Mietto and Secretary, Department of Family and Community Services

[2005] AATA 1099

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1099

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/543

GENERAL ADMINISTRATIVE  DIVISION

Re:         ROBERT MIETTO

Applicants

And:       SECRETARY,
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Miss E.A. Shanahan, Member

Date:             29 September 2005

Place:            Melbourne

Decision:For reasons given orally at the hearing, the Tribunal affirms the decision under review.

. . . . . . . . . . . . . . . . . . . . . .

Member

SOCIAL SECURITY – disability support pension – pension cancelled following re‑assessment – applicant's Centrelink file lost or destroyed – impairment rating

Social Security Act 1991 s 94(1)(a), 94(1)(b), 94(1)(c)

REASONS FOR DECISION

Miss E.A. Shanahan, Member

1. This is an application by Robert Mietto (the applicant) for review of a decision by a delegate of the Secretary to the Department of Family and Community Services (the respondent) dated 9 September 2003, cancelling Mr Mietto's disability support pension (DSP). The DSP was cancelled because he no longer satisfies, on medical grounds, the requirements for DSP as outlined in s 94(1) of the Social Security Act 1991 (the Act).  The decision was affirmed by an authorised review officer (ARO) on 17 November 2003. 

2.      The Social Security Appeals Tribunal (SSAT) affirmed the decision on 3 March 2004.but directed Centrelink to re‑assess Mr Mietto's impairment, under Table 20 of the Impairment Tables for the Assessment of Work-Related Impairment for Disability Support Pension in Schedule 1B of the Act (Table 20), at 15 points rather than 10, based on chronic back pain alone.  Mr Mietto sought review of the SSAT decision by the Administrative Appeals Tribunal (the AAT) on 6 May 2004.

3.      Mr Mietto was self‑represented.  He gave his evidence and conducted cross‑examination of the respondent’s witness by telephone.  Prior to the first day of hearing, on 25 July 2005, he had sought the Tribunal’s permission to appear by telephone as he was suffering from shingles.  The respondent was represented by Ms Elizabeth King, a Centrelink advocate. 

4. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T34) (the T‑documents) and a report from Dr R. Gingold, the applicant's general practitioner, dated 11 July 2005 (Exhibit A1).   

5.      Following the first day of hearing, the Tribunal directed Mr Mietto to obtain copies of his previous CT lumbar spine scans if possible, and certification regarding his illness that prevented him from attending the Tribunal in person.  Ms King was directed to search again for Mr Mietto's Centrelink file from 1990 to approximately 1998, which was said to be missing; and to obtain a report from Ms J. Amos, a psychologist based at the Hastings Centrelink office, who had seen Mr Mietto on three occasions.  Mr Mietto was only able to obtain a copy of one CT spine report dated 21 September 2000 (Exhibit A2).  Ms King was unable to locate the Centrelink file prior to 1998 and reported that it had either been lost or destroyed.  She did tender the report of Ms J. Amos dated 11 August 2005 (Exhibit R1). 

6.      Mr Mietto and Ms C Donald of Advanced Personnel Management gave evidence before the Tribunal.

ISSUE BEFORE THE TRIBUNAL

7. The issue before the Tribunal is whether Mr Mietto's medical conditions meet the requirements of s 94(1)(b) and (c) of the Act; the respondent having agreed that s 94(1)(a) was satisfied, in that Mr Mietto has a physical impairment as defined in the Act. The physical impairment acknowledged was that of chronic low back pain. No medical report regarding a psychiatric impairment (depression) had been received by Centrelink prior to the cancellation of the DSP on 9 July 2003.

8. As Mr Mietto's impairment has been re‑assessed by the SSAT on the basis of chronic back pain, which attracted Table 20, he did not meet the s 94(1)(b) requirement of 20 points. Ms King contended that even if he was to be re‑assessed at 20 points, a work capacity assessment in July 2003 (T20), which was confirmed in October 2004, had found that Mr Mietto had a continuing capacity to work or to re‑train.

9.      Centrelink has not been advised of a diagnosis of depression by any medical practitioner until Dr Gingold's report of 3 October 2003 (T26).  Centrelink has not been advised of any right shoulder damage until Dr Gingold's subsequent report of 24 October 2003 (T31).  Hence these two conditions were not considered by the primary decision‑maker or the SSAT. 

