Batch and Secretary, Department of Employment and Workplace Relations

[2006] AATA 163

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 163

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2005/548

GENERAL  ADMINISTRATIVE DIVISION

Re:         ANNA BATCH 

Applicant

And:       SECRETARY,

DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal:       Dr P.D. Fricker, Member

Date:             24 February 2006

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) P.D. Fricker

Member

SOCIAL SECURITY - disability support pension; whether condition "permanent" at date of claim or within 13 weeks

Social Security Act 1991 s 94(1), Schedule 1B

Social Security (Administration) Act 1999 Schedule 2 s4

REASONS FOR DECISION

24 February 2006  Dr P.D. Fricker, Member

1.      This is an application by Anna Batch (the applicant) for review of a decision made by the Social Security Appeals Tribunal (SSAT) on 12 May 2005, which affirmed a decision of an authorised review officer of Centrelink dated 11 April 2005 not to pay the applicant disability support pension.

2.      At the hearing on 19 January 2006 Mrs Batch represented herself.  Ms K Paul, a Centrelink advocate, appeared on behalf of the Secretary to the Department of Employment and Workplace Relations (the respondent).

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T20) together a document tended by the applicant (Exhibit A1) and documents tended by the respondent (Exhibits R1‑R6).

BACKGROUND

4. Mrs Batch was born on 20 August 1955. She completed her schooling to Year 12 in Croatia. She has worked as a kitchen hand in the past but has been out of the paid work force for the past 29 years. On 21 May 2003 she was involved in a motor vehicle accident and reported that she sustained injuries to her neck, right shoulder and low lack. She was treated in the Emergency Room at the Alfred Hospital and allowed to go home. Later the same year her husband died of cancer. She has two daughters who live with her and attend university. She applied for disability support pension on 18 February 2005. Her claim was rejected by a delegate to the respondent, on 4 April 2005, because her injuries were assessed at an impairment rating of less than 20 points under the Tables For The Assessment Of Work-Related Impairment For Disability Support Pension (the Tables) in Schedule 1B of the Social Security Act 1991 (the Act).  Mrs Batch lodged an application for review of the SSAT decision with the Tribunal on 21 June 2005.

5.      The issue before the Tribunal is whether Mrs Batch was qualified to receive disability support pension at the time she lodged her claim or within 13 weeks of the date of claim.

EVIDENCE

6.      Mrs Batch told the Tribunal that she had been a housewife and had always been active and busy before the car accident.  Since the accident she has had difficulty sitting and standing.  She has experienced depression as a result of the accident and her husband's death.  She has difficulty sleeping, doing the housework and even with some aspects of personal grooming. She coped better when her husband was alive because she had someone to support her.  She now needs to work, and would like to work, if her conditions did not prevent her from doing so.

7.      Mrs Batch said that she experiences headache and dizzy spells. The headache is present most of the time and is severe 3 or 4 times a week.  She usually takes Tramal 50mg capsules, twice a day.  The headache is now more severe and more frequent than it was during the 3 month period following her claim for DSP.

8.      Mrs Batch said that she was referred to a psychiatrist, Dr Kwong, for depression late in 2004 and saw her twice.  Dr Kwong referred her to a psychologist, Dr Kardaras.  She is currently seeing Dr Kardaras on a weekly or fortnightly basis. She was unsure when these sessions began, but when it was put to her that she had told the SSAT on 12 May 2005 that she had been seeing Dr Kardaras regularly for the previous 10 weeks, she agreed that that was correct.  Mrs Batch said that she was prescribed Zoloft, an antidepressant medication, prior to May 2005; but was unable to tolerate it for more than a week because of side effects.  In May 2005 she was prescribed another antidepressant, Avanza, which she was unable to take for more than a month.  Since attending a pain management course at Footscray Hospital, which she thinks was about 7 or 8 months ago, she has been taking Endep, a 10mg dose in the morning and a 30mg dose at night.  The Endep tablets have helped her to sleep better and to relax a little.  When attending the pain management course she was offered an injection of her shoulder and low back. More than a year ago, a rheumatologist, Dr Stockman, whom she saw on one occasion, had also offered her such injections.  She refused on the grounds that she does not like needles and had heard from friends that the injections are ineffective.

9.      Mrs Batch described a restricted lifestyle and was frequently tearful throughout the hearing.  She expressed significant pessimism at her ability to attend any kind of workplace, saying that she felt like a hopeless case.  She was sure that no-one would like to be in her place for even an hour.  

CONSIDERATION OF THE ISSUES

10. Section 94 of the Social Security Act 1991 (the Act) sets out the qualifications for disability support pension:

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;

(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

(d)the person has turned 16; and

(e)the person either:

(i)is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A)is not an Australian resident; and

(B)is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.

