ABD ALAMEER AL AARAJI and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2010] AATA 561
•27 July 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 561
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3901
GENERAL ADMINISTRATIVE DIVISION ) Re ABD ALAMEER AL AARAJI Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr J Chaney, MemberDate27 July 2010
PlacePerth
Decision The Tribunal affirms the decision under review. ….(sgd) S D Hotop.....
Deputy President
CATCHWORDS
SOCIAL SECURITY – disability support pension – qualification requirements– applicant has impairment – applicant’s impairment is of 10 points under Impairment Tables – applicant not qualified for disability support pension – decision under review affirmed
Social Security Act 1991 (Cth), s 94 and Sch 1B
REASONS FOR DECISION
27 July 2010 Deputy President S D Hotop
Dr J Chaney, MemberIntroduction
1.Abd Alameer Al Aaraji (“the applicant”), who is 54 years of age, was granted disability support pension (“DSP”) under the Social Security Act 1991 (Cth) (“the Act”) with effect from 12 April 2006.
2.Following a DSP medical review by Centrelink in the latter half of 2008, the applicant was notified by a Centrelink officer, by letter dated 19 January 2009, that a decision had been made that he was not presently qualified for DSP and that his last payment of DSP would be made on 2 March 2009.
3.On 22 April 2009 a Centrelink authorised review officer (“ARO”) affirmed the decision to cancel the applicant’s DSP, with effect from 2 March 2009.
4.On 7 August 2009 the Social Security Appeals Tribunal (“SSAT”) affirmed the ARO’s decision.
5.On 20 August 2009 the applicant made an application to this Tribunal for review of the SSAT’s decision.
The Relevant Legislation
6.The conditions which must be satisfied before a person is qualified for DSP are set out in paras (a) – (f) of s 94(1) of the Act. It is common ground that the applicant satisfies the conditions set out in paras (d) – (f) of s 94(1). Section 94 of the Act otherwise relevantly 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;
…
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 independently of a program of support within the next 2 years; and
(b) either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
…
94(5) In this section:
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) pre‑vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work‑related training (including on‑the‑job training).
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
…”
7.The “Impairment Tables” referred to in para (b) of s 94(1) are set are set out in Schedule 1B to the Act and are relevantly referred to in paragraphs 18 – 22 below.
The Evidence
8.The evidence before the Tribunal comprised:
·the “T Documents” (T1-T19), pp 1-322) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”);
·Exhibit A1 tendered by the applicant;
·Exhibit R1 tendered by the respondent; and
·the oral evidence of the applicant.
The applicant’s evidence
9.The applicant did not substantially dispute the accuracy of the SSAT’s summary of his evidence at the hearing before that Tribunal on 7 August 2009, as recorded in its Reasons for Decision (T2, pp 10-11). That evidence was summarised by the SSAT as follows:
“ · He cannot understand how Centrelink can cancel his pension when his doctor says he cannot work because of his many permanent medical conditions.
·His main complaint is of pain in his lower back and neck which are due to four car accidents he had in a period from June 2002 to 2003. The back pain goes into his legs and the neck pain causes a headache which goes through his head to his forehead. These pains are both as severe as each other and are always there – he has pain when he walks, moves and sits. He takes four to six Panadol tablets a day for his pain.
·He had been on other painkillers back in 2005 and 2006 but ceased all of them as they were not working – he cannot recall what they were. He tried a different painkiller for a while in January 2009 but he cannot remember the name of it. He has not been referred to a pain management specialist or clinic by his GP.
·His pain severely restricts everything he can do. He sits at home all day doing nothing. He does not do any housework – this is done by his daughter. He can drive short distances, he takes his daughter to the shopping centre, but he sits and waits while she does the shopping. He has just returned to his part-time study in Biomedical Science at Curtin University, for eight hours a week. He missed the first semester of 2009 as his pain was so severe.
·He suffers from Depression and takes Effexor (sic) 150 mg daily. He has been on this for about a year, and had previously been on different anti-depressants, but can’t recall their names – he cannot recall whether his medications were changed by his GP or his specialist. He had been under a psychiatrist, Dr Allett, at RPH but last saw him about two years ago.
·He has recently commenced seeing a psychologist, to whom he was referred by Dr Lim, his other GP, at Curtin University. These attendances are covered by Medicare and he has seen her on four occasions since November last year. He has his next appointment in late August or early September. She just talks to him about his condition and his condition has not changed since he has been seeing her.
·He sees two GPs – Dr Beshay is his main GP whom he sees about once a month and who writes his prescriptions. He saw Dr Lim at Curtin University when he had chest pain in 2007 and he still sees him from time to time if it is easier to get into see him than Dr Beshay.
·He was diagnosed with diabetes in 2004 and was treated with a tablet, the name of which he cannot recall. He now takes Metformin 500 mg daily. He checks his blood sugar level two or three times a day after meals. His diabetes has not been reviewed by a specialist since he was hospitalised in 2004.