10.     As it is the role of the AAT to review the decision of the primary decision‑maker and that of the SSAT, the Tribunal cannot take into account the undiagnosed, untreated and unassessed incapacities relating to Mr Mietto's depression and right shoulder injury. 

11.     The applicant has been advised to have these two conditions assessed and documented; and then reapply for the DSP.

BACKGROUND TO THE APPLICATION

12.     Mr Mietto said that he fell 20 metres from a tree on 21 November 1990.  Medical reports and the SSAT decision have dated the injury to some time in 1989.  Mr Mietto landed on his feet and then fell on to his coccyx and buttocks, sustaining a compression fracture of the second lumbar vertebra (L2) and dislocation of his right shoulder.  His injuries necessitated inpatient hospital treatment for a period of two weeks, followed by six weeks of domiciliary care.  Mr Mietto was not covered by any insurance.  He has not worked since this injury. 

13.     Following his injury, Mr Mietto received sickness benefits and he was then transferred to newstart allowance.  The exact nature and dates of the benefits Mr Mietto received are uncertain, as Mr Mietto's Centrelink file prior to 1998 has been lost or destroyed.  As this file contained medical specialists' reports, the results of all investigations, the treatment prescribed and any rehabilitation programmes undertaken, this Tribunal can only rely on the applicant's evidence. 

14.     In October 2000 the applicant was assessed by Dr B. Vout of Health Services Australia Ltd (HSA).  Dr Vout diagnosed a crush fracture of L2 and an annular disc tear of L4/5 and assessed a 50 per cent loss of normal spinal mobility with a positive straight leg‑raising (SLR) test on the right side.  Vocational rehabilitation was advised.  Based on Dr Vout's report, an impairment rating of 20 points was assigned and Mr Mietto was granted the DSP on 14 November 2000. 

15.     Mr Mietto's DSP entitlement was subjected to periodic review and he was advised, by letter of 13 November 2002, of an impending review (T19).  The treating doctor's report was completed by Dr Gingold on 31 January 2003, confirming that Mr Mietto's condition was unchanged.  On 9 July 2003 a decision was made to cancel Mr Mietto's DSP and, by letter dated 9 September2003 (T20, p116) Centrelink advised Mr Mietto he no longer qualified for DSP.  Cancellation of the DSP was based on a work capacity assessment performed by a rehabilitation counsellor with Advanced Personnel Management (APM) on 10 July 2003 (T20 p132).  The rehabilitation counsellor assessed Mr Mietto's impairment rating at 10 points based on Table 5.2.  Following Mr Mietto's application for a review, Mr Michael Palmer (ARO) affirmed the decision on 17 November 2003 (T33).  The SSAT affirmed the decision on 3 March 2004; but assessed Mr Mietto's impairment under Table 20, which relates to pain and fatigue, at 15 points as opposed to the APM assessment at 10 points, based on spinal range of movement Table 5.2.  

16.     Mr Mietto maintained that his back pain and limitation of movement have deteriorated over the passage of time, as he was advised it would; that his right shoulder movement is restricted and that he continues to suffer from depression.

EVIDENCE BEFORE THE TRIBUNAL

17.     Mr Mietto confirmed that his back pain was constant, and it was aggravated by minimal physical activity.  He said that his pain had worsened over the past six to seven years; and that currently he takes Panadol on a regular basis, as advised by his doctor, but endeavours to avoid analgesics.  He now takes Efexor for depression as opposed to his previous medication with Prothiaden.  He finds Efexor is more effective. 

18.     Mr Mietto informed the Tribunal that he had seen a psychologist at Hastings Centrelink office on three occasions in the preceding few months, on referral from Centrelink staff.  But the psychologist, Ms Amos, had told him that she could not provide a report given that she was employed by Centrelink.  It was Mr Mietto's understanding that Prothiaden, and now the Efexor, was prescribed for his chronic pain and his depression. 

19.     Ms King's cross‑examination was primarily directed at Mr Mietto's functional capacity.  Mr Mietto said that it took him half a day to vacuum his house, using an extended vacuum hose.  His wife was responsible for most of the care of their three children and her grandchild, although he read to them after school and he had walked the children to school once in the past 12 months.  Mr Mietto stated that he spent most of his time reading and resting, drove his car short distances approximately four times per week, and as advised by his treating doctors, performed a set of exercises every morning.  His wife did all the shopping.

