DOMINIC ANDREACCHIO and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 815

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 815

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1865

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		DOMINIC ANDREACCHIO

Applicant

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

Respondent

DECISION

Tribunal Miss E A Shanahan

Date28 September 2009  

PlaceMelbourne

Decision For reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) E A Shanahan

Member

SOCIAL SECURITY -

Social Security Act 1991 s 94, Sch 1B

Social Security (Administration ) Act 1999 (“the Administration Act”)

REASONS FOR DECISION

28 September 2009   Miss E A Shanahan           

1. Mr Andreacchio applied to Centrelink for the disability support pension (DSP) on 18 July 2008. Centrelink is the service delivery agency for the Department of Families, Housing, Community Services and Indigenous Affairs. The medical condition that he found disabling was chronic back pain due to degenerative lumbar disc disease. It reduced his range of spinal movement, limited his sitting and standing time and required regular analgesia. Centrelink rejected Mr Andreacchio’s claim on 26 August 2008 because he did not satisfy s 94 of the Social Security Act 1991 (the Act). In particular, Centrelink found that Mr Andreacchio’s condition did not satisfy the s 94(1)(b) requirement of 20 impairment points; and that he did not satisfy s 94(1)(c), as a job capacity assessment had assessed him as being capable of working for 15 to 22 hours per week. A Centrelink authorised review officer (ARO) affirmed the decision on 9 February 2009.

2.      Mr Andreacchio sought a review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT). On 16 April 2009 the SSAT assessed Mr Andreacchio’s back condition as attracting 20 impairment points under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Act. Mr Andreacchio thus satisfied s 94(1)(b) of the Act. However, the SSAT agreed with the earlier job capacity assessment that the back condition did not prevent him from working for more than 15 hours per week. His application to the SSAT was therefore unsuccessful.

3.      Mr Andreacchio applied to the Administrative Appeals Tribunal (AAT) for a review of the decision on 4 May 2009.

4.      The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1976 (the T-documents). Mr Andreacchio was self-represented and Ms A Bramley appeared for the Secretary. Mr Andreacchio gave evidence.

5.      The issues for this Tribunal are the impairment point assessment (s 94(1)(b)) and Mr Andreacchio’s capacity for work (s 94(1)(c)), between 29 July 2008 and 28 October 2008. 

6.      Mr Andreacchio underwent three job capacity assessments between 12 May 2008 and 7 October 2008; all of which found him capable of working for more than 15 hours per week.  The last of these assessments assigned Mr Andreacchio’s conditions an impairment rating of 15 points.

7.      Dr S Turnbull, an occupational health physician, assessed Mr Andreacchio on 8 July 2009.  He assigned Mr Andreacchio’s conditions an impairment rating of 10 points based on a 50 per cent loss in the range of movement of his spine.  Dr Turnbull also considered that Mr Andreacchio was suffering from depression.  He advised that Mr Andreacchio undergo a psychiatric assessment and obtain appropriate treatment. 

8.      Two rehabilitation consultants evaluated Mr Andreacchio for functional capacity on 27 November 2008 (T9).  They found Mr Andreacchio had a 75 per cent reduction in the range of movement of his lumbar spine and a lesser reduction in the range of movement of his cervical spine.  These findings would equate to a 20 point impairment rating under the Impairment Tables.  The rehabilitation consultants considered that Mr Andreacchio would not seem to be able to do reliable work on a sustainable basis (T9, p51).  They considered further medical treatment pointless. 

9.      Given the nature of Mr Andreacchio’s condition, one would anticipate day‑to‑day fluctuation in the severity of his symptoms and in his evidence to the Tribunal he confirmed this fluctuation superimposed on a constant, dull, lower back pain.  Presumably, this fluctuation has resulted in the different impairment ratings: 10 points (Dr Turnbull), 15 points (JCA of 7 October 2008) and 20 points (the rehabilitation consultants on 20 November 2008 and the SSAT on 18 February 2009). 

