Camilleri; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and

[2008] AATA 822

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 822

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. N2006/1035

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And JOSEPH CAMILLERI

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date16 September 2008

PlaceSydney

Decision The decision under review be set aside, and in substitution thereof, I find that Mr Camilleri did not satisfy the qualifications for the granting and payment of Disability Support Pension at the time of lodgement of a claim on 21 November 2005 or within 13 weeks thereof.

..................[Sgd]......................

Dr J D Campbell
  Member

CATCHWORDS     

Social Security – Disability Support Pension – impairments – permanent – assessment – continuing inability to work.

Social Security Act 1991 - section 94, Schedule 1B

Social Security (Administration) Act 1999 - sections 41 and 42, section 4 of Schedule 2

REASONS FOR DECISION

16 September 2008   Dr J D Campbell, Member

background

1.       Mr Camilleri was born in Malta on 22 June 1946.  Mr Camilleri migrated to Australia, with his parents, at age six and left school at 14.  Mr Camilleri worked as a pastry cook assistant for five years after his schooling, followed by a series of labouring jobs in a variety of factories.  His next employment was an assistant fitter at Garden Island dockyards where he remained for 21 years.  Following retrenchment about 18 or 19 years ago, Mr Camilleri did not work for a year, after which he was employed in a variety of jobs.

2.      Mr Camilleri stated that in 1996 he was employed by the Rockdale Council undertaking bush regeneration work.  Mr Camilleri described experiencing pain in his lower back some six weeks after commencing such activities, with the particular activity leading to his back pain symptoms being the undertaking of a lengthy bush walk.

3.      Mr Camilleri stated at the October 2007 hearing that since that time he has continued to suffer low back discomfort, with episodes involving acute low back pain which extends over the right buttock and down the right leg, the last episode being some two months prior to the hearing.  Mr Camilleri described his back pain as being worse in cold weather and with prolonged sitting and standing.  Apart from the acute episodes, during which Mr Camilleri stated that he would be confined to bed for two to three days or more, Mr Camilleri indicated that he would be able to walk a kilometre or more at a slow pace.

4.      Mr Camilleri stated that he lived in his own caravan at Rockdale, and had done so for 11 to 12 years.  Further, apart from some very short-term employment in 1999, he had not undertaken any paid employment since 2000.  Mr Camilleri detailed that his sleep is variable, rising about four to five o’clock in the mornings, has a good appetite, has two close friends, smokes heavily, consumers 20-30 cups of coffee per day, goes shopping, watches television, visits friends and retires to bed between nine and eleven o’clock each evening.

5.      In October 2007, Mr Camilleri stated that he owned and drove a car, but by the time of the resumed hearing (July 2008), the car had been written-off and he was much dependent on car assistance for major shopping.  At the later hearing, Mr Camilleri expressed a growing frustration with his general circumstances (both medical and living), his increasing dependency on others, his frustration with the process, his disinclination to take tablets or see doctors and/or psychiatrists and, in general, unfairness as to “his lot in life” at his age in life.  Mr Camilleri talked of a previous drinking problem followed by a long period of abstinence, with a reversion to an episodic heavy alcohol usage over the last few months (July 2008 hearing).

6.      Mr Camilleri stated that he had difficulty with writing,  but was able to read.  Mr Camilleri spoke of his mother’s death some five to six years ago and his inheritance.  Mr Camilleri detailed his financial circumstances which involved his caravan and belongings, a capital reserve (inheritance) of some $50,000.00 plus, and fortnightly income of $560.00 spent on caravan park expenses ($270 per fortnight for space rental, electricity, gas and water), insurance for caravan and general living expenses, including cigarettes of $140.00 per fortnight.  Mr Camilleri, at the resumed hearing, expressed a desire to go to Queensland to visit and perhaps live with his daughter and/or son.

7.      Mr Camilleri lodged a claim for Disability Support Pension (“DSP”) on 21 November 2005, in which he stated he had chronic low back pain.  The claim was lodged with a treating doctor’s report from Dr Kuzmanovski, a general practitioner.  In his report dated 17 November 2005, Dr Kuzmanovski detailed that Mr Camilleri was suffering from anxiety/depression as a consequence of his chronic low back pain.  Dr Kuzmanovski noted his symptoms to include tiredness, inability to concentrate, anxiety and insomnia, and that he had been treated with counselling and anti-depressants.  Dr Kuzmanovski also detailed Mr Camilleri’s chronic low back pain condition, arising from degenerative changes in his lumbar spine, as having been present for many years.  This condition, in Dr Kuzmanovski’s opinion, resulted in Mr Camilleri being unable to lift/bend repeatedly and being unable to stand and/or walk for long periods.

