Ellul and Secretary, Department of Employment and Workplace Relations

[2006] AATA 488

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 488

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2006/4

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JOHN ELLUL

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

Respondent

DECISION

Tribunal The Hon R J Groom (Deputy President)

Date 6 June 2006

PlaceHobart

Decision The decision under review is affirmed

[Sgd R J Groom]

Deputy President

CATCHWORDS

Social Security – disability support pension – impairment – whether qualifies for pension within 13 week period – whether impairments have a combined rating of 20 points or more under Impairment Tables – decision affirmed.

Social Security Act 1991 – ss41(1), 94(1), Schedule 1B

Social Security (Administration) Act 1999 – Schedule 2

Re Goudge and Secretary, Department of Social Security (1989) 17 ALD 415

Re Batson and Secretary, Department of Family and Community Services [2004] AATA 1285

Re Secretary, Department of Family and Community Services and Pistone (2003) 37 AAR 334

Re Giddings and Secretary, Department of Family and Community Services [2003] AATA 893

REASONS FOR DECISION

6 June 2006 The Hon R J Groom (Deputy President)

1.      Mr Ellul is 62 years of age and resides in Malta where he was born.    Between 1968 and 1976 he lived in Australia before returning to his country of birth.  He spent most of his working life doing heavy manual work.    He now suffers back, and related pain as well as depression and hypertension.

2.      Mr Ellul applied for a Disability Support Pension (“DSP”) on 21 December 2004 but was unsuccessful.    He then appealed to the Social Security Appeals Tribunal (“SSAT”) again unsuccessfully.    Mr Ellul has applied to the Administrative Appeals Tribunal  for a review of that decision.

3. There is in existence an international agreement between Australia and Malta under the Social Security (International Agreements) Act 1999. It is not in dispute that if the applicant satisfies the requirements of s94(1) of the Social Security Act 1991 (“the Act”) he would otherwise be entitled to receive a DSP.

4.      The hearing was conducted by telephone link to Malta.   Mr Karmenu Attard acted as interpreter.  The applicant represented himself and Mr Aarberg, a Centrelink advocate, represented the respondent. 

5. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the “T Documents”). The applicant gave oral evidence. Both he and Mr Aarberg made oral submissions.

The Issue

6. The issue to be determined by the Tribunal is whether the applicant satisfies the requirements of s94(1) of the Act.

The Legislation

7. Section 94(1) of the Act relevantly provides as follows:

“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 20points or more under the Impairment Tables;       and

(c)       one of the following applies:

(i)   the person has a continuing inability to work;

...”

8. “Impairment Tables” means the Tables in Schedule 1B of the Act (see s23). The introduction to Schedule 1B provides, in part, 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.

6.        In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

what treatment or rehabilitation has occurred;

whether treatment is still continuing or is planned in the near future;

whether any further reasonable medical treatment is likely to lead to         significant     functional improvement within the next 2 years.

In this context, reasonable treatment is taken to be:

treatment that is feasible and accessible ie, available locally at a reasonable       cost;

where a substantial improvement can reliably be expected and where the           treatment or procedure is of a type regularly undertaken or performed, with a     high success rate and low risk to the patient.

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person.  In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.

In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:

evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and

indicate why this treatment is reasonable; and

note the reasons why the person has chosen not to have treatment”.

Applicant Must Qualify Within 13 Weeks of Date of Claim

9. Section 94(1)(b) provides that a person must have an impairment which rates 20 points or more under the Impairment Tables. In addition, at least one of the matters set out in s94(1)(c) of the Act must be satisfied.

Section 41(1) of the Act is in the following terms:

“Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person’s start day in relation to the social security payment”.

10. Clauses 3 and 4 of Schedule 2 of the Social Security (Administration) Act 1999 relevantly provide as follows:

“Start day-general rule

3.(1)      If:

(a)       a person makes a claim for a social security payment;  and

(b)       the person is qualified for the payment on the day on which the claim        is made;  the person’s start day in relation to the payment is the day on which     the claim is made.

