D'Souza and Secretary, Department of Family and Community Service S

[2003] AATA 938

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 938

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2003/526

GENERAL ADMINISTRATIVE  DIVISION		)
Re		CANUTE JUDE D'SOUZA

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr Campbell, Member

Date23 September 2003

PlaceSydney

Decision The Tribunal affirms the decision under review.

[Sgd] Dr Campbell, Member

CATCHWORDS 

SOCIAL SECURITY - Newstart Allowance - Activity test - Activity test exemption - Medical Conditions - Sickness or accident - incapacity - temporary nature.

LEGISLATION

Social Security Act 1991 sections 94, 601, 603.

REASONS FOR DECISION

23 September 2003 DR CAMPBELL, MEMBER          

1.      In this application Mr Canute D’Souza (“the Applicant”) seeks a review of the decision of the Social Security Appeals Tribunal (“SSAT”) dated 3 March 2003 (T2), which affirmed the decision of the authorised review officer (“ARO”), dated 19 December 2002 (T48), that the Applicant is not entitled to an activity test exemption, beyond 13 November 2002.  This latter decision affirmed the decision of an authorised delegate of the Secretary, Department of Family and Community Services (“the Respondent”), dated 11 November 2002 (T32), not to accept the medical certificate of 11 November 2002.

2.      A hearing was held before the Tribunal on 11 September 2003 at which the self represented Applicant presented oral evidence.  The Respondent was represented by Mr Larcombe, an advocate from the Centrelink Recovery Team.

3.      The following material was placed into evidence before the Tribunal:

T- Docs	Name of Documents	Date
T1-58, p1 - 151	Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit A1	Bundle of documents submitted by the Applicant with the first document	26 August 2003
Exhibit A2	Bundle of documents, Submissions from Applicant, pp. 1 – 147.	27 March 2003
Exhibit A3	Bundle of documents	11 September 2003
Exhibit R1	Respondent’s Statement of Facts and Contentions	9 July 2003
Exhibit R2	Medical Assessment Report Form and File Review from Dr Chew, HSA	14 May 2003 and 9 July 2001
Exhibit R3	Medical Report of Dr George	25 April 2003
Exhibit R4	Medical Assessment Report Form signed by Dr Bahari	10 May 2002

ISSUES:

4.      The relevant issues in this matter are whether

(a)      the Applicant suffers from any medical conditions; and

(b)      whether such conditions give rise to incapacity of a temporary nature.

LEGISLATION

5.      The relevant legislation in this matter is the Social Security Act 1991 (“the Act”) and in particular sections 94, 601 and 603.

BACKGROUND

6.      The Applicant was born on 14 November 1955 in Pakistan and migrated to Australia in 1982.  The Applicant is divorced with two sons from the marriage who live with their mother.  The Applicant has been unemployed since his termination from City Rail on 19 June 2001, on medical grounds (T8, p14).  The Applicant stated that he has attended a one day workshop since that time and received a lump sum pay out from Colonial Insurers of $32,000 as a consequence of his medical termination.

7.      Radiological Investigations reveal the following:

·     Examination of lumbosacral spine on 7 October 1994 reveals a compression fracture of involving the body of L1.  The superior end plate is collapsed with separation of the small fragment anteriorly.  Narrowing of both the T12/L1 and L1/L2 disc spaces is noted (T3).

·     CT examination of lumbar spine on 21 December 2000 shows a very minor disc bulging at L5/S1 (T4).

·     CT examination of cervical spine on 24 February 2001 shows degenerative spondylosis particularly involving the lower cervical spine (T5).

8.      In a Confidential Medical Report on Incapacity, dated 6 June 2001, (T9), Dr Bulbulia described the Applicant’s conditions as:

·     Chronic back pain – disc lesions T12/L1, L1/L2 secondary to wedge fracture.

·     Degenerative spondylosis lower cervical spine-disc lesion

·     Chronic pain both feet.

The chronic pain was noted to be worse on lifting heavy objects, repeated spinal bending and prolonged walking/standing. The doctor also concluded that the Applicant would never be able to be employed in any form of paid occupation due to his incapacity.

9.      In a further certificate of incapacity, dated 7 June 2001, Dr Najeeb described the Applicant’s incapacities in similar terms to Dr Bulbulia, but also noted shoulder pain for five years (T9, p19).

