Smith and Secretary, Department of Family and Community Services

[2006] AATA 158

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 158

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/260

GENERAL ADMINISTRATIVE DIVISION		)
Re		SHAUN SMITH

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr EK Christie, Member

Date24 February 2006  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  This means Mr Smith’s application is unsuccessful.

.........[Sgd]........
  EK Christie

Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – lower back condition – back [sciatic nerve] pain – assessment of impairment – inability to work – expert evidence: evaluation of competing medical opinions – role of the expert witness – observations on need for rehabilitation and vocational program

Social Security Act 1991 s 94

Drake v Minister for Immigration and Ethnic Affairs (1972) 2 ALD 60
Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316  
Davie v Edinburgh Magistrates (1953) SC 34 at 40

Re Pirie and Secretary, Department of Social Security (1996) AAT 11505

REASONS FOR DECISION

24 February 2006   Dr EK Christie, Member   

1.      This is an application by Shaun Smith for a review of a decision of the Social Security Appeals Tribunal made on 27 September 2002 which affirmed that he was not entitled to disability support pension (“DSP”).

2.      At the hearing, Mr Smith represented himself.  Ms H Wallis-Dunne, a Departmental Advocate, represented the respondent.

3. 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.

Facts

4.      Mr Smith lodged a claim for disability support pension on 25 June 2002.  The claim was rejected on 3 September 2002.  Mr Smith lodged a further claim for DSP on 18 February 2005, for the same lower back condition, and was subsequently granted DSP.

5.      Based on the evidence before it, the Social Security Appeals Tribunal made the following findings of fact (T2, Folios 7,8):

“14.     It is not in dispute that Mr Smith has an L5/S1 disc protrusion with nerve root compression.  It is not in dispute that this causes him back pain and leg numbness.

15.      The Tribunal accepts the evidence of HSA, that Mr Smith’s range of movement is within normal limits.  This is supported by Mr Smith’s evidence that he can do things at his own pace, and with considerable pain.  There is no other evidence which would indicate that Mr Smith’s functional impairment is greater than was assessed by the HSA.

16.      It is not in dispute that Mr Smith also has some leg pain and sensitivity.”

6.      At the commencement of the hearing, Mr Smith gave the following response to the second findings of fact made by the SSAT:

“Mr Smith challenged the value of Dr Arad’s conclusions.  Mr Smith stated that Dr Arad’s examination was the most brief medical examination (about a 15 minute consultation) he has ever had, over time, for his medical condition – given that he had seen many doctors.  He felt that Dr Arad was ‘unprofessional’ compared to other doctors he had seen.  Furthermore, he was unaware how Dr Arad concluded that he could walk 700 metres.  He said that he had never made such a statement and stated that, if he had been asked by Dr Arad how far he could walk, he would have said  about 70 metres.” 

7.      In respect to a Tribunal question, he said that Dr Arad’s consultation did not involve him being evaluated by some form of an exercise or walking test. 

Issues Before The Tribunal

8.      There were two issues for the Tribunal to decide:

(a)whether Mr Smith had an impairment rating of 20 points or more; and if this was the case

(b)whether Mr Smith had a continuing inability to work.

Statutory Requirements and Relevant Case Law

9.      The relevant legislation is the Social Security Act 1991 (“the Act”). 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)  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

94.(2)  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)  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

10.     In Mr Smith’s case, there is only one decision possible – whether Mr Smith was entitled to the DSP at the time his claim was made in 2002.  Accordingly, the question for the determination of the Tribunal is whether the decision under review is the correct one. 

[see Drake v Minister for Immigration and Ethnic Affairs (1972) 2 ALD 60 AT 68].

11.     Administrative decision-makers are generally required to address the evidence before them and to 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].

12. In this regard, the evaluation for entitlement to DSP is based on the factual circumstances at a particular point of time. Eligibility for the DSP is at the time of claim or within a period of three months thereafter, as provided by s100(3) of the Act (now Division 3 Part 3, Schedule 2 of the Social Security (Administration) Act 1999).  This principle has been referred to in a number of cases.  For example, in Re Pirie and Secretary, Department of Social Security (1996) AAT 11505 the Tribunal noted:

“The structure of the Act is such that a person who wishes to receive a DSP must lodge a claim (section 106). The Secretary must determine each claim for a DSP (section 113). In determining whether or not to grant a claim, he must be satisfied that the person is qualified for the pension and that the pension is payable (section 14).  The Secretary must decide the question of a person’s qualification on the day on which the claim is lodged.  If the person is not qualified on that day, the effect of sub-section 100(3) is that his or her qualification may be considered during the three month period immediately following the lodgement of the claim.” [Emphasis added]

13.     In Mr Smith’s case the only period the Tribunal can consider evidence in relation to his entitlement for disability support pension, as prescribed by statute, is the 3 month period commencing 25 June 2002, the date his claim for DSP was lodged.

