Wayne Palmer and Secretary, Department of Social Services

[2014] AATA 297

[2014] AATA 297

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/2976
Re	Wayne Palmer
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President PE Hack SC
Date	14 May 2014
Place	Brisbane

The decision under review is affirmed.

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Deputy President PE Hack SC

CATCHWORDS

SOCIAL SECURITY – disability support pension –- back injury –- whether criteria for a rating of 20 points satisfied.

LEGISLATION

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 clause 11, Table 4.

REASONS FOR DECISION

Deputy President PE Hack SC

1. The applicant, Mr Wayne Palmer, injured his back in a workplace incident in 2009. In March 2010 Mr Palmer applied for, and was granted, disability support pension. Later in 2012 Centrelink undertook a review of Mr Palmer’s eligibility for disability support pension. That included a review by Mr Damian Torissi, an experienced physiologist, who undertook a process described as a “Physical Specialist Assessment”, carried out on 7 December 2012.

2. On 20 December 2012 Centrelink determined that Mr Palmer was no longer qualified to receive disability support pension and made a decision to cancel his pension. That decision was affirmed on internal review on 23 April 2013 and by the Social Security Appeals Tribunal on 27 May 2013.

3. Mr Palmer seeks a review of the decision to cancel his disability support pension.

4. It will suffice for present purposes to say that a person is qualified to receive disability support pension if the person has a physical, intellectual or psychiatric impairment that warrants a rating of 20 points or more under the Impairment Tables and if the person has a continuing inability to work.

5. There is no doubt that Mr Palmer had a physical impairment at the time of the cancellation decision: he has severe degeneration to his L4/5 and L5/5 discs and there is no doubt that the pre-conditions for assigning a rating to the level of the impairment are satisfied; it is accepted that the condition is permanent and is more likely than not to persist for more than two years.

6. The assignment of a rating is undertaken using Tables that are part of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).[1] The mechanism for assigning an impairment rating is explained in clause 11 of the Determination in this way:

   [1] Exhibit 1, page 14.

   11       Assigning an impairment rating

   (1)      In assigning an impairment rating:

   (a)      an impairment rating can only be assigned in accordance with the rating points in each Table; and

   (b)      a rating cannot be assigned between consecutive impairment ratings; and

   Example: A rating of 15 cannot be assigned between 10 and 20.

   (c)       if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; and

   (d)      a rating cannot be assigned in excess of the maximum rating specified in each Table.

   (2)      In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied.

   Descriptors involving performing activities

   (3)      When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.

   Example: If, under Table 2, a person is being assessed as to whether they can unscrew a lid of a soft drink bottle, the relevant impairment rating can only be assigned where the person is generally able to do that activity whenever they attempt it.

   Episodic and fluctuating conditions

   (4)      When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.

   No impairment resulting from a condition

   (5)      To avoid doubt, where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.

7. It is common ground that Mr Palmer’s impairment falls to be determined by reference to Table 4 dealing with spinal function. It will be of assistance to set out the Introduction to that Table and the descriptions for 0, 5, 10 and 20 points:

   Table 4 – Spinal Function

Introduction to Table 4

·   Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.

·   The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·   Self-report of symptoms alone is insufficient.

·   There must be corroborating evidence of the person’s impairment.

·   Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:

• a report from the person’s treating doctor;
• a report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
• a report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.

·   In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.

Points

Descriptors

0

There is no functional impact on activities involving spinal function.

(1)        The person can:

(a)        bend down to pick a light object off the floor (e.g. a piece of paper); and

(b)        turn their trunk from side to side; and

(c)        turn their head to look to the sides or upwards.

5

There is a mild functional impact on activities involving spinal function.

(1)        The person has some difficulty in:

(a)        activities over head height (e.g. activities requiring the person to look upwards); or

(b)        bending to knee level and straightening up again without difficulty; or

(c)        turning their trunk or moving their head (e.g. to look to the sides or upwards).

10

There is a moderate functional impact on activities involving spinal function.

(1)        The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)        the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)        the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)        the person is unable to bend forward to pick up a light object placed at knee height; or

(d)        the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

20

There is a severe functional impact on activities involving spinal function.

(1)        The person is unable to:

(a)        perform any overhead activities; or

(b)        turn their head, or bend their neck, without moving their trunk; or

(c)        bend forward to pick up a light object from a desk or table; or

(d)        remain seated for at least 10 minutes.

1. Mr Finn, the solicitor for Mr Palmer, accepted that he could perform overhead activity and that paragraph 1(a) of the 20 point descriptions could not be satisfied. He argued though that the evidence made out each of the other paragraphs (b), (c) and (d). I am unable to agree.

2. Mr Torrisi undertook a detailed assessment of Mr Palmer’s limitations on 7 December 2012. He found no evident limitation in Mr Palmer’s neck movement. In the course of the hearing Mr Palmer was able to rotate his head 45° in each horizontal direction. There is no medical reason that should prevent Mr Palmer from turning his head or bending his neck without moving his trunk. The disc degeneration is in the area of the lumbo-sacral spine not the cervical spine. Paragraph (b) is not satisfied.

3. In the course of Mr Torrisi’s tests, Mr Palmer was able to lift a 3 kg weight from desk height to shoulder height and agreed in his evidence that he had no difficulty with a task such as picking a book up from a table and elevating it. Paragraph (c) is not satisfied.

4. Finally, Mr Palmer sat for 30 minutes during Mr Torrisi’s assessment. He agreed in the hearing that he could not sit for 20 minutes without discomfort. Paragraph (d) is not satisfied.

5. The result of this is that Mr Palmer no longer satisfied the criteria for a rating of 20 points on Table 4 of the Assessment Tables. Thus he does not satisfy one of the criteria for disability support pension. The decision to cancel is pension was correct and will be affirmed. It is unnecessary to consider whether he had a continuing inability to work.

6. I note that Mr Palmer refuses to take pain medication because of adverse consequences from having earlier taken what he described as a morphine based pain killer. He is, of course, free to make such decisions, especially after discussion with his general practitioner. Recognising that the decision is one for him, I wonder whether, in Mr Palmer’s own interests, he should consider milder forms of pain relief. He might be able to considerably improve his quality of life and give him the freedom to participate more fully in normal activities of daily living were he able to take milder forms of pain relief.

14.       I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC

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Associate

Dated 14 May 2014

Date of hearing	30 April 2014
Applicant	In person
Solicitors for the Respondent	Ms D Smith, Department of Human Services