IDEN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 680

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 680

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1264

GENERAL ADMINISTRATIVE DIVISION		)
Re		DENNIS IDEN

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date8 September 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – Benefits and entitlements - Disability support pension – Relevant time-frame for assessment – Permanent physical impairment in the form of pain in lower back – Impairment rating of 10 points under Table 20 of Schedule 1B – No evidence of range of movement loss – Other conditions not diagnosed, investigated, treated and stabilised  - Applicant not qualified for disability support pension - Decision affirmed.

Social Security Act 1991 (Cth) - section 94 Schedule 1B

Social Security (Administration) Act 1999 (Cth) Schedule 2

REASONS FOR DECISION

8 September 2010 Mr R G Kenny, Senior Member    

BACKGROUND

1.      On 24 August 2009, Dennis Iden lodged a claim for disability support pension which is payable under the terms of the Social Security Act 1991 (Cth) (“the Act”). This was rejected by a Centrelink delegate on 9 October 2009. On 27 November 2009, an authorised review officer affirmed the decision as did the Social Security Appeals Tribunal (“SSAT”) on 18 March 2010. Mr Iden seeks review of that decision by the Administrative Appeals Tribunal (“the Tribunal”).

LEGISLATION, ISSUES AND SUBMISSIONS

2. The qualifications to receive a disability support pension are set out in s 94 of the Act. It is common ground that Mr Iden meets the age and residency requirements of that provision. The remaining requirements thereof are:

·whether Mr Iden has a physical, intellectual or psychiatric impairment; and, if so

·whether he has an impairment rating of 20 points or more which is calculated under the Impairment Tables in Schedule 1B of the Act as required by s 94(1)(b) thereof; and, if so

·whether he has a continuing inability to work as required by s 94(1)(c)(i) of the Act.

3. To qualify for a disability support pension, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the initial claim or in the period of 13 weeks from the day of the claim[1].  In Mr Iden’s case, this is from 24 August 2009 until 23 November 2009 (“the relevant period”).  The conditions nominated by Mr Iden’s treating general practitioner, Dr Sreedevi Pabbati, in a report dated 21 August 2009 and attached to Mr Iden’s claim, were osteoarthritis left ankle, lumbar spondylosis, calcaneal spur left foot, and foreign body left index finger.  Mr Iden has also referred to problems with the big toe on his left foot, with his hands and wrists as well as chronic fatigue syndrome.  

[1] See sch 2, cl 3 and cl 4 of the Social Security (Administration) Act 1999 (Cth)

4. The authorised review officer allocated only one impairment rating to Mr Iden. This was 15 points under table 20 of Schedule 1B for his spinal condition. This was based, in part, on a Job Capacity Assessment Report completed by registered psychologist, Deanne Farrell, on 1 September 2009. She allocated 10 points under table 20 for that condition only. The authorised review officer also took into account the description of symptoms given to him by Mr Iden. As the rating was less than the threshold of 20 points required under s 94 of the Act to qualify for disability support pension, Mr Iden’s claim was rejected. That was also the conclusion reached by the SSAT.

5. The issues for the Tribunal are whether Mr Iden has an impairment rating of at least 20 points under the tables in Schedule 1B of the Act and, if so, whether he has a continuing inability to work as required by s 94(1)(c)(i) of the Act during the relevant period. For continuing inability to work, the relevant parts of s 94 of the Act read:

“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 independently of a program of support within the next 2 years; and

(b)       either:

(i)        the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii)       if the impairment does not prevent the person from undertaking a training activity—such training is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 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 a training activity; or

(b)       the availability to the person of work in the person's locally accessible labour market.

94(4)    A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:

(a)       is unlikely to need a program of support that:

(i)        is designed to assist the person to prepare for, find or maintain work; and

(ii)       is funded (wholly or partly) by the Commonwealth or is of a type that the Secretary considers is similar to a program of support that is funded (wholly or partly) by the Commonwealth; or

(b)       is likely to need such a program of support provided occasionally; or

(c)       is likely to need such a program of support that is not ongoing.

94(5)    In this section:

training activity means one or more of the following activities whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

education;

pre-vocational training;

vocational training;

vocational rehabilitation;

work–related training (including on-the-job training).

work means work:

a)        that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

b)        that exists in Australia, even if not within the person's locally accessible labour market.”

6. The Introduction to Schedule 1B of the Act provides guidance in the application of the various tables which it contains. Part of that Introduction reads:

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.

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.

