Spruill and Secretary, Department of Family and Community Services [2002] AATA 8 (10 January 2002)

Last Updated: 18 March 2002

DECISION AND REASONS FOR DECISION [2002] AATA 8

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/797

GENERAL ADMINISTRATIVE DIVISION )

Re RICHARD SPRUILL

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date 10 January 2002

Place Sydney

Decision The Tribunal affirms the decision under review.

[SGD] N Isenberg

Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - physical impairment - entitlement to disability support pension - whether the Applicant had an impairment rating of 20 points or more under the impairment tables - whether the Applicant had a "continuing inability to work" - time for consideration of entitlement

LEGISLATION

Social Security Act 1991 - section 94

Social Security (Administration) Act 1999 - Schedule 2, clause 4

REASONS FOR DECISION

10 January 2002 Ms N Isenberg, Member

decision under review

1. This is an application for review by Mr Spruill, the Applicant, of a decision of the Social Security Appeals Tribunal ("SSAT") made on 21 May 2001 (T2) which affirmed a decision made by a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") on 23 March 2001 (T9) to reject Mr Spruill's application for disability support pension ("DSP"). This earlier decision was also reviewed and affirmed by an authorised review officer on 23 April 2001.

appearances

2. A hearing was held before the Tribunal on 28 November 2001. Mr Spruill appeared on his own behalf, providing oral evidence to the Tribunal. He was accompanied by his estranged wife, Renee Marie Spruill, who also gave evidence. Ms Schuster, an advocate from the Advocacy and Administrative Law Team at Centrelink, represented the Respondent.

documents before the tribunal

3. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which the Tribunal took into evidence. The following documentary evidence was also before the Tribunal:

Exhibit Description Date

A1 Medical report of Dr Samadi 25 October 2001

A2 Letter from Dr Samadi 19 July 2001

A3 Radiology report of Dr Barter 12 October 2001

legislation

4. This application concerns a claim for DSP made on 16 February 2001 (T6). Entitlement to DSP is governed by section 94 of the Social Security Act 1991 ("the Act"), which provides, so far as is relevant, as follows:

"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) ...

(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) ...

(iii) ...

....

Note 2: for Impairment Tables see section 23(1) and Schedule 1B.

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.

Note: For work see subsection (5).

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(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.

Person not qualified in certain circumstances

94(6) A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person's incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment.

Note: a person who is receiving a disability support pension may be automatically transferred to the age pension if the person becomes qualified for the age pension (see subsection 48(3))."

issues before the tribunal

5. Insofar as section 94(1) of the Act is concerned, there was no dispute that Mr Spruill does have a physical impairment, is greater than 16 years of age and is an Australian resident. The issues in dispute in the current application, however, were whether he had an impairment of 20 points or more under the impairment tables and, if so, whether he had a "continuing inability to work".

TIME FOR CONSIDERATION OF ENTITLEMENT TO DSP

6. Schedule 2, clause 4 of the Social Security (Administration) Act 1999 provides:

"4 Start day--early claim

(1) If:

(a) a person (other than a detained person) makes a claim for a relevant social security payment; and

(b) the person is not, on the day on which the claim is made, qualified for the payment; and

(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

(d) the person becomes so qualified within that period;

the claim is taken to be made on the first day on which the person is qualified for the social security payment.

(2) For the purposes of subclause (1), the following provisions have effect:

(a) subject to paragraph (b), any social security payment, other than newstart allowance or special benefit, is a relevant social security payment;

(b) parenting payment is not a relevant social security payment in the case of a person who becomes qualified for the payment because of the birth of a child.

..."

7. Therefore, the Tribunal had to consider whether Mr Spruill was entitled, or became entitled, to DSP on 16 February 2001 or at any time up until 15 May 2001.

background

8. Mr Spruill is presently 52 years of age. He had a degenerative low back condition which was aggravated when he had a fall at home in October 2000, while changing a light bulb.

9. On 16 February 2001 Mr Spruill lodged an application for DSP. A report from his treating doctor, Dr Samadi, dated 12 January 2001 (T4) was also provided. That report recorded the Applicant as suffering ischaemic heart disease and chronic airways disease. A radiological report dated 6 February 2001 was also provided, in which degenerative changes to Mr Spruill's L3/4 and L5/S1 spine were noted. Mr Spruill was then assessed by a Health Services Australia (HSA) medical adviser who found that he had a total impairment of 5 points which was wholly attributable to his breathing problems. His back was not rated as it was considered to be a temporary condition. As a result, the Applicant's claim was rejected.

