Croker and Secretary Department of Employment and Workplace Relations
[2007] AATA 1224
•13 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1224
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/0555
GENERAL ADMINISTRATIVE DIVISION ) Re CLAYTON ROBERT CROKER Applicant
And
SECRETARTY DEPARTMENT OF EMPLOYMENT AND WORK PLACE RELATIONS
Respondent
DECISION
Tribunal Mr P W Taylor SC, Senior Member Date13 April 2007
PlaceSydney
Decision The Administrative Appeals Tribunal affirms the decision under review.
...................[sgd]........................
Mr P W Taylor SC
Senior Member
CATCHWORDS
SOCIAL SECURITY - somatoform disorder - disability support pension - interference with hand function - impairment tables - impairment assessment - qualifying threshold
LEGISTLATION
Social Security Act 1991
Social Security (Administration) Act 1999
Administrative Appeals Tribunal Act 1975
CASE LAW
Re Hudson and Department of Family and Community Services [2000] AATA 502; (2000) 4(4) SSR 51
Re Ryan and Secretary, Department of Family and Community Services (2003) 73 ALD 70
Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902
Simpson and Secretary, Department of Family and Community Services [2003] AATA 1127
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
Re Galea and Secretary to the Department of Social Security (1985) 7 ALN N57
Sargent and Secretary Department of Family and Community Services [2005] AATA 1076
REASONS FOR DECISION
13 April 2007 Mr P W Taylor SC, Senior Member 1. Since about 1990 / 1991 Mr Croker has complained of tinnitus and symptoms affecting his hands. He refers to his hand symptoms as RSI. He has variously described his RSI symptoms as pain, burning, tingling, pins and needles and sensations of heat and swelling. Sometimes they used to affect the back of his neck and his shoulders.
2. Prior to 1990/1991 Mr Croker had various jobs, the last of them being casual employment as a butcher. Mr Croker says his tinnitus and RSI stopped him working. For 12 to 18 months he did not work at all. In early 1993 he attempted clerical work. He got a manual work job at Simmsmetal. But his symptoms persisted. He attended college to retrain. Even the writing involved in his college activities triggered his hand symptoms. Mr Croker had his hand symptoms investigated at the rheumatology department at St Vincents Hospital. They could not then identify, nor has anyone subsequently identified, any causal pathology.
Disability Support Pension granted in 1994
3. In March 1994 Mr Croker applied for Disability Support Pension (‘DSP’). Again he attended St Vincent's Hospital. The hospital referred Mr Croker to a psychiatrist, Dr Robert Fisher. In his 21 June 1994 report Dr Fisher said Mr Croker presented with a somatoform pain disorder in which his complaints were not substantiated by identifiable underlying organic pathology. Dr Fisher said it was important that attempts be made to have Mr Croker control "his abnormal illness behaviour" and recommended that Mr Croker be encouraged to retrain and stay at work.
4. Dr Fisher’s diagnosis was taken into account in the assessment of Mr Croker’s DSP application in 1994. The Commonwealth Medical Officer’s report was that of Dr Robyn Meades. Dr Meades prepared a report on 8 August 1994 and revised it on 18 August 1994, after receiving Dr Fisher’s report and discussing Mr Croker with him. The completed report described Mr Croker’s tinnitus as intermittent and causing minimal functional loss. Dr Meades noted that no pathology had been identified for Mr Croker’s RSI. Dr Meades described Mr Croker’s hand symptoms as pain that caused difficulty with lifting. He assessed this as giving rise to a 15% impairment under (the then version of) Table 3. He did not consider that Dr Fisher’s somatoform pain disorder diagnosis merited assessment of any additional impairment. He regarded Mr Croker as fit for work, but that he should initially avoid heavy work.
5. A different view of Mr Croker’s impairment was apparently taken in an assessment made on 29 August 1994. The material before the Tribunal discloses the result of the assessment, but not the details of the medical officer involved or the reasons for the reassessment. The result of the reassessment was the allocation of a 10% impairment for Mr Croker’s somatoform pain disorder. With the 15% impairment Dr Meades had allocated for his RSI Mr Croker therefore had a combined and qualifying impairment percentage of 25%. He was also assessed as unfit to be retrained within two years, because of an inability to cope with stress. In the result Mr Croker was in fact granted a DSP. He continued to receive that pension for the next 12 years.
DSP cancelled in 2005
6. In 2005, as part of the ordinary administration of his ongoing DSP entitlement, Mr Croker and his general practitioner, Dr Roza Wolska, provided reports to Centrelink. Mr Croker described his conditions as RSI and tinnitus. Dr Wolska, in her 3 February 2005 report, said that Mr Croker was affected by only one diagnosed condition, somatoform pain disorder.
7. Mr Croker was then the subject of a reassessment of his medical condition by Dr Michael Paul on behalf of Health Services Australia (‘HSA’). Mr Croker told him about Dr Fisher’s 1994 diagnosis of somatoform pain disorder, and a note in Dr Paul’s report suggests he had read Dr Fishers report. But Mr Croker also told Dr Paul that he had attended the Royal Prince Alfred Hospital (‘RPAH’) Pain Management Clinic in 1999, the diagnosis had been questioned and his symptoms were in fact thought to be neurological. As a result of this information, but without having seen a 19 November 1998 report from the RPAH Pain Management Clinic that rather contradicted Mr Croker’s claims, Dr Paul regarded the diagnosis of Mr Croker’s somatoform pain disorder as uncertain. He therefore classified the condition as temporary and did not assign any impairment rating relating to that disorder.
8. Dr Paul’s 2 March 2005 report described Mr Croker’s RSI condition as bilateral hand discomfort. He recorded a history of pain and altered sensation in both hands, with reduced grip strength. The symptoms of pain and altered sensation were worst at night. Mr Croker was able to do all the activities of daily living other than heavy cleaning. On physical examination Dr Paul found a full range of movement, normal grip and no neurological abnormality. He thought Mr Croker had a subjective moderate bilateral impairment with repetitive or heavy manual handling. He rated that impairment using Table 3 and assigned a rating of 15 points.
9. The effect of Dr Paul’s March 2005 report was, therefore, substantially the same as that of Dr Meades 10 years earlier. They both considered that Mr Croker had three conditions – RSI / bilateral hand discomfort, somatoform pain disorder and tinnitus. Only one of these conditions – the RSI - merited an impairment rating but the 15 point rating was below the qualifying threshold. The threshold in 2005 was 20 points under section 94(1)(b) of the Social Security Act 1991. Mr Croker therefore no longer qualified to receive DSP.
