Foudoulis; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and

[2008] AATA 690

ADMINISTRATIVE APPEALS TRIBUNAL          N° V 200601173

GENERAL ADMINISTRATIVE  DIVISION

Re:SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And:           KONSTANTINOS FOUDOULIS

Respondent

CORRIGENDUM

Tribunal:       Dr Roderick McRae, Member

Date:18 August 2008

Place:Melbourne

Member McRae made a Decision under s 43 of the Administrative Appeals Tribunal Act1975 (the Act) on 7 August 2008.

The respondent’s solicitor advised the Tribunal on 7 August 2008 that there is an error in the Decision dated 7 August 2008.

In accordance with s 43AA(1) of the Act, the Tribunal directs that the Registrar alter the text of the Decision on page 1 and page 18 by deleting the reference to 13 November 2006 and replacing it with 31 October 2006.

(sgd) Roderick McRae
  Member

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 690

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 2006/1173

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT  OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

APPLICANT

And KONSTANTINOS FOUDOULIS

RESPONDENT

DECISION

Tribunal Dr R McRae, Member

Date7 August 2008 

PlaceMelbourne

Decision The Tribunal sets aside the decision of the SSAT made on 13 November 2006.

....................[Sgd].....................

Dr R McRae
  Member

SOCIAL SECURITY ‑ disability support pension ‑ whether 20 impairment points - bilateral carpal tunnel syndrome - lateral humeral epicondylitis - depression - contribution of process on condition during qualification period ‑ anterior compartment syndrome - cervical spondylitis - migraine - continuing inability to work ‑ whether able to work 15 hours per week ‑ decision under review set aside.

Social Security Act 1991 s 94(1) and (2)

Social Security (Administration) Act 1999 Sch 2 cll 3, 4

A Guide to the Tables for the Assessment of Work‑Related Impairment of Disability Support Pension

Stojanovic v Secretary, Department of Employment and Workplace Relations [2007] AATA 1202

Secretary, Department of Family and Community Services v Michael [2001] FCA 1811

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48

REASONS FOR DECISION

Dr R McRae, Member        

1. Mr Konstantinos Foudoulis (the respondent) made an application to Centrelink for disability support pension (DSP) on 8 November 2005. Centrelink acts as the service delivery agency for the Department of Families, Housing, Community Services and Indigenous Affairs (the applicant). A Centrelink officer rejected the respondent’s claim for DSP on 9 December 2005 because the respondent failed to satisfy s 94(1) (b) of the Social Security Act 1991 (the Act). The respondent sought internal review of that decision. An authorised review officer affirmed the decision on 27 March 2006.  The respondent then sought a review of the decision by the Social Security Appeals Tribunal (SSAT).  On 13 November 2006 the SSAT set aside the decision, directing that the respondent satisfied the requirements of the Act for qualification for DSP from the time of claim and remitted the matter to Centrelink to calculate the arrears.

2. The issue for the Tribunal is whether the respondent was entitled to DSP according to the requirements of s 94(1) of the Act, at the time of his claim on 8 November 2005, or within the subsequent 13 weeks (ending on 7 February 2006) (the relevant period).  The Tribunal’s decision is that the respondent was not entitled to DSP during the relevant period.  

3. The applicant was represented by Mr Tim Noonan, a Centrelink advocate. The respondent represented himself at the hearing. The Tribunal had before it documents lodged by the applicant pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑Documents).

4.      The Tribunal received additional documents tendered into evidence by the applicant:

·   A medical report by Dr L Roberts dated 26 July 2007, with an attached nerve conduction study report dated 3 March 2005 (Exhibit A1);

·   A medical report by Dr G R Symington, Neurologist, dated 23 January 2007 (Exhibit A2);

·   A medical report by Dr G R Symington dated 20 February 2007 (Exhibit A3);

·   A medical report by Dr W Kemp dated 16 April 2007 (Exhibit A4);

·   A medical report by Dr W Kemp dated 7 June 2007 (Exhibit A5);

·   A medical report by Dr W Kemp dated 29 October 2007 (Exhibit A6);

·   A medical report by Dr W Kemp dated 26 November 2007 (Exhibit A7);

