Lawrence and Secretary, Department of Family and Community Services [2000] AATA 112 (11 February 2000)

Last Updated: 17 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 112

ADMINISTRATIVE APPEALS TRIBUNAL )

) NoV1999/238

GENERAL ADMINISTRATIVE DIVISION )

Re GARRY LAWRENCE

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr J. Handley. Senior Member

Date 11 February 2000

Place Melbourne

Decision The decision under review is affirmed.

........Sgd. Mr J. Handley...........

Senior Member

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension - back, neck and left elbow injuries - impairment of 20 points - continuing inability to work - decision affirmed.

Social Security Act 1991 s94

REASONS FOR DECISION

11 February 2000 Mr J. Handley. Senior Member

1. The applicant applies to review a decision of the Social Security Appeals Tribunal made on 22 January 1999 affirming a decision previously made by an Authorised Review Officer that he was not qualified to receive a disability support pension ("DSP").

2. The hearing of the application was convened in Morwell on 25 January 2000. The applicant appeared unrepresented. Mr Baker appeared for the respondent. The applicant gave evidence and relied on a number of medical reports which were received into evidence. Those reports will be referred to later in these reasons.

Garry Lawrence

3. Mr Lawrence is presently 44 years of age, having been born on 17 November 1955. He last worked approximately 14 months ago when employed by the Gosford Municipal Council in New South Wales. He has subsequently been in receipt of New Start Allowance from the respondent. He says he has not been referred for any employment by Centrelink and the local Centrelink office is aware that he is applying for DSP. He said his reason for applying for a DSP was "because it will give my back a rest". Principally Mr Lawrence claims DSP because he said he was unable to work by reason of back, neck and left elbow injuries. He is left hand dominant.

4. Mr Lawrence complained of a "pins and needles" sensation in his left arm between his bicep and his upper wrist. He says any activity involving squeezing, gripping, grabbing or holding produces increased symptoms. He said, however, that his arm was improving in function and symptoms were reducing. He has had acupuncture treatment, being a total of eight sessions over the last sixteen weeks.

5. Mr Lawrence said that his neck aches daily and he suffers from migraines and headache. He takes painkillers regularly and said that the painkillers allow his neck to "loosen-up", however he still has residual neck pain. He is able to move his head from side to side to approximately 45 degrees.

6. Mr Lawrence also consumes prescribed painkilling medication for his back pain. He is able to bend only to the level of being able to touch his knees and does not have referred pain into his buttocks or his legs. He said he is able to sit and stand but for no more than ten minutes on each occasion. He said that he is able to walk, but requires rest breaks. Mr Lawrence also said that he is able to drive a motor car but for no more than 30 minutes without having to alight to stretch and bend.

7. With respect to his ability to work Mr Lawrence said that he was employed by the Gosford Council as a labourer and truck driver. He described the work as heavy. He was educated to Form Four at school and has thereafter performed manual labouring type employment. He did not believe he was capable of undertaking light work because of constant aching and pain, although he acknowledged that he could consume pain killing medication. Whilst he acknowledged that his arm was improving, he said that his back and neck has not improved in function in the fourteen months that he has been incapacitated except that when he consumes painkillers, his symptoms are relieved.

8. Mr Lawrence said he travelled to Gosford because there was work available. He was born in Traralgon and said that he was prepared to travel for work if he could secure it. He presently lives in shared accommodation. He has not discussed with the respondent the opportunity for retraining, rehabilitation or obtaining work experience. He also said that these opportunities have not been made available to him.

9. On a day to day basis he walks and watches television. He does not have any hobbies. He is able to cook, clean and maintain himself and the house in which he lives.

Medical Evidence

10. Dr Iain Nicolson examined Mr Lawrence on 18 August 1999 at his practice in Sale at the request of Mr Lawrence's former solicitors. In his report of 23 August 1999 Dr Nicolson said that the applicant's elbow was tender and had limitation of flexion by 20 degrees. He diagnosed epicondylitis. He assessed a 5% impairment under Table 3 of the Tables appended to the Social Security Act 1991 ("the Act"). Dr Nicolson assessed a loss of movement of the applicant's neck of greater than 25% but less than 50%. He assessed a 5% impairment for the neck also under the Tables.

11. With respect to the applicant's lower back injury, Dr Nicolson noted impairments of flexion extension, lateral flexion and rotation. Having regard to restrictions upon straight leg raising and loss of strength in both legs he assessed Mr Lawrence at 20 impairment points under Table 5.2.

12. Dr Nicolson assessed total impairment under the Tables at 28%.

13. With respect to the applicant's ability for employment Dr Nicolson said that Mr Lawrence did have a continuing inability to work because of the impairment and that the impairment would prevent him from undertaking work in the next two years. He also assessed the impairment as preventing the applicant from undertaking educational, vocational or job training for the next two years.

