Andrew Peterson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 467
•5 July 2013
[2013] AATA 467
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/2019
Re
Andrew Peterson
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Dr Kerry Breen, Member
Date 5 July 2013 Place Melbourne The Tribunal affirms the decision under review.
..................[sgd]......................................................
Dr Kerry Breen, Member
SOCIAL SECURITY – disability support pension – international agreement with New Zealand – discogenic lumbar back pain disc – anxiety and depression – severe disability – hours of work capacity – decision affirmed.
Legislation
Social Security Act 1991 s 94(1)
Social Security (International Agreements) Act 1999
Tables for the assessment of work-related impairment for disability support pension in Schedule 1B of the Social Security Act 1991REASONS FOR DECISION
Dr Kerry Breen, Member
5 July 2013
Mr Andrew Peterson, aged 40 years, applied to Centrelink for a disability support pension (DSP) by telephone on 19 October 2011 and submitted the claim form on 4 November 2011. Centrelink is the service delivery agency for the Department of Families, Housing, Community Services and Indigenous Affairs (the respondent). Mr Peterson’s application was supported by a Medical Report Disability Support Pension (MRDSP) from his treating doctor dated 16 November 2011. The MRDSP gave the diagnoses of discogenic lumbar back pain and anxiety and depression.
Mr Peterson was referred for a Job Capacity Assessment (JCA), which was conducted on 28 November 2011. On 15 December 2011 a Centrelink officer rejected Mr Peterson’s DSP claim. The officer advised that the decision was based on the Agreement on Social Security between the Government of Australia and the Government of New Zealand (the Agreement). Under that Agreement, Mr Peterson needed to be severely disabled to qualify for DSP.
Mr Peterson sought review of the decision by a Centrelink authorised review officer (ARO). The ARO affirmed the original decision on 28 February 2012. Mr Peterson then applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO’s decision. The SSAT affirmed the ARO’s decision on 30 April 2012. On 18 May 2012 Mr Peterson applied to this Tribunal for a review of the SSAT decision.
ISSUES
The issues to be determined are:
·Does Mr Peterson have a physical, intellectual or psychiatric impairment?
·What impairment ratings do his conditions attract? and
·If the total impairment rating is 20 points or more, what is the impact of these conditions on his capacity to work?
In addition, the Tribunal must also determine whether Mr Peterson is severely disabled as defined in article 1 of the Agreement. The relevant assessment period is from 19 October 2011 and the subsequent 13 weeks (the qualifying period).
LEGISLATION
The relevant legislation includes s 94(1) of the Social Security Act 1991 (the Act) and the Impairment Tables. Section 94 (1) of the Act 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; …
Mr Peterson is a New Zealand citizen. Therefore, his application for DSP is subject to the Agreement between Australia and New Zealand in Schedule 3 of the Social Security (International Agreements) Act1999 (SSIA Act). The application is to be handled in accordance with policy guidelines laid down in the Guide to Social Security Law (the Guide) published by the respondent.
In brief, the Agreement means that for Mr Peterson to be granted DSP he must be severely disabled, have become severely disabled while residing in Australia, and meet duration of residence requirements. Under article 1 of the Agreement, severely disabled means that the person must be totally unable to work within the next two years and be unable to benefit within the next two years from participation in a program of assistance or a rehabilitation program. However, cl 1.1.S.110 of the Guide states that a person is deemed as severely disabled if the person is unable to work at least 8 hours per week or more within the next two years. In addition, the person’s ability to be re-skilled for work in the open labour market, through intervention such as training, education, treatment or rehabilitation, must be taken into account when determining whether the person will be able to work at least 8 hours per week.
The Introduction to the Tables for the assessment of work-related impairment for disability support pension (the Impairment Tables) in Schedule 1B of the Act provides:
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.
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.
...
CONTENTIONS
Mr Peterson contends that his conditions have been fully diagnosed, treated and stabilised, they attract 20 impairment points and he is not well enough to work more than 8 hours per week; and thus he is entitled to DSP.
The respondent contends that the Mr Peterson’s conditions do not comply with the Act and the Agreement, as Mr Peterson was not severely disabled in accordance with the Agreement in the qualifying period.
LUMBAR BACK PAIN
Mr Peterson’s oral evidence
In his DSP claim, Mr Peterson listed his medical condition as L4–L5 disc protrusion with Compression of the exiting left L4 nerve root. His general practitioner, Dr Darren Fahroedin, provided two MRDSPs. In the first MRDSP, dated 16 November 2011, Dr Fahroedin diagnosed Condition 1 as lumbar back pain – discogenic and Condition 2 as Anxiety/Depression. In the second MRDSP dated 15 December 2011, he diagnosed Condition 1 as Low Back Pain – discogenic L4 nerve root COMPRESSION INITIALLY, and Condition 2 as ANXIETY/DEPRESSION.
In his oral evidence, Mr Peterson stated that he was born in New Zealand and moved to Australia in 2003 or 2004. He remains a New Zealand citizen. In Australia he worked initially in security and labouring and described himself as very fit at the time.
Mr Peterson explained that he had first developed his back pain in 2009, about four months after commencing work as a stock person in a meat works. He described filling shelves in a walk-in freezer, which involved lifting 40 to 45 kg loads to above head height as part of the task. He stated that he complained of back pain to his supervisor but was told to put up with it. He tried to continue work for a couple more weeks but then his back locked up and he could not move. Mr Peterson first sought medical help in May 2009. He stated that he tried to go back to work four times but on each occasion his back went out.
