Radnedge and Secretary, Department of Family and Community Services [1999] AATA 989 (21 December 1999)

Last Updated: 7 January 2000

DECISION AND REASONS FOR DECISION [1999] AATA 989

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1679

GENERAL ADMINISTRATIVE DIVISION )

Re LEONARD RADNEDGE

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr J D Campbell

Date 21 December 1999

Place Sydney

Decision The decision under review is affirmed.

[Sgd] Dr J D Campbell

Member

CATCHWORDS

Disability Support Pension - degenerative lumbosacral disc disease - physical impairment - assessment

Social Security Act 1991, section 94, Schedule 1B

REASONS FOR DECISION

21 December 1999 Dr J D Campbell

Member

1. Mr Leonard Radnedge ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal dated 7 October 1998. This decision affirmed the decision of an authorised review officer of Centrelink dated 29 July 1998 which, in turn, had affirmed the decision of an authorised delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 7 July 1998 to cancel the Applicant's payment of a disability support pension.

2. A hearing was held before the Administrative Appeals Tribunal ("the Tribunal") at Wauchope on 26 October 1999. The Applicant was unrepresented and provided oral evidence. The Respondent was represented by Mr G. Lozynsky.

3. The Tribunal had before it the following written material:

Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1-T26, pp1-83

Medical Report of Dr I D Farey dated 1/6/1999 Exhibit A1

Applicant's letter dated 9/7/1999 Exhibit A2

Rehabilitation Consultant's report (Ms I Nissen) dated 25/6/1999 Exhibit A3

Unsigned Statement by Ms T Davey dated 26/10/1999 Exhibit A4

Summary of Applicant's Medical History (updated) Exhibit A5

Complete Medical Report of Dr G A Simpson dated 29/4/1999 Exhibit A6

Respondent's Statement of Facts and Contentions dated 6/7/1999 Exhibit R1

Legislation

4. The relevant legislation is the Social Security Act 1991 ("the Act"), in particular subsections 94(1)(2)(3)(5)(6) and Schedule 1B - Tables for the assessment of work-related impairment for disability support pension ("the Impairment Tables").

Issues

5. The relevant issues between the parties are:

(a) Whether the Applicant has

(i) a physical impairment; and

(ii) an impairment assessed at 20 or more points under the Impairment Tables; and

(iii) a continuing inability to work on account of the impairment over the next two years; and

(iv) either the impairment itself is sufficient to prevent the Applicant from undertaking vocational, educational or on-the-job training within the next two years; or

(v) that while the impairment does not prevent the Applicant from undertaking such vocational, educational or on-the-job training - such training is unlikely (because of the impairment) to enable the Applicant to do any work within the next two years.

Evidence

Applicant

6. The Applicant told the Tribunal that he was born in Cootamundra in 1947, leaving school half way through year four of high school to work and complete a technical course in carpentry and joinery. The Applicant stated that he later attempted, but did not complete, a clerk of works course and from 1963 he worked in a series of firms involved in the building industry. The Applicant informed the Tribunal that he had a motor vehicle accident in 1984, a work-related injury to his back while working in Brisbane in March 1985 which resulted in 7 months off duty and a return to work in a more supervisory role, and a further work-related back injury when working as a powder coater for an airconditioning firm in the Gosford area in August 1986, resulting in hospitalisation and disc surgery in November 1986. Since that time the Applicant stated that he has not been involved in full-time work.

7. The Applicant informed the Tribunal that he and his father moved into the Wauchope area in 1989-90, when his father purchased a cattle property with two houses, the Applicant living in one and his father in another. The Applicant stated that he cares for his father as much as he can, keeping an eye on his well-being and driving him to town as required for shopping and medical appointments.

8. The Applicant informed the Tribunal that he lives rent free on the property and undertakes range of activities that include:

* some light tractor work for 10-15 minutes at a time;

* assistance in yarding the cattle (60 breeders) twice a year;

* moving the cattle between paddocks; and

* minor/temporary fence repairs.

9. In relation to his particular low back disability the Applicant, in noting that he was on invalidity pension from 1987 until his disability support pension was discontinued in July 1998, told the Tribunal that his low back pain is present all the time and that it is something that he has learnt to live with. The Applicant described the pain as being in the low back (mainly central) with intermittent shooting pain into his right leg causing some tingling and numbness in his right foot, and a further dull ache extending into his left buttock as far as the left knee. The Applicant indicated that he has good days and bad days, that bending and many of the activities he undertakes causes an increased level of pain, but nevertheless he is "on the go" most of the day and is able to forecast rain by increasing discomfort in his back some two days prior to the event.

