Mangion and Secretary, Department of Family and Community Services

[2002] AATA 244

DECISION AND REASONS FOR DECISION [2002] AATA 244

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/1566

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      FRANK MANGION 
  Applicant

And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Professor T Sourdin, Member       

Date20 March 2002

PlaceSydney

Decision      The decision under review is affirmed. 

………………………
  Professor T  Sourdin,
  Member

CATCHWORDS

SOCIAL SECURITY – claim for disability support pension – whether impairment is 20 points or more vide Schedule 1B Impairment Tables

Social Security Act 1991 – ss 94(1), (2), (3), (5)
Schedule 1B Impairment Tables

REASONS FOR DECISION

Professor T Sourdin, Member 

1. This is an application for review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 20 September 2001. On 18 June 2001, a delegate of the Secretary, Department of Family and Community Services ("the Respondent") decided that Frank Mangion ("the Applicant") was not eligible for a disability support pension.   An Authorised Review Officer of the Respondent affirmed that decision on 31 July 2001, this was further affirmed by the SSAT. The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 15 October 2001.

2. A hearing before the Tribunal took place on 20 March 2002. The Applicant was not represented. Ms Schuster, an advocate from the Advocacy and Administrative Law Team at Centrelink, appeared for the Respondent.

3. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence the following:

Pathology Report, Westpath Services Pty Ltd, dated 20 November 2001    Exhibit A1     
Medical  Report of Dr S K Law dated 8 November 2001        Exhibit A2     
Medical report of Dr P Giblin dated 23 October 2001    Exhibit A3     
Letter of Dr Zaman dated 18 September 2001   Exhibit A4     
Respondent's Statement of Facts and Contentions dated 13  December  2001        Exhibit R1           
Respondent's Statement of Issues dated 30 October 2001     Exhibit R2     
Letter from Applicant to Centrelink dated 10 December 2001 Exhibit R3     
Letter from Dr Zaman to Centrelink dated 6 December 2001  Exhibit R4     
Letter from Centrelink to Dr Zaman dated 14 December 2001           Exhibit R5     
Letter of Dr Zaman dated 29 January 2002       Exhibit R6     
Letter from Centrelink to Amelia Lucas dated 14 December 2001 and letter from Amelia Lucas to Centrelink dated 21 January 2002           Exhibit R7     

ISSUES BEFORE THE TRIBUNAL AND LEGISLATION

1. The issue before the Tribunal is whether the Applicant, Mr Frank Mangion, has an impairment that is assessed at 20 points or more under the Impairment Tables in Schedule 1B of the Social Security Act 1991 ("the Act"), and if so, whether he has a continuing inability to work because of that impairment pursuant to the conditions in subsections 94(2), (3) and (5) of the Act.

2. Section 94 of the Act states, relevantly:

   "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;

   …

   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 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 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(5)    In this section:
   educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
   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 or psychiatric impairments. 
   work means work:

   (a)   that is for at least 30 hours per week at award wages or above; and  

   that exists in Australia, even if not within the person's locally accessible labour market.
   …"  

3. The Tribunal has considered the medical evidence presented to it as well as the evidence presented by the Applicant. The Tribunal takes account of those conditions as described, in the context of any medical evidence and as relevant. 

4. Impairment is assessed against the work-related Impairment Tables at Schedule 1B of the Act. The introduction to the Tables states, relevantly:

   "1.…These Tables represent an empirically agreed set of criteria for assessing the severity of functional limitations for work related tasks and do not take into account the broader impact of a functional impairment in a societal sense.   For this reason, no specific adjustments are made for age and gender.  ...

   These tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. These Tables are function based rather than diagnosis based.  …

   3.These tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. …   

   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.  ...
   …

   8.        In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. ..."    

APPLICANT'S EVIDENCE AND FACTS
Background

The facts contained below are by way of background information and are not in dispute.

