather Stewart from the Centrelink Office at Maroochydore.  She is a Disability Officer and has been employed by Centrelink in that capacity for 8 years.  Previously, she worked for 15 years in the Commonwealth Employment Services as an employment consultant and then as a disability job seeker adviser.  She has not had dealings with Mrs Simmons but said that she had looked at her file and considered that there were rehabilitation and vocational programs which could be made available by CRS Australia in the Maroochydore area and which could be tailored to the particular circumstances of Mrs Simmons.  Ms Stewart noted a printout from the Centrelink Office which indicated that, on 15 September 2005, CRS has not accepted Ms Simmons into their programs and the note included the entry “medical intensive”.  It was submitted by Ms Forsythe that this demonstrated that Ms Simmons had been to CRS but that they had sent her away for further medical intervention.  She was not aware of what form that took or of what had happened since.  She said that it would either  be up to Mrs Simmons to make a decision to return to CRS or for Centrelink to refer her to CRS again.

Consideration

16.      The relevant tables from schedule 1B are Table 5.1 for cervical spine, Table 5.2 for thoraco-lumbar-sacral spine and Table 3 for upper limb function.  There was no medical evidence to indicate that a rating should be applied under Table 3 and I am satisfied that the appropriate rating for Ms Simmons’ left upper limb  condition is “Nil”.  Tables 5.1 and 5.2 read:

“ 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.

TWENTYLoss 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.”

17.      As noted above, Ms Shulz has recommended an impairment rating of 5 points under Table 5.1 but that is not consistent with the description given by Dr Barker that she has lost half normal range of movement and suffers frequent neck pain.  The reason supporting the impairment rating by Ms Shulz is noted above and she referred to an observed slight loss of forward and rotational movements.  I am satisfied that the appropriate rating under Table 5.1 for cervical spine pain is 5.  Under Table 5.2, the description given by Dr Barker was the loss of half normal range of movement with frequent neck pain.  However, Ms Schulz in her supporting reasons noted that she had observed full forward flexion, slight loss of extension, lateral flexion and rotation.  That is equivalent to loss of one quarter of normal range of movement and, along with the physical limitations described by Ms Shulz and by Mrs Simmons in her evidence, the description equates to 10 points under Table 5.2. 

18. I am satisfied that the allocated ratings of 10 and 5 under the Tables 5.2 and 5.1, respectively, appropriately reflect the level of impairment that Mrs Simmons has and, as this is below the threshold of 20 required under sub-section 94(1) of the Act, she does qualify for the disability support pension.

19.      Even if it were the case that she did meet that requirement, I have noted the report of Ms Shulz which would suggest that, with appropriate training, Mrs Simmons would be able to engage in continuing employment for more than 30 hours per week within a two year time frame and, in that regard, I also note the guarded concession made by Dr Barker in relation to the undertaking of educational/vocational training if such a program took into account the various factors of limitation operating on Mrs Simmons. 

20.The Tribunal affirms the decision under review. 

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:         Jeff Mills
  Legal Research Officer

Date/s of Hearing          17 February 2006
Date of Decision            7 March 2006
For the Applicant           Mr Patrick Cain, Solicitor
  Lynch and Associates, Lawyers.

For the Respondent      Ms J Forsyth, Departmental Advocate