·The diabetes causes dryness of the mouth, tiredness, headaches, numbness of his toes and feet and has affected his vision. He is able to distinguish the diabetes headaches from the headaches related to his neck pain and knows that they indicate a high blood sugar level.
·He can also distinguish the discomfort in his feet from the pain caused by his back injury. He recalls being referred to a specialist regarding his feet in about 2000 − the specialist apparently wanted him to have some special treatment but it was not covered by Medicare and he was not able to afford it.
·He has his vision checked regularly by an optometrist in the city.
·In 2007 he experienced an episode of chest pain at Curtin University and was taken by ambulance to RPH where he underwent an angiogram. He understands that no abnormality was found on the angiogram. He had another admission in 2008 and was commenced on a range of new medications. He gets chest pain about two or three times a month, which is relieved by taking a tablet under his tongue. He thinks his chest pain relates to heavier than normal physical activity and stress. He has had no other specific investigation or treatment for his chest pain.
·He takes one tablet daily for his high blood pressure. Dr Beshay checks his blood pressure every time he sees her.
·He says he has poor memory and concentration and this has been the case all the time since 2003. He has been given 10 mg Valium tablets to take when he is stressed, but rarely uses them.”
10.In response to questioning by the respondent’s representative, the applicant gave the following evidence:
· when he was studying at Curtin University he did not undertake a full-time load of 5 units – in the first semester of 2008 he undertook 4 units but passed in only 1 unit because of his medical condition, and in the second semester he undertook only 1 unit;
· in the second semester of 2009 he transferred to Murdoch University and tried to complete his degree course – he initially enrolled in 3 units but after a couple of weeks he found that he could not manage that load so he reduced his load to 2 units, and he is presently undertaking 2 units in the first semester of 2010;
· he does not always attend University classes for 8 hours per week – sometimes he attends more than 8 hours per week, other times fewer than 8 hours – he attends the practical laboratory classes (which can sometimes go for up to 2 ½ hours), and if he is feeling “OK” he attends lectures (which go for 45 minutes), otherwise he listens to recordings of the lectures at home;
· the amount of time he devotes to studying and completing assignments at home depends on how he is feeling;
· work experience in laboratories is not required by Murdoch University but when he was studying at Curtin University he was required to spend 2 weeks in a hospital laboratory on a full-time basis, but it was “not like work” because all he had to do was “watch a computer”;
· he has had 20 years’ experience as a laboratory technician and could earn $400 per day working in a hospital, but he cannot work because of his headaches, “heart attacks”, depression, and neck and back pain;
· he likes to study at University – he and his wife, who also has depression, have been separated under one roof for 2 years and if he stayed at home they would argue;
· studying is “not easy” for him but it helps with his health condition;
· when he completes his degree course he hopes he will be able to work;
· he has 5 children – 3 daughters (aged 20 years, 18 years and 5 years) and 2 sons (aged 15 years and 12 years);
· the shopping and the cooking are done by one of his daughters, and the housework is shared amongst his children;
· he has been seeing 2 general practitioners, namely, Dr Beshay since 2000, and Dr Lim since 2007;
· he has been referred to hospital for chest pain 4 times since 2007 – 3 times when he was studying at Curtin University, and once since he commenced studying at Murdoch University;
· the medication for his chest pain is “aspirin for the time being”;
· he recently had high blood pressure and he was referred for an ECG (the referral form, dated 15 April 2010, is Exhibit A1);
· he was referred to a psychologist, Ms H Catalan, by Dr Lim and he first saw her in November 2008, and in July 2009 she found that he had extremely severe depression;
· he has not seen Ms Catalan recently although he has tried to make an appointment but she has not returned his calls;
· he continues to take Efexor, an anti-depressant medication;
· he saw some psychiatrists in the period 2002 – 2006 and when he last saw them they felt that he was getting better, but he recently got worse and was then referred to Ms Catalan;
· for his neck/back pain and headaches, he sometimes takes 2 – 4 Panadol tablets, and at other times Panadiene Forte “as required”;
· overall his health has not improved since 2006 (when he was granted DSP) – he has had “heart attacks” since 2007, his blood sugar level was higher recently, and he is on medication for his high blood pressure;
· he has not been referred to any specialists for any of his medical conditions;
· he travelled overseas to visit his very sick mother twice in 2009 – in October 2009 he met her in Dubai, and in November 2009 he visited her in Iraq.
The relevant medical evidence
11.The T Documents contain much medical material dating back to 2002 relating to multiple motor vehicle accidents involving the applicant in 2002 and 2003, as a result of which the applicant was said to be suffering from various ailments including neck pain, headaches, lower back pain, and secondary depression. The T Documents also contain medical material in connection with his claim for DSP in April 2006 which was granted on the basis of his neck pain, back pain and depression.