20.     Mr Mietto said that he is still experiencing pain in the right shoulder, following the dislocation in 1990 and had not regained a full range of movement.  As most of his sciatic symptoms were on the right side and intermittent in nature, he placed most of his weight on his left leg.  As a result, he believed his left ankle was painful and swollen from time to time and he used, when necessary, a walking stick to reduce the pressure on his left ankle.  Mr Mietto informed the Tribunal a left ankle ultrasound had shown "scarring of the left ankle". 

21.     When asked why he had not considered spinal surgery, Mr Mietto said he had been advised by his specialists that the only feasible surgery was spinal fusion and that such surgery should be postponed until he was much older.

22.     Mr Mietto confirmed that he slept three to four hours each night despite taking Temazepan and that his sleep was disturbed by pain.  Sitting and standing were limited to 10 minutes due to the pain.  He commented that "I move around a lot". 

23.     Ms Donald is an occupational therapist who is the State Manager of APM.  She has been undertaking Centrelink functional assessments under contract for the past 3 years.  Prior to her Centrelink contract, she worked for 13 years in acute hospitals and rehabilitation programmes.  Ms Donald assessed the Mr Mietto in October 2004 and found that he had the capacity to re‑train as a bank teller or tourist guide, for example at Phillip Island. 

24.      When she formally tested Mr Mietto, Ms Donald had noted a reduced range of movement of the spine.  However, she contrasted this with her observations of good movement when Mr Mietto was undressing and her observations when she watched him drive away from the building after entering his van and picking up an item on the floor of the van.  She also noted Mr Mietto was using his walking stick inappropriately if its use was for his right sciatica.  Ms Donald was aware that Mr Mietto had previously undergone a rehabilitation programme, but she had no knowledge of the results of this programme. 

25.     Mr Mietto cross‑examined Ms Donald with respect to his use of a walking stick.  Ms Donald said that her instructions and notes of referral had stated that the walking stick was used for the symptoms of right sciatica and that she was not aware that Mr Mietto had any left ankle problem.  Her functional capacity assessment of Mr Mietto was based on her observations on the day of examination only.  Mr Mietto challenged Ms Donald's evidence that she had spent 45 to 60 minutes assessing him, as he had contemporaneously recorded his visit on 5 October 2004, on the APM letter of advice, as leaving left home at 10:15 a.m. and returning at 10:45 a.m.  The drive from his home to the Hastings Centrelink office takes 4 to 5 minutes each way.  In addition Mr Mietto also stated that he recorded his interview with Sharni on 10 July 2003 as lasting for 15 minutes.  Ms Donald stated that both interviews lasted 45 minutes and APM billed Centrelink for 1 hour and 30 minutes in each case, which included the interview and the writing of the report.  Ms Donald had not recorded the length of time of any interviews. 

DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL

26.     As Centrelink has lost or destroyed Mr Mietto's file prior to 1998, the Tribunal cannot assess the medical specialist reports and radiological evidence that led to him being granted DSP on 14 November 2000.  Dr Vaut's reports (T16) formed the basis of the grant of the DSP.

27.     Dr Gingold's medical reports have been referred to above.  The report dated 12 July 2004 confirmed that the applicant's back pain was unaltered over a period of 14 years; and that he also suffered from fatigue and depression.  Dr Gingold assessed the applicant's claim at 20 points for spinal dysfunction; 20 points for chronic back pain and 10 points for sciatic nerve pain, giving a total of 50 points on   the Impairment Tables.  His assessment was confirmed on 11 July 2005 (Exhibit A1).

28.     The applicant provided a copy of the CT scan of the thoracal lumbo spine, performed on 21 September 2000 (Exhibit A2).  This showed an old L2 fracture, small annular disc bulges at L2-L3, L3-L4, L4-L5 and no abnormality at L5-S1 level.  There were mild fact joint degenerative changes at all levels. 

29.     The respondent obtained a report (Exhibit R1) from Ms Amos, who had diagnosed severe depression, uncontrolled by anti‑depressive medication.  Ms Amos referred Mr Mietto to the Peninsula Community Health Services for further counselling.  Mr Mietto attended but could not bring himself to ask to see a counsellor.  Ms Amos suggested he ask his general practitioner for a referral to a bulk billing psychiatrist or psychologist.  In her report she supported Dr Gingold's diagnosis of severe depression.