10. When the claim was reviewed by an authorised review officer on 23 April 2001 it was found that the Applicant's heart condition attracted a nil rating, his chronic airways disease attracted a rating of five impairment points and that both these were permanent conditions. While the Applicant had a quarter loss of range of movement of his lumbar spine this was found to be a temporary condition and therefore not rateable.

evidence of mr spruill

11. The Tribunal asked Mr Spruill to describe his conditions and afforded the representative for the Respondent the opportunity to ask him questions also.

12. Mr Spruill told the Tribunal that it was difficult to distinguish between the effects of his respiratory condition and his heart condition. His major symptom is shortness of breath. He said he experiences shortness of breath 'anytime', even just walking around and doing the housework. Mr Spruill described how he is particularly affected in the early morning - 'coughing (his) lungs out'. He goes to the bathroom and passes out, or needs to splash water on his face so that he does not pass out. He sits on the toilet for about half an hour just to be able to go about the day. He said he has phlegm which is 'black, green and yellow' for which he needs a bucket. He said brought his breathing problem upon himself because he had smoked at least 2 packets of cigarettes a day since he was 14 or 15.

13. The Applicant said his heart condition had been diagnosed in 1997 and he had seen Dr Dennis, a Cardiologist. He was told he had a 'blockage' and this caused his heart to 'skip' beats. He had not, however seen Dr Dennis since 1998. Dr Samadi, his GP, had prescribed him tenonin, which he understood to be for his heart, and he also takes aspirin to 'thin the blood'. Mr Spruill did not know if he had omitted mentioning that he took this medication when he spoke to the SSAT. He also takes nitrolingual spray as required. He last took it only last week and, at that time, had been doing nothing to bring on shortness of breath.

14. It is the Applicant's back condition, however, which he finds most debilitating. Since the time of the fall in October 2000 when he 'ruptured' his back he has taken vioxx, anti-inflammatory medication, daily. If he misses a days dosage his lower back joints become very swollen and sore. He takes panaedeine forte every four hours. Mr Spruill has a hot bath every morning and every evening and goes to bed with a hot water bottle. Notwithstanding this regime, his back condition has not improved and is in fact worse because he is unable to sit for long period of time.

15. The Applicant said that Dr Samadi had advised against physiotherapy as this would be likely to aggravate his back. Hydrotherapy had been recommended but Mr Spruill has been on the wait list at Royal North Shore Hospital since March. Mr Spruill is not convinced that this will assist him as he thinks it would just be like his hot baths. He anticipates that the relief it would provide would be of a limited nature only - lasting only half an hour or so. He noted that 'there is no cure for arthritis' and hydrotherapy might only provide very temporary relief from symptoms, not offer a cure or any permanent improvement of his condition.

16. The Applicant described how his back condition makes it difficult for him to lift anything of substance, for example, anything more than about five lbs. He finds bending to pick things up 'impossible'. However, Mr Spruill said that he was able to lift his baby daughter, who, at the time of the hearing, was aged two months and three weeks. Despite this, Mr Spruill stated that he cannot sit and give the baby her bottle because he cannot sit in the same place for any period of time. He will spend the day 'reading a bit' and might hold the baby. Mr Spruill has a very limited range of activities. He might go to the shops once a week in order to buy food, which he has to have delivered because he cannot carry it home. Prior to the accident, he used to play 'all kinds of sport' and used to enjoy 'playing ball' with his son, who is aged 6.

17. Mr Spruill stated that if it were not for his wife's assistance he would not be able to cope. Although she maintains an independent household at Balgownie near Wollongong, she has been spending about 4 days per week at the Applicant's home, sleeping in the spare room. Although the Applicant has sole custody of their daughter by virtue of an agreement between the Applicant and his wife, he is unable to care for the child. His wife therefore comes to his home to care not only for the baby, but also for the Applicant. She massages his back and attends to the housework and gets up to attend to the baby at night. The Applicant's wife is considering moving 'home', that is, to her own residence in the new year.

