Maroun and Secretary to the Department of Family and Community Se Rvices

[2003] AATA 347

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 347

ADMINISTRATIVE APPEALS TRIBUNAL               Nº V2002/636

GENERAL  ADMINISTRATIVE DIVISION

Re:            RON WISSAM MAROUN

Applicant

And:         SECRETARY TO THE
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member

Date:             17 April 2003

Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and, in its stead, decides that the applicant qualified for disability support pension pursuant to s.94 of the Social Security Act 1991 from 26 February 2002.

(sgd) B.H. Pascoe

Senior Member

SOCIAL SECURITY - disability support pension – whether impairment of 20 points – whether continuing inability to work – whether qualified at date of claim or within 13 weeks – whether diagnosed, investigated, treated and stabilised

Social Security Act 1991

Social Security (Administration) Act 1999

Re Hudson and Secretary, Department of Family and Community Services [2000] AATA 502

REASONS FOR DECISION

17 April 2003  Mr B.H. Pascoe, Senior Member

1. This is an application to review a decision of the Social Security Appeals Tribunal (SSAT) of 13 May 2002, which affirmed a decision of a Centrelink authorised review officer (the ARO) of 20 March 2002 rejecting the applicant’s claim for disability support pension (DSP).

2. At the hearing the applicant, Mr R.W. Maroun, was represented by Mr C. Beale, of counsel, and the respondent by Mr R. Huttner, a Centrelink advocate. Evidence was given by Mr Maroun; his treating psychiatrist, Dr R. Nallaratnam; and by a Centrelink disability officer, Ms T. Poon. The Tribunal had before it the documents provided by the respondent under s.37 of the Administrative Appeals Tribunal Act 1975, together with two exhibits (Exhibits A1-A2) tendered by the applicant and one exhibit (Exhibit R1) tendered by the respondent.

3. Mr Maroun lodged a claim for DSP on 26 February 2002.  Mr Maroun's general practitioner, Dr K. Gunawardna, stated that he suffered from chronic muscular strain of lumbar spine, anxiety and depression which were stable and likely to persist for at least two years.  He was assessed by Health Services Australia as having an impairment rating of 10 per cent and an ability to work full time in suitable employment which did not require repetitive lifting and bending.

4. Mr Maroun was born on 22 August 1968.  He worked as a tram driver until May 1989 when his tram was involved in an accident.  Mr Maroun said that a motor vehicle, driven by an elderly lady, came out of a side street, struck his tram on the side and became caught on the running board of the tram.  With the assistance of others, he attempted to lift the motor vehicle from the tram and free the driver.  Mr Maroun said that he experienced severe pain in his back.  After driving the tram back to the depot for inspection, he said he went to see his general practitioner.  Ultimately, he was referred to a specialist and received physiotherapy treatment.  He returned to work on light duties with periods of sick leave.  He was made redundant in 1993 and has not worked since.  He has been in receipt of sickness benefits and newstart allowance.

5. Mr Maroun was referred to Dr Moore, a psychiatrist, in 1991.  Dr Moore saw him a number of times, the last in 1995.  At that time, Dr Moore was of the opinion that Mr Maroun was mildly depressed and not in need of specialist psychiatric care.  Dr Gunawardna has been Mr Maroun's treating doctor for the 14 years since the accident.  At the time of the claim, Dr Gunawardna stated that Mr Maroun suffers from anxiety, depression and chronic lumbar spine muscle tear on the left side.  He certified Mr Maroun as unfit for any work or study for two years.  Mr Maroun sees Dr Gunawardna at least three times per month.  He maintained that he continues to suffer physical pain in the left side of his back with a heat sensation down his leg and pain on sitting or lying.  He said that he cannot walk any distance.  He takes extensive medication, including Zantac, Tryptanol, Panadeine Forte, Digesic, Voltarin, Valium and Tranal SA.  He said that he does not do anything for his three children, no household chores or gardening.  He said that he can drive and use his motor vehicle to visit the doctor and for shopping although, generally, limits time in the motor vehicle to 20 to 30 minutes because of pain and loss of concentration.

6. Mr Maroun was referred to Dr Nallaratnam, by his general practitioner on 5 June 2002.  To the date of the hearing, he had attended Dr Nallaratnam 15 times.  Mr Maroun accepted that he had agreed to the referral to satisfy Centrelink that he had a problem.  He acknowledged that he might not have gone to a psychiatrist if it were not for his claim for DSP.  He said that he was very depressed after the SSAT decision and thought that it would be useful to consult a psychiatrist.  Prior to then, he had believed that his treatment by the general practitioner was adequate as confirmed at the time by Dr Moore.  However, he did not believe that his condition had improved after treatment by Dr Nallaratnam.  He said that he could not recall being told by Dr Nallaratnam what was wrong with him, was not aware of the view that there was no organic reason for his pain and did not recall Dr Nallaratnam recommending motivational therapy.