8.      On 2 December 2005, Centrelink denied Mr Camilleri’s claim for DSP.  In so doing, it is apparent that they relied upon the contents of his application and that contained within the treating doctor’s report, as well as the contents of a Work Capacity/Participation Assessment Report undertaken on 17 March 2004 by Mr Harris, a rehabilitation consultant (T19).  It is noted by the decision maker that the material lodged with the claim, and any new medical evidence therein, does not change the impairment ratings allocated by Mr Harris on 17 March 2004 – namely five (5) points for the lumbar condition and no impairment rating for the depression as the condition was not permanent (T25).

9.      The decision to deny Mr Camilleri’s claim for DSP was advised to Mr Camilleri by Centrelink on 2 December 2005.  This decision was affirmed by an Authorised Review Officer on 10 April 2006.

10. On 6 July 2006, the Social Security Appeals Tribunal (“SSAT”) set aside the decision of 10 April 2006, and found that Mr Camilleri qualified for DSP from the date of his claim. In so finding, the SSAT concluded that Mr Camilleri had an impairment rating of 20 points, with 10 points for his lumbar impairment (Table 5.2 of Schedule 1B of the Social Security Act 1991 (“the Act”)), and 10 points for his psychiatric impairment (Table 6 of Schedule 1B), as in their view the anxiety/depression condition was a permanent condition. The SSAT also concluded that Mr Camilleri had a continuing inability to work.

11.     As a consequence of the SSAT decision, Mr Camilleri was entitled to the payment of DSP from the date he qualified for DSP.  Centrelink applied for and was granted a Stay Order by the Administrative Appeals Tribunal (“AAT”) on 30 August 2006.

12.     During the hearing in October 2007, it became evident that Mr Camilleri was still being paid DSP.  Further enquiry revealed that the Stay Order was lifted on grounds of hardship, with date of effect being 26 October 2006.  Further, it was advised that the lifting had been undertaken by Centrelink without approaching the AAT (correspondence from Centrelink dated 19 June 2008).

13.     The relevant issues in this matter are:

(a)Does Mr Camilleri have a physical, intellectual or psychiatric impairment.

(b)If he does, is the assessment of such impairments, pursuant to the Schedule 1B Impairment Tables, 20 or more points.

(c)Does he have a continuing inability to work.

considerations and findings

14.     Mr Camilleri’s claim for DSP has been subject to much examination.  I am mindful that the issues with which I must be concerned, and in particular the impairments, the assessments of such impairments and his continuing inability to work, must establish that Mr Camilleri qualified for DSP at the date of lodgement or within a period of 13 weeks thereof ( sections 41 and 42, and section 4 of Schedule 2 of the Social Security (Administration) Act 1999) (“the Administration Act”).) In undertaking such an examination, I shall consider all the material prior to the end of the nominated period and material, particularly medical expert opinion, detailed after the period which assists in a better understanding of the particular impairments during the period.

15.     Mr Camilleri at both hearings was particularly concerned about “his lot in life”, as evidenced by his many referrals to his back pain, his inability to work, his living environment and his many frustrations arising from his way of life, his need for assistance, his loneliness, his increasing age, as well as his interactions with the social welfare system.

16.     I found Mr Camilleri to be a frank but vague and somewhat irritated witness, much focussed on his difficulties, and aware of life style expenditures and habits that cause him financial stringency (cigarettes and alcohol) and social distress (alcohol).  While Mr Camilleri adopted the life style he is currently living 10-11 years ago, it is apparent that the concept of remaining a caravan occupant is one of concern with his increasing age.  I also accept that his desire to maintain a financial nest-egg (inheritance from his mother) is borne of such concerns.

17.     Nevertheless, I have some difficulty with Centrelink’s decision to lift the Stay Order in this matter (effective 26 October 2006), apparently on grounds of financial hardship, which clearly is inconsistent with Mr Camilleri’s financial situation at the time if it had been the subject of a more detailed evaluation.  In the circumstances that Mr Camilleri is unsuccessful in this claim, I consider that there would be much merit in concluding that his DSP payments were cancelled at the date of the implementation of the decision, rather than address an issue of overpayment.

18.     In addressing the material before me, I find that within the defined period Mr Camilleri did have both a physical impairment (low back pain with radiation to right buttock) and a psychiatric impairment (adjustment disorder with anxious and depressed mood).