18. The Applicant was cross-examined about his previous work. He had last worked in June 2000 as a security guard for Armaguard. Once retrenched, he continued to look for work until he hurt his back in October 2000. Before taking up the job with Armaguard he had had to undergo a physical and the examining doctor had identified that his heart 'skipped'. They had talked about it then but, nonetheless, the doctor passed him as fit for the job. Nobody at work knew he had a heart problem and he had no problem in carrying out his duties. The same applied some time before when he had a job as a 'screw' at Long Bay gaol.

19. Mr Spruill said that his back prevents him from working and he would be unable to undertake a clerical job, such as an accounts clerk, in which he is experienced, because he could not sit for any period of time.

evidence of mrs spruill

20. Mrs Spruill told the Tribunal that her husband's overall health was poor. In particular, he cannot sit for long periods of time and gets shortness of breath. Because he had difficulty managing their daughter, Mrs Spruill has returned to Sydney, at least on a part time basis, to assist him.

21. She said Mr Spruill coughs thick phlegm, especially in the morning, and once she found him passed out in the bathroom. On several occasions she has found him splashing water on his face after he has passed out. They have been unable to engage in sexual intercourse since the fall. They have made attempts but the Applicant has even 'passed out on top of' her.

22. Mrs Spruill helps by doing the shopping, massaging the Appliant with Deep Heat, filling his hot water bottles, and doing the housework and the washing. Even if they do the shopping together she has to push both the trolley as well as the pram. The groceries are delivered.

23. Mrs Spruill also cares for their daughter, especially feeding and bathing her. Bathing is particularly difficult for the Applicant as he cannot stand in the one spot or bend over holding the baby's weight. The Applicant is able to give the baby only about half a bottle because feeding requires sitting in the same position.

24. Mrs Spruill stated that the Applicant's son, who lives with his father some of the time, is 'very helpful' around the house.

medical evidence

25. The medical evidence is most conveniently reviewed by condition, as set out below.

Ischaemic heart disease

26. In his treating doctor's report dated 12 January 2001 (T4) Dr Samadi stated that the Applicant's symptoms from this disease were chest pain and tightness.

27. Dr Rose, a medical adviser to HSA, noted in his initial assessment on 8 March 2001 that the Applicant had had chest pain in the past and used a spray, but had not required this for the last few months (T20). An impairment rating of nil points was assigned under Table 20 for "Minor symptoms which are easily tolerated and have no appreciable effect on ability to work".

28. Dr Cook, in a treating doctor's report dated 28 March 2001, did not mention the Applicant's heart condition.

29. In his letter of 25 October 2001 (Exhibit A1), Dr Samadi, referring to the Tables ascribed a rating of twenty for the Applicant's loss of cardiovascular and/or respiratory function, equating to METS 4-5.

Chronic airways disease

30. Dr Samadi, in his treating doctor's report of 12 January 2001 (T4), noted the Applicant's chronic airways disease which resulted in a cough and shortness of breath. He said the Applicant was 'on medications' but did not specify what this treatment entailed.

31. When Dr Rose examined the Applicant on 8 March 2001 he found his chest was clear (T8) and that the main symptom for this condition was a cough and breathlessness with pace walking. He assigned an impairment rating of 5 points under Table 1 equivalent to 6-7 METs. While he observed that the Applicant's last job had caused him no limitations he recommended the Applicant avoid heavy exertion.

32. Dr Cook, in his treating doctor's report of 28 March 2001 (T13), did not mention this condition.

33. Dr Samadi rated this condition at 20 points, in his report of 25 October 2001 (Exhibit A1), but provided no elaboration.

Back pain

34. In his initial treating doctor's report of 12 January 2001 (T4), Dr Samadi did not refer to this condition. He provided a supplementary report about the Applicant's back pain on 19 July 2001 (Exhibit A2) in which he stated that the Applicant has had back pain for the last 5 years. He did not refer to specific details about this condition but said that the Applicant's chronic back pain would be a major problem for any future job prospect.

35. In his letter of 25 October 2001 (Exhibit A1), Dr Samadi provided an impairment rating of 20 points but did not indicate which of the Tables he had used to come to this conclusion.

