Dupille and Secretary, Department of Family and Community Service s [2003] AATA 34 (16 January 2003)

Last Updated: 21 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 34

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/614

GENERAL ADMINISTRATIVE DIVISION	)
	Re	GRANT DUPILLE

Applicant

And

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal

Dr J D Campbell, Member

Date 16 January 2003

Place Tamworth

Decision

The Tribunal determines that the decision under review be affirmed.

[SGD] Dr J D Campbell

Member

CATCHWORDS

Social Security - Disability Support Pension - Assessment of Lumbar Spine Disability - Cancellation - Assessment - Continuing inability to work.

Social Security Act 1991-section 94

REASONS FOR DECISION

16 January 2002

Dr J D Campbell, Member

1. In this matter Mr G Dupille ("the Applicant") seeks a review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 10 April 2002 which affirmed the decision of an authorised delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 16 January 2002 that the Applicant no longer qualified for disability support pension ("DSP"). This latter decision had been reviewed and affirmed by an authorised review officer (ARO) in a decision dated 15 February 2002.

2. A hearing was held before the Tribunal in Tamworth on 18 October 2002 at which the self represented Applicant presented oral evidence. The Respondent was represented by Ms Schuster, an advocate from the Advocacy and Administrative Law Team at Centrelink.

3. The following material was placed into evidence before the Tribunal.

Exhibit	Description	Date
T1 - T27	Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975	pages 1 - 137
A1	Letter from Ms Belinda Ruttley, stepsister of the Applicant	October 2002
A2	Letter from Mr Kenneth Ruttley, partner of the Applicant's mother	17-10-2002
A3	Centrelink Medical Certificate from Dr Cooke	23-05-2002
A4	Medical Report from Dr Cooke	03-07-2002
A5	Clinical Record relating the Applicant from Tamworth Hospital	Various
R1	Respondent's Statement of Facts and Contentions	18-09-2002
R2	Centrelink File Extract 1 page	16-10-2002

ISSUES

4. The relevant issues in this matter are:

(1) Whether the Applicant has a physical, intellectual or psychiatric impairment which rates 20 points or more under the Impairment Tables in schedule 1B of the Social Security Act 1991; and if so

(2) Whether or not the Applicant has a continuing inability to work because of the impairment because:

[diamond] the impairment of itself prevents the Applicant from doing any work for at least 30 hours per week at award wages within the next two years; and either

[diamond] the impairment of itself is sufficient to prevent the Applicant from undertaking educational or vocational training or on the job training during the next two years; or

[diamond] if the impairment does not prevent the Applicant from undertaking educational or vocational training or on the job training, such training is unlikely (because of the impairment) to enable the Applicant to do any work for at least 30 hours per week at award wages within the next two years.

LEGISLATION

5. The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular section 94, and Tables for the Assessment of Work Related Impairment for Disability Support Pension (Schedule 1B Impairment Tables).

BACKGROUND

6. On 28 October 1996, Dr Cooke, a general practitioner, in a treating doctor's report noted that the Applicant suffered from pain and stiffness as a consequence of a lumbar disc injury in 1994; that he had had multiple investigations and that current treatment was analgesics. Dr Cooke considered the Applicant unfit for his usual work, for part-time work and that he did not know how long the Applicant would remain unfit for work (T4).

7. On 17 March 1997, a decision was made and notified to the Applicant that, because of multiple barriers to employment, it was considered inappropriate to proceed with rehabilitation (T6).

8. In a further treating doctor's report dated 24 March 1997, Dr Cooke restated his earlier advice of 28 October 1996, but was more definite when he stated that the long term prognosis was poor and that it would be more than two years before the Applicant would be able to work either full or part time (T7).

