Georges and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1393
•1 June 2007
Administrative Appeals TribunalDECISION AND REASONS FOR DECISION [2007] AATA 1393
ADMINISTRATIVE APPEALS TRIBUNAL № V 200600956
GENERAL ADMINISTRATIVE DIVISION
Re: FIAWZI GEORGES
Applicant
And: SECRETARY,
DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal: Dr R. McRae, Member
Date:1 June 2007
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) R. McRae
Member
SOCIAL SECURITY ‑ disability support pension ‑ lumbar disc sprain - non-union of scaphoid fracture - neck injury - elbow trauma with olecranon bursitis - constant pain - severe migraine – vertigo - reflux oesophagitis - glaucoma – agitated depression ‑ chronic pain syndrome - whether 20 impairment points ‑ continuing inability to work
Administrative Appeals Tribunal Act 1975
Social Security Act 1991 s 94(1), (2), (3) and (5), Schedule 1B, Introduction to the Impairment Tables pp 4, 5 and 6
Social Security (Administration) Act 1999 ss 41, 42, Schedule 2, cll 3 and 4(1)
REASONS FOR DECISION
1 June 2007 Dr R. McRae, Member
1. Mr Fiawzi Georges (the Applicant) lodged a claim for disability support pension (DSP) with Centrelink on 8 August 2005. Centrelink acts as the service delivery agency for the Secretary to the Department of Employment and Workplace Relations (the Respondent). On 5 September 2005 Centrelink rejected the claim because the Applicant’s impairment was considered temporary or likely to improve within two years and he therefore failed to satisfy s 94 of the Social Security Act 1991 (the Act). The Applicant sought a review of the decision by a Centrelink authorised review officer (ARO). On 30 September 2005 the ARO affirmed the decision to reject the Applicant’s claim. The Applicant then sought review of the decision by the Social Security Appeals Tribunal (SSAT). On 20 September 2006 the SSAT affirmed the decision. The Applicant now seeks a review of the SSAT decision by the Tribunal.
2. The issue for the Tribunal is whether the Applicant was entitled to DSP under s 94(1) of the Act at the time of the claim for DSP or within the subsequent 13 weeks (the relevant qualifying period). The Tribunal’s decision is that the Applicant is not entitled to DSP.
3. The Applicant was self-represented. He was assisted by an appropriately qualified Arabic interpreter. The Respondent was represented by Mr T Noonan, a Centrelink advocate. The Tribunal had before it documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents).
BACKGROUND
4. The Applicant is a 46-year old married Turkish man, who lives with his wife. The Applicant has worked as a porter in a fish market for some ten years. He stopped working after a fall which caused a back injury about one year prior to the DSP claim made on 8 August 2005. He has poor English language skills. He received newstart allowance from 23 July 2005 until 16 November 2006, during which period he provided Centrelink with three-monthly medical certificates. He is currently receiving DSP, following a successful claim lodged on 23 November 2006.
5. The Applicant had lodged an earlier claim with Centrelink for DSP on 8 August 2005, claiming lumbar disc sprain, non-union of a right scaphoid fracture, neck injury and left elbow trauma with olecranon bursitis, constant pain from these sites, severe migraine, vertigo, reflux oesophagitis and glaucoma. The claim before the ARO was supported by a Treating Doctor’s Report (TDR), completed by Dr Grokop, dated 13 September 2005.
6. Centrelink had the Applicant examined by Dr Rose, an examining medical adviser with Health Services Australia. He provided a work capacity assessment dated 2 September 2005. Dr Rose assessed the back and right thigh pain as being mil (sic). He assessed the neck pain as temporary as it had not been fully investigated or treated. He found the Applicant had fractured a small bone in his right hand a few years earlier and this had been aggravated by the fall the previous year. He assessed this injury as causing mild impairment related to activities of daily living. He considered it temporary through lack of investigation or treatment. He assessed left elbow pain as causing mild impairment related to activities of daily living, and a temporary through lack of investigation or treatment. He assessed the Applicant’s glaucoma as temporary. Dr Rose concluded that the Applicant was temporarily incapable of working. This was due mainly to recent glaucoma surgery and ongoing headaches. He recommended a review in six months.
7. The claim for DSP was rejected on 5 September 2005. The Applicant lodged a further TDR by Dr Grokop dated 13 September 2005. This report added the condition of agitated depression receiving counselling. However, it did not alter the decision to reject the DSP claim. Another TDR by Dr Grokop dated 6 July 2006 referred to peptic ulcer.
8. The SSAT reviewed the medical evidence and a job capacity assessment dated 18 July 2006, conducted by Ms Coull. Her assessment was that improvement was expected with further surgical treatment. The SSAT determined that the Applicant’s back pain, neck pain, glaucoma and peptic ulcer were not fully treated or stabilised, and his right wrist pain, left shoulder pain, left elbow pain, migraines and agitated depression were not fully investigated or treated. The SSAT affirmed the decision on 20 September 2006.
APPLICANT’S SUBMISSIONS
9. The Applicant stated that he relies on the three-monthly medical certificates provided for sickness benefit. He is now receiving DSP and, as he put it, when first injured I was unable to work: now get DSP, why difference? He submitted that he should have received DSP from the original claim date. The Applicant relied on the TDRs from Dr Grokop and tendered two hand-written letters from Dr Grokop. The first dated 16 February 2007 (Exhibit A1) referred to an intention for surgery to the right wrist, neck, lower back, left shoulder and elbows in 2004; this surgery did not occur. The letter stated his condition has worsened from very disabled in 2004/2005 to extremely disabled in 2006/2007. The second hand-written letter dated 9 March 2007 (Exhibit A2) referred to a psychiatric assessment undertaken in October 2006. There was no new medical evidence relevant to the qualification period for DSP which is the subject of this appeal.