36. X-ray and CT scan reports dated 6 February 2001 (T5) showed degenerative changes at L3/4, L4/5, L5/S1. Later X-ray and CT scan reports dated 12 October 2001 (Exhibit A3) show that the Applicant has:

"Quite severe arthritic changes at the right ¾ facet joint with probable arthrosis at the right 2/3 facet joint as well."

37. Dr Donaldson in his report of 5 March 2001 (T7), to Dr Samadi, noted that the Applicant had had 'subacute lower back pain' for about a year before he fell onto the base of his spine and 'really aggravated it'. On reviewing the radiological material he confirmed degenerative spondylosis at L3/4, L4/5 and L5/S1. He did not recommend surgery on the basis of his clinical examination, nor from the x-ray findings. He said:

"The arthritis in his back needs to be tempered by time, antiarthritic medication, heat and light exercise. I have referred him to Ryde Hospital Outpatient physiotherapy and told him to keep taking the medication that you have already prescribed."

38. When examining the Applicant on 8 March 2001, Dr Rose wrote in the Medical Assessment Report (T8) that he found a 25 percent overall loss of the normal range of movement in the lumbar spine, although with a 50 percent loss of flexion, and observed the degenerative changes identified by x-ray. He said the Applicant reported poor sitting tolerance to around 20 minutes but said the Applicant appeared to sit comfortably through the interview. He found the Applicant to be temporarily prevented from heavy lifting and bending but considered him fit for light sedentary work and thought he should be fit for most jobs in three to six months.

39. Dr Rose further noted that the Applicant was due to commence hydrotherapy and physiotherapy and the aggravation of the condition due to the fall had not been treated and stabilised. In his opinion the recent injury would improve with treatment within three to six months (T8, p32). He found that the condition was temporary and no impairment rating could be given.

40. On file review, that is without examining the Applicant, Dr Van, medical adviser to the HSA found on 20 April 2001 (T14) that the Applicant's back condition was a long-term condition with an acute exacerbation requiring stabilisation and that it was therefore temporary,for the purpose of the Centrelink assessment.

41. Dr Cook in his treating doctor's report dated 28 March 2001 (T13) stated that the Applicant suffered from degenerative spondylitis of the lumbar spine but was unsure whether this condition would be long-term or temporary. He noted, however, that the Applicant told him his back was getting worse.

submissions

42. The Applicant submitted that the evidence of his treating doctor, Dr Samadi, was to be preferred to that of Dr Rose. He did not consider the examination conducted by Dr Rose to be adequate and he only spoke to him for about ten minutes. Similarly, Mr Spruill considered Dr Van's review to be unreliable because his report had been prepared without an examination. On the basis of Dr Samadi's evidence, the Applicant submitted that it was clear that he had at least 20 impairment points, and, on his own calculations, that he had 60 impairment points. Mr Spruill emphasised that because his back condition is an arthritic one he can only expect, at best, relief from symptoms, and not a permanent improvement.

43. The Respondent, in noting that Dr Samadi's assessment of the Applicant's loss of cardiovascular and/or respiratory function at 20 impairment points, in Exhibit A1, is inconsistent with any evidence provided by the Applicant about the loss of function arising from this condition, submitted that Dr Samadi's assessment should not be accepted. As the Applicant's cardiovascular condition had caused no work difficulties prior to the accident, the Respondent contended that the Applicant's allegations as to the extent of the deterioration in his condition should not be accepted. The Respondent submitted that there is no evidence of any functional limitation arising from his heart condition, and no evidence that it therefore warrants an impairment rating of greater than nil points under Table 20. For the same reason, the Respondent submitted that the appropriate impairment rating for the Applicant's chronic airways disease under Table 1 is 5 points.

44. As to the Applicant's back condition, the Respondent relied on the evidence of Dr Donaldson who stated that the Applicant's condition would be "tempered by time, antiarthritic medication, heat and light exercise." The doctor had referred the Applicant to physiotherapy for further treatment. From this, it was submitted, the aggravation of the Applicant's chronic condition was amenable to some treatment which, at the relevant dates, had not been undertaken. It was therefore not a permanent condition.