14. The applicant, on the day of hearing, filed a report of Dr Tom Jablonski, his General Practitioner, dated 25 January 2000. Dr Jablonski confirmed that he had been administering acupuncture to Mr Lawrence and said that whilst acupuncture had provided some short term pain reduction, it had not "substantially altered the underlying problem".

15. He found that the applicant's low back pain had "persisted despite treatment with medication" and when he compared the results of an examination in 1998, he said there had been no improvement and found that "lateral flexion was reduced".

16. Dr Jablonski said that the tables appended to the Act describing restrictions and impairments were not used by him on a day to day basis, however, he assessed a 25-50% loss of function of the "lumbo-sacral back".

17. He concluded-

"The prognosis is for some further improvement but the strength of the elbow for future physical work is uncertain."

18. Within the documents lodged by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 ("T-documents") are a number of medical reports from doctors who have examined the applicant at the request of the respondent and also who have provided reports at the applicant's request. Those reports have been completed by Dr Jablonski, Dr Paul and Dr Frei. Those reports have been considered in reaching the conclusions that follow.

The Legislation

19. The qualification for DSP is found at s.94(1) of the Act, which provides-

"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) ...; and

(d) the person has turned 16; and

(e) the person either:

(i) is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii) ..."

20. The respondent takes issue with whether the applicant has an impairment of 20 points or more under the Impairment Tables (s.94(1)(b) of the Act) and whether he has a continuing ability to work (s.94(1)(c)(i) of the Act). The respondent concedes that the applicant does have a physical impairment, that he is greater than 16 years of age, and that he is an Australian resident.

21. The impairment of an applicant for DSP is assessed under Tables found at Schedule 1B of the Act.

22. The meaning of the words "a continuing inability to work", is found at s.94(2) of the Act which says-

"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."

Conclusion and Reasons for Decision

23. The introductory comments to Schedule 1B of the Act outlining the Impairment Tables give guidance to the manner in which the Tables should be approached and the criteria for assessing impairment.

24. In the present case there is a divergence of opinion between the doctors as to the extent of the applicant's impairment. On the one hand Dr Nicolson assesses an impairment greater than 20% whereas Dr Frei assessed an impairment in October 1998 of 15%, being 10% with respect to the back injury and 5% for the neck injury. (Dr Frei did not assess any impairment in relation to the applicant's arm injury and found that it was continuing to improve).

25. Dr Paul provided a medical certificate to the applicant when he made his application for DSP. It does not appear that he has considered the Impairment Tables, however, he assessed the applicant as suffering from a condition that was "long term" and "deteriorating" (T-4 p.18). Dr Paul also considered that the applicant would be unlikely to return to his "usual job" within two years or any other full time work within two years. He also found that the applicant would not benefit from vocational training or rehabilitation.

26. Having observed the applicant give his evidence and having read the reports filed, I cannot be satisfied that the applicant qualifies for DSP.

27. The introductory notes to the Guide at Schedule 1B of the Act provide that an impairment rating is only to be given once a condition has been documented, diagnosed, investigated, treated and stabilised. I cannot be satisfied from the evidence heard and read that the conditions suffered by the applicant, whilst he remains under active treatment, are stable. Additionally, at paragraph 5 of the introductory notes, it is recorded that the "condition" must be "considered to be permanent". I cannot be satisfied, having regard to the absence of a finding that the condition is stable, that the conditions can be regarded as being permanent. It follows that the applicant cannot satisfy s.94(1)(b) of the Act.

28. In the alternative I could not be satisfied from the evidence heard that the applicant could establish that he has a "continuing inability to work" within the meaning of the legislation. I cannot be satisfied from the evidence read and having heard the applicant and observed him at the hearing that any impairment is sufficient to prevent him from undertaking any work within the next two years. Additionally - as is required by s.94(2) of the Act - I cannot be satisfied that the impairment is sufficient to prevent Mr Lawrence from undertaking educational or vocational training or on the job training or that such training is unlikely to enable him to undertake work within the next two years.

29. I am satisfied, despite the extent of any present impairment that the applicant, being relatively young, articulate, healthy and apparently motivated, would benefit from rehabilitation or retraining either in an educational or vocational setting.

30. Section 94(3) of the Act prohibits consideration of the availability of educational or vocational training or on-the-job training or the availability of an applicant to a locally accessible labour market. I would, in the circumstances, recommend that either the applicant take advantage of any available opportunities to be retrained or obtain education or rehabilitation such as to permit his return to work. Additionally, or in the alternative, I would urge the respondent to encourage the applicant or make available to him opportunities for retraining or rehabilitation.

31. In all of the circumstances but for reasons differently expressed by the Social Security Appeals Tribunal I have decided that the decision under review should be affirmed.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley. Senior Member

Signed: .........Carolyn Irons ......................................

Secretary

Date/s of Hearing 25 January 2000

Date of Decision 11 February 2000

Counsel for the Applicant unrepresented

Solicitor for the Applicant

Counsel for the Respondent Mr T. Baker, Departmental Representative

Solicitor for the Respondent