Naz and Secretary, Department of Employment and Workplace Relations

[2006] AATA 984

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 984

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1257

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MOIN-AKHTAR NAZ

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Senior Member M D Allen

Dr I Alexander, Member

Date21 November 2006

PlaceSydney

Decision The decision under review is set aside and the Tribunal substitutes its decision namely that the Applicant Moin-Akhtar Naz is entitled to a Disability Support Pension pursuant to section 94 of the Social Security Act 1991 as and from the 20^th day of August 2004. 

(Sgd) M.D. ALLEN
  ..............................................
  Presiding Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – Applicant suffers from a psychiatric disorder as well as chronic low back pain – whether the Applicant has a permanent orthopaedic impairment and thus a continuing inability to work or undertake training – Tribunal finds the Applicant does meet the criteria for DSP – decision under review set aside and Tribunal substitutes in lieu thereof its decision that the Applicant is entitled to a DSP as and from the 20^th day of August 2004.

Social Security Act 1991 – s 94, Schedule 2B

Social Security Administration Act 1999 – s 42, Schedule 2

REASONS FOR DECISION

November 2006   Senior Member M D Allen
  Dr I Alexander, Member       

1.      By application made on the 30^th day of September 2005 the Applicant sought review of the decision of a Social Security Appeals Tribunal that affirmed a prior decision refusing his application for the grant of a Disability Support Pension. 

2. The criteria for the grant of a Disability Support Pension are set out in section 94 of the Social Security Act 1991 which reads:

SECT 94
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) 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

(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

…

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(4) ….

94(5) In this section:

The 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.

3.      In addition to the abovementioned criteria, s 42 and Schedule 2 to the Social Security Administration Act 1999, provide inter alia, that the Tribunal can only consider a person’s entitlement to Disability Support Pension for the period of 13 weeks commencing on the date that the claim is made. In this matter, the so called “start date”, i.e. the day that claim was made, was 20 August 2004.

4.      The Impairment Tables referred to in paragraph 94(1)(b) SS Act above are found at Schedule 1B to the said Act.  In particular, paragraph 4 of Schedule 1B states that an impairment rating can only be assigned for a fully documented diagnosed condition which has been investigated, treated and stabilised.  Paragraph 5 of the schedule then provides that the condition must be permanent, i.e. that it will last for more than two years.  Paragraph 5 further provides “a condition may be considered as fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years.”

5.      At the time of his application for Disability Support Pension the Applicant suffered from two conditions which potentially could have given an impairment rating of 20 points, namely a psychiatric disorder and chronic low back pain resulting from a L4/5 disc protrusion.

6.      At the time of his application the Applicant also suffered from intermittent reflux oesophagitis but no impairment rating was given for this condition.  Subsequent to his application the Applicant has been diagnosed with diabetes mellitus which is under control, and he has had a triple bypass operation.  As diagnosis and treatment occurred post August 2004 the latter conditions cannot be taken into account in these proceedings in assessing the level of impairment. 

7.      As we understand the Respondent’s case it is that whereas he concedes that the Applicant has a psychiatric illness, namely a Dysthymic Disorder, and that the level of impairment under Table 6 to Schedule 1B is 10 points, no impairment rating can be allocated to the Applicant’s back condition as it is not fully treated.

8.      So far as the Applicant’s psychiatric illness is concerned, Dr Prior, Psychiatrist, who examined the Applicant on behalf of the Respondent, stated that he suffered a Dysthymic Disorder, that he had been appropriately treated over the last five years, and that the degree of impairment was 10 points on Table 6.

9.      In his Statement of Facts and Contentions the Respondent accepted that the Applicant had a Dysthymic Disorder which had been fully diagnosed, treated and stabilised, and that it was permanent, attracting a rating of 10 impairment points.

10.     Dr Qidwai, who is apparently the Applicant’s treating general practitioner, but who we note is a fellow of the Royal College of Surgeons in a report to the Applicant’s then solicitors dated 9 July 2004, stated that the Applicant suffered from:

(i)lumbar disc injuries affecting L4/5 and L5/S1 disc with displacement of the dural sac;

(ii)soft tissue injury to the lumbosacral spinal muscles; and

(iii)depression secondary to his pain.

11.     In a report dated 16 January 2006 to the Applicant’s current solicitors, Dr Mark Burns, Occupational Physician, stated:

“The CT scan of the lumbar spine was carried out on the 13th April 2000 and revealed an annular disc bulge at L4/5.  It was reported as showing no canal or foraminal stenosis.

The MRI scan of the lumbar spine was carried out on the 11^th January 2001 and revealed congenital narrowing of the spinal canal due to short pedicles.  Superimposed lumbar spondylitic disease was also present.  At L4/5 there was a left sided disc protrusion with bilateral foraminal stenosis.    Also at L4/5 and L5/S1 there was bilateral facet joint degeneration.”

examination

Dr Burns added:

“Examination of the lumbar spine revealed midline tenderness from L4 to S1.  A degree of muscle guarding was present.  His back movements were decreased by 50%.  Straight leg raising was 70% bilaterally with a negative sciatic stretch test.  Power, tone, sensation and reflexes were normal in both lower limbs.  He was able to stand on his toes without difficulty, but when standing on heels reported back pain.”

and assessed the degree of incapacity at 10 points.

