Editors --- "Disability support pension: medical evidence for rating under requisite table" [2014] SocSecRpr 11; (2014) 16(2) Social Security Reporter, Article 3

• SECRETARY TO THE DSS and BUNWORTH
• Background
• The issue
• Discussion
• Medical evidence
• Other observations
• Formal decision

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Disability support pension: medical evidence for rating under requisite table

SECRETARY TO THE DSS and BUNWORTH

(4)

Decided: 3rd June 2014 by S.M McCabe

Background

Bunworth claimed the disability support pension (DSP). Bunworth suffered from lumbar spondylosis, Hepatitis C and a hearing impairment. He argued that his back condition attracted twenty points under the relevant impairment table and the Social Security Appeals Tribunal (SSAT) agreed with that assessment and decided that he was entitled to receive the DSP. The SSAT had been provided with a report from a job capacity assessor which suggested that Bunworth’s impairment would only attract 10 points under the table but rejected it in favour of its own assessment at the hearing.

The DSS sought review at the Administrative Appeals Tribunal (AAT) with fresh evidence in the form of a specialist report from an occupational physician.

The issue

The issue was whether Bunworth suffered from a back condition which attracted 20 points under Table Four of the Tables for the Assessment of Work- Related Impairment for Disability Sup-port Penion, and whether he was therefore entitled to the DSP.

Bunworth’s application for DSP was lodged on 5 March 2013 and the AAT therefore had regard to Bunworth’s con-dition at that point and in the thirteen-week period that followed (sch.2, cl.4 of the Social Security (Administration) Act 1999). The AAT found that there was no doubt that Bunworth suffered from a degenerative condition of the lumbar spine and Hepatitis C at the relevant time.

The Secretary argued that there was no evidence that the Hepatitis C im-paired Bunworth in any way and the AAT accepted that position. The hearing impairment was not discussed in material before the AAT.

Discussion

Bunworth met the first requirement for DSP under s.94 (1) (a) of Social Security Act 1991 (the Act) which was that the applicant have a physical, in-tellectual or psychiatric impairment.

The second requirement under s.94 (1) (b) of the Act is that the impairments attract at least 20 points under the relevant impairment tables.

The third requirement in s.94 (1) (c) is that the applicant has a ‘continuing inability to work’. That requirement includes undertaking a program of sup-port unless the person has a severe impairment which means it rates at least twenty points on one impairment table. Bunworth had not engaged in a pro-gram of support for the requisite length of time which would only be at issue if his impairment was found to attract less than twenty points under Table Four.

Medical evidence

The case turned on the medical evidence. Dr Adam provided the fresh medical re-port relied upon by the Secretary before the AAT. He was questioned in detail about his observations and conclusions. He agreed with the earlier job capacity assessment that Bunworth’s impairment attracted ten points under Table Four.

Dr Adam gave evidence that it was unlikely that Bunworth could ‘undertake any work’. Nevertheless, Bunworth did not have an impairment with a ‘severe’ functional impact that would result in an award of twenty points under Table Four. Under that Table a person has a ‘severe’ functional impact where:

(1) The person is unable to

(a) perform any overhead activities; or

(b) turn their head, or bend their neck, without moving their trunk; or

(c) bend forward to pick up a light object form a desk or table; or

(d) remain seated at least 10 minutes.

The evidence from Dr Adam was that the real issue was whether Bunworth could remain seated for 10 minutes.

Bunworth did not remain seated for 10 minutes during the course of the AAT hearing. The SSAT’s observation of the same thing appears to have been why it rejected the job capacity assessor’s opinion that a 10 point impairment rating applied.

Bunworth’s wife gave evidence at the AAT that he did not take painkillers on the day of the AAT hearing, in order to stay alert. Without the painkillers, it was harder for him to sit for longer periods.

Despite his observation of Bunworth at the AAT hearing, Dr Adam did not resile from the view that, at the time of consultation in January 2014, Bunworth could sit for at least 10 minutes. In particular, Dr Adam relied on the fact that Bunworth had travelled from the Gold Coast to Brisbane for the consultation with only one break.

Dr Adam acknowledged that someone would not meet the criteria of being able to sit for ten minutes if the person would endure serious pain.

The AAT considered the issue of whether a person could sit for at least ten minutes because they had taken painkillers. The AAT found that on a proper construction of the guidelines, if a person suffered significant pain by sitting for more than 10 minutes, then they should be considered unable to do so.

The AAT found that although at the date of hearing, Bunworth might have been unable to sit for at least ten minutes without painkillers, the question was what was the situation at the date of claim and in the thirteen-week period that followed.

The AAT considered the report of Dr O’Keefe dated 13 June 2013 which stated that Bunworth could sit for half an hour. The evidence was unclear as to whether a painkiller was being taken at that point.

The AAT found the evidence of Dr Adam and Dr O’Keefe to be consistent and also that the guidelines made it clear that the decision-maker should not rely on self-reporting. The AAT found it was constrained to accept the consistent medical evidence and that Bunworth did not qualify for the DSP.

Other observations

The result of the AAT decision was that Bunworth would be required to persist on newstart allowance. The AAT expressed no view as to whether a new claim for DSP would be successful.

Concern was expressed by Bunworth’s wife that her husband would have ‘trouble complying with activity requirements under the Newstart program if they were imposed insensitively’. The AAT assumed that any assessment of Bunworth’s job capacity would proceed on the basis of Dr Adam’s opinion. His opinion was that ‘Bunworth is practically incapable of work’ notwithstanding that Bunworth did not attract twenty impairment points. To avoid doubt, the AAT expressly preferred the report prepared by a ‘highly-credentialed and experienced medical practitioner’ over the job capacity assessment.

Formal decision

The AAT set aside the decision under review and decided in substitution that Bunworth did not qualify for the DSP. [M.O’H.]