12.As regards the applicant’s DSP medical review which was undertaken by Centrelink in 2008, the relevant Treating Doctor’s Report completed by Dr Beshay, dated 20 June 2008, contains the following relevant information (T6, pp 196-200):
· in response to the question: “Does the patient have one or more medical conditions which have a SIGNIFICANT impact on their ability to function….?”, the “No” box is marked;
· in response to the request to provide details about the relevant medical conditions and to list those conditions “in order of degree of impact on ability to function – starting with condition with most impact”, the following information is provided:
Condition 1
Diagnosis
“Chronic depressive illness”
History
“Long standing history of depression
→ was under psychiatrist RPH”
Current symptoms
“Tiredness
Poor concentration
Loss Energy
Isolated”
Current treatment
“Efexor – XR”
Compliance with recommended treatment
“Very Compliant”
Impact on ability to function
“Needs help with activities of daily living”
Expected duration of current impact on ability to function
“More than 24 months”
Expected progress of effect on ability to function within next 2 years
“Remains unchanged”
Condition 2
Diagnosis
“Hypertension, NIDDM”
History
“History of hypertension, NIDDM for few years, seen at RPH”
Current symptoms
“Sugars ↑ and ↓
Blood pressure labile
Headaches
Tiredness”
Current treatment
“Diabex
Olmetec Plus”
Compliance with recommended treatment
“Very compliant”
Impact on ability to function
“Needs help with activities of daily living”
Expected duration of current impact on ability to function
“More than 24 months”
Expected progress of effect on ability to function within next 2 years
“Remains unchanged”.
13.A Job Capacity Assessment Report prepared by Oscar Tejera, Registered Psychologist, Centrelink, dated 27 October 2008 (T7), included the following assessment of the applicant’s work capacity:
“ Current Work Capacity
Current (baseline) capacity for work: 8-14 Hours per week
(Excludes any temporary impacts noted above)
Rationale:Permanent and fully diagnosed, treated, and stabilised conditions identified and documented are: NIDDM, Hypertension, Depression, Low Back Pain, Neck Pain, Ischaemic Heart Disease. These conditions contribute to levels of fatigue which render full time employment unsustainable. They also contribute to frequent headaches which further debilitate Mr Al Aaraji. However, the main limitation to work capacity arises from chronic neck pain and stiffness. This is brought about by a whiplash injury sustained in 2002. It renders Mr Al Aaraji unable to engage in physically demanding work, and limits the amount of time he can spend in a fixed position – working at a keyboard, for instance. Pain is frequently felt to radiate down both arms and affect finger tips. Nevertheless Mr Al Aaraji has been able to sustain tertiary study albeit in a part time capacity, and is expected to retain some capacity to engage in work tasks of a sedentary or light nature: for instance, work in his previous occupation of laboratory technician.
Suitable work: Light skilled (W01)
Examples: Laboratory work.
Future Work Capacity
Future capacity for work within 2 years without intervention: 8-14 hrsperweek
Rationale: It is unlikely capacity will increase without a rehabilitation program
Future capacity for work within 2 years with intervention: 15-22hrs per week.
Rationale: Even with VRS assistance, Mr Al Aaraji is likely to experience endurance problems, arising mainly from neck pain and stiffness.
Suitable work: Light skilled (W01)
Examples: Laboratory work.”
The report also included the following assessment summary:
“Mr Al Aaraji is a 52 year old man living with his family. He is a qualified laboratory technician and is currently studying part-time at Curtin University towards a degree in Biomedical Science. He commenced this course in 2006. Mr Al Aaraji arrived in Australia in 2000. He has not worked during this time. In 2002 he was involved in a motor vehicle accident in which he sustained a severe whiplash injury, and he is still experiencing the residual effects of this. He has also developed a number of chronic illnesses: Hypertension, Type 2 Diabetes, Lumbar Pain, Ischaemic Heart Disease, and Depression. These conditions are permanent and fully diagnosed, treated and stabilised. Only the neck injury is assessed to attract an Impairment Table score: 10 points on Table 5.2. His Current and Future Capacity to Work without interventions is assessed at 8-14 hours. It is expected that with Vocational Rehabilitation this can be increased to 15-22 hours at least over the next 24 months. He may require a referral to a Complementary Programme – Language Literacy and Numeracy – if his spoken English precludes participation in VRS.” (T7, p 210)
14.A Centrelink DSP Medical Report form completed by Dr Beshay, dated 6 March 2009, contains the following relevant information (T10):
· in response to the question: “Does the patient have one or more medical conditions that have a significant impact on their ability to function?”, the “Yes” box is marked;
· in response to the request to provide details about the relevant medical conditions and to list those conditions “in order of degree of impact on ability to function, starting with condition with most impact”, the following information is provided:
Condition 1 – condition with most impact
Diagnosis
“Chronic depressive illness”
History
“History of depression for many
years”
Current symptoms
“Feels down/depressed
Low mood
Poor concentration
Tiredness”
Current treatment
“Efexor”
Past treatment
“Psychiatrist”
Future/planned treatment
“Continue anti-depressants”
Compliance with recommended treatment
“Very compliant”
Impact on ability to function
“Needs help with activities of daily
living”
Expected duration of current impact on ability to function
“More than 24 months”
Expected progress of effect on ability to function within next 2 years
“Remain unchanged”
Condition 2
Diagnosis
“NIDDM poorly controlled”
History
“Tiredness, lethargic
Unwell for months →
bloods at RPM → ↑ BSC”
Current symptoms
“Tiredness
Sugars fluctuate easily”
Current treatment
“Metformin”
Past and future/planned treatment
“As above”
Compliance with recommended treatment
“Very compliant”
Impact on ability to function
“Needs help with daily living”
Expected duration of current impact on ability to function
“More than 24 months”
Expected progress of effect on ability to function within next 2 years
“Remain unchanged”.
