Walker; Department of Family and Community Services [2000] AATA 969 (6 November 2000)

Last Updated: 18 December 2000

DECISION AND REASONS FOR DECISION [2000] AATA 969

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/1020

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And DAVID WALKER

Respondent

DECISION

Tribunal Dr E K Christie, Member

Date 6 November 2000

Place Brisbane

Decision The decision under review is affirmed. This means that David Walker is qualified for disability support pension.

............(Signed)..................................

DR E K CHRISTIE

MEMBER

CATCHWORDS

SOCIAL SECURITY - eligibility for Disability Support Pension - whether impairment is 20 points or more under the impairment tables - whether continuing inability to work

Social Security Act 1991: s.94

REASONS FOR DECISION

6 November 2000 Dr E K Christie, Member

1. This is an application by the Department of Family and Community Services ("the Department") to review a decision made by the Social Security Appeals Tribunal ("the "SSAT") on 10 August 1997. The SSAT set aside the decision of an Authorised Review Officer which had rejected Mr. Walker's claim for Disability Support Pension ("DSP"). Mr. Walker's claim for DSP was lodged on 17 August 1998 (see T24 Folio 89).

2. The reasons for the applicant making this application for a review of the SSAT decision were:

"The SSAT erred in determining that Mr Walker was qualified for a Disability Support Pension by finding that Mr Walker had at least 20 points under the Impairment Tables and a continuing inability to work." (T1 Folio 1).

3. At the hearing, the applicant was represented by Mr. P. Kanowski, a Departmental Advocate. Mr. Walker represented himself, with some assistance from a Mr. Michael Coleman. The Department called Dr. Martin Devereaux, a consultant physician in rheumatic diseases to give evidence on its behalf. Mr. Walker called Mr. Michael Coleman, previously his nursing supervisor and Dr. Michael Petavrakis (his treating doctor) to give evidence on his behalf.

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).

5. During the hearing it became evident that the inquisitorial powers of the Tribunal should be applied to meet the requirements for procedural fairness and better-informed decision making. Dr. Petavrakis had given his evidence by telephone and had not been given a copy of the DSP Impairment Tables. In contrast, Dr. Devereaux, who had been called by the applicant, had been given a copy of these Tables and gave oral evidence on these issues. Accordingly, supplementary submissions were sought from Dr. Petavrakis on the assessment of Mr.  Walker's impairment, using the appropriate Table(s) for conditions which had been fully documented and diagnosed and which had been investigated, treated and stabilised.

6. Dr. Petavrakis' supplementary submissions were received on 4 August 2000. Submissions in response were received from Mr. Kanowski on 19 October 2000.

ISSUES BEFORE THE TRIBUNAL

7. Based on the Department's reasons for a review of the SSAT decision, the issues to be decided by the Tribunal were whether Mr. Walker had at least 20 points under the Impairment Tables and whether he had a continuing inability to work.

FACTS

8. The SSAT made the following findings of fact:

"6.1 David Walker has rheumatoid arthritis effecting multiple joints.

6.2 He has pain and loss of function in both wrists, elbows and shoulders. Pain in the wrists is chronic and entrenched with intermittent pain in elbows and shoulders.

6.3 He has pain and swelling of both knees exacerbated by weight bearing. Hip pain of more recent onset which limits his capacity to sit for long periods."

(T2 Folio 8)

EVIDENCE OF MICHAEL COLEMAN

9. Mr. Coleman was a registered nurse and supervisor of the Urology Department at Princess Alexandra Hospital. Mr. Walker had worked, under his supervision, in his Department from 1990 to 1997 as a Urology Technician (formerly termed a "surgical dresser"). This job required Mr. Walker to have manual dexterity, an ability to keep on the move for eight hours working with many patients - as well as medical knowledge. At all times, he had found Mr. Walker to be a committed, independent worker, his work being characterised by his honesty and integrity.

10. However, he had observed that in 1996/97 Mr. Walker had great difficulty in fulfilling this role. Mr. Coleman said that because of Mr. Walker's knee and wrist problems, at times he was "virtually unable to move". Moreover, at the end of a shift Mr. Walker could not stand up and had to remain for 1½ hours to recover.

