Micchia and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1157

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1157

ADMINISTRATIVE APPEALS TRIBUNAL      No Q 200600334

GENERAL ADMINISTRATIVE DIVISION
Re		SHANE MICCHIA

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date22 March 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

MEMBER

CATCHWORDS

SOCIAL SECURITY - disability support pension - physical impairment – incapacity from orthopedic, gastrointestinal and psychiatric condition - impairment rating less than 20 points – relevant time-frame for qualification

Social Security Act 1991 ss 94(1), schedule 1B

Social Security (Administration) Act 1999 schedule 2 cl 4

Secretary Department of Social Security v Murphy (1998) 52 ALD 268

REASONS FOR DECISION

Mr R G Kenny, Member

Background

1.         On 6 July 2005, Shane Micchia (the applicant) lodged a claim for payment of disability support pension, a form of income support which is payable in accordance with the terms of the Social Security Act 1991 (the Act).  Therein, he nominated “back/neck/shoulder injuries”, “irritable bowel syndrome”, “stress/anxiety disorder” and “depression” as the basis of his claim.  On 17 August 2005, a delegate of Centrelink rejected his claim.  This decision was affirmed by an authorised review officer on 10 November 2005.  On 15 March 2006, the decision was affirmed by the Social Security Appeals Tribunal.  Mr Micchia now seeks review of that decision by the Administrative Appeals Tribunal (the Tribunal).

Issues and Legislation

2.         The requirements for payment of the disability support pension are set out in subsection 94(1) of the Act which, in so far as relevant, reads:

“Qualification for disability support pension

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) …………..; 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

3. All of those requirements must be met. It is not disputed, and I am satisfied, that Mr Micchia meets the age and residential requirements of that provision. Next, it must be determined whether he has an intellectual, physical or psychiatric impairment and whether the threshold of 20 points under the impairment tables is satisfied. In accordance with clause 4 of schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act), the qualifying criteria must be met on the date of Mr Micchia’s claim or within 13 weeks of that date. It is common ground that the 13 week period runs from 6 July 2005 until 5 October 2005. In the event that those requirements are met, it will need to be determined whether, during that time, he had a continuing inability to work because of the impairment. For continuing inability to work, the relevant provisions are subsections 94(2) to (5) of the Act.

Medical Evidence

4.         Evidence in this matter comprises reports from Mr Micchia’s treating medical practitioner Dr Evans, from the Gold Coast Hospital, from physiotherapist Mr C Inggs, from psychologist Ms S Riggs and from rehabilitation consultant Ms S Dean (nee Fortuin).  Dr Evans also gave oral evidence.

5.         In his report which accompanied the initial claim, Dr Evans referred to the pain experienced by Mr Micchia in his back, neck and shoulder.  He said that he had noted some limitations and a weakness in strength in the right hand and arm but he had conducted no measurements of the loss of range of movement or strength tests in respect of any of those conditions.  For irritable bowel syndrome, he described Mr Micchia as experiencing inconvenience and pain from this condition.  He also referred to "anxiety/depression" for which he expected no significant improvement and which reduced functionality in Mr Micchia.  Those conditions constitute both physical and psychiatric impairment as required under paragraph 94(1)(a) of the Act.

6.         Mr Micchia was examined by Ms Dean on 20 July 2005 for the purposes of completing a Work Capacity/Participation Assessment Report.  Therein, she described Mr Micchia’s neck, back and shoulder conditions and his irritable bowel syndrome as being permanent.  For the neck and back conditions, she described a loss of less than one-quarter range of movement.  For the shoulder condition, she wrote:

The customer spontaneously demonstrated rotation of his shoulder and forearm, and raised his arms above his head.  He reported clicking, which could be heard on rotation of the shoulder.  His right shoulder was observed to be lower than his left shoulder…..

7.         Ms Dean described Mr Micchia’s anxiety/depression as being of a temporary nature.  Her Assessment Report contained the following comments:

condition	impairment table	description	impairment rating
spinal injuries -- neck pain	5.1	Normal or nearly normal range of movement	nil
spinal injuries -- back pain	5.2	Normal or nearly normal range of movement	nil
irritable bowel syndrome	11.2	Infrequent minor symptoms	nil
right shoulder injury	3	Normal or nearly normal range of movement	nil
anxiety/depression	6	Moderate regular symptoms.  Functioning with some difficulty.  Social and recreational interference/some interference with interpersonal/workplace relationships.  Moderate effect on work attendance.  May have psychiatrist involvement	---

8.         For the psychiatric condition, Ms Dean noted that Dr Evans had recently referred Mr Micchia to a psychologist and Mr Micchia had advised Ms Evans that he expected improvement because this had resulted from psychological treatment in the past.  Ms Dean assessed him as being capable of working up to seven hours per week at that time with the prospect of this improving to 30+ hours per week within two years.

9.         Dr Evans completed a report on 6 September 2005 in which he said that Mr Micchia’s psychiatric state had stabilized at that time.  He said that he had suffered the problem for some years and that the condition displayed the same pattern over time.  Dr Evans first saw him in June 2005.  He described the antidepressant Endep but said that this was really for pain management associated with his orthopaedic conditions and that the drug is frequently prescribed on that basis.

