McFadden and Department of Family and Community Services
[2000] AATA 497
•30 May 2000
DECISION AND REASONS FOR DECISION [2000] AATA 497
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1999/1307
GENERAL ADMINISTRATIVE DIVISION )
Re GARY McFADDEN
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr E K Christie, Member
Date30 May 2000
PlaceBrisbane
Decision The decision under review is affirmed. This means Mr. McFadden was not qualified to receive Disability Support Pension at the time of his claim on 21 June 1999.
...........(Signed)...................................
DR E K CHRISTIE
MEMBER
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Assessment of impairment
Social Security Act 1991: ss.94(1)(2), 100(3)
Freeman v Secretary, Department of Social Security (1988) 15 ALD 671
ORAL REASONS FOR DECISION
30 May 2000 Dr E K Christie, Member
This is an application by Gary McFadden to review a decision of the Social Security Appeals Tribunal ("the SSAT") made on 17 November 1999. The SSAT affirmed the decision of an Authorised Review Officer made on 24 August 1999 to reject Mr. McFadden's claim for Disability Support Pension ("DSP").
The SSAT concluded that Mr. McFadden's impairment rating did not satisfy the statutory requirement of 20 points and therefore he did not qualify to receive DSP.
At the hearing, Mr. McFadden represented himself. Mr. Simon Letch, a Departmental Advocate, represented the Department.
At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the "T" documents (Exhibit 1).
ISSUES BEFORE THE TRIBUNALThe first issue for the Tribunal to decide was, firstly, whether Mr. McFadden met the 20 point impairment threshold for his medical conditions. If so, the next issue to decide was whether Mr. McFadden had a continuing inability to work.
THE LAW
The relevant legislation is the Social Security Act 1991. Section 94 of the Act provides for the eligibility for DSP and the question of "continuing inability to work".
"SECTION 94 QUALIFICATION FOR DISABILITY SUPPORT PENSION – CONTINUING INABILITY TO WORK
94(1) [Qualification – continuing inability to work] 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;
….
Meaning of continuing inability
94(2) [Meaning of 'continuing inability to work'] 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) [Secretary not to have regard to certain matters] 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."
In Freeman v Secretary, Department of Social Security (1988) 15 ALD 671, Davies J stated at 674:
"Regard must always be had to the nature of the decision under review. This was because the function of the Administrative Appeals Tribunal formed part of an administrative continuum and, in reviewing a refusal to grant a pension or benefit that had been applied for, it was proper for the Tribunal to consider the entitlement to the pension not only as at the date of the application for the pension or benefit or at the date of the decision refusing to grant it but also up to the time of the Tribunal's decision."
In Mr. McFadden's case, the decision under review was a decision refusing to grant a pension following an application for DSP being made on 21 June 1999.
On the basis of the evidence before it the SSAT made the following findings of fact:
"(i) Mr McFadden lodged a claim for disability support pension on 21 June 1999.
(ii)Mr McFadden suffers from hypertension; bilateral tennis elbows; reflux; a back impairment with referred leg symptoms; tinnitus; hearing loss; neck pain and Morton's Neuroma; weak and painful left knee.
(iii)Mr McFadden's neck pain and left knee have not yet been the subject of focussed medical attention so it is not known whether they are stabilised or not."
CONTENTIONS AND SUBMISSIONS OF THE PARTIES – ASSESSMENT OF IMPAIRMENT
Mr. McFadden was concerned with the rigour of the medical assessments undertaken by Health Services Australia (HSA). For example, he regarded his consultation with Dr. Cramb (T7, 6 July 1999) as his "worst medical on record". Not only was it very short ("6-8 minutes maximum") but also no blood pressure check was made – notwithstanding hypertension was one of his medical conditions. Moreover, the medical professional carrying out the Commonwealth Rehabilitation Service Functional Capacity Evaluation report (T22, Folio 157) had discontinued one of its tests when it recorded an extremely high value for blood pressure of 157/107. Mr. McFadden stated that his hypertension had never been controlled properly and that his blood pressure fluctuated widely. In addition, his blood pressure medication was changed, on average, three times a year.