Start day-early claim

4.(1)       If:

(a)       a person (other than a detained person) makes a claim for a relevant        social security payment;  and

(b)       the person is not, on the day on which the claim is made, qualified for       the payment;  and

(c)       assuming the person does not sooner die, the person will, because of       the passage of time or the occurrence of an event, become qualified for the      payment within the period of 13 weeks after the day on which the claim is      made;  and

(d)       the person becomes so qualified within that period; 

the claim is taken to be made on the first day on which the person is                   qualified for the social security payment.

4.2      For the purposes of subclause (1), the following provisions have effect:

(a)       subject to paragraph (b), any social security payment, other than newstart allowance or special benefit, is a relevant social security payment”.

11.      The legislature clearly intended that if a person is to qualify for payment of a “social security payment”, which term includes payment of a DSP, the applicant must be qualified at the date of the claim or within a period of 13 weeks after that date.  There is no provision in the legislation for a start date for payment beyond that period.  If a person becomes qualified after the 13 week period has expired then a fresh claim is required.

12. It follows that the Tribunal has to be satisfied that the applicant met the requirements of s94(1) at the date he applied for the DSP or within a period of 13 weeks following that date (see Re Goudge and Secretary DSS [1989] 17 ALD 415 at p.419, Re Batson and Secretary DF&CS [2004] AATA 1285; Re Secretary DF&CS and Pistone (2003) 37 AAR 334 and Giddings and SDF&CS (2003) AATA 893).

13.      Mr Ellul lodged his claim for a DSP on 21 December 2004.  The 13 week period expired on 23 March 2005. 

The Evidence

14. The Tribunal has considered the evidence given by Mr Ellul at the hearing as well as the various medical reports and other written material in the T Documents.

15.      The evidence establishes that Mr Ellul has:

a)        a long history of worsening musculo-skeletal pain,  

b)        depression and   c)           hypertension.

17.      Mr Ellul contends that his conditions are serious and permanent and because of them he has a continuing inability to work.  In a letter to Centrelink dated 27 July 2005 he stated:

“... I feel that my condition both mental as well as physical are of a permanent nature.  I have been suffering from chronic myalgia as well as sciatic nerve radiculopathy due to degenerative L4 L5 disc lesion for many years as a condition that also gives me paresthesia-numbness-of the right lower limb besides also suffering from Essential Hypertension which tends to be refractile to treatment with the conventional anti hypertensives.  The orthopaedic/neurological condition had also not had any appreciable improvement with physio and hydrotherapy and notwithstanding that I had on several occasions tried to rehabilitate myself and take up jobs entailing different exertions I was not able to continue in any of them on different occasions on medical advice.

Moreover my physical disability had also precipitated a mental state of a depressive/anxiety type which had rendered me incapable of coping with everyday activities due to my lethargy, lack of concentration and according to my consultant psychiatric opinion my hypochondriasis.  Lately I am also suffering from an altered sleep pattern that interferes with my daily activities even the mildest and least exerting.  I would also like to point out that I have already been awarded a disability pension by the Maltese Govt”. (T Documents – T9)

18.      Dr George Debono of the Alhambra clinic stated in his medical report dated 3 June 2004:

“This is to certify that I have examined Mr John Ellul I.D.no 261244 Mr Ellul is 61 years old with severe arthralgia of many years duration which has increased in severity.  Now he is complaining of being depressed as, though he wishes to keep on working, he is finding it impossible to cope.  He is a genuine case and at this point I consider him unfit for further employment”.  (T4)

19.      In a report dated 9 September 2004, Dr J P Savona said that Mr Ellul:

“Has been labouring with an arthralgia in various joints especially bad in both shoulder girdles.  He is further more receiving treatment for an affective disorder in view of the fact that he has had to carry on with duties when unable to do so.  In the circumstances he is being advised to give up his employment”.  (T4A)

In a further report on 30 November 2004 Dr Savona said:

