James and Secretary, Department of Employment and Workplace Relations
[2006] AATA 1039
•1 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1039
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/65
GENERAL ADMINISTRATIVE DIVISION ) Re BRIAN JAMES Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Dr KS Levy, Senior Member Date1 December 2006
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution decides the applicant is entitled to Disability Support Pension as at the date of cancellation of pension, that is, 8 July 2005.
...........................
KS Levy
Senior Member
CATCHWORDS
SOCIAL SECURITY - pensions, benefits and allowances - disability support pension - continuing inability to work – multiple incapacities including substance abuse, psychiatric impairments and orthopaedic impairments – decision set aside– applicant entitled to disability support pension
Social Security Act 1991 s94
Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467; (1997) 2 SSR 129c
Newman and Secretary to the Department of Family and Community Services [2002] AATA 917; (2002) 71 ALD 222; (2002 5(6) SSR 64
Eckersley and Department of Family and Community Services [2001] AATA 798
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444; (1999) 164 ALD 572; (1999) 29 AAR 561; [1999] FCA 994REASONS FOR DECISION
1 December 2006 Dr KS Levy, Senior Member Background
1. The applicant, Brian James, was granted Disability Support Pension on 18 September 2002, following an assessment that he had a physical impairment of 20 points or more under the Impairment Tables in the Social Security Act 1991 ("the Act").
2. On receipt of medical service update forms in June 2005, Centrelink cancelled Mr James' Disability Support Pension on 8 July 2005. He sought a review of this decision on 15 July 2005, and lodged a treating doctor's report for a new condition of Coeliac disease on 21 July 2005.
3. On 22 July 2005, the original decision-maker affirmed the decision. It was further reviewed by an Authorised Review Officer (ARO) and again affirmed on 15 September 2005. Mr James appealed to the SSAT on 22 September 2005. On 9 January 2006, the SSAT affirmed the original decision and the Respondent cancelled the applicant’s Disability Support Pension.
4. The applicant now appeals that decision to the Administrative Appeals Tribunal (“the Tribunal”).
PRELIMINARY ISSUES
5. At the outset, the parties agreed that the applicant’s condition of Cervical Spondylosis would attract a rating of 10 points under the Impairment Tables for half loss of the normal range of movement. In relation to the Thoracic spinal condition, Mr Kingston argued that the applicant's loss of movement would attract 5 points under the Impairment Tables, whereas the Respondent held the view that the applicant would have a zero rating under the Impairment Tables for that condition.
6.The Tribunal noted the position of the parties in relation to these conditions.
Issues
7. The issues in this case are whether Mr James has a physical impairment of 20 points or more under the Impairment Tables in the Social Security Act 1991 ("the Act"), and specifically:
(a)What impairments does the applicant have?
(b)Do the impairments (if any), have a total rating of 20 points or more under the Impairment Tables? and
(c)If so, does he have a continuing inability to work as required by section 94 of the Act?
Evidence
8.The following documents were admitted into evidence:
·Exhibit 1 Medical capacity assessment dated 27 June 2006
·Exhibit 2 T documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975
The Applicant
9. The applicant provided evidence that he saw a doctor in 2000 and was diagnosed with depression. He was prescribed the medication Zoloft, although he had been previously taking this drug on the prescription of Dr S Horner from Wamuran in 1999. The applicant stated that he ceased taking this medication for a period of time due to other internal medical problems. He stated he is now taking Zoloft again following partial resolution of the specific medical problems which are continuing.
10. In July 2005, the applicant saw Dr Jones who diagnosed the applicant as having Coeliac disease. He saw Dr Jones because of preface bleeding from the anus, which was accompanied by other symptoms including pain, diarrhoea and loss of 8 kg in weight. He ceased taking Zoloft for a few months and after a period of time the rectal bleeding subsided.
11. A work capacity assessment was undertaken in June 2006. The applicant stated he had not seen other psychiatrists or psychologists, other than those which had been appointed by Centrelink. He was referred to the Caboolture Mental Health Clinic by his general practitioner and attended appointments there. The applicant stated that the Doctor did not take any medical history but asked how he could help with the applicant’s depression. The applicant stated he was disillusioned and had not been back to that practice since. He observed that the Doctors had made no arrangements for him to go back for further appointments.