Mr Peterson stated that tests a few months later showed a protruded disc. Recently (in April 2012), he flew to Sydney for special MRI scan. Mr Peterson has since been told that he needs surgery but has also been told that he should lose a lot of weight before any surgery. Mr Peterson said that he is hopeful that the surgery can be performed.
Mr Peterson stated that he has gradually gained weight and now weighs over 145 kg, although his weight fluctuates. He stated that most of the weight gain occurred in 2011. He attributed the weight gain to immobility because of his back pain. Mr Peterson thinks his pain has been made worse by his weight gain.
When questioned about his functional capacity at the time of his DSP application, Mr Peterson stated that he could set the table but could not vacuum or do the laundry. He could sit and watch television for a time, if he had a special support behind his back.
Mr Peterson stated that his back problem has not resolved and that any lifting causes the pain to return. His current medications included Tramadol SR 200 mg, Celebrex and an antidepressant (Mirtazapine). If his pain is bad, Mr Peterson takes two Panadol tablets and he estimated that he took these tablets two to three times per week. He has tried Oxycontin but now avoids it as it is too strong and affects his mental awareness. He stated that his back pain has destroyed my life and that he is trying to get my brain around this.
Mr Peterson stated that he had attended a pain management clinic and a pain management course. He also had had three injections into his back. The benefits of the injections lasted around five weeks each time but then his pain felt worse.
Mr Peterson explained that in February 2011 he had attempted to undertake a one year TAFE youth worker course that required on campus attendance six hours per day for four days per week. This involved prolonged periods of sitting and he could not cope with the pain. He said that he had needed a special chair.
Mr Peterson described his pain while undertaking the youth worker course as being like an electric shock in my back, such that he was unable to turn and he felt his muscles lock. The pain made it difficult to concentrate in class. Because of his pain there were times that he had to get up and walk out of class. He only attended for approximately two and a half months; and during that time he missed lots of classes because he was in too much pain. [Mr Peterson also reported the onset of anxiety attacks during this course. This aspect is described fully below.]
Currently, Mr Peterson said he is able to walk for a maximum of 10 minutes and is able to drive a car for 40 minutes. He can sit with lumbar support for between 40 minutes and one hour. When travelling by train, the vibrations of the train make his pain much worse. He stated that a year ago his symptoms from his back condition were as they are currently.
Medical evidence
In the first MRDSP dated 16 November 2011, Dr Fahroedin describes Mr Peterson’s current symptoms thus: Daily pain, limited ability to stand or sit for prolonged periods, pain with movement. Graded as severe in the level of pain and severe in the level of impairment. In answer to question H, regarding how the condition currently affects Mr Peterson’s ability to function, Dr Fahroedin wrote: can sit for 20-30 min at a time, unable to perform repeated bending or twisting & can only lift a few kilos of weight. Dr Fahroedin ticked the box expected to persist for more than 24 months, and the boxes somewhat improve and uncertain, in regard to the effect of the condition on Mr Peterson’s ability to function over the next two years.
In the second MRDSP dated 15 December 2011, Dr Fahroedin described Mr Peterson’s current symptoms as:
Daily pain felt in lower back, worse with prolonged sitting or standing, sharp pain goes up the spine. The pain and disability is currently severe.
In answer to question H regarding how the condition currently affects Mr Peterson’s ability to function, Dr Fahroedin wrote: sit/stand for 1 hour maximum(20-30 min at present) then needs to move & stretch, unable to repeat/twist, can only lift a few kilograms of weight. He ticked the box expected to persist for More than 24 months and the boxes Remain unchanged and fluctuate in regard to ... the effect of the condition on the patient’s ability to function over the next two years. Under this heading he noted: He has been unable to work for the past 2 years + and this is not likely to change in the next 2 years.
On 17 October 2011 Dr Fahroedin wrote a medico-legal report about Mr Peterson for the Accident Compensation Conciliation Service and Gallagher Bassett Services Workers Compensation Vic P/L. The report outlines the medical facts of the case and goes on to provide a detailed assessment of Mr Peterson’s work capacity. The report notes:
Mr Peterson is currently severely limited in his capacity to perform any work duties. Mr Peterson needs to re-build core strength, confidence & have less pain on a daily basis before re-employment is feasible....
I do believe Mr Peterson has the capacity to regain future employment in time & fully support his efforst [sic] at re-training in work that does not require lifting & physical/manual work.
On the same date Dr Fahroedin wrote a similar report addressed to Mr Peterson’s lawyers, Arnold Thomas & Becker. In the report, Dr Fahroedin noted that Mr Peterson had deferred his youth training course and added:
In the meantime he is gaining foundation skills in English & computers to better enable him to cope with the level of study required in 2012.
That report concluded:
Given the current level of function & low level of confidence Mr Peterson currently has, I do anticipate considerable improvement over the next 3 to 6 months.
The two reports dated 17 October 2011 provide the same summary of Mr Peterson’s level of function as follows:
His current level of function is specifically limited by the following:
He is currently able to walk 10 min on treadmill 4 days /week He could walk at most walk for 40 minutes but this would lead to pain during & after the walk.
He is not able to use the exercise bike at this stage as part of his rehabilitation (as per Physiotherapists’s advice)
He needs good lumbar support when sitting – threshold 60 -90 min sitting depending on support of chair
He can stand for up to 1hr without causing pain, but then needs to sit, & alternate sitting & standing positions.
