Dale; Department of Family and Community Services [2002] AATA 134 (4 March 2002)

Last Updated: 6 March 2002

DECISION AND REASONS FOR DECISION [2002] AATA 134

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/497

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Applicant

And DENNIS DALE

Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date 4 March 2002

Place Brisbane

Decision The decision of the Social Security Appeals Tribunal dated 2 May 2001 is set aside and in its place is substituted a decision that the respondent is not qualified for disability support pension.

(Sgd) J Cowdroy

Member

Decision No: 134/2001

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CATCHWORDS

SOCIAL SECURITY - Disability support pension - Whether respondent has an impairment rating of 20 points - Whether respondent has a continuing inability to work - Whether respondent suffering from a temporary or permanent condition

Social Security Act 1991

REASONS FOR DECISION

4 March 2002 Ms J Cowdroy, Member

BACKGROUND TO THE APPLICATION

1. By decision dated 2 May 2001, the Social Security Appeals Tribunal ("the SSAT"), set aside a decision of an officer of Centrelink dated 9 January 2001 to refuse a claim for disability support pension. That decision was reviewed and affirmed by an authorised review officer on 13 March 2001.

2. An application for review of the decision by the Administrative Appeals Tribunal was received on 8 June 2001.

3. At issue is whether the respondent has an impairment rating of 20 points and whether he has a continuing inability to work.

HEARING OF THE APPLICATION

4. The matter was heard on 14 January 2002. Mr N Foster appeared for the applicant and Mr Dale gave evidence and made submissions by telephone. The T-documents were admitted into evidence as Exhibit 1, as well as various medical reports (E2-E5), and a letter from the respondent dated 13 October 2001 (E6).

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APPLICANT'S SUBMISSIONS

5. The respondent lodged a claim for disability support pension on 23 November 2000. The applicant contended that the medical evidence did not support a finding by the SSAT that Mr Dale satisfied sub-sections 94(1)(a), (b) and (c) of the Social Security Act 1991 ("the Act"). In particular, it was submitted that the respondent's medical conditions did not warrant 20 impairment points, and particular issue was taken with the 10 points which was allocated to his right shoulder.

6. It was pointed out that in his claim (T16-104), the respondent referred to arthritis of upper right arm, however, subsequent to this, the medical reports contain no reference to the right shoulder (upper arm) until 2001.

7. At T18-116, Dr T Wong provides diagnoses of lower back pain, L5-S1 disc prolapse and stress, anxiety. At T19-124, Dr A Bonert of Health Services Australia (HSA) has indicated that the respondent does not have a cervical spine condition and nor is any mention made of a neck or shoulder condition. The Tribunal was also referred to a later report of Dr Wong dated 8 March 2001 (T26-146) in which he provides a diagnosis of rotator cuff syndrome right shoulder, based on an x-ray of the same date (T27-151). At T32-160, completed on 6 April 2001, Dr Wong describes the rotator cuff injury as 'long term' and 'fluctuating'.

8. Dr R Edmonds of HSA on 19 June 2001 (T34-178) refers to pain and stiffness in right shoulder 'due to early arthritis and possible tendon impingement and is currently having treatment for this and hopefully it will resolve over the next few months'. At T34-171, Dr Edmonds classifies the condition as temporary, on the basis that it is still being treated.

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9. Counsel for the applicant had been informed by the applicant that he had been receiving treatment for his right shoulder condition at Royal Brisbane Hospital and consequently medical documents from that institution had been requested and provided (E-5). The referral, dated 28 February 2000, refers to symptoms emanating from two conditions: low back pain and the effects of a head injury. No mention is made of a shoulder problem.

10. The physiotherapy treatment records (E-4), refer to acute lumbar pain and right sciatica. The only mention of neck or shoulder problems is on page 8 (undated but in the context of other entries was recorded in late February 2000/early March 2000), which refers to a neck problem following an assault three months earlier. No indication is given that any treatment was provided or recommended. Physiotherapy treatment for the back ceased in mid-March of 2000 according to the discharge summary (E4).

11. Mr Foster contended that the records provided by Royal Brisbane Hospital do not substantiate the respondent's claim that he was referred for medical treatment for a shoulder condition. At best, it indicates that mention was made of a shoulder problem.