7. In his written report of 23 October 2002, Dr Nallaratnam gave his opinion in the following terms:

   …

   There are several aspects to be considered.

   1)   This man has been on "sickness benefit" since 1993 and has developed what appears to be a Conversion Reaction with symptoms of localized motor and sensory deficit but with no objective proof.  This reaction seems to be mostly unconscious.

   2)   However he may be aware he is likely to obtain secondary gain, probably in excess of what he might receive in wages.

   3)   It would appear that this feeling of illness has been and is continuously reinforced by his wife.

   4)   Denying the pension is likely to "expose his inability to work".  On the other hand granting a pension is likely to reinforce this feeling of illness.  Therefore he may need to be motivated.  This is likely to be the stumbling block and because of this I would think he is at present unlikely to be made to work.  So instead of "Vocational Training" I would suggest Motivational Therapy from a specialist in that field.

In his subsequent written report of 7 November 2002, Dr Nallaratnam stated:

…I confirm that the above individual is suffering from a Psychiatric Illness where there is "impairment of functioning that requires treatment by a specialist" as mentioned in my report dated 22 October 2002.  Hence I consider the percentage of impairment to be 20%.  The condition appears to be a Conversion Disorder (300.11 – DSM IV.  The alternative diagnosis is 300.7).  Whatever the diagnosis is the condition is now in the Subacute or Chronic phase.  Therefore it is unlikely to be satisfactorily treated in the next two years.  I suggest Motivational Therapy from a specialist (perhaps with ancillary help) to achieve a possible successful result.

In his oral evidence, Dr Nallaratnam said that his diagnosis of conversion reaction meant that Mr Maroun was unconsciously putting his problems on to physical problems causing his disability rather than a mental problem preventing him from working.  While he understood that there had been no finding of any organic cause of the pain, he did not doubt that Mr Maroun had such pain.  He said that the pain symptoms complained of persisted during the whole period of the clinical sessions.  However, Dr Nallaratnam said that he had some slight doubt that the pain was present for the length of period stated by Mr Maroun.  He said that the diagnosis was appropriate in view of the long period of reinforcement that Mr Maroun was ill.  He believed that motivational therapy was the appropriate treatment but considered that, if such therapy was undertaken, it was unlikely that it would produce satisfactory results under two years. Dr Nallaratnam said that, after such a long period off work, the prognosis was not good and motivational therapy, while worth trying, may not be successful. He was concerned that denial of DSP may reinforce the view of Mr Maroun that he was incapable of undertaking work by forcing him to try in order to earn sufficient money to live.  On the other hand, he accepted that the granting of DSP might further reinforce the belief that he was permanently disabled. Dr Nallaratnam considered that Mr Maroun's belief in his physical incapacity had been reinforced by his wife and by the regular provision of medical certificates.  Nevertheless, he was firm in his diagnosis and assessment of a 20 per cent impairment and little likelihood of improvement within two years because of the long period of such reinforcement.  He acknowledged that Mr Maroun might well recognise that receipt of DSP may well be more beneficial, financially, than working. Dr Nallaratnam said that he was not aware of the SSAT decision until September and that he had not been requested to support the present application.  He was of the opinion that Mr Maroun has had the condition since his accident and it had progressed with time to a chronic condition.

1. Ms Poon gave evidence that her role in Centrelink was to help customers with disabilities to return to the work force.  She had no direct contact with Mr Maroun, but had reviewed his file and prepared a report.  She was of the opinion that he would benefit from a pain management course and would be capable of work such as clerical duties, mobile security guard, meter reader, telemarketing or light seated process work.  She said that she refers such customers to the Commonwealth Rehabilitation Service (CRS) who, in turn, would refer them to a pain management clinic.  She understood that such clinics have a good success rate in pain management, usually within one year.  Mr Poon acknowledged that she had had no direct involvement with customers who had attended a pain management clinic and her knowledge came solely from reports from CRS.

2. On the evidence before the SSAT, that tribunal concluded that Mr Maroun's condition had not been fully treated and stabilised so that an impairment rating could not be assigned. As s.94(1)(b) of the Social Security Act 1991 (the Act) requires an impairment rating of 20 points or more, it was decided that he did not qualify for DSP.

3. Section 94 of the Act provides, in so far as is relevant to this matter:

   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.

The Introduction to the impairment tables in Schedule 1B of the Act provides:

…

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.