11. Mr. Coleman said that in 1998 it was accepted that Mr. Walker could no longer carry out the practical tasks of his job as a Urology Technician and so there was no option other than to cease his employment.

12. Under cross-examination Mr. Coleman said that his approach in dealing with Mr. Walker's condition was to change his tasks depending on his condition and pain. Whilst Mr. Walker could work for two to five hours, at some stage he would have to stop the task he had been given because of his pain and limitations in joint movement. On a day to day basis it had reached the stage where he was "unable to predict what will happen."

EVIDENCE OF DR. MARTIN DEVEREAUX

13. Dr. Devereaux had seen Mr. Walker as a patient, at two to three monthly intervals, from July 1997. He has seen Mr. Walker primarily for blood test monitoring of the medication used for treating his sciatic arthritis. Dr. Devereaux said that Mr. Walker's pain had been a 'fluctuating problem'. In addition, he stated that the inflammatory component of Mr. Walker's disease had improved - probably because of the disease suppressing drug used to treat him.

14. Dr. Devereaux was referred to the Impairment Tables that had been faxed to him by the Department. In determining impairment points using Tables 3 and 4 of the Impairment Tables he had felt that Mr. Walker was "quite mobile and able to walk comfortably without any major problem"; and that "the upper limb one is perhaps a little more difficult". Accordingly, he had assigned the following points under the Impairment Tables:

* 10 points for the dominant [left] wrist (Table 3);

* 5 points for the non-dominant wrist; and (Table 3); and

* Nil rating under Table 4 because Mr. Walker was "quite comfortable walking and climbing up onto the examination couch and sitting and getting up from sitting whenever I've seen him".

15. In terms of Mr. Walker's ability to work it was Dr. Devereaux's opinion that:

* with ongoing therapy, he expected some improvement in Mr. Walker's joint fluctuation so that he would be likely to retrain to any kind of full-time work in six to twelve months. However, this view did not take into account Mr. Walker's "complaints of continual pain" that "I can't define";

* he felt that Mr. Walker could carry out "light duties type jobs" such as a car park attendant and office duties;

* protracted absences from work, because of Mr. Walker's condition, would be expected to be one day or less per month. Dr. Devereaux expressed the view that:

"I'd expect he'd have an occasional flare-up that might make it difficult to get to work, and occasionally a severe flare-up that would prevent him getting to work that day, but I wouldn't consider that to be a significant impediment to him obtaining employment"; and

* it was his view that Mr. Walker would be able "to walk a lot more and stand for a further longer period of time" than Mr. Walker's self assessment of 10 minutes for walking and five minutes for standing (see T2 Folio 5, paragraph 4-8).

16. Finally, Dr. Devereaux expressed the following opinion in terms of Mr. Walker's mobility:

"From my knowledge of his knees and examination of his knees, I can't see any major disability that would affect him going up and down stairs, but certainly he might have trouble with his wrists on gripping rails to support his whole body weight."

And with respect to problems with Mr. Walker's wrists:

"The wrists have been a problem, and I'll accept that at times they have been swollen, but certainly I haven't seen swelling for the last few years in the wrists. Mostly it's secondary degenerative change in the wrists."

17. Dr. Devereaux stated that the medication used by Mr. Walker would not impair his ability to concentrate if given as a "pulse treatment" eg once a week, because the drug was out of the system very quickly. Concentration problems would only last for around 24 hours after taking the medication.

EVIDENCE OF DR. MANUEL PETAVRAKIS

18. Dr. Petavrakis' opinion on Mr. Walker's condition was based on being his treating doctor for several years. He summarised Mr. Walker's condition as one of a background of constant pain and fatigue. In addition, the flare-ups in his joints fluctuated from day to day and week to week. Moreover, it was his opinion that Mr. Walker's rheumatological assessment was only one aspect of his problem.

19. In terms of Mr. Walker's rheumatological assessment, Dr. Petavrakis expressed the following opinion that:

* whilst this condition fluctuated, it was "always there" - but sometimes worse than others. Some joints were affected at different times and other joints affected at other times;

* underlying this condition was the "incredibly rigid stoic personality of Mr. Walker" - a fact missed by medical practitioners. This characteristic he believed caused Mr. Walker to "come to grief" in situations because rather than "whinge and complain" he would "grit his teeth" and bear the pain. Dr. Petavrakis had the opinion that Mr. Walker had a "dysfunctional pain system". That is, by "pushing himself" so rigorously for many years, his body had "become more sensitive to pain"; and

* Mr. Walker was unlikely to be ever well enough to hold down a permanent job.

