Eric and Secretary, Department of Family and Community Services
[2005] AATA 417
•11 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 417
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2004/819
GENERAL ADMINISTRATIVE DIVISION ) Re ZIVANA ERIC Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr. John Handley, Senior Member
Associate Professor John Maynard, MemberDate11 May 2005
PlaceMelbourne
Decision The decision of the Social Security Appeals Tribunal made on 16 June 2004 is set aside and in substitution it is decided the applicant qualifies for disability support pension.
(Sgd) John Handley
Senior Member
SOCIAL SECURITY – application for disability support pension – neck injuries and depression – diagnosis in dispute – which Impairment Tables apply – whether a continuing inability to work (as defined) – decision set aside
Social Security Act 1991 (Cth) s 94
REASONS FOR DECISION
11 May 2005 Mr. John Handley, Senior Member
Associate Professor John Maynard, Member1. The applicant applies to review a decision made by the Social Security Appeals Tribunal (“SSAT”) on 16 June 2004. The SSAT then decided to affirm a decision previously made by an Authorised Review Officer (“ARO”) of Centrelink on 7 April 2004 to reject a claim made by her for disability support pension (“DSP”).
2. The SSAT found that the applicant did not have an impairment of 20 points or more under the Impairment Tables. It did not consider whether the applicant had “a continuing inability to work”.
3. The hearing of the application was convened in Melbourne on 24 February 2005. Mr Zaparis appeared on behalf of Mrs Eric and Ms Paul appeared on behalf of the respondent.
4. A number of documents were received into evidence and will be referred to in these reasons.
5. Entitlement to DSP is to be found within the provisions of s94 of the Social Security Act 1991 (“the Act”) which is reproduced relevantly as follows:
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;
(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) . . .
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.
94(6) . . .
6. Ms Paul conceded that the applicant did have a neck injury, which was an “impairment” (refer s94(1) (a)) and was permanent. The respondent disputed that the applicant had any psychiatric illness and also disputed that she had a continuing inability to work (refer s94(1) (c) (i)). By reason of the applicant having been born in 1954, she clearly satisfies s94(1) (d). We are also satisfied that she is an Australian resident.
7. The issues therefore under review principally involve whether the applicant has an impairment of 20 points or more under the Impairment Tables (refer Schedule 1B of the Act) and whether she has a continuing inability to work.
8. Mr Zaparis advised us that the applicant suffered neck and consequential injuries when previously employed. Mrs Eric successfully recovered weekly Workcover benefits for the maximum period of 104 weeks between November 1997 and October 1999. Thereafter she has received Parenting Payment (“PP”). By reason of her entitlement to weekly Workcover benefits, she did not qualify for any lump sum payment either under the Victorian Workers’ Compensation Legislation or at Common Law. Mr Zaparis also advised that the applicant had successfully claimed superannuation as for total and permanent invalidity (“TPI”).
zivana eric
9. Mrs Eric gave evidence with the assistance of a Serbian speaking interpreter.
10. Mrs Eric said that she had been prescribed, and consumed, Panadene Forte and Panamax tablets for pain that she suffered. She also said that she was prescribed Tryptanol and Diazapam for her “nerves”. She also used Voltaren cream which was massaged into her neck and shoulders.
11. Since 1999, Mrs Eric said that she has principally suffered from pain in her neck which extends to the back of her head and into her shoulders. She also said that she has problems with “nerves”, and she loses balance which sometimes interferes with walking. Most of her treatment has been undertaken with Dr Pjesivac, her family practitioner. She also attended a psychologist, Mr Stofanovic but his treatment ceased when her entitlement to weekly compensation ended.
12. Mrs Eric said that she performed some limited housework but does not believe that she would be fit to return to the workforce. Mrs Eric said that she was unsure whether she could undertake rehabilitation.