·   A medical report by Mr D Marty, Ear, Nose and Throat Surgeon, dated 15 March 2007, with an attached audiograph (Exhibit A8);

·   A medical report by Mr D Marty dated 4 September 2007 (Exhibit A9);

·   A report by Ms Ianelli, Job Capacity Assessor, dated 17 July 2007 (Exhibit A10);

·   A report by Ms Ianelli dated 3 January 2008 (Exhibit A11);

·   A supplementary report by Ms Ianelli dated 11 February 2008 (Exhibit A12); and

·   A submission related to the Tribunal’s Avenoso decision (Exhibit A13).  

5.      The Tribunal received the additional documents tendered into evidence by the respondent:

·   The respondent’s Statement of Facts and Contentions (Exhibit R1);

·   A hand-written medical letter by Dr M Franco, Medical/ Neurology Registrar, Northern Health, dated 11 May 2005 (Exhibit R2) (this was identical to T7);

·   A medical report by Dr P Cheung, Psychiatrist, dated 20 July 2007 (Exhibit R3);

·   Letter from Dr W M McCubbery, Treating General Practitioner, dated 18 February 2008 (Exhibit R4);

·   Letter from Dr W M McCubbery dated 21 March 2007 (Exhibit R5);

·   Letter from Dr W M McCubbery dated 24 August 2007 (Exhibit R6); and

·   An undated letter from Northern Private Consulting Suite related to left hand surgery in November 2006 (Exhibit R7). 

Background

6.      The applicant is a 59-year-old, married, Greek man, educated to year 6 level.  He arrived in Australia on 2 May 1956.  He worked in a noisy, heavy manufacturing environment as a process worker at Preslite Australia, using compressors, dye-casting equipment and air-drivers with substantial torque related to electric motors and car assembly, prior to retrenchment in February 2001.  Dr T Ching of Health Services Australia examined him for Newstart Allowance on 9 February 2005.  

7.      The respondent lodged a claim for DSP with Centrelink on 8 November 2005.  He provided a supporting Treating Doctor’s Report (TDR), completed by his general practitioner, Dr W McCubbery, on 3 November 2005.  Dr McCubbery reported that his conditions were bilateral carpal tunnel syndrome (CTS), diagnosed on 3 March 2005, right lateral humeral epicondylitis, diagnosed in 1997, and depression.  The TDR form was altered, in relation to the diagnosis of depression, to read generally well managed and impact on ability to function in the stem of item 4 and marked to indicate no significant improvement is expected.  The former two conditions were anticipated to deteriorate.  A subsequent letter from Dr McCubbery, dated 3 February 2005, stated the respondent has been my patient for the past twenty years.  It added the diagnosis of anterior compartment syndrome intermittently in the right lower limbs (sic).  On 13 January 2005 Dr McCubbery had signed a medical certificate which stated [the respondent] cannot walk long distances or work with arms raised or make forceful movements with his right hand.  Dr N Rose of Health Services Australia examined the respondent on behalf of Centrelink, in relation to his DSP claim, on 11 November 2005.  Dr W Kemp undertook an independent medical examination on 27 March 2007. 

Tendered Evidence

8.      The Tribunal received correspondence from Dr McCubbery, dated 30 March 2006, reiterating the respondent’s medical problems, adding the condition of hearing impairment and emphasising their nature as permanent.  The Tribunal notes this assessment is significantly different from an earlier TDR dated 30 March 2002, in which the right CTS is considered temporary and amenable to surgical treatment; right carpal neurolysis subsequently proved unhelpful.  On 16 May 2006 Dr McCubbery signed a medical certificate stating the respondent was unable to work for 8 hours per week until 30 July 2006.  In a further letter, dated 14 July 2006, Dr McCubbery also indicated a diagnosis of cervical spondylosis with facet joint degenerative changes at the L3-5 (sic) level, but there was no supporting documentation relating to diagnosis, including investigations or treatment.  The letter also stated [the respondent] has been suffering from severe depression, aggravated by his treatment by Centrelink.... There was no further evidence related to this latter statement.  

