SRVVVV and Secretary, Department of Employment and Workplace Relations

[2006] AATA 1047

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1047

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/698

GENERAL ADMINISTRATIVE DIVISION		)
Re		SRVVVV

Applicant

And Secretary, Department of Employment and Workplace Relations

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date5 December 2006

PlaceWollongong

Decision The Administrative Appeals Tribunal affirms the decision under review.

……………………..

Ms N Isenberg
  Senior Member

CATCHWORDS

SOCIAL SECURITY - entitlement to disability support pension – physical impairment –– whether the Applicant had an impairment rating of 20 points or more under the impairment tables – decision under review affirmed     

LEGISLATION

Social Security Act 1991 – sections 94, Schedule 1B

Social Security (Administration) Act 1999 - Schedule 2

CASE LAW

Freeman v Secretary, Department of Social Security (1988) 87 ALR 506

REASONS FOR DECISION

5 December 2006 Ms N Isenberg, Senior Member

1. The Applicant has requested of the Tribunal that his name not be disclosed in the publication of the Tribunal’s decision and reasons for decision. I therefore order that the Applicant be known as SRVVVV. ‘SRVVVV’ and ‘the Applicant’ will be used interchangeably throughout the following reasons for decision.

DECISION UNDER REVIEW

2. SRVVVV’s claim for disability support pension (DSP), made on 24 August 2005, was rejected by Centrelink. While Centrelink, on behalf of the Secretary of the Department of Family and Community Services, agreed that SRVVVV suffers from low pack pain, it did not agree that his impairment attracts the required 20 point impairment rating under the Impairment Tables contained in Schedule 1B of the Social Security Act 1991 (‘the Act’). Nor did Centrelink agree that SRVVVV meets the other requirement of eligibility for DSP, that is, a continuing inability to work. These requirements are set out in section 94 of the Act and so far as relevant are as follows:

Qualification for disability support pension

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) …

(i) the person has a continuing inability to work;

…

BACKGROUND

3.        The Applicant lodged a claim for DSP on 24 August 2005 on the basis of his low back pain.  He relied on a Treating Doctor’s Report (TDR) by Dr Kwok dated 4 August 2005.

4.        A further TDR was obtained on 12 September 2005 wherein Dr Kwok stated the low back pain was caused by the Applicant having lifted a heavy weight.  Dr Kwok noted that he had not provided past treatment for SRVVVV, nor intended future treatment, although previously the Applicant had been referred to a Dr Mills by Dr Kwok.

5.        On 27 September 2005, SRVVVV was assessed by Dr Wassenaar from Health Services Australia (HSA) who stated the Applicant complained of low back pain.  Dr Wassenaar assigned nil points under the Impairment Tables, reporting SRVVVV had nearly the full range of movement in his lower back.

6.        As the Applicant did not have 20 points or more under the Impairment Tables, his claim for DSP was rejected on 29 September 2005.  The decision was affirmed on review.

7.        The Applicant provided further medical evidence to Centrelink on 17 February 2006 in the form of a letter from Dr Bentivoglio, orthopaedic surgeon.  A File Review was conducted by Dr Gow from HSA who saw no reason to change his assessment previously carried out on 24 May 2005, or that of Dr Wassenaar’s.

8. On 10 May 2006 the Social Securities Appeals Tribunal (SSAT) decided, based mainly on the report of Dr Bentivoglio, that SRVVVV had a loss of three-quarters of the range of movement from his lower back and assigned 20 impairment points under Impairment Table 5.2 of the Act. However, the SSAT also decided the Applicant did not have a continuing inability to work and therefore rejected his claim for DSP.

ISSUE BEFORE THE TRIBUNAL

9.The issues to be determined are:

a) Does SRVVVV have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables in Schedule 1B of the Act; and, if so,

b) Does he have a continuing inability to work due to the impairment because;

·     the impairment of itself prevents him from doing any work for at least 30 hours per week at award wages within the next two years; and either

·     the impairment of itself is sufficient to prevent him from undertaking educational or vocational training or on the job training during the next two years; or

·     such training is unlikely (because of the impairment) to enable him to do any work for at least 30 hours per week at award wages within the next two years.

