Coady and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 423

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 423

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N 2006/1088

GENERAL ADMINISTRATIVE  DIVISION		)
Re		RICHARD COADY

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date23 May 2008

PlaceSydney

Decision The decision under review is affirmed.

................[sgd]..............................

Ms N Isenberg
  Senior Member

CATCHWORDS

SOCIAL SECURITY - disability support pension – physical impairment – entitlement to disability support pension – whether the Applicant had an impairment rating of 20 points or more under the impairment tables – whether the Applicant had a “continuing inability to work” – decision affirmed 

Social Security Act 1991 – section 94; Schedule 1B

Social Security (Administration) Act 1999 – Schedule 2

Freeman v Secretary, Department of Social Security (1988) 19 FCR 342

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

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Dainty and Minister for Immigration and Ethic Affairs (1987) 12 ALD 416; 6 AAR 259

Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82

Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938

REASONS FOR DECISION

23 May 2008 Ms N Isenberg, Senior Member   

DECISION UNDER REVIEW

1.        Mr Coady’s claim for disability support pension (“DSP”), made on 29 June 2005, was rejected by Centrelink.  While Centrelink, on behalf of the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs, agreed that he suffers from a back condition, Centrelink did not agree that his various impairments attracted the required 20 point impairment rating under the Impairment Tables contained in the Social Security Act 1991 (“the Act”). Nor did Centrelink agree that Mr Coady meets the other requirement of eligibility for disability support pension, that is, a continuing inability to work. These requirements are set out in section 94 of the Act and are as follows:

94 Qualification 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.

94(2) A person has a continuing inability to work because of an

impairment if the Secretary is satisfied that:

(a) the impairment is of itself sufficient to prevent the person

from doing any work within the next 2 years; and

(b) either:

(i) the impairment is of itself sufficient to prevent the

person from undertaking educational or vocational

training or on-the-job training during the next 2 years;

or

(ii) if the impairment does not prevent the person from

undertaking educational or vocational training or

on-the-job training—such training is unlikely (because

of the impairment) to enable the person to do any work

within the next 2 years.

94(3) In deciding whether or not a person has a continuing inability to

work because of an impairment, the Secretary is not to have regard

to:

(a) the availability to the person of educational or vocational

training or on-the-job training; or

(b) if subsection (4) does not apply to the person—the

availability to the person of work in the person’s locally

accessible labour market.

94(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned

55, the Secretary may, in considering whether educational or

vocational training is likely to enable the person to do work, have

regard to the likely availability to the person of work in the

person’s locally accessible labour market.

94(5) In this section:

educational or vocational training does not include a program

designed specifically for people with physical, intellectual or

psychiatric impairments.

on-the-job training does not include a program designed

specifically for people with physical, intellectual or psychiatric

impairments.

work means work:

(a) that is for at least 30 hours per week at award wages or

above; and

(b) that exists in Australia, even if not within the person’s locally

accessible labour market.

Person not qualified in certain circumstances

94(6) A person is not qualified for a disability support pension on the

basis of a continuing inability to work if the person brought about

the inability with a view to obtaining a disability support pension

or a sickness allowance or with a view to obtaining an exemption,

because of the person’s incapacity, from the requirement to satisfy

the activity test for the purposes of job search allowance, newstart

allowance, youth training allowance, youth allowance or austudy

payment.

BACKGROUND

2.      On 29 June 2005, Mr Coady lodged a claim for disability support pension.  In support there was a treating doctor’s report (“TDR”) from his GP, Dr Adrian Jones.  Dr Jones wrote only that Mr Coady suffered lumbar back pain.  When Mr Coady was seen by Dr Bentivoglio, an orthopaedic surgeon, he was found to have had full range of movement in his lumbar spine.  The specialist did not consider Mr Coady to have enough disability to be an appropriate recipient of a disability support pension. 

3.      On 7 January 2006 Centrelink affirmed its decision to reject Mr Coady’s claim for a disability support pension.  The Centrelink decision was affirmed on internal review, and by the Social Security Appeals Tribunal (“SSAT”).

4.      Mr Coady contended that he should also have been assessed in relation to a stress or anxiety condition.

ISSUE BEFORE THE TRIBUNAL

5.      The issues to be determined with relation to this matter are:

a)Did, at 29 June 2005, or in the 13 weeks thereafter, Mr Coady have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables in Schedule 1B of the Social Security Act 1991 (“the Act”); and, if so,

b)Did he have a continuing inability to work as a result of the impairment because:

·the impairment of itself prevents him from doing any work for at least 30 hours per week at award wages within the next two years; and either

·the impairment of itself is sufficient to prevent him from undertaking educational or vocational training or on the job training during the next two years; or

·such training is unlikely (because of the impairment) to enable him to do any work for at least 30 hours per week at award wages within the next two years.

