Minaoui and Secretary Department of Education Employment and Workplace Relations

[2008] AATA 409

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 409

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2007/1413

GENERAL ADMINISTRATIVE DIVISION		)
Re		MAHMOUD MINAOUI

Applicant

And SECRETARY DEPARTMENT OF EDUCATION EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Senior Member M D Allen

Dr S H Toh, Member 

Date20 May 2008

PlaceSydney

Decision The decision under review is affirmed.

.................[sgd]......................

M D Allen
  Presiding Member

CATCHWORDS     

DISABILITY SUPPORT PENSION – review of decision by social security appeals tribunal affirming prior determination by respondent cancelling applicant’s disability support pension –  qualify for disability support pension if have physical, intellectual or psychiatric impairment rating amounting to 20 points or more under impairment tables and have continuing inability to work within the next two years – impairment measured with regard to ‘current loss of functioning’ – decision under review affirmed

LEGISLATION

Social Security Act 1991 sections 94(1), 94(1)(b), 94(2) and Schedule 1B

CASE LAW

Re Comcare v Mooi (1996) 42 ALD 495

REASONS FOR DECISION

20 May 2008  

Senior Member M D Allen

Dr S H Toh, Member

1.      By application made the 19th day of April 2007, the Applicant sought review of a decision by a Social Security Appeals Tribunal that, on 28 March 2007, affirmed a prior determination by the Respondent to cancel payment of his Disability Support Pension. 

2. The criteria for the grant of payment of DSP are set forth in section 94 of the Social Security Act 1991 namely:

(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;

…

(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 two years;

(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 two years;

(ii)If the impairment does not prevent the person from undertaking educational or vocational or on-the-job training – such training is unlikely (because of the impairment) to enable the person to do any work within the next two years.

…

3.      On 7 September 2006, the decision was made by a delegate of the Respondent to cancel the Applicant’s DSP on the basis that his impairment rating, under the Impairment Tables, did not amount to 20 points.

4.      In these proceedings, the Respondent maintained that the Applicant’s impairment did not exceed 10 points and that, in any event, he did not have a continuing inability to work as he could, during the next two years, undertake rehabilitation sufficient to enable him to undertake work for 30 hours a week.

5.      The Applicant’s history regarding the grant of DSP is a chequered one.  He was originally injured in a motor vehicle accident in 1982.  In 1982 he underwent a fusion of the cervical spine at the level of C4/5 and 6.

6.      Subsequent to the spinal fusion, the Applicant was granted an invalid pension on 8 November 1990.  In her report of 20 June 2007, Dr Harvey-Sutton refers to a report by a Dr Haw, hand and orthopaedic surgeon, dated 29 October 1985, which stated that the Applicant had a permanent cervical disability, the percentage of that disability being 30 per cent. 

7.      The report of Dr Harvey-Sutton does not say how Dr Haw calculated the disability of 30 per cent, but we infer that he used the American Medical Association Guide to the Evaluation of Permanent Impairment, as guides to calculating impairment, for social security purposes, were only introduced in the SSA.

8.      On 25 February 1993, the Applicant’s invalid pension (now termed Disability Support Pension) was cancelled, on the basis that he did not have the required 20 points impairment rating. 

9.      The Applicant then lodged a further claim for DSP on 25 October 1995 which was rejected.  An appeal to the SSAT was unsuccessful but, on the 30 October 1996, a Consent Decision was made by the Administrative Appeals Tribunal granting DSP from the date of the claim.

10.     On 4 September 2006, the Applicant was assessed by a Job Capacity Assessor, who assessed the Applicant as having an impairment of 5 points under Table 5.1 in relation to his cervical spine, and 5 points under Table 5.2 in relation to his thoraco-lumber-sacral spine.

11.     As a result of the abovementioned report, the Applicant’s DSP was cancelled on 7 September 2006, on the grounds that his impairment rating was less than 20 points.

12. Prior to the Respondent, on 30 October 1996, conceding that the Applicant was entitled to DSP, a report had been obtained by the Applicant from Dr Lewis-Enright dated 8 October 1996. In that report, Dr Lewis-Enright opined that, as to his cervical spine, the Applicant had a reduction in range of movement of “about 50 per cent” and a reduction in range of movement for the thoraco-lumber spine “of between 25 and 50 per cent”. Dr Lewis-Enright, therefore, gave an impairment rating of 10 under Table 5.1 and 15 under Table 5.2, as they then existed. We note revised impairment tables were inserted into Schedule 1B of the SSA with effect from 1 April 1998.

13.     For the purpose of these proceedings, the Applicant was examined by Dr Matalani, an occupational physician, and Dr Harvey-Sutton, who is also an occupational physician. 