CONSIDERATION PERIOD FOR ENTITLEMENT TO DSP

10. Schedule 2, clause 4 of the Social Security (Administration) Act 1999 (‘the SSA Act’) provides that the relevant time to consider a person’s eligibility to entitlement is during the 13 weeks after the claim. Therefore I had to consider if SRVVVV was entitled to the DSP between the dates of 24 August 2005 and 23 November 2005.

EVIDENCE

11.      In addition to documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 (‘the T-documents’), further documents were tendered.

12.      SRVVVV gave evidence and was cross-examined on behalf of Centrelink.  I also asked him questions.

13.      I asked SRVVVV to specifically comment on his conditions as at the date of his application for a DSP and the 13 weeks thereafter, and not his current symptoms.  This approach is consistent with that in Freeman v Secretary,Department of Social Security (1988) 87 ALR 506.

CONSIDERATION OF THE EVIDENCE AND FINDINGS

14.     In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.  SRVVVV was adamant that I should not contact his doctors.  I assured him that I would be making my decision based on his evidence and the available medical evidence and that no additional enquiries would be made of his doctors.

15.     The issues to be considered by me are therefore whether SRVVVV has an impairment rating of 20 points of more and, if so, whether he has a continuing inability to work. 

did srvvvv, by 23 november 2005, have a physical, intellectual or psychiatric impairment of 20 points or more?

16. I must come to a view as to which descriptor in the Tables of Schedule 1B of the Act best describes SRVVVV’s condition. The relevant Table provides:

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

NILNormal 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.

17.      SRVVVV gave evidence of suffering chronic back pain since he hurt his back in 1997.  His pain was of gradual onset but its origins relate to the heavy lifting associated with his work as an apprentice landscape gardener.  He decided to ‘take a few years off to relax’ in the hope his back would heal.  It was not until about 2003 that he sought medical assistance in relation to his back. 

18.      SRVVVV said his back pain varies but it aches such that he has to lie down.  He demonstrated to me where he gets pain: ‘high on the left side’, ‘across the lower base of the back’ and ‘half way up the right [side of his back]’.  He has worn a back brace for a couple of years because he had heard it was a good idea.  To alleviate his pain he lies down either on his front or his back.  He might lie on the lounge, on his bed, or sometimes on the floor, with or without a cushion under his neck. He spends his day watching TV and reading.  Occasionally he might go for a short walk for fresh air for about 5 minutes.  He might ‘hang out’ with friends at their places.  He might also play cards. 

19.      He lives with his mother and does no household chores whatever.  Even ‘light duties’, such as filing papers and washing up, cause ‘chronic back pain’.  He could assemble a sandwich if necessary.  Although he has a driver’s licence, which he retains in the event of emergency, he does not drive.

20.      He estimated he could sit for 10 minutes, stand for 15 minutes and walk for 15 minutes. 

21.      Since the decision of the SSAT, in which he perceived criticism of his failure to address his condition, he has been to a physiotherapist and has done some light exercises at the pool and at home.  It was unclear the extent to which he had undertaken this exercise.  He had found no improvement in his condition with the exercises.  He understood his medical advice to be that conservative treatment would not assist.  He had no expectation that his back would improve and he said he only did the exercises and physio treatment to show he was trying.

22.      SRVVVV thought he would have had a ‘very prosperous future’ as a landscape gardener had it not been for his back injury.

Medical Evidence

23.      In a TDR dated 4 August 2005, Dr Kwok, SRVVVV’s GP, said that SRVVVV had suffered low back pain since 1997 when he lifted a masonry block weighing about 40kgs.  He was said to have difficulty standing, sitting and carrying loads.  The Applicant had reported that he had to lie down most of the time and that moving caused severe pain and that he was unable to work.  In a further TDR dated 12 September 2005, Dr Kwok wrote that the Applicant had constant low back pain which can be severe.