11. Section 94(1)(a) of the Act provides that in order to qualify for disability support pension a person must have a physical, intellectual or psychiatric impairment.

12. There is no dispute that Mrs Batch suffers from neck pain, back pain and bursitis of the right shoulder. These conditions were assessed by Dr Tutton, from Health Services Australia, who accepted all three as permanent conditions on 18 March 2005 (T6). They were accepted as permanent conditions by the original decision maker on 4 April 2005 (T7) and the Authorised Review Officer (T9). Although Dr Irani omitted any reference to depression until her report of 4 November 2005 (Exhibit R5), it is clear from Mrs Batch's evidence that she has been suffering from depression at least since the death of her husband. There is corroborating evidence in the report of Dr David Freilich, dated 3 November 2004, (exhibit R1) in which it is stated that Mrs Batch had been seen by a psychiatrist. In the report Dr Freilich makes the assumption that Mrs Batch is taking antidepressant medication. Mrs Batch has been seeing a psychologist for the management of depression, probably regularly since the beginning of March 2005. I find that Mrs Batch was, at the date of claim, suffering from neck pain, back pain, bursitis of the right shoulder and depression. She therefore satisfies Section 94(1)(a).

13. Section 94(1)(b) requires that a person’s impairment is of 20 impairment points. The Introduction to the Tables provides guidance as to how  the Tables are to be applied, and states in part:

4. …For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised...

and further:

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.

14.     When Mrs Batch lodged a claim for DSP it was accompanied by a medical report from her treating doctor, Dr Irani (T4).  Dr Irani listed Mrs Batch's conditions as neck pain and back pain, which affected her ability to work, and which were expected to last for more than 24 months.  He listed headache and dizziness as symptoms in conjunction with the neck pain.  He listed right shoulder pain as a condition that was generally well managed and had a limited effect on Mrs Batch's ability to function.  Dr Irani indicated that significant improvement in the shoulder condition was expected.  No mention was made of depression.

15.     The evidence suggests that when Dr Tutton made his assessment of the conditions listed by Dr Irani, Mrs Batch had been suffering from depression for some time.  She had already seen a psychiatrist and at had commenced seeing Dr Kardaras on a regular basis. Mrs Batch had taken Zoloft very briefly and by May 2005, when she spoke to the SSAT, she had just commenced taking Avanza, which she took for less than a month.  She continues to see Dr Kardaras regularly. In a report dated 7 October 2005 (Exhibit R6) Dr Kardaras stated:

Mrs Batch is attending sessions on a fortnightly basis. Her condition is not yet stable, and while there is some improvement she continues to experience marked distress and is struggling with everyday life.

16.     Due to the lack of full documentation, Mrs Batch's commencement of a trial of a second antidepressant medication in mid May 2005 and the report of Dr Kardaras, I cannot find that Mrs Batch's depressive illness, from the time she applied for disability pension until the time of Dr Kardaras's report, was fully treated and stabilised.  Therefore, the condition cannot be given a permanent impairment rating.

17.     Dr Tutton found that Mrs Batch had an adequate range of neck movement. He made no reference to headache.  Although mentioned in Dr Irani's report, headache was not listed as a diagnosis.  In this sense, the documentation supplied to Dr Tutton was incomplete.  There is, however, good documentation of Mrs Batch's headache and neck pain before the Tribunal, in Dr Freilich's report dated 3 November 2004 (R1).  In this report Dr Freilich states:

The headache continues and is a major problem for her. It starts at the back of her neck and radiates to the vertex. It can be severe and throbbing. She feels shaky and sweaty. This (sic) is only occasional nausea, no vomiting. Without medication the headaches does not settle. She finds Tramal helpful, within an hour the headache is better. The headaches occur 2-3 times a week and usually occur when the neck pain flares up. She continues having physiotherapy but overall there has been little improvement.

18.     Dr Freilich also observed that Mrs Batch had a full range of neck movement, which is not inconsistent with Dr Tutton's finding that her neck movement was adequate, although given the legislative requirement to find range of movement in terms of fractions of the normal range, the term adequate is somewhat unhelpful.  I prefer Dr Freilich and Dr Tutton's evidence with respect to range of neck movement  to that of the rehabilitation consultant, K Clancy (T16), whose qualification is as a psychologist, and to that of Dr Irani on 29 July 2005 (Exhibit R2), which were recorded five months after the date of claim.  On the basis of Dr Freilich's report, I find that Mrs Batch's neck pain and headache are so closely linked as to make them manifestations of the same impairment.