12.     Dr Burns was cross-examined regarding the Applicant refraining from activities because of fear of pain.  He conceded that on some occasions the Applicant would restrict his activity due to pain but added that if a person stops (a movement) because of pain, then that is their range of movement.

13.     More importantly, Dr Burns did not agree with the Respondent’s witness Dr Matalani, that sitting on a couch with legs directly in front and raising the back to 90 degrees, was a measure of range of movement in the lumbar spine.  In his opinion, this movement was a combination of movement in the hips and back.  The measurement of range of movement in the lumbar spine is done with the patient standing and bending forward.

14.     Dr Matalani, who examined the Applicant on behalf of the Respondent, opined that to ask the patient whilst lying on the examination couch to sit up at 90 degrees with the legs straight out in front was a valid test for the range of movement in the lumbar spine.  Having performed this test on the Applicant, he opined that the Applicant was voluntarily restricting his movement because of fear of pain, although conducting a test of range of movement with the Applicant standing, Dr Matalini recorded a loss of range of movement of 25 per cent, that is to say, an impairment of 10 points on Table 5.2 of Schedule 1B.

15.     Dr Matalani’s opinion was that the Applicant should undertake a course of cognitive behavioural therapy in order to overcome a fear of pain and thus increase the range of movement in his lumbar spine.  Until this course of cognitive behavioural therapy had been undertaken, it could not be said that the Applicant’s back condition had been fully treated.

16.     Dr Prior in evidence stated that the Applicant’s Dysthymic Disorder would not prevent him undertaking cognitive behavioural therapy, and that his Dysthymic Disorder would resolve if his pain resolved.

17.     Dr Matalani’s opinion that the Applicant was not exhibiting a normal range of movement because of a fear of pain depends for its validity upon the acceptance of his conclusions drawn from the Applicant’s ability to sit on the examination couch with his trunk flexed to 90 degrees.

18.     Dr Burns denied the validity of this test.  Likewise, although Dr Matalani referred to the American Medical Association Guide to the Evaluation of Permanent Impairment, we note that the fifth edition of that publication allows for only the standing test to assess range of movement in the lumbar spine.  No mention is made at all, of the test referred to by Dr Matalani.

19.     We therefore prefer the opinion of Dr Burns, that the Applicant does have a 25 per cent loss of range of movement and that this loss is permanent.  We are strengthened in this view by the fact that the Applicant has attended a pain clinic at the Prince of Wales Hospital.  At that clinic, the Applicant would have been assessed by psychologists, amongst other health professionals, and if cognitive behavioural therapy were to be considered as a treatment having advantage to this Applicant, its assessment must take place against the fact of his prior attendance at a pain clinic.

20.     Even if Dr Matalani were correct in his opinion that the Applicant has a greater range of movement than in fact he was able to demonstrate on examination, his opinion that the Applicant would be able to extend his range of movement following cognitive behavioural therapy is speculative given the prior attendance at the pain clinic and the Applicant’s history.  There is no evidence that improvement would be evidenced in the next two years.  Dr Matalani saw the Applicant once for medico-legal purposes, whereas the opinion of his treating medical practitioner, Dr Qidwai (who is a fellow of the Royal College of Surgeons), is that the Applicant has been treated on conservative lines with no improvement, that surgical intervention will not benefit the Applicant, and that he will suffer pain, stiffness and depression for the rest of his life.

21.     Dr Prior was of the opinion that the Applicant’s Dysthymic Disorder would not prevent his undertaking educational or vocational training.  Dr Matalani also opined that the Applicant’s back injury would not prevent vocational or other training.  Dr Burns however, was of the opinion that the Applicant was not a suitable candidate for retraining or rehabilitation due to his significant depression.  He also pointed out that Dr Prior had stated that his psychological state has been fully stabilised over the last two years.  If so, it is unlikely the Applicant will improve in the foreseeable future. 

22.     Neither Dr Matalani nor Dr Prior seems to have given any real thought as to what educational or vocational training the Applicant could in fact undertake.  Although Dr Matalani in his report suggests a range of activities the Applicant supposedly could undertake, when cross-examined he appeared very vague regarding the actual requirements and physical limitations of the types of work he nominated. 

23.     To our mind, unless Drs Prior and Matalani could nominate with some specificity, just what could be expected of the Applicant in undertaking any educational or vocational course or training, their opinions in this regard are unhelpful.  To our mind, neither Dr Prior nor Dr Matalani has furnished the Tribunal with criteria enabling evaluation of the validity of their opinions as to the Applicant’s ability to undertake educational or vocational training.  To our mind, and we so find, the opinions of Dr Burns are more considered and in line with reality, and we prefer his opinions to that of the Respondent’s experts. 

24. We find that the Applicant has entrenched psychiatric and orthopaedic impairments and that he will be unable to return to any employment or undergo any educational or vocational training in the foreseeable future and most certainly within the next two years. This being so, he satisfies the criteria of s 94 SS Act and the decision under review is set aside and the Tribunal substitutes its own decision, namely, that the Applicant is entitled to a Disability Support Pension as and from 20 August 2004.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Administrative Appeals Tribunal

Signed:                    .....................................................................................

Associate

Date/s of Hearing  6 & 7 November 2006
Date of Decision  21 November 2006
Counsel for the Applicant         Mr N Dawson
Solicitor for the Applicant          NSW Legal Aid Commission
Counsel for the Respondent     Mr G Johnson
Solicitor for the Respondent     Australian Government Solicitor