20. During cross-examination by Mr. Kanowski, Dr. Petavrakis stated that:

* Mr. Walker's condition at the times he was consulted could be such that he would walk in "with hardly a gait disturbance and sit down fairly confidently and report that things weren't too bad". However, at other times he would tell Dr. Petavrakis he was bedridden with pain but did not bother Dr. Petavrakis, because he knew that there was nothing that could be done about it, and so he relied on his medication;

* he had seen Mr. Walker on "numerous occasions" with red, hot swollen joints in various parts of his body and therefore "had no reason to doubt that David [Walker] was legitimate" about his condition;

* it was his opinion that Mr. Walker would be unfit for work for more than 50% of the time;

* he did not accept that Mr. Walker could work in a light occupation because of his fluctuating condition and pain as this would make him an unreliable employee; and

* he believed the proposition that Mr. Walker could be retrained for a job using computers and typewriters and to work at home to be a "bit far-fetched".

21. In terms of Dr. Devereaux's assessment of Mr. Walker's impairment, Dr. Petavrakis stated that, without detracting from this assessment in any way, "Dr. Devereaux was only one of the rheumatologists who had seen Mr. Walker over time and had seen him far fewer times than I [Dr. Petavrakis] have." Moreover, it was his view that Dr. Devereaux had not seen enough of Mr. Walker to recognise the other aspects of his health i.e. "the holistic approach which general practitioners are in a better position to see". For example, he believed Mr. Walker had strong elements of chronic fatigue syndrome and fibromyalgia.

CONTENTIONS AND SUBMISSIONS OF THE PARTIES

22. Mr. Kanowski submitted at the time, Mr. Walker applied for DSP, he was not qualified. He submitted that the time Dr. Devereaux had provided his report (T12, 15 November 1998) was within three months of Mr. Walker's application for DSP. At this time, Dr. Devereaux's opinion was that Mr. Walker's condition had been fully documented, diagnosed, investigated and stabilised; with treatment it was expected to improve.

23. Mr. Kanowski contended that by applying paragraph 5 of Schedule B of the Impairment Tables with respect to Mr. Walker's condition:

"This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years." (T3 Folio 18).

Then Dr. Devereaux's assessment of 15 points impairment would be correct.

24. Mr. Kanowski contended that Dr. Petavrakis' claims relating to Mr. Walker - especially his "dysfunctional pain system", chronic fatigue syndrome and fibromalagia, were outside the Tribunal's review powers. That is, these condition had not been documented and diagnosed in August 1998 and therefore were required to be subject to evaluation by a new claim.

25. In terms of Mr. Walker's continuing inability to work, Mr. Kanowski submitted that:

* It was not in dispute that Mr. Walker could not work in his previous occupation;

* Mr. Walker had a good intellectual capacity and was capable of being retrained; and

* Dr. Petavrakis' opinion that Mr. Walker could not manage a full-time job related to potential absence from work because of chronic fatigue syndrome and fibromalagia.

26. Mr. Kanowski contended that Dr. Devereaux's oral evidence and Dr. Lee's report (T9 Folio 50) indicated that Mr. Walker's condition would not prevent him from working and that he could "manage light sedentary work". Furthermore, Dr. Devereaux's report (T12, 15 November 1998, Folio 59) - which was not before the SSAT, indicated that:

* Mr. Walker's absences from work would be one day or less per month; and

* Mr. Walker could persist at work tasks between 20 to 90 minutes at a time.

27. Mr. Kanowski submitted that the following contentions of the SSAT:

"7.6 In regard to both training and work his fatigue and the amount and type of medication that Mr. Walker takes daily even when 'well' would effect his ability to concentrate and absorb new material". (T2, Folio 9)

could not be supported by the evidence.

