Thompson; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and

[2008] AATA 852

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 852

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5517

GENERAL  ADMINISTRATIVE   DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And WARREN THOMPSON

Respondent

DECISION

Tribunal Mr. B.H Pascoe, Senior Member

Date23 September 2008

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and in its stead affirms the decision of the applicant to cease payment of the disability support pension to the respondent.

(sgd) B.H Pascoe

Senior Member

SOCIAL SECURITY - Disability Support Pension - condition not attracting twenty points under Impairment Tables - continuing ability to work.

Social Security Act 1991 s 94

REASONS FOR DECISION

23 September 2008 Mr. B.H Pascoe, Senior Member

1. This is an application by the applicant, Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, to review a decision of the Social Security Appeals Tribunal (SSAT) of 11 October 2007 to set aside a decision that the respondent, Mr W. Thompson was no longer qualified for Disability Support Pension (DSP) under section 94 of the Social Security Act 1991 (“the Act”).

2.      At the hearing the applicant was represented by Mr T. Noonan, an advocate with the Legal Services Branch of Centrelink.  The respondent was represented by Ms D. Manova of counsel.  Evidence was given by Mr Thompson, Mr P. Kudelka, an orthopaedic surgeon and Ms J. Randall, a Job Capacity Assessor with Centrelink.

3.      Mr Thompson had been in receipt of DSP since July 2003.  This was granted on the basis of a medical report from his then treating general practitioner, Dr T. Sivapalan, and a medical assessment by Dr J.M. Lane of Health Services Australia Ltd on 10 July 2003.  Dr Lane assessed the impairment at 20 points under Table 5.2 of the Tables for the assessment of work-related impairment for disability support pension (the Impairment Tables) on the basis that Mr Thompson:

…has not been able to work for more than 2 years because of progressing back pains and right leg sciatica (due to degenerative disease of his lumbar spine) and right knee pain (not fully diagnosed may be due to sciatica).  He has back and right leg pains and weakness, which limit lifting, bending and prolonged sitting (30-60 min), standing (5-10 min), sleeping and walking (varies, 500-1000 metres), despite appropriate therapies.

…

The diagnosis of the back condition by Dr Sivapalan was disc prolapse L5/S1 level.

4.      For a review of his condition Mr Thompson was interviewed by Ms Randall on 31 May 2007.  She concluded that a rating of 10 points under Table 5.2 of the Impairment Tables was appropriate on the basis that Mr Thompson had stated:

…that his bending is restricted and he can reach his knees but not his toes from a standing position.  He also stated that he can drive for 30-60 min., stand for 20 min and walk for 20 min. or 1 km at a normal walking pace before resting…

As a result of this opinion, the decision was made to cancel the entitlement of Mr Thompson for DSP on 29 June 2007 and such decision was affirmed on 13 August 2007.

5. Under section 94(1) of the Act qualification for DSP requires a person to have a physical, intellectual or psychiatric impairment which has been diagnosed, investigated, treated and stabilised and will constitute a loss of functional capacity likely to last for more than two years. The impairment must attract a rating of at least 20 points under the Impairment Tables. If such a rating is satisfied a further condition of having a continuing inability to work must also be satisfied.

6.      The decision of the SSAT was based on the clinical examination of Dr Lane supported by a report from Dr H. Cheah, the then treating general practitioner, dated 23 April 2007 describing Mr Thompson as having very restricted bending and lifting; unable to sit or stand for long.  The SSAT considered that the findings of Ms Randall were not based on any physical examination and should not be preferred.

7.      Subsequent to the SSAT decision, Mr Thompson was examined by Dr Kudelka at the request of the applicant on 24 January 2008.  The only radiological report available to Dr Kudelka was the report of a CT scan of 26 March 2003 showing a mild disc bulge at L5/S1.  He noted that treatment had been in the form of exercises and analgesic and that such treatment should prevent the condition from deteriorating but it was unlikely that there would be any significant functional improvement.  He did not believe that there had been a complete and appropriate diagnosis and considered that an MRI would be appropriate.  While he found that Mr Thompson appeared to be restricted to about half the normal range of movement, he found no signs of nerve root involvement and no muscle wasting or motor effect on the leg or ankle.  Mr Kudelka felt that it was possible that some psychological overlay was present in the history of symptoms.  He assigned a rating of 10 points under Table 5.2 of the Impairment Tables for loss of half of normal range of movement.  Mr Kudelka considered Mr Thompson fit for work not involving repetitious bending, stooping or lifting weights in excess of 5‑10kgs.

