Atlas and Secretary, Department of Family and Community Services

[2003] AATA 334

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 334

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/1374

GENERAL  ADMINISTRATIVE DIVISION

Re:         BULENT ATLAS

Applicant

And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       M.J. Carstairs, Member

Date:             11 April 2003

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) M.J. Carstairs

Member

SOCIAL SECURITY - disability support pension - whether applicant has physical, intellectual or psychiatric impairment - whether applicant has impairment rating of 20 points or more

Social Security Act 1991 s94 Schedule 1B

REASONS FOR DECISION

11 April 2003  M.J. Carstairs, Member

1.      This is an application by Bulent Atlas (the applicant) for review of a decision made by the Social Security Appeals Tribunal (the SSAT) on 27 November 2002.  The SSAT affirmed a decision of a Centrelink delegate of the Secretary to the Department of Family and Community Services (the respondent) that the applicant was not qualified for disability support pension.

2.      The applicant represented himself and was assisted by an interpreter in the Turkish language, Ms I Yucesaz.  Mr R. Huttner, a Centrelink advocate, represented the respondent.

3. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act1975..  In addition, the respondent filed a Statement of Facts and Contentions dated 27 March 2003.

BACKGROUND

4.      The applicant was born in Turkey and is  thirty-two years old.  He has tertiary qualifications from Turkey in architectural design and engineering.  He came to Australia in July 1996.  He worked from 1996 with General Motors Holden (GMH) but sustained an injury, for which he sought workers compensation.  He did not work from February 2001 onward, and took a redundancy package from GMH in November 2001.

5.      The applicant claimed disability support pension on 8 August 2002.  The claim was rejected on 14 October 2002 (T10), on the basis of medical evidence, which suggested that the applicant would be able to return to work within six to twelve months.  The applicant sought review of the decision to reject his claim.  An authorised review officer conducting an internal review, and subsequently the SSAT, agreed with the decision-maker, that the applicant was not qualified for the payment.  The applicant then sought review with this Tribunal on 16 December 2002.

EVIDENCE

6.      The applicant gave oral evidence that he has pain that affects his whole body.  He said his spinal problems leave him in constant pain that is not relieved by the medication prescribed to him by his general practitioner, Dr H. Baglar.  He said that he cannot sit in comfort, and must change position constantly.  He said that some relief is obtained with hydrotherapy and sauna treatments at a local leisure centre.  He goes there daily for three to four hours.  He said that he experiences headaches related to neck pain.  He has a nose and throat problem that dates from 1998, and now has an ear infection as well .  The applicant said that Dr Baglar tells him that there is nothing that can be done for these conditions.

7.      The applicant referred to a medical report by Dr J. Jamieson (T3) that said that his nose and throat problem arose as a result of a reaction to fumes at GMH.  He was unable to say for certain when the ear problem had developed, but thought he had it for four months.  In describing what he is able to do on a daily basis, the applicant said that he is quite restricted.  He undertakes little activity apart from that at the leisure centre.  As he lives in one-room accommodation, he has little cleaning to do.  He shops daily for his needs so that he has little to carry at one time.  He visits the library and tries to watch television.  He summarised his circumstances by saying that he has learned to live with his pain.  The applicant said he would like to work, but he cannot until his health improves.  He said that his health had improved since he left GMH, but he has not fully recovered.

8.      The applicant told the Tribunal that his condition is purely physical and is not psychological in origin.  He said that he had attended a psychologist, Ms A. Atakan, between January and March 2002, but discontinued his attendance, as he did not believe that further attendance would be useful to him.  He said that Dr Baglar had prescribed Aropax, which he had taken until October 2001.  He said that working at GMH was stressful. Now that he was no longer working there he was not under stress, and his pain was purely physical.