Mr Mangion was born in Australia on 13 February 1959.
     He finished school in Year Nine. 
     From that time he was steadily employed until he suffered a work injury in 1988.
     He was paid compensation for his work injuries and had a preclusion period imposed in respect of a payment made on 10 July 1999. The preclusion period was imposed until 4 May 2001. 
     Mr Mangion has not worked for a number of years and continues to experience pain in his back as well as referred pain.
     On 7 May 2001, Mr Mangion lodged an application for a disability support pension with Centrelink (T3). In that claim he noted the following medical conditions: " Back Injury, L4/5 Prolapse Disc."  Mr Mangion noted that from 1988, these disabilities made it difficult for him to work.
     Mr Mangion's treating Doctor is Dr Zaman. Dr Zaman has been treating Mr Mangion since 1982 (prior to his work accident in 1988). For the purposes of Mr Mangion's claim, Dr Zaman completed a Treating Doctor's report on 4 May 2001(T7).
     Dr Zaman diagnosed the Applicant as suffering from the following conditions: "Lumbar disc damage (?), Pain in neck and shooting pains in legs (?), had two spinal operations, manipulation and physio" as well as "Clinical depression with anxiety neurosis and (?)". The Doctor further noted that these were all long term conditions and that the Applicant would not be able to return to any kind of work within the next two years.    
     On 31 May 2001, Mr Mangion was assessed by Health Services Australia. Dr T Kanapathipillai completed a Medical Assessment Report at the time of his assessment, which may be found at T8.
     Dr Kanapathipillai reported that the Applicant's medical conditions include low back pain from lumbar disc damage. In addition he commented upon the depression and whether any limitations existed. He assessed that the Applicant could work with discomfort although he would be unable to do any physical work that would involve repetitive bending or lifting. Dr Kanapathipillai gave Mr Mangion a rating of 10 points (pursuant to Table 5.2 of the Impairment Tables) for his back condition and nil points in relation to his depression and anxiety.
     Dr Kanapathipillai concluded that Mr Mangion's medical conditions do not prevent him from undertaking vocational rehabilitation and found that he would be fit for some type of office work or other light sedentary work.

Evidence of Mr mangion

Mr Mangion informed the Tribunal that his main health problems are:

Back pain

Referred pain

Anxiety

1. Mr Mangion's oral evidence to the Tribunal is that he often has pain. He indicated that he was keen to work but was unlikely to find a sympathetic employer and was unlikely to find an employer because he had a workers compensation history. He also indicated that he had attempted to take up retraining but was unable to sit for periods of time that would enable him to do computer work.

The Applicant described his daily condition as variable. This was consistent with the medical reports. He indicated that he had come to terms with his constant back pain and took medication when required. He also indicated that he could not lift or carry things and was unable to continue with hobbies because of his condition.

MEDICAL

The T documents contain a few medical reports on the Applicant by various general practitioners and specialists over a period of some years. Dr Gale (a radiologist) reported on the Applicant's back condition and the condition of his lumbar spine (he had a laminectomy at L4/5 and L5/S1). Dr Hazan, another radiologist reported on 16 December 1998 and noted a bulge at L4/5 and prior decompression at L4 (the site of the laminectomy).

Other reports of Dr Giblin, an orthopaedic surgeon, dated 22 December 1995 noted the Applicant's history of pain and surgical intervention. Dr Giblin noted in 1995 that the Applicant had considerable limitations in terms of his employability and also noted that "This fellow has been very genuine and he is well motivated. None the less, his back problem is going to remain a significant long term handicap."

The Respondent wrote to the Applicant's medical practitioner (Dr Zaman) seeking further information about the Applicant's current medical condition. In particular the Respondent had sought advice from Dr Zaman regarding the Applicant's condition in relation to the Impairment Tables. Dr Zaman's responses (R3 and R4. It has been suggested that Dr Zaman did not receive this correspondence.) do not refer to the Impairment Tables. They note that the Applicant has a 25% disability but there is no reference to the specific matters that must be assessed by Centrelink to make a decision.

The matters that must be addressed are set out in the guidelines referred to previously and are as follows –

(Table 5.1 is also included below – it is noted in Mr Mangion's application that he also complains of neck as well as back pain although no doctor appears to have addressed neck pain as a separate category)

"TABLE 5. SPINAL FUNCTION

Determination of spinal impairments must be based on a demonstrable loss of function.

TABLE 5.1 Cervical spine

Rating Criteria

NIL Normal or nearly normal range of movement.

FIVE Loss of quarter of normal range of movement.

TEN Loss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain.

TWENTY Loss of three-quarters of normal range of movement and constant neck pain.

THIRTY Loss of almost all movement, or complete ankylosis in position of function.

FORTY Ankylosis in an unfavourable position, or unstable joint.

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.

