Atlas and Secretary, Department of Employment and Workplace Relations

[2006] AATA 684

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 684

ADMINISTRATIVE APPEALS TRIBUNAL          № V2006/153

GENERAL  ADMINISTRATIVE DIVISION

Re:            BULENT ATLAS

Applicant

And:         SECRETARY,

DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal:       Dr R. McRae, Member

Date:7 August 2006

Place:Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) R. McRae

Member

SOCIAL SECURITY ‑ disability support pension ‑ neck pain ‑ lower back pain ‑ depression ‑ whether 20 impairment points ‑ impairment tables ‑ continuing inability to work

Social Security Act 1991 s 94(1)

REASONS FOR DECISION

7 August 2006  Dr R. McRae, Member

1.      Mr Bulent Atlas (the Applicant) seeks a review of a Centrelink decision dated 11 July 2005 to reject his claim for the disability support pension (DSP).  Centrelink acts as agent for the Secretary to the Department of Employment and Workplace Relations (the Respondent).

2.      The issue for the Tribunal is whether the Applicant is entitled to the DSP according to the requirements of the Social Security Act 1991 (the Act).  The Tribunal’s decision is that the Applicant is not entitled to the DSP.  

3. The Tribunal received into evidence the documents lodged by the Respondent under s 37 of the Administrative Appeals Tribunal Act 1975, as well as one exhibit (Exhibit A1) lodged by the applicant and 23 exhibits (Exhibits R1-R23) lodged by the Respondent.

BACKGROUND

4.      The Applicant is a thirty-five year old man who migrated from Turkey to Melbourne in July 1996.  He has separated from his wife and single child.  His Turkish tertiary qualifications are in architectural design and engineering.  From 1996 he was employed by General Motors Holden, where he sustained an injury eligible for workers compensation.  He ceased work on 23 February 2001, and took a redundancy package in November 2001.  He uses train travel to explore areas of Melbourne. 

5.      He has received the Newstart Allowance since September 2001.  He lodged a claim for the DSP on 8 August 2002 claiming chronic neck pain, chronic lower back pain and reactive depression.  Centrelink had the Applicant examined by Dr T. Skinner of Health Services Australia (HSA).  Dr Skinner provided a report dated 25 September 2002 (Exhibit R18), which determined that all the Applicant’s conditions were temporary, and so unable to be assigned an impairment rating under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Tables) in Schedule 1B of the Act. 

6.      The claim for the DSP was rejected on 14 October 2002 because the Applicant failed to satisfy s 94 of the Act.  The Social Security Appeals Tribunal affirmed this decision on 27 November 2002.  The Administrative Appeals Tribunal determined on 11 April 2003 that the Applicant’s lower back pain was permanent with an impairment rating of nil under Table 5.2 of the Tables.  The neck pain and depression were determined to be not permanent and therefore not assessable under the Tables. 

7.      In a Work Capacity Assessment Report dated 8 May 2003 (Exhibit R20) Ms K. Pernat considered the Applicant’s functional impairment was minimal, with no inability to work. 

8.      On 26 May 2005 the Applicant lodged a new claim for the DSP related to neck pain, emotional instability and back pain. 

9.      In a report dated 5 July 2005 (Exhibit R1), Dr D. Wong Shee of HSA awarded nil points for the Applicant’s conditions, qualifying the assessment minimally.  A Centrelink officer rejected the claim on 11 July 2005.  On 8 February 2006 the Social Security Appeals Tribunal decided the neck and back conditions were permanent conditions, assessed at 10 points under Table 20 of the Tables, and that the Applicant suffered an undiagnosed emotional condition which was not permanent and so could not be given an impairment rating. 

APPLICANT’S SUBMISSION

10.     The Applicant was self-represented.  He gave evidence through an interpreter in the Turkish language.  He stated that his injuries don’t feel good, that he can’t see himself being productive at work, and that I believe other work will irritate [my] injuries.  He expressly denied any intellectual or psychiatric impairment.  He was unable to define particular physical impairments beyond vague, unsupported assertions.  He expressly relied on all medical letters associated with his application for the DSP. 

11.     In cross-examination, the Applicant stated that there was minimal if any interruption to his activities of daily living, and he is able to walk distances measured in kilometres.  He ceased consuming anti-inflammatory medications by about 24 May 2006, and was now consuming vitamins and minerals, in particular calcium supplements.  The Tribunal noted his free body movement, particularly his upper limbs, to aid his verbal expression, and his ability to hold and read an English‑language tourism magazine throughout the Respondent’s advocacy. 