CONSIDERATION PERIOD FOR ENTITLEMENT TO DSP

6. Schedule 2, clause 4 of the Social Security (Administration) Act1999 (“the SSA Act”) provides that the relevant time to consider a person’s entitlement is during the 13 weeks after the claim. Therefore, I had to consider if Mr Coady was entitled to the DSP by 28 September 2005.

EVIDENCE

7.        In addition to documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), further documents were tendered.  Mr Coady provided voluminous material.  Most relevant of this material was medical reports of Drs Vote and McLean, two letters from Dr Jones, Mr Coady’s reply to the Reasons for Decision of the SSAT and Mr Coady’s written comments regarding Dr McLean’s report.

8.        I asked Mr Coady to specifically comment on his conditions as at the time of his claim for DSP in mid 2005, and not his current symptoms.  This approach is consistent with that in Freeman v Secretary,Department of Social Security (1988) 19 FCR 342.

9.        The relevant evidence is discussed below.

CONSIDERATION OF THE EVIDENCE AND FINDINGS

Did Mr Coady by 28 September 2005 have a physical, intellectual or psychiatric impairment of 20 points or more?

10.      Mr Coady gave evidence of having suffered back pain for some years.  The pain affects his concentration after about half an hour.  Standing “is worse” and is limited to about 5 minutes.  He confirmed this was also the position in 2005.  In contrast, Mr Coady is reported to have told Mr Kenrick Morgan, an occupational therapist to whom he was referred by Centrelink, that he became symptomatic after standing for less than 30 minutes and when sitting for 60 minutes.  Shopping was given as an example of an activity that causes Mr Coady back pain.  Mr Morgan considered Mr Coady to have normal, or near normal range of movement. 

11.      Mr Coady referred me to the report of his then GP Dr Jones, dated 19 May 2004, wherein the doctor wrote of Mr Coady’s lumbar spondylosis and disc space narrowing which limited his mobility and strength in his spine.  Dr Jones considered Mr Coady, at that time, to be unable to lift or carry more than 10 kg and that he should not be involved in repetitive bending.  He wrote that Mr Coady could work 20 hours per week, although Mr Coady said that the doctor had thought 10-15 hours was more appropriate, but Mr Coady had (erroneously, he now feels) thought he could do 20. 

12.      Mr Coady said that Dr Jones had sent him for physiotherapy but the exercises he was given were inappropriate for a degenerative condition like his, as distinct from an injury.  In any event he was unable to afford the physiotherapy and the anti-inflammatories Dr Jones recommended.  His financial situation was limited because he had to run a car because he cannot use public transport as a result of his mobility problems.  He self-prescribed rest.  He also had limited time because of the commitment required for his TAFE course.     

13.      Dr Jones wrote in the TDR in support of Mr Coady’s application for DSP that Mr Coady suffered lumbar back pain.  He described the (then) current symptoms as “lower back pain and stiffening”, noting his “inability to sit, bend or lift for prolonged periods”.  Dr Jones considered that the condition would persist for more than 24 months and would fluctuate and deteriorate during that time. 

14.     At Centrelink’s request Mr Coady was assessed by Dr Keen from Health Services Australia (HSA) on 14 July 2005.  Dr Keen noted Mr Coady complained of “recurrent acute low back pain, with mild degenerative changes on x-ray” and had full range of movement in his lower back.  He noted that Mr Coady required care when lifting, bending and twisting, and that he requires the opportunity to alter posture periodically. Dr Keen assigned an impairment rating of NIL points under Table 5.2 for Mr Coady’s lower back pain. 

15.     On 26 September 2005, Mr Coady was seen by Dr Bentivoglio, an orthopaedic surgeon to whom he had been referred by Dr Jones.  In his report of 28 September 2005 Dr Bentivoglio noted a history that Mr Coady had had back pain “on and off for the last few years”, and that he experienced flare ups every 2-3 weeks that lasted for about a minute.  His symptoms were said to be worse with activity.  Night pain was not a feature of his complaints.  He was said to have an exercise regime.  The doctor found Mr Coady to have had full range of movement in his lumbar spine and expressed the opinion that “as far as his [Mr Coady’s] orthopaedic complaint is concerned, he does not have enough disability to be an appropriate recipient of a disability support pension”.  On 29 September 2005 Dr Bentivoglio reviewed Mr Coady with the benefit of having x-rays and a CT scan.  In his report dated 30 September 2005 he noted some minor disc changes and degenerative disc disease, but not enough to require surgery. 

