Mills and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1505
•4 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1505
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2007/24
GENERAL ADMINISTRATIVE DIVISION ) Re CHRISTOPHER MILLS Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Associate Professor B W Davis AM (Part-time member) Date4 July 2007
PlaceHobart
Decision The decision under review is affirmed. [Sgd B W Davis]
Part-Time Member
CATCHWORDS
Social Security - disability support pension (DSP) - eligibility - disabilities - cervical degenerative disease - hypertension - osteoarthritis of right knee - degree of impairment - disability rating - ability to work - SSAT decision - AAT review.
Social Security Act 1991 and Amendments - s94 and Schedule 1B - Tables for the Assessment of Work-related Impairment for Disability Support Pension.
Social Security (Administration) Act 1999
Guide to the Social Security Act
Sayan and SDFCS (2001) AATA 893
Coates and SDEWR (2006) AATA 938
Re SDFCS v Michael (2001) 116 FCR 500
Re SDSS v Pusnjak (1999) 56 ALD 444
McDonald and DGSS (1982) V81/69
Watts and SDGCS (2003) AATA 632
Crossland and SDFCS (2004) AATA 864
REASONS FOR DECISION
4 July 2007 Associate Professor B W Davis AM (Part-time member) Decision Under Review
1. The decision under review is a decision of the Social Security Appeals Tribunal dated 6 February 2007, affirming the decision made by Centrelink on 27 July 2006, to reject the applicant’s claim for disability support pension (DSP) lodged on 3 May 2006.
Issues
(a)Does the applicant satisfy s94(1)(b) of the Social Security Act 1991 (the Act”) i.e. does it attract a disability rating of 20 points or more under the Impairment Tables?
(b)Does the applicant satisfy s94(1)(c) of the Act i.e. does he have an ongoing inability to work?
Legislation
2. Social Security Act 1991 and Amendments - s94 and Schedule 1B - Tables for the Assessment of Work-related Impairment for Disability Support Pension. Social Security (Administration) Act 1999, Guide to the Social Security Act.
Standard of Proof
3. The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal.
Background and medical evidence
4. The applicant, Christopher Mills, first applied for disability support pension (DSP) on 11 November 2005, on the basis that he had been diagnosed as suffering from bony sclerosis in the right knee and left-sided cervical pain through osteophytic lipping and disc space reductions. He was assessed by a Health Services Australian nurse on 20 December 2005 and a Health Services doctor (Dr Mieke Tabart) assigned an impairment rating of 10 points for osteoarthritis of the cervical spine, with nil points for arthritis of the right knee and nil for hypertension. On 5 January 2006 Centrelink rejected his claim for DSP give that the disability rating was not 20 points or more, as required by s96(1)(a)(b) and (c) of the Act to qualify for DSP.
5. On 3 May 2006 Mr Mills lodged a second claim for DSP, accompanied by a treating doctor’s report from Dr J Clapton. The report indicated the applicant suffered from cervical degenerative disease and had “… increasing neck pain and stiffness over several years, which is severe at times, and interferes with sleep.” The doctor stated the condition was likely to persist more than 2 years, with expectation of further degeneration, and that future planned treatment included referral to a pain management specialist.
6. On 23 May 2006 Mr Mills underwent a further examination by a registered nurse from Health Services Australia. The nurse noted that the patient did not sleep well and noted the pain experienced as 8 out of 10. Mr Mills said he had difficulty shaving, was unable to hang out washing or work above head height and no longer was able to vacuum or work on gardens. He was on a long waiting list to see a neurosurgeon and had an appointment scheduled for 3 October 2006 to see a pain specialist.
7. The nurse noted that the applicant was taking panadol and panadeine for treatment, experiencing a loss of one half flexion, extension and rotation and a loss of three quarters left and right lateral flexion of the cervical spine.
8. On 13 July 2006 Dr Wnekowski of Health Services Australia completed a file based assessment of the applicant’s medical conditions. The doctor noted that the applicant suffered cervical spine degenerative disease, that the intervertebral foramin narrowing at the time was present at C2/3,3/4, 5/6 and 6/7 and there was a loss of half range of movement.
9. Dr Wnekowski stated that the applicant was to seek further opinions about management of his condition and until the outcome was known, the condition could not be regarded as permanent. lf permanent, it would attract an impairment rating of no higher than 10 points. She did not regard the disability as preventing working, she regarded Mr Mills as fit for 30 hours employment per week of a sedentary nature, avoiding overhead work and repeated bending, lifting, twisting and head turning.
