SWAN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 316

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 316

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0203

GENERAL ADMINISTRATIVE DIVISION		)
Re		BRUCE SWAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date30 April 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...................[Sgd]....................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Benefits and entitlements – Disability support pension – Physical impairment from spine and upper limb conditions – Pending treatment from pain specialist for spine condition – Spine condition not full diagnosed, treated and stabilised – No allocation of impairment rating under Table 5.2 of Schedule 1B – Nil impairment rating under Table 3 of Schedule 1B – Capacity to work for at least 15 hours per week with intervention – Relevant time-frame – Applicant not qualified for disability support pension – Decision affirmed.

Social Security Act 1991 (Cth) s 94, Sch 1B

Social Security (Administration) Act 1999 (Cth) Sch 2

REASONS FOR DECISION

30 April 2010 Mr R G Kenny, Senior Member    

BACKGROUND

1.      On 16 April 2009, Bruce Swan lodged a claim with Centrelink for disability support pension which is payable under the Social Security Act 1991 (Cth) (the Act). His claim was rejected by Centrelink on 27 May 2009. On 19 October 2009, an authorised review officer affirmed the decision as did the Social Security Appeals Tribunal (SSAT) on 3 December 2009.

LEGISLATION, ISSUES AND SUBMISSIONS

2.      The qualifications to receive a disability support pension are set out in s 94 of the Act.  It is common ground that Mr Swan meets the age and residency requirements of that provision.  The remaining requirements thereof are:

·whether Mr Swan has a physical, intellectual or psychiatric impairment; and, if so

·whether he has an impairment rating of 20 points or more which is calculated under the Impairment Tables in Schedule 1B of the Act as required by s 94(1)(b) thereof; and, if so

·whether he has a continuing inability to work as required by s 94(1)(c)(i) of the Act.

3.      To qualify for a disability support pension, all of the requirements in s 94 of the Act must be met.  Further, they must be met at the time of the initial claim or in the period of 13 weeks from the day of the claim.[1]  This is from 16 April 2009 until 15 July 2009 (the relevant period).  It is not disputed that, during the relevant period, Mr Swan had a physical impairment from chronic lumbosacral degeneration with secondary disc protrusion and arthritis of the right elbow and hand.  In the original decision, it was determined that he had an impairment rating of less than 20 points as calculated under the Impairment Tables.  The authorised review officer accepted that the threshold of 20 points had been met by Mr Swan in relation to his back condition under Table 5.2 with a nil rating for his upper limb condition under Table 3.  Nonetheless, the claim for disability support pension was rejected by the authorised review officer on the basis that Mr Swan did not have a continuing inability to work.  The decision of the SSAT was that Mr Swan did not have the requisite 20 points of impairment under Table 5.2 because his back condition had not been fully investigated, treated and stabilised and, as such, could not be allocated an impairment rating under the Tables.

[1] See Sch 2, cl 3 and cl 4 Social Security (Administration) Act 1999 (Cth).

4.      The issues for the Tribunal are whether Mr Swan has an impairment rating of at least 20 points under the Tables and, if so, whether he has a continuing inability to work as required by s 94(1)(c)(i) of the Act during the relevant period.  For continuing inability to work, the relevant parts of s 94 of the Act read:

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 independently of a program of support within the next 2 years; and

(b)       either:

(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii) if the impairment does not prevent the person from undertaking a training activity—such training is unlikely (because of the impairment) to enable the person to do any work independently of a program of support 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 a training activity; or

(b) the availability to the person of work in the person's locally accessible labour market.

94(4) A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:

(a)       is unlikely to need a program of support that:

(i)is designed to assist the person to prepare for, find or maintain work; and

(ii)is funded (wholly or partly) by the Commonwealth or is of a type that the Secretary considers is similar to a program of support that is funded (wholly or partly) by the Commonwealth; or

(b)       is likely to need such a program of support provided occasionally; or

(c)       is likely to need such a program of support that is not ongoing.

94(4A)The Secretary must comply with the guidelines (if any) determined and in force under subsection (4B) in deciding the following:

(a)       whether paragraph (1)(b) applies to a person;

(b)whether the Secretary is satisfied as mentioned in subsection (2) or (4).

94(4B) ...

94(5)    In this section:

training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

a)        education;

b)        pre-vocational training;

c)        vocational training;

d)        vocational rehabilitation;

e)        work-related training (including on-the-job training).

work means work:

a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

b)that exists in Australia, even if not within the person's locally accessible labour market.

