Finn and Secretary, Department of Family and Community Services
[2004] AATA 909
•30 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 909
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/1048
GENERAL ADMINISTRATIVE DIVISION ) Re RONALD FINN Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Senior Member McCabe Date30 August 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
....................[Sgd].......................
Senior Member
CATCHWORDS
SOCIAL SECURITY – pensions and benefits – disability support pension – whether impairment rating was correctly assessed – decision affirmed.
Social Security Act 1991
Social Security (Administration) Act 1999
REASONS FOR DECISION
30 August 2004 Senior Member McCabe Introduction
1. This is an application for review of a decision of the Social Security Appeals Tribunal (SSAT). The SSAT decided to affirm an earlier decision of the respondent to reject Mr Finn’s claim for disability support pension (DSP).
2. The matter was heard in Townsville on 15 July 2004. Mr Finn represented himself. The respondent was represented by Ms Wallis-Dunn, a departmental advocate.
3. The Tribunal had before it the documents compiled pursuant to s 37 Administrative Appeals Tribunal Act 1975. The respondent also submitted a referral letter and consequent report of Health Services Australia, and two treating doctors’ reports dated 2 April 2004 and 17 June 2004. Mr Finn supplied a medical report of Dr Fairbairn dated 15 May 2004.
The Law
4. Part 2.3 of the Social Security Act 1991 deals with DSP. Section 94 deals with eligibility for DSP. Section 94 says:
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.
5. The Impairment Tables are found in Schedule 1B to the Act. The tables relevant to Mr Finn’s claim are Table 3 (upper limb function) and Table 6 (psychiatric function). A condition must be fully documented and diagnosed before it can be given a rating. It must have been investigated, treated and stabilised.
6. Section 4 of Schedule 2 to the Social Security (Administration) Act 1999 says:
(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.
7. This section means the Tribunal examines evidence available at the time of the application and any extra evidence that sheds light on the applicant’s condition in the 13 week period following the application.
The Facts
8. Mr Finn lodged a claim for DSP on 28 April 2003. He listed a hernia, left shoulder rotator cuff supraspinatus tendon with bicipital degeneration and non-insulin dependent diabetes as conditions (T11 f43 T-documents). He lodged five medical reports in support of this claim.
9. Mr Finn was advised on 16 June 2003 that his claim had been rejected. He requested a review of that decision and supplied some further medical evidence. On 9 July 2003 the original decision maker affirmed her decision. An authorised review officer noted as Mr Finn’s shoulder injury related to his non-dominant limb, the impairment rating should be 5 points. (It emerged in the hearing that Mr Finn’s shoulder injury actually relates to his dominant limb).
10. Mr Finn then appealed to the SSAT. In support of his appeal he submitted reports regarding a depressive condition. The SSAT largely affirmed the original decision, however it acknowledged his shoulder injury related to his dominant limb and accorded it 10 points under the relevant table. The SSAT did not assign an impairment rating for Mr Finn’s depression, as it was not fully diagnosed, treated and stabilised within 3 months following his claim.
The Medical Evidence
11. There is a good deal of medical evidence to consider. Five medical reports were supplied to Centrelink in support of the original application.
12. In a report of 3 August 2003 (T4) Dr Boulton says:
“Following surgery [reattaching the supraspinatus tendon] I would expect that there would be a six week to three month rehabilitation period before he could return to alternate duties”.
13. In a report of 8 January 2002 (T5) Dr Maguire says:
“I would expect some improvement of the pain following surgery, but he may not gain full function. Modification of duties may be required in the future. Post-operative time following a takedown repair of the rotator cuff is approximately 6 months. No stability for assessment can be given prior to this date”.
14. In a report of 17 December 2002 (T6) Dr McEwen says:
“Mr Finn…continues to have pain with overhead positioning of the arm. Both objectively and subjectively his shoulder is substantially improved…At this point in time he would not tolerate a return to his normal duties as a labourer…I would consider his condition stable and stationary”.
15. In a further report of 10 February 2003 (T7) Dr McEwen says Mr Finn’s shoulder injury results in an impairment rating of 6%.
16. A treating doctor’s report was compiled on 19 March 2003 by Dr Khurshid (T8). He indicates the hernia condition will impact on Mr Finn’s ability to function for 3-24 months and may significantly improve in the next 2 years. He says the shoulder condition will affect Mr Finn’s ability to function for more than 24 months, and would remain unchanged in the next 2 years.
17. In a decision of 29 April 2003 the Orthopaedic Assessment Tribunal accorded Mr Finn impairment rating of 6% for the rotator cuff tear of his left shoulder.
18. On 14 May 2003 a rehabilitation consultant conducted a face-to-face interview with Mr Finn (T15). That report includes the first mention of depression and non insulin-dependent diabetes. The consultant concluded the only permanent condition suffered by Mr Finn was his rotator tear cuff, and awarded an impairment rating of 10%. It was noted that the condition “would primarily limit working above shoulder height only”.
19. When his claim for DSP was rejected, Mr Finn submitted two further documents from Dr Khurshid. In a report dated 19 June 2003 (T18) he repeated his earlier assessment of the rotator cuff tear condition. He included a second condition, that of depression. He expected it to last 3-24 months, and to fluctuate within the next 2 years.
20. Dr Khurshid also completed a medical certificate for Mr Finn on 28 June 2003 (T20). On it he indicates the prognosis for Mr Finn’s two conditions is “uncertain” (as opposed to “stabilised” or “likely to persist”).
21. On 12 July 2003 Dr Khurshid completed another report. He repeated his assessment concerning the rotator cuff tear. He assessed the depression as “long term, likely to persist for at least 2 years” and “fluctuating” and “constant”. I presume he meant the condition was constant but its severity fluctuated.
