Walker and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 1123

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1123

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2008/1168

GENERAL ADMINISTRATIVE DIVISION		)
Re		ALLAN WALKER

Applicant

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

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date17 December 2008

PlaceSydney

Decision The decision under review is affirmed.

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

Dr J D Campbell

Member

CATCHWORDS     

SOCIAL SECURITY – disability support pension – lower back impairment – assessment – decision under review affirmed

Social Security Act 1991- Section 94, Schedule 1B Impairment Tables

Social Security (Administration) Act 1999 - Schedule 2, clause 4(1)

REASONS FOR DECISION

17 December 2008   Dr J D Campbell, Member

Background

1.      Mr Walker is 47 years old.  Mr Walker was educated to Year 10 and since that time has worked in a wide variety of labouring jobs.  Mr Walker ceased work as a casual packer for a dog food company and as a grain handler in August 2006, as a consequence of the onset of low back pain and numbness in his right leg some two weeks earlier.

2. A CT scan of the lumbar spine dated 30 August 2006 is reported as showing a prominent central and right posterior disc protrusion L5/S1 with effacement of the thecal sac and involvement of about to exit right S1 nerve root (T5 P15). Following orthopaedic review by Dr Taylor an L5/S1 discectomy was performed by Dr Ruff on 6 December 2006 (T11).

3. Mr Walker lodged a claim for a disability support pension (“DSP”) on 16 July 2007, in which he described difficulties associated with sitting, standing, driving a car and using public transport all the time because of increased lower back pain. Similarly, such pain prevented him from lifting, carrying and bending all the time (T13 P45).

4.      A treating doctor’s report was completed by Dr Dabash on 13 July 2007.  Dr Dabash described Mr Walker’s major and only condition in the following terms:

Lower back pain with pain, numbness and weakness over the right side and right lower leg and foot, despite an L5/S1 discectomy being performed on 6 December 2006. 

Dr Dabash noted that Mr Walker was prescribed Tramol 100mgs, Voltaren TDS.

Dr Dabash considered that the effect of Mr Walker’s condition on his ability to function over the next two years was uncertain, with the impact of the condition on his ability to function lasting more than two years (T14).

5.     A Job Capacity Assessment report was undertaken by Ms Coote, an applied science graduate, on 26 September 2007.  Ms Coote, in her report, concluded that Mr Walker’s musculo-skeletal disorder was fully diagnosed, treated and stabilised following surgery and four months of physiotherapy.  Ms Coote assessed Mr Walker’s low back pain impairment at 10 points pursuant to Impairment Table 5.2, while noting he still needed to lie down and rest after physical activities with pain relief sometimes helped by medication.  Ms Coote noted that Mr Walker had a loss of ¼ normal range of movement of the thoraco-lumbar-sacral spine associated with back pain and referred pain with many physical activities, and with sitting or standing after about 20 minutes.  Ms Coote assessed that Mr Walker had a current work capacity of 8-14 hours per week which would continue if there was no intervention, but with intervention his work capacity would increase 23 to 29 hours per week (T15).

6.     On 22 October 2007 Mr Walker’s claim for DSP was rejected because the assessment of his permanent impairment was less than 20 points.

7.     Dr Dabash provided a further treating doctor’s report on 31 October 2007 (T19).  In the report Dr Dabash provided similar information to that contained in his earlier report, with the exception that treatment with Celebrex 200mgs mane and Tramol SR 150mgs BD.

8.     Mr Walker’s claim for DSP was reconsidered and affirmed by the original decision maker on 13 November 2007, by an authorised review officer on 10 December 2007 and by the Social Security Appeals Tribunal on 19 February 2008.

Issues

9.     The relevant issues in his matter are:

(A)Whether Mr Walker has a physical impairment.

(B)Is the assessment of that impairment pursuant to Schedule 1B Impairment Tables 20 points or more?

(C)Does Mr Walker have a continuing inability to work?

Evidence

10.   Mr Walker described the clinical history of his low back pain prior to surgery and after surgery.  His particular complaint is of low back pain with some radiation to both buttocks and to both legs.  Mr Walker described the pain as having never changed and that it is made worse with particular activities.  Mr Walker stated that he was able to sit or stand for about 20 minutes, drive for about 30 minutes and that he does not do very much at all.  Mr Walker stated that he does some walking in the yard, some pruning, mows the lawn over two to three days and mows his mother-in-law’s lawn once a fortnight, both activities requiring the use of a cord starting lawn mower.  Mr Walker states that his wife does everything around the house including cleaning, washing, hanging out clothes and shopping.  Mr Walker stated that he does most of the cooking, occasionally accompanies his wife shopping and has serviced his car with the use of a service station hoist.  Mr Walker states that he has two dogs (Alsatian and a Boxer) and he takes them for a walk slowly around the block (estimated at less than one kilometre).