5.      For the respondent, Joe Guthrie submitted that Mr Swan has a loss of half range of movement in the thoraco-lumbar spine, manifesting itself in continuous back pain which was neither stabilised nor treated during the relevant period.  On this basis, Mr Guthrie submitted that no impairment rating can be allocated to this condition under Table 5.2.  In the alternative, he submitted that any rating under Table 5.2 should be at 20 points.  He submitted that Mr Swan’s upper limb condition, while diagnosed, stabilised and treated, attracts a nil impairment rating under Table 3.  In the event that consideration needed to be given to Mr Swan’s work capacity, Mr Guthrie submitted that there was a capacity to work for 15 to 22 hours per week within two years with intervention.  In summary, Mr Guthrie submitted that neither s 94(1)(b) nor s 94(1)(c)(i) was satisfied by Mr Swan.

6.      Mr Swan contended that he is confused by the decisions made about his incapacity.  In particular, this was because of the varying findings that have been made about his back condition.  He submitted that, on bad days, he would have a loss of at least three-quarters of range of movement and that a rating of 20 points was justified.  He wrote that he has not worked for more than 10 years and believes he could not give regular commitment to any employer because of irregular pain levels.

EVIDENCE 

7.      Mr Swan has an employment background as a fishing trawler master, a green-keeper and a cleaner but has not worked since 2000.  He has not received Centrelink benefits in the past, although he and his wife now care for their four year old grandson and receive income support for this.  As his wife is working full time, Mr Swan has the major responsibility for their grandson during the day, although the boy attends pre-school and some assistance is provided by Mr Swan’s parents who live nearby.

8.      Mr Swan experiences pain in the lower back which radiates into his groin and legs.  He takes Tramel tablets when the pain is severe, but minimises the use of medication and seeks relief by lying down for periods during each day.  He can stand for 15 to 20 minutes and this is achieved by shifting his weight from leg to leg.  After that period, his legs start to become numb.  Stairs present him with difficulty and he avoids heavy lifting.  He is able to drive his car and, to attend the hearing, drove for approximately one hour.  He described pain during that time but also said that he could probably drive for a total of one and a half hours before he would need to rest.  He plays bowls once or twice each week but uses an extension device to avoid bending. 

9.      Mr Swan is right hand dominant.  He is able to carry out most hand-oriented activities and is able to complete tasks such as tying shoelaces and buttoning a shirt.  He gets cramping in the hand when holding things for extended periods.  He also gets pain in the right elbow if, for example, he drives for a long time.

10.     Mr Swan was referred by his treating doctor, Dr David Richards, to a pain clinic in mid-2009.  Mr Swan was contacted by the clinic early in 2010 and he completed documentation relating to his conditions at that time.  However, he awaits further contact from the clinic for consultation arrangements to be made. 

11.     Mr Swan believes that he would be unable to work because of his back condition.  He believes that his limitations in standing for long periods would put process working, factory working or working in a retail environment out of the question.  He also said that his hand and arm conditions are sensitive to the cold and that this would hamper his capacity in processing work.  He agreed that he had a Class 5 master’s ticket from his days on a fishing trawler but said that he would have major problems working on any vessel because of the need to negotiate ladders. 

12.     Medical evidence in this matter was provided by Dr Richards.  In his report, dated 15 April 2009, Dr Richards made no reference to Mr Swan’s upper limb condition.  He diagnosed chronic lumbosacral degeneration with secondary disc protrusion giving “ongoing L/S pain from groin to knees/stiffness/reduced mobility”.  He wrote that Mr Swan is treated with medication and has his “own physio”.  Dr Richards considered that the condition would impact on Mr Swan for more than 24 months and that his ability to function during that period was “uncertain”.  Dr Richards completed a questionnaire supplied by job capacity assessor Tegan Ebeling on 23 April 2009.  There, he identified a loss of half of normal range of movement in the thoraco-lumbar spine and considered that Mr Swan’s back condition was fully diagnosed, treated and stabilised.

13.     A further report was completed by Dr Richards on 20 July 2009.  It was not in evidence but was referred to by job capacity assessor Carissa Fitzpatrick, registered occupational therapist.  Mr Swan agreed that it was at this time that Dr Richards referred him to the clinic for pain management.

14.     Mr Swan has been assessed by two job capacity assessors from Advanced Personnel Management (APM).  Ms Ebeling, who listed her qualifications as BHumSer (Rehabilitation Counselling), saw him on 23 April 2009; Ms Fitzpatrick saw him on 30 July 2009.  Both assessors provided a detailed summary of Mr Swan’s back condition.  Ms Fitzpatrick also included a detailed summary of Mr Swan’s upper limb condition on the basis of her reading of Dr Richards’ report of 20 July 2009.  In respect of the upper limb, she wrote:

... Dr Richards confirms condition as arthritis of right elbow and hand. Client advised past, current and future treatment includes local steroid, panadol osteo medication and avoidance of activities that [aggravate] condition.  No further treatment indicated.  Medical evidence states condition is likely to persist for > 24 months and deteriorate.  Therefore condition is fully diagnosed, treated and stabilised.