9.      Ms S Iannelli, who trained in occupational therapy and is employed by Advanced Personnel Management, undertook a Job Capacity Assessment (JCA) on behalf of Centrelink on 17 July 2007 related to the respondent’s claim for DSP.  She provided a work capacity assessment, dated 17 July 2007, which noted the permanent conditions of right CTS and epicondylitis, anterior compartment syndrome and hearing loss.  With respect to the permanent conditions, she considered the respondent was capable of working at least 30 hours per week in light, unskilled work.She recommended an impairment rating of 10 points for the right CTS and epicondylitis, according to Impairment Table 3 of the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables), in Schedule 1B of the Act.  She recommended an impairment rating of nil points for the anterior compartment syndrome according to Impairment Table 4 of the Impairment Tables.  She recommended an impairment rating of nil points for hearing loss according to Impairment Table 12 of the Impairment Tables. 

10.     The applicant requested further medical file-based assessment, with which the respondent complied.  Ms Iannelli conducted further report-based file assessments incorporating this additional medical information on 3 January 2008 and 11 February 2008 and provided subsequent JCA reports.  They now, some two years after the qualifying period, noted the permanent condition of right CTS and epicondylitis and recommended a very different impairment rating of nil points according to Impairment Table 3 of the Impairment Tables.  The respondent’s hearing loss now has a different recommended impairment rating of 5 points according to Impairment Table 12 of the Impairment Tables.  She additionally stated that if the depression were permanent, it would receive an impairment rating of 10 points according to Impairment Table 6.  She maintained that, from the time of the DSP claim up to the present, the respondent was capable of working at least 30 hours per week in suitable employment. 

Witness’ Evidence

11.     Dr W A Kemp is a retired consultant physician with qualifications and experience in rheumatology, rehabilitation medicine and occupational health medicine associated with the musculoskeletal system, who had seen the respondent’s upper limb nerve conduction studies.  He said that nerve entrapment could be shown by a delay in nerve conduction across the compression point.  Symptoms were usually numbness or paraesthesia.  He stated many of the respondent’s symptoms related to ulnar nerve abnormality rather than median nerve abnormality. This would be a nuisance but would not interfere with the functional capacity of the hand.  Bilateral CTS was confirmed by the nerve conduction studies at or about November 2005 to February 2006.  He stated that the studies undertaken by Dr Symington were essentially normal, but that this did not mean there would be an absence of symptoms.  The right median nerve had been decompressed.  He expected no features in right CTS that interfere with use of the right hand. 

12.     Dr Kemp did not explore the condition of anterior compartment syndrome.  With regards to Dr McCubbery’s report of osteoarthritis in the respondent’s neck, Dr Kemp stated this was completely separate from nerve entrapment.  Arthritis in the wrist joint could cause pressure in the carpal tunnel. 

13.     Ms S Iannelli has been employed by Advanced Personnel Management since May 2005 as a Job Capacity Assessor (JCA) and rehabilitation consultant. She qualified Bachelor of Health Science in Occupational Therapy in 2004.  She has experience in assisting people with disabilities find and retain suitable employment.  She had two days training as a JCA, and has ongoing support and review of her reports. 

14.     Ms Ianelli stated in oral evidence that the purpose of a JCA was to look at medical restrictions and personal factors to gather information.  She had considered the information in all available medical reports and the respondent’s self-reported information.  She stated she was prepared to make her assessment despite not comprehending medical terminology included in the medical assessments.  She considered the right upper limb conditions, the anterior compartment syndrome in the legs and the hearing loss to be permanent (in the sense of diagnosed by a medical practitioner, fully treated and stabilised); and the depression and the left upper limb conditions not to be permanent.  She was prepared to have a conversation with a doctor if the doctor considered a condition to be permanent and she did not. 