16.      A report on a CT scan of Mr Coady’s lumbar spine from Dr Luke Baker dated 28 March 2006 was available.  Dr Baker noted some minor degenerative changes, but reported “there has been little change since the last examination on 29/6/05”.

17.      With the support of Dr Jones, who wrote in March 2007 that Mr Coady had limited ability to sit for long periods, Mr Coady successfully lobbied for the provision of some ‘back’ chairs at TAFE for himself and some others.  Wind-up desks are also soon to be provided, at his instigation.  He said his back causes him to avoid walking and he is able to park his car at TAFE. 

18.      Centrelink assessed Mr Coady as having lower back pain but rated it at Nil pursuant to Table 5.2. The relevant part of that Table provides:

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.

19.     The Table, as can be seen, requires a loss of range of movement, before any rating can be made at all.  There was some evidence of back pain with physical activity and limitation on Mr Coady’s ability to walk, sit and stand. 

20.     Mr Coady provided a report by Dr Vote, orthopaedic surgeon, dated 22 October 2007.  There Dr Vote noted spinal movements at three quarters the normal range.  However that objective evidence of loss of range of movement was provided only by Dr Vote and was not found in any medical examination until 2007, that is, over 2 years after the relevant timeframe.

21.      On balance therefore, I consider that it is appropriate to allocate nil points in respect of Mr Coady’s lower back pain under Table 5.2 in respect of the period under review.  Later assessment of his back may produce a different result.

Anxiety/stress

22.     Mr Coady said that he had had anxiety and stress problems since at least 2004.  He referred me to a letter of Dr Jones dated 27 November 2004 where the doctor had written that Mr Coady was experiencing “a lot of stress” through his dealings with the Job Network and that he had suffered some “cardiac symptoms” associated with his raised stress levels.  Mr Coady spoke at length about his long-standing problems with Centrelink and that he had been poorly managed by Centrelink and its service providers. 

23.     Mr Coady also spoke of problems he had experienced with other TAFE students (“ongoing torture”) which he said were not addressed by the TAFE staff, and problems with other residents near his home.  He had been especially stressed by allegations of violence by Centrelink which had resulted in some police involvement which was ultimately dropped.  He also was going to have to give evidence about an assault. 

24.     He said that in 2004 he had asked Dr Jones to refer him to a psychologist who bulk-billed but he had been “fobbed off”.  He said Dr Jones told him to go to a community centre for assistance but didn’t even arrange this. 

25.     Dr Jones wrote on 27 March 2006 that he had prescribed Mr Coady sleeping pills in December 2005.  Mr Coady said that at that time he was especially anxious about giving evidence.  Mr Coady said the doctor told him he didn’t have to take them all the time, only as necessary.  Mr Coady said though that he needed to be fresh each day for his TAFE studies so he continued to take them after the court case.  

26.     In his claim form Mr Coady did not include any reference to stress or anxiety.  He said that there was no assistance provided by Centrelink in how to fill out the form.  He said he did not realise he could claim for more then one condition.  I doubt this to be the case as the form clearly refers to “condition 1”, “condition 2” etc.  I note that Mr Coady is a university graduate, and I find it unlikely he was as confused by the form as he professes.

27.     Mr Coady also appears not to have mentioned stress or anxiety when he saw Dr Keen of HSA.  He said he had mentioned it though to Mr Morgan, who had not recorded it. 

28.     Similarly, Dr Jones made no reference whatever to stress or anxiety in the treating doctor’s report.  Mr Coady spoke disparagingly of Dr Jones and said he should have advised him about filling out the claim form.

29.      He was critical of Centrelink for not referring him for psychiatric assessment.  The first psychologist Mr Coady ever saw was at TAFE in 2007.  Until that time he did not even know that there was one there.

30.     With Mr Coady’s permission the SSAT spoke to Dr Jones. Mr Coady thought Dr Jones had “gone behind his back”.  Dr Jones was recorded as having told the SSAT that the first prescribed medication for Mr Coady’s anxiety in 2005 was due to exam stress.  Mr Coady denied that it was in relation to exam stress.  Dr Jones confirmed that Mr Coady could not afford the cost of on-going psychological treatment and that he had informed him about a community health clinic.

