Minaoui and Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2000] AATA 428

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/1054

GENERAL ADMINISTRATIVE DIVISION       )
           Re      NADINE MINAOUI
  Applicant
           And    THE SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr B.G. Gibbs, AM, Senior Member

Date1 June 2000
PlaceMelbourne

Decision      The Tribunal affirms the decision under review.
  (Sgd.)    B.G. GIBBS
  Senior Member
CATCHWORDS
SOCIAL SECURITY – Entitlement – disability support pension – whether applicant has a physical, intellectual or psychiatric impairment – whether impairment is of 20 points or more under Impairment Tables – whether applicant has a continuing inability to work.
Words and Phrases
Social Security Act 1991, s. 94 and Schedule 1B

REASONS FOR DECISION

1 June 2000 Mr B.G. Gibbs, AM, Senior Member
Introduction

This is an application by Mrs Nadine Minaoui for review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 17 August 1999.
The decision of the SSAT was to affirm a decision made by a Centrelink officer on 13 January 1999, to reject Mrs Minaoui's claim for disability support pension ("DSP").
Representation
At the hearing before this Tribunal Mrs Minaoui was self-represented. Ms Rhonda Bradley, Advocate, Centrelink, appeared for the respondent.
Interpreter
The proceedings were assisted by Ms Elizabeth Kostaber, who is an interpreter in the Arabic language.
Material
The Tribunal had before it documents ("the T documents") lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Other material, to which it shall be necessary to refer, was also received in evidence during the hearing.
Witnesses
The only witness to give evidence was Ms Ann Bailey, a disability officer employed by Centrelink since 1986.
Issue
The issue before the Tribunal for determination is whether Mrs Minaoui qualifies for DSP under section 94 of the Social Security Act 1991 ("the Act"), as at the date of her claim, being 8 December 1998, or within three months of the date of the claim, being by 8 March 1999.
Legal Framework
The relevant legislation in respect of this matter is to be found in section 94 of the Act, which provides 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)…
Meaning of continuing inability
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.
94(3) 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.
94(5) In this section:
"work" means work:
(a)that is for at least 30 hours per week at award wages or above; and
(b)that exists in Australia, even if not within the person's locally accessible labour market."
It is also necessary in this matter to have regard for the relevant Impairment Tables, which are set out in Schedule 1B of the Act.
Concession
The respondent concedes that Mrs Minaoui satisfies subsection 94(1)(a) of the Act as she has neck, shoulder and a left upper limb pain, and also mild associated depression. She therefore has a physical, intellectual or psychiatric impairment.
SSAT Assessment – Subsection 94(1)(b)
It is noted that the SSAT assessed Mrs Minaoui's impairment rating as 15 points, which is less than the 20 points required under subsection 94(1)(b).
Continuing Inability to Work – Subsection 94(1)(c)
As indicated, subsection 94(1)(c) requires that a person must have a continuing inability to work because of their impairment. Again as indicated, the meaning of "continuing inability to work" is contained in section 94(2) of the Act. Essentially, a person has a continuing inability to work if the impairment of itself is sufficient to prevent the person from undertaking educational or vocational training or on-the-job training within the next two years.
Medical Evidence
Mrs Minaoui's treating general medical practitioner is Dr Rowais who has provided two reports dated 8 December 1998 and 16 April 1999, respectively.
Dr Rowais diagnosed Mrs Minaoui with depression and anxiety, fibromyalgia being chronic pain syndrome with multiple soft tissue rheumatism and regional pain syndrome with left neck, shoulder and arm pain.
Mrs Minaoui first consulted her treating psychiatrist, Dr Kochar, on 29 March 1999, more than three months after lodging her claim for DSP.
Dr Kochar provided two reports, one dated 30 March 1999, the other dated 14 January 2000. In the first of his reports the doctor observed Mrs Minaoui to be excessively somatised and in need of some anti-anxiety and anti-depressant medication.
Dr Kochar prescribed Aurorix 150 milligrams twice per day and Deptran 50 milligrams at night.
In January 2000 Dr Kochar diagnosed chronic anxiety and depression and residual post traumatic stress disorder.
Dr Mary Christoforou (Health Service Australia) examined Mrs Minaoui on 6 January 1999. She assessed Mrs Minaoui as fit for full time work, but recommended that she avoid heavy manual tasks and repetitive movements of the upper limb.
Dr Christoforou assessed the depression and anxiety as permanent and rated it nil points under Table 6. The doctor assessed the regional pain syndrome as permanent under Table 20 and gave it a rating of 10 points. Overall, Dr Christoforou gave Mrs Minaoui a rating of 10 points.
Following receipt of Dr Kochar's report dated 30 March 1999, and Dr Rowais' report dated 16 April 1999, Dr Frei (Health Services Australia) reviewed Mrs Minaoui's claim based on further medical evidence.
Even though anti-depressant medication had been prescribed, Dr Frei did not alter the original assessment of Dr Christoforou.
Mrs Minaoui was examined by Dr Rose, a psychiatrist, on 28 March 2000. The doctor was reluctant to say that Mrs Minaoui is suffering from a depressive illness, although he agreed that she has some mild associated depression. Dr Rose was at a loss to understand why Dr Kochar would have brought up the possibility of post traumatic stress disorder. Dr Rose found no evidence that Mrs Minaoui had ever experienced the type of stress which was abnormal, frightening or shocking. Nor does she have nightmares or flashbacks. She has none of the symptoms normally associated with the diagnosis of post traumatic stress disorder.
Dr Rose stated that if Mrs Minaoui is suffering from a psychiatric condition then she is suffering from some mild dysthymic disorder which is secondary to pain.
Dr Rose considered that most of Mrs Minaoui's alleged disabilities are part of abnormal illness behaviour in association with a possible pain disorder.
Dr Rose considers that Mrs Minaoui is capable of working with her right upper limb and that if she were gainfully employed her depressive symptoms would abate. Dr Rose stated that there is no medical condition present which interferes with Mrs Minaoui's capacity for work. He considers that she is capable of doing light work with her right upper limb and that she is capable of doing some intermittent work with her left hand and her left upper limb.