45. Even if the condition were found to be a permanent one, in the Respondent's submission, the rating of 20 impairment points by Dr Samadi in his report of 25 October 2001 (Exhibit A1) could not be supported. Dr Samadi did not indicate which of the Tables he had used to come to this view. To be awarded an impairment rating of 20 points under Table 5.2, the relevant Table, a loss of half the normal range of movement, as well as pain, must be found. While there may be evidence that the Applicant experienced back pain, there is no medical evidence to support a conclusion that the Applicant has lost 50 percent of the normal range of movement. The Respondent submitted that, consequently, Dr Samadi's assessment should be rejected as being ill founded. The report of Dr Rose showed a quarter loss of range of movement which would attract a rating of 10 impairment points.

impairment ratings

46. The first issue for the Tribunal to consider was whether Mr Spruill's impairment ratings under Schedule 1B of the Act totalled 20 points. Paragraphs 4 and 5 of the Introduction to the "Tables for Assessment of Impairment of Disability Support Pension" (Schedule 1B of the Act) provides as follows:

"4. ...For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised...

5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence, it is more likely than not that it will persist in the foreseeable future. This will be taken as lasting for more than two years..."

47. There was no dispute that at the time of application, and in the following three months, the Applicant suffered ischaemic heart disease and chronic airways disease. Both conditions had, at that time, been investigated, treated and stabilised.

48. The Tribunal then turned to consider the medical evidence, and the evidence of Mr Spruill, so as to determine the appropriate rating for each of these conditions.

Ischaemic heart disease and chronic airways disease

49. Mr Spruill told the Tribunal that it was difficult to distinguish between the effects of his respiratory and his heart conditions but that his major symptom is shortness of breath. The Tribunal referred to Table 1, which is to be applied for loss of cardiovascular and/or respiratory function. The Table obliges the Tribunal as follows:

"Where exercise intolerance is caused by a combination of cardiac and respiratory conditions, Table 1 is to be used and used only once." (Emphasis added)

The Tribunal, therefore, would determine one rating only for combined effects of the Applicant's ischaemic heart disease and chronic airways disease.

50. The Applicant's heart condition had been diagnosed in 1997 but the Applicant had not seen his cardiologist since 1998. Dr Samadi, his GP, had prescribed tenonin, which Mr Spruill understood to be for his heart. Mr Spruill also takes aspirin to 'thin the blood'. He had refused a recommended angiography.

51. It was Dr Samadi's evidence that the Applicant's symptoms were chest pain and tightness. Dr Rose, a medical adviser to HSA, noted, in his initial assessment on 8 March 2001, that the Applicant had had chest pain in the past and used a spray, but had not required this for the last few months (T20). The Applicant told the SSAT in May 2001 that he had last used his Nitrolingual spray two to three months before the hearing. The Applicant's evidence before the Tribunal was that he presently uses it only as required and that he last used it the previous week.

52. The Applicant had been found fit for his last job, as a security guard, which had concluded in May 2000. He had had no problem in carrying out his duties. Dr Cook, in a treating doctor's report dated 28 March 2001, did not mention the Applicant's heart condition. In his letter of 25 October 2001 (Exhibit A1), Dr Samadi, referring to the Tables, ascribed a rating of 20 points for the Applicant's loss of "cardiovascular and/or respiratory function", equating to METS 4-5, but his reports contained no details. Dr Rose, on the other hand, had assigned nil impairment points under Table 20 for "Minor symptoms which are easily tolerated and have no appreciable effect on ability to work".

53. Mr Spruill described how he is particularly affected in the early morning - 'coughing (his) lungs out' to the point where he may pass out. He needs to sit on the toilet for about half an hour just to be able to go about the day. He has copious amounts of phlegm.

54. Dr Samadi rated this condition as 20 points in his report of 25 October 2001 (Exhibit A1), but provided no elaboration. Previously, in his report dated 12 January 2001 (T4), he had noted that the Applicant had a cough and shortness of breath. He said the Applicant was 'on medications' but did not specify what this treatment entailed.

55. Dr Cook, in his treating doctor's report of 28 March 2001 (T13), did not refer to this condition at all. When Dr Rose examined the Applicant on 8 March 2001 he found his chest was clear (T8) and that the main symptom for this condition was a cough and breathlessness with pace walking.