The Tribunal notes that a rehabilitation and pain medicine specialist, Dr Michael Vagg, wrote a medico-legal report addressed to Arnold, Thomas & Becker Lawyers about his involvement in the care of Mr Peterson. Although the copy before the Tribunal is undated, the report was received by the law firm on 26 October 2011. The report is a page and a half in length. After outlining the diagnosis and the treatment he had provided to Mr Peterson, Dr Vagg wrote (in part):
He is currently unfit for pre-injury duties as he still have [sic] highly restricted sitting tolerance. He is unable to sit comfortably for longer than 20 – 30 minutes at a time, even on a good day. He is unable to lift weights of more than a few kilos or perform repetitive twisting or bending movements for any significant length of time without dramatically worsening his pain. He would only be fit for sedentary duties with short shifts and the ability to vary his position throughout the shift.
He is currently unfit to work and is having significant trouble with his vocational rehabilitation study due to the necessity to sit during lectures and while doing computer work…..
He may become fit for part-time duties in due course but at present it is hard to see him regaining the ability to work for the indefinite future.
Mr Peterson was referred for a JCA which was undertaken on 28 November 2011. The assessors concluded that Mr Peterson’s lumbar back pain condition was fully diagnosed, treated and stabilised and recommended an impairment rating of 20 points under Table 20 (Miscellaneous) of the Impairment Tables. The assessors concluded that Mr Peterson’s work capacity within two years, with intervention, was 8-14 hours per week.
Dr Fahroedin completed a third MRDSP dated 5 March 2012. This date is beyond the qualifying period for DSP. In regard to Condition 1 lumbar discogenic back pain, Dr Fahroedin wrote Cannot walk for more than 5-10 minutes at a time. Cannot lift/bend, travel sitting in vehicles can exacerbate pain and added Current condition has been present for >2½yrs already with little change/improvement.
Mr Peterson was assessed by an orthopaedic surgeon, Dr Schofield. Dr Schofield wrote a five-page report dated 15 March 2012 and addressed to Arnold Thomas & Becker Lawyers. Dr Schofield recorded that he was told that, prior to the back injury, Mr Peterson weighed approximately 105 kg and that since then his weight had increased to 155 kg. As part of a section of the report entitled Present situation, Dr Schofield wrote:
The pain is worse when bending, lifting or twisting. He has a positive cough impulse. He cannot sit for more than 20 minutes or stand for more than 45 minutes without moving around.... He does get some relief when using a treadmill. His sleep is disturbed.
Under the heading Opinion, Dr Schofield wrote: Future prognosis is poor without surgery and loss of weight. He recommended the input of a dietitian and the performance of a weight bearing MRI scan [a type of scan only available in Sydney].
Mr Peterson attended for an Activities of Daily Living Assessment conducted by a senior occupational therapist, Ms Suzanne George, on 16 March 2012. Ms George completed an eight-page report dated 3 April 2012. As part of the report, Ms George attached a list of various medical reports from Mr Peterson’s general practitioners, surgical specialists and allied health practitioners spanning the dates of 16 December 2009 to 17 October 2011 that had been provided to her. On page 4, Ms George wrote:
Mr Peterson reported limitations in personal care, domestic duties, and community based tasks are commensurate with the information provided in the medical reports. They are also consistent with my experience of the functional limitations of persons with similar injury.
On 9 October 2012 Dr Fahroedin wrote a two and a half page medical report about Mr Peterson addressed to Australian Government, Department of Human Services, Administrative Appeal Tribunal. The report was in response to a written request from the respondent dated 12 September 2012. The respondent had requested that Dr Fahroedin provide an opinion as to Mr Peterson’s suitability for employment of at least 15 hours per week.
Dr Fahroedin’s report commenced with the statement:
For the basis of this report I am referring to Mr Peterson’s conditions as they were at 27.10.11 or within 13 weeks from that date, as requested.
The report outlined the nature of Mr Peterson’s back injury at work and confirmed that ... an MRI (26.11.2009) of his back which confirmed an L4-5 disc protrusion with evidence of compression of the exiting left L4 nerve root. Dr Fahroedin wrote:
The symptoms Mr Peterson experienced at that time included severe pain & a severe limitation on his daily activities as a consequence.
He also wrote:
At the time specified above I had anticipated considerable improvement over a 3-6 month period.
Dr Fahroedin then outlined the treatments that Mr Peterson had received and the advice given by specialists, which had included the opinion of an orthopaedic surgeon, Dr Justin Hunt, that the disc lesion was not amenable to surgery. Dr Fahroedin wrote: Providing an assessment on Mr Peterson’s level of impairment is not something I have experience of, so I have not attempted to do this. The final paragraph of the report reads:
It is my opinion that Mr Peterson was not & will not be capable of doing 15 hours of suitable employment as of 27.10.11 or within 2 years of that date.
Mr Peterson did attempt to retrain but was unsuccessful.
Given the total time period since his original injury is now greater than 3 years I think it is reasonable to assume he will not resume work within the time period stated above.
On 26 November 2012 Dr Fahroedin wrote a letter addressed to Centrelink stating:
I am writing to confirm that Mr Peterson remains unfit to resume work at this stage. He has been unable to resume work since that date of the first Centrelink report I completed on the 16.11.2011.
His medical conditions are not likely to improve to a level where he can resume work in the foreseeable future.
Dr Fahroedin’s medical records
Dr Fahroedin’s medical records for Mr Peterson which were summoned by the Tribunal are admirably detailed and, being electronic, are also legible. The records contain entries from other doctors in the practice, as well as copies of reports from several health practitioners. The relevant parts of the records are summarised in paragraphs 37 to 54.
Dr Fahroedin’s records show that Mr Peterson first consulted him on 25 March 2010. The reason for attendance was his continuing back pain following his back injury in May 2009. Mr Peterson’s previous general practitioner had moved to Melbourne. Symptoms recorded at that visit included:
poor sleep due to pain, pain if sits in couch or stands too long, if sneeaze [sic] can get sever [sic] pain, most days sore but manageable if doesn’t do much –caught in dilemma noticing fitness hard to maintain –losing it.