10. In relation to his non-psychiatric conditions, Dr Evans expressed the opinion that impairment ratings could be allocated from table 20 of schedule 1B. In particular, he nominated 15 points for the cervical spine, 10 points for the thoracic and lumbar spine, 15 points for his upper limb function and 10 points for the irritable bowel syndrome. These were all recommended under table 20. In his oral evidence, Dr Evans conceded that he had not conducted measurement tests in relation to Mr Micchia’s orthopaedic conditions. The tables which have been referred to in the medical evidence are as follows:

Table 3Upper Limb Function

All upper limb problems are assessed under the upper limb Table (Table 3).  Each arm is assessed separately.  Determination of upper limb impairments must be based on a demonstrable loss of function.

Rating	Criteria
NIL	Normal or nearly normal range of movement. Can use dominant limb effectively and/or Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.
5	Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function or manual handling.
10	Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.

Table 5.1Cervical Spine

Rating	Criteria
NIL	Normal or nearly normal range of movement.
5	Loss of quarter of normal range of movement.
10	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.

Table 5.2Thoraco–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.

5

Loss of one-quarter of normal range of movement.

10

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.

Table 11.2Gastrointestinal: Pancreas, Small and Large Bowel, Rectum and Anus

Rating	§ Criteria
NIL	Anal disorder: infrequent and minor symptoms, eg, haemorrhoids, anal fissures, controlled by medication Bowel disorder, eg, irritable bowel, diverticulosis: infrequent and minor symptoms such as constipation, or bowel disorder which respond to dietary treatment alone.
10	Bowel disorder: frequent moderate symptoms despite optimal treatment Occasional faecal soiling despite optimal treatment Anal disorder: marked symptoms despite regular treatment Colostomy, ileostomy - well controlled Established chronic pancreatic disease with moderate symptoms (pain/steatorrhoea) Large abdominal hernia not easily reduced and resulting in persistent moderate symptoms.

Table 6Psychiatric 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.
10	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).
20	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.

Consideration

11.       The only evidence gleaned from an actual assessment of Mr Micchia‘s functional loss in relation to his orthopaedic conditions in the relevant period is that provided by Ms Dean.  The descriptions are given above and I am satisfied that these equate with nil impairment ratings for the back, neck and shoulder conditions under tables 5.2, 5.1 and 3, respectively.  For irritable bowel syndrome, Dr Evans described inconvenience and pain and Ms Dean described infrequent minor symptoms.  I am satisfied that this equates with a nil impairment rating under table 11.2. 

12. Dr Evans recommended impairment ratings for these conditions under table 20. Mr Black submitted that this was inappropriate where the system-specific tables could be considered. I accept his submission in that regard and, in that context, I note paragraph 8 of the Introduction to Schedule 1B of the Act which makes reference to the use of table 20. In part, it reads:

In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it.  For example, Table 5 should be used for spinal pathology.  However, where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates. 

13.       In this case, it has not been suggested by Dr Evans that the descriptions in tables 3, 5 and 11 underestimate the level of Mr Micchia’s disability because of the presence of entrenched pain.  Rather, the relevant testing was not undertaken as required by those tables and resort was had to table 20 because of the presence of pain.  On the other hand, specific reference to tables 3, 5 and 11 was made by Ms Dean and I am reasonably satisfied that the ratings which she recommended from those tables in the relevant period should be adopted rather than the more general allocation recommended by Dr Evans under table 20.

14.       Mr Micchia submitted that his psychiatric condition was permanent and should attract a rating under table 6.  Dr Evans also considered that the condition was permanent.  I have noted his evidence in respect of the use of the antidepressant Endep to assist in pain management.  One of the reasons given by the respondent for its finding that the condition was not permanent was that Mr Micchia  was still undergoing referrals for treatment by a psychologist.  Dr Evans said that a reason for referring him to Ms Riggs was to get assistance with his assessment of Mr Micchia’s situation as much as it was for treatment.  However, in his evidence, he expressed some doubt about the appropriate diagnoses of psychiatric conditions.  He said that he thought anxiety disorder was an accurate description but he also considered that he may be suffering from post-traumatic stress disorder.  Dr Evans considered that it was not necessary for him to see a psychiatrist because he had seen one some years before making his claim and it had not brought about any change in his situation.  He said one of the reasons for his referral of Mr Micchia to Ms Riggs was to provide him with a second opinion about his psychiatric diagnosis.

15. Paragraph 4 of the Introduction to Schedule 1B provides the following guidance in relation to the issue of whether or not a condition is permanent. It 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.

16.       Accordingly, the condition under consideration must be “permanent” in the sense that it is “a fully documented, diagnosed condition which has been investigated, treated and stabilised”: see Secretary Department of Social Security v Murphy (1998) 52 ALD 268 at 271. Dr Evans’ evidence about the appropriate diagnoses for Mr Micchia’s psychiatric state indicates that there remains a level of uncertainty about whether or not the condition is permanent in terms provided in paragraph 4 above. In any event, I have noted Dr Evans’ recommendation of 10 impairment points under table 6. In the event of the condition being permanent, this is the appropriate rating as Mr Micchia has not been referred to a psychiatrist for treatment.

17.       On all the evidence before me, the highest overall rating that can be allocated to Mr Micchia under the impairment tables is 10 points.  That is not sufficient to meet the threshold of 20 points as required by paragraph 94(1)(b) of the Act.  As noted above, all of the requirements of section 94 must be met for a person to qualify for the disability support pension.  That is not the situation with Mr Micchia in the period from 6 July 2005 until 5 October 2005 and I am satisfied that he did not qualify for the disability support pension in the relevant time-frame.

Decision

18.       The Tribunal affirms the decision under review.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

Signed:         .....................................................................................
  Legal Research Officer

Date of Hearing  6 February 2007
Date of Decision  22 March 2007
The applicant appeared in person.
The respondent was represented by Mr M Black, a departmental advocate.