12. Mr James has been back to see Dr Jones. However, Dr Jones has not raised with him again the possibility of going back to see a psychologist or psychiatrist. He stated no that one had referred him to these specialists other than Centrelink.
13. Under cross-examination, the applicant told the respondent’s advocate that Dr Jones had not spoken to him about his mental health. The applicant was referred to T1, Folio 3, where it suggests that the applicant had asked his Doctor for a referral to mental health but that no such referral has been provided.
Medical Evidence
14. A brief summary of the medical evidence is as follows:
a.On 5 March 1999, Dr Bonert from Health Services Australia diagnosed the applicant with a quarter loss of movement in his cervical spine and a half loss of range of movement in the Thoracolumbar spine. He ascribed an impairment rating of 20 points to both those conditions. He regarded the applicant's depression as temporary and did not allocate a rating for that condition.
b.On 2 November 2000, Dr Devendra from Health Services Australia diagnosed the applicant with a half loss of movement of the cervical spine (no points allocated) and regarded his Thoracolumbar spine as “nearly normal” (0 points allocated). At that time, Dr Devendra opined that the applicant would have long absences from work. The applicant was assessed as having an overall impairment rating of 20 points at that time for depression (T5, Folio 41).
c.On 17 June 2005, Dr Spermon assessed the applicants cervical spine impairment as "moderate" and in relation to his Thoracolumbar spine, he reported that the applicant had Lumbosacral spondylosis. Dr Spermon was of the view at that time that the applicant could not do physical work but could oversee subordinates. He also stated that the applicant was unable to stand, sit or walk for any length of time. In relation to his depression, it was assessed as "moderate to severe" and referred to the applicant’s infrequent attendances for treatment - three occasions in 2003, two occasions in 2004 and two occasions in 2005.
d.On 7 July 2005, a rehabilitation consultant, who was a qualified Occupational Therapist, reported that the applicant had a loss of half of the normal range of movement in his cervical spine and had constant neck pain. It was reported that the applicant had near normal range of movement in his Thoracolumbar spine, but that he nevertheless had Lumbosacral spondylosis/arthritis in the lower back. In relation to depression, it was reported as temporary as it was “not optimally treated”.
e.On 17 July 2005, Dr Jones provided a report that he was the applicant’s treating doctor since 15 June 2005. He reported only that the applicant had Coeliac Syndrome.
f.On 27 June 2006, a further report of a rehabilitation consultant was provided. This rehabilitation consultant was a qualified psychologist. This report was comprehensive and described the applicant as hostile and uncooperative, and noted that he had a low level of literacy and numeracy. It was also noted that the applicant lived in a shed on his mother's property.
g.That report described his Cervical spine and Thoracolumbar spine conditions as having fluctuating symptoms of neck and back pain with the use of opiate analgesia. An impairment rating of 10 points was allocated for these conditions. In relation to his depression, the report notes moderate to severe symptoms of depression, and impairment rating of 20 points was allocated. It was also noted that the applicant had had recent suicidal and homicidal thoughts, and the author had confirmed suicidal thoughts with the applicant’s treating doctor. No motivation was reported and this is consistent with the depressive condition. The report also noted a long history of substance abuse (cannabis and alcohol) and 5 points on the impairment scale was allocated. The report also noted a hernia, Carpal Tunnel Syndrome (which would improve with surgery) and that further medical treatment was pending Coeliac Syndrome (with abdominal pain and occasional soiling of clothes being reported). No impairment ratings were allocated for the latter conditions because of the degree of impairment or that improvement was likely with further medical intervention.
SUBMISSIONS
15. Mr Kingston referred the Tribunal to T2, Folio 8 which he stated was a useful summary of the medical evidence today. He told the tribunal that in June 2005, the applicant was not using Zoloft and by July 2005, the applicant had ceased taking all medication at that time due to rectal bleeding and other medical problems which fluctuated from time to time.
16. The applicant’s Solicitor also said that since March 1999 through until June 2006, the applicant had suffered depression consistently. He was described as a "pathetic figure". He mentioned that there was a period of nine months only where the applicant had not suffered from this condition over that seven-year period.