In response to the question: “Does the patient have any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function?”, the “Yes” box is marked and the following information is provided:
Condition (diagnosis) “Hypertension”
Treatment “Olmetec Plus”
Significant improvement “Yes”.
expected?
15.A Centrelink DSP Medical Report form completed by Dr Beshay, dated 25 March 2009 (T2, pp 31-38):
·again specifies “Chronic depressive illness” as the condition having most impact on the applicant’s ability to function, and provides similar information to that provided in the abovementioned report of 6 March 2009 but adds that future/planned treatment includes “seeing psychologist”;
·describes Condition 2 as “Chronic neck pains, low back pain post MVIT” and provides the following information:
History
“MVIT 2002, 2003 → disc prolapse cervical and lumbar L4/5”
Current Symptoms
“Neck pains → headaches
Low back pain → pain referred
both lower limbsNumbness both feet”
Current treatment
“Pain killers”
Past treatment
“Pain killers”
Future/planned treatment
“Pain killers”
Compliance with recommended treatment
“Very compliant”
Impact on ability to function
“Needs help with activities of daily
living”
Expected duration of current impact on ability to function
“More than 24 months”
Expected progress of effect on ability to function within next 2 years
“Remain unchanged”.
In response to the question: “Does the patient have any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function?”, the following information is provided:
Condition (diagnosis) Treatment Significant improvement
expected?
1 Hypertension Olmetec Plus Yes
2 NIDDM Diabex Yes.
16.A Centrelink DSP Medical Report form completed by Ms H Catalan, Psychologist, dated 29 July 2009, specifies “depression” as having a significant impact on the applicant’s ability to function and provides the following information in respect of that condition:
·History
“ Mr Al Aaraji reported a history of experiencing symptoms of depression at times of stress (eg car accidents). In my opinion, Mr Al Aaraji’s presenting symptoms of depression developed in the context of perceived unfavourable treatment by university lecturers. Specifically, Mr Al Aaraji perceived the lecturers as treating him unfairly and with a lack of concern in 2007 and since.”
·Current symptoms
“Mr Al Aaraji reported sleep disturbance specifically hypersomnia most days of the week, a loss of interest and pleasure and associated social withdrawal/avoidance, low and irritable mood, concentration difficulties and poor energy levels. As noted above Mr Al Aaraji scored in the ‘extremely severe’ range on the Depression Scale of the DASS” [Depression and Anxiety Stress Scale administered to him on 29 July 2009].
·Current treatment
“ Mr Al Aaraji has attended four sessions of psychotherapy with me on the following dates: 3/11/08, 23/2/09, 23/7/09, and 29/7/09.”
·Past treatment
“ Mr Al Aaraji reported sporadic contact with a counsellor at Curtin University.”
·Future/planned treatment
“ Mr Al Aaraji expressed a desire to continue with psychotherapy to continue addressing his presenting symptoms of depression.”
·Compliance with recommended treatment
“ Uncertain”
·Impact on ability to function
The following impacts are indicated:
-“ability to move”
-“endurance
-“cognitive function”
·Expected duration of current impact on ability to function
“3 – 24 months”
·Expected progress of effect on ability to function within next 2
years
“Uncertain – Dependent on his compliance with treatment/psychotherapy but more so on the outcome of his appeal against termination of his University enrolment.” (T2, pp18-24)
17.A letter from Dr Beshay addressed “To whom it may concern”, dated 18 February 2010, states as follows:
“ Mr Al Aaraji suffers with a chronic depressive illness, he has been attending my services for many years since 2000, he was previously under a psychiatrist at Royal Perth Hospital, currently seeing a psychologist in Fremantle, his depression is difficult, compliant with his medications, not fit for any work duties at the time being.
He also suffers with malignant hypertension, non insulin diabetus mellitus poorly controlled, admitted twice to Royal Perth Hospital with chest pains, on regular medications,always stressed, his numbers always high, gets bad headaches, poor concentration, dizziness most of the time, making his ability to share in the work force very limited.