Dr Fahroedin saw Mr Peterson again in April, May and June 2010. On 6 May 2010 there is a note of sleep terrible & toll on personal life i.e. sex life. On 11 June 2010 (six days after seeing Dr Fahroedin), Mr Peterson was seen by Dr Jenny Oscar who recorded in part:
Has back pain aggravation… O/E Walk slowly, with distress, Sit to stand slow. Crooked on chair, slouched shoulders and head forward. Overwt. and miserable with pain.
Dr Fahroedin referred Mr Peterson to an orthopaedic and spinal surgeon, Dr Justin Hunt. In a second letter to Dr Fahroedin dated 3 May 2010, Dr Hunt wrote:
At this stage I have told Andrew [Mr Peterson] that we have not found a well definable cause for his ongoing back pain problems. He has mainly mechanical back pain symptoms. ... and I have reassured him today that there is no diabolical problem with this spine.
At attendances on 3 June 2010 and 21 June 2010, the need for Mr Peterson to commence a diet to control his weight and the possibility of being referred to a dietitian were noted.
Dr Fahroedin made a record of a telephone discussion held with a physiotherapist, David Goldman, on 28 July 2010 about:
a 6-8/52 program includes physio & CBT [cognitive behavioural therapy] type approach to also address underlying depression/anxiety features so commonly associated.
Andy [Mr Peterson] does show depressive features as well as anxiety/avoidance for fear of re-injuring back....
At a review on 29 September 2010, Dr Fahroedin noted in part that Mr Peterson was:
continuing to make slow progress....NZ trip went very well.. did more walking while over there… core strength improving & positive effect on confidence & pain management.. weight 135 at gym, aiming for 110 kg.
At a review on 24 November 2010, Dr Fahroedin noted feels 30% better than he was at first visit here. Similarly at a review on 22 December 2010, Dr Fahroedin noted estimates 30% improvement overall.
On 25 January 2011 Mr Peterson was seen by Dr Calan Khong who reported, in part, slow improvement… lost 10kg with walking – can do 8 mins on treadmill.
At a visit on 21 February 2011, Dr Fahroedin noted that following a caudal spinal injection, Mr Peterson reported: back feels great since, no sharp pain, still some aches –feels like a new man. He also noted that Mr Peterson was doing pain mx [management] course – helpful.
At a visit on 18 May 2011, Dr Fahroedin recorded for the first time the issues that arose during the first few weeks of Mr Peterson’s youth worker course and noted struggling past 2/52 especially and will see psychologist through course this week. He added anxiety/agitation is the main issue at present. Shortly thereafter on 1 June 2011, Dr Fahroedin recorded pain worse PTSD [post-traumatic stress disorder] symptoms one affecting the other big setback in the short term and prescribed Mr Peterson Mirtazapine 15 mg.
On 20 June 2011 Dr Fahroedin recorded that Mr Peterson has improved on small dose of Mirtazapine – still some residual anxiety. At further visits in July, August and September, Mr Peterson was seen by Dr John-Paul Darby. He noted that a further steroid injection by Dr Vagg was initially helpful but after three weeks Mr Peterson’s pain had returned. On 5 October 2011 Dr Darby recorded pain now recurred now [sic] (usually 6‑8/10).
On 5 October 2011 Dr Fahroedin wrote a letter addressed To whom it may concern, The letter summarised Mr Peterson’s pain levels and went on to state:
Andrew has started a Certificate 1-2 General Education Course to help him improve his reading, writing, computer skills, and to enable him to have more employment opportunities. He is enjoying this so far.
On 12 October 2011 Dr Fahroedin recorded a detailed assessment of Mr Peterson’s capacities in his clinical notes follows:
walking – max threshold at 40 mins (then starts to get sore & after), currently 10min on treadmill 4 days/week
no exbike at this stage (as per Physiotherapist)
needs good lumbar support when sitting – threshold 60-90 min sitting depending on support of chair
standing 1 hr, then needs to sit, & alternate sitting & standing
weights 5kg – curls, 2.5 kg flys, squats with ball against wall, step-ups: all x20, 2 sets
daily pain – modifies activities – pain intensity 5-8/10, hard to get comfortable
can’t throw ball with dog (uses simple under arm flick from elbow, cannot rotate torso without pain)
last caudal injection helpful but only for 3/52 – did feel almost ‘back to normal’ for a brief time
doing English certif 2/basic computer skills at TAFE now …
not currently taking Mirtazapine, past month
good supports in place
mild anxiety/depressive symptoms
At a visit on 16 November 2011, Dr Fahroedin recorded that Mr Peterson was overall managing reasonably well but still very limited & pain continues … plans for study next year going ahead.
At a visit on 15 December 2011, Dr Fahroedin recorded:
apparently Centrelink rejected the last form because different rules for NZ citizen rather than Australian
he has not been able to work for > 2 years
both his back pain & level of function is so poor he is not employable at present … reasonable to say that is unlikely given combination of back pain & anxiety/depression that he will return to work within 2 years.
At the next visit on 25 January 2012, Dr Fahroedin recorded as follows:
had a good holiday in hometown in NZ with family & seeing his son
did manage to relax more & increase walking to 40 min approx..
still problems with prolonged sitting & standing
pain was manageable when away & drop tramadol to very (sic) 2nd day….At a visit on 9 February 2012, Mr Peterson was seen by Dr Khong who noted in part:
Last few days, increasing depression and anxiety … had a panic attack 2 days ago, feeling numb and anxious at times...
