Andrew and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1341

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION AATA [2007] 1341

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q200600550

GENERAL ADMINISTRATIVE DIVISION )

Re GRAEME ANDREW

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal  R G Kenny

Date 21 May 2007

Place  Brisbane

Decision  The Tribunal affirms the decision under review.

....................[Sgd]..........................

RG Kenny
  Member 

CATCHWORDS

SOCIAL SECURITY - disability support pension - physical impairment – incapacity from physical and psychiatric condition -– relevant time-frame for qualification – impairment tables 6 and 20 – impairment rating less than 20 points – qualification criteria not satisfied

Social Security Act 1991 ss 94(1), 94(2) - (5), schedule 1B

Social Security (Administration) Act 1999 schedule 2 cl 4

Secretary Department of Social Security v Murphy (1998) 52 ALD 268

REASONS FOR DECISION

21 May 2007  RG Kenny, Member

Background

1.             On 29 August 2005, Graeme Andrew made a claim for payment of disability support pension, a form of income support payable in accordance with the terms of the Social Security Act 1991 (the Act).  He nominated “post traumatic stress syndrome, severe reactive depression, panic of urban and confined spaces, severe lower back pain, pain down left leg, restricted movement” as the basis of his claim.  On 24 February 2006, a delegate of Centrelink rejected his claim.  This decision was affirmed by an authorised review officer on 3 April 2006.  On 28 June 2006, the decision was affirmed by the Social Security Appeals Tribunal.  Mr Andrew now seeks review of that decision by the Administrative Appeals Tribunal.

Hearing

2.             The hearing commenced on 28 March 2007 and was adjourned to enable documentation to be forwarded to Mr Andrew.  He spoke to the Tribunal by telephone at that time and was not represented.  At the resumed hearing, Mr Andrew also gave evidence by telephone and, on this occasion, he was represented by solicitor, Mr S Bolt.  The Secretary, Department of Employment and Workplace Relations was represented by Mr C Keim. 

Issues and Legislation

3.             The requirements for payment of the disability support pension are set out in subsection 94(1) of the Act which, in so far as relevant, reads:

“Qualification for disability support pension

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) …………..; and

(d)       the person has turned 16; and

(e)       the person either:

(i)is an Australian resident at the time when the person first satisfies paragraph (c); or

4. All of those requirements must be met. In accordance with clause 4 of schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act), the qualifying criteria must be met on the date of Mr Andrew’s claim or within 13 weeks of that date. It is common ground that the 13 week period runs from 29 August 2005. It is not disputed, and I am satisfied, that Mr Andrew meets the age and residential requirements of that provision. Next, it must be determined whether he has an intellectual, physical or psychiatric impairment and whether the threshold of 20 points under the impairment tables is satisfied. In the event that those requirements are met, it will need to be determined whether, during that time, he had a continuing inability to work because of the impairment. For continuing inability to work, the relevant provisions are subsections 94(2) to (5) of the Act.

Submissions

5.             Mr Bolt submitted that Mr Andrew suffers from post traumatic stress disorder, pain syndrome and alcohol dependence and did so at the time of his claim. He submitted that the following ratings from the impairment tables were applicable: 

condition	impairment table	impairment rating
post traumatic stress disorder	6	20
alcohol dependence	7	20
chronic pain	20	15 or 20

6.             Mr Bolt also submitted that Mr Andrew had no capacity to undertake employment or any form of intervention to assist him in getting back to work.  He submitted that this meant that the requirements of section 94 of the Act are met and that Mr Andrew was qualified to receive the disability support pension.

7.             Mr Keim conceded that Mr Andrew had a permanent psychiatric impairment of post traumatic stress disorder and a permanent physical impairment in relation to chronic pain.  He submitted that, in the relevant 13 week period, these attracted 10 points and zero points under tables 6 and 20, respectively.  He also submitted that no assessment should be made for alcohol dependence because it was not “permanent” in the sense that, in the relevant 13 week period, it was not a fully documented, diagnosed condition which had been “investigated, treated and stabilised” as required under the impairment tables.

8.             Mr Keim also submitted that, in an assessment of work capacity, the significant evidence was that of the occupational therapist, Ms A Dyer, and the medical adviser from Health Services Australia, Dr M Balestrieri. This was because their approach to assessment was focussed on what Mr Andrew was capable of doing rather than what he was unable to do.  He submitted that, on their evidence, Mr Andrew did not have a continuing inability to work. 

