Cardenzana and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1910

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1910

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2006/69

GENERAL ADMINISTRATIVE  DIVISION		)
Re		PHILLIP OLIVER CARDENZANA

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

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

Date1 November 2007

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

SOCIAL SECURITY - disability support pension (DSP) - cancellation of payment - claimed disabilities - asthma - spondylosis of spine - wrist and knee pain - medical evidence - degree of impairment - 'reasonable treatment' - continuation of smoking and alcohol intake - whether impairment rating possible - inability to work - SSAT decision - review by AAT

Social Security Act 1991, section 94(1) and 94(2), Schedule 1B - Table for the Assessment of Work-Related Impairment for Disability Support Pension

Guide to Social Security Law

McDonald & DGSS (1982) V81/69

Sayan and SDFCS (2001) AATA 950

Giddings and SDFCS (2003) AATA 893

Coates and SDEWR (2006) AATA 938

SDFCS v Michael (2001) 116 FCR 500

SDSS v Pusjnak (1999) 56 ALS 444

Watts and SDFCS (2003) AATA 632

Crossland and SDFCS (2004) AATA 864

Dragojlovic v SDSS (1984) 52 ALR 152

Newman and SDFCS (2002) 71 ALD 222

REASONS FOR DECISION

1 November 2007 Associate Professor B W Davis AM (Part-Time Member)   

Decision Under Review

1.      The decision under review is a decision of the Social Security Appeals Tribunal (SSAT) dated 2 February 2006, affirming the Secretary's decision of 15 September 2005 to cancel Mr Cardenzana's disability support pension (DSP).

Issues

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

2.2      Does the applicant satisfy Section 94(1)(c) of the Act, that is, does he have an ongoing inability to work.

Legislation

3.        The relevant legislation is the Social Security Act 1991, together with the associated Schedule 1B - Tables for Assessment of Work-Related Impairment for Disability Support Pension.

Note also the Guide to Social Security Law.

Standard of Proof

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

Background

5.        Mr Phillip Oliver Cardenzana was granted disability support pension (DSP) from 18 May 1995 on the basis of a single disability, namely asthma.  He is a 48 year old male who has worked in the building industry, primarily as a carpenter, first receiving sickness benefits in 1993 when asthma was diagnosed.

6. On 16 December 1997 Schedule 1B (the Impairment Tables) of the Social Security Act 1991 was amended, with effect from 26 March 1998. The amendments restructured the descriptors for different levels of functional limitations within the tables and were also changed from a percentage impairment rating to a points based system. In addition the Introduction to the Impairment Tables was expanded to provide further guidance for decision-makers.

7.        On 10 March 1998 Mr Cardenzana was medically reviewed by a Health Services Australia (HSA) doctor and DSP was continued. 

8.        On 16 May 2005 Mr Cardenzana was selected for medical review and his treating doctor reported conditions of chronic asthma and spondylosis of the spine (mainly thoracic), with wrist and knee pain but without further details.  Following a HSA nurse examination, a HSA doctor (Dr Stewart) expressed a view that the asthma condition was such that treatment was needed to stabilise the condition and until then no rating could be assigned.  He also considered the back pain required treatment and no rating could be given.  He considered the wrist and knee caused only mild interference to upper and lower limb functions and generated nil points in the impairment tables.

9.        On 27 September 2005 a decision was made to cancel DSP, as the applicant did not have the 20 or more points required and was considered able to work 30 or more hours per week.  The decision to cancel DSP was affirmed by an authorised review officer (ARO) on 29 November 2005 and by the SSAT on 7 February 2006.  Further medical evidence was provided by a consultant physician, Dr Maclaine-Cross on 6 September 2006, with further comment by a Health for Industry (HFI) Dr Mieka Tabart on 13 October 2006. 

10.      In reaching its decision to affirm the decision under review the SSAT analysed a wide range of evidence and noted that Mr Cardenzana claimed a number of disabilities as well as chronic asthma and an ongoing inability to work.  However he had refused to give up smoking and a substantial alcohol intake, even though doctors had repeatedly indicated his condition was unlikely to improve without doing so.  There was an issue as to whether his actions were outside the 'reasonable treatment' requirements identified in a number of prior AAT determinations.  

The AA Hearing

11.      The AAT hearing was conducted in Devonport on 2 October 2007.  Mr Cardenzana was present and represented by Mr Ben Bartl of counsel, assisted by Ms Elise Rivett, both from the Hobart Community Legal Service.  The respondent DEWR was represented by Mr Brian Sparkes of Centrelink Legal Services.

12.      In opening submission Mr Bartl said Mr Cardenzana had long suffered from severe asthma and a number of other disabilities had also been identified, which warranted impairment rating, thus he was entitled to reinstatement of DSP.  He had an ongoing inability to work, had suffered a motorcycle accident in 2001 and was now subject to sleep apnoea.

