Gunasena and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 889 (18 November 2009)

Last Updated: 18 November 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 889

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/5560

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Neville Gunasena

Applicant

And

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal

Dr T M Schafer, Member Dr S H Toh, Member

Date 18 November 2009

Place Sydney

Decision

The decision under review is affirmed.

..................[sgd]............................
Dr T M Schafer, Member
Dr S H Toh, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – job capacity assessment – impairment table – whether applicant has 20 impairment points – suitable employment – decision under review affirmed

LEGISLATION

Social Security Act (1991): s 94, Schedule 1B – Table 4, 5, 5.1 and 20

REASONS FOR DECISION

18 November 2009

Dr T M Schafer, Member Dr S Toh, Member

BACKGROUND

1. Mr Gunasena is currently 60 years of age and has a number of identifiable medical conditions which include intervertebral disc disorder, hypertension, entrapment of the lateral cutaneous nerve of the left thigh, high cholesterol and asthma.
2. Mr Gunasena has not worked since 2004. Prior to this he was employed at Star City Casino in Sydney, undertaking housekeeping duties.
3. On 10 September 2001, Mr Gunasena sustained a single neck injury, specifically a nerve root decompression, during the course of his work with Star City. He received relevant surgery to treat the condition in 2002 and successfully claimed a $20,000 Worker’s Compensation payment.
4. Mr Gunasena returned to work at Star City Casino following this injury, but suffered another injury whilst working there wherein he damaged the lateral cutaneous nerve of the left thigh on 12 July 2004. Mr Gunasena ceased working at Star City following surgery on his left thigh and has not been employed in any capacity since that time.
5. Subsequent to this, Mr Gunasena began receiving newstart allowance payments as he looked for suitable employment. He indicated that due to his physical limitations, his age and his educational background, having completed a year 10 equivalent and a hospitality course in Australia, he experienced difficulty in securing relevant and suitable work.

MR GUNASENA’S DISABILITY SUPPORT PENSION CLAIM

6. On 12 September 2007, Mr Gunasena contacted Centrelink by telephone to enquire about a claim for disability support pension (“DSP”).
7. On 26 September 2007, Mr Gunasena lodged a claim for DSP with Centrelink, supported by a letter from Dr Siri Kannangara and a treating doctor’s report from Dr Shanthini Tambimuttu dated 23 September 2007.
8. On 3 October 2007, Mr Gunasena undertook a face-to-face job capacity assessment conducted by Ms Rebecca Stone, Accredited Rehabilitation Counsellor with ORS Rehabilitation and Placement Service.
9. Centrelink subsequently decided on 11 October 2007 to reject Mr Gunasena’s DSP claim on the basis that his impairment was less than 20 points with reference to the provisions in the impairment tables contained in Schedule 1B of the Social Security Act 1991 (“the Act”).
10. On 11 December 2007, Mr Gunasena requested that the decision to reject his claim be reviewed upon the return of a new treating doctor’s report. This new report, dated 15 December 2007, was provided to Centrelink on 19 December 2007. As part of this report, Dr Tambimuttu identified cervical root compression as causing mild to moderate neck and arm pain when Mr Gunasena lifted weights, impacting on his ability to function whilst lifting heavy objects and the repetitive acts of bending, pulling and pushing. Additionally, Dr Tambimuttu identified hypertension and lateral cutaneous nerve of Mr Gunasena’s left thigh as being well managed and having limited impact on Mr Gunasena’s functionality.
11. As such, on 11 February 2008, the original decision maker affirmed the decision to reject Mr Gunasena’s DSP claim of 26 September 2007.
12. On 25 March 2008, an authorised review officer (ARO) at Centrelink also affirmed the decision to reject Mr Gunsena’s DSP claim, finding no evidence that supported a loss in range of movement resulting from Mr Gunasena’s cervical nerve root compression, hypertension or lateral cutaneous nerve of the left thigh.
13. Ultimately, the ARO assigned nil impairment points under Table 5.1 of Schedule 1B of the Act for the cervical nerve root compression and found the same under Table 4 and Table 20 with regard the hypertension and the left thigh conditions, respectively.
14. Mr Gunasena appealed the outcome of this 2008 ARO determination by lodging an appeal application with the Social Security Appeals Tribunal (“the SSAT”) on 10 April 2008. On 20 October 2008, the SSAT affirmed the decision of the ARO and did not assign impairment points for any of Mr Gunasena’s conditions (T2, pages 3-9)

