Elmir and Secretary, Department of Employment and Workplace Relations

[2006] AATA 746

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 746

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1552

GENERAL ADMINISTRATIVE DIVISION		)
Re		ELMIR ELMIR

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr Ian Way, Member

Date1 September 2006

PlaceSydney

Decision The Tribunal affirms the decision under review.

[Sgd] Mr Ian Way, Member

SOCIAL SECURITY – disability support pension – impairment rating – decision under review affirmed.

Social Security Act 1991 (Cth) s 94(1)(a), (b) and (c), s 94(2)(a) and (b) and s 94(5)

REASONS FOR DECISION

Mr Ian Way, Member

1.      This is an application by Elmir Elmir (“the Applicant”) for review of a decision of the Social Security Appeals Tribunal (“the SSAT”) made on 17 November 2005.  The SSAT affirmed the decision of a Centrelink Authorised Review Officer (“ARO”), dated 13 September 2005, to affirm an original decision of Centrelink, dated 20 July 2005, to cancel payment of disability support pension (“DSP”) to the Applicant.

2. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and other documentary evidence marked as Exhibits A1 to A14 for the Applicant and R1 to R10 for the Respondent.

3.      The Applicant was self represented and gave oral evidence.  Mr J Kenny represented the Respondent.

background

4.      The Applicant was born on 20 March 1966 in Lebanon and came to Australia in 1987 where he found work initially in a factory and then in a bakery as a pastry cook.  He ceased full time work in 1991 and commenced to receive job search allowance, (later Newstart Allowance) from 20 September 1991.

5.      On 13 May 1996, the Applicant claimed DSP on the basis that he suffered from chronic fatigue syndrome, chronic hepatitis B, chronic ulcers and leg weakness.  This claim was rejected because the Applicant was assessed as only having an impairment of 10 per cent.  On appeal to the SSAT, this decision was set aside and DSP was granted.  The SSAT found that the Applicant suffered from chronic fatigue syndrome such that he had an impairment rating of 20 per cent and possibly 30 per cent and that because of his chronic fatigue syndrome he had a continuing inability to work.  The SSAT also stated in respect of the Applicant’s inability to work that this was

“Compounded by his other disabilities, namely chronic liver dysfunction, asthma, chronic knee and limb pain, dyspepsia, headaches, asthma (sic), hearing loss, anxiety and depression.  The fact that these conditions have not been fully diagnosed, treated and stabilised does not prevent them from being factors in the Applicant’s continuing inability to work.”

6.      The Applicant’s condition was reviewed in January 2001 by Dr Law from Health Services Australia (“HSA”).  Dr Law assessed the Applicant’s combined impairment at 10 per cent (because of fatigue) with him being fit for light sedentary duties on a full time basis.  Notwithstanding this assessment the Applicant’s DSP was not cancelled.

7.      The Applicant’s DSP was medically reviewed in July 2005.  Dr Arad (“HSA”) assessed the Applicant as having an impairment rating of 10 points because of his hepatitis B and 5 points because of his asthma.  He assigned a nil rating for back pain, depression, hearing and redness in eyes and found the Applicant suitable for 30 hours per week of low stress work.

8.      Following Dr Arad’s report, the Applicant’s DSP was cancelled on 20 July 2005, this decision being affirmed by an ARO on 13 September 2005.

9.      The ARO in reviewing the Applicant’s case made the following comments:

“Mr Elmir has appealed against the cancellation of his DSP. Understandably he is upset that he was assigned an impairment rating of 30 points in 1996 and found to have a continued inability to work, however has now been found fit for work with a reduced impairment. He states his condition has worsened since 1996.

…

Alarmingly customer was medically assessed by HSA in January 2001 prior to an overseas trip. Customer was assessed as having an impairment rating of 10 points only and an ability to participate in suitable full time work, yet the customer remained current on DSP when medically he was not qualified. I have attempted to ascertain why but have been unable to find an answer. The 2001 report has reached a similar conclusion to the 2005 report, done by different doctors.”

issues and legislative framework

10.     The issues in this matter are whether the Applicant meets the criteria for qualification for DSP and whether he has a continuing inability to work.

11.     This matter is to be decided within the provisions of the Social Security Act 1991 (“the Act”).

12. The Act relevantly provides at s 94(1)(a), (b) and (c), s 94(2)(a) and (b) and s 94(5):

“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; 

(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

94(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 

(b)either: 

(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or 

(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years. 

