Williams and Secretary, Department of Family and Community Services
[2005] AATA 109
•7 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 109
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/271
GENERAL ADMINISTRATIVE DIVISION )
Re NOEL WILLIAMS Applicant
And
SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICESRespondent
DECISION
Tribunal Dr EK Christie, Member Date7 February 2005
PlaceBrisbane
Decision The decision under review is affirmed. This means Mr Williams’ application for review is unsuccessful. ...................[Sgd]...........................
E K Christie
Member
CATCHWORDS
SOCIAL SECURITY – benefits and entitlements – disability support pension – lumbar spine degeneration – chronic low back pain – impairment rating – continuing inability to work
Social Security Act 1991 ss 94
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316
Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511
Jebb v Repatriation Commission (1988) 80 ALR 329REASONS FOR DECISION
7 February 2005 Dr EK Christie, Member 1. This is an application by Noel Williams to review a decision of the Social Security Tribunal (“the SSAT”) made on 11 March 2004 that Mr Williams was not entitled to disability support pension (“DSP”).
2. In reaching this decision the SSAT concluded that:
“13.The Tribunal agrees with the rating of 10 points on Table 5.2 of Mr Williams’ back condition.
14.The Tribunal also agrees that the hay fever and colour blindness attract a rating of Nil points on Table 20.
15.What this means for Mr Williams is that his total impairment is 10 points and he does not satisfy section 94(1)(b) and consequently does not qualify for disability support pension.” (T2, Folio 7)
3. At the hearing Mr Williams represented himself. The respondent was represented by Ms J Hamilton, a Departmental Advocate.
4. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents)(Exhibit 1) and the various documents lodged by the parties.
Issues Before the Tribunal
5. The issues for the Tribunal to decide were:
(a)whether Mr Williams has at least 20 points under the Impairment Tables; and, if so
(b)whether Mr Williams has a continuing inability to work.
Facts
6. Mr Williams has not worked since 1996 – notwithstanding many attempts to find work with various employment agencies.
7. On the basis of the evidence before it, the SSAT made the following findings:
“(i) Mr Williams claimed disability support pension on 19 June 2003.
(ii)Mr Williams has chronic low back pain and occasional sciatica with loss of quarter normal range of movement of the lumbar spine.
(iii)Mr Williams has hay fever with mild symptoms
(iv)Mr William is colour blind.” (T2, Folio 7)
8. At the commencement of the hearing, Mr Williams acknowledged that he agreed with findings (i), (iii) and (iv) – but challenged the basis of finding (ii).
9. In its discussion of the evidence, the SSAT concluded that it “appreciated the honest and direct way in which Mr Williams provided his evidence”. (T2, Folio 7) The Tribunal also found Mr Williams to be a credible witness and a witness of truth.
The Tribunal’s Decision-Making Powers
10. The question for the determination of the Tribunal is whether the decision [under review] was the correct one [that is, when there is only one decision] or preferable one [that is, when a range of decisions is available] on the material before the Tribunal: see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, [per Bowen CJ and Deane J, at 68]. In Mr Williams’ case, there is only one decision possible – whether Mr Williams is entitled to DSP.
11. Administrative decision-makers are generally required to address the evidence before them and not confine themselves to evidence before a prior decision-maker whose decision is being reviewed unless the relevant legislation requires a decision to be based upon the circumstances at a particular point of time (Emphasis added): see Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316 at 324-326; Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521; Jebb v Repatriation Commission (1988) 80 ALR 329 at 333).
12. In Mr Williams’ case, the only period the Tribunal can consider evidence and information in relation to entitlement to DSP, as prescribed by statute, is the 13 week period commencing from the date Mr Williams lodged his claim for DSP, 19 June 2003.
Statutory Requirements
13. Section 94 of the Social Security Act 1991 (“the Act”) sets out the requirements for eligibility for disability support pension as well as the question of “continuing inability to work”.
“Qualification for disability support pension—continuing inability to work
94.(1) [Qualification – continuing inability to work] 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) one of the following applies:
(i) the person has a continuing inability to work;
…..
Meaning of continuing inability
94.(2) [Meaning of ‘continuing inability to work] 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 within the next 2 years; and
(b) either:
(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
94.(3) [Secretary not to have regard to certain matters] 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 educational or vocational training or on-the-job training; or
(b)if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.”
Examination of the Evidence
14. The Tribunal considers the evidence that is relevant in addressing the questions of law raised by the statute.
·The Nature of the Impairment
15. The oral evidence of Mr Williams was quite clear: that his low back pain was chronic and became aggravated when doing repetitive work involving bending and lifting. The symptoms of pain experienced by Mr Williams, and the effects on his daily living activities as well as on his recreation pursuits, were described consistently by people who have known him over the past 5 – 8 years: the oral evidence of Ronald Fawcett, Suzanne Kandy and Jackie Springfield. The evidence of these witnesses corroborated Mr Williams’ evidence in this regard.