He also suffers with chronic neck, back pains, chronic insomnia since motor vehicle accidents 2002 and 2003, pain poorly controlled, poor sleep, loss of concentration, lethargy, again not suitable to do any working hours.
I hope this information would be of value in manging his case. (sic)”
(part of Exhibit R1)
The Impairment Tables
18.Schedule 1B to the Act is headed: “Tables for the assessment of work-related impairment for disability support pension”. The tables themselves are preceded by an “Introduction“ in which it is relevantly stated:
“1. These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work. …
2. These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. …
…
4. A rating is only to be assigned after a comprehensive history and examination. 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 for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
·what treatment or rehabilitation has occurred;
·whether treatment is still continuing or is planned in the near future;
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
·treatment that is feasible and accessible ie, available locally at a reasonable cost;
·where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:
·evaluate and document the probable outcome of treatment and the main risks and or (sic) side effects of the treatment; and
·indicate why this treatment is reasonable; and
·note the reasons why the person has chosen not to have treatment.
…
8. In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates. Medical officers must use their clinical judgement and be convinced that pain or fatigue is a significant factor contributing towards the person’s overall functional impairment. Medical reports and the person’s history should consistently indicate the presence of chronic entrenched pain or fatigue.
…” (original emphasis)
19.Table 5, which is used to assess spinal impairments, is as follows:
“ TABLE 5 SPINAL FUNCTION
Determination of spinal impairments must be based on a demonstrable loss of function
TABLE 5.1 Cervical Spine
Rating Criteria
NIL Normal or nearly normal range of movement.
FIVE Loss of quarter of normal range of movement.
TENLoss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain.
TWENTYLoss of three-quarters of normal range of movement and constant neck pain.
THIRTYLoss of almost all movement, or complete ankylosis in position of function.
FORTYAnkylosis in an unfavourable position, or unstable joint.”
TABLE 5.2Thoraco-lumbar-sacral spine
As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movements and is not intended to measure mobility of individual spinal segments.
RatingCriteria
NILNormal or nearly normal range of movement.
FIVELoss of one-quarter of normal range of movement.
TENLoss 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.
TWENTYLoss 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.
FORTYAnkylosis in an unfavourable position, or unstable joint.”
20.Table 6, which is used to assess psychiatric impairment, is as follows:
“It is important to record a detailed psychiatric history, a mental state examination, and to distinguish between temporary and permanent psychiatric disorders. … Table 6 is used for permanent psychiatric disorders only. If there is insufficient clinical information available, a current or recent specialist report should be obtained.
Rating Criteria
NILMild but regular symptoms which tend to cause subjective distress. On most occasions able to distract themselves from this distress. Minimal interference with function in everyday situations. Exacerbation of symptoms may cause occasional days off work. (eg There may be some loss of interest in activities previously enjoyed. There may be occasional friction with family, colleagues or friends.) Medical therapy or some supportive treatment from treating doctor may be required.
TENModerate and regular symptoms and generally functioning with some difficulty (eg noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships). May have received psychiatric treatment which has stabilised the condition. Minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work (eg short periods of absence from work).
TWENTYPsychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms). There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.
THIRTYSerious psychiatric illness with major impairments in several areas, such as work, interpersonal relations, judgement, thinking, or mood (eg depressed person avoids friends, neglects family, unable to do housework), OR some impairment in reality testing or communication (eg speech is at times obscure, illogical or irrelevant).
FORTYMajor chronic psychiatric illness which results in an inability to function in almost all areas, OR behaviour is considerably influenced by either delusions or hallucinations, OR serious impairment in communication (eg sometimes incoherent or unresponsive) or judgement (eg acts grossly inappropriately).”
21.Table 19, which is used to assess impairments caused by “endocrine disorders”, is as follows:
“TABLE 19 ENDOCRINE DISORDERS
The effects of endocrine disorders eg diabetes mellitus on other body systems eg the vascular and visual systems should be assessed from the appropriate tables and added together with values from this table.
Rating Criteria
NILThyroid disease, Acromegaly, Cushing’s disease, Prolactinoma, Diabetes Mellitus, Diabetes Insipidus, Parathyroid Disease, Paget’s disease, Osteoporosis, Addison’s disease adequately controlled with hormone replacement and/or surgery and/or radiotherapy and/or therapeutic agents.
TENThyroid disease, Acromegaly, Cushing’s disease, Prolactinoma, Diabetes Insipidus, Parathyroid Disease, Paget’s disease or Osteoporosis which is incompletely controlled or treated eg symptomatic Paget’s disease, osteoporosis or other bone disease with pain not completely controlled by continuous therapy.
TWENTYDiabetes mellitus or Addison’s Disease not satisfactorily controlled despite vigorous therapy as indicated by for example frequent hospital admissions, recurrent hypoglycaemic or hypotensive episodes and/or progressive end organ damage.”
22.Table 20, which is used to assess impairments caused by “miscellaneous conditions”, is (relevantly) as follows:
“Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used. Double-counting of a particular loss of function, by the use of more than one Table, must be avoided.