APPEAL TO THIS TRIBUNAL

15. On 20 November 2008, Mr Gunasena lodged an application for review of the SSAT decision with this Tribunal. In this application, Mr Gunasena referred to asthma as being a new medical condition that ought to be considered in light of his DSP claim
16. On 15 May 2009, Mr Gunasena underwent another face-to-face job capacity assessment conducted by Ms Abby Watt, Registered Occupational Therapist at the ORS Group. Ms Watt was accompanied in her assessment by Ms Sonya Hackett, Registered Psychologist. This job capacity assessment was conducted for the express purpose of the present appeal before the Tribunal and took into account all relevant evidence that was available at that point in time.

ISSUE BEFORE THE TRIBUNAL

17. The issue before the Tribunal in this matter is whether, between 12 September 2007, when he first lodged his DSP claim with Centrelink, and 11 December 2007, Mr Gunasena had an impairment rating of at least 20 points as determined with reference to the impairment tables contained in Schedule 1B of the Act, and a continuing inability to work.

RELEVANT LEGISLATION

18. Section 94(1) of the Act sets out the criteria to be satisfied in order for an individual to qualify for DSP. The relevant provisions of section 94 as they were in force at the time of Mr Gunasena’s claim for DSP are 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) ...

(ii) the person has a continuing inability to work ...

19. Insofar as Mr Gunasena’s case is concerned, the Tribunal is focused specifically on the provisions contained in paragraph 94(1)(b) and subparagraph 94(1)(c)(i) of the Act and whether Mr Gunasena satisfies these criteria to qualify for DSP.
20. The Tribunal accepts that, at the time of his claim for DSP, Mr Gunasena had a physical impairment pursuant to paragraph 94(1)(a) of the Act.
21. The Tribunal must therefore determine whether:
    • at the time of his application for DSP, Mr Gunasena’s physical impairment amounted to 20 points as calculated pursuant to the Impairment Tables contained in Schedule 1B of the Act; and
    • whether, as a result of his physical impairment, Mr Gunasena has a continuing inability to work.