19.     In making such findings, I have considered and relied upon:

·Mr Camilleri’s evidence.

·The report of Dr Maniam, a consultant orthopaedic surgeon, dated 6 May 1997, in which he defines Mr Camilleri as suffering from lumbar disc pathology at L3/4 and L4/5, with Mr Camilleri being partially disabled by his problems (T6).

·An MRI scan dated 15 August 1997, reported a prominent right lateral disc bulge at L4/5 which is narrowing the right intervertebral foramen, with compression of the right L4 nerve root (T7).

·Treating doctor’s report by Dr Kuzmanovski dated 18 September 1997 (T8), refers to lower back pain since 1996.

·A medical officer’s report by Dr Verma, Health Service Australia dated 10 October 1997 (T9), details a history of low back pain with a minor restriction of movement of the thoroco-lumbar spine.

·A treating doctor’s report (Dr Kuzmanovski) dated 2 November 1998 (T10), detailed difficulties with bending, lifting heavy objects and standing for long periods, together with pain.

·Similar substance treating doctor’s reports by Dr Kuzmanovski dated 14 October 1999 and 17 February 2000 (T11, T12).

·A medical assessment report dated 4 April 2000 (T13), written by Dr Kanapathipillai, details a history of intermittent low back pain associated with twisting, bending, prolonged sitting, walking and standing. The doctor found Mr Camilleri to have a one quarter loss of the normal range of movement of the thoroco-lumbar spine, and concluded that the condition was permanent and assessed the impairment at 10 points, pursuant to Table 5.2 of the Schedule 1B Impairment Tables (T13).

·A treating doctor’s report by Dr Kuzmanovksi dated 17 December 2001 (T15), which detailed continuation of the low back condition.

·A Work Capacity/Participation Assessment report by Mr Harris, a rehabilitation consultant, dated 17 March 2004 (T19), concluded that Mr Camilleri had a fluctuating pain in his lower back which when present caused difficulties with bending and lifting; that the condition was permanent and with an assessment of 5 points, pursuant to Table 5.1 (cervical spine), which equates to a loss of one quarter of normal range of movement.  Clearly, an incorrect Table has been used, with the appropriate Table being 5.2 and with the loss of movement being one quarter with back pain or referred pain with many physical activities, the rating under Table 5.2 at that time should have been 10 points.

·A further treating doctor’s report by Dr Kuzmanovski dated 4 May 2004 (T20) detailed the continuance of Mr Camilleri’s low back condition as did his further report of 17 November 2005 (T21).

20.     I note the report dated 19 January 2007 (Exh A4) of Dr Keen, a senior medical advisor with Health Services Australia, concluded that Mr Camilleri had a permanent impairment of his lumbar spine, that he had an overall loss of around one quarter of lumbar movement range, together with back and referred pain with many physical activities.  Dr Keen assessed the impairment at 10 points, pursuant to Table 5.2, and considered that such a rating was appropriate in November 1995.  In a Job Capacity Assessment report dated 2 April 2007 (Exh A5), Mr Robilliard, a physiotherapist, detailed similar findings and assessment in relation to the low back condition.

21.     In relation to the psychiatric impairment, I again noted the evidence of Mr Camilleri in relation to the onset of dizzy spells in 2000, first noted in the medical assessment report of Dr Kanapathipillai of 4 April 2000 (T13), and considered by the doctor to be temporary and not causing any significant functional limitation.  In a treating doctor’s report dated 17 December 2001, Dr Kuzmanovski considered such symptoms (dizziness) to be consistent with a diagnosis of anxiety and depression, and treated Mr Camilleri with an anti-depressant, Aropax 20mgs daily (T15).  In a Work Capacity/Participation Assessment report dated 17 March 2004 (T19), Mr Harris, a rehabilitation consultant, records Mr Camilleri as having occasional low moods and nervousness, and that he had not had any treatment for such by way of counselling, medication or referral.  In a further treating doctor’s report dated 4 May 2004 (T20), Dr Kuzmanovski records a diagnosis of anxiety/depression as a consequence of the chronic pain from his back condition and his inability to work.  The doctor recorded symptoms of difficulty concentrating, depressed mood, inability to sleep and frequent anxiety attacks.  The doctor described a treatment program involving counselling and medication, and concluded that the impact on this condition and on his ability to function would continue to fluctuate over the next two years.  Dr Kuzmanovski detailed a similar commentary in his report of 17 November 2005 (T21).