Rating Criteria
NIL Controlled hypertension
…
Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.
TENMild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.
Hypertension that is difficult to control despite intensive therapy but without end-organ damage.
…
FIFTEEN Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible.
…
TWENTYMore severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work.
THIRTYVery severe symptoms which lead to substantial difficulty with most daily tasks. Assistance with elements of self-care may be required. Symptoms cause severe interference with ability to work or attend work (ie minimal residual work capacity).
…
FORTYMajor restrictions in many everyday activities. Capacity for self-care is restricted, leading to dependence on others. No residual work capacity.”
Analysis
Impairments
23.It is common ground that, at all material times, the applicant has had a psychiatric impairment and various physical impairments, within the meaning of para (a) of s 94(1) of the Act, by reason of his suffering from the following conditions, namely, depression, neck pain, back pain, non-insulin-dependent diabetes mellitus, hypertension, and chest pain.
24.The first matter for the Tribunal’s determination is whether the applicant, when his DSP was cancelled, had a total impairment, by reason of the abovementioned conditions, of at least 20 points under the Impairment Tables, for the purposes of para (b) of s 94(1) of the Act.
Depression
25.According to the applicant’s own evidence, the only period in which he was seen by a psychiatrist was the period 2002–2006, There is, however, no evidence before the Tribunal regarding the diagnosis, treatment and progress of his psychiatric condition in that period other than the applicant’s own evidence that “they felt he was getting better”.
26.Since 2006, according to the evidence before the Tribunal, the only medical treatment which the applicant has received for his psychiatric condition comprised the anti-depressant medication “Efexor” prescribed by his general practitioner, Dr Beshay, until November 2008 when he also commenced to receive psychotherapy treatment from Ms Catalan, Psychologist. In her report of 29 July 2009 Ms Catalan opined that:
·the applicant’s “presenting symptoms of depression developed in the context of perceived unfavourable treatment by university lecturers… in 2007 and since”;
·the current impact of the applicant’s depression on his ability to function was expected to persist for 3 - 24 months; and
·the applicant’s progress within the next 2 years was “uncertain” and was “dependent on his compliance with treatment/psychotherapy but more so on the outcome of his appeal against termination of his university enrolment”.
27.Having regard to the fact that the applicant has not been seen by a psychiatrist since 2006, and to the contents of Ms Catalan’s abovementioned report, the Tribunal is not satisfied that the applicant’s psychiatric condition, as at 2 March 2009 (from when his DSP was cancelled) and as at the present time, has been sufficiently investigated, treated and stabilised; nor is the Tribunal satisfied that his psychiatric condition is permanent or is likely to persist for the foreseeable future. In the Tribunal’s opinion, therefore, it is not appropriate to assign a rating under Table 6 of the Impairment Tables in respect of psychiatric impairment in the applicant’s case (see paras 4-6 in the Introduction to the Impairment Tables, and the introduction to Table 6, in Schedule 1B to the Act).
Neck Pain
28.Although there is substantial medical evidence before the Tribunal regarding the condition and functional impairment of the applicant’s cervical spine in the period 2002–2006 following his motor vehicle accidents in 2002–2003, the most recent professional assessment of the functional impairment of his cervical spine under the Impairment Tables, which is in evidence, is that contained in the Job Capacity Assessment Report, dated 27 October 2008, referred to in paragraph 13 above. In that report a rating of “10” under Table 5.1 in the Impairment Tables was recommended on the basis that a “loss of half of the normal range of movement” was observed and “frequent pain” was reported (T7, p 208).
29.Dr Beshay, the applicant’s treating general practitioner, has provided to Centrelink various medical reports following the DSP Medical Review undertaken by Centrelink in 2008 (see paragraphs 12, 14-15 above). In her reports of 20 June 2008 and 6 March 2009, Dr Beshay, in specifying the applicant’s medical conditions which had an impact on his ability to function, referred only to chronic depressive illness, non-insulin-dependent diabetes mellitus, and hypertension, and made no mention of his neck condition. In her report of 25 March 2009, however, Dr Beshay included “chronic neck pains, low back pain”, together with the 3 abovementioned conditions, in the list of medical conditions having an impact on the applicant’s ability to function, but the only details regarding that impact which were provided by Dr Beshay were that he “needs help with activities of daily living”.
30.Having regard to the abovementioned evidence, the Tribunal attaches greater weight to the Job Capacity Assessment Report, dated 27 October 2008, and, on the basis of that report, is satisfied that :
·the applicant’s cervical spine condition has been investigated, diagnosed, treated and stabilised, and is permanent, for the purpose of assigning a rating under Table 5.1; and
·the appropriate rating under Table 5.1 is TEN.