10. The Applicant told the Tribunal that he undertakes some household activities such as laundry, but cannot sweep floors or vacuum. He stated that he has no trouble with walking in his boots, can drive a car for 20-30 minutes, experiences pain when climbing stairs and experiences some cramps when sleeping at night. The Applicant informed the Tribunal that he took the following medication:

* Brufen 1 tablet three times a day;

* Panamax 8 tablets a day;

* Panadeine Forte 2 tablets twice a week; and

* Zocor for high cholesterol.

Further, the Applicant indicated that he uses a tens machine once a week to once a month, received physiotherapy and undertakes the necessary exercises prescribed.

11. The Applicant informed the Tribunal that he is a non-smoker and a social drinker. He lives with his partner in a cottage on his father's property. In 1994 he, with two others, became involved in a Harley Davidson touring activity in Port Macquarie that involved taking people by appointment for two days a week for ten minute excursions. This now involves him in activity for about one hour per week and less when he does not feel he is able to cope. In response to questions asked in cross-examination, the Applicant indicated that he sleeps on his back, gets out of bed two to three times a night, makes his own bed and takes one to one and a half hours to get mobile in the morning, having risen at about 0630 hours.

Medical Evidence

Dr Bernotas

12. Dr Bernotas examined the Applicant on 25 November 1997, at which time he noted that the Applicant was still able to ride his motor bike, could walk on flat ground, has difficulty climbing stairs, can sit for less than half an hour, can drive for half an hour to an hour, and about twice a month his legs give way, after which it takes him about ten minutes to resume an upright position. Dr Bernotas also noted a history of 10-15 "blackouts" in the Applicant's lifetime.

13. At clinical examination (T12, p40) Dr Bernotas states:

"Grossly overexaggerates his limitations

eg. Straight leg raise of approximately 20^o is inconsistent with his observed movements

eg acting out - when asked to bend to touch toes he only just began when he gave the impression his legs gave way ..."

14. In his medical report on Spinal Conditions, Dr Bernotas stated that there were no symptoms of referred pain or nerve root compression and that the Applicant had loss of one quarter of normal range of movement of thoracolumbar spine and that his degree of straight leg raising was inconsistent with observed flexibility (T12, p41).

15. As a consequence of his examination, Dr Bernotas considered the Applicant to have back pain in the form of pain behaviour in excess of known pathology and assessed this as a ten per cent impairment under Table 7 of the pre 1 April 1998 Impairment Tables. Further, Dr Bernotas considered the condition to be static, and that the Applicant could undertake a range of light and/or moderate skilled, semi-skilled or lesser skilled jobs. He found that the Applicant is not fit for his previous occupation of builder and that his impairment would not prevent or affect his participation in vocational, educational or on-the-job training.

Dr Hain

16. In a treating doctor's report dated 12 June 1998 Dr Hain details that the Applciant has lumbar spondylosis, that the condition is long term, but fluctuates; that the Applicant is not likely to return to either his usual job or any other job on a full-time basis for more than two years, but is able to undertake part-time work and would not benefit from vocational training or rehabilitation (T14).

Dr Campbell

17. In a further treating doctor's report dated 12 March 1999, Dr Campbell describes the Applicant as having two conditions:

* low back pain - old disc degeneration with radiation both legs; and

* headaches and inability to concentrate. (Exhibit R1)

Dr Campbell considered the condition to be long term and deteriorating. He indicated that the Applicant works part-time (Harley Davidson bike tours), that he is not likely to return to his normal job for more than two years and that the Applicant is likely to return to full-time or part-time work within 12-24 months.

Dr Simpson

18. Dr Simpson examined the Applicant on 29 April 1999, and in his report (Exhibit A6), Dr Simpson nominated a history of the Applicant's low back pain becoming worse over the last twelve months, with pain radiating to the left buttock and posterior thigh, with occasional radiation into the right thigh. Dr Simpson notes that symptoms are aggravated by lifting, bending and driving a tractor. While walking on flat terrain does not appear to cause problems, walking on rough or uneven surfaces tends to aggravate as does climbing steps or ladders.

19. Dr Simpson details that at examination, the Applicant had restriction of movements of the lumbar sacral spine, no evidence of neurological deficit in the lower limbs, and tenderness to deep palpation over the lower end of the lumbar scar. Some patchy areas of hypoaesthesia were noted in the right limb, with straight leg raising limited to 45 degrees on either side. Dr Simpson noted that the Applicant walked with a slight limp and that he appeared to experience discomfort getting on and off the examination couch.