10.     On 18 June 2001, a whole body bone scan (T11) was reported showing “[I]ncreased tracer uptake in the right eighth rib anterolaterally at the site of the recent fracture.  Arthritic/degenerative disease in both shoulder joints, right knee joint, wrists and mid tarsal joints bilaterally”.

11.     On 13 August 2001 Dr Chaudhary, a consultant psychiatrist, concluded that the Applicant was suffering from (T12, p27);

1.        Severe depression with sense of morbidity

2.        Anxiety disorder with tension, tremors, agitation, restlessness and sense of apprehension

3.        Chronic degenerative changes in cervical and lumbar spine

4.        Radiation of pain to both legs

5.Arthritic changes in other parts of the body involving various joints also limit his capacity to work.

Dr Chaudhary, in noting a history of much and varied analgesic medication with limited effect, commenced the Applicant on Prozac.

12.     In a medical report to Colonial Insurers on 15 October 2001, Dr Najeeb, the Applicant’s treating general practitioner of ten years, while noting the conditions that the Applicant suffered, described the Applicant’s symptoms, incapacities and treatments in the following terms (T13).

“Mr D’Souza is in constant pain affecting the neck, back, legs, knees, ankles, feet and shoulders.  He has problems sitting, standing and walking.  He cannot sleep at night.  His anxiety and depression symptoms cause him inability to concentrate or sit still for a moment.  He is always restless and anxious.

…

Mr D’Souza is currently on analgesics and antidepressants medication and receives acupuncture for symptom relief from time to time.  He is unfit for work”.

13.     In a Treating Doctor’s Report dated 26 February 2002 (T16) Dr Najeeb detailed the Applicant’s conditions as noted earlier and added both sleep apnoea and diverticular disease, while noting that no significant improvement was likely to occur in any of the conditions nominated, apart from sleep apnoea.

14.     A further x-ray of the cervical, thoracic, lumbosacral spine and pelvis was reported on by Dr Kitchener on 13 March 2002 (T18) as showing “extensive degenerative spondylotic changes in the spine with osteophyte formation and there is disc space narrowing at C5/6 and C6/7.”

15.     Dr Guirgis, a consultant orthopaedic surgeon, in a report dated 18 April 2002, assessed the Applicant’s disabilities at 25 points pursuant to the Schedule 1B Impairment Tables (T19).

16.     In a report dated 27 June 2002 (T23), Dr Wickramasuriya, a consultant respiratory physician, concluded that the Applicant clinically “has moderate to severe sleep apnoea”.

17.     On 11 November 2002, Dr Najeeb provided a medical certificate indicating that the Applicant was unfit for work from 14 November 2002 to 14 February 2003 because of nominated conditions (T31).  This certificate was not accepted by the Respondent (T32).

18.     On 12 November 2002, Dr Najeeb again provided a treating doctor’s report (T33), in which he nominated the same conditions and some symptomatology and treatment as in the earlier report of 26 February 2002.

19.     A further treating doctor’s report was completed by Dr Bulbulia on 25 November 2002 (T38), with the doctor indicating that all the material contained in the report had been previously submitted.

20.     The Applicant’s claim for Disability Support Pension (“DSP”) was rejected on 3 December 2002, as the impairment rating was less than 20 points, with no impairment rating given for either the spinal disorder, depression or sleep apnoea (T43).  It was noted by the ARO on 19 December 2002 (T48, p108) that the Applicant had been assessed for his back condition and depression at 15 points in his earlier application for DSP.  Nevertheless the ARO affirmed the decision to refuse a medical exemption from a Newstart activity test beyond 13 November 2002 (T48).

21.     Further treating doctor reports by Drs Najeeb and Guirgis were forwarded, on 26 February 2003, to the Respondent, with both reports restating what was in earlier reports (T50, T51).

APPLICANT’S EVIDENCE

22.     The Applicant told the Tribunal about the following conditions and incapacities that the conditions caused.

(a)      Anxiety and Depression – the Applicant had noticed it since 1991 and that it caused him to lack memory, lose concentration and that he tended to talk and do things too quickly.  He also suffered from lack of sleep and was often frustrated.  He had taken particular court orders against his wife, as she had done against him.  He had been treated by Dr Chaudhary, consultant psychiatrist, and had been assessed by Professor Ball and Dr George, both consultant psychiatrists.  He had ceased taking Prozac and was now taking Tryptonal at night.  He expressed some dissatisfaction with his return to the employment agency.