15.     Ms Iannelli considered the right upper limb conditions should obtain an impairment rating of nil points based on Dr Roberts’ and Dr Kemp’s assessment of minor impairment and no significant impact on functional ability and capacity.  She considered the hearing loss should obtain an impairment rating of 5 points based on Dr Marty’s assessment of loss of hearing of 29.2%.  She considered the anterior compartment syndrome in the legs should obtain nil impairment points, based on the respondent’s reporting the condition remained the same between his retrenchment and claim.  This constant position meant the functional restriction was minimal.  She considered the respondent was able to function quite highly despite presence of depressive symptoms which were unlikely to have a major impact in the performance of work tasks.  With proper aids, [the respondent] would be fine.  She noted that the government provides specific interventions, through vocational rehabilitation services or disability intervention services, to assist with retraining or to help writing resumes to obtain and retain employment. 

applicant’s Submission

16.     The applicant concedes that the respondent has a physical and psychological impairment.  However, he submits that this fails to achieve 20 points or more under the Impairment Tables.  The applicant submits that specialist health professionals who conduct job capacity assessments, such as occupational therapists, psychologists or physiotherapists, may be regarded as medical officers if they have appropriate qualifications and/or training and/or experience in the relevant area relating to the person’s impairments.  The applicant submits that the respondent did not have a continuing inability to work 30 or more hours per week during the qualification period, which is part of the relevant test.  The applicant submits that a trained job capacity assessor is better placed to provide an assessment of the respondent’s capacity for employment.  The applicant also submitted that the respondent does not have an impairment that would prevent him undertaking educational or vocational training. 

respondent’s Submission

17.     The respondent stated that he had been honest and compliant with all of Centrelink’s requests at all times.  He stated that the SSAT decision was correct.  He is unable to hear a telephone ring despite it being on the maximum setting or his doorbell ring.  He is unable to hold a normal conversation and is unable to afford a hearing aid. 

Legislation

18. Section 94(1) of the Act provides that:

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)       …

19.     Chapter 1 of the Guide to the Impairment Tables provides that:

Work is defined in section 94(5) of the Social Security Act 1991.  For these purposes, work should be for at least 15 hours per week at or above the relevant minimum wage and should exist in Australia, even if not within the person's locally accessible labour market.

20.     Paragraphs 5 and 6 of the Introduction to the Impairment Tables provide that :

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 assessor 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.

Tribunal’s Considerations Of The Respondent’s Medical Conditions

right cts and lateral humeral epicondylitis:

21.     There is consistent evidence that the respondent’s right side is the dominant upper limb.  There is consistent evidence from contemporaneous examination and investigation that right CTS existed prior to the time of the claim.  The respondent gained some alleviation of symptoms by carpal tunnel release surgery but the symptoms persisted.  Evidence suggests that right lateral humoral epicondylitis affecting the ulnar nerve may explain the symptoms.  Evidence is consistent that during the relevant period there was functional impairment of the use of the dominant hand and upper limb of a manual worker.  There is consistent evidence the impairment lasted at least two years.  Medical practitioners have consistently assessed the impairment at 10 points according to Table 3 of the Impairment Tables. 

left cts and lateral humeral epicondylitis:

22.     There is evidence that left CTS-like symptoms existed at the time of claim.  Left carpal tunnel neurolysis occurred in November 2006.  In Stojanovic v Secretary, Department of Employment and Workplace Relations [2007] AATA 1202 at paragraph 32 the Tribunal considered that a condition has not been fully treated if [proposed available] treatment provides a reliable expectation of significant functional improvement.... For the respondent, carpal neurolysis existed as an available treatment for symptoms at the time of the DSP claim but previous surgical experience on his right side was unsuccessful. 

23.     On 30 November 2005 Dr Rose bundled both upper limb impairments, noting the dominant (right) to be more substantial than the mild[er] non-dominant left upper limb.  He assigned 10 impairment points for his dominant carpal tunnel syndrome.  There is no evidence before the Tribunal as to whether he turned his mind to the left CTS per se.  Drs McCubbery and Ching considered both sides together (bilateral) and regarded them as equivalent.  Dr Ching underlined major loss of strength, but this appears to be referring to the dominant (right) examination.  He stated that the condition was temporary as it was not fully stabilised.  He crossed out his original recommendation for review in one year to be at an earlier time of 9 months.  On 20 February 2007 Dr Symington reported minor delay in median nerve sensory conduction at the wrist bilaterally... .On 16 April 2007 Dr Kemp considered there was no evidence of continuing median nerve entrapment in either arm.  Drs Symington and Kemp did not have the benefit of an actual, contemporaneous examination of the patient during the qualification period. 