20. Dr Simpson also noted that an x-ray of the lumbar spine dated 7 January 1999 and a CT Scan of the lumbar spine dated 18 January 1999, showed disc degeneration of L5-S1, marked facet joint osteoarthopathy, broad based annular protrusion of the L4-5 L5-S1 disc, but with no marked indentation of the thecal sac or nerve roots. There is no evidence of spinal canal stenosis or nerve root compression.

21. In a medical report on Spinal Conditions, Dr Simpson indicated that there was loss of one quarter normal range of movement of thoracolumbar spine; that there was a question as to whether left sciatic pain, worse on bending, lifting or with excessive activity, could be said to be present; that there was a stiffness of the lumbosacral spine and that there was patchy hypoaesthesia in the right lower limb.

22. In a medical report on lower limb function, Dr Simpson comments that the Applicant has pain intermittently, which is occasionally severe and disabling, has good days, walks without difficulty on flat surfaces, but has discomfort with uneven surfaces, steps and ladders. Dr Simpson also noted that pain does not consistently restrict walking to a definable distance.

23. As a consequence of his examination, Dr Simpson opined that the Applicant was:

(i) unfit for his normal work now and within the next 24 months; and

(ii) unfit for work in any of the listed categories, for at least 30 hours per week now, but possibly fit within the next 24 months; and

(iii) unfit for work in any of the listed categories for at least eight hours per week now but likely to become fit to undertake such work within the next twelve months in the category of light to moderate skilled, semi-skilled or lesser skilled work.

Dr Beng Lim

24. In a paper assessment undertaken as a consequence of Dr Simpson's and Dr Campbell's reports, Dr Beng Lim notes the Applicant's impairments as:

Loss of ¼ range movement with sciatica and hypoaesthesia lower limb, which equates to a 10 point assessment under table 5.2. of the Impairment Tables (post 1 April 1998).

25. Dr Beng Lim considers that the Applicant:

(i) is now fit for work for 30 hours per week, undertaking light work eg service provider, theatre ticket seller, clerical; and

(ii) impairments do not prevent him from undertaking vocational rehabilitation or training; and

(iii) does require such assistance as referred to in (ii) to enable him to return to work. (Exhibit R1)

Dr Ian Farey

26. Dr Farey examined the Applicant on 18 February 1999, and in a report to Legal Aid dated 1 June 1999 (Exhibit A1) Dr Farey, a consultant orthopaedic surgeon, stated that the Applicant suffered from degenerative disc disease at L4/5 and L5/S1. Dr Farey described the Applicant's major complaints as low back pain, localised to the lumbro-sacral junction and intermittent somatic pain in the lower limbs. Dr Farey stated that the Applicant has an excellent range of motion in the lumbar spine, but low back pain is experienced at the limit of motion. Further, Dr Farey states that there is no evidence of wasting or weakness in the lower limb musculature. Dr Farey noted global hypoaesthesia in the right lower limb, which in his opinion is a manifestation of abnormal illness behaviour.

27. Dr Farey considered that the Applicant will continue to experience intermittent low back pain as a result of his degenerative disc disease; that the pain may limit his ability to sit for long periods and that he should not be involved in activities which involve heavy lifting or repeated bending.

28. Dr Farey considered the Applicant to have an impairment of 15 percent (pre 1 April 1988 impairment tables), comprising a five percent impairment assessment under table 6 and a ten percent impairment rating under table 5.2. Further, Dr Farey believed the Applicant is capable of gainful employment of a sedentary nature, and that he could undertake education or vocational training.

Ms Heather Tchan

29. Ms Tchan assessed the Applicant's functional limitations on 23 June 1999. In a report dated 24 June 1999 Ms Tchan, an occupational therapist, concluded:

"- Mr Radnedge cannot work an 8 hour day for a five day week.

* Mr Radnedge would find difficulty obtaining a position, which would allow him the flexibility for very frequent postural changes, lack of concentration due to pain, and the occasional 'drop to the floor' due to pain experienced at sudden twisting movements.

* Mr Radnedge has no formal training for a sedentary desk position and would have difficulty sitting and concentrating for long enough to retrain.