17. The Tribunal was also referred to report of Dr Devendra (T5 Folio 41). In paragraph 3 of that document, it shows the applicant had been depressed for more than two years and was on long-term treatment, even though he was not being treated by a psychiatrist. In relation to whether the applicant had been "optimally treated", the tribunal was referred to the report of July 2005 which stated that the applicant was taking 100 mg of Zoloft per day and was clearly depressed (T11 Folio 85). The only question for the Tribunal, it was submitted, is whether the condition of depression was permanent or temporary.
18. Mr Kingston also referred the Tribunal to Exhibit 1. This is the current assessment by a Psychologist who has reported on 27 June 2006 that the applicant suffered from "depression". That report shows in paragraph 8, part C that the applicant was undertaking drug therapy and that further medical intervention was pending for Coeliac Syndrome and depression.
19. In paragraph 13, the assessment states that without intervention, it was assessed that the applicant would be unable to work for at least 24 months. In paragraph 15 of that report, it was also stated that the applicant may be able to work part-time within 6 to 24 months with some specific disability intervention, and could then be expected to work 30 hours after a 24 month period. In paragraph 17 of that report, the applicant was assessed as having a 10% impairment disability under the Impairment Tables for back and neck pain, 5% for substance abuse and 20% for depression and anxiety.
Consideration
20. All the relevant evidence together with the relevant statutory and case law has been taken into account in reaching a determination in this matter.
21. The following findings of fact are made:
(i)Mr James was initially granted Disability Support Pension from 18 September 2000;
(ii)Mr James has a cervical spine condition which has degenerated to the point where he has only half the range of normal movement (as agreed between the parties);
(iii)Mr James has a degeneration of his lumbar spine and has Lumbosacral spondylosis. He has a loss of a quarter of the normal range of movement;
(iv)Mr James suffers from a psychiatric condition of depression with moderate to severe symptoms, together with suicidal ideation;
(v)Mr James suffers from a long history of substance abuse, particularly cannabis and alcohol, and this is associated with poor self-care;
(vi)The applicant suffers from diarrhoea and occasional soiling of clothes as part of a Coeliac Syndrome, which is still under investigation and treatment is pending;
(vii)Mr James suffers from carpal tunnel syndrome which manifests itself in a paraesthesia of the applicant's left-hand.
22. The legislation covering the facts of this application are those as at the date of the application. These are contained in the Social Security Act 1991 and are provided for in s94 as follows:
“94. Qualification for disability support pension–continuing inability to work
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.
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 2 years; and
(b)either:
(i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on the-job training during the next 2 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 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 educational or vocational 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.(5) In this section:
educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments:”
23. In relation to the applicant’s conditions, the Tribunal's findings are based on the following:
a. In relation to the cervical spine, the evidence revealed that with the exception of Dr Jones, who referred only to Coeliac disease, all the other doctors referred to the applicant having Cervical Spondylosis with a quarter to half loss of range of normal movement. It is noted that the respondent conceded at the outset of the hearing, a loss of half range of movement as being appropriate and conceded that 10 points on the Impairment Table would also be appropriate;
b. In relation to the lumbar spine, the applicant argued that a quarter loss of range of movement (5 points) is appropriate. The respondent argued that zero points should be allocated. The Tribunal noted that there has been evidence of previous motor cycle accidents and x-ray evidence which revealed a Grade 1 Spondylolisthesis at L5/S1. It is also noted that the applicant has fluctuating symptoms with this condition which have been evident since 1999. It is also noted that this fluctuation could be attributed to the applicant's use of opiate analgesia. Given the context of the applicant's employment in gardening and landscaping, together with the likelihood that his substance abuse would have concealed the level of pain and movement periodically, the Tribunal tributes a quarter loss of range of movement and allocates 5 points on the Impairment Table.
c. Substance abuse has been a long-standing problem, particularly with cannabis and alcohol. The Tribunal allocates 5 points for this condition.
d. In relation to depression, the Tribunal notes that moderate to severe symptoms of depression and anxiety, together with recent suicidal thoughts, which had been confirmed with the treating doctor, are present. More or better treatment may have been available but nevertheless, this applicant has a number of conditions and these have been extant since 1999. The Tribunal notes the most recent report of a psychologist which is comprehensive and has undertaken confirmatory checks with the treating doctor. The Tribunal allocates 20 points for this condition.