22.     I note the Centrelink decision maker, in her decision of 2 December 2005, considered that the psychiatric condition of anxiety was not permanent, and in so doing relied upon the opinion of Mr Harris of 17 March 2004, as did the Authorised Review Officer in the decision of 10 April 2006.

23.     I also note the report of Dr Prior, a consultant psychiatrist, dated 6 November 2006 (Exh. A3).  Dr Prior noted that Mr Camilleri reported “emotional and behavioural symptoms associated with his pain and physical limitations, change to lifestyle and activity levels due to this pain and physical limitations”.  Dr Prior noted that Mr Camilleri described a chronic course with periods of relative exacerbation and relative remission.  Dr Prior considered Mr Camilleri’s diagnosis to be one of Adjustment Disorder with anxious and depressed mood, as a result of his pain and physical limitations.  In oral evidence, Dr Prior considered that the clinical scenario detailed by him in November 2006 would have equally applied in November 2005, as regards both diagnosis and impairment.  I also note that Dr Prior’s opinion is incorporated in the Job Capacity Assessment Report of 2 April 2007 (Exh A5).

24. As a consequence of my earlier findings, I conclude that Mr Camilleri suffered from the following impairments, arising from the following conditions, at the nominated period commencing with his claim lodgement on 21 November 2005, and in so doing satisfied section 94(1)(a) of the Act:

(a)	Lumbar Spondylosis (condition)	Loss of one quarter normal range of movement of thoroco-lumbar spine, together with back pain and referred pain to right leg, when undertaking many physical activities including standing, sitting, lifting, bending and walking long distances
(b)	Adjustment Disorder with anxious and depressed mood	Impairment runs parallel with episodes of back pain causing low moods, anxiety, difficulty with sleeping and poor concentration.

25. In addressing the issue of assessment, I note the introduction to the Tables for the Assessment of Work Related Impairment for Disability Support Pension under Schedule 1B of the Act. In particular, I note the following:

·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 to establish a diagnosis.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular, where the nature or severity of a psychiatric disorder is unclear, appropriate investigation should be arranged.

·The condition must be permanent.  A condition is considered to be permanent where it has been diagnosed, treated and stabilised and that it will be lasting for more than two years.

·A condition may be considered to be fully stabilised if it is unlikely that there will be any significant functional improvement with or without reasonable treatment within the next two years.

·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 two years.

·Reasonable treatment is taken to be:

§Treatment that is feasible and accessible i.e. available locally at a reasonable cost.

§Where substantial improvement can reliably be expected, with such treatment is of a type regularly undertaken with a high success rate and low risk to the patient.

26.     I have earlier detailed my findings in relation to the conditions and impairments arising from such conditions suffered by Mr Camilleri.  The evidence before me is that the condition of lumbar spondylosis is permanent, in that it has been diagnosed, treated and stabilised and will last longer than two years.  In particular, I note the investigations and opinions which lead to the diagnosis, the nature of treatment given and that it is unlikely that there would be any significant functional improvement with or without reasonable treatment over the next two years.

27. With a finding determining the condition to be permanent, I turn to the assessment of the impairment arising from the condition. Table 5.2 (Thoroco-lumbar-sacral-spine) of the Schedule 1B Impairment Table provides:

Rating	Criteria
NIL	Normal or nearly normal range of movement
FIVE	Loss of one-quarter of normal range of movement
TEN	Loss of one-quarter of normal range of movement, as well as back pain or referred pain:
with many physical activities and
with standing for about 30 minutes and
with sitting or driving for about 60 minutes.
or
Loss of half of normal range of movement.
…

28.     Earlier I defined the nature of the impairments arising from the lumbar spondylitic condition.  I am satisfied that the material clearly points to an impairment rating of 10 points, with the evidence contained within the various reports post the report of Dr Kanapathipillai in April 2000, all supporting such an impairment rating.  The only exception was that of Mr Harris and, as already indicated, his report would suggest a table confusion.

29.     In addressing the psychiatric condition, there is clearly an issue as to whether or not the condition is permanent.  In addressing my mind to this issue, I would make the following observations:

·I consider the issue of diagnosis not to be in contention in this matter, in that the working diagnosis of anxiety and depression made by Dr Kuzmanovski in December 2001, and later expanded to anxiety and depression as a consequence of the chronic pain and inability to work by the same doctor in May 2004, is not inconsistent in practical terms with the diagnosis made by Dr Prior, a psychiatrist, in November 2006, namely adjustment disorder with anxious and depressed mood, as a result of his pain and physical limitations.  It was my understanding that in oral evidence Dr Prior was of a similar view, with the condition diagnosed by Dr Prior in November 2006 being the same condition with the same severity in November 2005, however labelled.