10. On 31 March 2005 Mr Croker was first notified of the cancellation of his DSP, but payments continued until 5 June 2006. As the Secretary, Department of Employment and Workplace Relations (‘the Secretary’) informed the Tribunal, payments may be continued after cancellation where the Secretary makes a written declaration under section 131 of the Social Security (Administration) Act 1999. But they may also be continued when the Secretary reconsiders a cancellation decision under section 85 of the Act. In the present case no written declaration has been produced, but there are internal Centrelink records suggesting that on 23 June 2005 Centrelink informed Mr Croker that the cancellation may have been premature, and was on hold. The reason for this decision appears to have been that Dr Paul’s report, which had dismissed Mr Croker’s somatoform disorder as a temporary condition that had not been fully diagnosed, was thought to require a further specialist medical review.
11. That further review involved an assessment of Mr Croker by Dr Michael Prior, a consultant psychiatrist. In his 1 August 2005 report Dr Prior noted that Mr Croker’s main complaint was RSI. Dr Prior concluded that this RSI might represent an undifferentiated somatoform disorder in the absence of organic pathology or a physiological/pathological explanation for his physical symptoms. Dr Prior said he was unable to clarify the diagnosis because he had no access to background documentation.
12. Following Dr Prior’s 1 August 2005 report, Mr Croker’s impairment rating was reassessed by Dr Keen. Dr Keen discussed Dr Prior's report with him before completing his own 11 August 2005 report. He appears to have told Dr Prior of the absence, despite investigation, of any diagnosed pathology explaining Mr Croker's symptoms. Dr Keen's report notes that, following the discussion, Dr Prior had confirmed the diagnosis that Mr Crocker had an undifferentiated somatoform disorder.
13. Dr Keen did not examine Mr Croker himself. Dr Keen’s impairment assessment in his 11 August 2005 report was essentially a reinterpretation of Dr Paul's earlier report, in the light of the confirmed diagnosis provided by Dr Prior. This is apparent from the fact that, in his description of Mr Croker's functional ability attributable to the two conditions of somatoform disorder and repetitive strain injury, Dr Keen repeated the descriptions contained in Dr Paul's report. Although Dr Keen followed the format of Dr Paul's 2 March 2005 report, and therefore still appeared to describe Mr Croker as having two separate conditions, it is very clear that Dr Keen regarded them as merely alternative diagnoses for the same symptoms. He said so explicitly in his report, in a passage immediately following a summary of his telephone discussion with Dr Prior. That view is itself consistent with the tentative opinion Dr Prior had expressed in his 1 August 2005 report.
14. Dr Keen opined that Mr Croker had essentially the same degree of impairment irrespective of whether it was attributable to the hand condition or to somatoform disorder. Dr Keen accepted that Mr Croker’s somatoform disorder gave rise to a relevant impairment. He assessed it as meriting a rating of 10 points. He did not regard Mr Croker’s RSI condition as meriting any separate impairment rating. As a result Mr Croker’s impairment did not satisfy the impairment rating threshold in section 94(1)(b) of the Social Security Act 1991 and was no longer qualified for DSP.
15. Mr Croker was notified of the impending cessation of payment of his DSP (with effect from 18 October 2005) by letter dated 6 September 2005. This letter described itself as a decision that attracted a right of review. It was treated by Mr Croker and the Authorised Review Officer (‘ARO’) (though not by the Social Security Appeals Tribunal (‘SSAT’)) as the relevant cancellation decision. (That understanding, though contrary to the Secretary’s submission to the Tribunal, is consistent not only with Centrelink’s 23 June 2005 note that the 31 March 2005 decision was premature and “on hold”, but also with the absence of any written review request by Mr Croker, or a copy of any written declaration under section 131 of the Social Security (Administration) Act 1999.) Mr Croker’s 15 September 2005 letter to the Secretary requested a review of the 6 September 2005 decision. That review by the ARO resulted in a 2 December 2005 decision that accepted the views of Dr Keen. The ARO noted that Dr Keen’s opinion was supported both by Dr Fisher’s contemporary diagnosis and by the fact that Dr Wolska had also consistently diagnosed somatoform disorder rather than RSI. Following the ARO’s decision, on 3 January 2006 Mr Croker lodged an appeal with the SSAT.
16. In its 28 April 2006 decision the SSAT noted Dr Prior’s diagnosis of undifferentiated somatoform disorder, and that no underlying cause had ever been identified for Mr Croker’s hand symptoms. Like both Dr Paul and Dr Keen, the SSAT described those symptoms as pain and abnormal heat sensation with moderate reduction in grip strength and manual handling. The SSAT said that Mr Croker’s symptoms had variously been described as RSI or complex regional pain syndrome and were symptoms that lead to problems with bilateral hand functioning. The SSAT said that “with this in mind” they had decided to differ from Dr Keen and assess the impairment under Table 3 (as had Dr Paul) and not Table 6 (the Table used by Dr Keen). But, in proceeding to assess Mr Croker’s impairment as meriting a rating only under Table 3, the SSAT essentially agreed with Dr Keen’s view that the two Tables should be seen, in relation to Mr Croker’s condition, as alternatives. The SSAT assessed Mr Croker’s impairment as meriting the ratings determined by Dr Paul – namely, 10 points for Mr Croker’s dominant hand and 5 points for the other. The SSAT allocated a “nil” rating under Table 6. This gave a total impairment rating of 15 points – still below the 20 point qualifying threshold. The SSAT affirmed the decision under review.
17. In August 2006 Mr Croker was further examined by an occupational physician, Dr Elias Matalani. According to Dr Matalani’s 3 August 2006 report Mr Croker's main complaint was a sensation of heat in both hands. His hands “burned” when he relaxed at night and this sometimes disturbed his sleep. The symptoms were generally intermittent but could be constant if he did a lot of work or study. As a result of this he tended to minimise his activities so as not to aggravate his symptoms. Mr Croker's walking, standing and sitting capacities were generally unaffected. He had some difficulties opening jar tops and bottle tops but no substantial difficulty using knives and forks, or doing household cleaning, including vacuuming.
18. Dr Matalani’s physical examination of Mr Croker revealed no significant features. Mr Croker had a full range of movement of shoulders, elbows, wrists and joints in the fingers. He had normal power and sensation. There was no evidence of wasting, tendonitis, altered sensation, discoloration, fasciculation, oedema, atrophy, skin mottling or cyanosis. There was no abnormal nail or hair growth.