Examination of the Evidence:  Whether Mr Smith had an Impairment Rating of 20 Points or More

14.     This application for review involved divergent medical opinion about the extent of the impairment rating.  The task of the expert witness, in this situation, has long been recognised by our Courts.  In Davie v Edinburgh Magistrates (1953) SC 34 at 40, the following principle was recognised:

“To furnish the [Tribunal] with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the [Tribunal] to form their own independent judgement, by the application of these criteria to the facts proved in evidence.”

§  Oral Evidence of Dr B Palmer (formerly Treating GP of Mr Smith in Newcastle)

15.     Dr Palmer’s initial report (3 December 2003) stated that Mr Smith had an impairment rating of 30% for left disc disruption and left sciatica.  However, no reference was made to the actual Table(s) relied upon – and, most significantly, whether this assessment was based on restricted lumbar-sacral movement (Table 5.2) and pain (Table 20).

16.     In a later report (13 January 2006), Dr Palmer states that based on Table 5.2, Mr Smith would have an impairment rating of 30 points.  However, Dr Palmer provided no objective criteria to support his rating.

17.     Dr Palmer stated that he no longer held Mr Smith’s file as he had transferred it to his new treating GP.  Consequently, his answers to questions at the hearing were based on memory.  As a result he could not give an opinion whether Mr Smith’s back condition would have remained the same, or deteriorated, between 2002 and 2005. 

18.     In response to a Tribunal question, Dr Palmer said that at the relevant time in 2002, Mr Smith’s straight leg raising was limited to 45°.  In addition, Mr Smith struggled because of pain.

§  Oral Evidence of Dr K Farrell, HSA

19.     Dr Farrell stated that he could not fault Dr Arad’s report in which Dr Arad had assessed Mr Smith as having “0” points under Table 5.2 (T13, Folio 45, 24 July 2002).  He queried how Dr Palmer could have assessed the impairment at 30% as he had not been provided with the statutory Tables for assessment in 2003.

20.     Dr Farrell stated that the following materials contained In Dr Arad’s report were significant as they clearly indicated that, under Table 5.2, the assessment of “0” points for Mr Smith’s lower back condition was correct.  He referred to the following record of Dr Arad’s clinical examination that supported his conclusion (T13, Folio 45):

Condition – Thoraco-lumbar Spine

Assessment of Movement

   Flexion           Extension         Right lateral       Left lateral         Right         Left

  flexion             flexion             rotation        rotation

Normal range         0-90%            0-25%              0-25%              0-25%              0-30%           0-30%

of movement      

from position of

function      

Within normal limits     √   √   √                   √                   √

21.     In addition, Dr Arad had noted that the episodes of back pain for Mr Smith, with respect of severity, frequency and duration, were variable.  Dr Arad also noted that Mr Smith “can sit 30 minutes, variable standing”.  Furthermore, that Mr Smith’s lower back condition affected his ability to work in that he “can’t lift”. 

22.     Dr Farrell stated that he had assessed Mr Smith’s lower back condition as 20 points under Table 5.2 (Exhibit 2, F11, 14 April 2005).  However, based on his review and analysis of the available materials contained in the “Folio of Medical Documents”, he had concluded that the deterioration in Mr Smith’s lower back condition between July 2002 and April 2006, could have been due to the development of degenerative changes in Mr Smith’s spine, in addition to his disc disease.  However, he could not put a definite date when this may have occurred.

Examination of the Evidence:  Whether Mr Smith had a Continuing Inability to Work

23.     Mr Smith said that he had undertaken full-time work for a period of about four months after he had lodged an appeal to the SSAT: (see T19, 10 September 2002) following the rejection of his claim for DSP made on 25 June 2002.  He had worked five to six days per week from 7.00am to 4.00pm as a car park attendant.  However, he had ceased this work voluntarily as he could not cope with the “back problems” he suffered getting in and out of cars when they had to be moved.