12. Since the decision of the SSAT, the respondent had been examined by occupational therapist, Ms K Clark of CRS Australia, whose report is dated 19 September 2001. She refers to right shoulder osteoarthritis in combination with other conditions which prevent the respondent from working.

13. That report was provided to Dr R Moss of HSA, who prepared a report dated 29 September 2001. Dr Moss noted right upper shoulder pain and indicated that the condition had not fully stabilised or treated.

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14. In summary, at the time the respondent lodged his claim, there was no medical evidence that he suffered from a shoulder condition. Further, when a shoulder condition is mentioned later in the medical reports, it is described as a temporary condition. In fact, the condition was first confirmed on x-ray on 8 March 2001. Because a rating cannot be allocated to a temporary condition, the applicant does not meet the requirement that a person's disabilities be rated at 20 impairment points or more. He had been allocated 10 points for a lower back condition, and it was contended that this was appropriate.

RESPONDENT'S EVIDENCE AND SUBMISSIONS

15. The Tribunal was referred to the respondent's written submissions (E6). He described receiving injuries to his back and right shoulder in the early 1980's at which time he was treated by Dr J Caruso in Bundoora, Victoria. He subsequently received ongoing treatment from a variety of practitioners. He did not work for over four years. He said he has been taking anti-inflammatory medication since the 1980's for both his back and neck condition and that both sites 'flare-up' from time to time.

16. He contended that he aggravated 'these injuries' (presumably referring to both neck and back) whilst using a belt sander, as a result of which he sought treatment from Dr H Bryan, who treated him with anti-inflammatory medication and, when this did not assist, he referred him to Royal Brisbane Hospital in February of 2000.

17. Mr Dale took issue with the respondent's description of Dr Wong as 'the first treating doctor' and pointed out that he had been treated by many other medical practitioners prior to receiving treatment from Dr Wong.

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18. The respondent stated in his written submission: 'I have had treatment for both these injuries, Physio/Cortesone and both of these are as stabilised as they ever will be (both degenerative). In fact both conditions are worsening refer CRS report 18/9/01' (E-6). He contended that his lower back condition warranted 20 points on the basis of loss of three quarters range of movement as described by Dr Moss and the report of CRS Australia. He said that various practitioners had assessed his loss of range of movement in the lumbar spine differently.

19. In respect to the examination by CRS Australia, Mr Dale commented that his loss of range of movement in the lumbar spine had been assessed at three quarters, based on the findings of Ms Clark, however, the respondent contended that there was one half loss of range of movement. In respect to the report of Health Services Australia dated 22 December 2000, in which a one quarter loss of range of movement was recorded, Mr Dale commented that the examination was not as thorough as that carried out by the CRS. He said that he was 'laid-up' for three days after the examination by Ms Clark.

20. In respect to the right shoulder, he contended that he suffered from a 'major loss of strength, mobility, co-ordination, dexterity and/or sensation of dominant upper limb which causes significant interference with hand function or manual handling' in respect to which 20 points was warranted. He also sought either 10 points or 15 points for 'liver tumor' and stated that the condition was being evaluated.

21. Under cross-examination, Mr Dale stated that the x-ray taken on 8 March 2001 was not the first x-ray of his right shoulder. He had previously had x-rays taken in the 1980's.

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22. In relation to his capacity to work, Mr Dale stated that the general consensus amongst medical practitioners was that he was not fit to resume full time employment for at least two years.

THE LEGISLATION AND ITS APPLICATION:

23. Section 94(1) of the Social Security Act 1991 sets out the qualifications for disability support pension. It states:

"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;

(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

(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) has 10 years qualifying Australian residence or has a qualifying residence exemption for a disability support pension; or

(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A) is not an Australian resident; and

(B) is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.

...

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

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(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:

(c) the availability to the person of educational or vocational training or on-the-job training; or

(d) 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) [Secretary's consideration when person 55] 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) [Interpretation] 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:

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

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

24. The Tribunal finds that Mr Dale has a number of conditions which satisfy the definition of 'physical, intellectual or psychiatric impairment' (s 94(1)(a)). The issue then becomes whether those conditions are fully documented and diagnosed conditions that have been investigated, treated and stabilised. If that is the case, then they are regarded as permanent conditions and can be allocated ratings under the Impairment Tables, which are set out in Schedule 1B of the Act.