(b)      Back – the Applicant has suffered low back pain continually since his accident in 1994.  The pain had been radiating down both legs since August 2000.  He also has pain in his right hip for four years.  He takes two to three Panadeine Forte tablets each day.

(c)       Neck – the Applicant has suffered from a very painful neck for three to four years, with the pain always being present.  He has difficulty in the morning turning his head to the left and the right.

(d)      Shoulders – the Applicant has suffered painful shoulders for the last three to four years.

(e)      Sleep – he has had difficulties with sleep and after assessment at Concord Hospital Respiratory Unit, he was diagnosed in 2000 as having sleep apnoea, which makes him tired during the day.

(f)       Diarrhoea – he suffers from periodic diarrhoeal episodes for the last five years.

OTHER MEDICAL EVIDENCE

Dr George – Consultant Psychiatrist

23.     In his report, dated 25 April 2002 (Exhibit R3), Dr George concluded that the Applicant could not be described as being pervasively depressed. He stated that he had undoubtedly been reactively depressed with respect to his pain and to ongoing psychosocial stressors, relating to access to his children and ongoing difficulties with his ex-wife.

Professor Ball – Consultant Psychiatrist

24.     In his report dated 19 July 2002 (Exhibit A1), Professor Ball agreed with Dr Chaudhary that the Applicant suffers from major depression with associated anxiety, and that the Applicant has an obsessive personality.  Professor Ball considered the Applicant’s psychiatric conditions to be permanent, and that the psychiatric disabilities are permanent.

25.     A further CT Scan of cervical and lumbosacral spine was undertaken on 18 July 2003 and degenerative changes were reported as being present in the cervical and lumbosacral spine with a small posterior L4/5 disc bulge being noted (Exhibit A3).

Dr Bahari – Medical Advisor – Health Services Australia

26.     In a Medical Assessment Report dated 10 May 2002 (Exhibit R4), Dr Bahari assessed the Applicant as having an impairment rating of 10 points for degenerative changes in his neck and back and the pain arising from such.  Dr Bahari assessed a nil impairment rating for the psychiatric condition, relying upon the report of Dr George.  Dr Bahari, in relying upon the opinions of Dr George and an occupational physician, considered the Applicant fit for full time work and suited to clerical work.

Dr Chew – Medical Adviser – Health Services Australia

27.     In a report, dated 14 March 2003 (Exhibit R2), Dr Chew, in noting that a recent functional assessment of the Applicant found that he was capable of sedentary work and that a vocational assessment identified a lack of skills, assessed a 15 point impairment rating; comprising five points for his lower back and ten points for his depression.  In a further file review report, dated 9 July 2003, Dr Chew confirmed his earlier opinion.

Consideration and Findings

28.     In this matter the Tribunal has been particular in addressing the many medical reports and other assessments made over a period of time.  In observation, the Tribunal notes the somewhat inconsistent assessment of the Applicant impairment rating for disability support pension over time with ratings for psychiatric impairment varying between nil points and ten points and ratings for spinal degenerative conditions varying between nil points, five points and ten points.

29.     In assessing all the evidence before the Tribunal, the Tribunal makes the following findings of fact:

(1)      Conditions and incapacities suffered by the Applicant.

(a)Degenerative disease of the cervical spine causing constant pain and some limitations of neck movement.  Incapacities are constant (some daily variation) and have been present for three to four years;

(b)Degenerative disease of the lumbosacral spine causing pain in lower back and radiating to right hip and down both legs.  Pain is constant.  The back condition has been present since his work accident in 1994, with pain radiation commencing in August 2000.  Pain is constant and condition causes incapacity of limited lower back movements which prevents repeated bending or lifting and prolonged sitting and standing.  The Incapacities are constant, again with daily variation and have been present since 1994 and 2000 as stated.

(c)Anxiety and Depression – Present since 1991, associated with response to pain and psychosocial stresses associated with continuing domestic disharmony following divorce.  Incapacities nominated include lack of memory, loss of concentration, agitation, difficulties with sleep, frustration and an inclination to speak and do things too quickly.  Symptomatology constant over time and has been on medication for some years (Reports of Professor Ball and Dr Chaudhary, Exhibit A3).

(d)Diarrhoea – intermittent episodes over a five years period.  No change in symptoms.