13. In cross-examination, Mrs Eric said that she suffered neck and shoulder injuries in her former employment as a sewing machinist. She said that she subsequently suffered from pain and from “nerves”. She had eight years of education and worked as a dressmaker and as a sewing machinist and supervisor in Serbia before coming to Australia. Mrs Eric said that she completed 520 hours of English language classes before arriving in Australia but said that her command of the English language is very limited. She said that she suffers from pain extending from her neck to the back of her head and into her shoulders on a regular daily basis. On occasions she said that the back of her head becomes numb and she loses balance. She said that it feels as if she is being “pulled to the right side when I stand or walk”. Mrs Eric understood that her shoulder pain was associated with her neck injury. She said that she is unable to lift because to do so causes her fingers to become numb. She said there were occasions when her arms feel they have no strength.
14. Mrs Eric said that she is anxious and depressed. She said that she cries frequently and takes medication. She consumes Diazapam tablets on two or three occasions per week. Prior to the injury at work she said that she enjoyed good health but subsequently she is “uptight”. Mrs Eric said that she consulted a psychologist for approximately two years on a regular monthly basis but was not prescribed medication. She said she ceased to attend him for treatment when Workcover benefits ceased and the insurer no longer had a liability. She said that she has been unable to afford the cost of psychological or psychiatric treatment. Mrs Eric understood that she suffered from depression and anxiety because of the severe pain from which she suffers. She consumes Panadene Forte medication which provides quicker and more enduring pain relief than Panamax but said that Panadene Forte has caused stomach discomfort and from time to time she consumes Zantac medication. She said she also applies Voltaren cream every night to her neck and shoulders by way of massage in an attempt to relieve pain.
15. Mrs Eric said that she lives with her husband and two teenage children. She said she attempts house cleaning from time to time but more often than not her husband and children perform most of these tasks. She said she cooks some meals and prepares lunches for her children. Other meals are cooked by her husband. She said there are occasions when the pain she suffers is of such an intensity that she is unable to get out of bed. She said that her children vacuum the house and wash dishes and whilst she will place clothes into the washing machine they are removed and hung on the line by her children. For most of each day she said that she watches television, rests, visits relatives or attempts to do some walking. She attends the supermarket with her children but they pick up items from the shelves and place it in the trolley which they also push.
medical evidence
16. The T‑ documents contain a number of medical reports which appear to have been written in support of the applicant’s claim for compensation. Doctors Dohrmann and Flanc referred to the applicant as having a “non-specific” neck injury. Those opinions were expressed having regard to the result of a CT scan of 22 November 1999 (page 52) which recorded that there was no “evidence of significant focal disc herniation at the level scanned”. An MRI scan of 10 October 2003 has demonstrated a C5/6 disc lesion.
17. Mr Mangos in a report of 26 October 2004 found that the applicant had a chronic painful neck injury with decreased flexion, extension and rotation. He found that there was referred pain to the applicant’s shoulders. He was of the opinion that the neck injury was stabilised and Mrs Eric was “permanently incapacitated to return to any repetitive work”. He assessed an impairment of 10 per cent under Table 5.1 of the Impairment Tables and also made assessments of impairment under Table 3 with respect to the left and right shoulders, each at 5 per cent. He also found that the applicant was depressed and anxious and assessed an impairment of 10 per cent under Table 7 (which must have been a typing error because the applicable Table for psychiatric impairment is Table 6).
18. Doctor Pjesivac, who is the applicant’s treating practitioner reported on 1 December 2001 (T8), that the applicant suffered from soft tissue injury, fibro myalgia and depression. It was his opinion that the applicant was then unable to perform any work and would be unable to do so “in the foreseeable future”. He was pessimistic as to prognosis and was confident that the injury had stabalised. He noted that there had not been any “significant improvement since the first day that I saw her”. He reported that he had consulted with Mrs Eric “on more than 100 occasions” where she had complained of similar symptoms affecting her neck, shoulder, upper spine and with frequent headaches. In a questionnaire completed to assist Mrs Eric in her pension application, Dr Pjesivac recorded a diagnosis of “depression/chronic pain syndrome”.