* He is unable to participate in a position that involves forward flexion in either sitting orstanding for more than a few minutes" (Exhibit A3)

30. Ms Nissen, a Senior Rehabilitation Consultant at CRS Australia, in a report dated 25 June 1999 concluded that as a result of the Applicant's functional capacity evaluation on 23 June 1999:

"... it has been determined that substantial gain is not likely to be achieved by you from a CRS Australia program." (Exhibit A3)

Ms Toni Davey

31. In an unsigned statement dated 26 October 1999 (Exhibit A4) Ms Toni Davey, the Applicant's partner, confirmed that the routine activities of farm work, as described by the Applicant, cause him a lot of pain. Further she has observed on three occasions over 14 months that the Applicant has dropped straight down, with what she assumed to be a painful spasm, which gradually subsides.

Submissions

32. The Applicant told the Tribunal that he liked to be on the move, enjoyed fixing motor bikes and machinery, and would enjoy an opportunity to work. Further, the Applicant told the Tribunal of the pain and difficulties that he has with his back, and despite the limitations that his back creates, he is able to do a variety of activities on the farm and in everyday life - albeit with pain and/or restrictions. It was the Applicant's submission that the CRS Australia report of June 1999 confirms the difficulties he faces when attempting to do work on a continuous basis, and that despite his motivation and his ability to operate the Harley Davidson tour business on a minimalist basis, he essentially has an inability to work.

33. Further, in relation to his "heart problem", which has comprised the occasional blackout in the past, he is yet to obtain a report from a cardiologist on this issue.

34. The Respondent in submissions to the Tribunal stated that the weight of the medical evidence, coupled with the history of the Applicant's work activities, clearly supports a finding that assessment of the low back impairment and other impairments is less than 20 points. Further, while noting the contents of the CRS Report dated 25 June 1999, the Respondent, again relying upon the medical opinions of Drs Campbell, Simpson, Beng Lim and Farey, submits that the Applicant at best is able to undertake work of a sedentary or light duty nature and at worst will be able to perform such work within two years, with preferably some assistance in the form of education and/or vocational and/or on-the-job training.

35. In either situation it is the Respondent's contention that the Applicant does not satisfy the criteria nominated in the Act for the payment of a disability support pension.

Discussion and Findings

36. In preliminary comment the Tribunal notes and commends the manner in which both parties approached this matter. The Tribunal considered the Applicant to be a frank and reliable witness in that he shared his desires, motivations and frustrations openly with the Tribunal. Further, the Tribunal found the Respondent's advocate to be helpful and cooperative during the hearing.

37. The relevant legislation relating to this matter is section 94 of the Act, the relevant subsections being:

"94 Qualification for disability support pension

94(1) 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;

(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

...

94(2) 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) 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.

94(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.

94(5) In this section:

educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.

on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.

work means work:

(a) that is for at least 30 hours per week at award wages or above; and

(b) that exists in Australia, even if not within the person's locally accessible labour market."

38. It is common ground between the parties that the Applicant has degenerative disc disease of the lumbosacral spine, and that this constitutes a physical impairment. The Tribunal concurs and so finds, with the consequence that the Applicant satisfies subsection 94(1)(a) of the Act.

39. In considering the Applicant's impairments, the Tribunal notes that the Applicant has complained of heart trouble with a few episodes of blackouts in the past and treatment being prescribed for high cholesterol. The Tribunal, in the absence of any specific medical evidence on heart disease, is unable to make any finding on this issue.

40. The Tribunal notes, however, that there is a long and detailed history of the Applicant's low back impairment, and further that there is detailed medical opinion and evidence on this issue. The Tribunal in considering the radiological evidence, the medical examinations and opinions of Drs Campbell, Simpson, Beng Lim and Farey and the medical history of his low back impairment as described by the Applicant, concludes that there is a significant degree of agreement between the parties as to the diagnosis and findings on examination, which permits the Tribunal to make the following findings of fact:

(i) The Applicant has degenerative disc disease of L4/5 and L5/S1. (Radiological evidence and medical opinions of Drs Campbell, Simpson, Beng Lim and Farey).

(ii) The Applicant has intermittent radiation of pain down the right leg with no loss of power or strength in the lower limbs, but with unexplainable areas of hypoaesthesia in the right lower limb. (All doctors record the former symptom, whilst Drs Bernotas, Simpson and Farey recorded the latter symptom, with Dr Bernotas believing there exists exaggerated responses by the Applicant and Dr Farey concluding such symptomology was evidence of abnormal illness behaviour.)

