Dostan and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1742

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1742

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200601097

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		ALEXANDER DOSTAN

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr R. McRae, Member

Date7 September 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) R. McRae

Member

SOCIAL SECURITY ‑ disability support pension ‑ cancellation ‑ lower back pain ‑ peptic ulcer ‑ fully treated and stabilised ‑ whether 20 impairment points ‑ Impairment Table 5.2 ‑ Impairment Table 11.1 ‑ Impairment Table 20 ‑ continuing inability to work.

Social Security Act 1991 s 94(1), (2), (3), (4), (5), Schedule 1B

Social Security (Administration) Act 1999 s 80(1)

REASONS FOR DECISION

7 September 2007 Dr R. McRae, Member       

1. Mr Alexander Dostan (the Applicant) seeks a review of a decision made by Centrelink on 16 March 2006 to cancel the Applicant’s disability support pension (DSP) from 27 April 2006 because he failed to satisfy s 94 of the Social Security Act 1991 (the Act).  Centrelink acts as the service delivery agency for the Secretary to the Department of Employment and Workplace Relations (the Respondent).  An Authorised Review Officer (ARO) affirmed the decision on 14 July 2006.  On 4 August 2006 the Applicant sought review of the decision by the Social Security Appeals Tribunal (SSAT).  On 10 October 2006 the SSAT also affirmed the decision.  This decision is the subject of the application before the Tribunal. 

2. The issue for the Tribunal is whether the Applicant was entitled to DSP according to the requirements of s 94 of the Act on 16 March 2006, the date of the cancellation of DSP.

3.        The Tribunal’s decision is that the Applicant is not entitled to DSP.  

4. The Applicant was self-represented. The Respondent was represented by Mr David Perdon, a Centrelink advocate. The Tribunal had before it documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑Documents) and two documents tendered by the Applicant (Exhibits A1 and A2). 

5.        The Respondent called Ms C. Symonds, a rehabilitation consultant with Advanced Personnel Management (APM), as a witness.  Ms Symonds is experienced in vocational rehabilitation services, with a background as a case manager for persons with an intellectual disability for the Department of Human Services.  She has been with APM from 2002, and has conducted hundreds of work capacity assessments in that time, including an associated physical assessment.  Her evidence was by telephone. 

BACKGROUND

6.        The Applicant is a 47-year old separated Yugoslavian man, who came to Australia in about 1980 and lives alone with his two dogs.  He studied to year ten.  The Applicant has had some 52 jobs including as a blacksmith, welder, painter, shelf-filler, car-detailer and metal worker.  Broadly-speaking, all the jobs have involved manual work.  He has reasonable literacy and language skills in English, Hungarian, Slavic and German.  The Applicant had received Newstart Allowance (NSA) since 1992.  He is currently receiving NSA, and relies on three-monthly medical certificates related to exemption from seeking employment. 

7.        Dr J. Hilal, examining medical adviser with Health Services Australia, provided a report dated 23 July 2001 (T31) of an examination of the Applicant.  At that examination Dr Hilal used Table 20 of the Tables for the Assessment of Work Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Act and assigned 10 impairment points to a back condition only.  A 10 September 2002 report from Dr P. Loewy, examining medical adviser with Health Services Australia, who examined the Applicant on 10 September 2002 (T36) suggests limited loss of movement at that time. 

8.        The Applicant lodged a claim with Centrelink for DSP on 25 September 2002, claiming lower back pain and a peptic ulcer.  A Centrelink officer determined the Applicant was qualified for DSP on 25 September 2002 (T39).  This decision was based on the 10 September 2002 report from Dr Loewy.  His report advised of a physical examination of the range of movement of the back.  Back flexion was restricted about 1/4; extension was restricted about 1/2.  No neurological signs were elicited in the legs.  Dr Loewy used Table 20 of the Impairment Tables (T36).  He assigned 20 impairment points for the chronic lower back pain.  No reason was provided for use of this Impairment Table.  Dr Loewy assigned nil impairment points for the peptic ulcer and recommended that the Applicant’s case be reviewed in two years.  

9.        Centrelink initiated a review of the Applicant’s status in 2005.  Dr W. Bartolo, the Applicant’s local general practitioner provided a Treating Doctor’s Report (TDR) dated 7 November 2005 (T42).  Dr Bartolo reported chronic back pain without sciatica as having expectant future treatment.  Dr Bartolo reported that the peptic ulcer may require further investigation.