19. Dr Matalani thought that Mr Croker may have originally suffered repetitive strain injury as a result of the work he did during his employment as a butcher – the last employment of that kind having occurred some 15 or 16 years earlier. The condition had become asymptomatic with the reduction in Mr Croker’s activities, but could be precipitated with repetitive or heavy use of his hands. Mr Croker's reduction in activity, in order to avoid a repetition of RSI symptoms, might have precipitated the "undifferentiated somatoform disorder” diagnosed by Dr Prior. Dr Matalani concluded that Mr Croker did, “therefore”, have two diagnosed conditions.
20. However, it was also Dr Matalani’s opinion that only one of the two conditions could be regarded as giving rise to a relevant functional impairment. He thought that the major contributing factor to Mr Croker's impairment was hand dysfunction. That caused moderate interference with manual handling. Dr Matalani thought Mr Croker should avoid repetitive or heavy use of his hands. In relation to the somatoform disorder itself, Dr Matalani considered that it caused only mild symptoms which resulted in subjective distress but minimal interference with the functions of everyday situations. In his opinion any significant impairment was attributable to Mr Croker's "RSI or overuse disorder". As had the SSAT and Dr Paul, Dr Matalani assessed Mr Croker as having a 15 point impairment rating under Table 3 – and none under Table 6. The total impairment rating of 15 still did not meet the 20 point qualification threshold.
The impairment rating issue
21. Mr Croker makes the point that when he was originally granted DSP in 1994, as a result of the 29 August 1994 reassessment, his somatoform disorder and RSI were treated as separate conditions and separate impairment ratings were assessed in relation to each of them – notwithstanding Dr Meades’ contrary report at the time. He says the reports of Drs Meades, Paul and Keen evidence that he presented with the same conditions in 2005. He also points to the fact that the SSAT, in its 28 April 2006 Decision, said that he had “three medical conditions, each worthy of the assignment of an impairment rating. They are bilateral upper limb impairment, undifferentiated somatoform disorder and tinnitus”. Mr Croker contends that the proper approach to the assessment of his impairment is to combine, at least to an extent sufficient to meet the 20 point requirement, Dr Paul’s 15 point assessment for “bilateral hand discomfort” with Dr Keen’s 10 point assessment for “somatoform disorder”. In essence, Mr Croker contends that the 1994 assessment of his impairment rating remains applicable and correct.
22. The Secretary’s contention is that irrespective of whether Mr Croker has one or two different diagnosed conditions his impairment must be rated without “double counting”. According to the Secretary it is appropriate to rate Mr Croker’s impairment under Table 3 alone. No separate impairment rating score can properly be assessed under any other Table.
23. Consideration of Mr Croker’s submission, and the Secretary’s opposition to it, requires an accurate understanding of the basic legislative provisions. Section 94(1) of the Social Security Act 1991 is the principal provision. The terms of section 94(1), in so far as they are relevant to the present application, are as follows:
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;
…
(d) the person has turned 16; and
(e) the person …
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
…
24. The Impairment Tables referred to in section 94(1)(b) of the Social Security Act 1991 are contained in Schedule 1B of the Act. The Introduction to Schedule 1B describes the method of impairment assessment “under” the Tables. The passages of the Introduction most relevant to the present application (with emphasis added) are as follows:
1. These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work. Work is defined in section 94(5) of the Social Security Act 1991. The Tables represent an empirically agreed set of criteria for assessing the severity of functional limitations for work related tasks and do not take into account the broader impact of a functional impairment in a societal sense. For this reason, no specific adjustments are made for age and gender. The outcome of the application of these Tables following a medical assessment is termed work‑related impairment and this term is used throughout this document.
2. These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. These Tables are function based rather than diagnosis based. The Medical Officer should not approach the Tables hoping to find various conditions listed for which he or she can read off a rating. One of the skills which needs to be developed in order to assess impairment in this context is the ability to select the appropriate tables. The question which must be asked in each and every case is "which body systems have a functional impairment due to this condition?"
…
7. A single medical condition should be assessed on all relevant Tables when that medical condition is causing a separate loss of function in more than one body system. For example, Diabetes Mellitus may need to be assessed using the endocrine (19), exercise tolerance (1), lower limb function (4), renal function (17), skin disorders (18) and visual acuity (13) tables. When using more than one Table for a single medical condition the possibility of double assessment of a single loss of function must be guarded against. For example, it is inappropriate to assess an isolated spinal condition under both the spine table (5) and the lower limb table (4) unless there is a definite secondary neurological deficit in a lower limb or limbs.
8. In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates. Medical officers must use their clinical judgement and be convinced that pain or fatigue is a significant factor contributing towards the person's overall functional impairment. Medical reports and the person's history should consistently indicate the presence of chronic entrenched pain or fatigue.
9. Always use a Table specific to the functional impairment being rated unless the instructions in a section specify otherwise …..
…
11. The scaling system for the Tables is based on points allocation with the number alongside each impairment descriptor representing the number of points to be allocated for that impairment. Ratings between Tables are not always comparable although the ratings have been allocated on the basis of the likely impact of an impairment on work ability. Where more than one impairment is present, separate scores are allotted for each and the values are added together giving a combined work‑related impairment rating.
12. A medical condition such as Vascular disease (Stroke) may cause brain damage to different parts of the brain eg. damage to the cortex causing cognitive/comprehension impairments, damage to the speech centre causing aphasia (receptive or expressive communication impairments) and damage to the motor centre causing hemiparesis. Each separate or additional loss of function must be assessed under the relevant Table(s), in this case Tables 8, 9, 3 and 4. This is not double counting (also see paragraph 7). Double counting is where one functional loss is counted twice. For instance, where a condition causes a cognitive impairment, the presence of mental confusion may suggest an extra communication impairment. However, if the speech centre of the brain is undamaged, the overall situation is regarded as a single impairment.
13. These Tables have been scaled so that where two conditions cause a common or a combined functional loss, a single rating should be assigned for both conditions and this should reflect the combined loss of function from each of the two conditions. For example, the presence of both heart disease and chronic lung disease may each cause difficulty with breathing and reduced effort tolerance. The overall loss of function is a combined or common effect with a contribution from each condition. In this case a single impairment rating is assigned based on overall reduction in effort tolerance using Table 1.
25. The Introduction emphasises a number of matters. They can be summarised in the following propositions:
(a)Impairment ratings can only be assigned in relation to medical conditions that are fully diagnosed treated and stabilised: paragraphs 4, 5 and 6. (Though “full” diagnosis does not require the identification of a recognised condition with accepted clinical description: Re Hudson and Department of Family and Community Services [2000] AATA 502; (2000) 4(4) SSR 51; Re Ryan and Secretary, Department of Family and Community Services [2003] AATA 31).