TABLE 6. PSYCHIATRIC IMPAIRMENT

It is important to record a detailed psychiatric history, a mental state examination, and to distinguish between temporary and permanent psychiatric disorders. People with established psychiatric disorders (eg. Bipolar Disorder) may be highly variable in their clinical presentation and this factor must be taken into account in the assessment. The assessment of psychiatric impairment may benefit from investigating; reports from mental health case managers, compliance with and the effects of medication, support systems that people have in place, the degree of insight present and the presence of psychotic illness. Where a person has a short term problem, for example an adjustment disorder with depression following an illness or marital breakdown, initially this should usually be considered to be of a temporary nature. Table 6 is used for permanent psychiatric disorders only. If there is insufficient clinical information available, a current or recent specialist report should be obtained.

Rating Criteria

NIL Mild but regular symptoms which tend to cause subjective distress. On most occasions able to distract themselves from this distress. Minimal interference with function in everyday situations. Exacerbation of symptoms may cause occasional days off work. (eg. There may be some loss of interest in activities previously enjoyed. There may be occasional friction with family, colleagues or friends) Medical therapy or some supportive treatment from treating doctor may be required.

TEN Moderate and regular symptoms and generally functioning with some difficulty. (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships). May have received psychiatric treatment which has stabilised the condition. Minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work. (eg. short periods of absence from work).

TWENTY Psychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms). There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.

THIRTY Serious psychiatric illness with major impairments in several areas, such as work, interpersonal relations, judgement, thinking, or mood (eg. depressed person avoids friends, neglects family, unable to do housework), OR some impairment in reality testing or communication (eg. speech is at times obscure, illogical or irrelevant).

FORTY Major chronic psychiatric illness which results in an inability to function in almost all areas, OR behaviour is considerably influenced by either delusions or hallucinations, OR serious impairment in communication (eg. sometimes incoherent or unresponsive) or judgement (eg. acts grossly inappropriately)."

1. Dr Zaman was not available to give evidence at the hearing. His reports did not refer to the guidelines noted above and there was a suggestion that he may not have received the guidelines (see R5 and R6). A telephone call was placed to Dr Zaman's surgery during the hearing to ascertain whether he might be available to give evidence but he was away from his surgery. The Tribunal did not therefore have comments from Dr Zaman about the guidelines and the specific criteria referred to above.

2. The evidence of the Respondent referred specifically to the guidelines and in the Respondent's medical reports, the 'movement' and activity of the Applicant was referred to specifically in the context of the guidelines.
   Impairment Assessments

The decision of the SSAT assessed a 10-point impairment rating. The Applicant indicated that in his view he was unfit to work (section 94(3) of the Act).

The Tribunal is required to consider this matter on the basis of the relevant legislation and guidelines as well as past decisions that have created precedent. It is clear that the Tribunal must consider the applicant's 'capacity' for work not whether there is work available that the applicant can do.

The Tribunal has found that the Applicant does have a significant impairment. The Applicant was frank and consistent in his evidence and the medical material produced by both his treating Doctors as well as the evidence furnished by the Respondent supported his evidence. Clearly, the Applicant suffers from an impairment that will limit his future employment. The evidence of the Applicant persuaded the Tribunal that the thrust of medical opinion provided by the Applicant was correct. However, the Applicant's own evidence could be interpreted in terms of the 10 point impairment rating found by the Respondent's doctors.

The primary issue for the Tribunal is whether the Applicant has an impairment, which could be translated into a minimum of 20 points under the Impairment Tables at the relevant time.

After assessing the evidence furnished, the Tribunal finds that the available evidence supports a combined impairment rating of 10 points at the relevant time. This is insufficient to enable the Applicant to qualify for the disability support pension in respect of his claim lodged in May 2001.

However, the Tribunal notes that it may be that the condition of the Applicant has worsened and also notes that the Applicant may currently be in a position to apply again for disability support pension.

A finding having been made that the Applicant has not, at the relevant time, reached the 20 points threshold, it is unnecessary for the Tribunal to comment on the Applicant's inability to work as required under section 94(1)(c) of the Act.

Accordingly, pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.

I certify that the 25 preceding paragraphs are a true copy of
the reasons for the decision herein of Professor T Sourdin, Member

Signed:         .....................................................................................
  Associate

Dates of Hearing  20 March 2002
           Date of Decision  20 March 2002         
           Representative for Applicant       Self Represented
Advocate for the Respondent            Ms Schuster