13.      In response Mr Sparkes said the respondent conceded that Mr Cardenzana had long suffered from asthma, but the initial impairment rating was low and there was a query as to whether the disability had now been fully treated and stabilised, given the applicant's refusal to cease tobacco and alcohol usage, as had been recommended in several medical reports.  His claim of inability to work was at odds with the evidence, as he had consciously adopted a particular lifestyle, avoiding employment.  In weighing medical evidence the Tribunal must focus on the applicant's condition at the time of cancellation of DSP and not subsequent events or information.

14.      The applicant was affirmed and responded to a series of questions put by counsel about his lifestyle and disabilities.  He said he suffered a great deal of pain and had difficulty sleeping, so arose late at any time between 9.00 am and noon.  He then tried to deal with minor household chores, aided his now grown-up children if need arose and looked after the affairs of his mother, who was in a nursing home suffering from dementia.  He usually visited her about an hour per day.  Having lost DSP he was reliant upon other personal sources of income.

15.      Insofar as his asthma was concerned, he had sought sickness benefits from 1993 and later was granted DSP from May 1993 until cancellation in September 2005.  He had tried various regimes of medication, but admitted he was addicted to tobacco, smoking around 25 cigarettes a day and also had a substantial alcohol intake.  He was asked why he had ignored medical advice to give up such habits, but answered they provided some relief and abandoning them would not improve his situation.  He was also asked whether he had contemplated back surgery, but said it was too high risk for him to contemplate. 

16.      Mr Cardenzana said he suffered from severe pain in his back, knees and wrists and considered it was getting worse.  Medication and physiotherapy had not provided relief, especially since a bike injury in 2001, although there had been bike and car injuries before.  Ms Rivett asked about his sleep difficulties which she described as sleep apnoea.  The applicant said he faced many problems affecting his concentration and motivation, but even when exhausted, found it difficult to sleep more than a few hours each night.   Some medications and use of a sleep mask had been suggested, but he had ignored this.  Mr Sparkes queried use of the term 'sleep apnoea', pointing out that existence of this disability had not been fully diagnosed or tested.

17.      The applicant said that although his chronic asthma was a concern, the constant pain from spondylosis was a key factor now and although doctors had indicated he might be able to work up to thirty hours per week, he could not now bend, stand or sit for long periods of time and was not motivated to study or retrain.  He had also been out of the work force for many years and it would be difficult to find employment now.

18.      In closing submissions Mr Bartl said his client suffered major disabilities, some of which were worsening and he should receive DSP on that account.  The evidence of medical practitioners was that he was unfit for most work options and their views should be preferred to those of Centrelink.

19.      Mr Sparkes drew attention to legislative changes in 1987, operational in March 1998, affecting work impairment ratings.  Mr Cardenzana's case must be judged on the basis of legislative and policy provisions at the time DSP was cancelled in September 2005.

20.      There was an ongoing issue as to whether the applicant's asthma could be rated, given his failure to follow medical advice, meaning the disability was not fully diagnosed and treated.  The same applied to his back, knee and wrist situation, given his failure to seek further treatments which might ameliorate these conditions.  The SSAT had considered the asthma was longstanding and continuing, but limited the impairment rating to 10 points from Table 20 and this would not suffice to make the applicant eligible for DSP.  The SSAT did not look at the issue of ongoing inability to work, but some medical evidence existed to indicate limited work options might still exist. 

21.      Mr Sparkes said the Tribunal must consider whether Mr Cardenzana had met the 'reasonable treatment' test set out in the Introduction to the Impairment Tables ie whether he had made every feasible attempt to use available medical treatment to improve his situation.  If he had not, then the condition could not be regarded as permanent and be assigned a rating as fully treated.  There were several AAT determinations which reinforced this point.

22. Mr Sparkes said the applicant had failed to meet the criteria specified in Sections 94(1) and 94(2) of the Social Security Act 1991, thus cancellation of DSP in September 2005 was warranted. The decision under review should be affirmed.

Analysis

23.      The Tribunal is required to conduct a de-novo review of all available evidence, statutory and policy provisions and any relevant prior case determinations in reaching its 'correct and preferable decision'.

24.      There are two fundamental issues to be decided:

(a) whether at the relevant time the applicant's identified disabilities and impairments rated 20 points or more under the Impairment Tables of Schedule 1B of the Act (ie did he meet criteria set out in Section 94(1)(b) of the Act), and

(b)      was there an ongoing inability to work? (Section 94(1)(c) of the Act).

25.      Although it is clear Mr Cardenzana has suffered from asthma for several years, the medical evidence is mixed, as to whether this is a permanent condition and fully diagnosed and treated or whether there remain prospects of improvement if certain rehabilitation regimes are pursued.  Primary to this is the cessation of smoking and high alcohol intake.