“To state that Mr Ellul has had to be relieved of his duties on an average of four times a year over the past four year because of arthralgia and lately because of an affective disorder”.  (T4C)

20.      Professor C Hallia expressed the following opinion in his report of 24 November 2004:

“Mr John Ellul (d.o.b. 17 March 1944) has a long history of back pain with radiation to the right lower limb.  Symptoms tends to get worse on movement, particularly on bending, and lifting heavy objects.  Clinically he has reduced straight leg raising on the right side and reduced knee jerk on the same side.  Then is impaired sensation on the lateral aspect of the thigh.  Mr Ellul also suffers from hypertension.  X-rays show evidence of lumbar spondylosis with disc disease and facetal joint osteoarthritis.  Mr Ellul’s symptoms limit him from carrying out gainful employment”. (T4B)

21.      Dr Michael Stewart in his report of 2 June 2005 stated of Mr Ellul:

“He has done manual work all his life and has a long history of worsening musculoskeletal pain.  He complains of pain in his neck and back with radiation down his right leg.  He also complains of pain in his shoulders and elbows.  He has previously been treated with anti-inflammatory medication and now takes paracetamol for pain relief.  His doctor notes that there have been four instances a year when he has been unable to work because of his musculoskeletal pain.

X-rays have shown evidence of lumbar spondylosis and disc disease and facetal joint osteoarthritis.

He is reported to have lost one quarter range of motion in his back.  Neck and arm movements are within normal limits.

This is a condition that could probably benefit from manual therapy such as physiotherapy and hydrotherapy and an exercise program.

This condition is considered temporary for the purposes of this assessment until it has been fully treated and stabilised.

He has also developed a mood disorder thought to be reactive to his physical condition.  He has not had any sustained treatment for this condition and would benefit from further assessment and treatment.  This condition is also considered temporary pending further intervention.

He is temporarily unfit for any kind of work but with appropriate treatment and improvement in his symptoms he should become fit for light full-time work”. (T7)

22.      In its decision of 23 November 2005 the Social Security Appeals Tribunal said:

“8.       There is no dispute Mr Ellul  suffers from the effects of musculoskeletal pain.  This is said to have caused loss of ¼ range of movement and he suffers from chronic pain.

9.        The Tribunal took the view, however, that despite the amount of pain he was reported to be in, Mr Ellul appeared to take very little analgesic medication, and had not been referred to any orthopaedic or neurosurgical specialists or to a pain management clinic.  Considering this was a reasonable course of action, the Tribunal took the view that the condition of musculoskeletal pain was not fully investigated, treated and stabilised and as such could not be considered permanent.

10.      The Tribunal accepts that Mr Ellul has ongoing impairment in terms of mental function, but noted he had only taken antidepressants for a short period and there was no evidence that he had undergone any degree of sustained and intensive counselling, and so this too was considered to be temporary on the basis that it was not fully treated and stabilised.

11.      The Tribunal was of the opinion that based on the evidence to the effect that Mr Ellul’s hypertension was mild that it was of minimal functional impact.

12.      The Tribunal considered Mr Ellul’s leg pain, and took the view that as it was described as ‘sciatica’ it should be rated not as a separate entity, but under the back condition as this was the point of origin of this pain, otherwise the same condition would be rated twice”. (T2)

23.      The Tribunal notes that following the SSAT decision Mr Ellul was referred to an orthopaedic specialist.  He saw Orthopaedic Consultant Mr Ray Gatt who provided a report dated 6 January 2006. (T1)  Mr Gatt’s report is detailed in the report of Dr V C Moran dated 7 January 2006 (obviously incorrectly dated 7 January 2005).

24.      After considering all of the evidence the Tribunal is satisfied that Mr Ellul does suffer back pain with sciatica and arthralgia as well as depression and hypertension. 

25. The principal issue in this application however is whether Mr Ellul has impairments which together rate the 20 points or more needed to satisfy s94(1)(b) of the Act.

26.      The Tribunal refers again to Part 4 of the Introduction to the Impairment Tables and in particular to the following words:  “For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”.