On 12 April 2000 Dr Brenda Harris (Health Services Australia) reassessed the medical reports.
In view of Dr Rose's report Dr Harris advised that she would find it difficult to assign any impairment rating to Mrs Minaoui's claimed condition of anxiety and depression, despite Dr Kochar's reports. Dr Harris confirmed the impairment rating of 10 points in respect of regional pain syndrome, of which the depressive symptoms are an element, as a fair and reasonable score. Dr Harris confirmed that Mrs Minaoui's current fitness for work of a non-manual nature requiring little use of her left, non-dominant upper limb, remains unchanged.
As stated by Ms Bradley, Impairment Table 20 of Schedule 1B of the Act is used for miscellaneous conditions and provides rating for chronic pain. Double counting of a particular loss of function by the use of more than one Table must be avoided.
Dr Christoforou gave a total impairment rating of 10 points, which was confirmed by Dr Frei and Dr Harris.
The rating of 10 is for mild to moderate symptoms which are irritating or unpleasant, but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities, but minimal interference, performing or persisting with work related tasks. There is minimal effect or impact on work attendance.
As pointed out by Ms Bradley, both the authorised review officer and the SSAT assessed Mrs Minaoui's impairment level for regional pain syndrome as 15 points under Table 20.
The rating of 15 is for moderate to severe symptoms which are more distressing, but prevent few every day activities. Self care is unaffected and independence is retained. The 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. The rating of 20 points under Table 20 on the Impairment Tables is for more severe symptoms with a decreased ability for efficiency to carry out many every day activities. Most daily activities can be completed with some difficulty. The symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. The symptoms cause significant interference with the ability to perform or persist with work related tasks. Symptoms may cause prolonged absences from work.
Ms Bradley submitted that the medical evidence does not support a rating of 20 points under Table 20.
Table 6 of the Impairment Tables is used to assess psychiatric impairment and it was Ms Bradley's submission that on the available evidence Mrs Minaoui's anxiety depression has minimal interference with function in everyday situations, and therefore attracts a nil rating under Table 6.
Dr Christoforou, Dr Frei, Dr Harris and the authorised review officer, concur with this rating. The SSAT found that Mrs Minaoui suffered from chronic pain syndrome, and addressed the possibility of using Table 6, but considered that as the major feature of Mrs Minaoui's condition is somatization or pain, Table 20 was more appropriate. The SSAT noted that as there was only a single loss of function, only one Table can be used and that double counting of a particular loss of function by the use of more than one Table must be avoided.
The SSAT assessed Mrs Minaoui's impairment rating at 15 points under Table 20.
It was Ms Bradley's submission that the total impairment rating of Mrs Minaoui is less than 20.
Turning to the question of work capacity, reports were provided by two Centrelink disability officers, namely Ms Jenny Edwards and Ms Ann Bailey.
On 23 July 1999 Ms Edwards assessed Mrs Minaoui as being able to work full time in a range of positions. Ms Edwards reported that a range of positions are available in the local area and that they do not require heavy lifting, working above shoulder height or the repetitive use of the arm, and that some of the positions that are available would only require minimal on the job training. Ms Edwards identified positions such as light process work, light cleaning (which Mrs Minaoui copes with at home), kitchen assistant, sandwich hand, console operator or counter sales work, as being suitable.
Ms Bailey interviewed Mrs Minaoui on 16 February 2000 and assessed her using the work ability tool. Ms Bailey's recommendation is that Mrs Minaoui is capable of light work that would not require her to use her left arm on a continuing basis and suggested work as an information officer, customer inquiry officer, telemarketing, or telesurveying. Ms Bailey suggested that Mrs Minaoui would benefit from a literary course to improve her reading and writing skills, and also a basic computer course. These courses, she said, could be completed within the required two years time frame.
It was Ms Bradley's submission that Mrs Minaoui does not have a continuing inability to work under section 94(2) of the Act.
During her oral evidence Ms Bailey stated as follows:
"I would highly recommend that Mrs Minaoui would benefit from linking into an organisation such as Commonwealth Rehabilitation Service, so that they would be able to assist with looking at the type of work that she is going to do, a work site assessment once work is found that is suitable so that the work that you did would be safe, that it is not going to re-aggravate your injury. And going through something like a rehabilitation program through CRS it would enhance the opportunity of getting employment. But also make sure that it is safe for you, a work safe environment, not like you've had in the past where you were continuing to do work that wasn't safe for you to do which aggravated your injury."

Findings

From the whole of the material before me I find as follows:

That as conceded by the respondent, Mrs Minaoui has a physical, intellectual, or psychiatric impairment;
That Mrs Minaoui's impairment is not of 20 points or more under the Impairment Tables;
That Mrs Minaoui does not have a continuing inability to work.

Decision

In view of the findings set out above the decision of the Tribunal will be that the decision under review is affirmed.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr B.G. Gibbs, AM, Senior Member
Signed:.....................................................................................
  Personal Assistant
Date/s of Hearing  2/5/2000
Date of Decision  1/6/2000
Counsel for the Applicant        Self-represented
Counsel for the Respondent    Ms Rhonda Bradley
Solicitor for the Respondent    Centrelink Admin Law Section

[2000] AATA 428

1 June 2000

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Entitlement

Continuing Inability to Work

Impairment Tables

Medical Evidence