9.      In a written report dated 15 May 2002 (T3) Mr G. Brazenor, neurosurgeon, stated that he had seen the applicant first in July 2001 on referral from Dr Balgar.  The applicant had then ceased work on 23 February 2001, because of ongoing pain. After examining the applicant, Mr Brazenor found no sign of injury and recommended that he take two walks per day, gradually increasing the distance.  Mr Brazenor certified that the applicant was fit to return to any work that did not require persistent neck flexion.  When Mr Brazenor saw the applicant next, on 29 August 2001, he considered him to be further improved and certified him fit to return to work without restriction.  Mr Brazenor referred in his report to the applicant having a weird ideation that something was wrong, up and down his spine..  After later referring the applicant for magnetic resonance imaging (MRI) of the cervical and lumbar spine in December 2001, a mild kyphosis at C2-C7 and a moderately severe annulocentral bulge at L4/L5 with reduction of disc space in the three lower discs was demonstrated.

10.     When Mr Brazenor reviewed the applicant in May 2002, he said that the applicant had psychologically decompensated and was experiencing whole body pain.  However, Mr Brazenor noted that the applicant had normal ranges of movement in the neck and low back.  Mr Brazenor concluded that there was no evidence of cervical injury.  He said that the applicant had only complained of low back pain and sciatica from December 2001 and that, although the MRI revealed that there was a significant injury to the L4/L5 lumbar disc, clinically the applicant was capable of normal ranges of back movement.

11.     In a medical report dated 5 May 2002 (T3), Dr P. Battlay, general surgeon, stated that he had reviewed the applicant on 30 April 2002 for workers’ compensation purposes.  Dr Battlay concluded that the applicant showed excellent function in his lumbar spine despite the degenerative changes that showed on the MRI.  He considered that the applicant had no incapacity for work.

12.     In a medical report dated 17 June 2002 (T3), Dr H. Baglar, general practitioner, stated that he had treated the applicant from 18 October 2000 for neck pain, shoulder pain, headache, and low back pain.  Dr Baglar said that he had referred the applicant to Mr Brazenor.  Dr Baglar commented that he had observed the applicant to be paranoid about his workplace and he had referred him to a psychologist, as well as prescribing anti‑depressants.  Dr Baglar summarised his views in the following terms:

·   the applicant’s neck pain had no basis,

·   the low back pain might be work-related, although the applicant’s main complaints to him had been of neck pain,

·   the difficulty of correlating symptoms to a recognised medical condition made the case bizarre.

13.     In a report dated 6 August 2002 (T5), in support of the claim for disability support pension, Dr Baglar diagnosed the following conditions:

·   chronic neck pain that he considered was long term though improving;

·   chronic back pain which he considered was a long term condition but improving;

·   reactive depression which he considered was long term. 

14.     Dr Baglar stated that the applicant was prescribed analgesics for his neck and back pain.  However, he left blank the part of the questionnaire that referred to any treatment for reactive depression.  Dr Baglar indicated that the applicant would be able to return to full-time work within six-twelve months and would be able to work for twenty hours per week within six months. 

15.     In a medical report dated 25 September 2002 (T9), Dr T. Skinner, examining medical adviser with Health Services Australia, stated that the applicant has a thoraco-lumbar spine condition with range of movement that was fully within normal limits.  He considered that condition to be temporary and noted that it was improving.  Likewise, he considered that the applicant’s cervical spine condition was temporary, as it was improving.  He noted that range of movement of the neck was within normal limits except that there was a one-quarter restriction on ability to extend the neck.  He noted that the applicant had virtually full range of movement and no abnormal muscle tenderness.  Dr Skinner considered that the applicant’s condition of depression was temporary.  He stated that there was no overt depression or anxiety and that memory appeared intact.  He concluded that there was no objective cervical spinal pathology that would explain the constant reported pain.  He considered that the pain may be psychosomatic and if suffering a reactive depression it was not severe enough to prevent all work..  Dr Skinner spoke with Dr Baglar who advised him that, while he had considered psychiatric referral for the applicant, this has not eventuated.  Dr Skinner concluded that the painful condition had to be considered temporary, as the diagnosis was unclear and he was still improving. The psychiatric condition had not been clearly defined or treated and, therefore, also had to be considered temporary.

CONSIDERATION OF THE ISSUES

16. Section 94 of the Social Security Act 1991 (the Act) 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;

…

17.     The applicant submitted that he was unable to work now and would not be able to do so until he was fully recovered.  He was concerned that his newstart payments have ceased, as he does not consider that he is able to look for work, which is a requirement for newstart allowance.  He considered that the doctors have insufficiently acknowledged the extent of his disability.