9. In an approved medical practitioner report dated 17 April 1997, Dr Loeve noted that the Applicant had three quarter loss of normal range of movement of thoroco lumbar spine and that he had referred pain to buttocks on standing or sitting for long periods. Dr Loeve detailed the following general assessment of the Applicant on 23 April 1997:

"Mr. Dupille, who was originally injured at Gunnedah Abattoirs, bending and lifting, attempted rehabilitation for 2 months and then was gaoled for offences against DSS. He was in gaol for 9 months and the pain worsened in his lower back, emerging from gaol in 1995 and has not worked since. He has lower lumbar pain mainly central, now starting to affect his legs and getting pain into his buttocks. He can sit for 30 minutes, stand for 10 to 15 and walk 100 to 150 metres. He cannot bend repeatedly or lift greater than 5 kilos, the pain wakes him at night and has had increasing pain as the season has become colder. He does not drive, has trouble getting out of chairs, takes 20 minutes to get out of bed each day and sleeps on the floor on a mattress and has done so since December. He needs to lie down 4 times a day for about 1 hour each. He has not had physiotherapy or rehabilitation at present. He is literate, but has only labouring skills since leaving school. On examination he has significant loss of range of movement and has deteriorated since my last review of him. At present he is unfit for either full or part time work, however it is imperative [sic] receives some rehabilitation with active physiotherapy and conditioning or his disability will become permanent and lifelong. He is well on the way to developing a chronic pain syndrome from which often it is a long road back. I would recommend review by CRS at [sic]-active intervention to stimulate his rehabilitation. He is unfit for either full or part time work at present and should be reviewed in 12 months." (T8)

10. On 1 May 1997, Dr Greacen concurred with Dr Loeve's assessment, and suggested that the Applicant be reviewed in one year (T9). On 15 May 1997 the Applicant was granted DSP.

11. On 14 July 1999 the Applicant was assessed by Dr McBurnie, a medical practitioner employed by Health Services Australia, who detailed the following assessment:

"Mr Dupille last worked in 1994 as a labourer. He stopped work because of back pain. He has been assessed by CRS in the past who found too many barriers to employment.

He has lumbar disc degeneration. The pain is chronic and aggravated by most physical activities. Sitting is restricted to about 30 minutes as is standing. On examination back movements are restricted to about ½ range of movement.

His impairment rating is 30. He is not fit to work 30 hours a week in any capacity and he is likely to remain unfit for at least the next 2 years. Retraining may be beneficial in helping him secure light part-time work but as noted by CRS he has a number of barriers to this." (T10)

12. The assessment by Dr McBurnie was consistent with the report of Dr Harris of 30 May 1999(T11).

13. A CT Scan of the Applicant's lumbosacral spine was reported by Dr Pattison, a consultant radiologist in the following terms:

"Mild generalised bulging of the L4/5 and L5/S1 discs but no evidence of any focal protrusion." (T12)

14. A work ability assessment on 30 June 1999, indicated that the Applicant because of his lumbar back condition would be absent from work two to three days a week, that he would be only able to persist at work tasks for 20 to 90 minutes, that mobility would be constrained in some situations, and that he would be unable to lift or carry objects. In a work capacity assessment, it was considered that the Applicant had no capacity for full time work, but was medically fit to work at least eight hours per week (T13).

15. A medical review was commenced on 6 August 2001, with the Applicant detailing difficulties with sitting, standing and walking all the time, with mowing lawns all the time, and often when driving a car. Further the Applicant indicated he had difficulty with lifting, carrying, bending, sleeping, using a vacuum cleaner and difficulties washing his back and legs. The Applicant also noted that he had worked as a cotton labourer for 287 and a half hours between 2 April 2001 and 25 May 2001(T14).

16. In a treating doctor's report dated 6 August 2001, Dr Williams, the Applicant's treating general practitioner for two years, while noting the Applicants lower back pain history, concluded that the Applicant was able to return to full time employment immediately, and that he would benefit from training, education or rehabilitation (T15).

17. Following examination of the Applicant on 19 November 2001, Dr Arad, a medical adviser with Health Services Australia detailed the following whole person assessment:

"Mr Dupille is a 32 years old man. He has worked as a laborer [sic]. He stopped in 1994 because of his medical problems.