On 5 March 2012 Dr Fahroedin saw Mr Peterson again. Dr Fahroedin noted that Mr Peterson was:
... having a terrible time
had a ‘breakdown’ since I last saw him
massive panic attacks …. anticipate in the long term he could return to some sort of work with re-training but this may be a long term plan
anxiety & panic is precluding any steps in this direction at this point in time.
ANXIETY AND DEPRESSION
Mr Peterson’s oral evidence
Mr Peterson described the onset of his anxiety symptoms during his participation in the youth worker training course. As part of the coursework, students were asked to write something about their upbringing. Mr Peterson wrote about a very traumatic early childhood experience and this led to him feeling very upset and the onset of what he termed panic attacks. He described very unpleasant attacks that occurred at least twice a week involving a foggy feeling in the brain, an intense feeling of a horrible dream and sweating. He mentioned that eating food can help settle these feelings.
Mr Peterson stated that as his usual general practitioner (Dr Fahroedin) was away he told another doctor in the practice, Dr Darby, about his problem and was referred to a psychologist, who he has seen regularly. He stated that the psychologist has helped him cope with the panic attacks.
When questioned as to his state of health in October 2011, Mr Peterson stated that he was depressed and could not leave the house. He stated that he used to be a really positive person. He said he had feelings of loneliness and worthlessness and that people were judging him for not working.
Medical evidence
In the first MRDSP dated 16 November 2011, Dr Fahroedin diagnosed Mr Peterson’s second condition as anxiety/depression. Under the heading history, Dr Fahroedin wrote: low grade symptoms of depressed mood became more severe when doing a course in Youth work Past life events triggered causing a PTSD – type reaction. He described Mr Peterson’s current symptoms as ongoing low grade anxiety/depression – controlled on Mirtazapine. Current treatment was described as Mirtazapine and ongoing support. Past treatment was given as counselling – for 2 months through college counselling service and future/planned treatment was stated to be may re-engage in counselling in the New Year. In answer to question H regarding how the condition currently affects Mr Peterson’s ability to function, Dr Fahroedin wrote: affect on confidence, communication where he was unable to continue course – but plans to try again next year. He ticked the box expected to persist for More than 24 months and the box somewhat improve in regard to the effect of the condition on Mr Peterson’s ability to function over the next two years.
In the second MRDSP dated 15 December 2011, Dr Fahroedin diagnosed Mr Peterson’s second condition as Anxiety/Depression. Under the heading history, Dr Fahroedin wrote: low grade symptoms of depression became severe when attempted a youth worker course PTSD-type reaction triggered. He described Mr Peterson’s current symptoms as ongoing anxiety/depression with some reduced severity on Mirtazapine. Current treatment was described as Mirtazapine and ongoing support. Past treatment was given as counselling for 2 months and future/planned treatment was stated to be may re‑engage in counselling in 2012. In answer to question H regarding how the condition currently affects Mr Peterson’s ability to function, he wrote affects confidence, communication, currently daily anxiety. He ticked the box expected to persist for more than 24 months and the boxes Remain unchanged and Fluctuate in regard to the effect of the condition on Mr Peterson’s ability to function over the next two years.
Dr Fahroedin completed Centrelink medical certificates dated 3 November 2011, 25 January 2012 and 9 February 2012 for Mr Peterson. Each certificate listed the diagnosis of anxiety/depression; and Dr Fahroedin indicated on each occasion that the condition was temporary and likely to show considerable improvement within two years.
Mr Peterson was seen by psychiatrist Dr Edmond van Ammers on 21 August 2012. Dr van Ammers provided a report addressed to Gallagher Bassett. The report detailed Mr Peterson’s comprehensive psychiatric history. Dr van Ammers made the diagnosis of Adjustment Disorder with Anxious Mood superimposed from long standing Post Traumatic Stress Disorder. He reported that Mr Peterson’s increasing emotional symptoms.. became particularly acute during 2012 leading to referral to a clinical psychologist. He wrote that antidepressant medication and attending the psychologist had led to a degree of improvement in his [Mr Peterson’s] functioning.
Dr Fahroedin’s medical records
As mentioned above, Dr Fahroedin’s medical records are detailed and legible. There is mention of anxiety in a record of a telephone discussion held with physiotherapist David Goldman on 28 July 2010 about:
a 6-8/52 program includes physio and CBT (cognitive behavioural therapy) type approach to also address underlying depression/anxiety features so commonly associated. Andy [Mr Peterson] does show depressive features as well as anxiety/avoidance for fear of re-injuring back.
At a visit on 18 May 2011, Dr Fahroedin recorded the issues that arose during the first few weeks of Mr Peterson’s youth worker course and noted struggling past 2/52 especially and will see psychologist through course this week. He added anxiety/agitation is the main issue at present. Shortly thereafter, on 1 June 2011, Dr Fahroedin recorded pain worse PTSD symptoms one affecting the other big setback in the short term and prescribed Mr Peterson Mirtazapine 15 mg.
On 20 June 2011 Dr Fahroedin recorded that Mr Peterson has improved on small dose of Mirtazapine – still some residual anxiety.
At a visit on 15 December 2011, Dr Fahroedin recorded in part:
both his back pain & level of function is so poor he is not employable at present … reasonable to say that is unlikely given combination of back pain & anxiety/depression that he will return to work within 2 years.
At a visit on 9 February 2012, Mr Peterson was seen by Dr Khong, who noted in part: Last few days, increasing depression and anxiety … had a panic attack 2 days ago, feeling numb and anxious at times...