18. Mr Huttner submitted that qualification for disability support pension requires that a person’s impairment be at least twenty points under the Tables provided in Schedule 1B of the Act. Mr Huttner submitted that the Introduction to the Tables sets out that, for an impairment rating to be assigned at all, a condition must be one that is fully documented and diagnosed, treated and stabilised, and likely to persist for at least two years.  He submitted that the date at which this must be satisfied is at the date of the claim or within thirteen weeks of it. 

19.     Mr Huttner submitted that at the time of the claim the impairment rating was NIL.  He further submitted that at the time of the claim the applicant did not have any medical conditions that constituted impairments within the meaning of Schedule 1B of the Act. Mr Huttner submitted that the condition of the applicant’s cervical spine and lumbar spine could not be rated at the time of the claim, as the medical evidence was that they were temporary and improving. The condition of depression also did not come within the meaning of an impairment.  

20.     In coming to a decision, the Tribunal has taken into account the oral evidence, medical reports and submissions from both parties. 

21.      Dr Skinner's evidence is that the applicant’s cervical spine condition, his lumbar spine condition, and his reactive depression condition are temporary..  He noted that the back and neck are improving, agreeing with Dr Baglar.  Dr Baglar in his written report (T5) did not refer to any treatment for reactive depression.  On that evidence and after discussion with Dr Baglar, Dr Skinner concluded that no impairment rating could be given as no clear diagnosis had been made and no treatment had been undertaken.  

22.     Furthermore, while Dr Baglar identifies the three conditions of chronic neck pain, low back pain and reactive depression, he considered that the applicant would be able to return to full time work as a process worker within six to twelve months.  This view supports the conclusion reached by Dr Skinner, that the reactive depression is of a temporary nature and that, taken overall, the applicant’s physical symptoms relating to his spine are not at a level to impair his ability to work full-time. 

23.     The Introduction to the Tables for the assessment of work-related impairment in Schedule 1B to the Act provides, in part:

…

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.

24.     The evidence in this case is that the reactive depression, as diagnosed by Dr Baglar, is not a condition that has been fully diagnosed, treated and stabilised.  The Tribunal accepts the evidence of Dr Skinner that, in the absence of a referral to a psychiatrist, diagnosis is unclear.  On the evidence of Dr Baglar and Dr Skinner, and taking into account the requirement that to assign a rating under the Act, there must be a clear diagnosis and treatment, no rating can be given to the condition referred to by Dr Baglar as reactive depression.

25.     In regard to the applicant’s chronic back pain, on the medical evidence, particularly the MRI showing a significant injury to the L4/L5 disc, and the applicant’s complaints of pain, the Tribunal is satisfied that condition of chronic lower back pain is permanent.  However, in view of the lack of restriction in range of movement noted by all the medical practitioners, the condition attracts a rating of NIL under Table 5.2.  In regard to the applicant’s chronic neck pain, the medical evidence indicates that the applicant does not have any organic problem with his neck.  The Tribunal accepts the evidence of Mr Brazenor, that an MRI of the cervical spine showed nothing other than mild kyphosis, as well as the evidence of Dr Baglar that the applicant’s neck pain had no basis.  The Tribunal accepts Dr Skinner's evidence that the condition is an improving and temporary one.  In view of the fact that there is no restriction in the range of the applicant’s neck movement, no impairment rating can be assigned.

26. The Tribunal is, therefore, satisfied that, at the time of the claim, in August 2002, the applicant did not meet the level of impairment necessary for disability support pension, as set out in s94(1)(b) of the Act, which requires that a person have an impairment rating of twenty points or more. As the applicant did not meet the requirements of s94(1)(b) of the Act, the Tribunal did not go on to consider whether the applicant had a continuing inability to work, as also required for qualification for this pension under s94.

DECISION

27.     The Tribunal affirms the decision under review.

I certify that the twenty‑seven [27] preceding paragraphs are a true copy of the reasons for the decision of:

M.J. Carstairs, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  7 April 2003

Date of decision:  11 April 2003
Advocate for applicant:                Self-represented
Advocate for respondent:            Mr R. Huttner, Centrelink