Applicant’s Evidence

9.             Mr Andrew gave the following evidence.  He completed schooling to year 10 and completed a TAFE course in horticulture.  He worked in landscaping and as a tree surgeon.  In 1994, he moved to a 100 acre property approximately one and a half hours’ drive from the nearest town of Casino.  He lives there alone in a caravan.  Mr Andrew’s psychiatric and physical conditions developed as a consequence of events that occurred in 2002 and 2003 including the loss of his house by fire and a motor vehicle accident in which he sustained physical injuries and in which his friend was killed.  He does not like to leave the property because he is uncomfortable around people.  He gets assistance from his son or his ex-partner when he needs to shop for supplies.  They live in Lismore.  Apart from them, he has no visitors.  They are the only people he sees from time to time.  He is able to drive his car but not for long periods. He planned to build a house on his land but has not progressed further than drawing sketches of the floor plan which he has been working on for about 3 years. He is able to undertake basic maintenance tasks on his block for 2 to 3 hours per day for about 3 or 4 days per week.  He makes his own beer and consumes about 18 stubbies each day.  He consumes alcohol even when he is doing basic work on the block.  He experiences panic attacks if he is required to go into public places and this would prevent him from undertaking any programs which might assist him in getting back to employment.  He was treated for alcohol dependence by psychologist Dr B Lloyd but this proved unsuccessful although there have been occasions when he has been able to refrain form consuming beer for up to 10 days at a time.

Medical and Other Evidence

10.           In evidence were reports from Mr Andrew’s treating doctors, Dr T Tierney and Dr K Pearson; from psychologists, Ms L. Smith and Dr B Lloyd; from injury management consultant, Dr J Davis; from Medical Assessment Service assessor, Dr M Walden; from psychiatrist, Dr I Petroff; from the medical adviser with Health Services Australia (HSA), Dr M Balestrieri; and from occupational therapist, Ms A Dyer.

11.           Dr Waldon completed a report for the New South Wales Motor Accidents Authority in relation to a compensation claim related to Mr Andrew’s motor vehicle accident in 2003.  She entered a diagnosis of “exacerbation of alcohol dependence”.  However, none of the other practitioners diagnosed alcohol dependence although some referred to the drinking habits of Mr Andrew.  Dr Lloyd arranged for treatment for alcohol consumption but only described post traumatic stress disorder and depression. 

12.           Mr Andrew’s initial treating doctor, Dr Tierney, did not enter a diagnosis of alcohol dependence in his report dated 16 August 2005.  His current treating doctor, Dr Pearson, completed reports dated 26 October 2006 and 18 January 2007.  He refers to alcohol consumption but only diagnoses post traumatic stress disorder and pain syndrome.  Psychiatrist Dr Petroff, completed his most recent report on 12 May 2006.  Again, he diagnoses only post traumatic stress disorder and pain disorder.  He does not refer to alcohol dependence

13.           Dr Tierney, in his report which was attached to Mr Andrew’s initial claim, described him as having “slowed cognition” with “difficulty relating to people”.  He also described “low back pain” and “difficulty with heavy lifting”. In his report of 26 October 2006, Dr Pearson described him as having a “mix of generalised anxiety, with panic episodes, social phobia bordering on agoraphobia, depressed mood/affect and significant drinking”. For the pain disorder, he described symptoms on the left side of his body, pain in the left lower leg and left ankle.  

14.           Dr Davis reported normal upper and lower limb skeletal axial alignment; tenderness on the left side and over the C3/4 facet; no tenderness over the AC joints or humerus heads; a full range of movement of both shoulders; normal gait; ability to perform a full squat, rise on his toes and rock on his heels; and a reduced range of movement in the lower back.  He allocated a total whole person impairment of 13% but did so by applying the AMA and MAA guides rather than the impairment tables under the Act.  He made no psychiatric assessment.

15.           Dr Walden described reluctance by Mr Andrew to leave his property and as sometimes walking 20 to 30 kilometres per day on the property.  He allocated a whole person impairment of 5% but, again, not under the relevant impairment tables.

16.           Dr Balestrieri described Mr Andrew as being “rather morose” with “flat affect”, suffering from major depression with anxiety as well as frequent periods of pain.  He noted that he had full range of movement of the thoraco lumbar spine.  He considered that Mr Andrews would, with appropriate training, be capable of returning to work performing light duties and activities such as mail deliveries or process work, for 30 hours per week within 6 to 24 months.  Dr Balestrieri adopted a rating of zero under table 5.2 for the pain condition and 10 points under table 6 for post traumatic stress disorder. In his evidence, Dr Balestrieri said that Mr Andrew had told him he was not on medication when he saw him and had stopped consuming alcohol at that time.  He considered that table 6 was the appropriate table for the psychiatric assessment and that, with moderate and regular symptoms, he did not meet the criteria for 20 points in that table.  He said that Mr Andrew had related to him that he does a lot of walking on his property.  He used table 5.2 because, at that time, he was complaining of lower back pain rather than an overall pain syndrome.

