Harris and Secretary, Department of Employment and Workplace Relations
[2006] AATA 503
•9 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 503
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2005/1086
)
GENERAL ADMINISTRATIVE DIVISION ) Re INGRID HARRIS Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Senior Member M D Allen
Member Dr M E C Thorpe, MemberDate9 June 2006
PlaceSydney
Decision The decision under review is affirmed. (Sgd) M D Allen
..............................................
Presiding Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – Applicant is severely disabled by a number of conditions including chronic pain and depression – Tribunal finds that the Applicant’s chronic pain and anxiety/depression have not been fully investigated or treated – Tribunal finds that Applicant does have an inability to work but her degree of incapacity does not amount to 20 points – decision under review affirmed.
Social Security Act 1991; s 94, Schedule 1B
Social Security Administration Act 1999; s 42, Schedule 2
REASONS FOR DECISION
Senior Member M D Allen
Dr M E C Thorpe, Member9 June 2006
1. By application made 24 August 2005 the Applicant sought review of a decision by Social Security Appeals Tribunal made 20 July 2005, affirming a prior determination that she was not entitled to a disability support pension.
2. The Applicant had originally made her claim for disability support pension on 3 May 2004. Pursuant to s 42 and Schedule 2 to the Social Security Administration Act 1999 (the “SSA Act”), the Applicant’s entitlement to disability support pension must be considered as at 3 May 2004 (the “Start Day”) and for a period of 13 weeks thereafter. In other words if her state of health has deteriorated after that period of time that fact is irrelevant to the Tribunal’s consideration of the matter.
3. Section 94 of the Social Security Act 1991 (“SS Act”) sets out the criteria for the grant of a disability support pension. That section reads inter alia:
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) …
(d)…
(e)…
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 two years; and
(b)either:
(i) the impairment is of itself sufficient to prevent the person from undertaking vocational or vocational training or on-the-job training during the next two 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 two years.
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 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)…
4. Schedule 1B to the SS Act sets out the tables for the Assessment of Work Related Impairment for Disability Support Pension (“the Tables”). Unless an Applicant can obtain a reading of 20 points according to the Tables in Schedule 1B, then pursuant to paragraph 94(1)(b) a disability support pension cannot be granted.
5. There is no dispute that the Applicant is severely disabled by several conditions, namely:
(a)Bilateral carpel tunnel syndrome;
(b)Osteoarthritis of both shoulders and both wrists;
(c)Osteoarthritis and osteoporosis of the thoraco-lumbar spine;
(d)Sleep apnoea;
(e)Thyroid disease;
(f)Hiatus hernia; and
(g)Depression.
More importantly however she is disabled by chronic pain.
6. On 18 May 2004, the Applicant’s degree of impairment as per Schedule 1B was assessed by Dr Arad of Health Services Australia. The conditions to which he had regard were neck pain, right shoulder pain and right carpal tunnel syndrome, left shoulder pain and anxiety/depression. He allocated an impairment assessment of nil for neck pain on the basis that the Applicant had an “adequate range of neck movements”, ten for right shoulder pain and right carpal tunnel syndrome, five for left shoulder pain and nil for anxiety/depression.
7. In making his assessment Dr Arad had regard to Tables 3 and 5.1 of Schedule 1B which measure a range of movement.
8. The Applicant was also examined by Dr Mark Burns, Occupational Physician, for the purposes of these proceedings. In his initial report dated 9 January 2006 he also had regard to Tables 3 and 5 and gave a rating of ten and five.
9. Dr Arad considered the Applicant’s anxiety/depression and gave a rating of nil based on Table 6 of Schedule 1B whereas Dr Burns did not give a rating under that Table as he considered that the Applicant’s depression had not been fully assessed. Dr Burns stated in his report:
“… It appears that this condition is currently under-diagnosed and under-treated.”
More significantly however he stated:
“I believe that Ms Harris’ main problems are in fact pain in her upper limbs. She also to a lesser degree has pain in her neck and spine. Functionally, though, she has a reasonable range of movement in her spine and also a reasonable range of movement in the joints of her upper limbs. Because her main problem is pain she does not rate particularly highly from the Schedule 1B Table.”
10. Dr Burns reconsidered his impairment rating in a report dated 6 February 2006. In that report he assessed the Applicant using Table 20 of Schedule 1B which allows for the assessment of pain and stated:
“… she certainly has chronic pain and ongoing disability in both upper limbs. They certainly do have an effect on her everyday efficiency and her ability to carryout daily activities.”
11. He gave her an impairment rating of 20 as per Table 20 to Schedule 1B.
12. We accept the Applicant’s evidence that she is depressed. Whether this is as a result of chronic pain or other reasons we cannot assess. The difficulty in having regard to the Applicant’s depression is that adverted to by Dr Burns, namely that she has never had any psychiatric or psychological involvement in that condition.
13. In evidence the Applicant stated that she had been prescribed Zoloft (an anti-depressant medication) by her then general practitioner in 2004 but had discontinued its use after one to two months because of its side effects upon her. She has recently been prescribed Zoloft again by her current general practitioner.
14. Paragraphs 4, 5 and 6 of Schedule 1B read inter alia:
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. …
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. …
6.In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
what treatment or rehabilitation has occurred;
…
15. So far as the Applicant’s anxiety state/depression is considered we are satisfied that it has not been fully investigated or treated. Without proper diagnosis and treatment by a psychiatrist or psychologist, just what psychiatric illness the Applicant is suffering and what treatment regime is appropriate remains speculative.
16. Similar difficulties arise for the Applicant’s chronic pain syndrome. Apart from the possibility it is interconnected with her anxiety/depressive state, there has been no intervention such as reference to a pain clinic.
17. We find therefore that the Applicant cannot be assessed under Table 20 as her chronic pain has not been diagnosed or treated much less stabilised. The difficulty then is that under the other applicable Tables of Schedule 1B, namely Table 3 – Upper Limb Function and Table 5.1 – Cervical Spine, both Dr Arad and more importantly, specialist occupational physician Dr Burns, give a total rating of only 15 points.
18. So far as the Applicant’s ability to work is concerned we are satisfied on the material before us that the Applicant has a present inability to work and it is clear that no vocational training would render her fit to work in any capacity available to her.
19. We are therefore satisfied that the Applicant does have a current inability to work but because her degree of incapacity does not amount to 20 impairment points, the decision to refuse a grant of a disability support pension must be affirmed.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr M E C Thorpe, Member.
Signed: (E.Pope) .....................................................................................
AssociateDate of Hearing 26 May 2006
Date of Decision 9 June 2006Counsel for the Applicant Dr K Sant
Solicitor for the Applicant Legal Aid Commission
Counsel for the Respondent Mr B KellySolicitor for the Respondent Australian Government Solicitor
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