Azzopardi and Secretary, Department of Employment and Workplace Relations

[2006] AATA 613

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 613

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2006/20

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ALFRED AZZOPARDI

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-Time Member)

Date7 July 2006

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security - benefits - Disability Support Pension (DSP) - resident of Malta -international agreement - disabilities - degree of impairment - medical evidence - continuing inability to work - permanent or temporary - Social Security Appeals Tribunal (SSAT)

Social Security Act 1991 and Amendments, Section 94 and Schedule 1B - Tables for the Assessment of Work-Related Impairment for Disability Support Pension

Social Security (Administration) Act 1999

Social Security (International Agreements) Act 1999

Guide to Social Security Law

Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Re Drake No 2 (1979) 2 ALD 634

Sayan and SDFCS (2001) AATA 950 (19 November 2001)

Giddings and SDFCS (2003) AATA 893 (12 September 2003)

Re Watts and SDFCS (2003) AATA 632

Re Crossland and SDFCS (2004) AATA 864

SDSS v Pusnjak (1999) 56 ALD 444

Reissis and SDFCS (2005) AATA 702 (25 July 2005)

REASONS FOR DECISION

7 July 2006 Associate Professor B W Davis AM (Part-Time Member)   

Decision under Review:

1. The decision under review is a decision made by a Centrelink Officer on 6 September 2005, subsequently affirmed by the Social Security Appeals Tribunal on 3 January 2006, to reject Mr Azzopardi’s claim for Disability Support Pension (DSP) because he does not satisfy sections 94(1)(b) and 94(1)(c) of the Social Security Act 1991 (the Act).

Issues:

2. (a) Does the applicant satisfy section 94(1)(b) of the Social Security Act 1991; that is, does his impairment(s) attract a rating of 20 points or more under the Impairment Tables?

(b) Does the applicant satisfy section 94(1)(c) of the Act; that is, does he have a continuing inability to work?

Legislation:

3.      The relevant legislation is as follows:

Social Security Act 1991 and Amendments, especially section 94 and Schedule 1B – Tables for the Assessment of Work-Related Impairment for Disability Support Pension

Social Security (Administration) Act 1999

Social Security (International Agreements) Act 1999

Guide to Social Security Law

Standard of Proof:

4.      The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal.

Background:

5.      On 17 August 2004 Mr Azzopardi lodged a claim for Australian Disability Support Pension (DSP) in Malta.  He was assessed by a panel of three doctors in Malta on 14 December 2004 and on 16 March 2005 following a file review at Health Services Australia (HSA), a Centrelink disability officer wrote to the medical panel in Malta for further information.  A response was received on 17 May 2005 and the file again reviewed by Health Services Australia on 3 August 2005.  On 6 September 2005 a delegated Centrelink officer made a decision to reject Mr Azzopardi’s claim for Disability Support Pension (DSP).

6.      Mr Azzopardi requested a review of the decision.  On 26 October 2005 an Authorised Review Officer (ARO) decided to affirm the initial decision noting amongst other things: 

Mr Azzopardi resided in Australia from 25 November 1964 and returned to           Malta on 16 August 1969 and has resided there ever since.

His permanent medical conditions have been diagnosed as right knee arthritis      and hypertension;  the temporary (as defined in the Act) medical condition is     depression and anxiety.

Arthritis of the right knee was assigned an impairment rating of 10 points and       the hypertension assigned an impairment rating of nil points.

He stopped work because of various medical ailments and illness, including a      claimed low back pain condition.

The total impairment rating at this time was 10 points, which is less than the         minimum 20 points needed to qualify for DSP payments.

7.      On 15 November 2005 Mr Azzopardi appealed to the Social Security Appeals Tribunal (SSAT) which conducted its hearing in Melbourne on 3 January 2006.  The applicant was not present, but had indicated the hearing should proceed on the papers.  The SSAT panel included a medical member and conducted a thorough examination of all evidence available, including reports from several doctors.  The SSAT decided to affirm the decision under review.  Mr Azzopardi then sought de-novo review by the Administrative Appeals Tribunal (AAT) on 29 January 2006.

The AAT Hearing:

8.      The AAT hearing was conducted in Hobart on 21 June 2006.  There were no appearances on behalf of the applicant, the respondent was represented by Ms Michelle Baulch.

9. Ms Baulch opened DEWR’s case, drawing upon a Statement of Facts and Contentions dated 1 May 2006 (Exhibit R1). Ms Baulch said that although the applicant met provisions of sections 94(1)(a), (d) and (e) of the Social Security Act 1991, he failed to meet specified criteria in sections 94(1)(b) and section 94(1)(c) of the Act, namely to demonstrate an impairment rating of 20 points or more and an ongoing inability to work.

10.     There was a considerable amount of medical evidence, but the Tribunal was required to focus on the applicant’s condition at the date of application for DSP and the 13 weeks thereafter as specified in the Act (for confirmation see Sayan and SDFCS (2001) AATA 950 and Giddings and SDFCS (2003) AATA 893). Any evidence of a deterioration in the applicant’s condition since 15 November 2004 would not be relevant and should be ignored.