94(5 )In this section: 

training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments: 

(a)education; 

(b)pre-vocational training; 

(c)vocational training; 

(d)vocational rehabilitation; 

(e)work-related training (including on-the-job training). 

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.”

13. The Act also makes provision for assessment of work related impairment for DSP by means of various Tables for Assessment in Schedule 1B. Schedule 1B makes it clear that an impairment rating can only be assigned after a comprehensive history and examination, and for a rating to be assigned to a particular condition, that condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. Furthermore the condition must be considered to be permanent and once the 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, taken to be that it will last 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 two years.

applicant’s evidence and submissions

14.     The Tribunal asked the Applicant to describe his health concerns, putting them in order of importance to the best of his ability.  He said his health concerns, in order, were:

·     Depression;

·     Problems in all of his joints;

·     Redness and pain in his eyes;

·     Pain in his right leg because of disc problems in his back;

·     Pain in his back;

·     Hepatitis;

·     Asthma;

·     Difficulty in hearing;

·     Headaches; and

·     Waking in the morning and not being able to get up and feeling lazy

15.     The Applicant said he was taking Lexapro for depression and he thought his depression was making his tiredness worse.  He is also taking anti-inflammatory tablets similar to Viox for pain in his joints and back, uses a puffer (Seratide) for asthma and Panamax for his headaches.  He said he could see “okay” and was not using any medication other than drops for his eyes; that his hepatitis made him lazy but he was not taking any medication for this condition; and that he was not worried about his hearing.

16.     The Applicant said he did some gardening, would drive to the shops every second day or so, help with the shopping, went to prayers at the nearby Mosque every Friday, watched T.V. for two or three hours per day, visited friends on a Sunday and enjoyed playing with his children in the backyard.  He said he was now helping a friend who owned a panel beating shop by taking scrap metal to the tip (for a fee).  He said he drove the tow truck, for which he had a licence and helped load the truck but this would only amount to an average of two hours work per week.  He said he also visited his friend’s shop often and tried to do what he could in the shop.  He said he was not looking for any other sort of work.

17.     It was the Applicant’s evidence that walking was uncomfortable because of his leg pain.  He said he had come to the hearing before the Tribunal by train and walked from the station to the train taking breaks.  He said he could still bend over and kneel, reach up and squat albeit with pain and that he was comfortable sitting for up to an hour.  In respect of driving, the Applicant said he could drive comfortably for about 20 to 25 minutes and that he could load the truck he drives but needs to take his time.  He said he also drives his own car, both the car and truck having manual transmissions.  He said he can not stand reading, can use the telephone without any problems, can attend to his own dressing and his own personal hygiene, although his wife helps him sometimes.

18.     The Applicant said he had been overseas twice in recent years, the whole family going.  He said he went by plane, the long trip not being easy but he took medicine to sleep on the floor of the plane.

19.     In respect of his house, the Applicant said that he recently bought his current home, that he did some work in respect of putting up shelves, painting and minor maintenance but his wife did all of the housework.

20.     The Applicant told the Tribunal that he could not accept that his DSP had been cancelled.  He said he had been given an impairment rating of 30 points in 1996, that his condition had got considerably worse in the ensuing years, particularly in respect of his asthma, joint problems, disc problems, hearing and inability to concentrate.  He said he had tried to be honest in stating his problems and his level of impairment warranted payment of DSP.  He said he would love to work or undertake training for work but felt he could not do so because of his health.

respondent’s submissions

21.     The Respondent made the following submissions:

“42.      Mr Elmir should never have been granted DSP in 1996 and his pension should have been cancelled in 2001.

43.      He does not now have the minimum of 20 impairment points required by section 94.

44.      There is no adequate radiological evidence for injury or illness which would correspondent with his stated level of muscle and joint pain. The ranges of movement in his spine are normal or nearly normal. The symptoms may limit endurance and restrict Mr Elmir to lighter work at aware wages. A nil rating under Table 5.2 is appropriate.

45.      Mr Elmir’s minor asthma symptoms are adequately treated with medication, are easily tolerated and have no appreciable effect on his ability to work.  This is very apparent from the rehabilitation consultant’s report.  He has never required hospitalisation, does not require a nebuliser and there are no recent lung function test reports.