24.     Dr McCubbery’s report, dated 14 July 2006, noted bilateral humeral epicondylitis. Generally, he had only referred to right lateral humeral epicondylitis.  No other medical history or examination specifically referred to this diagnosis.  There was no specific management directed at this diagnosis. 

bilateral leg anterior compartment syndrome

25.     Dr McCubbery stated that that anterior compartment syndrome in the legs had affected the respondent from about 1990 associated with episodes of walking 200 metres.  Dr P Tutton of Health Services Australia stated in a 22 June 2006 report, relating to an application by the respondent for Newstart Allowance, that the condition was permanent as it was unlikely to alter within two years and assessed it at nil impairment points.  In his 16 April 2007 report Dr Kemp referred to aching pain in both calves.  The Tribunal considers this to refer to the posterior leg compartment.  Dr Kemp considered there were no features of peripheral vascular disease.  There was no evidence of investigation or treatment of the condition. 

hearing loss:

26.     There is evidence of hearing loss which has been appropriately investigated.  The applicant accepts that the respondent has an impairment rating of five points according to Impairment Table 12. 

depression:

27.     Dr McCubbery diagnosed the respondent as suffering from depression and was treating it at the time of the claim.  Dr McCubbery described it as severe.  Drs Ching and Rose considered depression to be mild.  Dr Tutton labelled it as major.  Drs McCubbery, Browne and Cheung refer to how the DSP claim process and interaction with Centrelink is exacerbating the respondent’s depression.  On 18 February 2008 Dr McCubbery wrote [the respondent’s depression] has been greatly aggravated by the behaviour of Centrelink towards him.  Dr Tutton’s assessment was at a time when the Centrelink processes were contributing to the respondent’s mental status.  As part of the process of ensuring compliance with the requirement of investigation of depression, other medical practitioners with psychiatric specialty experience (including a trainee of uncertain duration (Dr Browne) and a specialist (Dr Cheung)) were consulted, and were generally optimistic that the depression could be managed and improved.  On 20 July 2007 Dr Cheung assessed a psychiatric impairment rating of 10 according to Impairment Table 6.  This was most likely related to the respondent’s condition at the time of his examining the respondent, rather than his condition at the relevant period.  Ms Ianelli incorrectly referred to Dr Browne as being a specialist psychiatrist in her 17 July 2007 report. 

cervical spondylitis:

28.     Dr McCubbery referred to cervical spondylitis.  Dr Kemp’s 16 April 2007 report states he ... probably has mild cervical spondylosis that is constitutional... .  There is no evidence of investigation or specific treatment for this diagnosis, although anti-inflammatory medication may have assisted in the management of what appears to be a clinical diagnosis. 

migraine:

29.     Dr McCubbery referred to the respondent experiencing migraine in a letter dated 21 March 2007.  On 23 January 2007 Dr Symington refers to the respondent’s description of quite severe headaches which occupy the whole of the right side of his head ... [which] occur at times of stress.  There is no associated vomiting.  There is no evidence of a consistent history, investigation or specific treatment for this clinical diagnosis.  The Tribunal is aware that this may be a symptom of depression or an incidental event. 

30.     Dr Tutton also considered he was unfit for full time work for a period of six months.  When/if his depression improves enough, voluntary work may be the only option for him.  He recommended a review in six months to see if his medical conditions had altered.

Other Considerations:

31.     In Secretary, Department of Family and Community Services v Michael [2001] FCA 1811 the court decided only permanent, rateable conditions ... can be taken into account for deciding the “continuing inability to work” issue. 

32.      The Australians Working Together budget initiative occurred in September 2002.  This lead to the “Better Assessment and Early Intervention” program to determine an assessment of work capacity and early intervention to assist this.  It is understandable that medical practitioners may not follow such developments and continue within their medical model of patient management. 