31.The question arises, however, whether it is appropriate to use Table 20, instead of Table 5.1, for the purpose of assigning a rating in respect of the applicant’s reported chronic neck pain. In the Tribunal’s opinion, it would not be appropriate to do so. The Tribunal notes that there is no evidence before it that the applicant has ever been referred to a pain management specialist or clinic and that, according to his own evidence, his only treatment for his pain is the taking of 2-4 Panadol tablets per day, and Panadeine Forte “as required” (although he provided no details regarding the frequency or the dosage of his taking Panadeine Forte). The Tribunal again notes that Dr Beshay, in her reports of 20 June 2008 and 6 March 2009, made no mention of the applicant’s neck condition or his suffering neck pain, and that, although she referred to “chronic neck pains” in her report of 25 March 2009, no information was provided regarding the severity of that pain and the only information provided regarding treatment was a reference to “pain killers”.
32.Having regard to the whole of the evidence before it, the Tribunal is not satisfied that a rating of TEN under Table 5.1 underestimates the level of the applicant’s disability by reason of his reported chronic neck pain (see para 8 in the Introduction to the Tables in Schedule 1B to the Act). Accordingly, the Tribunal finds that the applicant, at all material times, had an impairment of 10 points under the Impairment Tables in respect of his cervical spine.
Back pain
33.In the abovementioned Job Capacity Assessment Report, which contains the most recent professional assessment of the functional impairment of the applicant’s lumbar spine under the Impairment Tables, a rating of “0” under Table 5.2 of the Impairment Tables was recommended on the basis that “no significant restriction in range of movement” was reported or observed (T7, pp 208-209).
34.As regards the comments made in paragraph 29 above regarding Dr Beshay’s reports of 20 June 2008, 6 March 2009 and 25 March 2009, the Tribunal notes that those comments are also apposite in respect of the applicant’s back condition and back pain.
35.Having regard to the abovementioned evidence, the Tribunal attaches greater weight to the Job Capacity Assessment Report and, on the basis of that report, is satisfied that:
·the applicant’s lumbar spine condition has been investigated, diagnosed, treated and stabilised, and is permanent, for the purpose of assigning a rating under Table 5.2; and
· the appropriate rating under Table 5.2 is NIL.
36.As regards the appropriateness of using Table 20, instead of Table 5.2, for the purpose of assigning a rating in respect of the applicant’s reported back pain, the Tribunal is of the opinion, for the reasons expressed in paragraph 31 above (which are also apposite in respect of the applicant’s back pain), that it would not be appropriate to do so.
37.Accordingly, the Tribunal finds that the applicant, at all material times, had an impairment of 0 points under the Impairment Tables in respect of his lumbar spine.
Non-insulin-dependent diabetes mellitus
38.On the basis of the medical evidence before it, the Tribunal is satisfied that the applicant’s non-insulin-dependent diabetes mellitus (“diabetes”) has been investigated, diagnosed, treated and stabilised, and, being likely to persist for the foreseeable future, may be regarded as permanent, for the purpose of assigning a rating under Table 19 of the Impairment Tables.
39.The appropriate rating to be assigned in respect of the applicant’s diabetes under Table 19 depends on the degree to which it is controlled by medication or other treatment. The relevant reports of Dr Beshay, the applicant’s treating general practitioner, are inconsistent in relation to that matter. Whereas in her report of 6 March 2009 Dr Beshay asserted (without elaboration) that the applicant’s diabetes was “poorly controlled” (despite her confirming that he is “very compliant” with his medication, “Metformin”), in her report of 25 March 2009 she listed his diabetes as a condition which was “generally well managed” and caused “minimal or limited impact” on his ability to function, and she indicated that significant improvement was expected.
40.The Tribunal notes that Table 19 contains only 2 alternative ratings in relation to diabetes mellitus, namely, “NIL”, where it is “adequately controlled, and “TWENTY”, where it is “not satisfactorily controlled despite vigorous therapy as indicated by for example frequent hospital admissions, recurrent hypoglycaemic….episodes and/or progressive end organ damage”.
41.There is no evidence before the Tribunal on the basis of which it could reasonably be satisfied that a rating of TWENTY in accordance with Table 19, in respect of the applicant’s diabetes, is appropriate. There is, on the other hand, evidence – namely, Dr Beshay’s report of 25 March 2009 – on the basis of which the Tribunal could reasonably be satisfied that a rating of NIL in accordance with Table 19, in respect of the applicant’s diabetes, is appropriate.
42.Accordingly, the Tribunal is satisfied that the appropriate rating under Table 19 of the Impairment Tables, in respect of the applicant’s diabetes, is NIL.
43.The Tribunal finds, therefore that the applicant, at all material times, had an impairment of 0 points under the Impairment Tables in respect of his diabetes.
Hypertension
44.On the basis of the medical evidence before it, the Tribunal is satisfied that the applicant’s hypertension has been investigated, diagnosed, treated and stabilised, and, being likely to persist for the foreseeable future, may be regarded as permanent, for the purpose of assigning a rating under Table 20 of the Impairment Tables.