47.      The SSAT (2005) error to award 10 points under Table 20 for asthma. A nil rating is more appropriate. And note the SSAT’s doubts about Mr Elmir’s credibility [T2, 9, para 31]. If the condition requires a rating, Dr Arad’s assessment of 5 points under Table 21 (intermittent conditions) is far better calibrated to the facts than the SSAT’s rating. Dr Ong, the treating doctor, would give nil points for asthma.

48.      Although a recent audiology report has been invited from the applicant, there is no current report from which a rating for hearing loss may be calculated. Moreover, Mr Elmir reports functional difficultly in noisy environments only.

49.      While 10 points have been assessed under the diagnosis of “hepatitis” (Table 11.1), this is really in recognition of the fatigue which Mr Elmir experiences and the causation of which experts have so far not explained. As the blood tests, show, the only infections for which Mr Elmir has been positive were past infections. There was no evidence of hepatitis A and C, and the hepatitis B for which he was antibody positive was both resolved and with immunity, Dr Ong, the treating doctor, would give nil points for hepatitis.

50.      Diversity has pervaded the manner of diagnosis and rating the fatigue in the past. In the wake of Dr Rahme’s speculation about chronic fatigue syndrome (CFS), Dr Law accepted 10% under former Table 25. Dr Maroun and the SSAT in 1996 turned the cautious speculation of the specialist into a firm diagnosis of CFS which the SSAT rated at 20% under former Table 25.

52.      In summary, Mr Elmir’s impairment rating is only 10 points (or nil according to the treating doctor). HSA doctors Law (2001) and Arad (2005), the SSAT (2005) and rehabilitation consultant Racheal Shipton (2006) have all considered that Mr Elmir does not have a continuing inability to work for the cogent reasons summarised above. They consider that within 2 years he could be rehabilitation by education, vocational or on the job training into full time light work which respects his physical limitations.

53. Finally, in contrast to the earlier (1996) SSAT’s consideration of every undiagnosed, untreated, unstabilised and unrated minor condition as contributing to a continuing incapacity to work, the respondent points out that section 94 currently requires that it be the rated impairment which must, of itself, be sufficient to prevent Mr Elmir from doing any work in Australia of at least 30 hours per week at award wages or above or from undertaking educational, vocational or on-the-job training during the next 2 years.

54.      Mr Elmir has already embarked upon his own program of workforce re-integration and reconditioning. He is demonstrating that he has workforce capabilities through his work in the friend’s garage, the friends tow truck and the improvement of his own home.”

consideration

22.     In the first instance, the Tribunal has looked carefully at the Applicant’s claimed conditions and taken into consideration the medical reports, the oral evidence of the Applicant and the submissions of both parties in assessing each of these conditions.

23.     In respect of depression, the Tribunal notes the most recent medical evidence of Dr Michael Ng, consultant psychiatrist (Exhibit A14), Dr Ng reports seeing the Applicant on 27 July 2006, that he has been taking Lexapro 10mg nocte in the past three weeks and that he will see the Applicant again in October.  Dr Ong, the Applicant’s general practitioner, reports on 10 April 2006 (Exhibit R8) that the Applicant’s depression is permanent, that the Applicant has failed to follow recommendations of a psychiatrist to whom he had been referred (Dr Roberts) and that the condition had an impairment rating of nil and would not prevent him from working or undertaking training.  Rachel Shipton (Rehabilitation Consultant), on 13 April 2006, considered the condition to be temporary with mild but regular symptoms causing minimal interference with every day functions.  Dr Arad in his assessment dated 19 July 2005 gave an impairment rating of nil and in so doing noted that the Applicant, at that time, was not seeing a psychologist or a psychiatrist.  In view of the medical advice from Dr Ng and Miss Shipton’s opinion, the Tribunal is satisfied that the Applicant’s psychiatric condition is still in the process of treatment and investigation and therefore cannot be assessed in respect of an impairment rating or in respect of a continuing inability to work.  The Tribunal notes that the Applicant attributes part of his lethargy to this condition.

24.     Turning then to the Applicant’s claimed joint problems and pain in the right leg.  There is no medical evidence in respect of muscle or joint pain and clearly, putting aside his back pain (which is dealt with below), there is no evidence of any credible diagnosis, or investigation of the claimed conditions.  As such the Tribunal is satisfied the claimed condition of joint pain and leg pain cannot be assessed in respect of an impairment rating or a continuing inability to work.