(e)Sleep Apnoea – diagnosed with the condition of moderately severe sleep apnoea in 2000, which caused some increased tiredness during the day.  No change in symptomatology.

(f)Shoulders – some diagnostic evidence of degenerative osteoarthritis in shoulders and other joints, causing intermittent symptoms, mainly of pain.  No significant change in symptomatology or incapacity arising from this condition over time.

30.     In summary the Tribunal concludes that the Applicant suffers from those conditions and incapacities arising from such conditions as outlined.  Further the Tribunal finds that apart from minor daily variations, as occurs with all such conditions, the incapacities arising from these conditions have not varied in the period between examinations. Particular focus has been given to the period of 2000 onwards and including the period at which the determination was made not to accept the medical certificate and thereafter (T32).

31. The Tribunal notes the following statutory framework nominated in the Act.

(1)A recipient of Newstart Allowance must continue to satisfy the activity test as nominated in section 593 of the Act, with the following requirements detailed in section 601(1) of the Act being satisfied, unless the recipient is not required to so do as nominated in:

(i) section 602 of the Act (certain persons over 50).

(ii) section 603 of the Act (persons attending training camps in remote areas)

(iii) section 603A of the Act (special circumstances);

…

(2)      603C   Incapacitated person not required to satisfy activity test

603C(1)Subject to this Subdivision, a person is not required to satisfy the activity test in respect of a period if:

(a)throughout the period the person is incapacitated for work because of sickness or an accident; and

(b)the incapacity is caused wholly, or virtually wholly, by a medical condition arising from the sickness or accident; and

(c)       the incapacity is, or is likely to be of a temporary nature; and

(d)if this Subdivision had not been enacted and paragraphs 593(1)(b)(c)(d) and e were disregarded, the person would qualify for Newstart allowance; and (e) the person has, whether before or after the commencement of this section, given the Secretary a certificate of a medical practitioner, in a form approved by the Secretary, stating:

(i)        the medical practitioner’s diagnosis; and

(ii)       the medical practitioner’s prognosis; and

(iii)      that the person is incapacitated for work; and

(iv)the period for which the person is incapacitated for work; and

(f)the Secretary is satisfied that the incapacity has not been brought about with a view to obtaining an exemption from the activity test.

603C(2)In this section:

work, in relation to a person, means work (whether full-time, part-time, permanent or casual) that:

(a)is of a kind that the person could, in the Secretary’s opinion, be reasonably expected to do; and

(b)is for at least 8 hours per week at award wages or above.

32. The Tribunal, in noting the particular requirements of section 603C(1) of the Act, and that the requirements are cumulative, observes that the issue in this matter is whether it can be said that the Applicant’s incapacities are or are likely to be of a temporary nature.

33.     In addressing such a question the Tribunal is mindful that the issue relates to whether the incapacities are of a temporary nature not whether the medical conditions are temporary.  It is clear to the Tribunal that the medical conditions found to exist in this matter are clearly of a permanent nature.  The Tribunal has also been mindful to detail the nature of both the symptomatology and the incapacities arising from the nominated conditions in this matter.  The Tribunal has earlier in this decision concluded that the incapacities arising from the various conditions have been constant and therefore of a permanent, as opposed to temporary, nature.

34.     In so finding the Tribunal is mindful that permanent conditions as well as temporary conditions, and temporary conditions superimposed on permanent conditions can be associated with an incapacity of a temporary nature. The Tribunal has been careful to address all the evidence to ensure that such a circumstance did not exist in this matter.  In so stating the Tribunal is unable to point to any incapacity of a temporary nature which could be said to exist at or during the relevant period.

35. As a consequence of the Tribunal’s findings, the Applicant does not meet the requirements nominated in section 603C(1)(C) of the Act and as such his applications for exemption, as an incapacitated person not required to satisfy the activity test, must fail.

36. Further the Tribunal notes that the Applicant’s claim for DSP was denied on 25 November 2002. Any relief pursuant to section 603BA of the Act was not available to the Applicant, as, pursuant to section 593(1B)(d) of the Act the claim for DSP had been determined before the end of the period to which Newstart Allowance applied.

37.     Accordingly and for the reasons detailed the Tribunal affirms the decision under review.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of DR CAMPBELL, MEMBER

Signed:         A. Krilis
  Associate

Date of Hearing  11 September 2003
Date of Decision  223September 2003
Representative for the Applicant    Self Represented

Advocate for the Respondent        Mr Larcombe