22. Mr Finn completed a statement about his psychological condition that is included in the T documents (T26).
23. Mr Finn produced two other reports following his appeal to the SSAT. These focus on his depressive condition. In a report dated 4 September 2003 (T31) Dr Ding opines:
“My diagnosis is major depressive disorder…it is likely that his response to treatment would be slow and limited…[its duration] is in my opinion highly dependent upon the continuation of his pain and functional limitations. Any significant improvement in those symptoms would be accompanied in very close succession with significant improvement in his major depressive disorder”.
24. The report of 6 October 2003 (T32) adds no more relevant information.
25. In a decision of 23 October 2003 the General Medical Assessment Tribunal (Psychiatric) allocated Mr Finn a 7.5% impairment for his condition of major depressive disorder with panic attacks.
26. At the hearing, the respondent supplied three further medical reports. Mr Finn also supplied another report. In a report dated 7 June 2004 Dr Mitchell determines Mr Finn’s shoulder condition attracts an impairment rating of 10%. He says Mr Finn’s depressive condition is temporary as it was not and has not been optimally treated and stabilised.
27. In a report dated 2 April 2004 (exhibit 5) Dr Lee diagnoses Mr Finn with “chronic adjustment reaction with depression”. He says he plans to treat Mr Finn with a different anti-depressant medication. He records Mr Finn’s depression will likely last 3-24 months, and is expected to “somewhat improve” in the next 2 years.
28. In a report dated 17 June 2004 (exhibit 4) Dr Khurshid makes a “presumptive” diagnosis of a further condition. He planned further tests to confirm that diagnosis.
29. Finally, in a report of 15 May 2004 (exhibit 6) Dr Fairbairn says of Mr Finn’s rotator cuff tear: “I believe that he has a 20% impairment of upper limb related to this problem”.
Consideration
30. It is accepted Mr Finn has an “impairment”. The respondent says his impairment does not attract 20 points or more under the Impairment Tables.
31. I consider the questions for the Tribunal to be these: does the applicant have an impairment rating of at least 20 points under the Impairment Tables? If so, does he have a continuing inability to work?
32.
Mr Finn’s rotator cuff tear has variously been assessed as having 6% impairment and a 10% impairment. I am satisfied on the basis of the rehabilitation consultant’s report (T15) that a 10% impairment rating is accurate. That corresponds with the entry in Table 3 of “demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling”. The medical reports submitted make it clear Mr Finn satisfies the criteria. Dr Fairbairn said he believed Mr Finn had a 20% impairment of his upper limb function. However I do not think the Doctor meant to say Mr Finn has an impairment of 20% under Table 3 – which would mean there was “Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes significant interference with hand function or manual handling or
Unable to use non-dominant upper limb at all”. I note the report was written well after the 13 week period indicated in s 4, Schedule 2 Social Security (Administration) Act 1999 and does not expressly relate to that period.
33. Next I consider the depressive condition. The respondent says it should not be given a rating because it has not been fully treated and stabilised. Was the condition treated and stabilised on or within 13 weeks of the application date? We have some evidence from that period: the rehabilitation consultant’s report of 14 May 2003, Dr Khurshid’s reports of 19 June 2003, 28 June 2003 and 12 July 2003.
34. The rehabilitation consultant said of the depressive condition:
“Mr Finn…is taking anti-depressive medication and has not seen a counsellor. This [condition]…was not noted in the medical documentation supplied”. I understand the counsellor did not then consider the condition to be fully documented, treated and stabilised.
35. In the report of 19 June 2003 Dr Khurshid said he expected the depression to last 3-24 months, and to fluctuate within the next 2 years.
36. On 28 June 2003 Dr Khurshid’s prognosis of the condition was “uncertain”. Only on 12 July 2003 did Dr Khurshid assess the depression as “long term” and “constant” (albeit “fluctuating”).
37. The most comprehensive record I have of the depressive condition is the recent report of Dr Lee dated 2 April 2004 (exhibit 5). Dr Lee says he planned to trial different anti-depressant medication, and that the condition was expected to “somewhat improve”. This report was written well after 13 weeks of Mr Finn’s DSP application (which is dated 28 April 2003). If the condition was not fully treated or stabilised as late as April 2004, I think it unlikely it had stabilised in the relevant period.
38. On the basis of this evidence, I conclude Mr Finn’s depression was not fully investigated, treated and stabilised during the relevant period. It cannot be awarded any rating under the Impairment Tables.
39. For the sake of completeness, I note Mr Finn claims several other conditions on his DSP claim: a hernia and non-insulin dependent diabetes. In his report of 19 March 2003 Dr Kharshid says Mr Finn’s hernia would last “3-24 months” and “may significantly improve”. The rehabilitation consultant noted on 16 May 2003 Mr Finn was to have surgery on his hernia. At the relevant time the condition is not fully treated or stabilised. Very little evidence has been submitted about his non insulin dependent diabetes (a fact which was noted by the rehabilitation consultant). That condition has not been fully investigated either. Nor has it been shown the condition affects his ability to work.
Conclusion
40. Mr Finn has a rating under the Impairment Tables of 10%. His depression, hernia and non insulin-dependent diabetes cannot be given a rating as those conditions are not fully investigated, treated, and stabilised. Because his impairment rating is below 20%, he does not satisfy s 94(1)(b). The decision under review is affirmed.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe
Signed: [Sgd]
Associate: Thomas RitchieDate/s of Hearing: 16 July 2004
Date of Decision: 30 August 2004
The applicant represented himself.
The respondent was represented by Ms Wallis-Dunn, a departmental advocate.
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