7. For the respondent, Bob Hamilton submitted that Ms Farrell’s opinion in relation to Mr Iden’s impairment for all nominated conditions should be adopted. He submitted that, in the relevant period, this was in accordance with the medical evidence, including the report of Dr Pabbati. He also submitted that, based on the various assessment capacity reports in evidence including that of Ms Farrell, Mr Iden did not satisfy the incapacity for work requirements of s 94(2) of the Act.

8. Mr Iden submitted that he suffers from extreme pain, especially from his back, such that he is limited in what he is able to do. He described this as his most serious concern and submitted that it rated 20 impairment points under table 20 in Schedule 1B. He also submitted that he would be unable to engage in work or training for 15 hours per week because of the unpredictability of the onset of the more severe episodes of pain which he experiences.

EVIDENCE

Mr Iden

9.      Mr Iden has an employment background as a panel beater but has not worked since 1996.  At that time, the consequences of a motor cycle accident he had some years earlier began to impact heavily on him.  When he lodged his claim, his most serious problem was his left ankle but, in recent times, his back condition has deteriorated to a point where it concerns him most.  He described an occasion in the previous week when his back locked up and he experienced extreme pain radiating down his left leg to his foot. The pain was such that he called an ambulance and was transported to the emergency department of the Bundaberg Base Hospital.  He was discharged with advice to see his general practitioner.  Mr Iden said that a fusion procedure had been suggested as a possibility for his spine.

10.     Mr Iden said that the condition in his left ankle is complicated by the problems with his big toe and left heel.  He had been advised in 2005 by orthopaedic surgeon, Dr Robinson, that his toe joints could be fused but that this would exaggerate the problem with his ankle.  Mr Iden said that the pain from his heel spur is less frequent now because he has reduced the extent that he walks because of his ankle.  In relation to his hands and wrists, Mr Iden said that he is able to move them freely but that he experienced pain on doing so.  The foreign body in his finger is a shard of glass.  He said that an attempt to remove it was unsuccessful and that he had been advised recently that it should be left alone.  He described a “nagging” and a “tingling” in the finger and said that he was waiting for further advice about how it should be treated.  Mr Iden said that he had suffered from Ross River fever some years ago and now experienced symptoms that may be associated with chronic fatigue syndrome.  He agreed that the condition had not been formally diagnosed. 

11.     Until about April 2009, Mr Iden lived alone on a 10 metre boat that he owned.  It was moored at a marina but he would operate it from time to time when he had friends to assist him.  He was self-contained on the boat except for washing facilities.  He used those at the marina which involved him in a 50 metre walk from the boat.   Mr Iden now rents a room in a house in Bundaberg but is still able to cater for his own needs in relation to cooking, shopping, driving and matters of self care.  From time to time, he drives from Bundaberg to the Sunshine Coast to stay at a friend’s rural property.  He does this to mind the friend’s dog and to maintain a presence on the property when his friend is away for extended periods.  On these occasions, he sleeps in his own van and utilises the facilities of his friend’s house. 

12.     At times, Mr Iden travels to Germany where his mother and other family members live.  He did this last year and said that he needed to take pain killers to allow him to endure the discomfort associated with the long flight times.  He completed a short term business training course about 10 years ago and used a subsequent trip to Germany in an unsuccessful attempt to establish a business selling Australian products. 

Other evidence

13.     In her evidence, Ms Farrell confirmed that she relied upon Dr Pabbati’s report and that she had also spoken with Dr Pabbati before completing her report.  In her report, Dr Pabbati described the calcaneal spur and the foreign body in Mr Iden’s index finger as having a moderate impact and wrote that she was uncertain about whether significant improvement could be expected.  Ms Farrell reported that, in conversation with her, Dr Pabbati had confirmed that Mr Iden had complained of pain in his wrists but that arthritis had not been confirmed and no treatment had been instigated for his wrists and hands.  Ms Farrell also reported that Dr Pabbati confirmed a previous episode of Ross River fever but no tests for or diagnosis of chronic fatigue syndrome.  Ms Farrell noted Dr Pabbati’s advice that Mr Iden had seen orthopaedic surgeon Dr Robinson in 2005 in relation to his right foot and that no treatment was identified.  She also noted that Dr Pabbati was unable to comment on the functional impact of Mr Iden's foot problems.