26.      Reports by Commonwealth Medical Officer Dr Balestrieri (March 1994), Consultant Respiratory Physician Dr Markos (March 1994) and several reports by treating GP Dr Beaton (August 1994, April 1995, February 1998) indicate Mr Cardenzana was unfit for work at the time, but all considered there were prospects of improvement if the applicant gave up smoking and alcohol intake,, which he failed to do.  Although there does not appear to have been an official impairment rating at the time, Mr Cardenzana was granted DSP from May 1995, presumably on the grounds of long duration of asthma suffering, possible permanence and inability to return to work within 3-24 months, even if rehabilitation was attempted.

27.      There is further medical evidence, some of which is speculative or paradoxical.  Possible sleep apnoea or chronic fatigue syndrome were mentioned but never fully diagnosed.  Dr Beaton came to believe the asthma condition was permanent and DSP was warranted on that account.  A Commonwealth Medical Officer report by Dr Stewart, dated 15 September 2005, regarded the impact of asthma to be temporary, as the situation would improve if smoking ceased and a range of intervention possibilities cited were implemented.  Yet in a further report dated 6 September 2006, Dr Stewart considered the asthma condition had been optimally treated.  Matters were further reviewed by Dr Tabart of Health for Industry Australia in October 2006 who considered further treatment feasible and no impairment rating feasible until this was accomplished.

28. Notwithstanding the above, the SSAT decided on 2 February 2006 that the applicant's asthma seemed permanent and despite ongoing medication little improvement was likely. They therefore decided the condition was permanent, had been diagnosed and treated and assigned an impairment rating of 10 points, which is insufficient to qualify for DSP. Both DEWR and the current Tribunal consider this decision to be incorrect, in that the situation cannot be regarded as permanent. Mr Cardenzana ignores medical advice and fails to give up smoking and alcohol, which all medicos believe might improve the situation. In other words the applicant has failed to meet 'reasonable treatment' criteria specified in the Introduction to Schedule 1B of the Act, the Impairment Tables.

29.      This matter has been dealt with in a number of prior AAT determinations, such as Tlonan and SDSS (1997) 24 AAR 467, Newman & SDFCS (2002) 71 ALD 222, Rudder and SDEWR (2006) AATA 249 and Jansen and SDEWR (2006) AATA 367. In each case the Tribunal rejected claims of permanent disability because the applicant had failed to undertake recommended treatments and had not used their own best endeavours to improve their situation. In Coates and SDEWR (2006) AATA 938 the judgement made it clear Parliament had only intended DSP to be paid when disabilities had been fully investigated, treated and stabilised to the point permanence was clearly demonstrated. In Mr Cardenzana's case he does not qualify for DSP, even if the impairment rating of 10 points is accepted.

30.      The next issue to be examined is whether the applicant's thoracolumbar back pain can be given an impairment rating.  It is not contested that the applicant has suffered from severe back pain and has complained of joint pain for several years.  He argues this affects his ability to sit or stand for extended periods, drive a car, lift, carry or bend to deal with everyday appliances.  It also affects his ability to sleep and to concentrate and interact with others.  He has stated he does not need support to be able to work and has not sought rehabilitation or work training and has not sought specialist referral, physiotherapy or other treatments which might ameliorate the situation.  The SSAT agreed with Dr Stewart that the condition has not been fully diagnosed, treated or stabilised and therefore could not be regarded as permanent and an impairment rating assigned.  Mr Cardenzana has stated that he had given up on painkillers because they were not aiding him and he would not face surgery because it was too high risk.

31. Dr Maclaine-Cross notes that Mr Cardenzana told him of neck and shoulder pain, plus knees and wrists lasting over 18 years. There is no report or diagnosis of these claimed conditions, but medications were prescribed. Dr Tabart reported that further pain relief was possible, but had not been taken up, hence the conditions could not be regarded as fully diagnosed or treated and an impairment rating of nil points was assigned. Taking all of the above claimed disabilities into account, it is clear that Mr Cardenzana's total impairment rating is 10 points maximum, which means he does not qualify for DSP under Section 94(1)(b) of the Act.

32.      There is the further question of ongoing inability to work.  There is considerable medical and other information about this, but no need to consider the matter in detail here, as the issue would only arise if the applicant had an impairment rating of 20 points or more.  There is some evidence to suggest he might be able to work limited hours in certain fields if further treatment resulted in some rehabilitation, but that remains speculative since he is resistant to treatment regimes.

33.      Having conducted a de-novo review of all the evidence the Tribunal finds on the balance of probabilities Mr Cardenzana's appeal fails and the decision under review is affirmed.

I certify that the 33 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  2 October 2007
Date of Decision  1 November 2007
Counsel for the Applicant         Mr Ben Bartl
Solicitor for the Applicant          Ms Elise Rivett, Hobart Community Legal      Service
Counsel for the Respondent     Mr Brian Sparkes
Solicitor for the Respondent     Centrelink Legal Services