Thomas; Department of Family and Community Services [1999] AATA 598 (16 August 1999)

Last Updated: 17 August 1999

DECISION AND REASONS FOR DECISION [1999] AATA 598

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1998/624

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And IAN REECE THOMAS

Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member)

Date 16 August 1999

Place Brisbane

Decision The Tribunal decides that: (a) the decision of the Social Security Appeals Tribunal is set aside; and (b) the decision of the Authorised Review Officer is affirmed.

Decision No 598/1999 (Sgd) K L Beddoe

Senior Member

CATCHWORDS

SOCIAL SECURITY : Disability Support Pension - cancellation - continuing inability to work

Social Security Act 1991 s 94

REASONS FOR DECISION

16 August 1999 Mr K L Beddoe (Senior Member)

1. The applicant Department seeks review of a decision of the Social Security Appeals Tribunal ("SSAT") which set aside a decision by the applicant to cancel payment of Disability Support Pension and also decided that the respondent was qualified for payment of the said pension.

2. So far as is relevant s 94 of the Social Security Act 1991 ("the Act") provides that 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% or more under the Impairment Tables; and

(c) because of the impairment the person has a continuing inability to work; and

(d) . . . ; and

(e) . . . .

3. A person has a continuing inability to work if the terms of s 94(2) are satisfied. In essence the test is whether the person's impairment is such as to prevent the person working or doing rehabilitative training within the two years following a claim for pension.

4. At the hearing Mrs Guthrie appeared for the applicant and Mr Lafferty appeared for the respondent. The documents lodged in the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits. Oral evidence was given by Dr Yang for the applicant and Dr Watson, Dr Sheppard and Dr Low for the respondent. The respondent did not give evidence.

5. In 1990 the respondent was diagnosed by Dr Nixon as follows:

"L3-L4 L4-L5 disc diffuse bulging causing compression of spinal thecal sac" (T9)

6. In 1991 the respondent made a claim for payment of invalid pension (T13) based on that diagnosis.

7. The diagnosis was accepted by a Commonwealth Medical Officer (Dr Dragt) who assessed impairment at 28% (T14).

8. On 19 June 1991 a Medical Assessment Tribunal appointed under the Workers' Compensation Act 1990, being an Orthopaedic Assessment Tribunal, determined that the respondent had a partial incapacity for work, the incapacity is permanent, diagnosed the injury as aggravation of pre-existing lumbar spondylosis and determined a 10% loss of bodily function (T18).

9. In September 1991 the applicant determined to grant the respondent an invalid pension (T16).

10. On review in October 1992 in a Senior Medical Officer report Dr Conboleon assessed impairment in relation to the lumbar spine at 30% and impairment due to sciatica at 20% giving a combined impairment rating of 44% (T23).

11. A somewhat different approach was taken by Dr Fenner in a report dated 26 April 1995 (T27). While Dr Fenner found the respondent was not and would not be fit for his normal work he was fit for light/less skilled work. Dr Fenner included the following comment:

"General Assessment:

This gentleman's court case has not been heard. His x rays show very little disc protrusion. His back movement is fairly good when he is brave. I feel that he would be fit for light work. His claimed pain and immobility seem to outweigh the current evidence of the x rays and scans."

12. Document T34 is a detailed approved medical practitioner report by Dr Schneider, Specialist Occupational Physician, following examination on 14 March 1997. Dr Schneider diagnosed several conditions which he listed in descending order of significance as contributing factors to incapacity for work as follows:

(a) Chronic pain syndrome.

(b) Adjustment disorder secondary to recent separation from partner.

(c) Physical deconditioning.

(d) Cervical and lumbar spondylitis.

(e) Muscular ligamentous injury to lumbo-sacral spine with resulting scar tissue formation.

Dr Schneider concluded that the respondent would be fit for work after a period of rehabilitation training expected to take at least 12 months.

13. On 14 April 1997 Dr Harding of the Australian Government Health Service assessed nil under Tables 5.1 and 5.2 for Cervical Spondylitis and Thoracolumbar spondylitis respectively. He assessed adjustment disorder as a temporary medical condition likely to resolve in six months (T35).

14. It seems the applicant was reluctant to rely on Dr Harding's assessment and referred the matter back to the Government Health Service for a specialist report (T39). In his report dated 8 August 1997 Dr White, orthopaedic surgeon, diagnosed "significant cervical and lumbar spinal pathology" (T41). He said the respondent was permanently unfit for work involving heavy physical labour, prolonged standing, prolonged sitting, lifting or repetitive bending and unsuitable for work involving maintenance of the head and neck in fixed positions for extended periods of time. He said the respondent would be fit for other lighter semi-sedentary duties. He thought he level of impairment would persist indefinitely and also that the respondent appeared suitable for educational/vocational training directed at appropriate employment.

15. The reports of Dr Schneider and Dr White were reviewed by Dr Prado, Acting Senior Medical Adviser at the Australian Government Health Service (T42). Dr Prado assigned an impairment rating of 10% under Table 6. He concluded that the respondent was then (August 1997) unfit for work because of a temporary adjustment disorder condition. Dr Harding had assessed likely time for recovery from this condition as 6 months (T35).

16. By notice dated 8 September 1997 the respondent notified the applicant that payment of the Disability Support Pension had been cancelled with the last payment to be made on 16 October 1997 (T45).

