Ayoub; Secretary, Department of Family and Community Services

[2005] AATA 104

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 104

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/416

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Applicant

And DAVID AYOUB

Respondent

DECISION

Tribunal Senior Member M D Allen

Date4 February 2005

PlaceSydney

Decision The decision under review is set aside.

(Sgd) M.D. ALLEN
  ..................................................
  Senior Member

CATCHWORDS

SOCIAL SECURITY: no appearance by the Respondent at the hearing, Tribunal proceeded ex parte – Department’s appeal against a decision by the SSAT to grant the Respondent a Disability Support Pension – Respondent’s psychiatric condition was not diagnosed or treated pursuant to paragraph 5 of the Impairment Tables and therefore could not be rated for the purposes of the Respondent’s application – Respondent’s only rateable impairment was his back condition which by itself is not sufficient to grant a DSP. – decision under review set aside.

Social Security Act 1991 s94, Schedule 1B

Social Security (Administration) Act 1999 s39

REASONS FOR DECISION

4 February 2005   Senior Member M D Allen   

1.      By application made 12 March 2003 the Applicant sought review of a decision by a Social Security Appeals Tribunal made on 30 January 2003 which decision granted a disability support pension to the Respondent.

2.      The criteria for the grant of a disability support pension are set out in s94 of the Social Security Act 1991 which section reads inter alia:

“(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)…

(d)…

(e)…”  

3.      When this matter came on for hearing before me on 19 January 2005 (there having been a prior conciliation conference and a vacated hearing) there was no appearance by or on behalf of the Respondent.  My Associate telephoned the Respondent at the mobile telephone number recorded in the Tribunal’s file as his contact telephone number and received no answer.  The notice of hearing had been forwarded by post to the address previously given by the Respondent as his address for service and that correspondence had not been returned to the Tribunal.  In these circumstances and being satisfied that the Respondent had been properly notified of the time, date and place of hearing, I proceeded to deal with this matter ex parte.

4. The Respondent suffered a work injury on 22 February 2001. He has instructed solicitors to pursue a workers compensation claim and contained within the documents for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 are several medical reports including medico-legal reports from orthopaedic surgeons, a psychologist and a psychiatrist.

5. There is no dispute that the Respondent suffered a back injury which has led to disablement, although the reports from Drs Collins and Bentivoglio were prepared using tables other than the Tables for the Assessment of Work-Related Impairment for Disability Support Pension which are at Schedule 1B to the Social Security Act 1991.

6.      On 23 January 2002 a medical practitioner at Health Services Australia reported as follows:

“This man will be 26 shortly. He used to work as a skilled labourer/concreter. He stopped work last year because of lower back pain. His worker (sic) compensation case has not been finalised.

He states that he did previously had (sic) back pain which did not really trouble him. However in February 2001 the back pain stopped him from working.

…

He ambulates and transfers well. He has a 25 % loss of normal range of movement with a corresponding impairment rating of 10 points under Table 5.2.

The impairment rating would suggest that full time light sedentary work is possible after retraining and rehab. He is unfit for his previous work. He would benefit from a graded return to work. It may also be reasonable to consider him temporarily unfit for work over the next 3 months due to the current need to attend physiotherapy treatment which would adversely impact on his work attendances.”

7.      It will be noted that the above mentioned assessment by the medical practitioner at Health Services Australia makes no mention whatsoever of any neck pain or psychiatric illness.

8.      A later report by a different medical practitioner at Health Services Australia stated on 15 February 2002:

“This client was assessed on 23/01/02 for eligibility for the disability support pension. According to the report he suffers from back pain. He has submitted further information in the form of a medical certificate from Dr Parissis and two reports from Dr Bentivoglio dated 26/11/01 and 27/07/01. These reports reiterate his symptoms and clinical findings and they have been considered in the CMO’s assessment.  The appropriate impairment rating has been assigned. Therefore, there is no now (sic) information provided here that would alter the impairment rating or work ability of this client.”