(iii) The Applicant has a dull ache present in his lower back with varying intensity depending on weather and/or activity and this dull ache extends to his left buttock periodically. (Applicant's History, Medical Reports of Drs Simpson, Campbell and Farey.)

(iv) The Applicant has a loss of about one quarter of normal range of movement of thoracolumbar spine. (Drs Bernotas, Simpson and Beng Lim report such a finding while Dr Farey's comments are, in the Tribunal's opinion, difficult to quantify.)

(v) The Applicant is unable to return to work now or in the future (that is, within the next two years) in his previous occupation as a builder, nor is or will he be able to return to any form of work requiring repetitive heavy lifting, bending or activities involving a static posture. (All medical opinions concur.)

41. In considering the appropriate assessment of the low back pain with intermittent radiation to the right leg and extension of the dull ache in the back to the left buttock, the Tribunal notes that the appropriate assessment tables are the post 1 April 1998 Impairment Tables, the discontinuance of the Applicant's disability support pension having occurred after that date. The Tribunal, having considered the earlier findings of fact, and further both the Applicant's history and the various medical opinions, concludes that the appropriate table for consideration is table 5.2:

"Table 5.2.

Rating Criteria

NIL Normal or nearly normal range of movement.

FIVE Loss of one-quarter of normal range of movement.

TEN 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.

or

Loss of half of normal range of movement.

TWENTY Loss of half of normal range of movement as well as back pain or referred pain."

42. It is the Tribunal's finding that the Applicant has a 10 point assessment under table 5.2. in view of his low back pain, intermittent referred pain, loss of a quarter of normal range of movement, with many physical activities, with standing beyond 15-20 minutes or driving beyond nominated times.

43. The Tribunal did consider whether the Applicant suffered any assessable impairment under function of the lower limbs (table 4), and concluded in the absence of any demonstrable loss of function of the lower limbs as nominated by any of the medical practitioners in this matter, that an assessment under this table was not appropriate.

44. In noting Dr Farey's assessment was undertaken under the pre 1 April 1998 Impairment Tables, the Tribunal finds that the Applicant has an impairment rating of 10 points and concludes that he does not satisfy subsection 94(1)(b) of the Act.

45. In completing the issues raised in this matter, the Tribunal notes the variance between the medical practitioners and the occupational therapists as regards the Applicant's ability to return to light or sedentary work. Dr Bernotas, Dr Beng Lim and Dr Farey are of the opinion that the Applicant could return to sedentary or light work and that such a return would be assisted by educational or vocational training. Drs Simpson and Campbell are more circumspect, and opine that at best the Applicant could only possibly return to such light or sedentary work within two years, while Dr Hain believes that the Applicant could only return to part-time work within two years and that he would not benefit from vocational training or rehabilitation.

46. The work rehabilitation consultants are specific in their recommendations and the Tribunal acknowledges their area of expertise, when they recommend that "substantial gain is not likely to be achieved by you from a CRS Australia program".

47. The Tribunal, while noting the wide variety of opinion as to the ability of the Applicant to either work or return to work, concludes that in the light of his stated back impairment, the current assessment of this impairment by a consultant orthopaedic surgeon (Dr Farey), the suggestion of unusual illness behaviour by Drs Bernotas and Farey, and the assessments of an ability to return to light skilled, semi-skilled or less skilled work of a sedentary nature by Drs Bernotas, Beng Lim and Farey that the Applicant does not have a continuing inability to work. It is the Tribunal's conclusion in this matter that subsection 94(2)(a) is not satisfied.

48. In considering the report from CRS Australia, the Tribunal acknowledges that educational or vocational training may not be of benefit to the Applicant, by virtue of his impairment, but nevertheless on-the-job training may assist if an appropriate type of employment can be secured. In this area of consideration, the Tribunal declines to make any finding of fact, such a position arising from a requirement to further understand the nature of any suggested abnormal illness behaviour that has been found to be present by some of the examining medical practitioners.

49. In summary, the Tribunal finds that:

A. The Applicant has satisfied subsection 94(1)(a) of the Act.

B. The Applicant has failed to satisfy subsections 94(1(b) and (c) of the Act, in that the Applicant has an impairment rating assessed at 10 points and does not have a continuing inability to work.

C. The Applicant does not qualify for disability support pension.

D. The decision under review is affirmed.

I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell

Signed: .....................................................................................

Associate

Date/s of Hearing 26 October 1999

Date of Decision 21 December 1999

Solicitor for Applicant Self-represented

Advocate for the Respondent Mr G Lozynsky