10.      Centrelink had the Applicant assessed by Ms Symonds for a Work Capacity Assessment (WCA).  The assessment is dated 2 March 2006 (T44).  The decision to cancel the Applicant’s DSP on 16 March 2006 was based on the assessment by Ms Symonds. 

LEGISLATION

11. Section 94(1) of the Act provides that:

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…

12.      Paragraphs 4, 5, 8 and 9 of The Introduction to the Impairment Tables provide 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.   The first step is thus to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.   In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged. (emphasis added)

5.  The condition must be considered to be permanent.   Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.   This will be taken as lasting for more than two years.   A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

…

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.  The system‑specific Tables provide appropriate criteria with which to rate a disorder.  The procedure is to identify the loss of function, refer to the appropriate system Table and identify the correct rating eg. a person with a CVA (stroke) could be assessed under five different Tables: upper and lower limbs (3 and 4), neurological (8 and 9) and visual field disorders (15).  Table selection would depend on the functions affected.

…

13.Section 80(1) of the Social Security (Administration) Act 1999 provides that:

80(1)    If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

(a)       who is not, or was not, qualified for the payment; or

(b)       to whom the payment is not, or was not, payable;

the Secretary is to determine that the payment is to be cancelled or suspended.

APPLICANT’S EVIDENCE

14.      In oral evidence, the Applicant stated that he has back pain and a pinched nerve.  The back pain started about 20 years ago.  The Applicant stated that his back condition was getting worse over 20 years, and he was lucky to get by doing shopping.  He is anxious about disclosing his health information to employers.  He considers that his back condition will preclude any return to work. 

15.      The Applicant did not present any new medical evidence directly relevant to the time of cancellation of DSP.  A letter dated 19 April 2006 (T51) was sent to Centrelink by a Dr J. Erlich, who had been treating the Applicant since 1996.  Dr Erlich wrote that he is unfit for any type of gainful employment, and given that his condition has not improved over the past 10 years, I do not believe that there is any prospect of him ever improving…  The Applicant tendered an unsigned radiological report dated 5 October 2006 and marked Private and Confidential of a CT scan of lumbosacral spine (Exhibit A1).  The report was attributed to Dr H. B. Toh (qualifications not cited) and addressed to Dr Erlich of 78 Moreland Road, Brunswick.  The report indicated past Scheuermann’s disease, moderate to severe spinal canal stenosis at L1/2 secondary to posterior osteophytic lipping, and moderate L4/5 foraminal narrowing.  The Applicant tendered a Centrelink Medical Certificate dated 28 March 2007, signed by Dr M. Wise of 78 Moreland Rd, Brunswick (Exhibit A2).  The diagnoses of lumbar canal stenosis and degenerative changes lumbar spine were noted, and a prognosis of inability to work for > 24 months, with inability to lift > 5 kg, unable top [sic] bend/twist, needs to vary position frequently. 

16.      Under cross-examination the Applicant said that he had consulted a back expert, with his first X-ray some 32 years ago, and his second X-ray in October 2006.  He can’t work [his] ankles, is numb in all his lower limbs for two to four weeks a year, and has bruised heels.  He stated that he did not fall when he had completely numb lower limbs, and that he could ride a push bicycle when he had completely numb lower limbs.  His range of movement in his back is 0 to 2⁰, and he can only carry five to ten kilograms in weight.  He had not undertaken overseas travel due to financial causes.  With respect to household management, he vacuumed the house once each six months.  He undertook laundry using a washing machine whenever [he] needed to.  He used a shower over a bath, and had trouble with slip with back condition.  He eats from cans as he cannot cook.  He possesses a driver’s licence but no car, and occasionally rents a car.  He can carry shopping bags.  He tries to remain active, but rarely goes for a walk because he is lazy.  He tries to keep active daily.  He had spent time at a friend’s factory in Brunswick at which jack repairs were done, but it had been sold. 

17.      In relation to managing his back condition, when asked if his doctor had ever suggested a back brace, the Applicant said that he had never tried a back brace.  He had not attended for any further radiological investigation of his back.  He doesn’t take recommended or prescribed medications, including analgesics, as they affect [the] kidneys and liver.  He uses alcohol to assist with management of back pain.  In the past he has undertaken pain management for muscle condition, and inflammation.  He has undertaken physio, but found it had not helped.  He had not attended a recommended pain management clinic as it was not familiar to him.  He might use [pain management] if it did not use chemicals I disagree with.  He said the same applied to injections in the back.  He vacuums his house about twice a year, undertakes his own laundry with a machine when required, and eats from cans as he is unable to cook. 