Mr Dupille has been suffering from:

1. Back pain with loss of a half from the range of movements. Mr Dupille indicated that he can sit 45 minutes, stand 1 hour and walk 500 meters. His CT demonstrated mild disc bulge at L4/5 and moderate disc bulge at L5/S1. No definite pressure on nerve roots or on the thecal sac could be identified. Mr Dupille is treated with exercises and Panamax tablets. Mr Dupille's sister lives with him and she looks after most of the duties at home.

Following today's assessment, I find that Mr Dupille has a permanent impairment rate of 10.. Because of the genuine musculoskeletal pain, Mr Dupille is permanently unfit for any significant manual work. In particular, Mr Dupille is unfit for the previous duties as a laborer [sic].

Many people with similar medical problems can cope with gainful employment. In this case I find that Mr Dupille is suitable for 30 hours per week of light duties.. At work Mr Dupille should not be required to bend, lift more than 5kg, climb or be in the same position (sitting or standing) for more than 20 minutes. Positions as a car park attendant, a ticket collector, a gatekeeper and a museum attendant are in agreement with the above recommendations.

I recommend training, vocational rehabilitation and help in work placement as long as these are suitable for Mr Dupille's disability." (T16)

18. The Applicant's DSP was cancelled on 16 January 2002(T20). A further treating doctor's report by Dr Bickerton was forwarded on 22 January 2002, with the doctor, while considering the Applicant's back condition to be longterm and fluctuating, considered the Applicant to be able to return to work forthwith, but does require retraining (T22). Following review by an ARO the decision to cancel the Applicant's DSP was affirmed on 15 February 2002 (T25).

19. On 27 February 2002, a further treating doctor's report was received from Dr Cooke, who confirmed his view expressed in 1996 and 1997 that the Applicant remained unfit for any form of work for more than two years (T26).

20. The SSAT affirmed the decision that the Applicant was not qualified for DSP on 10 April 2002 (T2).

APPLICANT'S EVIDENCE

21. The Applicant told the Tribunal that he was born at Gunnedah on 14 August 1969, left school at age 12, having reached sixth class, been considered an uncontrollable child and placed in foster care. He commenced work at the abattoirs in Gunnedah at age 16 and worked there as a casual employee on and off for 13 years. The Applicant stated that he enjoyed working as a labourer.

22. The Applicant stated that he lived with his mother on and off until 1995 when he moved out of home. The Applicant stated that he had had no other injuries until the injury at work in 1994. The Applicant told the Tribunal that he had been experiencing intermittent pains in his back for six to eight months in 1994 when on a particular day, when lifting, washing and putting haunches into a hopper, he was unable to get up because of pain in the lower back. He was off work for two weeks on a doctor's certificate, during which he had an X-Ray and CT Scan on his lumbosacral spine. The pain persisted in his lower back, but he returned to work on light duties, lasted three days, revisited doctor, two weeks to a month off work, light duties for one to two weeks, a period of rehabilitation, then off work for two weeks, and back to work for two weeks on light duties. The episodic return to work was intercepted by a period of nine months in jail, and after his release from jail he assisted an electrician in 1996 for a period of six months, during which he did light work. His back worsened and he received social security benefits, with DSP being granted in May 1997.

23. The Applicant told the Tribunal of his work activities in 2001, when over a period of eight weeks in April and May, he worked as a labourer on a cotton press at his own pace. The Applicant stated that he earned some $4312.00 during this period, and that the working hours on the working days were long unless interrupted by rain.

24. The Applicant informed the Tribunal that he lives alone in rented accommodation, that his stepsister assists with maintenance of the garden, washing, making meals as he is unable to perform most of these activities; that he drives a 1977 manual Torona car and is able to do that for an half an hour before stopping because of pain in his lower back. The Applicant stated that he was more comfortable lying down; that he can sit for an half an hour; stand for 10-15 minutes, walk half a kilometre, is unable to jog or run and has not consumed alcohol since 1999, apart from a couple drinks now and then.