11.     The applicant’s claimed medical problems were depression, arthritis of the right knee and hypertension, but in his claim form for DSP he had listed only depression and osteoarthritis.

12.     12.      A report by consulting psychiatrist, Dr A Mangion, dated 5 February 2004 claimed that at the time Mr Azzopardi was suffering from chronic depression, morbid anxiety and a number of related mental conditions which rendered him unfit for employment.  Dr Mangion made the same diagnosis on 10 May 2005, but following queries by Centrelink the Maltese Medical Board reported that as at May 2005, medication had resulted in the applicant’s condition being stabilised.

13.     A report by Dr Tabart of Health Services Australia, dated 3 August 2005, indicated that the applicant suffered from moderate or regular symptoms of depression, but she considered the situation to be temporary and might benefit from modified pharmacotherapy and some psychological intervention.  The SSAT disagreed with this assessment, deciding the condition was permanent and giving it a rating of 10 points impairment.

14.     The respondent contends this finding is against the evidence.  The condition arose in December 2003 or January 2004, by May 2005 treatment had rendered it static, but with prospect of improvement.  Crucially, at the relevant time of determining the applicant’s prospective qualification for DSP, that being the 13 weeks from 17 August 2004 to 15 November 2004, the condition was not fully treated and stabilised, hence it could not be considered permanent and given an impairment rating.

15.     Turning now to the claimed disability of arthritis of the right knee, the respondent conceded that Maltese Medical Board reports of 14 December 2004 and 17 May 2005 confirmed the disability existed, but noted no mobility aids were needed, but the applicant had difficulty in going upstairs or walking on uneven ground.  Dr Tabart in her report dated 3 August 2005 indicated the impairment was permanent and assigned a 10 point rating, noting there would have to be a demonstrated loss of mobility, co-ordination and balance or major interference with walking before a 20 point rating could be considered.  The SSAT had agreed that a 10 point impairment rating was appropriate.

16.     With regard to hypertension, the Malta Medical Board considered the applicant’s activity level was more affected by the arthritis than the effects of the hypertension itself.  Following a query from Centrelink, the Medical Board reported that the condition was not difficult to control and had improved over time.  The HSA report by Dr Tabart, dated 3 August 2005, indicated that although the hypertension would be considered permanent for purposes of DSP, it was well controlled and therefore attracted a nil rating under Table 20.  A rating of 10 points would only apply if invasive, intensive therapy failed but without end organ damage.  The Social Security Appeals Tribunal determined that the hypertension did not interfere with the applicant’s ability to function and did not necessitate an impairment rating.

17. Ms Baulch noted that other medical conditions had been mentioned in Dr Mangion’s reports of February 2004 and May 2005, but were not reported by the applicant in his DSP claim form. There is sufficient evidence to warrant these being considered in the DSP assessment. The respondent considers the applicant’s total impairment rating is 10 points for right knee arthritis which is less than the 20 points required by section 94(1)(b) of the Social Security Act 1991 and he therefore fails to meet the qualifier rating for DSP.

18.     The other significant matter to be addressed is whether Mr Azzopardi satisfies the criteria for continuing inability to work.  Section 94, subsection 2 of the Act states that a person has a continuing inability to work if the impairment(s) prevent the person from doing any work within the next two years and the person cannot undertake training or be retrained within two years.  Section 94, subsection 5 defines work as being work of less than 20 hours per week and this means any work, not just the work for which the applicant is trained or skilled (see Watts and SDFCS (2003) AATA 632 and Re Crossland and SDFCS (2004) AATA 864, also SDSS v Pusnjak (1999) 56 ALD 444).

19.     The Maltese Medical Board indicated in December 2004 the applicant was unable to work because he was too depressed to do so but gave no future prognosis.  The respondent admits this may have been true at the time but subsequent medical reports from other practitioners and the Medical Board itself regarded the depression as capable of stabilisation and some alleviation.   Similarly Dr Mangion’s claim the applicant was unfit for employment in May 2004 and May 2005, did not comment on prospects outside his then current field of activity.  The applicant in his claim form indicated there was no reason why he could not undertake appropriate rehabilitation or training in the future.  The HSA report by Dr Tabart dated 3 August 2005, suggested the applicant would be able to undertake work for 30 hours per week within 6 to 24 months.  The SSAT was also of a view that the applicant did not have an ongoing inability to work.

20. The respondent contended this evidence demonstrated Mr Azzopardi’s depression was amenable to treatment and he would be able to undertake light to moderate work within two years and consequently did not have a continuing inability to work within the meaning of section 94(1)(c) of the Social Security Act 1991. Given an overall disability rating of less than 20 points and no continuing incapacity for work, Mr Azzopardi failed to meet the criteria for grant of DSP, but this would not preclude him applying again if his circumstances changed.