18.      His first job was as a shelf-stacker, which involved rotation and night shifts which led to poor sleep.  He had worked with another person when employed as a car detailer.  He got by in this employment which occupied 60 hours a week and the money was poor and the work involved travel and petrol [expenditure].  He left the job as the employer wouldn’t keep promises on pay packet.  He had worked on the painting of staircases part-time for 18 months, and left because of a grumpy boss who wanted more work. 

19.      The Applicant was invited to contemplate the suggestions of several potential employment for which he might train or undertake.  He would probably not like to work as an interpreter and it would be hard to get right.  The medical cause preventing work as an interpreter was glasses.  A Console Operator’s job would cause too much back trouble and loss of concentration.  A Shop Sales Assistant position was problematic as his parents owned shops, and [he was] looking elsewhere for easy pickings, although he was not being fussy.  The medical cause preventing him from working as a Tram Ticket Seller was that it would be a chore for me to sit for two hours at most, and with respect to standing he was incapable due to my back condition.  He said that he would be fine to work as a telephone operator, but with a pinched nerve [he would get] a back attack. 

20.      The Applicant has experienced stomach pain for 18 years.  He avoids tomatoes as he is not supposed to eat them.  When asked how he managed at work, he stated Mylanta [ingestion] was ineffective.  He has a friend who vomited blood.  He feels pain but has never vomited blood. 

APPLICANT’S SUBMISSIONS

21.The Applicant submitted that he had the conditions. 

RESPONDENT’S EVIDENCE

22.      Ms Symonds stated that she spent between 30 and 60 minutes in her assessment of the Applicant at the Moreland Centrelink Offices for her Work Capacity Assessment (T44).  At the time she considered the medical service update provided by the Applicant and the TDR dated 7 November 2005 (T42), as well as information from the Applicant.  Her role was to consider the functional impact of the Applicant’s health condition, and to determine his capacity and to what level he could work.  She considered employment opportunities existed that would be within the Applicant’s capability, particularly when combined with intervention activities, vocational rehabilitation and workplace assessments and assistance.  She considered that the level of intervention activities required for the Applicant would be zero, considering his previous work history.  The work types she had recommended had a level of function that was light, there was an opportunity to change posture and avoid heavy lifting and manual handling tasks. 

23.      She restated that the Applicant refused to demonstrate his range of movement of his back, and she relied on the information he presented to her.  She considered that Table 5.2 of the Impairment Tables did not underestimate the level of functional impairment, and it was appropriate to use Table 5.2 as the relevant system specific Impairment Table rather than Table 20.  She considered the Applicant’s main barrier was his reduced motivation, and this could be addressed with a personal support program run by a range of government agency for up to two years. 

24.      Under cross-examination the Applicant asked Ms Symonds about his neck.  Ms Symonds stated she was unaware there was a diagnosed or treated neck condition. 

RESPONDENT’S SUBMISSIONS

25. The Respondent does not contest the rating of 5 points for the permanent physical condition of lower back pain as determined by the SSAT. The Respondent noted that the Applicant is able to maintain the performance of household duties. The Respondent submitted that the Applicant did not satisfy s 94(1)(b) of the Act.

FINDINGS

26.      The Applicant was unimpressed with suggestions of potential employment he might undertake when they were suggested. 

Lower Back

27.      There is a consistent history of lower back pain fluctuating in severity.  A TDR (T19) completed on 10 August 1998 by Dr Erlich indicates the chronic back pain has been extensively investigated.  It is unclear what this statement means, as the Tribunal anticipated several series of radiological examinations including plain radiographs, Computerised Tomographs and Magnetic Resonance Images, particularly given the serious nature of the fluctuations in symptoms.  Whilst Dr Erlich reported that the Applicant had seen several rheumatologists and the Applicant told Ms Symonds some previous physiotherapy was unhelpful, it is unclear what investigations were undertaken.  The Applicant testified the X-ray report of 30 January 1997 was the only previous radiological examination.  The radiological imaging evidence tendered at the hearing was unsigned but attributed to a named presumed medical practitioner but whose qualifications are not detailed.  It is addressed to a local general medical practitioner who has provided forms for the Applicant at various times.  It was dated 5 October 2006 (after the cancellation) and indicates moderate to severe L1/2 lumbar canal stenosis.  On balance it is likely that the report dated 5 October 2006 relates to the Applicant, and the radiological condition identified is that of the Applicant. 