19.     Dr Freilich observed that Mrs Batch's headache was a major problem for her. It would undoubtedly have an effect on her ability to regularly attend work.  The question is whether at the time Mrs Batch lodged her claim the condition could have been accepted as being permanent in the sense of being fully treated and stabilised and likely to persist for at least the next two years.  Dr Freilich is the primary source of information and opinion with respect to Mrs Batch's headache and neck pain.  At the end of his report Dr Freilich stated:

With time I would expect improvement to occur

20.     At the hearing Mrs Batch had told the Tribunal that about 7 or 8 months ago she had attended a pain management course at Footscray Hospital. This means that in May or June 2005 active attempts were being made to treat Mrs Batch's pain which must be taken to include headache and neck pain.  Prior to that time, the condition could not have been said to have been fully treated.  Therefore, it is not appropriate to assign an impairment rating for headache.

21.     On 18 March 2005 Dr Tutton recorded that Mrs Batch suffered from back pain and lumbar disc disease and assessed her as having a loss of a quarter of the normal range of back movements, pain on many activities and the capacity to sit for less than an hour and to stand for less than half an hour.  I note that Dr Tutton recorded that Mrs Batch told him that she was only able to stand for between 15 and 30 minutes and I accept this evidence to be correct.  He assessed the condition as being permanent and there is no evidence from any other source that disputes this assessment.  The condition was given a 10 point impairment rating under the Tables, which I accept as correct on the basis of loss of a quarter of the normal range of the thoraco‑lumbar movement.

22.     When considering the available evidence relating to Mrs Batch's right shoulder, I noted Dr Freilich's observation of pain in the right shoulder when Mrs Batch tried to use the right arm, as well as Dr Tutton's statement that she displayed an adequate range of right shoulder movement and indicated that the function of her right shoulder was not restricted.  Dr Tutton's key finding was that the use of her dominant upper arm was adequate.  Dr Irani's statement in the Treating Doctor's Report (T4 at page 22) was that Mrs Batch can't use Rt arm much.  This statement was made in a section reserved for the listing of conditions which are generally well managed and cause minimal or limited impact on ability to function Thus it is it difficult to assess what Dr Irani intended to convey.  The phrase Significant Improvement Expected was clearly ticked.  I find that despite some reservations as to the level of impairment of Mrs Batch's right upper limb, at the time of claim, the condition was not clearly documented and not expected to be permanent.  Even retrospectively, there is insufficient information on which to confidently base an impairment rating.

23. The date at which entitlement is assessed or the period within which entitlement is assessed is found at Schedule 2 Section 4(1)(a)(d) and (2)(a) of the Social Security (Administration) Act 1999:

Start day—early claim

4.(1)       If:

(a)a person (other than a detained person) makes a claim for a relevant social security payment; and

(b)the person is not, on the day on which the claim is made, qualified for the payment; and

(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

(d)the person becomes so qualified within that period;

the claim is taken to be made on the first day on which the person is qualified for the social security payment.

4.(2)       For the purposes of subclause (1), the following provisions have effect:

(a)subject to paragraph (b), any social security payment, other than newstart allowance or special benefit, is a relevant social security payment;

…

24.     The legislation requires that in order to qualify for a benefit, an applicant must be qualified to receive that payment at the time they lodge their claim or become qualified within 13 weeks of the date of claim.  Mrs Batch lodged a claim for disability support pension in 18 February 2005.  In order for the claim that she made on that date to be successful she would need to have been qualified to receive that benefit on 18 February or within the following 13 weeks, a period referred to as the assessment period.  In Mrs Batch's case the assessment period was from 18 February to 20 May 2005.

25.     Mrs Batch has been found to be suffering from depression.  Dr Kardaras's report indicated that at 7 October 2005 the condition was not stabilised.  For this reason it could not be given an impairment rating that related to the period between 18 February and 20 May 2005.  I have also found that shortly before the assessment period, it had been anticipated that Mrs Batch's headache and neck pain would improve.  Shortly thereafter, she undertook further treatment.  Therefore, it was inappropriate to assign a permanent impairment rating at that time.  Her shoulder condition did not attract an impairment rating and the 10 point permanent impairment rating relating to her lower back condition was insufficient for her to satisfy the requirement that her impairment be of at least 20 impairment points.

26.     At the tribunal hearing Mrs Batch gave evidence that indicated that, despite having undertaken a number or treatment modalities, including oral analgesia, physiotherapy, a pain management course and regular counselling, she continues to experience pain and depression, which she described as very significantly affecting her ability to work. If Mrs Batch believes that her conditions have now been fully treated and stabilised and are likely to persist for at least the next two years it is open to her to retest her eligibility for disability support pension. 

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:

P.D. Fricker, Member

Signed .Angela Dennis, clerk

Date of hearing:  19 January 2006

Date of decision:  24 February 2006
Advocate for the applicant:          Self‑represented

Advocate for the respondent:       Ms Paul, Centrelink