Enwiya and Secretary, Department of Family and Community Services

[2002] AATA 1188

DECISION AND REASONS FOR DECISION [2002] AATA 1188

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  N2001/1638

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      BENJAMIN ENWIYA         
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES      
  Respondent

DECISION

Tribunal        Mr M Griffin, Member        

Date 19 November 2002

Place Sydney

Decision       The decision under review is affirmed 

[SGD] Mr M Griffin,
  Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether impairment is 20 points or more under the Impairment Tables – whether psychiatric condition is permanent

Social Security Act 1991 section 94, Schedule 1B
Social Security (Administration) Act 1999 Schedule 2, Part 2, clause 4(1)

REASONS FOR DECISION

19 November 2002    Mr M Griffin, Member                  

THE APPLICATION

1. This is an application by Benjamin Enwiya (hereinafter referred to as "the Applicant") in which he seeks review of a decision of the Social Security Appeals Tribunal (hereinafter referred to as "the SSAT") made on 13 September 2001. The SSAT affirmed the decision of an authorised review officer made on 14 June 2001 to reject the Applicant's claim for disability support pension.
   BACKGROUND

1. The Applicant is a 52 year old married man. He lives with his wife. They have no children. He was born in Iraq and came to Australia in 1976. He worked as a machinist until 1980 and for a few months in 1985. He has not worked since then. On 2 February 2001 the Aplicant lodged a claim for disability support pension. The claim included a treating doctor's report by Dr Behary dated 11 September 2000. Dr Behary diagnosed chronic lower back pain and chronic left shoulder pain.

2. Centrelink referred the Applicant to Health Services Australia for examination. He was seen by Dr Cook on 13 March 2001. Dr Cook assessed three conditions: cervical spine, thoraco-lumbar spine and left shoulder. Pursuant to the Impairment Tables contained in Schedule 1B of the Social Security Act 1991 ("the Act"), Dr Cook assessed the Applicant as having a total impairment rating of 15 points. The individual assessments for each of the three conditions were as follows. For the cervical spine (neck) nil points were awarded with the reason "nearly normal movements". For the thoraco-lumbar spine condition (lower back), 10 points were awarded with the reasons "loss of ¼ movement and pain with sitting and standing longer than 30 minutes".  For each of these conditions the doctor noted "mild pain most days". For the neck condition Dr Cook noted "degenerative changes". For the left shoulder 5 points were awarded with the reason "moderate interference with manual handling" and the doctor noted "daily minor pain". Dr Cook found the Applicant to be fit for full time work.

3. On 5 May 2001 the Applicant's claim for disability support pension was rejected because his impairment rating was less than the required 20 points. This was the decision affirmed by the authorised review officer on 14 June 2001 and then by the SSAT on 13 September 2001. On 26 October 2001 Mr Enwiya applied to this Tribunal for review of that decision.
   THE ISSUE

1. The issue for determination is whether or not the Applicant is qualified for disability support pension. This involves specific consideration of whether, for the purposes of subsection 94(1) of the Act, the Applicant has a physical, intellectual or psychiatric impairment and whether that impairment is 20 points or more under the Impairment Tables and whether they result in him having a continuing inability to work or undertake training during the next two years.
   EVIDENCE AND SUBMISSIONS

1. The application was heard by this Tribunal on 20 August 2002. The Applicant was not represented. The Respondent was represented by Mr G Lozynsky, an advocate from the Advocacy and Administrative Law Team at Centrelink. The Applicant and his wife gave sworn oral evidence.

2. There were tendered in evidence the Tribunal documents (the T– documents T1–T18, pp 1-111) produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with the following exhibits:

Exhibit          Document    Date  
A1      Letter from the Applicant's legal adviser enclosing medical reports by Dr Mark Burns, Occupational Physician and Dr A Samad, Psychiatrist 19 December 2001 
A2      Applicant's Statement of Facts and Contentions          4 June 2002 
A3      Receipts from chemists and list of medication   Various dates           
R1      Respondent's Statement of Issues          14 November 2001 
R2      Letter from Centrelink enclosing medical reports by Dr Chew of Health Service Australia (HSA) and a treating doctor's report by Dr Abdel-Megeed      Various dates           
R3      Respondent's Statement of Facts and Contentions     12 August 2002       