(b)Despite the precondition of full diagnosis, treatment and stability, the Tables require an assessment of functional impairment for work related tasks, rather than being based on the nature of the formal diagnosis of a particular condition: paragraphs 1, 2 and 3.
(c)Because the same diagnosed medical condition may affect different body systems, impairment ratings for a condition may require a person’s total impairment to be rated by applying different Tables and accumulating the point ratings so determined. But in so doing the rating must be determined by reference to the additional impairment attributable to each condition and the cumulative rating total should not involve “double counting” the effect or level of impairment: paragraphs 7, 11 and 12.
(d)Conversely, different medical conditions may contribute to a common or combined level of functional impairment. In such a case a single rating should be determined that reflects the combined loss of function from the conditions: paragraph 13.
(e)The Tables used to rate a level of functional impairment should be specific to that impairment. If the impairment is attributable to pain or fatigue, it should be assessed in terms of the underlying causative medical condition, unless this would underestimate the actual level of impairment because of the presence of chronic pain: paragraphs 8 and 9.
26. The proposition that the Tables are function rather than diagnosis based should lead to the result that, if the Tables are correctly applied, there is minimal risk of either double counting or apparent inconsistency in the assessment of an impairment rating for the same level of functional impairment even if the underlying condition is the subject of different diagnoses. There is therefore, a logical attraction to the Secretary’s contention that it is unnecessary to consider whether Mr Croker has one or two or alternative diagnoses for the symptoms he describes as RSI.
27. But reference back to the differences between Dr Keen, on the one hand, and Dr Paul, Dr Matalani and the SSAT on the other, show that the selection of the Table used to assess an impairment rating can have a critical importance. Each of those assessments purported to relate to the same level of functional impairment. But the result of applying Table 3 was an impairment rating of 15 whereas the result of applying Table 6 was an impairment rating of 10.
28. Indeed, comparison of the two Tables shows that there is an inherent capacity for such discrepancies when different Tables are used for ostensibly the same level of functional impairment. This is because of the different incremental rating levels used in the two Tables. Table 3 permits rating increments of 5 points. Table 6 uses increments of only 10 points. It necessarily follows that for any “5 point” functional impairment increment determined under Table 3 an assessment of the same level of functional impairment under Table 6 has the capacity to result in an additional rating. In short, an impairment that merits a 15 point rating under Table 3 can “appear” to justify a 20 point rating if it is capable of being assessed under Table 6. Choice of Table can therefore be critical in determining whether a claimant meets the qualifying impairment threshold of 20 points.
29. This possibility suggests that there is a level of complexity in the proposition that the Tables are “function rather than diagnosis based”. In fact, paragraph 4 of the Introduction to the Tables says that diagnosis is the “first step” in any impairment assessment under the Tables. Diagnosis is important partly because it may point to the levels of functional impairment likely to be encountered. As well the nature of the diagnosis will be relevant to the assessment of whether the condition has been fully treated and stabilised. But diagnosis can also be directly relevant to Table selection itself. This is hinted at in paragraph 8 of the Introduction. In dealing with the assessment of pain and fatigue paragraph 8 declares that functional impairment related to pain should be assessed in terms of the underlying medical condition that causes it.
30. The force of the proposition that diagnosis may be critically relevant to Table selection becomes readily apparent when regard is had to the Table descriptions themselves. Some are clearly function based. Others have title descriptions that point more to a diagnostic description than a functional limitation. This is true, for example of Table 6 – Psychiatric impairment; Table 7 – Alcohol and Drug Dependence; Table 10 – Intellectual Disability; Tables 11.1 & 11.2 Gastrointestinal; Table 14 Miscellaneous Eye Conditions; Table 18 Skin Disorders; Table 19 Endocrine Disorders; and Table 20 Miscellaneous malignancy, hypertension, HIV infection, morbid obesity (ie bmi >40), heart/liver/kidney transplants, miscellaneous ear/nose/throat conditions and chronic fatigue or pain. These various Table descriptions highlight the reality that, at least in some cases, the impairment rating for any particular functional limitation may be significantly affected by the selection of the Table used for the assessment.
31. The essential questions raised for determination are
(a)whether Mr Croker’s RSI / bilateral hand discomfort and undifferentiated somatoform disorder are either separate conditions or otherwise merit separate impairment assessment
(b)what Tables should be used to assess Mr Croker’s functional impairment; and
(c)what is the appropriate rating for that functional impairment.
Alternative or separate diagnoses for Mr Croker’s “RSI”
32. Despite investigations from 1993 through to Dr Matalani’s 3 August 2006 report there is simply no evidence of any pathological condition to explain the symptoms that Mr Croker calls his RSI. Dr Keen’s view, as recorded in his 11 August 2005 report was that Mr Croker’s diagnosis was “undifferentiated somatoform disorder”. The RSI diagnosis does not appear to be a separate condition “but rather an alternative explanation / diagnosis of his symptoms”. There is a good deal of support for this view and this can be seen from other contemporary medical reports.
33. Dr Wolska has been Mr Croker’s general practitioner for some years. She has provided reports dated 1 April 1999, 3 February 2006 and 18 August 2006. In each of those reports she reported only one, presently relevant, diagnosed condition – somatoform pain disorder.
34. Dr Paul's 2 March 2005 report for HSA report did record both somatoform pain disorder and bilateral hand discomfort as two separate conditions. However, his description of the symptoms was immaterially different for both. And in any event, because of the information given to him by Mr Croker, he did not regard the somatoform pain disorder as fully diagnosed.
35. The SSAT unambiguously declared its satisfaction that Mr Croker had three medical conditions, tinnitus, bilateral upper limb impairment and somatoform disorder. However, as the SSAT noted, the very basis for the diagnosis of somatoform pain disorder in Mr Croker’s case was the absence of any underlying pathology. Whilst sometimes the diagnosis can be made where there is a related medical condition, that is not the case with Mr Croker. The thrust of the medical reports, over an extensive period, is that there is inadequate evidence to justify a conclusion that the symptoms Mr Croker reports involve any medical condition other than his diagnosed undifferentiated somatoform disorder. Any views suggesting that Mr Croker has an RSI condition derive solely from the history he gives and are not substantiated by any significant examination findings.