Mr. McFadden's back condition was associated with pain in his spine. The pain radiated down through his left leg. Pain was a constant feature of this condition. Mr. McFadden stated that his left knee condition was also connected with his back impairment.
With respect to tinnitus, Mr. McFadden said that this condition was present constantly and had deteriorated over time. Hearing on his left side was "blocked out". He had been provided with a hearing aid in 1988 but discarded it because it aggravated his condition. Mr. McFadden submitted that in his case, with a significant hearing loss in one ear, his ability to communicate and to work effectively in the work environment would be severely affected.
Mr. McFadden said that he felt the extent of his lower back problem, with its associated severe pain, was such that he would meet the 20 points threshold on the Impairment Tables. He stated that if the decision to grant DSP had been based on a Functional Capacity Assessment, as proposed on 30 July 1999, by Paula Soane, an Authorised Review Officer (T15, Folio109), his DSP would have been granted.
Mr. McFadden acknowledged that he was taking antidepressants because of the 'dehumanising experiences' he had with Centrelink. The problems he had encountered related to confusion and difficulty in understanding the great many forms he had to complete, the attitude of Centrelink and the need to finalise and submit forms during times when he was taking pain killing medication.
Mr. Letch, the Departmental Advocate, referred to the assessment of impairment undertaken by Dr. Cramb of HSA (T7, Folios 79-92, 6 July 1999). In his report, Dr. Cramb assigned Mr. McFadden:
a rating of 10 points under Table 5.2 with respect to the applicant's back condition (Folio 82);
a 'nil' rating for hearing loss and tinnitus: Table 12 (Folio 83);
a 'nil' rating for hypertension: Table 20 (Folio 84);
a 'nil' rating for bilateral tennis elbow: Table 3 (Folio 85); and
a 'nil' rating for reflux oesophagitis: Table 11.1 (Folio 86)
Mr. Letch submitted that these assessments were correct because:
Dr. Cramb (T7, Folio 82) assessed the applicant as having a loss of half range of movement in his lumbar spine and accordingly found that a rating of 10 points under Table 5.2 was appropriate. The respondent referred to the SSAT decision (T2, paragraph (9) which recorded that the applicant's indications were that his back and left leg were the source of most of his pain and discomfort. Dr. Cramb noted a well preserved sitting tolerance, and indicated 'requires light work, predominantly seated' and assigned 10 points. Mr. Letch contended that a rating of 10 points under Table 5.2, set out by the SSAT at folio 11, was the appropriate rating for the applicant's lumbar back condition; and
Dr. Yang, in a report dated 17 August 1999 (T17, Folio 119-134), assigned a total impairment rating of 10 points and concurred with Dr. Cramb's earlier assessment. Dr. Yang had regard to additional information including reports from Dr. Reye, Dr. Packer, Dr. Bond and Dr. Jackson.
In terms of assessment of hypertension, Mr. Letch submitted that a nil rating was appropriate because this condition was controlled with medication. Whilst it was acknowledged that multiple medications were necessary, the medical reports had stated that adequate control had been achieved without significant side effects (see HSA Report, Dr. Cramb T7, Folio 84 and report of Dr. Lawnton (T6, Folio 74).
CONSIDERATION OF THE ISSUES – ASSESSMENT OF IMPAIRMENTThe objective of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times.
The Tribunal has considered the assessment of impairment for Mr. McFadden in relation to:
(a)The Scheme of the Impairment Tables (Schedule 1B of the Social Security Act 1991). The introduction to this Schedule states in part:
"2. 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….
…
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.
..
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 for the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years….
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."
(b)The clinical conditions of Mr. McFadden is diagnosed by his treating doctor (Dr Lawnton T6, Folios 74,75) as well as finding of fact made by the SSAT (see paragraph 8).
(c)Applying Schedule 1B, only to those medical conditions which had been fully documented and diagnosed and which had been investigated, treated and stabilised could be rated.
(d)Applying the Social Security Act statutory framework, the evidence and materials relevant to the evaluation of Mr. McFadden's claim for DSP. As a consequence, the evidence and materials were confined to the date DSP was claimed (21 June 1999) or within three months after this date.