33.      JCAs are part of the Welfare to Work package introduced on 1 July 2006 (after the respondent’s DSP claim qualification period).  They aim to consider a person’s functional assessment for work capacity and identification of barriers to employment, preferring employment as part of a person’s wellbeing.  JCAs are forward looking for future work capacity. 

Findings

34.      The applicant claimed DSP on 8 November 2005. Drs Rose, Franco, Ching and McCubbery performed reasonably contemporaneous medical assessments of the respondent.  Many other medical assessments or opinions on reports were obtained outside the relevant qualification period, with a view to supporting or discounting qualification for DSP. 

32.     The respondent has been compliant with all Centrelink requests throughout the protracted determination process.

33.     The applicant and Ms Ianelli have difficulty in comprehending the difference between a qualified medical specialist and a medical trainee undertaking specialist training.  The applicant has interpreted the opinion of a training specialist as that of a medical specialist.  Dr V Browne is a trainee in the specialty of psychiatry.  The Tribunal prefers the opinion of an experienced treating general practitioner with considerable knowledge of his patient to that of a trainee in a medical specialty who examines the patient on one occasion. 

34.      Ms Ianelli has appropriate training and qualifications for her role as a job capacity assessor, which she had been doing for some two years at the time of her first (face-to-face) assessment of the respondent.  She is employed by an appropriately supported organisation to undertake JCAs.  She has undertaken her assessments relating to functional work capacity after noting the various medical reports.  These reports were provided over considerable time, and with different circumstances prevailing and different levels of knowledge established when they were conducted, and with many substantially after the qualification period.  She had undertaken a JCA according to her skill and expertise but 20 months after the relevant qualification period.    In addition, Ms Ianelli admitted that she did not comprehend all the words in the medical reports she relied upon to form her opinion. 

35.     With respect to medical impairment assessment the Tribunal prefers the contemporaneous opinion of an experienced general practitioner than the opinion of a lesser experienced JCA reading reports 20 months later and attempting to perform a medical evaluation and allocation of impairment ratings retrospectively.  The Tribunal follows the opinion of the Federal Court in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen[2008] FCAFC 48 at paragraph 38; that It is the medical officer who must assign impairment rating... .  The Tribunal specifically rejects the applicant’s submission that specialist non-medical health professionals may be regarded as medical officers. 

36.     During the qualification period the respondent had a physical impairment of right (dominant upper limb) carpal tunnel syndrome and lateral humoral epicondylitis; which had been diagnosed, investigated and treated.  It was permanent (unlikely to improve in two years) and consistently received a contemporaneous impairment rating of 10 points.  [Tribunal note: this seems reasonable based on the Tribunal’s own medical knowledge and experience.]  

37.     During the qualification period the respondent had a physical impairment of left (non-dominant upper limb) carpal tunnel syndrome which had been diagnosed, investigated but not fully treated (subsequent surgical treatment was undertaken).  It was therefore temporary and no impairment rating can be awarded.  [Tribunal note: again, this seems reasonable based on the Tribunal’s own medical knowledge and experience.]  There is no convincing evidence of a diagnosis of left lateral humoral epicondylitis, and no specific investigation or treatment for the condition. 

38.     During the qualification period the respondent had a physical impairment of bilateral leg anterior compartment syndrome which had been diagnosed but there was no evidence of investigation or specific treatment of the condition, other than observation.  It was stabilised and medical opinion was that it will not improve in the next two years.  It was therefore permanent and nil impairment points was a consistent rating. 

39.     During the qualification period the respondent had a physical impairment of hearing loss.  It has been appropriately diagnosed and investigated.  The Tribunal accepts that the respondent has an impairment rating of five points according to Impairment Table 12. 

40.     During the relevant period the respondent had a psychiatric impairment of depression.  The depression was diagnosed, treated and stabilised, and was appropriately managed by the respondent’s general practitioner.  It was permanent in that it was unlikely to alter in the ensuing two years.  The Tribunal considers this is the baseline mental status to which subsequent psychiatric practitioners were optimistically aiming to return.  This is particularly supported by Dr Cheung’s specialist assessment in July 2007.  [Tribunal note: the Tribunal is aware from its own medical knowledge and experience that depression has a fluctuating course, and a treating general practitioner is well placed to assess the impact it has on a patient over time.] 