36. In Dr Matalani’s 3 August 2006 report he also says that Mr Croker has a dual diagnosis of RSI and somatoform disorder. However the starting point in Dr Matalani’s reasoning is the proposition that it is reasonable to conclude that “at one stage” Mr Croker suffered RSI. He goes on to say that the condition is no longer symptomatic, but that the symptoms could be precipitated by repetitive heavy use of his hands. He notes that Mr Croker reports avoiding any such activities and surmises that this avoidance may have precipitated the somatoform disorder diagnosed by Dr Prior. This process of assumption and surmise leads Dr Matalani to say that “therefore” Mr Croker has the two conditions of RSI and somatoform disorder.
37. All the available medical reports, including those obtained in 1993 and 1994, have consistently concluded that there is no underlying medical condition to explain Mr Croker’s symptoms. Since none of these reports has ever found any objective evidence of RSI, there is no adequate factual basis from which to conclude that Mr Croker has RSI. It seems to me that the most one can say is that Mr Croker has himself attributed the onset of his RSI to the repeated and heavy nature of his employment as a butcher. But Mr Croker is not a reliable historian. The symptoms he regards as RSI have consistently been diagnosed as somatoform disorder but, according to the history Dr Paul recounted, he has disputed that diagnosis.
38. The fact that Mr Croker reports a recurrence of these symptoms with repeated heavy use of his hands cannot reliably justify a conclusion that the activity has “precipitated” a recurrence of RSI. As Dr Matalani’s report notes, Mr Croker’s hands were normal to examination, there was no evidence of RSI symptoms and there was no evidence that any past examination had revealed a basis for RSI as a medical condition. In these circumstances, and given that the Introduction to the Impairment Tables requires a fully documented and diagnosed condition as a “first step” (see paragraph 4) before any rating may be assigned, there is no adequate factual basis for a conclusion that Mr Croker has a medical condition of RSI. The only diagnosis that satisfies the criteria required by paragraph 4 of the Introduction to the Impairment Tables is undifferentiated somatoform disorder.
What Tables should be used to rate Mr Croker’s impairment
39. Paragraph 9 of the Introduction to the Impairment Tables says that the impairment assessment should be based on a Table that is “specific to the functional impairment being rated”. On the other hand, pain or fatigue should generally be assessed “in terms of the underlying medical condition” that caused it. In the present case the SSAT decided to use Table 3 because there were “symptoms that lead to problems with bilateral hand functioning”. Dr Matalani used Table 3 because Mr Croker’s hand symptoms were the major contributing factor for his hand dysfunction.
40. The difficulty with this reasoning, in justifying use of Table 3, is that it rather glosses over the real nature of Mr Croker’s “problems with bilateral hand functioning”. When Mr Croker was examined at the RPAH pain management clinic in November 1998 some mild generalised wasting of both hands was observed however, he was reported to have normal power and sensation and was observed to use his hands and fingers a great deal without any indication of discomfort. Dr Matalani’s examination findings eight years later, in 2006, were essentially similar. He reported that Mr Croker had a full range of painless movement without evidence of wasting and with normal power and sensation. Dr Paul’s examination findings in March 2005, differed only in reporting some altered sensation and a complaint of reduced grip strength. But that difference is of questionable significance in justifying reliance on Table 3. Dr Paul’s findings have to be understood in the light of the fact that the information available to him did not demonstrate that Mr Croker’s somatoform pain disorder had been reliably diagnosed.
41. The fact that Mr Croker presents on examination with a full range of painless hand movement with normal power and sensation seems to be quite inconsistent with the use of Table 3 to assess his impairment. Table 3 is in the following terms:
TABLE 3. UPPER LIMB FUNCTION
All upper limb problems are assessed under the upper limb Table (Table 3). Each arm is assessed separately. Determination of upper limb impairments must be based on a demonstrable loss of function.
Rating Criteria
NIL Can use dominant limb effectively and/or
Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.
FIVE Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non‑dominant upper limb which causes moderate interference with hand function or manual handling.
TENDemonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.
FIFTEENDemonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non‑dominant upper limb which causes significant interference with hand function or manual handling.
TWENTYDemonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes significant interference with hand function or manual handling or
Unable to use non‑dominant upper limb at all.
THIRTY Unable to use dominant upper limb at all.
42. As can be seen, the pre-condition to assessment under Table 3 is “demonstrable evidence”. The examination findings of neither the RPAH Pain Management Clinic, nor Drs Paul and Matalani, provide demonstrable evidence of any of the criteria in the Table. The most the evidence reveals is that Mr Croker complains of altered sensation and pain after some kinds of activity with his hands and he also complains of some loss of strength. Due to those complaints he tends to limit his activities and the extent to which he uses his hands. But the limitations he imposes are not really the consequence of a functional inability. His evidence to the Tribunal was in fact that he had the ability to do most things but he was concerned about the repercussions. Given that evidence, the diagnosis of somatoform disorder and the examination findings in 1998 (RPAH Pain Management Clinic), 2005 (Dr Paul) and 2006 (Dr Matalani), Mr Croker’s complaints do not provide the kind of “demonstrable evidence” that the Table requires.
43. Furthermore the examination findings, in the light of the diagnosis of somatoform disorder, raise a fundamental question about the real nature of Mr Croker’s “functional impairment” for the purpose of paragraph 9 of the Introduction and the selection of the appropriate impairment Table. Since the objective evidence of loss of function is slight, and since the principal explanation for Mr Croker’s restricted activities is his apprehension about triggering symptoms that have no explicable pathology, his “functional impairment” is more properly regarded as related to either pain or to the psychiatric condition Dr Prior diagnosed – namely “undifferentiated somatoform disorder”.
44. In his 1 August 2005 report, and his subsequent discussion with Dr Keen, Dr Prior’s preferred diagnosis was “undifferentiated somatoform disorder" rather than "somatoform pain disorder". The reason for the distinction was that Mr Croker's pain was not constant and other symptoms, particularly the burning sensation in his hands and occasional dropping of things he was carrying, tended to be the more distressing and prominent symptoms. In previous medical records, Mr Croker's hand symptoms have variously been described as pain, tingling, throbbing and altered sensation, including "pins and needles". Indeed, in his 1994 diagnosis Dr Fisher did not discuss any distinction between pain and altered sensation. Neither did he refer to the episodic nature of Mr Croker's complaints. His diagnosis was that of "somatic pain disorder". The word pain is frequently used in subsequent descriptions of Mr Croker's condition, however, by at least the time of the cancellation of his pension in 2005 his symptoms were indeed episodic and his principal complaint seems to be a loss of sensation and weakness, rather than actual pain. Consistent with that understanding Mr Croker told the Tribunal that he rarely took analgesics even though he found them very effective in relieving any pain.