17. Exhibit A is a copy of a report by Dr Yang, Senior Medical Adviser at Health Services Australia dated 13 November 1998. Dr Yang, a general practitioner, reviewed reports by Dr Sheppard, Dr Low, Dr Schneider, Dr White and the reasons of the SSAT. Dr Yang assessed Chronic Pain syndrome at 10% under Table 6 or Table 25 and Gastrointestinal impairment at 5% under Table 13. In his oral evidence he said Table 6 was more appropriate than Table 26, that Table 4 was not appropriate and that the impairment rating under Table13 should not have been made because the condition had not been treated and stabilised. Given Dr Yang's assertion that he is expert in application of the Impairment Tables I am not persuaded that Dr Yang's evidence was an objective assessment of the respondent's medical impairment and left me with the impression that he was advocating the applicant's case. When that was put to him he denied it.

18. Because Dr Yang has not examined the respondent and because I formed the impression that he had adopted the role of the advocate I have not given any weight to his evidence.

19. Dr Watson, Consultant in rehabilitative medicine, made a report dated 17 November 1998 to the respondent's solicitors. Dr Watson also adopted the role of an advocate in that he expressed agreement with the reasons for decision of the SSAT. Dr Watson described "neck pain with associated headache", "low back pain" and intermittent dyspepsia. He said the neck pain and headache is variable depending on the intensity of cervical disturbance which correlates with the degree of low back pain. He said the pathology was consistent with the claims in relation to neck and lower back pain. He said the respondent was unemployable and would not improve within the next two years. In his oral evidence he confirmed that his opinion applied to the respondent's condition as at September 1997. He also gave evidence as to how he assessed impairment at 20% relying on an average in relation to restriction of movements. He also noted that increased activity by the respondent has a corresponding increase in symptoms but symptoms vary on a day by day basis.

20. Dr Watson was of the opinion that a consistent working week of 30 hours per week would be beyond the respondent's capacity and he would be unable to attend normal employment on a consistent basis.

21. Exhibit 1 is a report by Dr Sheppard, General Practitioner, dated 9 September 1998 addressed to the respondent's solicitors. He said he had been treating the respondent for chronic low back pain and gastritis caused by ulceration of the duoderum attributed to the stress caused by the low back pain. In his oral evidence he assessed impairment for the gastritis as 10% under Table 13. Dr Sheppard said he had referred the respondent to a gastroenterologist (Dr Masson) who had confirmed Dr Sheppard's treatment. He thought the stress resulting in gastritis would continue indefinitely if the respondent continued to suffer the low back pain.

22. Exhibit 2 is a report by Dr Low, Orthopaedic Surgeon dated 2 November 1998 and addressed to the respondent's solicitors. Dr Low found chronic low back pain which radiates into the right leg but not below the knee. He described the condition as untreatable. Dr Low was also of the opinion that the respondent was unemployable but did not think he was retrainable to any sort of work. In his oral evidence he assessed impairment at 10% under Schedule 5.2 as at September 1997. He said the back condition was stable.

23. In the course of cross-examination Dr Low said the respondent could do light work for 30 hours per week if such a job could be found. He also said that the respondent was not employable in the real world. While he would not object to the applicant doing a rehabilitation program he was pessimistic as to the possibility of obtaining employment. In that regard Dr Low noted that the program undertaken by the respondent at Belmont Hospital had not been a success. He thought everything that could be done for the respondent had been done.

24. In the light of the evidence I am satisfied that the respondent has "significant cervical and lumbar spinal pathology" (T41) making him permanently unfit for heavy physical labour. I am not satisfied, on the evidence, that he is suffering any significant loss of range of movement so as to justify an impairment rating under Table 5 of Schedule 1B. I agree with Dr Harding (T35).

25. Dr Prado assessed an impairment rating of 10 under Table 6 for chronic pain in any joint or combination of joints. This assessment might be thought to be generous in the light of the medical evidence but I have no reason to not accept Dr Prado's assessment.

26. As to the gastritis I am not satisfied, on the material before me, that this condition has been fully investigated, treated and stabilised. Nor am I satisfied that the applicant suffers any functional incapacity in regard to this condition which does not seem to be a permanent condition. In so far as Dr Sheppard assigns an impairment rating of 10 and thereby infers that it is a permanent I do not accept the impairment rating by Dr Sheppard.

27. In relation to s 94(1)(c) I have not had the benefit of evidence from the respondent so I have not been able to make my own assessment as to whether, on an objective basis, the respondent has a continuing inability to work.

28. The medical evidence establishes to my satisfaction that the respondent has a continuing inability to do heavy labouring work. There is however medical opinion (Dr Watson) and evidence in the T documents that the respondent does have an ability to do domestic duties in a high rise house. Dr White and Dr Low assessed an ability to do light work which is consistent with a person doing daily domestic duties.

29. Being satisfied that the respondent does not have a continuing inability to work, as defined, I am satisfied that the decision of the Social Security Appeals Tribunal was not correct and should therefore be set aside.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)

Signed: F Burton

Associate

Date/s of Hearing 23 November 1998

Date of Decision 16 August 1999

Advocate for the Applicant Mrs Guthrie

Counsel for the Respondent Mr Lafferty

Solicitor for the Respondent Suthers & Taylor