14. The Introduction to Schedule 1B provides that, for an impairment rating to be allocated to a condition, it must have been diagnosed, treated and stabilised and considered to be permanent, in that there must be evidence that it will persist for more than two years. In that sense, Ms Farrell’s assessment was that Mr Iden’s back and ankle conditions as well as his hand/wrist condition were permanent but that his other lower limb and finger deficiencies were not. She also concluded that the only condition which was fully diagnosed, treated and stabilised was his back condition. For that reason, that was the only condition for which she allocated an impairment rating. For this, she assessed Mr Iden at 10 points under Table 20. Ms Farrell gave no rating under Table 5.2 which is specific to spinal function because she was not qualified to assess range of movement which is the focus of that Table. Ms Farrell noted that an assessment of range of movement had been arranged with Mr Iden to take place on 4 September 2009 but that, on the day before, Mr Iden had cancelled the appointment. He said that this was because he was driving to Mackay and would be away from Bundaberg for approximately three months. Ms Farrell’s opinion of Mr Iden’s work capacity was that he was capable of working 15 to 22 hours per week in a moderate semi skilled field such as “storeperson, sales, trainer”.

15.     In evidence were earlier Job Capacity Assessment reports.  On 6 March 2009, Kathy Hogg, assisted by medical practitioner Anne Durack, noted that, during a sixty minute interview, Mr Iden had not indicated any restriction with bending, twisting or sitting.  Ms Hogg also considered that Mr Iden demonstrated a capacity to work for 15 to 22 hours per week.  In an earlier report, dated 13 March 2007, Jannell Skillington, social worker, expressed the opinion that Mr Iden was capable of working for 30+ hours per week in moderate less skilled employment at that time. 

16.     As part of a further claim for disability support pension, Mr Iden obtained a medical report from another general practitioner, Dr Peter Darazs.  In his report, dated 15 July 2010, Dr Darazs identified a disc protrusion in Mr Iden’s spine and osteoarthritis in his left ankle.  He also described a “finger” problem and osteoarthritis without noting the site thereof. 

CONSIDERATION

17. Under Schedule 1B of the Act, only a fully documented, diagnosed condition which has been investigated, treated and stabilised may be given an impairment rating. The medical evidence, particularly that of Dr Pabbati, supports Ms Farrell’s opinion that only Mr Iden’s spinal condition meets that description during the relevant period. Accordingly, I am satisfied that the back condition is the only condition that may be rated. The criteria at the ten, fifteen and twenty impairment points levels of Table 20 read:

Rating	Criteria
TEN	Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work‑related tasks. There is minimal effect/impact on work attendance…
FIFTEEN	Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self‑care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work‑related tasks and/or attend work. Full‑time work would still be possible. Potentially life‑threatening condition which is currently interfering with daily activities but self‑care is unaffected.
TWENTY	More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work‑related tasks. Symptoms may cause prolonged absences from work.

18.     The evidence of Mr Iden was that his back condition has deteriorated since he was assessed during the relevant period.  In her report at that time, Dr Pabbati wrote that Mr Iden has constant back pain which was interfering with his daily activities.  He was not assessed specifically for loss of range of movement which is the province of Table 5.2.  It reads:

TABLE 5.2.          THORACO---LUMBAR–SACRAL SPINE

As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.

Rating

Criteria

NIL

Normal or nearly normal range of movement

FIVE

Loss of one-quarter of normal range of movement

TEN

Loss of one-quarter of normal range of movement as well as back pain or referred pain:

·   with many physical activities; and

·   with standing for about 30 minutes; and

·   with sitting or driving for about 60 minutes

or
Loss of half of normal range of movement.

TWENTY

Loss of half of normal range of movement as well as back pain or referred pain:

·   with most physical activities; and

·   with standing for about 15 minutes; and

·   with sitting or driving for about 30 minutes

or

Loss of three-quarters of normal range of movement.

FORTY

Ankylosis in an unfavourable position, or unstable joint.

19.     Ms Farrell noted that Mr Iden cancelled his appointment for an assessment of his range of movement and that he advised that he would not be available until after the relevant period ended.  The only reference to range of movement in the evidence is that provided by Kathy Hogg, as assisted by a medical practitioner.  She reported that Mr Iden had not indicated any restriction with bending, twisting or sitting. 

20. On the evidence before me, I am satisfied that, during the relevant period, the appropriate assessment rating for Mr Iden’s back condition is 10 points. That is less than the threshold as provided for in s 94(1)(b) of the Act. I am also satisfied that the appropriate work assessment for Mr Iden, during the assessment period, is at least 15 hours per week as reported by Ms Farrell. This means that he does not satisfy the work-related requirements of s 94(1)(c) and s 94(2) of the Act.

21. As Mr Iden does not satisfy the terms of s 94 of the Act, he is not qualified, during the relevant period, for disability support pension.

DECISION

22.     The Tribunal affirms the decision under review.

I certify that the preceding 22 paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

Signed: ......................[Sgd].......................................................

Kate Slack, Research Associate

Date of Hearing:  31 August 2010
Date of Decision:  8 September 2010
The Applicant was self-represented
For the Respondent   Mr Bob Hamilton, departmental advocate