Analysis:

21.     The Tribunal is required to conduct a de-novo review of all available evidence, noting policy and statutory provisions and precedent created by prior case determinations.

22.     As previously noted the key issues for the AAT to consider are whether Mr Azzopardi has a disability rating of 20 points or more and whether he has an ongoing incapacity to work.  The crucial period is 17 August 2004 (the date of lodging a claim for DSP) and 15 November 2005 (some 13 weeks later).  It should be noted there are a few minor inconsistencies in dates quoted in the documents.

23.     The Tribunal has reviewed the medical evidence and related impairment tables as well as their interpretation by various practitioners.  A summary assessment is provided below.

Anxiety and Depression:

24.     The condition was diagnosed in December 2003 or January 2004 and treated by consulting psychiatrist, Dr Mangion, who formed an opinion the ailment was permanent and would prevent Mr Azzopardi from future employment.  The Social Security Appeals Tribunal later accepted this diagnosis and assigned an impairment rating of 10 points, however there is considerable counter-evidence to be considered.

25.     The Maltese Medical Board initially decided the depression was permanent , but later following queries from Centrelink decided in May 2005 it was amenable to treatment and had been stabilised.  Dr Tabart of HSA considered the depression to be moderate but would not give an impairment rating as she considered the condition to be temporary and capable of improvement with appropriate pharmacotherapy and further psychological intervention.  This led the respondent to claim that at the time of seeking DSP, the condition had not been fully treated or stabilised in accordance with provisions of the Act and thus could not be assigned an impairment rating.  The candidate himself argued he was capable of normal activities and could benefit from vocational training and rehabilitation in the future.

26.     Based upon the above evidence the Tribunal is of a view, on the balance of probabilities that the 10 points disability rating given by the SSAT was incorrect;  it was not possible to provide an accurate impairment rating at the relevant time in August-November 2004 when the claim for DSP was lodged.

Arthritis of the Right Knee:

27.     All parties are agreed the applicant has permanent arthritis of the right knee, the only query is what impairment rating should be allotted.  Impairment Table 4 indicates that 10 points is appropriate in circumstances where there is some loss of strength, mobility, balance and co-ordination, but 20 points where there is major interference with walking and one or more of sitting in pain, kneeling, negotiating steps or standing unaided.  Mr Azzopardi does not require mobility aides and both Dr Tabart and the Social Security Appeals Tribunal considered an impairment rating of 10 points was appropriate.  The Tribunal accepts this decision.

Hypertension:

28.     This disability was not listed in the applicant’s claim form but has been identified by others.  The Maltese Medical Board considers the applicant’s activity level is more affected by the arthritis than the effects of the hypertension itself.  Dr Tabart considered the hypertension permanent but well controlled and therefore attracted a nil rating under Impairment Table 20.  The SSAT found that the hypertension was controlled and there were no further negative symptoms thus the ailment did not attract an impairment rating other than zero.

Other Disabilities:

29. In the course of medical examinations a number of other possible ailments such as spondylosis, gastrophy and breathlessness on exertion were mentioned, but no evidence was led about them and the applicant did not identify them in his claim form. We are left then in a situation where the applicant’s total impairment rating is 10 points for arthritis of the right knee and 10 points fails to meet the 20 points minimum impairment required to satisfy section 94(1)(b) of the Act.

Inability to Work

30.     As earlier noted, to qualify for DSP the applicant must be permanently disabled and have an ongoing inability to work, in a situation where ‘work’ means any work, not merely what the applicant was initially trained for.  It involves a consideration of whether the impairment of itself alone prevents the person from undertaking educational or vocational training within a period of two years (see Watts and SDFCS (2003) AATA 632 and Re Crossland and SDFCS (2004) AATA 864).

31. The Tribunal notes that in the HSA report dated 3 August 2005 it was indicated the applicant would be able to undertake at least 30 hours of work per week within 24 months and the SSAT was also of a view the applicant did not have a continuing inability to work at the relevant time. Mr Azzopardi himself indicated he was capable of many normal activities and thought there was no reason why he could not undertake a suitable rehabilitation program in the future. It follows that Mr Azzopardi fails to meet the criteria for ongoing inability to work specified in section 94(1)(c) of the Social Security Act 1991.

To Summarise: The Tribunal has conducted a de-novo review and on the balance of probabilities Mr Azzopardi fails to meet the requirements of sections 94(1)(b) and 94(1)(c) of the Social Security Act 1991 and therefore fails to qualify for Disability Support Pension.

32.      The decision under review is affirmed.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-Time Member)

Signed:   R Hunt (Administrative Assistant)

Date/s of Hearing  21 June 2006
Date of Decision  7 July 2006
Counsel for the Applicant         The applicant did not appear
Solicitor for the Applicant           
Counsel for the Respondent     Ms M Baulch
Solicitor for the Respondent     Centrelink Legal Services