9.      In his report of 20 July 2001 Dr Collins, specialist physician, states:

“He is not fit for any form of employment where strain is placed upon his back. He would not be fit for work in the building industry but later when his back has improved he maybe fit for manual work at a bench using his arms. He may also be fit for security work, or for work in business.”

10.     On 6 May 2002 the Respondent’s general practitioner Dr Parissis reported:

“David has been unable to work from the 22/02/01 and he is unable to work for the next year to cover till 22/02/03.”

11. The Applicant has not disputed that the Respondent’s back condition results in a 10 per cent impairment under Schedule 1B to the Social Security Act 1991 and no material has been placed before me by the Applicant to challenge this assessment.  The most recent report by Dr Bentivoglio dated 20 June 2003 does not advance the matter much further. Dr Bentivoglio states at page 2 of his report:

“Regarding this gentleman’s back, I have no reason to alter my opinion of this gentleman since seeing him last…on today’s physical examination there is no evidence of any nerve root irritation or compression…”

12.     Dr Bentivoglio then goes on in his report to deal with the Respondent’s neck which is a new issue.  At page 1 of his report he records the Respondent as having a loss of 2/3 range of movement in the cervical spine.  However at page 2 he reports:

“This gentleman may have sustained some degree of discal damage in his cervical spine region as a result of his work activities.  On today’s physical examination there is no evidence of any nerve root irritation or compression to suggest he would benefit by surgical treatment…”

and goes on to assess five per cent impairment on, presumably, the American Medical Association Impairment Tables he was using for the purposes of the New South Wales Compensation Court.

13. That the Respondent was suffering some degree of impairment to his cervical spine was not apparent or reported upon at the time of his claim for disability support pension, which claim was made on 18 and 20 December 2001. Pursuant to ss39(3) of the Social Security (Administration) Act 1999 I cannot take into account in these proceedings any condition such as the Respondent’s cervical spine which was not present at the time of his claim for disability support pension or a period of 13 weeks thereafter.  I must therefore base my decision upon the finding of fact that the Respondent has an impairment rating 10 points on the Social Security Impairment Tables in relation to his thoracic and lumbar spine alone.

14.     During the year 2002 it became apparent that the Applicant was suffering some form of psychiatric illness.  In a report dated 6 May 2002 psychologist Mr Stambouliah reported to the Respondent’s solicitors opining inter alia:

“Mr Ayoub presented with significant Chronic Adjustment Disorder with Depression and Anxiety symptoms associated with his chronic pain condition…He did not receive adequate psychological treatment for his condition. Thus, he would not be psychologically fit to resume his substantive pre-injury duties.

He would benefit from a Pain and Depression Management program aimed at learning self-help techniques to control his pain and distress symptoms. This treatment could be provided at this clinic, or alternatively the Australian Psychological Society could refer him to the nearest appropriate Clinical Psychologist.”

15.     A report from Health Services Australia dated 10 July 2002 reads:

“A file review has been performed as requested. The customer has provided further medical reports in the form of:-

1.A report written by Dr J Bentivoglio, an Orthopaedic Surgeon, dated 18/4/2002.

2.A report written by Mr Hadi Stambouliah, a Psychologist, dated 6/5/2002.

There is no significant new information in Dr Bentivoglio’s report.

The psychologist indicates that this man is suffering from ‘significant chronic adjustment disorder with depression and anxiety symptoms associated with his chronic pain condition and the functional sequelae of the work-related incident of 21 February 2001’. The psychologist goes on to say that ‘he did not receive adequate psychological treatment for his condition’.

In light of this new information, I would recommend that he be considered temporarily unfit for any work or training. With adequate treatment, his depression should improve. He should be reviewed in 6-9 months’ time to assess his progress.”