e. The Tribunal notes the reporting of a hernia. There is insufficient evidence to justify a finding in relation to that reported condition.
f. The paraesthesia related to carpal tunnel syndrome is reported to be likely to improve with surgery. Therefore, zero points are allocated to this condition.
g. Coeliac Syndrome is under investigation and further treatment is likely. The Tribunal noted it has a moderate impact on the functioning due to abdominal pain and diarrhoea. While the Tribunal notes this condition in the context of the practicality of them carrying out work or retraining in the short term, the Tribunal finds it is, nevertheless, a temporary condition and determines that no final determination should be made in this regard.
24. Having made those findings, the Tribunal must consider the question put by the respondent that the material time at which Mr James’ Disability Support Pension qualification is to be determined, is at the date of cancellation, that is, 8 July 2005. This is effectively the same date as the report of the Rehabilitation Consultant of 7 July 2005. The Tribunal determines that the assessment made by the Tribunal above takes account of the consistency of the conditions reported from 1999 to 2006. However in doing so, it also noted that the report of the Rehabilitation Consultant of 27 June 2006, prepared by a psychologist while the Rehabilitation Consultant of 7 July 2005 was an Occupational Therapist. The Tribunal finds that the later report of 27 June 2006 explains and particularises some of the symptoms of Mr James, as well as the effects on his psychological condition and capacity for work. The evidence shows at the time of cancellation of the Disability Support Pension, there was reference to Coeliac Syndrome or similar symptoms, and the applicant provided evidence that he had ceased taking Zoloft in June 2005 while he was dealing with the serious consequences of diarrhoea. The Tribunal also finds that its assessment and impairment ratings above are effective as at the date of cancellation of pension. The Tribunal therefore finds that the impairment rating of 20 points or more was extant as at 8 July 2005.
25. In further elaboration of the Tribunal's impairment findings as set out above, the Tribunal has noted that the applicant’s Coeliac Syndrome is awaiting further tests and treatment and is therefore temporary. Nevertheless, the Tribunal accepts the report of the Rehabilitation Consultant which opines that this condition has a moderate impact on functionality and the occasional soiling of clothes must be acknowledged as being a limitation for this man's capacity to work as a gardener or landscaper at present.
26. His Cervical Spondylosis would be a further limiting factor, and despite the fact that it was not mentioned by Dr Jones (where Dr Sperman in the same practice reported that condition one month earlier), it would be illogical to ignore this condition which had been reported consistently from 1999 to 2006.
27. The report of 27 January 2006 is adopted to the extent that it amplifies and clarifies Mr James’ conditions and impairment of longstanding, particularly his neck pain, his substance abuse and his psychiatric condition (depression and suicidal ideation) and which were clearly in existence at 18 July 2005, the date of cancellation of disability support pension.
28. The report of the Rehabilitation Consultant of 27 June 2006 states the applicant was hostile and uncooperative. The Tribunal noted a similar manner in the applicant’s presentation at the hearing. However, he also has a low level of literacy and numeracy, has a long history of substance abuse and poor self-care. It was reported he has no motivation, but regrettably, the Tribunal notes that this is consistent with his reported condition of moderate to severe depression. The respondent argued that this condition does not justify an impairment rating as it is not permanent.
29. However, the guidelines indicate that a condition might be accepted as being permanent if, in light of the available evidence, it is more likely than not that the condition will persist for the foreseeable future. It is reasonable to assume that his condition of Cervical Spondylosis and Thoracolumbar spinal pain will continue. It is also reasonable to regard the long history of substance abuse and depression as being more likely than not to continue for the foreseeable future (although improvement might be expected). The respondent referred the tribunal to Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467, where it was stated that:
“There will be instances in which a patient does not respond to a particular form, of treatment or has an adverse reaction to it. When that occurs, the treatment is generally modified or changed so that the treatment is indeed having its desired effect ie to cure or manage a particular condition. The condition is still being treated despite the modification or change...”