10. On 27 July 2006 a Centrelink officer rejected the claim for DSP, as the applicant attracted an impairment rating of less than 20 points. Mr Mills requested a review of this decision, but it was affirmed by the original decision-maker on 12 August 2006 and reaffirmed by an Authorised Review Officer (ARO) on 16 November 2006. In the interview other medical evidence had been received.
11. On 1 October 2006 the applicant received a Medical Imaging Report from St Luke’s Hospital, showing there was a “a right postero-lateral disc protrusion at C5/6, with minor cord compression and right intervertebral foraminal narrowing.” It stated that “posterior central disc protrusion compression existed at C6/7” and smaller posterior central disc protrusions had been identified at C4/5 and C7/T1, without cord compression.
12. On 11 October 2006 Dr Clapton completed a Centrelink Medical Certificate. The doctor identified Mr Mills as suffering from increased pain and stiffness in the neck and considered he was unfit for work between October 2006 and January 2007. The doctor considered the condition permanent but listed the prognosis as uncertain and awaiting specialist opinion.
13. On 24 October 2006 the applicant’s neurosurgeon Dr Pauline Waites wrote a letter to Dr Clapton, explaining the applicant had a limited range of neck movement, was taking panadol and panadeine forte, but might respond to alternative medications such as Tramadol or Gabapeutia. Dr Waites said she would see the patient in February 2007, but had advised him of the symptoms of myelopathy such as numbness, tingling, dropping things, which if encountered should cause him to seek urgent referral for review.
14. Throughout the period his second application was being considered, Mr Mills drew attention to what he considered were errors and misinterpretations of medical evidence by Centrelink. Following rejection of his second application, he sought review by the Social Security Appeals Tribunal on 22 December 2006.
The SSAT Decision
15. An SSAT hearing was conducted in Hobart on 28 January 2007. Mr Mills attended via a video link and spoke to the Tribunal.
16. The Tribunal conducted a very detailed review of all available evidence, including medical records, before concluding that the decision under review should be affirmed. They accepted that Mr Mills suffers from degenerative cervical spine disease, osteoarthritis of the right knee and hypertension and noted the applicant only wished to pursue the matter of cervical spine disease. They also accepted the disability caused chronic neck pain and had been shown to have 50-75% loss of movement, depending upon direction of movement. He had seen a neurosurgeon in October 2006 and further treatment with medication and possible facet block was recommended. He had also seen a pain specialist in 2006; his right knee osteoarthritis imposed only mild restriction on activities and his hypertension was controlled.
17. Overall they concluded that the condition of degenerative cervical spine disease was not fully stabilised and treated, it was not considered permanent for purposes of the Act and could not be rated under the Impairment Tables. Mr Mills’ condition thus did not satisfy s94(1)(b) of the Act and it was unnecessary to consider whether he had an ongoing inability to work; he was not eligible to receive DSP i.e. the original decision was affirmed.
18. It should be noted that Mr Mills had presented a substantial and well documented case in which he claimed there were mixed assessments of his condition, the meaning of some phrases were open to question, Health Service Australia doctors had relied upon reports and not examined him and that his general medical condition was such that his impairments had been lowly rated, when the evidence indicated otherwise. Many of these points were to be amplified in a de novo review which he sought from the Administrative Appeals Tribunal on 16 February 2007.
The AAT Hearing
19. The AAT hearing was conducted in Devonport on 23 May 2007. Mr Mills was self-represented, the respondent was represented by Mr Flemming AAberg and Mr Brian Sparkes, no witnesses were called.
20. After brief opening submissions the applicant was affirmed and indicated he had not worked for the past 12 years because of a series of family crises, including caring for his mother until she passed away and later his wife who suffers from post-traumatic stress syndrome. He was involved in a Personal Support Program with Centrelink, but claimed he was qualified to receive DSP at the time he lodged his claim in May 2006. He regarded Centrelink as fair in allowing him 25 weeks to gain additional evidence, but there was a very long waiting list before he could see a neurosurgeon in October 2006.
21. He did regard Centrelink as selective in the way it used evidence, given that they did not question the contradictory assessment by two Health Services Australian doctors, neither of whom saw him, but gave an initial impairment rating of 10 points but a second and later assessment of zero points. Both flew in the face of evidence that his disability had been rated at 50 – 75% of rate of movement, with constant pain and diagnosis that further deterioration would occur. His contention was that the impairment rating should have been 20 points or more, which meant DSP should have been granted, since there was no hope of improvement within two years.
22. Mr Mills referred to a number of documents and reports, in some instances comparing them line by line to indicate what he perceived as errors, omissions and contradictions. He noted for example that at least on four occasions has disabilities had been described as “permanent”, so that in effect they had been identified, treated and stabilised, in the sense of leading to a known outcome.