45. In the circumstances, Mr Croker's functional impairment should properly be understood as involving activity limitations which he has imposed in order to forestall or avoid the recurrence of the symptoms he describes as RSI. He does not restrict, or have limitations on, his activities because they are directly and immediately accompanied by disabling pain. Rather where, as a result of past experience he has come to associate particular activities with an increased risk of symptoms subsequently occurring, he has learnt to modify his activities so as to minimise the risk of recurrence. This suggests that the real nature of Mr Croker's functional impairment is a behaviour pattern which has been induced by his "undifferentiated somatoform disorder" - the psychiatric condition diagnosed by Dr Prior. It further indicates that the appropriate table for the assessment of Mr Crocker's functional impairment is "Table 6 - Psychiatric Impairment" - as Dr Keen concluded in 11 August 2005 report.
What is the appropriate rating for Mr Croker's impairment
46. Dr Keen assessed Mr Croker as having a 10 point impairment rating under Table 6. This assessment was based upon his opinion that Mr Croker experienced only moderate symptoms and was independent in his daily living activities. However, in his assessment of Mr Croker's capacity for work, Dr Keen's report also indicates that he thought Mr Croker was currently unfit for work, and would remain unfit without appropriate assistance. In part C of his report Dr Keen indicates that, even with appropriate training assistance it would take up to six months before Mr Croker would be able to work more than 30 hours a week.
47. Dr Keen's opinion that Mr Croker's condition currently impacted upon his work capacity is particularly relevant to the rating of Mr Croker's condition under Table 6. This can be seen by considering the rating descriptions contained in the Table:
TABLE 6. PSYCHIATRIC IMPAIRMENT
It is important to record a detailed psychiatric history, a mental state examination, and to distinguish between temporary and permanent psychiatric disorders. People with established psychiatric disorders (e.g. Bipolar Disorder) may be highly variable in their clinical presentation and this factor must be taken into account in the assessment. The assessment of psychiatric impairment may benefit from investigating; reports from mental health case managers, compliance with and the effects of medication, support systems that people have in place, the degree of insight present and the presence of psychotic illness. Where a person has a short term problem, for example an adjustment disorder with depression following an illness or marital breakdown, initially this should usually be considered to be of a temporary nature. Table 6 is used for permanent psychiatric disorders only. If there is insufficient clinical information available, a current or recent specialist report should be obtained.
Rating Criteria
NILMild but regular symptoms which tend to cause subjective distress. On most occasions able to distract themselves from this distress. Minimal interference with function in everyday situations. Exacerbation of symptoms may cause occasional days off work. (eg. There may be some loss of interest in activities previously enjoyed. There may be occasional friction with family, colleagues or friends) Medical therapy or some supportive treatment from treating doctor may be required.
TENModerate and regular symptoms and generally functioning with some difficulty. (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships). May have received psychiatric treatment which has stabilised the condition. Minor effects on work attendance and/or ability to work but the impairment would not prevent full‑time work. (eg. short periods of absence from work).
TWENTYPsychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti‑social behaviour, diagnosed psychotic illness with continuing symptoms). There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.
THIRTYSerious psychiatric illness with major impairments in several areas, such as work, interpersonal relations, judgement, thinking, or mood (eg. depressed person avoids friends, neglects family, unable to do housework), OR some impairment in reality testing or communication (eg. speech is at times obscure, illogical or irrelevant).
FORTY Major chronic psychiatric illness which results in an inability to function in almost all areas, OR behaviour is considerably influenced by either delusions or hallucinations, OR serious impairment in communication (eg. sometimes incoherent or unresponsive) or judgement (eg. acts grossly inappropriately).
48. Two features of the Table are important to note. The first is that it only provides for 10 point rating increments. The second is that a precondition to the 10 point rating is that the relevant impairment does not prevent full time work and involves only short periods of absence. If the impairment causes "serious disruption of work attendance or ability to work,” a 20 point rating is appropriate.
49. Since Dr Keen assessed Mr Croker as unfit for full-time work, without the benefit of educational training assistance, the rating criteria set out in the Table would seem to require a 20 point rating of Mr Croker's impairment. That conclusion seems to be rather reinforced by a proper understanding of the way in which Mr Croker says his complaint affects his activities. According to the evidence summarised in the SSAT's 28 April 2006 reasons for decision (which of course is after Dr Keen's assessment), Mr Croker avoids virtually all housework and lives in serviced accommodation where his cleaning and maintenance is done for him. He does not drive. He buys his food prepared, in order to minimise the amount of cooking preparation required. He has difficulty carrying his shopping. He wears wrist splints when he works on the computer. He has difficulty working at the computer and cannot type continuously for any significant period. Even though he has undertaken further education courses, including a diploma of law and an information technology course at the Sydney University of technology, he attends only part-time and works at his own pace.
50. In his evidence to the Tribunal Mr Croker said his difficulties with typing were such that he sometimes used a visual keyboard. He explained this involved a keyboard image being displayed on the computer screen and he then selected the letters individually by using a computer mouse. He also said that the hot sensation and tingling in his hands disturbed his sleep "most" nights. He said that "most" meant 80% of the time. His disturbed sleep led to fatigue and loss of concentration. As a result he would sleep in the afternoon about three days a week on the days when he was not attending university.
51. Mr Croker's evidence that his symptoms disturb his sleep "most" nights is at odds with the history recorded by both Dr Matalani and Dr Prior. According to Dr Matalani’s report Mr Croker said that the symptoms "sometimes" disturbed his sleep. In his 1 August 2005 report Dr Prior said that Mr Croker reported waking up only two nights a week. Neither report contained any significant complaint of fatigue. This discrepancy does not encourage confidence in Mr Croker's reliability or accuracy as a historian in describing the frequency and extent of his symptoms.
52. Nevertheless, a discrepancy of that kind does not significantly detract either from the validity of the somatoform disorder diagnosis, or the basic acceptance of Mr Croker's evidence that his condition has affected his activities and at least his perception of his capacity to work. His complaints now span a period of 14 years, perhaps more, and have been regarded by psychiatrists in both 1994 and 2005 as justifying the diagnosis of somatoform disorder.
53. In these circumstances, the evidence referred to above warrants the conclusion that Mr Croker has a longstanding psychiatric condition which significantly affects his perception of the activities he is physically able to undertake. That perception has made him so apprehensive about the extent of the activities he can undertake that he has refrained from any employment for 13 years. This is so despite attempts to return to work in 1993 and his pursuit of further education since that time.