25.     On the Applicant’s own evidence his claimed eye condition causes no difficulty in his ability to see and the condition is being managed by eye drops.  Dr Arad regards the condition as permanent with a nil impairment rating based on Table 13.  Dr Ong in his report of 10 April 2001 and Miss Shipton make no mention of this condition.  The Tribunal is satisfied that the SSAT was correct in utilising Table 14 rather than Table 13 and that under Table 14 the Applicant’s eye symptoms come into the category of “constant irritation of eyes” attracting a rating of nil impairment points.

26.     In respect of back pain, both Dr Arad and Miss Shipton report a good range (normal or near normal) of movement and assign a nil impairment rating for this condition.  Miss Shipton has not seen fit to change this view based on further reports (Exhibits A7, A8 and A9).  Dr Ong likewise rates the Applicant’s lumbar disc degeneration and osteoarthritis at nil impairment points.  While the Applicant demonstrated to the Tribunal some stiffness and pain in his back, the Tribunal, on balance, is satisfied that the consistent medical assessment of a nil impairment rating under Table 5.2 (normal or nearly normal range of movement) is correct and so finds.

27.     Turning then to the Applicant’s hepatitis.  Dr Arad, Dr Ong and Miss Shipton all rate the Applicant’s hepatitis as permanent.  Dr Arad and Miss Shipton assigned a rating of 10 points while Dr Ong opines that the virus infection has resolved and assigns a nil rating.  The report at Exhibit A2 tends to support Dr Ong’s view.  Mr Kenny, in his final submission expressed the view that while there was some “awkwardness” in assigning an impairment rating of 10 points for this condition, nevertheless, he would accept the opinions of Dr Arad and Miss Shipton.  On balance, the Tribunal accepts Mr Kenny’s submission and is satisfied that the Applicant suffers from permanent hepatitis B and that a rating of 10 points from Table 11.1 is correct namely – “Established chronic liver disease.  Symptoms (e.g. fatigue, nausea) may cause minor losses of efficiency in daily activities but rarely prevent completion of the activity”.

28.     In respect of the Applicant’s asthma, Dr Arad and Miss Shipton consider the condition to be permanent.  Dr Ong opines that the condition has not been fully documented or investigated but goes on to say that the condition may persist for more than two years and gives an impairment rating of nil.  Miss Shipton likewise rates the condition at nil (using Table 20) while Dr Arad rates the condition at 5 points using Table 21.  The Tribunal is of the view that Table 20 is the appropriate Table for asthma in this case and that the symptoms suffered by the Applicant are easily tolerated and have no appreciable affect on his ability to work.  As such the Tribunal is satisfied that an impairment rating of nil is correct.

29.     The Applicant’s hearing has been the subject of various reports and the most recent report (Exhibit A1) was referred to Miss Shipton for assessment, further to her initial report (Exhibit R9).  Miss Shipton’s latest advice (Exhibit R10) is that applying the recent audiology test at Table 12, there is a 24.6 per cent loss of binaural hearing which equates to a rating of nil in Table 12.  This does not change her original assessment and is consistent with Dr Arad’s view.  The Tribunal is satisfied that the correct impairment rating for the Applicant’s hearing condition is nil but notes that the Applicant’s current percentage loss of hearing is very close to a level that will attract an impairment rating.

30.     In respect of the Applicant’s claimed problems of headaches and feeling lazy upon waking in the mornings, neither of these conditions has been addressed in the medical reports before the Tribunal.  There being no documentation, diagnoses or investigation of these claimed conditions, the Tribunal is satisfied that they cannot be assessed in respect of an impairment rating.

31. The Tribunal is satisfied that taken together, the Applicant’s medical conditions gives an impairment rating of 10 points and therefore the Applicant does not meet the level of impairment set out in s 94(1)(b) of the Act, which requires that a person have an impairment rating of 20 points or more in order to qualify for DSP.

32. As the Applicant does not meet the requirements of s 94(1)(b) of the Act, the Tribunal did not go on to consider whether the Applicant had a continuing inability to work as required under parts of s 94 of the Act.

33.     The Tribunal affirms the decision under review.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I. Way, Member.

Signed:         A. Krilis  Associate

Date/s of Hearing  3 July 2006; 10 August 2006
Date of Decision  1 September 2006
Representative of Applicant     Self-Represented
Advocate for the Respondent   Mr John Kenny