CONSIDERATION OF EVIDENCE

22. Mr Gunasena gave little evidence before the Tribunal. He was more than an hour late for the hearing, showed no interest in responding to direct questions from the Tribunal and walked out of the hearing after 10 minutes. Accordingly, this decision of the Tribunal is largely based on the written evidence presented by the parties.
23. The Tribunal had access to the following documents at the hearing which were relevant in determining the nature of Mr Gunasena’s medical conditions and whether the sum of these conditions amounted to 20 impairment points pursuant to Schedule B of the Act:
    1. Medical report of Dr Siri Kannangara, dated 21 September 2007;
    2. Treating doctor’s reports of Dr Shanthini Tambimuttu, dated 23 September 2007 and 4 December 2007;
    100. Job capacity assessment conducted by Rebecca Stone, dated 3 October 2007 (“the first JCA”);
    4. Job capacity assessment conducted by Abby Watt, dated 13 May 2009 (“the second JCA”); and
    5. Medical report of Dr Siri Kannangara, dated 22 May 2009.
24. Consideration of the above documents shows a consistent opinion amongst the various medical practitioners that Mr Gunasena, despite his medical conditions, was still capable of undertaking light and limited work duties. The contents and findings of each of these documents will now be considered in turn to determine whether Mr Gunasena satisfies the relevant requirements of subsection 94(1) of the Act to qualify for DSP.
25. The first medical report of Dr Kannangara found that Mr Gunasena had a prolapsed intervertebral disc at C6/7 level which caused a C7 radiculopathy on the left side owing to his 2001 work injury. The report also found that Mr Gunasena suffered from entrapment of the lateral cutaneous nerve in his left thigh stemming from the injury he sustained at Star City in 2004.
26. Dr Kannangara stated that his patient suffered from cervical pain, some left arm pain, lower back pain and hyperaesthesia in the anterior region of the left thigh. Dr Kannangara was ultimately of the opinion in that report that Mr Gunasena was unfit to undertake his previous work duties but that he was “certainly fit to do part time duties” and should have “restricted weight lifting” due to the discomfort experienced by him in his back, arm and left thigh.
27. In correlation with his DSP claim lodged on 26 September 2007, a treating doctor’s report completed by Dr Shanthini Tambimuttu was provided. In that report, Dr Tambimuttu confirmed that Mr Gunasena suffered from cervical nerve root compression which caused pain in his neck and left arm and caused him difficulty in lifting heavy objects and undertaking repetitive physical activities such as bending over, pulling or pushing. Mr Gunasena was also found to be suffering from hypertension and lateral cutaneous nerve of the left thigh, but that both these conditions were generally well managed through relevant treatments and had nil impact on his ability to function.
28. The first JCA, conducted by Ms Rebecca Stone in connection with Mr Gunasena’s initial claim for DSP, again found that Mr Gunasena suffered from cervical nerve root compression of the spine. Ms Stone assigned 10 impairment points pursuant to Table 5.1 of Schedule 1B of the Act for this condition. She found that Mr Gunasena was then capable of working 8-14 hours per week and up to 15-22 hours per week in light duties with relevant intervention to alleviate his condition. The assessment noted that Mr Gunasena expressed concern that the primary barriers to his being employed were his age, work experience and limited physical capacities. Ms Stone recommended a number of interventions to address this, such as vocational rehabilitation, a pain management program and voluntary work.
29. The second JCA was conducted by Ms Abby Watt and Ms Sonya Hackett for the specific purpose of the appeal currently before the Tribunal, and was done so in consideration of all relevant evidence, including the medical report of Dr Kannangara dated 22 May 2009. The assessors considered Mr Gunasena’s cervical nerve root compression, hypertension, lateral cutaneous nerve in his left thigh, asthma and high cholesterol, assigning nil points under Table 5.1 of Schedule 1B of the Act in relation to the cervical nerve root compression; nil points under Table 4 for hypertension; and nil points under Table 20 for the lateral cutaneous nerve condition. Nil functional impact was assigned to Mr Gunasena’s conditions of asthma and high cholesterol as they were observed to be properly managed on ventolin and medication, respectively. The assessors found that Mr Gunasena had a current work capacity of 8-14 hours per week with a gradual increase to 15-22 hours per week within two years with relevant and proper assistance and intervention.
30. The medical report of Dr Kannangara dated 22 May 2009 stated that due to the recurrence of his cervical pain, Mr Gunasena should be restricted to light work duties and that his work hours be limited to 6-8 hours per week.

ASSESSMENT OF MR GUNASENA’S CONDITIONS

31. In light of this medical evidence, the Tribunal must consider Mr Gunasena’s conditions with reference to the Impairment Tables contained in Schedule 1B of the Act.