28. Finally, Mr. Kanowski submitted that Dr. Petavrakis' responses to Q3 and Q4 in relation to Mr. Walker's Work Ability (T8, Folio 38) indicated that there was "no suggestion of impaired functioning" with respect to him following instructions and communicating with others in the work place.

29. Mr. Coleman, on behalf of Mr. Walker, submitted that Dr. Devereaux's responses in the Treating Doctor's Report (T12, Folio 59) in which he had concluded that Mr. Walker:

* could work at tasks for "20 - 90 minutes at a time"; and

* could travel to and from and move around at work "without difficulty"

were "absolutely amazing".

30. Mr. Coleman concluded that the problem in such an opinion was that it failed to recognise Mr. Walker's condition as a fluctuating, or intermittent one, in which the symptoms did not occur on a day to day basis.

31. Mr. Coleman further contended that the effect of medication on Mr. Walker was to cause "drowsiness" and so affected his ability to work.

32. Finally, Mr. Coleman submitted that there was a great deal of contradiction in the medical opinion. In terms of Mr. Walker's inability to work, he contended that some of the evidence relied on by the Department was theoretical. That is, there was a need to effectively evaluate the limitations of Mr. Walker's restrictions on joint movement and pain with a practical evaluation of his capacity to work - rather than to rely on theoretical viewpoints.

SUPPLEMENTARY SUBMISSIONS

33. Dr. Petavrakis stated in his supplementary submissions that:

* "Mr. Walker has an overall impairment rating of his left (dominant) upper limb of FIFTEEN. On days when his condition is worse, his rating would be TWENTY. On good days his rating would be FIVE. His bad days would have significantly outnumbered his good days.

* David's impairment ratings for his right (non-dominant) upper limb, would match those of his dominant, left upper limb.

* David's lower limb function ratings would approach an overall rating of TEN, but on a significant number of days each month, would be rated at TWENTY. There would be some days (though few) when his rating would approach "NIL".

* Other impairment ratings which would apply to Mr Walker include his "Chronic Fatigue - Fibromyalgia - Dysfunctional pain system" complexes. There is ample documentation in my notes of that period with references to these conditions. Treatment strategies included analgesics, referral to specialised pain clinics, counselling and support.

* These conditions are diagnosed principally on clinical grounds, and by the exclusion of the presence of other pathology. It is significant that as a result of the nature of these conditions, the criteria used to attempt to measure and define them are frequently being reassessed. There is considerable debate and the exact diagnostic criteria are essentially still being formulated. Bearing this in mind, and using Table 20, I offer Mr. Walker an overall rating of TWENTY, for his pain and fatigue."

34. Mr. Kanowski stated in his supplementary submissions that:

* "There were a number of serious difficulties with the way Dr Petavrakis has applied the Tables. Firstly, in relation to his rating of the left upper limb under Table 3, the suggested ratings of 5 and 15 simply cannot be correct because these ratings on the Table relate to the non-dominant upper limb. A 20 point rating for the right upper limb would be possible only if Mr Walker was unable to use the limb at all. That would be a more severe incapacity than in the left arm. Total loss of function has never been suggested, not even in Mr Walker's own account of a flare-up (T17 p77 in third paragraph, T2 p5 in final paragraph);

* Paragraph 10 of the Introduction to the Tables cautions that "Ratings can only be assigned in accordance with the rating scores in each Table. .... Ratings must be consistent with these Tables. No idiosyncratic assessment systems are allowed". (T3 pp19-20).

* .... the Tables do not permit calculating a rating by attempting to find an average between scores on good days and bad days. A Table for Intermittent conditions (Table 21) is provided for conditions which remain asymptomatic between discrete episodes of impairment.

* .... Table 21 would not be appropriate in this case. Rather, the proper approach - if a rating is to be assigned - would be that of Dr. Devereaux, who assigned a rating based on the usual degree of impairment, while recognising in his report that there may be occasions - one day or less per month - when Mr Walker may be absent or late for work as a result of his impairment. In oral evidence, Dr. Devereaux explained that occasional flare-ups might make it difficult for Mr. Walker to get to work.