25. The Applicant described the activities of a normal day as rising at 8:00-9:00am, breakfast, talking to his dog, visiting by car his mother who lives three to five kilometres away, for lunch and tea and/or alternatively watching television. He visits his doctor in Port Macquarie as required, consumes heaps of pain killers (panamax, panadol), sleeps most nights with the help of pain killers and that his back pain is worse in winter.

26. The Applicant indicated that he would like to work; that his only work experiences were as a labourer; that he was not wanted at his previous place of work and despite many recommendations and an active seeking on his part, he had been unable to participate in any vocational training or rehabilitation.

OTHER EVIDENCE

27. Letters from the Applicant's stepsister and the partner of his mother (Exhibit A1, A2) confirmed the Applicant's difficulties in undertaking particular tasks and the assistance he was receiving from his stepsister, while the letter and medical certificate from Dr Cooke (Exhibit A3, A4) confirmed the doctor's earlier opinions that the Applicant's impairment should be assessed at greater than 20 points and that he had a continuing inability to work.

SUBMISSIONS

28. The Applicant submitted that he has a chronic lower back disability and that, in relying on Dr Cooke's opinion, the assessment of this impairment is greater than 20 points. Further, the Applicant contends that he is unable to work as a labourer, and that without education, vocational and/or rehabilitation training, he has a continuing inability to work.

29. The Respondent contends that the assessment of the Applicant's impairment is ten points and relies upon the medical opinions of Dr Williams (treating general practitioner) dated 6 August 2001, the opinion of Dr Arad dated 19 November 2001, the opinion of Dr Bickerton dated 22 January 2002. The Respondent considers that Dr Cooke does not demonstrate an awareness or understanding of the Impairment Tables and that his 20 point rating is inconsistent with the documented radiological and clinical findings.

30. The Respondent further contended that the Applicant does not have a continuing inability to work. In so contending the Respondent relies upon the opinions of Drs Arad, Williams and Bickerton while discounting the opinion of Dr Cooke in the light of his consideration of non-medical factors in assessing the Applicant's abilities to be retrained. Further, the Respondent points to the Applicant's own evidence of his eight week period of work in April/May 2001.

CONSIDERATIONS AND FINDINGS

31. In addressing the Applicant's evidence, the Tribunal considers that he has declared the history of his employment, his injury at work and his continuing disability with a degree of frankness that reflected his particular circumstances, namely:

§ The nature of his chronic lower back problem.

§ The general background of limited education and employment experience in only labouring type activities.

§ The restrictions to future employment because of his chronic lower back problem.

§ The difficulties faced in seeking and being accepted for retraining, either vocational or educational.

32. In considering the Applicant's disability, the Tribunal notes that there is unanimity between the doctors in this matter the Applicant suffered and continues to suffer from a lumbosacral disc injury; that the condition causes him pain; that he is unable to work as a general labourer, and that he is restricted in undertaking bending or lifting movements. The Tribunal concludes that the Applicant does have a physical impairment, namely a lumbosacral disc injury (L4/S, L5/S1).

33. The qualification for disability support pension is set out in section 94(1) which provides:

"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;"

34. The Tribunal, as a consequence of its earlier finding that the Applicant as a physical impairment, concludes that the Applicant satisfies section 94(1)(a) of the Act.

35. In addressing section 94(1)(b) of the Act the Tribunal notes the medical evidence before it and particularly the evidence of Dr Arad, who in his report of 19 November 2001 detailed that the Applicant had back pain with a loss of half the normal range of movement of his thoraco lumbosacral spine and that the Applicant had informed him he could sit for 45 minutes, stand for one hour and walk for 500 metres. At the SSAT hearing the Applicant stated he could sit for 30-45 minutes, drive for 30 minutes and stand for longer than 15 minutes. The Tribunal observes that the assessment of the chronic lower back impairment is to be undertaken pursuant to schedule 1B Impairment Table 5.2, which states:

"TABLE 5.2 THORACO - LUMBAR-SACRAL SPINE

As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.