10. Under cross-examination the Applicant stated that his main problem is pain in the right hand and [coccyx] and neck and headache/migraine. He takes Panadol all the time, Indep for stress and a sleeping tablet.
RESPONDENT’S SUBMISSIONS
10. The Respondent tendered a job capacity assessment report dated 21 December 2006 conducted by Ms Kucan. This was obtained in response to his 23 November 2006 claim and resulted in the granting of DSP from 16 November 2006. This report assessed the Applicant’s upper limb condition as having an impairment rating of 10 points under Table 3 of The Tables for the Assessment of Work-Related Impairment for Disability Support Pension in Schedule 1B of the Act (the Impairment Tables). The report assessed the Applicant’s psychiatric condition as having an impairment rating of 20 points under Table 6 of the Impairment Tables. However, the Respondent submitted that the Applicant did not satisfy s 94(1)(b) of the Act during the relevant qualifying period.
11. Under cross-examination the Applicant agreed with the Respondent’s written contentions paragraph by paragraph. The Applicant conceded that further investigation or treatment had been recommended or contemplated with respect to his back condition, his neck condition, his right wrist condition, his left shoulder condition, his left elbow condition, his glaucoma, and his migraines. The Applicant stated his agitated depression and chronic pain syndrome has worsened.
LEGISLATION
12. 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)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…
12. Paragraphs 4, 5 and 8 of The Introduction to the Impairment Tables provide that:
…
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.
…
8. In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates. Medical officers must use their clinical judgement and be convinced that pain or fatigue is a significant factor contributing towards the person's overall functional impairment. Medical reports and the person's history should consistently indicate the presence of chronic entrenched pain or fatigue.
…
FINDINGS
Lower Back Pain
13. There is consistent evidence that the Applicant has lower back pain. However, there is a plan of management and there are treatment recommendations.
14. The Tribunal considers the lower back pain has not been fully investigated, treated and stabilised. Therefore, no impairment rating can be assigned.
Neck Pain
15. There is consistent evidence that the Applicant has neck pain. However, there is a plan of management and there are treatment recommendations.
16. The Tribunal considers the neck pain has not been fully investigated, treated and stabilised. Therefore, no impairment rating can be assigned.
Right Wrist
17. There is consistent evidence that the Applicant has right wrist pain. However, there is a plan of management and there are treatment recommendations.
18. The Tribunal considers the right wrist pain has not been fully investigated, treated and stabilised. Therefore, no impairment rating can be assigned.
Left Shoulder Pain
19. There is consistent evidence that the Applicant has left shoulder pain. However, there is a plan of management and there are treatment recommendations.
20. The Tribunal considers the left shoulder pain has not been fully investigated, treated and stabilised. Therefore, no impairment rating can be assigned.
Left Elbow Pain
21. There is consistent evidence that the Applicant has left elbow pain. However, there is a plan of management and there are treatment recommendations.
22. The Tribunal considers the left elbow pain has not been fully investigated, treated and stabilised. Therefore, no impairment rating can be assigned.
Glaucoma
23. There is consistent evidence that the Applicant has glaucoma. However, there is a plan of management and there are treatment recommendations.
24. The Tribunal considers the glaucoma has not been fully investigated, treated and stabilised. Therefore, no impairment rating can be assigned.
Migraines
25. There is consistent evidence that the Applicant has migraines. However, there is a plan of management and there are treatment recommendations.
26. The Tribunal considers the migraines have not been fully investigated, treated and stabilised. Therefore, no impairment rating can be assigned.
Peptic Ulcer
27. There is consistent evidence that the Applicant has a peptic ulcer. However, there is a plan of management and there are treatment recommendations.
28. The Tribunal considers the peptic ulcer has not been fully investigated, treated and stabilised. Therefore, no impairment rating can be assigned.
Agitated Depression And Chronic Pain Syndrome
29. There is limited evidence that the Applicant suffers from agitated depression. First consideration of this diagnosis emerged after the application for DSP was lodged. The evidence related to chronic pain syndrome is less certain. A plan of management and treatment recommendations exist.
30. The Tribunal considers agitated depression and chronic pain syndrome are not fully investigated, treated and stabilised. No impairment rating can be assigned.
CONCLUSION
23. The Applicant has several physical conditions and therefore a physical impairment. He thus satisfies s 94(1)(a) of the Act. Whether a psychiatric impairment is concurrently present is consequently not relevant at this step. However, no impairment rating can be assigned to the physical impairment as none of the conditions are permanent as defined in the Act. The Applicant’s impairment rating is thus nil. Therefore, he does not satisfy s 94(1)(b) of the Act. There is no requirement to consider s 94(1)(c) of the Act in the circumstances.
24. The Tribunal concludes that the Applicant did not satisfy the requirements necessary to qualify for DSP during the relevant qualifying period.
DECISION
25. Accordingly, the decision of the Respondent to reject the Applicant’s 8 August 2005 claim for DSP was the correct decision. The Tribunal affirms the decision under review.
I certify that the twenty-five [25] preceding paragraphs are a true copy of the reasons for the decision of:
Dr.R. McRae, Member
Signed: Ursula Noyé
Clerk
Date of Hearing: 19 March 2007
Date of Decision: 1 June 2007
Advocate for the Applicant: Self‑representedAdvocate for the Respondent: Mr T Noonan, Centrelink Legal Services Branch
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