24.     Mr Smith said that he had also worked during August to November in 2004 packing live crabs for the export market.  The shifts varied from four to eight hours and he worked 4 days per week on average.  He had ceased this work because of lower back problems associated with standing on concrete, undertaking work requiring repetitive fast movements - whilst packing 2,200 crabs per hour; there were no facilities to sit. 

Consideration of the Issues

25.     Based on a review of all the materials before the Tribunal, including the “Folio of Medical Documents” prepared by the parties in response to the Tribunal’s Direction – as well as the oral evidence given at the Tribunal’s hearing, the Tribunal concludes that neither statutory requirement required for Mr Smith to be entitled to a DSP, with respect to the 3 month period commencing from the date of lodging his claim (25 June 2002), can be satisfied for the following reasons:

(a)Extent of Impairment During the Relevant Period (25 June – 25 September 2002)

(i)Under Table 20 (Pain) there is no evidence other than that contained in Dr Arad’s report that an assessment of 10 points exists (T13, Folio 47).  The Tribunal accepts Dr Farrell’s opinion that Dr Arad’s clinical examination correctly reflects an assessment of 10 points.  There is no assessment, under this Table, by Dr Palmer.

(ii)Under Table 4 (Function of the Lower Limbs), there is no evidence other than that contained in Dr Arad’s report which gave an assessment of “0” points.  There has been no assessment, under this Table, by Dr Palmer.

(iii)Divergent view point exists as to the assessment that applies under Table 5.2 (Spinal Function).  The Tribunal prefers the opinion of Dr Farrell to Dr Palmer as Dr Farrell has provided objective criteria to enable the Tribunal to form its own independent judgment.  Dr Palmer’s original assessment of 30% gives no indication of the Table(s) relied upon – or whether the assessment is for loss of range of spinal movement and/or pain.  Dr Palmer’s later report gives an assessment of 30 points under Table 5.2.  Nothwithstanding, Table 5.2 does not have criterion for a rating of 30 points, Dr Palmer did not provide any objective criteria to support the conclusions he has made as to the extent of impairment under this Table.

(b)Continuing Inability to Work (25 June – 25 September 2002)

(i)Mr Smith’s oral evidence was that he worked more than 30 hours per week during the relevant period as a car park attendant – a job requiring him to move cars.  His lower back condition caused him to voluntarily cease this work after about four months;

(ii)Dr Arad’s report (T13, Folio 52) contains conclusions which are consistent with the difficulty that could be expected to be encountered by Mr Smith in carrying out this type of work.  Dr Arad concluded that:

§  Mr Smith has genuine musculo-skeletal pain;

§  Mr Smith is permanently unfit for any significant manual work including previous duties as a labourer;

§  Mr Smith could be capable of 30 hours per week of light duties where he would not be required to bend, lift more than 5kg, climb or be in the same position for more than 20 minutes; and

(iii)These conclusions of Dr Arad were further substantiated in the problems Mr Smith encountered in the type of manual work he had undertaken in 2004 i.e.packing crabs.

26.     For all of the above reasons, the Tribunal finds that Mr Smith was not entitled to DSP at the time his claim was lodged on 25 June 2002.

27.     The Tribunal makes the observation that it supports Dr Arad’s conclusions that some form of educational training, vocational training or on the job training would benefit Mr Smith in providing him with “new skills” (T13, Folio 49).  The Tribunal was impressed with Mr Smith in terms of the honest and intelligent and forthright manner he conducted his case.  The Tribunal understands why Mr Smith as a young man with financial responsibilities for his family undertook types of inappropriate manual work in 2002 and 2004.  These reasons also extended to his improving his self esteem.  The Tribunal also accepts the employer negativity Mr Smith has encountered in finding manual work when a prospective employer became aware of his lower back problems.  The Tribunal makes the further observation that, notwithstanding the past responses by Mr Smith to the CRS program, there is now merit in pursuing Dr Arad’s recommendations in facilitating Mr Smith to obtain new skills e.g. a suitable TAFE Course.  It seems to the Tribunal that Mr Smith has the necessary personal qualities to now take up suitable educational, vocational or on the job training.

28.     The Tribunal affirms the decision under review.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

Signed:         Jeff Mills

Legal Research Officer

Date/s of Hearing  6 February 2006
Date of Decision  24 February 2006
The Applicant was unrepresented
For the Respondent                  Ms H Wallis-Dunn, Departmental Advocate