SPINAL FUNCTION

32. Table 5 of the Impairment Tables relates to the impairment of spinal function. Table 5.1 pertains to impairment ratings of the cervical spine and Table 5.2 pertains to impairment ratings of the thoraco-lumbar-sacral spine.
33. An impairment rating is assigned based on an assessment of spinal function. For an impairment rating of more than NIL to be assigned, Table 5.1 specifies that a person must have lost at least one-quarter of the normal range of movement and function. It further requires that the loss of function is accompanied by pain.
34. Mr Gunasena stated that he has ongoing pain in his neck, upper back and arms and is, therefore, unable to bend or lift heavy objects. He also stated that his condition prevents him from sitting for more than 5 minutes at a time and yet the first JCA observed him sitting for more than 45 minutes with limited movement.
35. Dr Tambimuttu's reports stated that Mr Gunasena reported occasional pain of the neck and shoulders, neck and arm pain when lifting weights, and difficulty with repetitive bending, pushing and pulling. This was consistent with Dr Kannangara's report, which stated that Mr Gunasena reported pain and discomfort in the cervical spine, low back and shoulders, and difficulties when lifting weights.
36. On 3 October 2007, the first JCA identified that Mr Gunasena had a loss of half of the normal range of movement, frequent neck pain or loss of three quarters of the normal range of movement with infrequent neck pain. This assessment appears to be inconsistent with the medical reports of Dr Tambimuttu and Dr Kannangara, which did not refer to any loss of movement but cited pain as being associated with heavy lifting.
37. The ARO determined that the first JCA's findings were not supported by the medical evidence and assigned nil impairment points for Mr Gunasena's condition. Similarly, the SSAT observed that Mr Gunasena did not appear to have any difficulty moving and "demonstrated a good range of movement". They also assigned nil impairment points for Mr Gunasena's condition.
38. Mr Gunasena was only present at the hearing before this Tribunal for 10 minutes. There is no evidence, either in the medical reports or in other evidence before this Tribunal, that Mr Gunasena's normal range of movement is impaired, other than perhaps during the course of lifting heavy weights. The Tribunal, therefore, assigns a nil impairment rating in relation to Mr Gunasena's spinal function.

HYPERTENSION

39. Table 20 contains impairment ratings for miscellaneous conditions, including hypertension.
40. Dr Tambimuttu stated in the treating doctor’s reports dated 23 September 2007 and 4 December 2007 that Mr Gunasena's hypertension was generally well managed and had minimal or limited impact on Mr Gunasena's ability to function.
41. Both the ARO and SSAT assigned nil impairment points for Mr Gunasena's hypertension on the basis that the condition was well-controlled with medication. The Tribunal agrees with this assessment and also assigns a rating of nil impairment points for this condition.

LATERAL CUTANEOUS NERVE OF LEFT THIGH

42. Table 4 is used to assess impairment of function of lower limbs.
43. Dr Tambimuttu stated in the treating doctor’s report dated 4 December 2007 that this lateral cutaneous nerve condition was well managed and that there was minimal or limited impact to Mr Gusanena's ability to function. Dr Kannangara stated that there was some hyperaesthesia of the left thigh, but did not indicate that this resulted in any functional impairment. Importantly, Mr Gunasena told the SSAT that he received neurolysis treatment in 2004 for this condition and had not experienced any pain in his thigh since that treatment, nor had he undergone any further treatment. On this basis, the SSAT assigned nil impairment points under Table 4 for this condition.
44. On the basis of the medical evidence and Mr Gunasena's evidence before the SSAT, the Tribunal also assigns a nil impairment rating for this condition.

ASTHMA

45. The Tribunal notes that Mr Gunasena referred to a new condition, asthma, in support of his application to the Tribunal. However, the relevant time that the Tribunal must take into consideration in relation to Mr Gunasena's medical condition is at the time Mr Gunasena applied for DSP, which was 26 September 2007. At that time or, indeed, up until Mr Gunasena submitted his application for review by this Tribunal, no evidence had been provided that Mr Gunasena suffered from asthma. The Tribunal will, therefore, not consider this condition in its review of Centrelink's decision to reject Mr Gunasena's application for DSP.

MR GUNASENA'S TOTAL IMPAIRMENT RATING

The Tribunal decides that Mr Gunasena's total impairment rating during the period in question is nil. Accordingly, he did not meet the requirements pursuant to paragraph 94(1)(b) of the Act and did not, therefore, qualify for the DSP.

Decision

46. For the reasons stated above, the decision under review is affirmed.

I certify that the forty-six (46) preceding paragraphs are a true copy of the reasons for the decision herein of Dr T M Schafer, Member and Dr S H Toh, Member

Signed: ..........................[sgd]......................................................

Associate

Date of Hearing 20 July 2007

Date of Decision 18 November 2009

Appearance for the Applicant Self-represented

Appearance for the Respondent Mr J Larcombe, Centrelink Legal Services