16. In response to a Tribunal question, Mr Williams stated that his maximum sitting time was around 10 minutes. In addition, he said that his back pain was such that it made him get up 3 – 4 times a night, causing him to sit in a chair for a period. He said that his maximum standing time was around 20 minutes. Furthermore, walking for about 5 minutes on a slight slope resulted in aggravation of his back pain. He disagreed with Dr Haines’ opinion that his walking limit was 500 metres, stating that the distance was less than 500 metres.
17. Mr Williams described his chronic low back pain as an intermittent condition that varied from day to day – from severe pain to “no problems”.
18. Given this evidence that chronic low back pain was the major factor affecting Mr Williams’ functioning ability, the Tribunal considered the expert evidence that was relied on by the SSAT in its decision-making process:-
(a)Dr Pentis (T4, 17 March 1995; T5, 9 August 1996) concluded that based on Table 5.2, Mr Williams had a loss of ¼ movement in the lumbar spine and so was given a rating of 10 points. Dr Pentis relied on the same radiology (17 December 1991) in reaching his conclusion in both of his reports. The radiology report is not in the “T” Documents;
(b)Dr Johnstone (T9, 17 March 2003) reviewed more recent radiography and expressed the following opinion:
“His radiographs from November 2002 show what I think is quite significant lower lumbar facet arthritis but the disc spaces appear to be generally well preserved and overall alignment is satisfactory.” (Folio 75) [emphasis added]
(c)Dr Mitchell (T16, 26 November 2003) relied on Table 5.2 only and concluded that there was a loss of ¼ movement in Mr Williams’ lumbar spine and so assigned a rating of 10 points. In his assessment, Dr Mitchell recorded the following observations on Mr Williams’ functioning capacity:
· Sit : < [less than] 60 minutes
· Stand : < [less than] 30 minutes
· Walk : 500 metres
· Drive : about 30 minutes
19. The evidence and information before the Tribunal indicates that Mr Williams’ condition has been assessed against Table 5.2 (Thoraco-lumbar-sacral spine) – notwithstanding the oral evidence before the Tribunal, with some acknowledgement in the expert evidence, that chronic low back pain has led to a loss of function. In turn, low back pain impairs Mr Williams’ ability to work.
20. Accordingly, the Tribunal has considered the following Departmental Policy and legal principles to determine whether Table 20 (“Miscellaneous: Chronic Pain”) is the appropriate Table to assess Mr Williams’ medical condition for an impairment rating as well as for the impacts on his ability to work:
“(a) Paragraph 8 in the Introduction to the new 1998 Impairment Tables in Schedule 1B of the Act states:
8. In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of Table(s) that otherwise would be used to assess the loss of function to which the pain relates. Medical officers must use their clinical judgment and be convinced that pain or fatigue is a significant factor contributing towards the person’s overall functional impairment. Medical reports and the person’s history should consistently indicate the presence of chronic entrenched pain or fatigue”.
(b) In Re Mifsud and Secretary, Department of Family and Community Services [2000] AATA 737, the Tribunal commented upon the effect of this paragraph, in conjunction with paragraphs 7 and 13:
10. As a consequence of these provisions it is clear that it is the loss of function, which impairs a person in relation to an ability to work, which is to be assessed. Clearly Mrs Mifsud has a physical impairment to her lower spine but the assessment of that impairment can be done either under Table 5.2 or Table 20 but not both. Table 5.2 includes an effect of pain in assessing a rating. It prescribes a higher rating where, in addition to loss of normal range of movement, there is back pain or referred pain. The assessment of 10 points applies where in addition to loss of one-quarter of normal range of movement there is pain with many physical activities, standing for 30 minutes and sitting or driving for 60 minutes. The use of Table 20 is appropriate as an alternative where the associated pain is chronic and arises with less than the prescribed activities but with the same loss of movement.
(c) In Re Mansour and Secretary, Department of Family and Community Services [2003] AATA 73, the Tribunal assessed a cervical and lumbar spine impairment under Table 20 rather than Table 5 as an assessment under Tables 5.1 and 5.2 failed to acknowledge that pain was the determinant as to the range of movements observed, and this was not necessarily consistent with the demonstrable loss of spinal function which was rated at TEN. The Tribunal said:
‘Accordingly as pain is the predominant symptom and the main agent in the limitation of movement in the cervical and lumbar spines, knees, shoulder, fingers and toes, all of which being encompassed within the condition of generalised osteoarthritis, the Tribunal concludes that the appropriate Table for assessment of generalised osteoarthritis and its accompanying signs and symptoms is Table 20…’ (at [61])[1].”
[1] See: Sutherland P, Anforth A. Social Security and Family Assistance Law (2000), Federation Press, Welfare Rights and Legal Centre.
21. The application of these legal principles and Departmental policy are relevant to the following Direction that was issued by the Tribunal at the end of the hearing – particularly so, given that no medical practitioners were called to give evidence at the hearing:
“1.That Mr Williams’ treating GP, Dr P Hawes, assess Mr Williams’ ‘Degenerative changes in Lumbar Spine’ condition under Table 20 of the ‘Tables for the Assessment of Work Related Impairment for Disability Support Pension’ (Schedule 1b, Social Security Act 1991).