19. Dr Kornan is a consultant medico-legal psychiatrist who provided two reports. It was his diagnosis that the applicant suffered from “pain syndrome with psychiatric features of anxiety and depression”. He said such a diagnosis is found at DSM‑IV 307.80. He thought that injury was permanent but specifically reported that a diagnosis of depression was not appropriate.
20. Dr Hilal, a doctor in the employ of Health Services Australia was engaged by the respondent. He assessed Mrs Eric on 31 March 2004 and reported that she had suffered from neck pain from 1999 with intermittent symptoms and radiation of pain to both arms. He diagnosed the applicant as having “chronic pain” and said that she should be assessed under Table 20 as having 10 impairment points. He also found that the applicant suffered from depression with mild symptoms. It was his opinion that she should be assessed under Table 6 but with a nil impairment rating. He found that both injuries were permanent. In a report that he prepared on 31 March 2004 (page 35), he recorded a history of “neck pain” with radiation to both arms, recurring headaches and dizziness. In the questionnaire that he completed, found at page 31, there is also a reference – in handwriting – to the MRI scan of 10 October 2003 with specific reference also to the finding of a C5/6 disc protrusion. He did not record that finding in his typed report at page 35. He concluded that the applicant had a history of depression with menopausal symptoms but “these conditions have only minimal impact on her ability to work”. He concluded that Mrs Eric was fit for full time light work “of a low stress nature”. Specifically he concluded that she was fit to undertake work involving sales or “attendant work”.
submissions
21. Ms Paul submitted that on the basis of the opinion expressed by Dr Kornan, the applicant should be assessed under Table 20 or under Table 5.1 but not both. It was submitted that the applicant should be found to suffer from a pain disorder which did not constitute a psychiatric impairment. It followed therefore that assessment under Table 6 was not appropriate. Indeed it was submitted that the applicant did not suffer from depression and reliance was made upon the opinions expressed by Dr Kornan.
22. Additionally it was submitted that the applicant’s neck and shoulder injuries should not be separately assessed because the shoulder pain is referred from the applicant’s neck injury.
23. With respect to the degree of impairment it was submitted that the applicant attracted no more than 10 impairment points under either Table 5.1 or Table 20 and she did not therefore meet the first threshold of DSP qualification.
24. With respect to the applicant’s ability to engage in employment it was submitted that the applicant did not have a “continuing inability to work”. Ms Paul submitted that the applicant was capable of being retrained in other work that would not cause discomfort to her neck. It was noted that the applicant did perform work around her home and the only impediment realistically disclosed by the applicant was an inability to engage in lifting.
25. Mr Zaparis, on behalf of Mrs Eric, submitted that the MRI findings of October 2003 clearly demonstrated the applicant had a C5/6 disc protrusion which was responsible also for radiation of pain into her shoulders and arms. He submitted that the applicant should be assessed pursuant to the opinions expressed by Mr Mangos. Additionally it was submitted that the applicant clearly was depressed and that diagnosis should be found as a fact. It followed that she should be assessed under Tables 5.1 and Table 6 at 10 per cent respectively thereby achieving the first threshold of 20 impairment points.
26. It was submitted that the applicant was totally and permanently disabled and did have a continuing inability to work. It was submitted that whilst the applicant did engage in some domestic activity it did not permit a finding of an ability to work elsewhere. It was submitted that work must be “real” and by reason of the applicant’s inability to engage in any employment, she did have a “continuing inability to work” and it followed that the remaining issue of qualification under s94 of the Act had been satisfied.
conclusion and reasons for decision
27. The divergence of opinion expressed by the doctors in this review requires us to make findings as to diagnosis.
28. It is our view that the opinions expressed by Drs Dohrmann, Flanc and Hadj should be given little weight because they were all expressed before the MRI findings of October 2003. It was then clearly demonstrated that the applicant had a C5/6 disc protrusion. Dr Mangos was of no doubt that the applicant did suffer from pain which had its origin in that injury. Dr Pjesivac was satisfied that the applicant had a cervical injury. Dr Hilal was aware that the applicant had been found to have a C5/6 disc protrusion, yet he described the applicant’s “condition” as “neck pain”.