11.   Mr Walker stated that he is able to undertake all self care activities including showering, dressing and securing Velcro strips on shoes.  Mr Walker stated that he watches television and DVDs from 6.00 pm until about 2.00-3.00 am.  His sleep thereafter is often disturbed because of pain and frequently sleeps on the lounge.  Mr Walker stated that the medication he takes is of little assistance, and that he has been unable to attend a pain management course because that would require a daily drive to Dubbo.  I note that Mr Walker detailed that his wife is currently undergoing a bilateral knee replacement in Dubbo as she has two forms of arthritis for which she receives a DSP.

12.   Finally, I would note that Mr Walker has been diagnosed with cervical spondylosis at the C6/C7 level.  (Cervical spine x-ray of 23 September 2008).  I note that his main symptoms relating to this condition are pain and numbness in both upper limbs.

13.   Mr Walker lodged a further claim for a DSP on 23 September 2008.  Dr Dabash provided a third treating doctor’s report (Exh R7).  This report did not provide any added detail.  A report by Dr Dabash dated 31 July 2008 (Exh R3) notes that Mr Walker has a loss of half of the normal range of movement of his thoraco-lumbar spine as well as back or referred pain.  Dr Dabash concluded that Mr Walker had a 20 point impairment rating pursuant to Impairment Table 5.2 at that time (July 2008).

14.   I note that a further Job Capacity Assessment was undertaken on 3 October 2008.  In her report (Exh R8) Ms Hill, an accredited exercise physiologist, concluded that Mr Walker had more severe symptoms with decreased ability to perform many daily activities, with simple tasks usually exacerbating symptoms.  Ms Hill concluded that an impairment rating of 20 pursuant to Table 20 was appropriate.  It is understood that Mr Walker was granted DSP subsequent to this assessment.

Consideration and Findings

15. I am mindful that this matter is concerned with Mr Walker’s claim for DSP dated 16 July 2007. I also understand that Schedule 2, clause 4(1) of the Social Security (Administration) Act 1999 limits my consideration to a period commencing 16 July 2007 and extending for 13 weeks.  In such circumstances I recognise that I can only consider what material is available at that time, and any other subsequent material which permits an enhanced understanding of the impairments existing at that time.

16. In such circumstances it is evident that Mr Walker suffered from a physical impairment at that time, namely low back pain with radiation to both buttocks and down both legs with many physical activities, when sitting, standing or driving for 30 minutes. I accept that evidence and so find that Mr Walker satisfied section 94(1)(a) of the Social Security Act 1991 (“the Act”).

17.   In addressing the issue of assessment at that time, the treating doctor’s reports are short on necessary detail in that they allude to a condition with little detail in relation to the clinical assessment of Mr Walker’s condition.  I observe that the only relevant material in relation to loss of range of movement of the thoraco-lumbar spine is that referred to by Ms Coote in the Job Capacity Assessment Report of 26 September 2007, in which she records a quarter loss of the normal range of movement of the thoraco-lumbar-sacral spine, as evidenced by a quarter loss of extension, flexion, rotation and lateral flexion.  In his evidence Mr Walker did confirm that such testing did take place, with his finger tips reaching somewhere below the knee (he being 76 inches tall).

18.   In the absence of any other evidence I find that an impairment rating of 10 points is appropriate pursuant to Impairment Table 5.2, which nominates a loss of one quarter of normal range of movement as well as back pain or referred pain:

·With many physical activities; and

·standing for about 30 minutes; and

·sitting or driving for about 60 minutes.

19.   I would observe that Mr Walker was granted DSP some 16 months later with an assessment of his impairment undertaken pursuant to Impairment Table 20.  A rating of 20 points was awarded.  I further note that the cervical spondylosis impairment was involved in that claim, with symptoms of pain and numbness in both upper limbs.  Further, I observe that there has been a change in Mr Walker’s medication in the time period between the two claims, with an increase in the quantity of the Tramol medication and a change from Voltaren to Celebrex.

20.   While I may entertain some views as to the appropriateness of the later assessment that is not a matter for me as that matter is not before me.  My task is to assess the physical impairment as at 16 July 2007 as extended for 13 weeks, in the light of material available at that time.  That I have done.  To assess using Table 20 at that time involves issues I have referred to in the previous paragraph, as well as considerations involving whether the pain condition had been fully treated at that time – such involving specialist referral and opinion, investigations and assessment in a pain management clinic, which in time would allow consideration of whether the pain condition was permanent.  Simply stated, on the evidence before me I am not in a position to make an adjudication as to whether the pain syndrome was a condition that had been fully treated at that time.

21. As a consequence of my findings, I conclude that the assessment of Mr Walker’s low back pain physical impairment on the evidence before me and in relation to the claim of 16 July 2007 is 10 points pursuant to Impairment Table 5.2. In such circumstances I find that Mr Walker did not satisfy section 94(1)(b) of the Act at that time and as such he failed to qualify for DSP at that time.

22.   In light of such a finding, I do not consider it necessary to consider whether Mr Walker had a continuing inability to work at that time.  Accordingly I determine that the decision under review should be affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member.

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

Date/s of Hearing  5 December 2008
Date of Decision  17 December 2008
Appearance for the Applicant   Self-represented
Solicitor for the Respondent    Mr Lozynsky, Centrelink Legal Services and Procurement Branch.