Drummond and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1396

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1396

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200600757

GENERAL   ADMINISTRATIVE  DIVISION		)
Re		STEPHEN JOHN DRUMMOND

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr Kerry Breen, Member

Date1 June 2007

PlaceMelbourne

Decision The decision under review is affirmed.

(sgd) Kerry Breen

Member

SOCIAL SECURITY ‑ disability support pension – bipolar disorder with anxiety – other physical conditions ‑ impairment rating below 20 points

Social Security Act 1991 s 94(1)

Social Security (Administration) Act 1999 Schedule 2, sub-clause 4(1)

REASONS FOR DECISION

1 June 2007 Dr Kerry Breen, Member

1.      Mr Stephen John Drummond, who is 54 years old, suffers from longstanding bipolar disorder and a number of physical complaints.  He lodged a claim for disability support pension (DSP) on 2 March 2006.  The claim was rejected by Centrelink on 19 April 2006.  Centrelink is the service delivery agency for the Secretary to the Department of Employment and Workplace Relations (the Respondent).  After an authorised review officer from Centrelink affirmed the decision, Mr Drummond sought review of the decision by the Social Security Appeals Tribunal (SSAT).  On 28 July 2006 the SSAT also affirmed the decision.  Mr Drummond then sought review of the SSAT decision by this Tribunal.

2.      Mr Drummond stated that his primary medical condition, the bipolar state, should have been awarded 20 points under  Table 6 of the Tables For The Assessment Of Work-Related Impairment For Disability Support Pension (the Impairment Tables) contained in Schedule 1B of the Social Security Act 1991 (the Act).  He also stated that Centrelink and the SSAT did not take account the impact of his other physical conditions.  He further claims that the combination of these conditions renders him unfit to work.  The Respondent contends that the awarding of 10 points under Table 6 of the Impairment Tables was the correct decision; that his other conditions were correctly assessed; and that even had he been awarded 20 points, his conditions would not have prevented him from working.

ISSUES

3.      The issues before me therefore are:

·From what permanent medical conditions does Mr Drummond suffer?

·What impairment ratings do his conditions attract?

·And, if the total impairment rating is 20 points or more, what is the impact of these conditions on his capacity to work?

4.      The relevant assessment period is from 2 March 2006 and the subsequent 13 weeks.

LEGISLATION

5. The relevant legislation includes s 94(1) of the Act, the Impairment Tables contained in Schedule 1B the Act and Schedule 2, sub‑clause 4 of the Social Security (Administration) Act 1999 (the Administration Act).

6.      Section 94 of the Act provides:

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;

…

7. The Introduction to the Impairment Tables in Schedule 1B of the Act provides as follows:

…

4.        A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.  The first step is thus to establish a working diagnosis based on the best available evidence, Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

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

…

From what, if any, Permanent Medical Conditions does Mr Drummond Suffer?

8.      From Mr Drummond’s claim form and from the evidence provided by his treating doctors, the diagnoses under consideration are bipolar disorder with anxiety, an injury to his right shoulder, a back complaint, a neck complaint, a right knee complaint, visual difficulties and recurrent respiratory infections.  I will deal with each of these in turn.

bipolar disorder with anxiety

9.      Mr Drummond was first diagnosed with bipolar disorder in the late 1970’s.  For many years he attended Southern Mental Health outpatients for management of this condition.  He was hospitalised twice and was treated with electroconvulsive therapy.  Around 2000, he was advised that his condition was stable and that he should attend his general practitioner.  He has been treated for several years with a combination of lithium and Effexor.  He stated that the condition affects him at times via depression and at other times by manic activity.  There is evidence, from his current treating doctors and from a psychiatrist, Dr C. Seabridge, whom he last attended in 2001, attesting to this diagnosis and to an associated anxiety state.  The diagnosis is also supported by Dr D. Wong Shee, who assessed Mr Drummond on behalf of Centrelink on 4 April 2006.  Thus, it is clear that Mr Drummond does suffer from bipolar disorder with anxiety and that the condition is longstanding and thus permanent.

an injury to his right shoulder

10.     Mr Drummond stated that he injured his right shoulder in a fall from his bicycle in around 2004 and that it continued to bother him.  He said that a doctor had told him that they don’t operate for this anymore so he was putting up with some discomfort especially after lifting or repetitive work using his right arm (he is right hand dominant).  Mr Drummond provided three medical certificates covering the period between 28 January 2005 and 27 April 2005 (exhibit A1) attesting to a right shoulder acromio-clavicular joint sprain.  His treating doctor’s report (Dr F. Warburton) dated I March 2006 referred to him having strained his right shoulder in a recent job involving lifting and noted that he had seen a sports physician about his shoulder on six occasions.   Therefore, I accept that Mr Drummond injured his right shoulder more than two years ago and that the condition meets the definition of permanent.