29. The applicant does have a C5/6 disc protrusion which attracts assessment under Table 5. Having regard to the findings of Mr Mangos as to the reduction in flexion, extension and rotation, together with the frequency of neck pain, it is our view that the applicant should be assessed as having 10 impairment points under Table 5.1.
30. Mr Mangos, Dr Pjesivac and Dr Hilal found that the applicant suffered from depression. Dr Kornan found that the applicant suffered from a pain syndrome with psychiatric features of anxiety and depression but did not specifically find depression as a diagnosis. We are mindful that Dr Pjesivac, particularly, had observed and treated the applicant on many occasions and was probably in the best position to assess the extent of the applicant’s illnesses and symptoms. We also observed the applicant at the hearing and heard her tell us, in response to some questions asked, that she had considered suicide and her only pleasure in life was that of her children. We are satisfied and find as a fact that the applicant does suffer from depression. We note that this condition has been assessed as permanent and we note that treatment had previously been undertaken. It is our view that the applicant satisfies the criteria against a rating of 10 impairment points under Table 6.
31. Accordingly we are of the view that the applicant does have an impairment of 20 points or more being 10 points under Table 5.1 with respect to the neck injury and 10 points under Table 6 with respect to the condition of depression.
32. Section 94(2) of the Act prescribes the basis for consideration of whether a person has a continuing inability to work. We note that it is a test involving an assessment of the extent of the impairment, a finding of whether there would be a prevention to work for two years, whether the impairment would prevent an undertaking of educational or vocational training or on-the-job training for two years and if it does not, whether such training would be unlikely to enable the person to do any work within the next two years. Section 94(3) of the Act – in addition – prescribes issues that must be considered in making a finding as to a continuing inability to work, namely the disregard of the availability of educational or vocational training or the availability of work in a locally accessible labour market.
33. Doctors Mangos, Pjesivac and Kornan were of the view that the applicant was totally and permanently disabled. They also considered issues of poor command of the English language and minimal educational skills in making the finding as to incapacity. Dr Hilal was of the opinion that the applicant could be employed in “sale work or attendant work”.
34. Evidence was not heard in these proceedings from an occupational therapist or persons with like qualifications. Our findings therefore as to whether the applicant satisfies s94(2) and (3) must be upon the evidence heard and read and by regard also to our own experience as Members of this Tribunal, frequently having to make findings of the ability of a person to work in either the social security, compensation or veterans’ jurisdictions.
35. We are satisfied that the applicant does have chronic severe neck pain which is referred to the back of the head and into her shoulders. She does undertake some domestic activity but it is very limited. Lifting or use of her arms causes discomfort and a numb sensation in her fingers. She cannot take items from shelves at a supermarket nor push a trolley. She cannot lift a basket of washing or hang wet clothes on a clothes line. She has attended her general practitioner on over 100 occasions between September 1999 and the provision of the report by Dr Pjesivac in December 2001 which, on our reckoning would average one visit per week. We are also satisfied that her depression has become chronic and manifests itself by withdrawal and crying. We also note that the applicant consumes pain killing medication, together with medication specifically prescribed with respect to her depression.
36. On balance we are satisfied that the applicant does have a continuing inability to work which would be sufficient to prevent her from undertaking any work within two years (of the date of claim – March 2004). Additionally it would be our view that the impairment, being the neck injury and the depression, would prevent the applicant from undertaking educational or vocational training or on-the-job training for two years from March 2004. We have no confidence that any such training would be likely to enable Mrs Eric to perform any work within two years.
37. In all of the circumstances we are satisfied that the decision under review should be set aside and in substitution therefore it is decided that at all relevant times the applicant has qualified for DSP.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr. John Handley, Senior Member and
Associate Professor John Maynard, MemberSigned: Alice Beattie
AssociateDate of Hearing 24 February 2005
Date of Decision 11 May 2005
Solicitor for the Applicant Mr P Zaparas
Departmental Advocate Ms K Paul
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