24.      In January 2005, before his claim was lodged, SRVVVV was referred by his GP to Dr Mills, consultant physician in occupational medicine.  Dr Mills noted a pars defect from the X-ray report but considered it ‘unlikely to be of clinical significance’.  Weight loss and an exercise program were prescribed. 

25.      On 24 May 2005 the Applicant was examined by Dr Gow from HSA for a newstart incapacity assessment.  Dr Gow was of the view the symptoms described by SRVVVV were inconsistent with the movements he observed in that SRVVVV was able to ‘transfer to and from the couch with minimal discomfort’.  His examination of SRVVVV showed ‘superficial lower back tenderness (even to light touch) and virtually no movement in the lower back’.  When Dr Gow conducted a File Review on 9 March 2006 he considered there was no objective evidence of any significant back problem. He found that the Applicant’s physical presentation of his symptoms was inconsistent with the normal signs of a back pathology and inconsistent with the observed movements of the Applicant’s when he was not being examined formally.  On examining an X-ray report and a CT study he found no abnormal pathology in the back:

The only evidence ever provided of any back pathology was a single X-ray report in March 2003 that “there is a suggestion of uni-lateral pars defect on the left.’ CT study was recommended and that was performed one week later. This was reported as ‘no distinct pars defect is identified”’

26.     Centrelink also arranged for the Applicant to be assessed by Dr Wassenaar of HSA who provided a report dated 27 September 2005.  Dr Wassenaar was unclear as to how the condition affected the Applicant’s ability to function because he found him to have exaggerated the disability, however it was suggested that heavy manual work was probably not recommended.  SRVVVV’s range of movement was near normal.  In a detailed narrative attached to the report Dr Wassenaar wrote:  

The client entered the room and immediately announced that he had to lie down. I asked him to get up and sign the authority for release of medical information. He [got] off the bed without difficulty and was able to bend over the desk to sign the SA016. He then resumed his position on the examination couch from where he proceeded to give me dictation repeatedly telling me that “I want you to put this down” as he reeled off a list of his symptoms. The dictation was interspersed with periodic facial grimacing so as to illustrate the pain he was in. He said that he wanted to make it clear he wanted “the disability allowance.” He is obese and physically deconditioned. He takes no medication as he does not want to.

He says he is in constant pain which worsens with “any movement”. He says “I can’t walk at all” but is able to walk to the toilet at home. He declined to bend for ROM testing but was able to reach to the floor to get his plastic bag. He says he lies in bed all day and watches TV and reads. He says he rarely leaves the house, only for appointments.

I observed him walking down the street and then sitting on a bus stop bench immediately post interview, with no difficulty at all.

He has very exaggerated pain behaviour which makes assessment of his true disability very difficult.

27.     During the HSA examinations the Applicant was considered to have displayed a reluctance to cooperate and declined to allow the HSA examiners to obtain further information from his treating doctors in order to make a more informed assessment of his condition.

28.      After his claim for DSP was refused, SRVVVV obtained a report from Dr Bentivoglio, orthopaedic surgeon.  SRVVVV told me he had seen Dr Bentivoglio a couple of times but it is unclear if he is in fact his treating orthopaedic surgeon.  That doctor observed him to have only one-quarter range of movement in his lower back.  This would attract a rating of 20 impairment points.  The doctor noted the ‘suggestion of a pars defect’ in the 2003 X-ray and ordered a new X-ray and an MRI scan be carried out. 

29. In August 2006 Dr Bentivoglio was asked by Centrelink, pursuant to its powers under section 196 of the SSA Act, to provide information in relation to SRVVVV’s back. SRVVVV took exception to this course of action. He said Dr Bentivoglio was a very important person and he, the doctor, was ‘not amused’ by being bothered by Centrelink asking him questions. Rather than disturb him, SRVVVV decided against approaching the doctor for further information himself. SRVVVV also considered there to be privacy issues associated with providing Dr Bentivoglio with the 2003 X-ray and CT scans, the report of Dr Gow of 24 May 2005, the report of Dr Wassenaar dated 27 September 2005 and Dr Gibson's report of 14 July 2006.  With the benefit of this material and as a result of the normal MRI results, Dr Bentivoglio found SRVVVV’s back to be normal and rated him at nil under the Impairment Tables.