41.     The process of making a claim for DSP and its consequences has exacerbated the respondent’s depression and required increased treatment in terms of medication and counselling.  The Tribunal considers that it is problematic to maintain that a condition is not permanent due to it not being stable, in the sense that the condition has been exacerbated and might return to baseline with subsequent treatment.  This is particularly so when it is the Centrelink process that is causing the stress which is leading to the deterioration that is then regarded as the absence of stability.  It is reprehensible that the applicant should attempt to do so in the setting of the underlying policy objectives of the Act.

42.     Given the fluctuating nature of depression, the Tribunal favours the informed and contemporaneous assessment of Dr McCubbery, the medical practitioner with the greatest knowledge and experience of the patient at the time of the claim, who regarded it as severe.  The medical assessment is consistent with allocation of 10 impairment points.  There is no evidence of any symptoms listed in the Impairment Tables which would be assessed at 20 impairment points. 

43.     During the qualification period the respondent had a physical impairment of neck discomfort.  He was diagnosed with cervical spondylitis but there was no evidence of investigation or specific treatment.  It was therefore a temporary condition and no impairment rating could be awarded. 

44.     There is no evidence that during the qualification period the respondent had a physical impairment of migraine.  There was no evidence of investigation or specific treatment for such a condition.  Therefore, no impairment rating could be awarded. 

45.     The respondent had permanent conditions of right (dominant upper limb) carpal tunnel syndrome and lateral humoral epicondylitis, hearing loss, anterior compartment syndrome and depression. These conditions were awarded an impairment rating of 25 points during the qualification period.  These are the conditions which must be taken into account when considering whether the respondent has a continuing inability to work. 

46.     Dr McCubbery has consistently completed medical certificates and TDRs indicating that the respondent is unable to undertake the work in which he had been employed prior to his retrenchment. 

47.     The applicant has used the information from a JCA 20 months after the relevant period of the DSP claim to consider what the situation may have been like during the qualification period.  The Tribunal observes that there have been two supplementary JCAs lodged with the Tribunal, which alter the opinion submitted previously, in an apparent attempt to cover every possible permutation of circumstances of the respondent.  This does not inspire confidence in the notion of retrospective assessments, particularly by an assessor with limited experience.  This is further complicated by the fact that JCAs did not exist during the respondent’s qualification period.  This is not consistent with the stated policy of the forward-looking JCAs. 

48.     Despite the Tribunal’s comments in the preceding paragraph, the information provided by the JCA is consistent with medical assessments contemporaneous to the qualification period, and integrates those assessments, albeit historically.  The evidence is consistent that there is no continuing inability to work for at least 30 hours per week for award wages or to retrain for lighter duties that may not require substantial use of the dominate upper limb or marked walking due to permanent physical or psychiatric impairment.  The Tribunal accepts there is some work that the applicant would be able to undertake for over 30 hours per week for award wages.

Conclusion

49. The respondent satisfies s 94(1)(a) and (b) of the Act in that he had permanent conditions of right (dominant upper limb) carpal tunnel syndrome and lateral humoral epicondylitis, hearing loss and depression that attracted 20 or more impairment points during the qualifying period. However, the respondent does not satisfy s 94(1)(c) of the Act, in that he does not have a continuing inability to work because of his impairment as required by the Act.

50.     The Tribunal concludes that at the time of his claim for DSP and in the following 13 weeks the respondent did not satisfy the requirements necessary to qualify for DSP. 

Decision

51.     Accordingly, the decision to reject the claim for DSP was the correct decision.  The Tribunal therefore sets aside the decision of the SSAT made on 13 November 2006. 

I certify that the 51 (fifty-one) preceding paragraphs are a true copy of the reasons for the decision herein of Dr R McRae

Signed:         ............... [Sanjiv Shah]......................
  Associate

Dates of Hearing  26 March 2008 & 9 May 2008
Date of Decision  7 August 2008
Representative for the applicant    Mr K Foudoulis, Self-Represented
Solicitor for the respondent           Mr T Noonan, Centrelink Advocate