54. The evidence therefore demonstrates that Mr Croker's somatoform disorder has significantly disrupted his ability to work. That conclusion is a least implicitly accepted in Dr Keen's own assessment of Mr Croker's work capacity. It is a conclusion which indicates, having regard to the terms of Table 6, that the appropriate rating for Mr Croker's impairment is 20 points. He therefore satisfies the qualification threshold provided for in section 94(1)(b) of the Social Security Act 1991.
The inability to work issue
55. Mr Croker’s inability to work has to be assessed as at the date of the relevant cancellation decision: see Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902 at [36]; Simpson and Secretary, Department of Family and Community Services [2003] AATA 1127 at [14]. Earlier in these reasons I referred to some uncertainty as to whether the operative cancellation decision was made on 31 March 2005 (as the Secretary contended and the SSAT decision implied) or 6 September 2005 (as the letter of that date asserts and as the ARO’s decision indicates).
56. In supplementary written submissions the Secretary relied on section 109 of the Social Security (Administration) Act 1999 to support the proposition that the date of effect of any decision by the Tribunal would be 31 March 2005. But that section only applies to decisions under certain provisions of the 1999 Act and does not apply to cancellation decisions under section 80. The date of effect of cancellation decisions has to be determined in accordance with section 118 of the 1999 Act and appears to be the date the cancellation decision was made or any later specified date. In Mr Croker’s case, since his payments continued until 5 June 2006, there might be some scope to argue that it became the effective date of the cancellation decision, especially if the Secretary had made a determination under section 131 of the 1999 Act: see section 131(1)(c). But the better view is that the date of the decision, and the date it takes effect, are conceptually different. In the exercise of its review function under section 179 of the 1999 Act and section 43 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’), the Tribunal is concerned with the review (involving affirmation, variation or setting aside) of the “original decision”. The proper exercise of the review function necessarily requires the Tribunal to address the question of an applicant’s qualification for DSP at that date.
57. Several considerations lead me to conclude that the operative cancellation decision was not made until 6 September 2005, rather than the 31 March 2005 date contended for by the Secretary. First of all Centrelink told Mr Croker in June 2005 that the 31 March 2005 decision was premature and “on hold”. Second, the Secretary’s written submissions do not actually say that the Secretary made a declaration under section 131 of the 1999 Act. Third no written declaration appears in the material before the Tribunal (and, if it existed it would have been required to be produced to the Tribunal under section 37 of the AAT Act). Fourth, the 6 September 2005 letter is a self contained letter of cancellation and does not refer to the 31 March 2005 decision. Fifth the 6 September 2005 letter relies on the 10 point impairment rating determined by Dr Keen in his 11 August 2005 report – rather than the 15 point assessment referred to in the 31 March 2005 letter. Sixth, both Mr Croker (by promptly lodging an application for review) and the ARO (by the note in the reasons for affirming the cancellation decision) appear to have treated the 6 September 2005 letter as the relevant cancellation decision. Finally the author of the 6 September 2005 letter responded to Mr Croker’s application by letter dated 6 October 2005. In that letter the author said he had made “the decision of 6 September 2005 not to pay you DSP”.
58. Accurate identification of the date of the cancellation decision may sometimes be a matter of critical significance – because of amendment to the qualification criteria in section 94 of the Social Security Act 1999. In fact significant amendments to the section came into effect on 1 July 2006. However there is no view of the facts that would permit a conclusion that the relevant cancellation decision was made after that date. Moreover, there was no amendment to the section material to the present case, between March 2005 and 1 July 2006. For that reason the result of the review does not depend on the accuracy of the earlier finding that the operative cancellation decision was made on 6 September 2005.
59. The concept of inability to work is defined in section 94(2)-(5) of the Social Security Act 1991. As at 6 September 2005 those provisions were in the terms set out below:
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(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.
60. There are a number of elements to consider. The first of these is whether Mr Croker’s impairment is “of itself” sufficient to prevent him doing “any work within the next two years”. The second is whether training of a kind referred to in section 94(5) of the Social Security Act 1991 is unlikely to enable Mr Croker to do any work within the next two years. In relation to both alternatives, “work” means at least 30 hours work per week in an Australian job at or above award wages.
61. The meaning of the “any work” concept in section 94(2) of the Social Security Act 1999 was addressed in Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444. The expression “any work” should be understood as meaning work of a kind that is within the applicant’s actual capacity without the need for any training. Provided the person has the capacity to do the hypothesised job it is irrelevant whether they have past experience, or actual skill in undertaking work of that particular kind.
62. In the present case it must be recognized that Mr Croker’s undifferentiated somatoform disorder is very longstanding and that fact is of itself significant. In his 21 June 1994 report Dr Fisher said that Mr Croker should be encouraged to get into some form of retraining and to stay at work. He added that patients with Mr Croker’s kind of somatoform disorder can benefit by being seen regularly by a general practitioner and being shielded from investigation or treatment except in the case of positive signs of the disease. In her reports Dr Wolska says that she has tried to discourage Mr Croker’s abnormal illness behaviour. However, Dr Prior’s 1 August 2005 report rather evidences the limited success that encouragement has met. Dr Prior commented that somatoform disorders tend to be notoriously difficult to treat, particularly if they are protracted and chronic. Cognitive behaviour therapy could be an effective treatment. But because Mr Croker appeared to have suffered from the disorder for 15 years or more, his prognosis was guarded.
63. Both Mr Croker’s history and Dr Prior’s opinion suggest the unlikelihood of any significant improvement in Mr Croker’s psychiatric condition for the foreseeable future. The question is the extent to which he has a relevant continuing inability to work whilst his somatoform disorder continues.
64. In the period since 1994, when he first started to receive a DSP, Mr Croker has made some significant achievements. Mr Croker left school in 1978 when he was aged 16 and had just completed the School certificate. His work experience between 1978 and 1991/1992 seems to have been widely varied but generally involved manual work of one kind or another. He worked as a butcher, fibreglass fabricator, concrete worker, factory worker and did general labouring. Since 1994 he has obtained further trade qualifications relating to the meat trade and he completed his higher School certificate in 1995. He attended the Sydney Institute of Technology from 1995 through to 2001 when he completed a diploma of law course. In 2000 he commenced a level four certificate course in information technology at the Sydney Institute of Technology. He is still undertaking that course. It involves him attending the Institute three days a week for periods of between two and four hours per day. He recently commenced a correspondence law course offered by Curtin University in Western Australia.