8.      In a further report of 24 August 2007 Dr Cheah diagnosed the low back condition as disc hernia, the symptoms as lumbar pain with spasms and right sciatica and the effects as unable to perform heavy lifting, can’t bend or sit for long.  He also diagnosed a condition of osteoarthritis of the right knee causing pain and restricted bending.

9.      Mr Thompson said that he had not worked since October 2001 when he left his employment as a kitchen hand in a patè manufacturing business.  Although he was officially employed as part-time he worked full-time effectively in the work which involved lifting heavy trays of patè, lifting cooking pots and dish washing.  He left this employment after abuse by the person who was second in charge.  Prior to this employment he had worked full-time as a car detailer and before that had been a self–defence instructor.  He said that he did not look for work after October 2001 because of his back condition.  He said that his current symptoms involve a pulling from the instep to the hip and his leg sometimes swells and becomes painful if he walks too much.

10.     In general he maintained that he can walk for only a few minutes at a time and, since May 2007, uses a walking stick when away from home.  He said that he cannot lift heavy items or squat down, has difficulty bending to pick things up.  He does drive to shops some 3-4 km although at times his father does the driving and he never walks that distance to the shops.  He said that he cannot push a shopping trolley but can carry a couple of light bags of shopping.  Mr Thompson said that he no longer rides his bicycle which he had rode regularly in the past.  While Mr Thompson complained of constant pain in his right knee, he acknowledged that there had been no proper diagnosis of the problem although Dr Cheah believed that it was osteoarthritic.  Mr Thompson could not recall telling Ms Randall that he could stand for 20 minutes and walk for 20 minutes or 1 km and did not believe that he had done so.  He maintained that, in any event his current condition was much worse than in May 2007.  While Mr Thompson said that he could only sit for a short time, he did acknowledge that he regularly sat at his computer for 40 minutes at a time.

11.     Ms Randall prepared a further assessment report dated 27 March 2008 without a further interview with Mr Thompson and based on her previous report plus the report of Mr Kudelka.  In this report and a supplementary report of 7 April 2008 she maintained her rating of 10 points and was of the opinion that with vocational assistance, Mr Thompson could increase his work capacity to 15.22 hours per week within two years.  Further, she was of the view that, with specialised assistance from CRS [Commonwealth Rehabilitation Service] or other vocational rehabilitation service… he could increase work capacity to 30+ hours within that two years.

12.     Under Table 5.2 of the Impairment Tables a rating of 10 applies where there is:

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.  

Alternatively, for the same rating, where is loss of half of normal range of movement.  The rating of 20 points applies with:

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.

Alternatively, for the same rating, where there is loss of three-quarters of normal range movement.

13. The Impairment Tables require a rating to be assigned by a medical officer after a comprehensive history and examination. This was the basis of the decision of the SSAT preferring the assessment of Dr Lane in 2003. However, here we have an assessment nearly five years later by an experienced orthopaedic surgeon, Mr Kudelka. He assigned a rating of 10 points on the basis of his examination and observations. It is not appropriate for this Tribunal to substitute its own view of an impairment rating unless there is a dispute between two medical officers or the Tribunal is satisfied on the evidence that the particular medical officer has clearly erred in the application of the Impairment Tables. Here it is clear that a more current assessment of a highly qualified and experienced medical practitioner should be preferred than an assessment done in 2003. In addition, I cannot be satisfied on the evidence that Dr Kudelka has erred in his assessment of the range of movement or the period during which Mr Thompson can stand or sit. Consequently, I am satisfied that Mr Thompson’s condition cannot attract the required rating of 20 points under section 94 of the Act.

14.     For completeness, it should be said, also, that I accept the opinion of Ms Randall that, with appropriate rehabilitation assistance, Mr Thompson could develop a capacity to work for at least 30 hours per week within two years.  This is notwithstanding the fact that, on his evidence, Mr Thompson is likely to resist any such efforts to allow him to develop such capacity.

15.     While Mr Thompson complained of knee problems and migraine, neither condition has been fully diagnosed, treated and stabilised and cannot attract any rating under the Impairment Tables.

16.     It follows from the foregoing that the decision of the SSAT should be set aside and in its stead the decision of the applicant of 29 June 2007 be affirmed.

I certify that the sixteen [16] preceding paragraphs are a true copy of the reasons for the decision herein of

B.H. Pascoe, Senior Member

Signed: Cassie Renfrew

Clerk

Date of Hearing  18 June 2008
Date of Decision  23 September 2008
Advocate for the Applicant          Mr T. Noonan, Centrelink Legal Services Branch
Advocate for the Respondent       Ms D. Manova