1. The medical report by Dr Samad at Exhibit A1 was considered by the SSAT, however the report of Dr Burns and the reports at Exhibit R2 were produced after the SSAT decision.
   Dr Burns examined the Applicant on 3 December 2001. Dr Burns made the following assessments with impairment ratings: cervical spondylosis – 5 points; lumbar spondylosis – 10 points and rotator cuff injury, left shoulder – 5 points, for a total of 20 points. Dr Burns referred to the Applicant's psychological problems but did not give an assessment or rating in respect of this condition.

Dr Abdel-Megeed saw the Applicant on 25 January 2002. He diagnosed major depression, disc pathology lumbar spine, cervical spondylosis and rotator cuff injury left shoulder; all four conditions he described as "Long term likely to persist for at least 2 years".

Dr Chew examined the Applicant on 15 March 2002. In respect of the four conditions he assessed, he gave the following impairment points: cervical spine – 5 points; thoraco-lumbar spine – 10 points; left shoulder rotator cuff injury – 5 points; depression – nil points. Dr Chew's expressed reason for the rating of nil points for depression was "mild symptoms".

1. The Applicant gave evidence to the Tribunal that he experienced continual pain from his neck, back and shoulder. He said he could not walk for long, could not lift things and could not sit for long. He said he wanted to work but was not able to.  His wife said, "I agree with what he said, I live with him, I help him dress and look after him. He gets upset and agitated. He has bad memory and when we walk he gets confused…He gets disorientated". I asked the Applicant about Dr Cook's opinion that he was fit for work. He said, "I'm sick, I can't work". His wife said, "He is emotionally upset and can't concentrate". Mr Lozynsky asked the Applicant about the frequency of pain. The Applicant said, "Constant pain if I don't take the medication". Mr Lozynsky asked if the medication relieved the pain. The Applicant said, "Yes". Mr Lozynsky asked if he took the medication daily. The Applicant said he did not because he was diabetic and had a cholesterol problem and did not like to mix the medications.

2. I asked the Applicant if he was still seeing Dr Samad, his psychiatrist. He said he sees him monthly. I asked if he had another written report from Dr Samad. He said "No" but produced some pharmacy receipts for a variety of medications prescribed by Dr Samad since his initial consultation. I asked the Applicant what Dr Samad said about his present condition. He said, "I don't know, he hasn't told me anything".

3. Mr Lozynsky submitted that the Applicant's depression should be excluded from his claim because it was not a permanent condition at the time of his claim on 2 February 2001 because it was not fully treated and stabilised at that time. Mr Lozynsky referred to the effect of Schedule 2, Part 2, clause 4(1) of the Social Security (Administration) Act 1999 with respect to the Applicant's commencement date for payment of disability support pension. He submitted "If the Applicant is not qualified on the day on which the claim is lodged, the effect of this section is that his qualification may be considered during the 13 week period immediately following the lodgement of the claim".  He stated "the fact that he now suffers depression cannot be taken into account when determining his eligibilty for the pension in early 2001".  Mr Lozynsky also submitted that the previous impairment rating of nil points for the neck condition could not be increased to 5 points because the medical evidence at the time of his claim found normal range of movement.
   THE LEGISLATION

1. Section 94 of the Act relevantly provides:

   "94 Qualification for disability support pension

   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

   (d)      the person has turned 16; and
   (e)        the person either:

   (i) is an Australian resident at the time when the person first satisfies paragraph (c); or

   (ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

   (iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

   (A)      is not an Australian resident; and
   (B)      is a dependent child of an Australian resident;
   and the person becomes an Australian resident while a dependent child of an Australian resident.

   Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

   Note 2:          for Impairment Tables see section 23(1) and Schedule 1B.

   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 within the next 2 years; and

   (b)      either:

   (i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

   (ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

   Note: For work see subsection (5).

   94(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

   (a) the availability to the person of educational or vocational training or on-the-job training; or

   (b) if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.

   94(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.

   94(5)   In this section:

   educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
   on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
   work means work:
   (a)      that is for at least 30 hours per week at award wages or above; and

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

   Person not qualified in certain circumstances

   94(6) A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person's incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment.