a back complaint

11.     Mr Drummond stated that there are times that his back becomes painful, especially if he has to sit for long periods.   Dr Warburton’s report merges this complaint into a single heading of musculo-skeletal problems, while Dr Wong Shee’s report identifies complaints of a past whiplash injury and low grade intermittent back pain.  In a job capacity assessment report by Ms E. Elshel, dated 1 July 2006, there is mention of back pain since the 1980’s, which she considered to be permanent and also of neck pain which she considered permanent.  I therefore accept that Mr Drummond has a longstanding problem with his back, which is permanent.

a neck complaint

12.     Mr Drummond stated that he has had trouble with his neck after whiplash injuries experienced in motor accidents in 1976 and 1980.  His neck stiffens intermittently and gives him pain.  He stated that any tasks which occupy him for more than two hours may bring on these symptoms.  This complaint is not identified in Dr Warburton’s report.  Dr Wong Shee noted the whiplash history and wrote that Mr Drummond reported low grade intermittent pain.  I accept that Mr Drummond has a long standing problem with his neck relating to past whiplash injury.

a right knee complaint

13.     This complaint is touched on in Mr Drummond’s application for DSP.  He informed the Tribunal of an old football injury and stated that air-conditioned buildings made his knee ache and that it goes a bit stiff in cold weather.  This is not mentioned by Dr Warburton or Dr Wong Shee, while Ms Eshel records that he can walk without difficulty on a variety of terrains.  I accept that Mr Drummond occasionally has symptoms relating to his knees; but the evidence before me falls short of supporting a formal diagnosis of a permanent condition.

visual difficulties

14.     Mr Drummond explained that he experiences blurred vision, headaches and migraine when working under naked fluorescent light, under spotlights and with unshaded computer screens.  He also stated that these problems are much less if he wears multifocal glasses, but that at present he cannot afford to purchase these.  He gave similar information to Ms Eshel.  As no medical information is available to me, I am unable to reach a conclusion as to whether these visual difficulties are caused by a medical condition.

recurrent respiratory infections

15.     Mr Drummond stated that when working in air-conditioned buildings he has experienced up to four respiratory infections per year requiring antibiotic treatment.  However, he has not provided any medical evidence in support of this claim.  Therefore, I am unable to conclude that a permanent condition has been diagnosed.

16. Based on the above findings, I am satisfied that at the time of his claim, Mr Drummond suffered from a physical, intellectual or psychiatric impairment in accordance with s 94(1)(a) of the Act. The relevant conditions (bipolar disorder with anxiety, an injury to his right shoulder, a back complaint and a neck complaint) had been fully investigated, treated and stabilised and were likely to continue for at least two years. Therefore, these conditions are permanent and assessable under the Impairment Tables.

What Impairment Ratings Do His Conditions Attract?

17.     Mr Drummond submitted that I should accept the assessment of his most recent general practitioner, Dr E. Frank.  In her report dated 6 December 2006, Dr Frank stated that Mr Drummond’s bipolar condition should attract 20 points under Table 6 (Psychiatric Impairment) of the Impairment Tables.  Dr Drummond also submitted that the combined effect of his several physical conditions on his degree of impairment had not been taken into consideration.

bipolar disorder with anxiety

18.     There is clear evidence that Mr Drummond’s mental health deteriorated briefly early in 2006 but I am satisfied from the material available in the medical records of the Eastbound Medical Clinic, and from Mr Drummond’s own evidence, that this was a temporary deterioration brought about by his attempt to cease treatment with Effexor.  I have no doubt that during that short time Mr Drummond would have been incapable of any type of employment.  However, that is not the question I am asked to answer.  The question is whether Mr Drummond’s psychiatric condition as at the time of his application attracted any impairment points.  I conclude that Dr Frank’s rating of 20 impairment points was inappropriately influenced by the temporary change in Mr Drummond’s health.  I prefer the evidence of Dr Wong Shee in regard to his degree of impairment.  I accept that Mr Drummond continues to experience some depressive symptoms and symptoms of anxiety.  However, his symptoms, described by Dr Wong Shee as mildly depressed and by Mr Drummond himself as currently still feeling a bit low, sitting around at home doing nothing, do not reach the threshold needed to fulfil the requirements of 20 points under Table 6.  That section of Table 6 also requires ongoing treatment from a specialist psychiatrist.  Mr Drummond agreed that he had not seen Dr Seabridge since 2001 and that he did not wish to return to see Dr Seabridge.  Looking at the criteria for the various ratings under Table 6, I find that Mr Drummond’s condition at the time of his claim or within 13 weeks fitted most closely the criteria for a rating of 10 points.  I therefore conclude that the correct impairment rating as at the time of Mr Drummond’s claim was 10 points.