14.     After examination of the Applicant, and having obtained his history and viewing imaging, including an MRI scan dated 27 February 2006, Dr Matalani was of the opinion that the Applicant had a restriction of approximately one-quarter of the normal range of movement of the cervical spine, and thus had an impairment rating of 5 points as per Table 5.1 of the Impairment Tables.  As to his back, because of restricted extension and pain, an impairment rating of 10 points was allocated.

15.     In his report, Dr Matalani stated that the Applicant did not evidence a major depressive disorder, and that there was no evidence of perceptual disturbance.  Questioned in evidence, he stated that his training enabled him to make a diagnosis of depression if it existed.

16.     As to the Applicant’s gastric ulcer, Dr Matalani stated “there is no assessable impairment in relation to gastric ulcer.  He has recently undergone endoscopy and commenced treatment with a proton pump inhibitor only approximately three weeks ago.  The results of endoscopy are not available and it is not possible to assign an impairment rating in respect of his gastric ulcer.”  Dr Harvey-Sutton did not allocate any impairment rating in relation to the Applicant’s gastric ulcer.

17.     Examined regarding the Applicant’s use of Endep (an anti-depressant), Dr Matalani was of the opinion that it was prescribed for pain, stating that it is quite common to prescribe Endep for painful conditions. 

18.     Dr Harvey-Sutton was of the opinion that the Applicant’s mood or affect was consistent with his situation, namely in chronic pain and unable to work.  She did state that he was not, in her opinion, clinically depressed.  In referring to an inability to work, it seems that Dr Harvey-Sutton was unaware that the Applicant does do some part-time work driving a mini-bus transporting disabled children. 

19. Paragraph 3 in the introduction to the Impairment Tables, contained in Schedule 1B to the SSA (as amended) states, inter alia, that the impairment is measured with regard to “current loss of functioning”. That a condition may become worse in the future is, thus, irrelevant in assessing a current incapacity.

20.     Dr Matalani’s findings as to loss of range of movement were different to the findings of Dr Harvey-Sutton.  Nevertheless, Dr Matalani’s opinion as to the range of movement exhibited by the Applicant, when he examined him, was not disputed in the sense that it was never put to him, nor did the Applicant’s witness, Dr Harvey-Sutton, suggest that Dr Matalani’s findings as to range of movement were wrong.  The evidence goes no higher than that the Applicant has a minimum loss of range of movement and that, at times, he will, for various reasons, exhibit a greater degree of loss of range of movement. 

21.     Dr Harvey-Sutton did agree with Dr Matalani that the Applicant relies on the degree of self-limitation in order to avoid pain, and it is not uncommon to find inconsistency in the observed range of movement of the neck or back, according to how far the examinee is willing to move the spine in different directions, until pain stops him or her from going further.  Dr Harvey-Sutton stated in cross-examination that the Applicant’s range of movement from day-to-day may not be the same.

22.     The lower figure for loss of range of movement must represent the Applicant’s actual loss.  That, at other times, he will exhibit a greater loss of range of movement, simply shows that his degree of loss of range of movement is not permanent, but fluctuates.  In these circumstances, his actual degree of loss of range of movement must be the lower figure, as they are the base-line below which he cannot go.

23. As we are satisfied that the impairment rating calculated by Dr Matalani correctly reflects the Applicant’s real degree of impairment, as opposed to intermittent transient exacerbations, we are satisfied that the degree of impairment suffered by the Applicant is 15, being calculated under Table 5.1 and Table 5.2 of Schedule 1B.

24.     We are further satisfied that the Applicant’s gastric ulcer was, at the relevant time, incapable of being assessed for the reasons given by Dr Matalani, and that clinically (that is to say on the basis of a diagnosable illness) the Applicant does not suffer from depression.  As Drummond J pointed out in Re Mooi v Comcare (1996) 42 ALD 495 at 499, there is a distinction between clinically significant, that is, abnormal behaviour in the circumstances of a particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons, unaffected by mental disease or illness, could be expected to exhibit in those same circumstances.

25.     As the Applicant’s degree of impairment does not reach 20 points then, pursuant to paragraph 94(1)(b) of the SSA, he does not qualify for the grant of the DSP and the decision under review is affirmed. 

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr S H Toh

Signed:      [sgd]         [sgd]   sgd           .....................................................................................
  Mwela Kapapa, Associate

Date/s of Hearing   3 March 2008 and 21 April 2008
Date of Decision   20 May 2008
Counsel for the Applicant           Ms M Tibbey
Solicitor for the Applicant            Legal Aid Commission
Counsel for the Respondent       Ms L Walker
Solicitor for the Respondent       Sparke Helmore Lawyers