Mr Peterson saw Dr Khong again on 16 February 2012. Dr Khong recorded a detailed account of his original back injury, the work he was doing then and his current emotional state. Dr Khong noted that Mr Peterson had never seen a psychiatrist. He arranged for Mr Peterson to be referred to Brendan Meagher, clinical psychologist.
On 5 March 2012, Dr Fahroedin saw Mr Peterson again. Dr Fahroedin noted that Mr Peterson was:
... having a terrible time had a ‘breakdown’ since I last saw him massive panic attacks …. anticipate in the long term he could return to some sort of work with retraining but this may be a long term plan anxiety & panic is precluding any steps in this direction at this point in time.
CONSIDERATION OF THE ISSUES
Does Mr Peterson have any physical, intellectual or psychiatric impairment?
The medical evidence clearly indicates that at the time Mr Peterson applied for DSP he was suffering from the two claimed conditions – low back pain – discogenic with L4 nerve root compression and, anxiety and depression. The respondent conceded that these diagnoses had been established. The Tribunal is satisfied that there is sufficient medical evidence to support these two diagnoses and thus Mr Peterson meets the requirements of s 94(1)(a) of the Act.
Is either of Mr Peterson’s conditions permanent?
In order that an impairment rating can be made, it is first necessary to determine if Mr Peterson’s diagnosed conditions have been fully treated and stabilised, and that any associated impairments are likely to last more than 24 months. These requirements must be met before Mr Peterson’s conditions can be deemed as permanent for the purposes of the Act. Each diagnosed condition is examined separately in the following paragraphs.
Low back pain – discogenic with L4 nerve root compression
At the time of his application for DSP in October 2011, Mr Peterson’s low back pain – discogenic with L4 nerve root compression had been present for almost two years. The assessors who conducted the JCA were satisfied that the condition had been fully treated and stabilised. Although Mr Peterson retained some hope that surgery might still be possible in the future, based on the medical evidence of Doctors Fahroedin, Hunt and Schofield, the Tribunal concurs with the assessment made by the JCA assessors. The Tribunal is satisfied that Mr Peterson’s back condition had been fully diagnosed, treated and stabilised and that the associated impairment was likely to last for more than 24 months. Accordingly, the next step is to determine which Impairment Table applies and how many impairment points the condition attracts, which is addressed at paragraph 81.
Anxiety and depression
Dr Fahroedin’s reports and medical records indicate that Mr Peterson had a background low grade depression during the first year that he was attending his practice, in 2010. In Dr Fahroedin’s view, the depression was to be expected given the nature of Mr Peterson’s back injury. Dr Fahroedin’s two MRDSP reports of November and December 2011 (see paras 58 and 59) make it clear that a more severe anxiety state appeared to have been triggered by Mr Peterson’s participation in the youth worker training course.
This is noted in Dr Fahroedin’s records in May and June of 2011 (see para 46). On 18 May 2011 Dr Fahroedin recorded the issues that arose during the first few weeks of the youth worker course and noted that Mr Peterson was struggling past 2/52 especially and will see psychologist through course this week. He added anxiety/agitation is the main issue at present. On 1 June 2011 Dr Fahroedin recorded pain worse PTSD symptoms one affecting the other big setback in the short term and prescribed Mirtazapine 15 mg. Three weeks later Dr Fahroedin recorded that Mr Peterson has improved on small dose of Mirtazapine – still some residual anxiety.
At the time of his DSP application, Mr Peterson was receiving treatment for anxiety and depression by way of Mirtazapine and support of his general practitioner, Dr Fahroedin. Mr Peterson had also received counselling via the youth worker course. In his first MRDSP of November 2011, Dr Fahroedin wrote that future/planned treatment was may re-engage in counselling in the New Year and indicated that Mr Peterson’s condition was expected to persist for more than 24 months and may somewhat improve over the next two years.
In his second MRDSP of December 2011, Dr Fahroedin confirmed the earlier description of Mr Peterson’s past and present treatment for anxiety and depression. However, Dr Fahroedin took a slightly more pessimistic view of his prognosis ticking the boxes remain unchanged and fluctuate in regard to the effect of the condition on Mr Peterson’s ability to function over the next two years. At that point Mr Peterson had not been referred to a psychiatrist.
The Tribunal notes that in the three medical certificates dated 3 November 2011, 25 January 2012 and 9 February 2012, Dr Fahroedin certified that Mr Peterson suffered from anxiety/depression, that the condition was temporary and that it was likely to show considerable improvement within two years.
On 12 October 2011 Dr Fahroedin recorded that Mr Peterson was not currently taking Mirtazapine, past month and had mild anxiety/depressive symptoms. At a visit on 25 January 2012, Dr Fahroedin recorded that Mr Peterson had a good holiday in hometown in NZ with family & seeing his son and did manage to relax more & increase walking to 40 min approx.
The Tribunal notes, however, that Mr Peterson’s psychological situation was not stable. Two weeks later, on 9 February 2012, Mr Peterson was seen by Dr Khong who noted in part: Last few days, increasing depression and anxiety … had a panic attack 2 days ago, feeling numb and anxious at times.. Dr Khong recorded that Mr Peterson had never seen a psychiatrist and arranged for a referral to Brendan Meagher, a clinical psychologist.
On 5 March 2012 Dr Fahroedin saw Mr Peterson again. Dr Fahroedin noted:
having a terrible time had a ‘breakdown’ since I last saw him [Mr Peterson] massive panic attacks …. anticipate in the long term he could return to some sort of work with retraining but this may be a long term plan anxiety & panic is precluding any steps in this direction at this point in time.