30. The Tribunal finds that the present case must be distinguished from Re Tlonan. There is evidence of very little treatment for the applicant’s psychiatric condition and no evidence of it being modified to cure or manage that condition. It was also argued by the respondent that its submission was based, on the opinion of the Rehabilitation Consultant report of 7 July 2005, that the condition is "not optimally treated". The applicant's solicitor argued the notes in the Tables for Assessment of Work-Related Impairment for Disability Support Pension should not require it to be "optimally treated". The Tribunal noted that at paragraph 4 et seq. it refers to the condition being diagnosed (or fully diagnosed), treated (my emphasis), and stabilised. The Tribunal agrees that “optimally treated" is not required and that is clear that the guidelines anticipate a degree of permanency in the condition from which the applicant asserts that he suffers. But, it requires forming a view on the evidence as to the likelihood of the condition persisting for the foreseeable future. The Tribunal has also noted the submissions made by the respondent in relation to Newman and Secretary to the Department of Family and Community Services [2002] AATA 917, and Eckersley and Department of Family and Community Services [2001] AATA 798.
31. As pointed out by the applicant's solicitor, the report of the Authorised Review Officer (ARO) reveals that she spoke to Dr Spermon on 14 September 2005. It is noted that he advised that "optimal treatment for depression is usually within GPs surgery; not sure if he would benefit from psychiatric intervention or counselling." The Tribunal doubts whether this would be a view which would be widely held within the medical profession. But it may be indicative of some degree of stabilisation of the condition, merely because of passage of time or level of treatment.
32. That is not to say that this Tribunal would think that the level of psychiatric treatment for Mr James has been sufficient to determine the level of stability with any degree of confidence. The applicant’s condition is undoubtedly a factor in that result and while his depression may influence his level of motivation, his general level of intellectual and emotional functioning, and the superintendence by his medical practitioners, are also relevant factors.
33. The latest report of the Rehabilitation Consultant of 27 June 2006 has assessed that the applicant has a work capacity of 0 to 7 hours per week for more than 24 months. That report states, "due to the severity of the condition and resistance to pursuing medical and psychological assistance, the customer currently cannot participate in work tasks or retraining". The Tribunal accepts that the author of the report is a qualified psychologist and can exercise reasonable judgement in such matters, and says this is a balanced and fair assessment of the current position with respect to Mr James. It notes capacity for 30 or more hours after 24 months.
34. The respondent also referred to the Tribunal to Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444. It was submitted that Drummond J in that case, noted that continuing inability to work was to be determined, firstly, by reference to whether the impairment prevented the person from continuing to engage in work for which he had skills and experience; and secondly, by reference to whether training is available within a period of two years to undertake different work to which the person does not currently have the skill or capacity, but which it might be expected the person would be able to do, within the physical and actual capacities of the person, after completion of any such training.
35. The Tribunal acknowledges that this is the appropriate test. The Tribunal finds, based on the evidence and the findings of fact outlined above, that the applicant is prevented from undertaking work for which he has demonstrated skill and capacity within 24 months from the date of the latest report i.e. 27 June 2006. This seems consistent with the psychiatric evidence provided, as well as the neck and back pain which Mr James experiences. Even with these conditions, that of itself should not be insufficient to prevent retraining. However, in this case, the Tribunal accepts the assessment of the Rehabilitation Consultant as being consistent with previous medical evidence and notes that Mr James has multiple incapacities, in particular, substance abuse which is cumulative, with the psychiatric and orthopaedic evidence presented. The level of literacy and numeracy, together with the length of time over which the other disabilities have persisted, pose a huge barrier for the applicant to overcome and create substantial difficulties with respect of re-training.
36. Consequently, the Tribunal finds that the applicant has an impairment rating of 20 points or more in the context of his back and neck pain, his psychiatric condition of depression and substance abuse. The applicant satisfies section 94 (1) (a) of the Act and has a continuing inability to "work" as defined in section 94 (2).
37. In the circumstances, the decision under review is set aside and the applicant is entitled to Disability Support Pension as at the date of cancellation of pension, that is, 8 July 2005.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Senior Member
Signed: Michelle Brazier
Legal Research Officer
Date/s of Hearing 7 September 2006
Date of Decision 1 December 2006
For the Applicant Mr Kingston, Solicitor
For the Respondent Ms S Oliver, Departmental Advocate
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