2.That Dr P Hawes provide an opinion as to how his impairment rating under Table 20 would limit Mr Williams’ functioning and so prevent him from doing any work within the next 2 years – where ‘work’ means at least 30 hours per week at award wages or above.
3.The response received from Dr Hawes will be provided to the respondent Ms J Hamilton and Mr Williams to make any supplementary submissions in reply.”
·Ability to Work
22. Mr Williams stated that his back pain was aggravated and became more severe when doing repetitive work; simply sitting led to back pain. The back pain was intermittent as he had “good” and “bad” days.
23. Mr Williams said that he could not work for 30 or more hours per week because of his lower back pain. He said that he had applied for jobs as a console operator but could not do this work because it involved bending and standing and stacking – which would aggravate his back pain. Similarly, he had also applied for work and been interviewed as a car park attendant, but was unsuccessful. He had disclosed his back condition at interview. No reasons were given for his failure to be employed.
24. Mr Williams gave the following past employment history. He had left school in 1973 during the Grade 9 year. He had been constantly employed as a truck driver, labourer, storeman, poultry farm worker, roof tiler and other heavy manual work until his first accident in 1991. Over time he had sought employment over a very wide range of jobs – but had been unsuccessful. He had also completed a warehousing course. He stated that, but for his back pain, he would be employed today. In addition he stated that one employment agency (Mission Australia) informed him that he should be placed on the DSP.
Supplementary Submissions
25. At the completion of the hearing, the parties consented to a Direction by the Tribunal, that Mr Williams’ treating general practitioner (Dr. P. Hawes) assess the degenerative changes in lumbar spine condition using Table 20 ( (Miscellaneous – Pain) contained in Schedule 1B of the Social Security Act 1999 (see paragraph 21). However, Dr. Hawes subsequently advised the Tribunal that he was unable to comply with this request. No supplementary submissions will therefore be made.
Contentions and Submissions of the Parties
26. Ms Hamilton submitted that Mr Williams; impairments did not reach the statutory requirement of 20 points. He had 10 points under Table 5.2, “0” points under Table 20 (for hay fever/sinus) and “0” points under Table 20 (for being colour blind).
27. Ms Hamilton submitted that Mr Williams had a continuing ability to work as the medical opinion (Dr Mitchell, Dr Johnstone) expressed the opinion that he was capable of undertaking light work. In addition, the report completed by the Rehabilitation Consultant indicated that he could work for 30 or more hours per week with educational or vocational training within 6 months.
28. Mr Williams did not provide any medical opinion evidence in relation to the impairment tables, but instead relied on the description of his symptoms and their effects on him given in oral evidence by himself and other lay witnesses.
29. Mr Williams contended that his low back pain affected his ability to work and prevented him from working 30 or more hours per week.
Consideration of the Issues
30. The first issue for the Tribunal to decide is whether Mr Williams satisfies the requirements of having an impairment rating of 20 points or more, under the various Tables. It is clear that the outcome of this issue is dependent on the expert medical evidence before the Tribunal of Dr. Pentis and Dr. Mitchell that applies over the relevant time period – commencing from the date Mr Williams applied for disability support pension. The impairment ratings given by these medical experts that apply over this period are as follows:
Table 5.2 (Thoraco-Lumbar-Sacral Spine)
·Dr. Pentis [March 1995; August 1996] 10 points
·Dr. Mitchell [November 2003] 10 points
31. Based on the expert medical opinion in relation to Table 5.2, the Tribunal has no alternative other than to find under the civil standard of proof, the impairment rating of Mr Williams under Table 5.2 is ten points. Consequently, his lower back medical condition is less than the rating of 20 points required under the Impairment Tables. As a result, Mr Dunning does not qualify for the disability support pension under this Table.
32. The Tribunal makes the observation that it took all steps to ensure that the correct and best informed decision could be made for Mr Williams’ application for review by issuing a Direction at the end of the hearing requiring further expert medical evidence to be obtained to determine an impairment rating under Table 20 for chronic back pain. However, his treating general practitioner was unable to comply with this request.
33. However, all of the oral evidence before the Tribunal (see paragraph 15), Departmental Policy and legal principles (see paragraph 26) indicates that Table 20 (Miscellaneous – Pain) is the appropriate Table to assess Mr Williams’ lower back condition for an impairment rating as well as the impacts on his ability to work.
34. Given this finding, there is no need for the Tribunal to consider whether Mr Williams has a continuing inability to work.
35. For all of the above reasons, Mr Williams is not entitled to receive Disability Support Pension at the time his claim was lodged on 19 November 2003.
36. Whilst this decision may be considered harsh by Mr Williams the Tribunal cannot make any other decision based on the factual and medical expert evidence before it. The Tribunal makes the observation that Mr Williams may now wish to make a new application for disability support pension based on his impairment being assessed under Table 20 (Miscellaneous – Pain) given the Tribunal’s conclusion that Table 20 may well be the appropriate Table given the symptoms he now endures for his lower back condition.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: Camille Banks
AssociateDate/s of Hearing 15 November 2004
Date of Decision 7 February 2005
The Applicant appeared in person
Respondent Ms J Hamilton, department advocate
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