65. These commendable academic achievements by Mr Croker evidence a more than adequate level of intellectual functioning. They also suggest a reasonable level of ability in relation to the writing and typing abilities his academic achievements would necessarily involve. In that regard the evidence includes several sets of written submissions from Mr Croker. They are all very well structured, neatly and attractively laid out and accurately typed. They indicate significant analytical, verbal and technical ability.
66. Mr Croker explained to both the SSAT and the Tribunal that he copes with his educational endeavours by pacing the amount of work he does. When he is not attending the Institute of Technology he spreads his work out during the course of the week. He breaks up his activities and does not work consistently at the keyboard. He tries to keep his activities to a minimum. He is able to prepare his own food, carry out all of the ordinary activities of daily living and he can write and type. But he is very apprehensive about his ability to do any more than the minimum amount of activity he currently undertakes. He said to the Tribunal that on those days when he needs to do more than normal he has the repercussion of a recurrence of his hand symptoms and disturbed sleep. He also said that he felt if he had to return to work it would only be a short time before he would have to pull out because he expected the increased activity would cause more symptoms and exacerbate his condition.
67. Mr Croker’s negative views of his ability to return to work are not reflected in the medical assessments. Dr Paul thought that with appropriate training and support Mr Croker would be able to undertake suitable light work, such as that of a ticket collector or telephonist, within six to 24 months. Dr Keen had a more optimistic view and thought that Mr Croker should be able to undertake light work of that kind within six months, with appropriate training and support. Given Mr Croker’s lengthy absence from the workforce, he thought his reemployment would be best undertaken on a graduated basis under rehabilitation supervision.
68. Dr Matalani held a similar view and was somewhat more expansive in his explanation. He thought that Mr Croker was fit for light skilled or semiskilled occupations involving management, supervisory or technical work. He was also fit to work in light retail or customer service activities which generally required minimal use of computers and manual activity. Dr Matalani also agreed with the suggestion that Mr Croker would be able to work in telemarketing or as a call centre worker with the use of a headset.
69. Mr Croker was also the subject of a job capacity assessment report by a rehabilitation counsellor, Ms Catherine Tam-Lam, on 12 September 2006. Ms Tam-Lam appears to have accepted Dr Matalani’s assessment of the nature and extent of Mr Croker’s impairment. Consistent with Dr Matalani’s report Ms Tam-Lam regarded Mr Croker’s “repetitive strain injury” as the operative reason for his impairment. She thought Mr Croker’s ability to work would be restricted to seven hours per week without rehabilitation assistance, because of the extent to which he considers his conditions prevent him from active participation in the work force. Ms Tam Lam thought that with rehabilitation assistance Mr Croker should be able to work up to 22 hours per week within 24 months.
70. According to Ms Tam Lam’s assessment Mr Croker would have satisfied the 30 hours per week “inability to work” criterion in section 94(2) and 94(5) of the Social Security Act 1991. But the precise basis for Ms Tam-Lam’s opinions are difficult to discern from her report. She read the 28 April 2006 SSAT decision and the reports by Drs Paul, Keen and Matalani. Her opinion about Mr Croker’s work capacity contradicts those of the three doctors but the reasons for her different opinion are not stated. Her description of Mr Croker’s symptoms are substantially the same as those recorded by Dr Matalani. But she identifies “light skilled” work as suitable for Mr Croker and lists as examples “web designer” and “law clerk”. These occupations are rather more skilled, and perhaps require more keyboard and writing skills than the job examples given by the three medical practitioners.
71. Ms Tam-Lam does not refer to, and gives no reason for rejecting, any of the kinds of work suggested by the three doctors. It may be that Ms Tam-Lam had not reached any specific opinion about the real extent of Mr Croker’s hand function – because she suggests a further functional assessment be carried out in order to determine Mr Croker’s actual functional capacity. Furthermore, her opinion that Mr Croker would take more than two years to reach a 30 hour working week appears not to have been confined to the impact of Mr Croker’s diagnosed condition. She has also taken into account Mr Croker’s own lack of confidence in his ability to return to work and also the need to acquire work experience to build up his work capacity and get used to the life style of working.
72. It may be accepted that Mr Croker, after so long out of the work force has little confidence in his ability to return to work. He will require a period of re-familiarisation with a working environment to develop the personal confidence that comes with such familiarity. But a merely subjective lack of confidence in work capacity is not itself an impairment for the purpose of the Social Security Act 1991: Re Galea and Secretary to the Department of Social Security (1985) 7 ALN N57. The potential benefit of rehabilitation training in assisting an applicant develop confidence in their work capacity was recognised in Sargent and Secretary Department of Family and Community Services [2005] AATA 1076.
73. The principal consideration posed in section 94(2)(a) of the Social Security Act 1991 is whether or not Mr Croker’s impairment, which I have found is his somatoform disorder, is “of itself” sufficient to prevent him from working independently of relevant training within the next two years. The “of itself” limitation precludes regard being had to an applicant’s subjective motivation or attitudes: Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 44 at [26]; Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902 at [28]. It requires regard to be had to the nature of the impairment and the extent of its impact on the person’s activities and whether or not that impact is “sufficient to prevent” the person from doing any work within the next two years.
74. The principal feature of Mr Croker’s functional impairment is that it is related to the level of his manual activity and is episodic in that he attributes his symptoms to repetitive and heavy manual handling – to use the descriptions in the reports of Dr Paul and Dr Matalani. Nevertheless, Mr Croker does retain significant hand function – according to the examination findings of both Drs Paul and Matalani. He can carry out the ordinary activities of daily living. And given the sustained pursuit of his educational activities over what is now almost a decade, I consider it is reasonable to conclude that he is able to tolerate, albeit with careful management, the kinds of manual activities ordinarily involved in those pursuits. His academic success also evidences that he has considerable intellectual ability.
75. There is, in my opinion considerable force in Dr Matalani’s opinion that Mr Croker’s present abilities should be able to extend at least to customer service, call centre or light retail work where excessive or repetitive use of his hands would not be required. That conclusion is supported by the opinions of Drs Paul and Keen. Given the kinds of employment all three of those doctors have identified as being apparently within Mr Croker’s current functional capacity, I am not satisfied that Mr Croker’s impairment is “of itself” sufficient to prevent him from doing any work independently of relevant training within the next two years.
DECISION
76. The decision under review is affirmed.
I certify that the 76 preceding paragraphs are a true copy of the written reasons for the decision herein of Mr P W Taylor SC, Senior Member.
Signed: [sgd] Mwela Kapapa
AssociateDate of Hearing 31 January 2007
Date of Decision 13 April 2007
Appearance for Applicant Self-representedAdvocate for the Respondent Mr Ken Bullock of Centrelink, Legal Services
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