17.           Ms Smith, psychologist, completed a work capacity assessment report on 10 August 2004.  She noted the presence of major depression with anxiety features and described presentation as a “psychiatric illness with serious impairment in psychosocial functioning”.  She referred to impairment table 6 but did not allocate any rating from that or any other table.

18.           Ms Dyer completed a review of Mr Andrew’s files and prepared an assessment report on 16 March 2007.  She also gave evidence. For the pain syndrome, she noted that there was little functional loss and considered that the condition would have little impact on his capacity for work.  She considered that he displayed minor symptoms which were easily tolerated with no limitations on caring for himself.  She said that a nil rating was appropriate for the condition under impairment table 20.  She considered that post traumatic stress disorder would not preclude Mr Andrews from working for 30 hours per week in suitable occupations of a light and less skilled nature.  This would require him to be involved in intervention programs with employment service providers.  She utilised table 6 for post traumatic stress disorder and allocated a rating of 10 points for that condition. She said that the various reports revealed moderate and regular symptoms consistent with that rating and she stated that the description was applicable when the claim was made. 

Consideration

19.           Paragraph 4 of the Introduction to Schedule 1B provides the following guidance in relation to the issue of whether or not a condition is permanent.  It reads: 

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.  The first step is thus to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

20.           Accordingly, the condition under consideration must be “permanent” in the sense that it is “a fully documented, diagnosed condition which has been investigated, treated and stabilised”: see Secretary Department of Social Security v Murphy (1998) 52 ALD 268 at 271. On all of the evidence, as noted above in relation to alcohol dependence, I am satisfied that this condition has not been fully diagnosed. In particular, I note the absence of diagnosis in the reports of Mr Andrew’s treating general practitioners and that of his psychiatrist which post-dates the report of Dr Walden. Accordingly, no impairment rating may be allocated for alcohol dependence.

21.           I am satisfied that Mr Andrew had a permanent psychiatric impairment in relation to post traumatic stress disorder and a permanent physical impairment in relation to chronic pain in the 13 week period after lodging his claim.  This satisfies paragraph 94(1)(a) of the Act.

22.           In assessing impairment, I am satisfied that the appropriate tables are table 6 for post traumatic stress disorder and table 20 for pain syndrome.  In so far as they are relevant, they read:

Table 6Psychiatric Impairment

Rating	Criteria
NIL	Mild 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.
10	Moderate 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).
20	Psychiatric 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.

Table 20.          Miscellaneous - Malignancy, Hypertension, HIV Infection, Morbid Obesity (LE BMI >40), Heart/Liver/Kidney Transplants, Miscellaneous Ear/Nose/Throat Conditions & Chronic Fatigue or Pain

Rating	Criteria
NIL	Controlled hypertension  Malignancy in remission with a good to fair prognosis  Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.
10	Mild 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  Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis  Heart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms.
15	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.  Potentially life-threatening condition which is currently interfering with daily activities but self-care is unaffected.
20	More 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.

23.           The only observations of Mr Andrew’s symptoms which are applied directly to the impairment tables are those of Dr Balestrieri and Ms Dyer.  They also gave oral evidence.  Dr Balestrieri examined Mr Andrews in October 2005 and, significantly, this was within the relevant 13 week period.  Ms Dyer made her assessment in March 2007 and did so on the basis of all the medical reports including those obtained in 2005 and in recent times.  Each of them provided detailed reports which made specific references to the criteria in the tables, to employment options and to suitable intervention activities.  While work limitations were described by Dr Tierney, Dr Pearson, Dr Davis and Dr Petroff, I have noted the submission of Mr Keim that the focus of Ms Dyer and Dr Balestrieri was on what Mr Andrew is capable of doing, rather than what his conditions prevent him from doing, and I have decided to accept their assessments on that basis.

24.           I am satisfied that the appropriate ratings under tables 6 and 20 in Schedule 1B of the Act are 10 and nil, respectively.  That is not sufficient to meet the threshold of 20 points as required by paragraph 94(1)(b) of the Act.  As noted above, all of the requirements of section 94 must be met for a person to qualify for the disability support pension.  That is not the situation with Mr Andrew in the 13 week period from 29 August 2005 and I am satisfied that he did not qualify for the disability support pension in the relevant time-frame.

Decision

25.           The Tribunal affirms the decision under review.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:         .....................................................................................
  Legal Research Officer

Date/s of Hearing  28 March 2007 and 2 May 2007
Date of Decision  21 May 2007
For the Applicant  Mr S Bolt, Solicitor
For the Respondent                  Mr C Keim, Departmental Advocate