16.     Dr McClure, Psychiatrist in a report to the Respondent’s solicitors dated 24 September 2004 states inter alia:

“I agree with Mr Stambouliah’s assessment that the most likely diagnosis in Mr Ayoub’s case is an Adjustment Disorder with Mixed emotional Features. This diagnosis is made in accordance with diagnostic criteria within the DSM-IV (APA 1994)…

As suggested by Mr Stambouliah, approximately 12 sessions of cognitive behavioural therapy should assist Mr Ayoub’s condition. An increase in the antidepressant dose to more therapeutic levels would also be helpful.”

17.     The Applicant obtained a comprehensive report from Dr Lewin, Psychiatrist. That report dated 9 July 2004 states inter alia:

“Based upon the history reported to me there is no current psychiatric diagnosis. However the mental state examination is strongly suggestive that ‘all is not well’ in the case of Mr Ayoub. I suspect that he is suffering from a mood disorder, probably a hypomanic mood disturbance. I was not able to confirm this diagnosis on the basis of available information. 

Mr Ayoub has not had any treatment whatsoever for that condition… Plans have been made, but it appears, on the basis of information available to me, that Mr Ayoub has not proceeded with treatment at any stage. He has a treatable condition and it is very likely that treatment would bring his symptoms fully into remission.

…I suspect that there is a psychiatric illness of at least moderate severity in this case.

You asked whether the psychiatric condition is permanent. The answer to this question depends upon the diagnosis and also upon Mr Ayoub’s progress and treatment. It is quite clear that his case has not yet stabilised and he has not yet developed a permanent psychiatric condition. He has manifest symptoms which have not been adequately treated and one cannot make an accurate prediction in regard to prognosis in the absence of a firm confirmed psychiatric diagnosis.

There are a number of features suggestive of a psychotic disorder…

At this stage it is important that Mr Ayoub should be referred to a psychiatrist for diagnosis and treatment. Treatment is available through the Community Mental Health Service for the condition described above… At the present time Mr Ayoub is unfit for work, based upon the mental status observations noted above. This evaluation is likely to change in response to treatment. I am not able to certify him unfit for work for a prolonged period of time. It is likely that there would be a significant improvement in his mental state in a period of 3-6 months in response to treatment. At that stage he may well be fit to participate in a return to work program. Such a program may or may not involve a rehabilitation program as well.”

18.     The decision of the SSAT under review in these proceedings states at paragraph 18:  “He has not participated in the cognitive behavioural therapy sessions because he cannot afford the fees that are charged”.

19.     I am totally at a loss given this evidence as to how the SSAT could have come to the decision it did. Paragraph 5 of the Impairment Tables reads:

“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 would persist for the foreseeable future…”

And the SSAT had before it evidence from Mr Stambouliah, Dr McClure and the Applicant that:

I.As at the date of the original claim or 13 weeks thereafter the psychiatric illness had not been diagnosed much less treated.

II.Even at the date of the SSAT decision the condition had not been treated or stabilised.

III.On 24 September 2004 Dr McClure stated the Applicant‘s antidepressant medication should be increased “to a more therapeutic dose”. There is no evidence of this occurring.

20.     Given that evidence, an impairment rating could not have been given under the Impairment Tables for psychiatric illness and thus the only impairment suffered by the Respondent which could be taken into account was his back injury which has been assessed at 10 points.

21.     The opinion of Dr Lewin makes the matter even clearer. As Dr Lewin points out the Applicant should be referred to the psychiatrists for diagnosis and treatment such treatment being available through the Community Mental Health Service. Dr Lewin also opines that it is likely that it would be a significant improvement in the Respondent’s mental state in a period of three to six months in response to treatment. 

22. As the Respondent’s impairment did not at the time of application for DSP or during the period of 13 weeks thereafter, amount to 20 points or more under the Impairment Tables he did not satisfy the criteria for the grant of DSP in particular paragraph 94(1)(b) Social Security Act 1991. The decision under review is therefore set aside.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:         (E.Pope)           .....................................................................................
  Associate

Date/s of Hearing  19 January 2005
Date of Decision  4 February 2005
Applicant  no appearance                
Solicitor for the Respondent     Mr J Kenny, Department of Family & Community      Services