15.     Ms Ebeling and Ms Fitzpatrick described Mr Swan’s back condition as fully diagnosed, treated and stabilised.  For his back condition, Ms Ebeling allocated 10 impairments points under Table 5.2.  Ms Fitzpatrick allocated 20 points under Table 5.2 and, for upper limb function, nil points under Table 3.  Both assessors nominated a current base-line work capacity of 8 to 14 hours per week and a future capacity to work for 15 to 22 hours per week with intervention in light, less-skilled activities such as console operator, factory/process work or retail shop assistant.

16.     Evidence was also given by Richard Robillard, the Assessment Manager with APM.  He is a qualified physiotherapist and has many years of experience in work assessment procedures.  He read both of the assessment reports, referred to above.  He concluded that, if a rating were applied under Table 5.2, it would be at the 10 point level.  He agreed with the assessors’ rating of nil under Table 3 for upper limb impairment and their opinion that Mr Swan was capable, with intervention, of undertaking work for 15 to 22 hours per week.  He considered appropriate intervention would comprise vocational assessment and counselling and substance abuse counselling.  He agreed with the assessors’ references to suitable work and, based on aspects of Mr Swan’s work history and qualifications, added charter boat management and nursery cashier work. He also considered that, if the only impairment considered was that associated with Mr Swan’s upper limb, he would be capable of full-time employment.

CONSIDERATION

17.     Schedule 1B of the Act has an Introduction which provides guidance in the application of the various Tables which it contains.  Part of that Introduction reads:

4.        A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.

5.        The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

6.        In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

·what treatment or rehabilitation has occurred;

·whether treatment is still continuing or is planned in the near future;

·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years …

18.     Mr Guthrie relied on that component of the Introduction and Mr Swan’s referral to the clinic for pain management as indicating that his back condition was still in the process of being investigated, treated and stabilised.  As noted above, the relevant period in which Mr Swan must satisfy the requirements in s 94 of the Act runs from April to July 2009.  The referral by Dr Richards occurred within that period and I am satisfied that this points to further investigation and treatment in the relevant period.  In that situation, no impairment rating may be allocated to Mr Swan under Table 5.2.  I am also satisfied that the rating for Mr Swan’s upper limb meets the description of the criteria at the nil level under Table 3.

19.     A necessary requirement in s 94 of the Act is that Mr Swan’s physical impairment, as a result of his back and upper limb conditions, must equate to 20 or more points under the relevant Tables.  The effect of allocating no impairment rating under Table 5.2 and a nil rating under Table 3 means that s 94 of the Act is not satisfied and that Mr Swan is not qualified for the disability support pension. 

20.     Nonetheless, I have considered the appropriate ratings under those Tables and the issue of Mr Swan’s work capacity.  Tables 3 and 5.2 read: 

TABLE 3.       UPPER LIMB FUNCTION

All upper limb problems are assessed under the upper limb Table (Table 3).  Each arm is assessed separately.  Determination of upper limb impairments must be based on a demonstrable loss of function.

Rating

Criteria

NIL

Can use dominant limb effectively and/or

Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.

FIVE

Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non‑dominant upper limb which causes moderate interference with hand function or manual handling.

TEN

Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.

FIFTEEN

Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non‑dominant upper limb which causes significant interference with hand function or manual handling.

TWENTY

Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes significant interference with hand function or manual handling or

Unable to use non‑dominant upper limb at all

THIRTY

Unable to use dominant upper limb at all.

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.

21.     There is no evidence that any rating under Table 3 other than NIL is appropriate.  I have determined that to be the appropriate rating for Mr Swan.  A rating of 20 points under Table 5.2 is met if there is a three-quarter loss of normal range of movement.  There is no medical or assessment evidence which identifies such a loss.  Alternatively, it is satisfied by half loss of normal range of movement as long as the three dot-pointed criteria are met.  As I read the Table, all of those three criteria must be met.  Mr Swan’s evidence at the hearing was that he drove uninterrupted for one hour to get to the hearing and that he could have driven for another 30 minutes or so.  That is significantly more that the threshold at the 20 point level.  I am satisfied that an appropriate rating under Table 5.2, if one were allocated, is 10 points.  Again, the requirement in s 94(1)(b) of the Act would not be met and Mr Swan would not be qualified for the disability support pension.

22.     In relation to work capacity, the opinions of all three work capacity assessors is that, with intervention, Mr Swan is capable of working in less-skilled employment for 15 to 22 hours per week.  There is no medical or assessment evidence to the contrary and I am satisfied that this description is applicable to Mr Swan.  Accordingly, he would not satisfy s 94(c)(i) of the Act.   

23.     I am satisfied that Mr Swan does not meet the qualifying criteria for payment of the disability support pension under s 94 of the Act.

DECISION

24.     The Tribunal affirms the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

Signed:  ..................[Sgd]..........................................................
               Research Associate

Date/s of Hearing  21 April 2010
Date of Decision  30 April 2010
Applicant was self-represented
Solicitor for the Respondent     Joe Guthrie, departmental advocate