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:
	* with most physical activities and
	* with standing for about 15 minutes and
	* with sitting or driving for about 30 minutes.
	Or
	Loss of three-quarters of normal range of movement."

36. The Applicants evidence before this Tribunal is that he has great difficulty in bending, tying shoelaces, driving for half an hour, standing for 10-15 minutes, sitting for half an hour and walking 500 metres. The Applicant also described an inability to undertake many physical activities because of pain.

37. In considering all the evidence before it the Tribunal is satisfied that the Applicant's lower back impairment is consistent with a rating of 20 points under Table 5.2 in that there is clear evidence of a loss of half of normal range of movement as well as back pain with most physical activities, sitting and driving for 30 minutes and standing for 10-15 minutes. The Tribunal, in making such a finding, does note that there is some variability in the Applicant's statements as to the time interval between commencing to undertake a particular activity and his experience of pain, but considers that such variability may be consistent with the nature of the underlying condition and the quantum of activities and medication undertaken/consumed.

38. The Tribunal, as a consequence of its considerations to this point concludes that the Applicant satisfies both sections 94(1)(a) and 94(1)(b) of the Act.

39. In addressing section 94(1)(c)(i) of the Act the Tribunal notes the following sections of the Act:

"Meaning of continuing inability

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.(5) In this section:

"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."

40. In addressing the issue of continuing inability to work, the Tribunal notes that all the medical opinions indicate that the Applicant should not be employed in labouring activities requiring persistent bending and lifting. The Tribunal also notes that Drs Arad, Williams and Bickerton are of the opinion that the Applicant was fit to resume appropriate work for thirty hours a work, appropriate work being defined as not involving climbing, frequent bending, lifting more than five kilograms, or sitting or standing in the same position for more than 20 minutes. The three doctors nominated all indicated that the Applicant would require retraining, either vocational and/or on-the -job -training.

41. The Tribunal, while acknowledging the opinion of Dr Cooke that the Applicant was unfit for any form of work for more than two years, notes that the Applicant did undertake a period of general labouring work during the period of April/May 2001. That this work was performed over a period of eight weeks, with the Applicant working in excess of forty hours per week, but at a pace consistent with his impairment, indicates to the Tribunal that the Applicant has a capacity to undertake work.

42. The Tribunal, noting in turn the Applicant's desire to work and his desire to undertake training, concludes that the Applicant's impairment does not prevent him from working within the next two years. Further, the Tribunal concludes that the Applicant is not prevented by his impairment from undertaking educational, vocational or on the job training within the next two years and that his impairment will not prevent him from doing any work within two years, after the Applicant has undergone a period of vocational, educational or on-the-job-training.

43. In concluding as it has, the Tribunal has relied upon the verbal evidence of the Applicant and the opinions of Drs Arad, Williams, and Bickerton in relation to the Applicant's capacity for work. Further, the Tribunal considers Dr Cooke's opinion, while consistent with his opinion over time is not consistent with the work capacity demonstrated by the Applicant in April/May 2001. Further Dr Cooke's report lacks the necessary clinical detail and work capacity analysis to satisfy the Tribunal that his opinion should be preferred to that of the other three doctors.

44. As a consequence of the Tribunal's findings, the Tribunal concludes that the Applicant does not have a continuing inability to work and thereby fails to satisfy section 94(1)(c) of the Act. Accordingly the Applicant does not qualify for DSP.

DETERMINATIONS

45. The Tribunal determines that the decision under review be affirmed.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed: Ms H Kavadias

Associate

Date of Hearing 18 October 2002

Date of Decision 16 January 2003

Representative for the Applicant Self

Advocate for the Respondent Hannelore Schuster