   Note: a person who is receiving a disability support pension may be automatically transferred to the age pension if the person becomes qualified for the age pension (see subsection 48(3))."

2. Schedule 2, Part 2, clause 4(1) of the Social Security (Administration) Act 1999 relevantly provides:

   "Schedule 2—Rules for working out start day
   …
   4 Start day—early claim

   (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.

   (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;

   (b) parenting payment is not a relevant social security payment in the case of a person who becomes qualified for the payment because of the birth of a child."

1. The Introduction to the Tables for Assessment of Impairment at Schedule 1B of the Act relevantly states:

   "…

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."

FINDINGS OF FACT AND REASONS

1. I have given careful consideration to the written and oral evidence provided by the parties, the legislation and the documentary material on file, as well as the submissions made by the parties.

2. I have considered Dr Samad's report about the Applicant's psychiatric condition and the evidence of the Applicant and his wife about his depression and emotional status. The Applicant has been taking medication prescribed by Dr Samad and this medication has varied over time. There has not been a further report from Dr Samad since his one page opinion of 5 September 2001 (Exhibit A1). I asked the Applicant what Dr Samad had to say about his current condition. He said, "I don't know. He hasn't told me anything". I note the diagnosis of depression by Dr Abdel-Megeed however, whilst it refers to medication, it is very brief and there is no reference to prognosis. 

The Introduction to the Tables for Assessment make it plain that for a condition to be considered permanent it must be diagnosed, treated and stabilised. One must consider what treatment or rehabilitation has occurred, whether treatment is still continuing and whether treatment is likely to lead to significant functional improvement. Other than some prescriptions for medication and monthly visits to Dr Samad, I do not have any substantive evidence of the Applicant's treatment or rehabilitation, whether it is continuing or whether there has been any functional improvement in his condition. In the circumstances, I am satisfied the psychiatric condition has been diagnosed and treated but I am not satisfied that the condition is stabilised.  Moreover, I note the diagnosis of Dr Chew that the Applicant has depression for which he gives nil impairment points with the reason "mild symptoms". In the absence of further specialist medical opinion, I cannot be satisfied the Applicant has a permanent impairment involving a psychiatric condition at the relevant time. Accordingly, I agree with Dr Chew's diagnosis and I find that the Applicant rates nil on the impairment rating under Table 6 (Psychiatric Impairment) of Schedule 1B of the Act.

1. As to the neck condition, I accept the reports of Dr Chew and Dr Burns which indicate that at present and since 3 December 2001, the Applicant has suffered from a permanent physical impairment which attracts 5 points under the relevant table.

However, the issue is whether or not this condition was present to the same degree at the time of his claim or in the relevant period immediately following, which is the 13 weeks after 2 February 2001. Dr Cook examined the Applicant one month after he submitted his claim. Dr Cook reported, in respect of the cervical spine, "nearly normal movements" and gave an impairment rating of nil points for this condition. I note Dr Cook also commented on degenerative changes apparent from x-rays at that time and "mild pain, most days".

This is to be contrasted with Dr Burns's examination nine months later which found "a 25 per cent loss of range of motion in flexion, extension and rotation to the right. Rotation to the left was decreased by 50 per cent". In the absence of a definitive opinion from Dr Burns or any other medical specialist that this degree of impairment existed in the 13 weeks following the claim on 2 February 2001, I accept the opinion of Dr Cook and the rating of nil points made by him.

1. It follows that the Applicant did not have at the time of his claim on 2 February 2001, or in the 13 week period immediately following that claim, 20 impairment points as required by the legislation to be eligible for disability support pension. Having made the finding that the Applicant does not satisfy section 94(1)(b) of the Act, I do not proceed to consider whether the Applicant has a continuing inability to work under section 94(1)(c) of the Act.

1. Accordingly, the decision under review is affirmed

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Griffin, Member

Signed:  H Sim       .....................................................................................
  Associate

Date of Hearing  20 August 2002
Date of Decision  19 November 2002
Representative for the Applicant            self-represented
Representative for the Respondent       Mr George Lozynsky