10.     Centrelink did not receive a psychiatric opinion regarding the possibility of depression until 3 September 2009.  Mr Andreacchio had not acknowledged any depression, despite a family history of this condition; although he admitted to feeling flat at the SSAT hearing.  Dr Danette Thackwray provided a report dated 3 September 2009 outlining the symptoms of a depressive disorder ongoing for at least five years.  She reported that Mr Andreacchio’s general practitioner had prescribed antidepressant medication, which Mr Andreacchio took for only two to three days as it caused unacceptable side effects.  Dr Thackwray is to provide ongoing psychological counselling.

11.     In the past, Mr Andreacchio has suffered episodes of right shoulder pain, severely limiting the range of movement of this joint.  He first suffered these symptoms when he worked as a painter and coped by painting with his left hand.  He currently has a recrudescence of his right shoulder pain but has not received any treatment or investigation of the condition, although he was told many years ago that it was due to repetitive strain injury.  All the symptoms he described to the Tribunal indicated that, a rotator cuff injury was a more likely diagnosis.

12.     Mr Andreacchio has not worked since approximately 2004 except for volunteer work at the Ballarat Migration Resource Centre.  He enjoyed the work but has had to stop because of his back pain, difficulty driving his car and depression.  Mr Andreacchio can care for himself and is able to perform the activities of daily living. However, he is restricted with respect to lifting, sustained activities such as gardening, walking and sitting for extended periods; although these restrictions vary from day-today.  His sleep is interrupted by pain and he spends most of his nights in a recliner chair.  He ascribes his poor sleep to his back pain, although Dr Turnbull felt the interrupted sleep was a symptom of depression.

13.     Mr Andreacchio’s work experience is in house painting and as a restaurateur.

LEGISLATION

14. The relevant legislation is contained in s 94 of the Act. Section 94(1) provides that:

(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 …

Also relevant is s 94(2), which states that:

(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 independently of a program of support within the next 2 years; and …

Section 94(5) defines work:

(5)       In this section:

…

work means work:

(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

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

15.     The introduction to the Impairment Tables states that:

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. …

5.The condition must be considered to be permanent.  …

and more likely than not that it will persist for the foreseeable future.  Foreseeable future means lasting for more than two years. 

TRIBUNAL’S DELIBERATIONS

16.     In summary, Mr Andreacchio has three medical conditions:

·     degenerative lumbar and possibly cervical osteoarthrosis which is chronic, has been diagnosed, treated and stabilised, although fluctuating in severity of symptoms;

·     a depressive disorder, which on clinical grounds has been present for approximately five years but has only been recently diagnosed and not yet treated; and

17.     While the impairment rating of Mr Andreacchio’s back condition has varied greatly, the Tribunal accepts the opinion of Dr Turnbull, that the current rating (as at July 2009) when Dr Turnbull assessed him, was 10 points and was likely to have been the same during the period under consideration.  As the depression and right shoulder pain have not been fully diagnosed, treated and stabilised, it is not possible to assign an impairment rating for these conditions; although they would obviously affect his capacity for work. 

18. Therefore, Mr Andreacchio’s condition does not rate the 20 points necessary under the Impairment Tables and fails to comply with s 94(1) (b) of the Act. In the circumstances, the Tribunal does not need to consider whether Mr Andreacchio has a continuing inability to work under s94(1)(c).

19.     Accordingly, the Tribunal affirms the decision under review.  Mr Andreacchio did not qualify for the disability support pension between 29 July 2008 and 28 October 2008.  Depending on the assessment of his depression and his response to the treatment of this condition, he may well qualify for the disability support pension in the near future.

I certify that the nineteen (19) preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E A Shanahan

Signed:     Dianne Eva
  Clerk

Date of Hearing  28 September 2009

Date of Decision  28 September 2009 (Oral Decision)

Advocate for the Applicant       Self Represented

Advocate for the Respondent   Ms Ailsa Bramley, Centrelink Legal Services