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25. In respect to the lower back condition, the evidence points to this being the most disabling condition. With the exception of the report of HSA of 19 June 2001, all medical practitioners are of the view that this is a permanent condition and that this was the case at the time that the applicant lodged his claim.

26. The Tribunal was mindful of the fact that the applicant had been examined by a large number of medical practitioners in connection with his claim. Their reports, produced over a ten month period, provide various opinions as to the appropriate loss of range of movement in the lower spine. Dr Wong, who had been treating the respondent for this condition since 4 September 1998, refers to pain when he sits and stands, however he is not asked to comment on the loss of range of movement. Dr Bonert at T19-125, provides an assessment of one quarter loss of range of movement which accords with Dr Edmond's assessment (T34-170).

27. Later reports suggest that the back condition has deteriorated, in that there has been an increased limitation in movement. This is borne out by the reports of Dr Moss and Ms Clark. It is unfortunate that there is no evidence from an orthopaedic surgeon on this aspect as the Tribunal is being asked to rely on the opinions of general practitioners on a crucial issue. The Tribunal was reasonably satisfied that the respondent's lower back condition at the relevant time, warranted 10 points under Table 5.2 on the basis of a loss of range of movement approximating one quarter of normal. It notes that more recent findings suggest that the range of movement has deteriorated, so the Tribunal did not consider that the earlier assessments were not reliable.

28. In respect to the right shoulder condition, the Tribunal notes that the applicant referred to "arthritis upper right arm" in his claim. The treating doctor's report did not address this condition, although in a report dated 8 March 2001 he

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refers to rotator cuff syndrome and states "unable to abduct shoulder past 90 degrees". He does not provide a date of onset.

29. However, a note of a conversation with the respondent in March of 2001 records that Mr Dale told him that the shoulder condition had been present since February 2000. This accords to some extent with the mention of a head injury and its sequelae in October 1999 in the Royal Brisbane Hospital's records, although elsewhere in the hospital records it states that the injury occurred three months earlier, which would place the onset of neck symptoms in December 1999.

30. Taking all of the above into consideration, the applicant had reported having had a neck problem from at least late 1999. It may well be the case that he had neck problems following injury in the 1980's, however it is likely that any ongoing symptoms had either abated or were manageable prior to the injury in late 1999. That it was not a significant condition until then is evident by the doctors' reports dated 1997 and 1998, one of who refer to a shoulder problem.

31. That being the case, there is evidence that the applicant had been experiencing neck problems for approximately twelve months at the time of the lodgment of his claim. The Act requires that a condition, not only be diagnosed, but that it be investigated, treated and stabilised. It seems to the Tribunal, based on the evidence before it, that the condition had not been treated, although the respondent takes pain relief medication in the form of Panadeine Forte.

32. Although it was contended that this condition was being treated with physiotherapy during February/March 2000, the hospital records indicate that such treatment was given for lumbar back pain. Whilst there is a reference to a right shoulder/neck problem, this does not appear to have received any treatment.

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33. That being the case, the Tribunal determines that at the relevant time, the respondent's right rotator cuff syndrome is to be regarded as a temporary condition and consequently it cannot be given a rating under the Impairment Tables.

34. There was no contention that the other disabilities from which the respondent suffers warrant any ratings under the Impairment Tables, with the exception of a condition described by the respondent as 'liver tumor'. As the Tribunal understands it, that condition was being investigated at the time of hearing, consequently it cannot be regarded as a permanent condition.

35. In summary, the Tribunal finds that the respondent's conditions warrant 10 points under the Impairment Tables. That being the case, the respondent does not meet one of the requirements for disability support pension, in that he cannot meet the requirement that he has an impairment rating of at least 20 points. Consequently, it was not necessary to consider whether he has a continuing inability to work.

36. The Tribunal sets aside the decision of the Social Security Appeals Tribunal and in its place substitutes a decision that the respondent is not qualified for disability support pension.

I certify that the thirty-six (36) preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member.

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

Associate

Date/s of Hearing 14 January 2002

Date of Decision 4 March 2002

Solicitor for the Applicant Mr Neil Foster

The Respondent appeared in Person