RESUMED HEARING

30.     The hearing of this matter was resumed on 29 September 2005 and the Tribunal was provided with new information as previously listed.  Mr Mietto advised that his general practitioner, Dr Gingold, was still searching for a psychiatrist or psychologist who would bulk bill him for their services.  As he had developed a good rapport with Ms Amos, the Tribunal recommended he inquire as to whether she could see him in a private capacity and bulk bill for her service.

RELEVANT LEGISLATION

31. The Act delineates the requirements for DSP in s 94(1) as follows:

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

…

THE TRIBUNAL'S DELIBERATIONS

32. It is agreed that Mr Mietto satisfies s 94(1)(a) of the Act in that he has a physical condition. It appears to the Tribunal that he also has a psychiatric condition and further physical conditions in the form of right shoulder injury and, more recently, left ankle pathology. However, these latter three conditions have not been addressed by the treating medical officers (to the Tribunal’s knowledge and on the information presented); and he certainly has not been assessed appropriately. The SSAT assessed his impairment, based on the physical injury alone and using the Table 20 chronic pain criteria, at 15 points. Mr Mietto does not, therefore, on the evidence meet the requirements of s 94(1)(b) of the Act. Until there is a proper assessment of all Mr Mietto's injuries, s 94(1)(c) cannot be determined.

33.     The applicant's right shoulder impairment has not been assessed at any time and this was part of the lost Centrelink file.  Likewise, the left ankle pathology has not been reported nor assessed; and treatment has been limited to the use of a walking stick and anti‑inflammatory medication.  While the applicant's evidence is that he has been depressed for many years, depression as a primary diagnosis was not made until 3 October 2003 (T26).  This diagnosis was not confirmed by expert opinion until Ms Amos' report of 11 August 2005.    While Mr Mietto has taken anti‑depressants for many years, his treatment was initially considered to be for controlling his chronic pain rather than his depression.  The Tribunal is aware that anti‑depressants have an acknowledged beneficial role in the treatment of chronic pain syndromes; and this is said to be an action unrelated to the drug Efexor in treating depression. 

34.     The SSAT assessed Mr Mietto's impairment at 15 points, using Table 20, and having rejected the assessment based on Table 5.2 which relates to functional (physical) incapacity. 

35.     While the Tribunal agrees that double‑counting of a particular loss of function must be avoided (Explanatory Notes to Table 20), the Tribunal is not convinced that Table 20 is the only table applicable to Mr Mietto's assessment, as the majority of conditions referred to in this table relate to uncontrolled conditions: malignancy, organ transplants, inoperative aneurysm s and the like.  The SSAT assessed Mr Mietto’s incapacity at 15 points, and Table 20 states that 15 points are attracted for

Moderate to severe symptoms which are more distressing but prevent few everyday activities.  Self‑care is unaffected and independence is retained.  Symptoms may have mild to moderate impact on ability to perform or persist with work‑related tasks and/or attend work.  Full‑time work would still be possible. 

Potentially life‑threatening condition which is currently interfering with daily activities but self‑care is unaffected.

36.     Dr Gingold's assessment of impairment has also double‑dipped, in that he has assigned 20 points on purely a physical functional basis, 20 points for pain and 10 points for sciatica.  The SSAT was not able to assess the applicant's depression as it had only been reported on 3 October 2003 and it appears to have had no knowledge of Mr Mietto's right shoulder impairment. 

37.      In light of the paucity of the evidence and documentation, which may or may not be due to Centrelink having lost the applicant's file, the Tribunal has no alternative but to affirm the decision under review.  The Tribunal has advised Mr Mietto to re‑apply for DSP on the basis of his chronic back pain, right shoulder impairment and chronic depression.  All these "illnesses" require expert opinion and assessment in accordance with the Act. 

38.     In simple terms, this means Mr Mietto must see, be assessed by, and where possible, be treated by a psychologist or psychiatrist with respect to his depression.  He must also have his right shoulder examined and assessed by an orthopaedic surgeon.  He also needs to obtain a current opinion from a pain specialist regarding his chronic pain.  The Tribunal is aware that such assessments are costly and often subject to long waiting periods.  The respondent should endeavour to facilitate timely review given that they have lost or destroyed all past specialist reports.