23. The Health Services Australia Nurse Report dated 23 May 2006 identified severe neck pain, rating 8 out of 10 and loss of range of the cervical spine, specifically loss of one half flexion, extension and rotation and loss of three quarters left and right lateral flexion. He considered the wording may have caused some confusion at Centrelink.
24. Mr Mills queried the Health Services Australian doctors report of 13 July 2006, which identified a number of spinal degenerative disc problems at various points along the spine, but said the condition could not be regarded as permanent until further opinions on management were obtained. There was also a leap to judgment that if the condition was permanent, it would attract an impairment rating of no higher than 10 points. He was also judged fit for 30 hours of work per week, when pain and other limitations rendered this impossible.
25. Under cross-examination by Mr Aarberg, Mr Mills admitted the above assessments were made prior to him seeing a neurosurgeon and pain management specialist, with the former later indicating that although he had a limited range of neck movement and quite severe canal stenosis, he was neurologically intact and new medications might provide some relief.
26. Mr Aarberg said they did provide some relief so other treatment options were available. Mr Mills agreed, but side-effects also arose from such pharmaceutical regimes.
27. In closing submissions Mr Mills again drew attention to the contradictory versions presented by the two HSA doctors and indicated that because his impairments were rated low, when on medical evidence they were high, he had been incorrectly deprived of disability support pension. The legislation was deficient in not indicating what “fully treated” meant, hence what constituted “diagnosed, treated and stabilised” in cases such as his was open to ambiguity. It was hopeless to assume that complete stabilisation could occur in 13 weeks, so the provisions were somewhat discriminatory.
28. Mr Aarberg said it was clear from the evidence that an impairment rating could not be given to Mr Mills during the relevant period 3 May – 1 August 2006, because at that stage his disabilities had not been fully diagnosed, specialist opinions were required, and alternative treatments were under consideration. Whatever subsequent medical reports may have shown, at the relevant time, doctors were indicating the impairment rating was likely to be low, probably 10 points maximum, rather than the 20 points or more required to qualify for DSP. Moreover, they were indicating Mr Mills Might be able to work up to 30 hours per week, if some rehabilitation proved feasible; there was no evidence at that time of an ongoing inability to work. Overall the applicant failed to satisfy s94(1)(b) and (c) of the Act and his application for DSP was correctly rejected. The original decision and that of the SSAT should be affirmed. It was always open to Mr Mills to make a new application if his circumstances changed.
Analysis
29. The Tribunal is required to conduct a de-novo review taking into consideration all available evidence, statutory and policy provisions and any relevant prior case determinations.
30.
It must be stated at the outset that having regard to the documentation and evidence given at the AAT hearing, together with reasons for the SSAT decision, there are some aspects of Mr Mills’ case that bear scrutiny. Mr Mills sees a disparity between the two HSA doctors’ reports, in that one involved a disability rating of 10 points and the other zero on the basis that no disability assessment was feasible at the time, but then went on to state that if permanent, the rating could not be higher than 10 points. No reason was given; it does appear somewhat speculative and perhaps inappropriate in the circumstances. The
Tribunal is not in a position to reject the opinion of qualified and experienced professionals, but notes the assessments were made without the doctors actually meeting the patient and conducting a thorough examination.
31. It appears equally baffling to the layman that an individual can be assessed as losing half to three-quarters ability to move freely, suffer ongoing pain rated 8 out of 10 and be informed further degeneration is likely and the condition might be permanent, then be informed the disability rating could be no greater than ten points. Commonsense would suggest the rating should be higher, but the Tribunal has not identified any evidence to support such a contention, indeed the medical reports suggest Mr Mills disabilities are not yet fully treated and stabilised, as alternative management options remain. This places him in the unfortunate situation that any further application is likely to fail, unless doctors indicate that Mr Mills condition has been treated and stabilised to the point that no improvement is feasible i.e. his condition has become permanent.
32. Whatever the Tribunal may think it has to operate on the basis of the evidence before it and what the law allows.
33. Having considered all evidence before it, the Tribunal has determined on the balance of probabilities Mr Mills did not meet the criteria specified in ss94(1)(b) and (c) of the Act during the relevant period 3 May to 1 August 2006, and thus did not qualify for payment of disability support pension. In other words, the decision under review is affirmed.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time member)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 23 May 2007
Date of Decision 4 July 2007
Counsel for the Applicant Applicant represented himself
Solicitor for the Applicant
Counsel for the Respondent Mr F Aarberg and Mr B Sparkes
Solicitor for the Respondent Centrelink Legal
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