28.      The Applicant’s evidence is of profound fluctuations in neurological symptoms originating from his lower back, including profoundly serious fluctuations.  There is no evidence of contemporaneous investigation or treatment escalation undertaken related to those serious fluctuation events. Dr Bartolo’s TDR dated 7 November 2005 was not profoundly different from the report (T31) by Dr J. Hilal on 23 July 2001.  The Applicant’s evidence is that he has not undertaken all suggested conservative treatment options.  It is difficult to consider the lower back condition is fully treated.  Given the level of fluctuation of the symptoms, it is difficult to consider the lower back condition to be stabilised.  Consequently no impairment rating can be assigned for the fluctuating symptoms. 

Lower Back Pain

29.      With respect to the continuous lower back pain, the evidence of the Applicant’s general medical practitioners suggests it is documented, diagnosed, investigated, treated as much as practicable and stabilised as much as practicable.  It appears permanent according to the requirements of Paragraph 5, of the Introduction to the Impairment Tables of the Act.  The Applicant’s evidence is that he has not undertaken all suggested conservative treatment options, including for some personal reasons.  A contemporaneous functional assessment related to the time of DSP cancellation has not been performed due to the Applicant not cooperating. 

30.      Ms Symonds’ WCA reports the Applicant’s refusal to cooperate with range of movement assessment of his back.  Ms Symonds used Table 5.2 of the Impairment Tables and allocated 5 impairment points for the back condition.  She justifies use of Table 5.2 of the Impairment Tables.  The Tribunal considers the lower back pain has been fully investigated, treated and stabilised at the time of DSP cancellation.  The Tribunal considers that the most appropriate Impairment Table is Table 5.2 as there is no evidence that use of this Table underestimates the functional impairment.  The Tribunal acknowledges that Ms Symonds is not a medical officer, but notes that her assessment of the Applicant’s impairment is consistent with the clinical findings of medical officers including medical practitioners who have completed TDRs for the Applicant.  The Tribunal notes the Applicant is able to undertake activities of daily living.  On the Applicant’s evidence, he is able to sit for two hours.  An Impairment Rating of 5 points according to Impairment Table 5.2 is reasonable. 

Peptic Ulcer

31.      The Applicant is the source of the consistent history of intermittent epigastric low-grade pain.  There is limited evidence related to peptic ulceration.  He reported to SSAT (T2) that at about 18 years of age (some 30 years ago) he had an X-ray with plaster to drink.  It is unclear what the nature of this investigation actually was, and the country in which it occurred.  In a Whole Person Assessment (T9) dated 20 May 1997, Dr P. Proimos notes the Applicant has refused a gastroscopic examination.  There is no objective evidence related to peptic ulceration, including at the time of cancellation of DSP.  The Applicant provided no new diagnosis, investigation or treatment in evidence.  In particular, Dr Wise’s medical certificate dated 28 March 2007 did not provide any assistance to the Applicant. 

32.      The Tribunal considers the peptic ulceration has not been fully investigated, treated and stabilised at the time of DSP cancellation.  Therefore, the Tribunal cannot assign an impairment rating to this condition. 

CONCLUSION

33. The Applicant has a physical impairment in the lower back which satisfies s 94(1)(a) of the Act which is a fully documented, diagnosed condition which has been investigated, treated and stabilised. The Applicant’s condition attracts an impairment rating of 5 points under the Impairment Tables. Therefore, he does not satisfy s 94(1)(b) of the Act. There is no requirement to consider s 94(1)(c) of the Act in the circumstances.

34.      There is no evidence of peptic ulceration at the time of DSP cancellation. 

35.      The Tribunal concludes that when Centrelink cancelled the Applicant’s DSP, the Applicant did not satisfy the requirements necessary to qualify for DSP. 

DECISION

36.      Accordingly, the decision of the Respondent to cancel the Applicant’s DSP was the correct decision.  The Tribunal affirms the decision under review.

I certify that the thirty‑six [36] preceding paragraphs are a true copy of the reasons for the decision of:

Dr.R. McRae, Member

(sgd) Lauren Spragg

Clerk

Date of Hearing:  14 May 2007

Date of Decision:  7 September 2007
Advocate for the Applicant:        Self‑represented

Advocate for the Respondent:    Mr D. Perdon, Centrelink Legal Services Branch