31.     Dr Jones is no longer Mr Coady’s GP and he sees Dr Chan (at the same practice) instead.  Dr Chan referred him to Dr Greg McLean, consultant psychiatrist.  Dr McLean provided a report dated 3 April 2008.  He had discussed it with Mr Coady and Mr Coady had received a copy the day before the hearing.  Mr Coady provided some 6 pages of comment about the report. 

32.     Dr McLean wrote that he had seen Mr Coady on 4 occasions since November 2007.  He diagnosed Mr Coady as having paranoid schizophrenia.  He thought he had suffered that condition since age 18.  He noted that there had been no previous treatment.  He recommended regular psychiatric care and prescribed Zoloft, a selective serotonin reuptake inhibitor used to treat depression.  He did not think Mr Coady would follow his advice because he thought Mr Coady lacks insight into his problems.  

33.     Consistent with Dr McLean’s observations, Mr Coady said he took Zoloft only twice.  He was discouraged from taking it when he heard about Heath Ledger’s death which was reportedly the result of having taken multiple prescription medications. 

34.     Mr Coady was critical of Dr McLean, noting some factual errors in his report.  While Mr Coady denied a number of the symptoms to which Dr McLean referred, Mr Coady did not seem to take issue with the diagnosis.  He was adamant though that he would seek another opinion.

35. A DSP applicant’s functional impairment point rating must be determined under the Impairment Tables: s 94(1)(b). The Introduction to the Impairment Tables governs the way the Tables are to be applied. The Introduction explains the extent to which adequacy of treatment and the stability of an applicant’s condition are particularly relevant considerations in the application of the Impairment Tables. Those paragraphs (with emphases added) are in the following terms

…

4. 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 thus to establish a working diagnosis based on the best available evidence. 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 (or intellectual) disorder is unclear appropriate investigation should be arranged.

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.

6. 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 2 years.

In this context, reasonable treatment is taken to be:

·treatment that is feasible and accessible ie, available locally at a reasonable cost;

·where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.

In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:

·evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and

·indicate why this treatment is reasonable; and

·note the reasons why the person has chosen not to have treatment.

…

36.     Whilst I am not bound to apply policy guidelines of the kind referred to in the Guide to Social Security Law (see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60), I may do so and, indeed, the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethic Affairs (1987) 12 ALD 416; 6 AAR 259 at 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.

37.     In Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938, this Tribunal discussed the concept of permanence under the Act and said (at para [22]):

The evident legislative intent is that disability support pensions be paid only when the disabling condition has reached the stage where it can be regarded as being permanent and having a permanent impact upon normal function as it relates to work performance.

Before determining if any impairment rating is appropriate I must decide if Mr Coady’s psychological/psychiatric condition is ‘permanent’, that is if it is a fully documented, diagnosed condition which has been investigated, treated and stabilised.

38.     I do not regard Dr Jones’ reference to “stress” in his letter of 27 November 2004 to amount to a diagnosis.  In any event I note that Dr Jones did not regard it as a “condition” for the purposes of inclusion in his TDR in support of Mr Coady’s claim for DSP.

39.     Formal diagnosis of Mr Coady’s condition did not occur until very recently:  Dr McLean’s report of 3 April 2008.  At best, Dr McLean may have been said to have investigated and diagnosed the condition from Mr Coady’s first consultation on 12 November 2007, which is still considerably outside the period under consideration.

40.     Furthermore, the condition could not be said, at the relevant time, to be fully treated.  It certainly had not stabilised.

41. Therefore, I find that Mr Coady’s psychological/psychiatric condition was not, by the relevant date ‘permanent’ and it is therefore not eligible for a point rating under the Schedule 1B Impairment Tables.

Combined impairment

42.      Mr Coady’s overall impairment rating is therefore nil points.  As stated above, 20 impairment points are required before there can be an entitlement to DSP.  Inability to work is the other consideration but failure to meet just one of the requirements results is a failure to qualify for DSP.  It is therefore not necessary for me to consider whether Mr Coady has a continuing inability to work.

DECISION

43.      The decision under review is affirmed. 

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

Signed:         .......[sgd]............................
  Associate

Date of Hearing          18 April 2008
Date of Decision   23 May 2008
Appearance for Applicant                 Self-represented
Advocate for the Respondent          Mr K Bullock, Centrelink Legal Services