The Tribunal’s view is that Mr Peterson was, at various times in late 2011 and early 2012, psychologically ill. However, the evidence before the Tribunal does not support the contention that his anxiety and depression had been fully treated and stabilised. The treatment Mr Peterson had received had been limited; he was not referred to a clinical psychologist until February 2012 and he had not seen a psychiatrist. With the exception of the MRDSP of December 2011, Dr Fahroedin’s reports and certificates strongly indicated an expectation of improvement with time. Accordingly, the Tribunal finds that this condition was not fully treated and stabilised. It therefore does not meet the requirements of s 94(1)(b) of the Act and the Impairment Tables. It was not a permanent condition and therefore cannot be given an impairment rating.
What impairment rating does Mr Peterson’s back condition attract?
In assessing Mr Peterson’s capacity to work, the assessors who conducted the JCA in November 2011 applied Table 20 Miscellaneous when rating Mr Peterson’s back impairment. As the most significant element of Mr Peterson’s disability resulting from his back injury was pain, the Tribunal agrees that this was the appropriate Impairment Table to use. The assessors rated Mr Peterson’s impairment at 20 points. Under Table 20, 20 points requires the following criteria to be met:
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.
Having regard to Mr Peterson’s evidence (see paras 16 to 21), the detailed description that Dr Fahroedin made of Mr Peterson’s then capacities (see paras 22, 23, 26 and 49) and the report of Dr Vagg (see para 27), the Tribunal agrees that 20 impairment points was the correct rating. Accordingly, Mr Peterson’s back condition meets the requirement of s 94(1)(b) of the Act.
Does Mr Peterson have a continuing inability to work?
As explained more fully above in paragraphs 6 and 7, Mr Peterson is a New Zealand citizen and for him to be granted DSP he must be severely disabled. Under cl 1.1.S.110 of the Guide a person is deemed as severely disabled if the person is unable to work at least 8 hours per week or more within the next two years. In addition, the person’s ability to be re-skilled for work in the open labour market, through intervention such as training, education, treatment or rehabilitation, must be taken into account when determining whether the person will be able to work at least 8 hours per week.
It was the view of the assessors who conducted the JCA in November 2011 that Mr Peterson had an FDTS* baseline work capacity of 8-14 hours per week and the same work capacity within two years with intervention. The assessors’ rationale for this view was that:
The client presents with the condition of lumbar back pain and experiences symptoms that include chronic pain, reduced endurance, reduced physical capacities and disturbed sleep. A combination of these symptoms reduces the client’s occupational functioning.
The assessors identified light, semi-skilled work as being suitable for Mr Peterson. [*FDTS refers to conditions fully diagnosed treated and stabilised. As the condition of anxiety and depression has been determined by the Tribunal to be not FDTS, the contribution of this condition towards Mr Peterson’s impairment and capacity to work at the time of his DSP application cannot be considered under the Act.]
I can find no written guidance or objective criteria that are to be used by a decision‑maker to determine if an impaired person with a rating of 20 impairment points is deemed capable of working for more or less than eight hours per week. Such a determination seems to the Tribunal to have a degree of arbitrariness about it. Nevertheless the SSIA Act and Agreement made between Australia and New Zealand demands that such a determination be made.
The opinions expressed by Dr Fahroedin and Dr Vagg in 2011 (at a time that was very close to the date of Mr Peterson’s DSP application), about Mr Peterson’s capacity to undertake some work either then or within the next two years, are consistent with the view taken by the JCA assessors.
On 9 October 2012 in response to a request from the respondent, Dr Fahroedin provided an opinion as to Mr Peterson’s suitability for employment of at least 15 hours per week*. Dr Fahroedin’s report commenced with the statement: For the basis of this report I am referring to Mr Peterson’s conditions as they were at 27.10.11 or within 13 weeks from that date, as requested. Dr Fahroedin wrote:
The symptoms Mr Peterson experienced at that time included severe pain & a severe limitation on his daily activities as a consequence.
He also wrote:
At the time specified above I had anticipated considerable improvement over a 3-6 month period.
The final paragraph of the report reads:
It is my opinion that Mr Peterson was not & will not be capable of doing 15 hours of suitable employment as of 27.10.11 or within 2 years of that date. Mr Peterson did attempt to retrain but was unsuccessful. Given the total time period since his original injury is now greater than 3 years I think it is reasonable to assume he will not resume work within the time period stated above.
[*The Tribunal notes that Dr Fahroedin used the specific term 15 hours of suitable employment. However, given that the test faced by a New Zealand citizen resident in Australia is the capacity to work more than eight hours per week, it is unfortunate that Dr Fahroedin was not invited to respond to the more relevant question.]
On 5 October 2011 Dr Fahroedin wrote a letter addressed To whom it may concern. The letter summarised Mr Peterson’s pain levels and went on to state:
Andrew has started a Certificate 1-2 General Education Course to help him improve his reading, writing, computer skills, and to enable him to have more employment opportunities. He is enjoying this so far.
On 12 October 2011, Dr Fahroedin recorded an assessment of Mr Peterson’s capacities that included:
walking – max threshold at 40 mins (then starts to get sore & after), currently 10 min on treadmill 4 days/week
needs good lumbar support when sitting – threshold 60 -90 min sitting depending on support of chair
standing 1 hr, then needs to sit, & alternate sitting & standing
...
daily pain – modifies activities – pain intensity 5-8/10, hard to get comfortable
...
doing English certificate 2/basic computer skills at TAFE now …
On 17 October 2011 Dr Fahroedin wrote a report addressed to Mr Peterson’s lawyers that included details of the above assessment. In the report, Dr Fahroedin noted the deferral of the youth training course and added:
In the meantime he is gaining foundation skill in English and computers to better enable him to cope with the level of study required in 2012.