45.In each of her reports Dr Beshay confirmed that the applicant is “very compliant” with his treatment by way of the medication “Olmetec Plus”, and in none of her reports did she indicate that the applicant’s hypertension is not controlled. Indeed, in her reports of 6 March 2009 and 25 March 2009 Dr Beshay listed the applicant’s hypertension as a condition which was “generally well managed”, and she indicated that significant improvement was expected.
46.On the basis of the abovementioned evidence, the Tribunal is satisfied that the appropriate rating under Table 20 of the Impairment Tables, in respect of the applicant’s hypertension, is NIL.
47.The Tribunal finds, therefore, that the applicant, at all material times, had an impairment of 0 points under the Impairment Tables in respect of his hypertension.
Chest Pain
48.In none of her reports did Dr Beshay refer to the applicant’s chest pains as a medical condition having any impact on his ability to function; nor did she indicate that the applicant has heart disease or a heart condition. In her report of 25 March 2009, however, Dr Beshay noted that the applicant had been admitted to hospital with chest pain in July 2008 (sic) and April 2008. There is documentary evidence before the Tribunal that the applicant attended Royal Perth Hospital on 30 April 2007 and was treated as an outpatient for a “cardiac complaint” (T2, p 25), and that he was admitted to Royal Perth Hospital on 14 April 2008 and discharged on 15 April 2008 with various medications including medication for chest pain (T2, p 29).
49.Having regard to the abovementioned medical evidence, the Tribunal is not satisfied that the applicant’s chest pain has been fully investigated, diagnosed, treated and stabilised. In the Tribunal’s opinion, therefore, it is not appropriate to assign a rating under the Impairment Tables in respect of that condition (see paras 4 and 6 in the Introduction to the Impairment Tables in Schedule 1B to the Act).
Conclusion
50.The Tribunal concludes that, although the applicant has at all material times had impairments within the meaning of para (a) of s 94(1) of the Act, as at 2 March 2009 (from when his DSP was cancelled) he had a total impairment of 10 points under the Impairment Tables and, accordingly, he did not satisfy para (b) of s 94(1) of the Act and, therefore, was not then qualified for DSP. Accordingly, cancellation of the applicant’s DSP, with effect from 2 March 2009, was appropriate.
51.Although that conclusion makes it unnecessary for the Tribunal also to consider whether the applicant satisfied para (c) of s 94(1) of the Act, the Tribunal will, for the sake of completeness, briefly address that issue.
52.In the abovementioned Job Capacity Assessment Report of 27 October 2008 the applicant’s current capacity to undertake work of a suitable nature, namely, light, sedentary work, was, having regard to his impairments – in particular, his neck pain – assessed as being limited to 8 - 14 hours per week. As regards the applicant’s future work capacity, however, the assessment expressed in that report was that it was expected that, with vocational rehabilitation, the applicant would have the capacity to undertake such suitable work for 15 - 22 hours per week within the next 2 years.
53.Dr Beshay, on the other hand, has asserted – most recently, in her letter of 18 February 2010 (see paragraph 17 above) – that the applicant is “not fit for any work duties”.
54.In making a determination regarding the extent of the applicant’s work capacity, the Tribunal attaches greater weight to the abovementioned Job Capacity Assessment Report than it attaches to Dr Beshay’s abovementioned assertion. The Tribunal regards the Job Capacity Assessment Report as containing a comprehensive professional analysis and assessment of the applicant’s present and future capacity to undertake suitable work, having regard to the limitations presented by his various medical conditions. Dr Beshay’s assertion, by contrast, is not supported by any considered analysis regarding the kind of work that might be suitable for the applicant and the impact of each of the applicant’s medical conditions on his capacity to undertake such suitable work. The Tribunal notes, furthermore, that Dr Beshay’s assertion relates only to the present time and does not address the matter of vocational rehabilitation and whether or not the applicant would be likely to be able to undertake suitable work within the next 2 years. The Tribunal also observes that Dr Beshay’s assertion that the applicant is “not fit for any work duties” does not sit well with the fact that he has been undertaking tertiary studies on a part-time basis since 2006 and has been gradually progressing towards the completion of a degree course in biomedical science.
55.The Tribunal accepts the assessment of the applicant’s work capacity as stated in the Job Capacity Assessment Report of 27 October 2008 and, on the basis of that report, it finds that, as at 2 March 2009, the applicant did not have a “continuing inability to work” (as defined in s 94(2) of the Act) and, accordingly, did not satisfy para (c)(i) of s 94(1) of the Act. It is common ground that para (c)(ii) of s 94(1) does not apply in this case.
Decision
56.For the above reasons the Tribunal affirms the decision under review.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr J Chaney, Member
Signed: (sgd) T Freeman.....
AssociateDate of Hearing 24 June 2010
Date of Decision 27 July 2010
Representative of the Applicant Self-representedRepresentative for the Respondent Ms M Conlon
Centrelink
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