Accordingly, based on the above requirements for assessment of impairment and the appropriate Impairment Tables, the Tribunal concludes that:
(a)Table 5 – Spinal Fracture
Table 5.1 – Cervical Spine - No rating can be assigned because this condition has not been treated to the stage where it can be considered to be stabilised.
Table 5.2 – Thoracic – Lumbar – Sacral Spine - A rating of 10 points applies because Mr. McFadden has a reported loss of half of his normal range of movement and agreed he can sit for around "1½ hours if he has a very good chair" and can drive about on "average of ¾ of an hour if his back is all right".
(b)Table 4 – Function of the Lower Limbs ("left knee condition") - No rating can be assigned because of insufficient evidence or materials before the Tribunal to indicate whether it has been treated to a stage where it can be considered to be stablised.
(c)Table 3 – Upper Limb Function ("bilateral tennis elbow") - More medical documentation is required to indicate whether this condition has been treated to a stage where it can be considered to be stabilised. Therefore, no assessment of impairment points can be made.
(d)Table 12 – Hearing Function ("Hearing Loss") - Based on the audiogram (T16, Folio 111) the Tribunal concludes that a 'nil' rating is correct.
(e)Table 20 – Miscellaneous ("Hypertension: pain") - Table 20 can be used as an alternative to the Tables 3, 4, 5 to assess loss of function under this Table. However, the Tribunal concludes that more documentation and medical opinion is required if Mr. McFadden seeks to rely on this Table. Without those materials to ensure that these conditions have been treated to a stage, where they are considered to be stabilised, no assessment of impairment can be made.
(f)Table 21 – Intermittent Conditions ("Tinnitus") - The Tribunal agrees with the SSAT finding that Mr. McFadden has a 'nil' rating under this Table.
Based on the assessment of points under Tables 3, 4, 5, 12, 20 and 21, the Tribunal finds that Mr. McFadden has a total of only 10 points under the Impairment Tables at the time a claim for DSP was made on 21 June 1999 and so does not qualify for DSP.
Given this finding, the Tribunal has no need to decide the question of whether Mr. McFadden has a continuing inability to work.
However, the Tribunal makes the observation that such a condition may have changed at the time this application was reviewed by the Tribunal. In part, this reflects some limitations in clinical assessment of the various medical conditions suffered by Mr. McFadden. Specifically, whether sufficient documentation and medical opinion exists that each condition has been treated to the stage where it can be considered that each condition is stabilised to allow an impairment rating to be made. In time, this information and the assessment of points under the Impairment Tables will directly ensure that the appropriate evaluation of Mr. McFadden's inability to work will be made.
In this regard, the Tribunal makes the observation that Dr. Yang in his letter to Mr. Letch (17 March 2000) states that it would appear that from the additional information [to the DSP claim] that Mr. McFadden now has evidence of a chronic pain disorder and that further referral for pain and stress management would be useful – ideally at a chronic pain clinic. Furthermore Dr. Yang stated:
"As I have not personally examined Mr McFadden, I cannot offer a definitive opinion on his prognosis over the next two years. However, based on the provided medical evidence, it would appear that due to his chronic pain disorder, he is currently unlikely to cope with or sustain any regular work at present. His impairment however, may benefit from further medical intervention and treatment and could therefore be considered not fully treated or stabilised. If his impairment is accordingly considered temporary, then no impairment rating may be applied under the Impairment Tables."
Based on both of these observations, the Tribunal considers that it would be prudent for Mr. McFadden to make a new application for DSP at such time as some of the limitations in documentation and medical opinion which have affected the outcome of his claim for DSP made on 21 June 1999 have been addressed.
Based on the above findings, the Tribunal affirms the decision under review. This means Mr. McFadden was not qualified to receive disability support pension at the time of his claim on 21 June 1999.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member.
Signed: .....................................................................................
R. Hayes, AssociateDate/s of Hearing 30 May 2000
Date of Decision 30 May 2000
Applicant Mr. McFadden, himself
Respondent Mr. S. Letch, Departmental Advocate
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