CONSIDERATIONS

12. Section 94(1) of the Act specifically provides that DSP is payable if:

94(1)…

(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;

…

13.     Paragraph 4 of the Introduction to Schedule 1B of the Act provides that:

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…

14.     Paragraph 5 of the Introduction to Schedule 1B of the Act provides that:

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…

15.     Paragraph 8 of the Introduction to Schedule 1B of the Act provides that:

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 judgment 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.

FINDINGS

16.     The Applicant’s case is based on grounds which consider physical impairment. The Applicant expressly denies psychiatric impairment.  Regarding emotional instability, recorded by the Applicant’s local medical officer on medical certificates, the Tribunal notes comments in previous decision reviews related to the brief consumption of Aropax, now discontinued, and consultation with a psychologist.  There is no evidence that the Applicant consulted a psychiatrist.  There is no evidence that emotional instability is a fully documented, diagnosed condition which has been investigated, treated and stabilised as required by the Act before any rating is contemplated. 

Neck Pain

17.     The Applicant’s most consistent complaint is neck pain, although it is generally described as including head and several body joints also.  All assessments have eluded diagnosis by multiple consultants from different medical disciplines.  In a report dated 17 January 2002 (Exhibit R10), Dr R. Ebringer, a rheumatologist, stated that the Applicant has a chronic pain syndrome affecting the neck, shoulder girdles and upper arms.  He could not describe an aetiology, and did not seek to review him.  In a report dated 22 May 2002 (Exhibit R14) Mr G. Brazenor, neurosurgeon, concluded there was no evidence of cervical injury and a normal full range of movement.  This is supported by a normal for age magnetic resonance image study.  The Tribunal notes the similar opinion of Mr D. de la Harpe, spinal surgeon, from January 2004 (Exhibit R16).  No new diagnosis, investigation or treatment was presented in evidence.  The balance of evidence is for normal neck function.  The Tribunal notes the Applicant’s evidence that he no longer takes analgesic or anti-inflammatory medication.  The Tribunal considers the neck pain to be fully investigated and treated.  The clinical course is not stabilised and is improving, and it is currently at a level tolerated without requirement for medication.  The neck pain is not permanent as required by the Act before any rating is contemplated. 

Lower Back Pain

18.     A magnetic resonance image dated 18 December 2001 (T87 p. 266) indicated a L4/5 disc injury, (precipitating the Applicant’s complaint of back pain and sciatica). This was the basis of the previous Administrative Appeals Tribunal decision.  The injury is permanent, but attracted a rating of nil under Table 5.2.  In a report dated 15 May 2002 (T87 p. 296) Mr G. Brazenor concluded there was no evidence of [lumbar] back injury and a normal full range of movement.  The Tribunal notes the similar opinion of Mr D. de la Harpe in a letter dated 28 January 2004 (Exhibit R16).

19.     No new diagnosis, investigation or treatment was presented in evidence.  The Tribunal accepts Mr Brazenor’s and Mr de la Harpe’s conclusion that there is no clinical impairment.  The Tribunal considers the back pain to be fully investigated, treated and stabilised, and further that this is at a level tolerated without requirement for medication.  There is evidence to suggest it is permanent. 

20.     There is no evidence that use of Table 5.2 would underestimate the level of disability.  There is no evidence of a separate loss of function, or global effects of more than one body system.  Absence of requirement for regular analgesics coupled with full range of movement indicates an absence of chronic entrenched pain.  The Tribunal thus considers Table 5.2 and not Table 20 is the appropriate table for assessment of the Applicant’s back impairment, and the rating is NIL. 

CONCLUSION

21. The Applicant satisfies s 94(1)(a) of the Act.

22.     However, the Applicant does not satisfy s 94(1)(b) of the Act. 

23.     Therefore, there is no requirement to consider s 94(1)(c) of the Act.

24.     The Tribunal concludes that at the time of the claim for DSP and in the following 13 weeks the Applicant did not satisfy the requirements necessary for DSP. 

DECISION

25.     Accordingly, the decision of the Respondent to reject the claim for DSP was the correct and preferable decision and the Tribunal affirms that decision.

I certify that the twenty‑five [25] preceding paragraphs are a true copy of the reasons for the decision of:

Dr.R. McRae, Member

(sgd):      Olympia Sarrinikolaou

Clerk

Date of Hearing:  3 July 2006

Date of Decision:  7 August 2006
Advocate for the Applicant:        Self‑represented

Advocate for the Respondent:    Ms J. Hume, Legal Services Branch, Centrelink