That report concluded:
Given the current level of function & low level of confidence Mr Peterson currently has, I do anticipate considerable improvement over the next 3 to 6 months.
Dr Fahroedin wrote a second report also dated 17 October 2011 for the Accident Compensation Conciliation Service. The report notes in part:
Mr Peterson is currently severely limited in his capacity to perform any work duties. Mr Peterson needs to re-build core strength, confidence & have less pain on a daily basis before re-employment is feasible.... I do believe Mr Peterson has the capacity to regain future employment in time & fully support his efforts at re-training in work that does not require lifting & physical/manual work.
Rehabilitation and pain medicine specialist, Dr Vagg wrote a medico-legal report to Mr Peterson’s lawyers, which was received on 26 October 2011. Dr Vagg wrote in part:
He is currently unfit for pre-injury duties as he still have (sic) highly restricted sitting tolerance. He is unable to sit comfortably for longer than 20-30 minutes at a time, even on a good day. He is unable to lift weights of more than a few kilos or perform repetitive twisting or bending movements for any significant length of time without dramatically worsening his pain. He would only be fit for sedentary duties with short shifts and the ability to vary his position throughout the shift.
He is currently unfit to work and is having significant trouble with his vocational rehabilitation study due to the necessity to sit during lectures and while doing computer work…..
He may become fit for part-time duties in due course but at present it is hard to see him regaining the ability to work for the indefinite future.
[The Tribunal notes some internal inconsistency in this report. On the one hand Dr Vagg is suggesting that Mr Peterson was fit for short shifts; and on the other hand that he was unfit for work and that this was likely to continue to be the case indefinitely.]
There is some further indirect evidence of Mr Peterson’s capacity for physical activity in the months leading up to, and shortly after, his DSP application. Mr Peterson was initially able to attend for part of the youth worker course (although he had to abandon the course) and was able to attend a subsequent course designed to improve his English and computer skills during the first half of 2011 (see paras 25, 48 and 88). In addition, Dr Fahroedin recorded on 25 January 2012 that Mr Peterson had recently had a good holiday in New Zealand.
All of the foregoing material supports the notion that at the time of his DSP application, and considering only his back injury, Mr Peterson was capable of working more than eight hours per week. The Tribunal has looked carefully to see if there is any medical evidence that supports Mr Peterson’s contention that as at October 2011 he was severely disabled (due to his back condition alone) and was unable to work at least eight hours per week.
The only other contemporaneous medical report is that of orthopaedic surgeon, Dr Schofield, whose report was completed approximately six weeks after the DSP assessment period. Dr Schofield wrote in regard to the present situation that:
The pain is worse when bending, lifting or twisting. He has a positive cough impulse. He cannot sit for more than 20 minutes or stand for more than 45 minutes without moving around. He does get some relief when using a treadmill.
Dr Schofield concluded that Mr Peterson’s Future prognosis is poor without surgery and loss of weight. In the view of the Tribunal, this report is consistent with some worsening of Mr Peterson’s condition over time. However, the report was written for another purpose and did not address the question of whether Mr Peterson had any capacity for alternative part-time employment.
The Tribunal wishes to re-emphasise that it cannot consider the serious psychological illness that Mr Peterson was experiencing at the time of his application for DSP in determining his work capacity because, under the Act, this illness is deemed temporary. The psychological illness appears to have been a significant factor in Mr Peterson’s difficulties in completing the youth worker training course.
Based on the above considerations, the Tribunal finds that at the time of his DSP application, Mr Peterson had a work capacity of more than eight hours per week. Accordingly, Mr Peterson was not severely disabled and did not meet the requirements of the SSIA Act and the policy guidance in cl 1.1.S.110 of the Guide.
As the Tribunal has found that Mr Peterson did not meet the requirement of being severely disabled, there is no need to consider the questions of whether he became severely disabled while residing in Australia and whether he meets the requirement for duration of residence.
FINDINGS AND CONCLUSION
The Tribunal finds that Mr Peterson suffers from (a) low back pain – discogenic with L4 nerve root compression and (b) anxiety and depression; and he thus meets the requirements of s 94(1)(a) of the Act.
The first condition, low back pain – discogenic with L4 nerve root compression, had been fully investigated, treated and stabilised, and as it was likely to last more than two years is also found to be permanent. The condition thus meets the requirement of s 94(1)(b) of the Act.
The second condition, anxiety and depression, had not been fully treated and stabilised and hence does not meet the requirement of s 94(1) (b) of the Act.
Only the first condition of low back pain – discogenic with L4 nerve root compression is eligible for an impairment rating. As the Tribunal has assigned a rating under Table 20 of 20 impairment points, Mr Peterson meets the requirement of s 94(1)(b) of the Act.
Under the SSIA Act and in accordance with policy guidelines laid down in the Guide, for a New Zealand citizen residing in Australia to be granted DSP the person must be severely disabled. Clause 1.1.S.110 of the Guide states that a person is deemed as severely disabled if the person is unable to work at least eight hours per week or more within the next two years. As the Tribunal has determined that Mr Peterson was able to work more than eight hours per week, he does not meet this requirement.
It follows that Mr Peterson was not entitled to DSP during the qualifying period.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Dr Kerry Breen, Member. ...............[sgd].............................
K. Randall, Associate
Dated 5 July 2013
Date(s) of hearing 10 December 2012 and 24 June 2013 Applicant In person Solicitors for the Respondent Andrew Shelley, Sparke Helmore
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