·In considering the issue of treatment, I observe the following:

§Mr Camilleri’s evidence as regards his dislike for medication, attending doctors and specifically psychiatrists.

§The clinical records of Dr Kuzmanovski (Exh A7) which are of sparse content and indicate an attendance by Mr Camilleri on 27 occasions from 1 July 1999 to 21 December 2007.

§The clinical records of Dr Kuzmanovksi detail Mr Camilleri attending on four occasions for complaints relating to his psychiatric condition between 23 August 2001 and 21 December 2007.  It is acknowledged that where Dr Kuzmanovski has completed a medical certificate or a treating doctor’s report, the issue of Mr Camilleri’s psychiatric condition would have been included.

·Dr Kuzmanovski’s clinical records reveal only one prescription for an anti-depressant (Aropax) and one prescription for an anxiolytic agent (Serapax).  They make no reference to Mr Camilleri’s compliance with medication nor do they detail any record of counselling to Mr Camilleri.

·The clinical record content is inconsistent with what Dr Kuzmanovski has stated in his treating doctor’s reports, where he has stated that post 2001 he was treating Mr Camilleri with counselling and medication.  I would note that such a treatment program is not born out by the evidence of Mr Camilleri, or by the frequency of recorded consultations, let alone the absence of any corroborative evidence in the notes.

·In both his two written reports, (Exh A3 and A6), Dr Prior expresses the opinion that Mr Camilleri’s psychiatric condition has not been fully treated by an appropriate symptomatic psychoactive medication, and by referral to a psychiatrist or psychologist for appropriate assessment, diagnosis and counselling by way of cognitive behavioural therapy.

·In oral evidence, Dr Prior confirmed his written opinions, and while acknowledging that Mr Camilleri had particular personality characteristics, Dr Prior remained of the opinion that Mr Camilleri had not been fully treated and stabilised.  In relation to the latter, Dr Prior considered that it could not be concluded that with reasonable treatment (medication and cognitive behavioural therapy) and with such treatment being feasible and accessible, that Mr Camilleri’s psychiatric condition is unlikely to have any significant functional improvement within two years, and indeed that with reasonable treatment, provided there is compliance in the therapeutic process by Mr Camilleri, there is likelihood that such treatment will lead to a significant functional improvement within a period of two years.

30. In the light of the previous observations made in the previous paragraph, I conclude that Mr Camilleri’s psychiatric condition was not fully treated and stabilised during the period commencing 21 November 2005 and extending for a further 13 weeks. In reaching such a finding, I rely upon the opinion of Dr Prior, a psychiatrist. As a consequence, I find that Mr Camilleri’s psychiatric condition was not a permanent condition at the nominated time. In such circumstance, I further conclude that an impairment rating should not be assigned pursuant to Table 6 of the Schedule 1B Impairment Table for the psychiatric condition.

31. In summary, I find that Mr Camilleri’s impairment rating for impairments arising from permanent conditions is 10 points. In such circumstances, Mr Camilleri fails to satisfy the qualification nominated in section 94(1)(b) of the Act, and is therefore not qualified to receive disability support pension as at 21 November 2005.

32.     While it is unnecessary to consider the issue of whether Mr Camilleri has a continuing inability to work, I would observe that the material which is before me on this issue would seem to conclude that Mr Camilleri has a work capacity to undertake particular light, low skilled activities.  Such opinions are to be found in the Work Capacity reports of both Mr Robilliard and Mr Harris, and both reports acknowledge Mr Camilleri’s need for some retraining, vocational assessment and counselling, as well as psychological counselling.  I take the matter no further.

33.     In the light of my findings, I determine that the decision under review be set aside, and in substitution thereof I find that Mr Camilleri did not satisfy the qualifications for the granting and payment of DSP either at the time of lodgement of his claim on 21 November 2005 or within 13 weeks thereof.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member.

Signed:         .................[Sgd]........................
   Ms R Prasad, Associate

Dates of Hearing       29 October 2007 and 23 July 2008
Date of Decision  16 September 2008
Solicitor for the Applicant                Mr Richardson, Centrelink legal services
Appearance for the Respondent    Mr Camilleri, Self-represented