an injury to his right shoulder

19.     Mr Drummond described intermittent pain in his right shoulder after prolonged use.  This condition did not interfere with his daily activities.  He was not receiving treatment for it and had sought work and actually worked for a short time in 2006. Dr Wong Shee’s examination revealed no demonstrable evidence of loss of strength or mobility of the… right upper limb and Ms Eshel reported that Mr Drummond had voluntarily demonstrated no loss in ROM (range of movement) of the right upper limb in flexion and abduction.  Table 3 of the Impairment Tables is the appropriate table to assess this condition.  I conclude that the correct impairment rating for this condition at the time of Mr Drummond’s claim or within 13 weeks was nil points.

a back complaint

20.     Mr Drummond described pain after working for long periods.  Ms Eshel’s report states that he described being able to sit all day, stand for a few hours, walk 2‑3 miles and cycle for 3-4 kms.  Neither Ms Eshel nor Dr Wong Shee was able to demonstrate significant interference in the range of movement of his back.  Table 5.2 of the Impairment Tables is the appropriate table to assess this condition.  I conclude that the correct impairment rating for this condition at the time of Mr Drummond’s claim or within 13 weeks was nil points.

a neck complaint

21.     Mr Drummond reported that his neck stiffened up and gave pain now and again.  However, he was not receiving any treatment and neither Dr Wong Shee nor Ms Eshel could find any impairment in his range of neck movements.  Table 5.1 of the Impairment Tables is the appropriate table to assess this condition.  I conclude that the correct impairment rating for this condition at the time of Mr Drummond’s claim or within 13 weeks was nil points.

a right knee complaint

22.     As I have already concluded that this is not a diagnosed permanent condition, I cannot award any impairment points.

visual difficulties

23.     As a medical condition has not been diagnosed, I cannot award any impairment points.

recurrent respiratory infections

24.     As these are not permanent conditions, I cannot award any impairment points.

25. Therefore, the total impairment assessment for all Mr Drummond’s conditions is 10 points. As a result, Mr Drummond does not satisfy s 94(1)(b) of the Act. As Mr Drummond does not does not satisfy s 94(1)(b) of the Act, and therefore cannot satisfy s 94(1), I do not need to consider whether he had a continuing inability to work under s 94(1)(c) of the Act. Mr Drummond does not qualify for a DSP.

26.     However, as this matter was canvassed before the Tribunal, it may assist Mr Drummond to learn of the assessment of the evidence before me, so I will briefly address this final issue.

What is the Impact of these Conditions on his Capacity to Work?

27.     In considering this issue, the Tribunal needs to examine the past work record of Mr Drummond in relation to his longstanding medical conditions, his evidence in regard to the types of work he has recently sought and the evidence already outlined in regard to any impairment relating to his diagnosed and accepted conditions .

28.     The past employment record of Mr Drummond includes many years of service to South East Water (and previously MMBW), more recent (2003-2004) work as a delivery man before losing both his car and his driving licence, and a brief job packing Easter eggs in early 2006, before he experienced a temporary groin strain and an exacerbation of an old injury to his right shoulder.  His evidence indicates that he has quite conscientiously sought work as he has been required to do while in receipt of Newstart Allowance.

29.     I was impressed by Mr Drummond’s positive attitude to wanting to work but I can also understand that, in the light of his various physical complaints, his long experience of living with bipolar disorder, a degree of continuing depression and lack of success in finding suitable work, he would see DSP as a positive outcome.

30.     However, that being said, the evidence before the Tribunal does not support Mr Drummond’s contention that he is too impaired to work (or in the terms of the relevant law, has a continuing inability to work).  He has managed to work satisfactorily for long periods in at least two different categories of employment while suffering from treated bipolar disorder.  He has indicated to the Tribunal that he would prefer to be employed should suitable work be available.  Despite his discomfort with his physical complaints, he has sought work regularly while in receipt of Newstart Allowance.  The Act states that for Mr Drummond to have a continuing inability to work, his impairment must prevent him from doing any work of at least 30 hours per week in the next two years (or prevent him undertaking educational, vocational or on the job training during the next two years).  Thus even if Mr Drummond had satisfied the requirement of an impairment rating of 20 points under s 94(1)(b), he would not have met the continuing inability to work requirement under s 94(1)(c) of the Act.

31.     As I have determined that on the date of his claim and in the subsequent 13 weeks Mr Drummond had an impairment rating of 10 points, he does not qualify for DSP under s 94 of the Act.

DECISION

32.     The decision under review is affirmed.

I certify that the thirty‑two [32] preceding paragraphs are a true copy of the reasons for the decision of:

Dr Kerry Breen, Member

signed:   Olympia Sarrinikolaou

Clerk

Date of hearing:  27 April 2007

Date of decision:  1 June 2007
Advocate for the applicant:          Self‑represented
Advocate for the respondent:       Mr T. Noonan, Centrelink Legal Services Branch