56. The Tribunal observed that the Applicant's account of the severity of his condition had altered to that provided to the SSAT. The SSAT noted his evidence as follows:

"He now suffers from a productive cough, especially when walking up hills. He can walk comfortably at a slow pace on level ground. He has no breathlessness at rest. He has to take his time going up stairs but the limitation is mostly related to his back. He takes no medication for his chest problems."

57. The Tribunal formed the view that the account given by the Applicant before it so significantly differed from that given to the SSAT and from the observations of Dr Rose, and for that matter Dr Cook (which did not even record the Applicant as suffering from the condition), that the Tribunal preferred the assessment of the condition by Dr Rose to the bare remarks of Dr Samadi. Those remarks may reflect the Applicant's current condition, but the Tribunal found that this earlier account, recording only that the Applicant had a cough and shortness of breath, were, at the relevant dates, more likely to reflect the Applicant's condition.

58. On that basis, but applying Table 1, the Tribunal found that the appropriate rating for the combined effects of the Applicant's ischaemic heart disease and chronic airways disease was five impairment points.

Back condition

59. The Applicant gave evidence that it is his back condition which he finds most debilitating. He has taken an anti-inflammatory medication daily, since the accident, and takes strong painkillers every four hours. He has hot baths twice daily and takes a hot water bottle to bed. Mr Spruill stated that his back has deteriorated and he is unable to sit for long periods of time.

60. The Applicant said that Dr Samadi had advised against physiotherapy as this would be likely to aggravate his back. Hydrotherapy had been recommended but he has been on the wait list at Royal North Shore Hospital since March. He doubts this will assist and anticipated that any relief would be only temporary. He noted that 'there is no cure for arthritis' and hydrotherapy would not cure or permanently improvement his condition.

61. In his initial treating doctor's report of 12 January 2001 (T4), Dr Samadi did not refer to this condition but he provided a supplementary report about the Applicant's back pain on 19 July 2001 (Exhibit A2) in which he stated that the Applicant has had back pain for the last five years. He made no comment about the Applicant's acute symptoms which the Applicant had said were exacerbated by the accident in October 2000.

62. Dr Donaldson in his report of 5 March 2001 (T7) noted that the Applicant had had 'subacute lower back pain' for about a year before he fell onto the base of his spine and 'really aggravated it'. He said the Applicant's condition should be "tempered by time, antiarthritic medication, heat and light exercise."

63. Dr Rose wrote in the Medical Assessment Report of 8 March 2001 (T8) that although the Applicant reported poor sitting tolerance to around 20 minutes he had sat comfortably through the interview. He noted that the Applicant was due to commence hydrotherapy and physiotherapy and the aggravation of the condition due to the fall had not been treated and stabilised. In his opinion, the recent injury would improve with treatment within three to six months (T8, p32). The Applicant's evidence before the Tribunal was that his condition did not improve, as Dr Rose had anticipated.

64. Dr Cook in his treating doctor's report dated 28 March 2001 (T13) stated that the Applicant suffered from degenerative spondylitis of the lumbar spine, but was unsure whether this condition would be long-term or temporary.

65. Dr Van, medical adviser to the HSA found on 20 April 2001 (T14) that the Applicant's back condition was a long-term condition with an acute exacerbation requiring stabilisation and that it was therefore temporary.

66. On the basis of the evidence before it, the Tribunal found that between the relevant dates, that is, 16 February 2001 to 15 May 2001, Mr Spruill's back condition had not yet been fully treated nor had it stabilised. In these circumstances, it could not properly be regarded as 'permanent' at the relevant time. Accordingly, the Tribunal could not assign a rating in relation to that condition.

67. In coming to this view, the Tribunal makes no finding as to whether Mr Spruill's condition subsequently became permanent, and if so, when that may have occurred.

68. As the impairment ratings in relation to Mr Spruill's conditions of ischaemic heart disease and chronic airways disease do not total 20 impairment points, it was not necessary for the Tribunal to consider the other elements of section 94 of the Act.

determination

69. For these reasons the Tribunal has no alternative but to find that the decision under review is affirmed.

I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of MS N ISENBERG, Member

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

Associate

Date/s of Hearing 28 November 2001

Date of Decision 10 January 2002

Representative for the Applicant Self

Advocate for the Respondent Ms H Schuster