1. It was submitted for the respondent that Mr Maroun did not satisfy the requirements of s.94 of the Act within the required assessment period. It was said that paragraph 4 of Part 2 of Schedule 2 to the Social Security (Administration) Act 1999 requires a person to qualify for DSP at the date of the application or within 13 weeks thereafter.  This paragraph provides:

   4(1)        If:

   (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

   (b)the person is not, on the day on which the claim is made, qualified for the payment; and

   (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

   (d)the person becomes so qualified within that period;

   the claim is taken to be made on the first day on which the person is qualified for the social security payment.

Here, it was said that the only medical report which could meet the criteria of a condition being diagnosed, treated and stabilised was that of Dr Nallaratnam who first saw Mr Maroun in June 2002, outside the period of 13 weeks from the date of his claim.  It was submitted that, prior to that date, Mr Maroun was being treated by his general practitioner for minor anxiety and depression and he did not meet the criteria of Schedule 1B of the Act.

1. For the applicant, it was submitted that the evidence of Dr Nallaratnam should satisfy the Tribunal that Mr Maroun had a stabilised psychiatric impairment within the relevant assessment period notwithstanding that the correct diagnostic label had not been attached to the condition at that stage.  It was said that Dr Gunawardna had investigated, diagnosed and treated him for his condition for several years prior to the assessment period even though he had not described that condition as a conversion disorder.  Mr Beale relied on the decision of this Tribunal in Re Hudson and Secretary, Department of Family and Community Services [2000] AATA 502. In that case, the Tribunal found that the applicant had a chronic abdominal condition which had been extensively investigated, treated and stabilised within the assessment period although the various medical specialists had not agreed on a diagnosis and that lack of diagnosis at the time was not a bar to success in the claim. The Tribunal stated (at para 35) that:

   …

   35.      …Material pertinent to a better understanding of the state of affairs during this period of time (“the operative period”) can be used by the Tribunal to assist in better defining the nature and consequences of the medical conditions that have been defined to exist, while new conditions and conditions becoming permanent outside the operative period cannot be considered for the purpose of this Application.

2. In this case, it is quite clear that Dr Nallaratnam is of the firm view that Mr Maroun has an impairment of 20 points under the Impairment Tables which will prevent him from doing any work within the next two years and that impairment has been documented, diagnosed, investigated, treated and stabilised.  Unfortunately, that diagnosis was not formally communicated until some eight months after the date of the claim.  However, I am satisfied from the evidence of Dr Nallaratnam that the condition is longstanding and has been entrenched for some years.  It is the longstanding nature of the condition which has led Dr Nallaratnam to be doubtful of any early improvement by motivational therapy.  The condition, with a different label, has been treated by the general practitioner for some years.  It may well be that such treatment has itself reinforced the view of Mr Maroun that he is ill, supported by the reinforcement referred to by Dr Nallaratnam, from Mr Maroun's wife.  While the formal view of Dr Nallaratnam was not communicated until October 2002 and could not have been formed prior to June 2002, I am satisfied from the evidence of Dr Nallaratnam that the condition existed in its same form as at the date of the claim.

3. It should be noted that I am of the view that Mr Maroun was moved to consult Dr Nallaratnam primarily to assist in his claim and I have some concern at the apparent selective memory of Mr Maroun of the opinions conveyed to him by the doctor. However, I am prepared to accept that Mr Maroun is genuinely convinced that he has both a physical and psychiatric condition being treated by his general practitioner and he is in no need of specialist psychiatric help. Unless the evidence of Dr Nallaratnam is not to be accepted and there is no evidence to the contrary, it should be accepted that Mr Maroun satisfied the requirements of s.94 of the Act at the date of claim on 26 February 2002. The evidence of Ms Poon was not persuasive as she has no personal knowledge of Mr Maroun and has only second‑hand knowledge of pain management and its results. While I share Dr Nallaratnam's concern that, granting a DSP will further reinforce Mr Maroun's perception of serious illness, his opinion of the degree of the condition should be accepted.

4. It follows from the foregoing that the decision under review should be set aside and, in its stead, a decision made that Mr Maroun was qualified for DSP pursuant to s.94 of the Act from the date of his claim on 26 February 2002.

I certify that the fifteen [15] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B.H. Pascoe, Senior Member

(sgd)       Catherine Thomas

Clerk

Date of Hearing:  25 March 2003
Date of Decision:  17 April 2003
Counsel for the applicant:            Ms C. Beale
Solicitor for the applicant:            Legal Aid Victoria

Advocate for the respondent:       Mr R. Huttner, Centrelink