30.     At the hearing SRVVVV tendered a report from Dr Guirgis, consultant orthopaedic surgeon, dated 13 February 2006.  It was stated by Dr Guirgis that he was unable to conduct a full examination of the Applicant because of extreme sensitivity of SRVVVV’s skin to the slightest touch and because of his ‘muscle guarding’.  He was unable to rule out an organic cause for SRVVVV’s chronic back pain.  He considered there to be an ‘underlying lower back disorder in which pain was predominately influenced by psychologic[al] factors’.  He also considered there to be ‘abnormal pain behaviour’. 

31.     SRVVVV also relied on the report of Dr Ng, consultant physician in occupational and musculoskeletal medicine, dated 12 July 2006.  Dr Ng noted that SRVVVV reported that he could sit for 15 minutes, stand for 20 minutes and walk for 20 minutes.  The doctor recorded that ‘the range of active movement of his trunk was observed to be quite restricted to approximately one quarter of normal range, and spontaneous active movement was observed to be more than one quarter of normal range’. At the hearing, SRVVVV said this observation related to other body movements, for example his legs, and not his back.  Dr Ng ordered a CT scan which showed no bony abnormality and no evidence of pars defect.  He recommended a follow up consultation at Port Kembla hospital for management of his chronic pain syndrome. 

32.     SRVVVV asked me to reject the report by Dr Gibson, occupational physician, dated 14 July 2006.  Dr Gibson made some observations in relation to inconsistencies in Dr Bentivoglio’s initial findings:

Dr Bentivogglio [sic] had noted there was no muscle spasm, this would suggest to me that less than full effort was being made. Further he had documented significant discrepancy between supine and seated straight leg raise and global reduction in muscle power in both lower limbs, these being non organic findings.

33.      Drs Gibson, Gow and Wassenaar were specifically of the view there was an inconsistency between the displayed symptoms and the clinical evidence.  Dr Bentivoglio, after viewing an MRI, also considered there to be no abnormality in SRVVVV’s back.  Even Dr Ng could find no clinical evidence of pars defect and noted, albeit somewhat obliquely, exaggeration of the restricted range of movement.  I do not accept SRVVVV’s contention that Dr Ng was writing about SRVVVV’s other movements.  In addition, Dr Guirgis noted ‘psychologic[al] factors’ influencing SRVVVV’s pain and he considered there to be ‘abnormal pain behaviour’. 

34.      In light of SRVVVV’s apparent exaggeration of his symptoms, his unwillingness to cooperate during his assessments and his reluctance to allow access to all the examining doctors to all his medical information, I am of the view that the SSAT erred in preferring the evidence of Dr Bentivoglio over the other available medical evidence.  Dr Bentivoglio now considers there to be no abnormality in SRVVVV’s back.  Furthermore, the fresh medical evidence produced by SRVVVV, far from supporting his case, in fact confirms my view. 

35. On reviewing all the evidence, I have come to the conclusion that it is appropriate to allocate nil points in respect of SRVVVV’s back condition under Table 5.2 of Schedule 1B of the Act.

36. He therefore does not have the minimum 20 points required for eligibility to receive DSP under section 94 of the Act.

37.      Failure to meet just one of the requirements results in a failure to qualify for that pension.  It is therefore not necessary for me to consider whether SRVVVV has a continuing inability to work.

38. I note in passing that Dr Ng considered SRVVVV may have chronic pain syndrome and recommended a means of management of that condition. SRVVVV has not pursued that option. If he suffers that condition a rating under the Schedule 1B Tables may be able to be assigned in future, providing it is ‘a fully documented, diagnosed condition which has been investigated, treated and stabilised.’

DECISION

39.The decision under review is affirmed. 

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

Signed:         ...................................
  Associate

Date of Hearing  14 November 2006
Date of Decision  5 December 2006
Appearance for Applicant               Self-represented
Advocate for the Respondent        Mr Ken Bullock of Centrelink, Legal Services