27.      In the Tribunal’s view Mr Ellul’s most serious condition is his worsening musculoskeletal pain.  Indeed the other conditions of depression and hypertension seem to have been caused, at least in part, by the serious musculoskeletal pain he suffers.  Mr Ellul, of course, has undertaken heavy manual work over a long period and it is not altogether surprising that he suffers from back and related pain.

28.      Dr Stewart said “x-rays have shown evidence of lumbar spondylosis and disc disease and facettal joint osteoarthritis.  He is reported to have lost one quarter range of motion in his back.  Neck and arm movements are within normal limits”.  (T7)  He said in his report “This condition is considered temporary for the purposes of this assessment until it has been fully treated and stabilised”.  (T7)  The tribunal accepts the accuracy of those statements.

29.      The Tribunal notes, as previously mentioned, that Mr Ellul has now been examined by an Orthopaedic Specialist.  It also appears from Dr Moran’s report that he has received advice from a pain clinic although a report from that clinic was not tendered in evidence.  The wording of Dr Moran’s report suggests that these additional steps may have been taken in response to the SSAT decision rather than as part of the ongoing treatment of Mr Ellul.

30. It is necessary for the Tribunal to look back to the time of the claim and the 13 week period thereafter in order to determine whether the Tribunal is satisfied that, at that time, Mr Ellul’s conditions had been treated and stabilised to the point where they could be said to have had the necessary degree of permanence, as required by the Impairment Tables in Schedule 1B of the Act.

31.      After considering all of the evidence the Tribunal is not satisfied that in the 13 week period following the claim for DSP the applicant’s musculoskeletal pain had been “treated and stabilised”.  The Tribunal accepts Dr Stewart’s view that “... this is a condition that could probably benefit from manual therapies such as physiotherapy and hydrotherapy and an exercise program”. (T7) 

32.      The Tribunal notes that following the original decision by Centrelink to reject the claim for DSP, Mr Ellul and Dr Moran refer to Mr Ellul having undertaken various types of “therapy”.    However there are no reports or other evidence detailing where and when that treatment was given or who provided it.   The Tribunal is not satisfied on the evidence that reasonable treatment of that kind had occurred at the relevant time.  The condition therefore cannot be assigned a rating under the Impairment Tables.

33.      There were few references in the evidence to Mr Ellul’s hypertension.  The Tribunal is satisfied that it is relatively mild in degree and not of sufficient functional impact to achieve a points rating under the Impairment Tables.

34.      The evidence concerning Mr Ellul’s depression does not satisfy the Tribunal that it had been “diagnosed, treated and stabilised” at the time of the claim or within the13 week period following the claim.  The evidence does not establish that Mr Ellul had received reasonable treatment, including sufficient psychiatric treatment, counselling and medication up to that point in time.  The Tribunal is therefore not satisfied that the condition of depression should be given a points rating under the Impairment Tables.

35. The Tribunal is, of course, bound by the provisions in the Act. It accepts that Mr Ellul is suffering serious back pain with sciatica and arthralgia and also from conditions of depression and hypertension. However, as has been mentioned, the applicant must satisfy the Tribunal that at the time of the claim or within the following 13 weeks the conditions were investigated, treated and stabilised. If reasonable treatment is not rendered until after the 13 weeks, and at that point the condition become stabilised, then a fresh claim is required. The Tribunal makes no findings as to whether a fresh claim would succeed.

Conclusion

36. It follows that the applicant’s conditions do not satisfy the threshold of 20 points as required by s94(1)(b) of the Act.

37. As the applicant has failed to satisfy s94(1)(b) of the Act it is not necessary to consider the requirements of s94(1)(c) of the Act.

Decision

38.      The decision under review is therefore affirmed.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  11 April 2006
Date of Decision   6 June 2006
Counsel for the Applicant          Applicant appeared on his own behalf
Solicitor for the Applicant          
Counsel for the Respondent     Mr B Aarberg
Solicitor for the Respondent      Centrelink Advocate