* ..... in rating the Chronic Fatigue - Fibromyalgia - Dysfunctional pain system condition it appears that Dr. Petavrakis has overlooked the requirement that conditions must be fully documented and diagnosed, as well as investigated, treated and stabilised before an impairment rating can be assigned. On Dr. Petavrakis' oral evidence, that condition was not diagnosed until February 2000. Of the treatment strategies mentioned by Dr. Petavrakis, the pain clinic treatment did not commence until some time after 26 December 1998 (see T14 p62). It is not known when the other strategies were implemented, and it cannot be assumed that they had occurred at the time of claim or within three months thereafter.

* ..... it would not be appropriate to assign ratings both under Tables 3 and 4 on the one hand and under Table 20 on the other. Paragraph 8 of the Introduction to the Impairment Tables provides that in those cases where it is appropriate to use Table 20, that Table should be used instead of the Tables which would otherwise be used (T3 p19). .......

* On the question of continuing inability to work, if the arthritic condition (but not the broader pain/fatigue condition) were rated at 20 points or more, then the question for the Tribunal would be whether the arthritic condition prevented participation in the workforce or retraining. The opinion of Dr. Devereaux, as well as Dr. Lee, is that it would not. Dr. Petavrakis considers Mr. Walker unfit for work, but he is taking into account the broader pain/fatigue condition. That condition could only be taken into account in assessing capacity for work on a fresh claim, provided that it was then rateable. Any continuing inability to work under section 94 must be the result of an impairment rated at 20 points or more."

CONSIDERATION OF THE ISSUES

35. The objective of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times. The relevant legislation is the Social Security Act 1991 ("the Act").

36. Section 94 of the Act has provisions for 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% or more under the Impairment Tables; and

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

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 education 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."

37. The Tribunal has carefully considered the evidence of Dr. Devereaux and Dr. Petavrakis. The Tribunal prefers the evidence of Dr. Petavrakis given that he had been Mr. Walker's treating doctor for many years and consulted with him on far more occasions than Dr. Devereaux. Moreover, because of this frequency of consultation over time, Dr. Petavrakis had been able to consider and evaluate the background of the loss of upper and lower limb function encountered by Mr. Walker on all these occasions, in a holistic manner. Accordingly, the Tribunal is satisfied that, on the balance of probabilities, Dr. Petavrakis' opinion on Mr. Walker's overall level of loss of upper and lower limb function was an objective assessment upon which the Tribunal could make a finding on Mr. Walker's level of impairment under Tables 3 and 4.

38. The Tribunal makes the following findings on Mr. Walker's level of impairment based on the Impairment Tables:

* Table 3: Mr. Walker has an impairment rating of his left (dominant) upper limb of 15%. He also has an impairment rating of 15% for his right (non-dominant) upper limb; and

* Table 4: Mr. Walker has an impairment rating of 10% for his lower limb function.

39. Because Mr. Walker's combined impairment rating exceeds 20%, he satisfies section 94(1)(b) of the Act.

40. Based on the oral evidence of Mr. Coleman (paragraphs 10, 12) and Dr. Petavrakis (paragraph 20), the Tribunal agrees with the following conclusions made by the Social Security Appeals Tribunal in their application of the law:

"7.5 In considering whether Mr Walker has a continuing inability to work the Tribunal was mindful of the natural history of his disease. At the present time he is unfit for all work. His remissions are becoming less frequent and it is only at that time that he could possibly do some sedentary work. During exacerbations he could be housebound for many weeks at a time. He is unfit for any work for which he is presently skilled.

7.6 In regard to both training and work, his fatigue and the amount and type of medication that Mr. Walker takes daily , even when "well", would affect his ability to concentrate and absorb new material. It could well be dangerous in a work situation. It is unlikely that he would be able to attend any course on a regular basis. He would be unable to sit or stand for prolonged periods."

41. Accordingly, the Tribunal is satisfied that Mr. Walker has a continuing inability to work and so satisfies section 94(1)(c) of the Act.

42. Based on the above reasons, the Tribunal affirms the decision under review. This means that Mr. Walker is qualified for disability support pension

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member.

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

R. Hayes, Associate

Date/s of Hearing 28 April 2000

Date of Decision 6 November 2000

Counsel for the Applicant Mr. P. Kanowski, Departmental Advocate

Counsel for the Respondent Mr. D. Walker, himself