Neale McInnes and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs.
[2010] AATA 547
•22 July 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 547
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3810
GENERAL ADMINISTRATIVE DIVISION ) Re Neale McInnes Applicant
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs.
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date22 July 2010
PlaceSydney
Decision The decision under review be affirmed.
.................[Sgd].....................
Dr J D Campbell
Member
CATCHWORDS
Social Security – Disability Support Pension – Granted May 2006 – Reviewed and cancelled May 2009 – Condition considered was Complex Regional Pain Syndrome Type 2 – Presence of Psychological symptoms noted but not investigated, diagnosed or fully treated – Decision under review affirmed.
LEGISLATION
Social Security Act 1991, section 94, Schedule 1B
REASONS FOR DECISION
22 July 2010 Dr J D Campbell, Member 1. Mr McInnes was born in March 1958. One of nine children, Mr McInnes left school in March 1972, having commenced Year 8.
2. Mr McInnes found employment as a welder’s assistant in 1973, and over the next eight to nine years continued intermittent employment with the same company, with his role expanded to include truck deliveries. In 1981/1982 Mr McInnes moved to Queensland and was employed driving trucks for the next 18 years. Between 2000 and 2003 Mr McInnes was employed as a builder’s labourer.
3. In December 2003, Mr McInnes, while returning home from work on a motor bike, suffered a crush injury to his left foot with a resulting fracture to the tarsal navicular bone. Mr McInnes’s treatment included non-weight bearing on crutches for a period of six months. On 23 February 2004, X-rays of the left foot revealed the fracture was faintly visible and undisplaced.
4. On 25 May 2006, Mr McInnes lodged a claim for disability support pension (DSP). In this claim Mr McInnes listed his disabilities as chronic regional pain syndrome and non-union of a right clavicle fracture. He also stated that past childhood experiences affect his everyday life, and that psychological issues are a factor in his lack of participation in rehabilitation or training programmes.
5. In a Treating Doctor’s Report dated 22 May 2006, Dr Dixon detailed that Mr McInnes had developed chronic regional pain syndrome in his left foot arising from his motor bike accident in 2003, and which prevents him from wearing a shoe. Dr Dixon reported that the condition of chronic discomfort was managed by way of medication with analgesics. Dr Dixon also detailed that Mr McInnes had been assessed by psychiatrists concerning emotional problems, and that he was somewhat overly occupied by thoughts of getting compensation for a “ruined life”.
6. In a medical report dated 8 June 2006, Dr Adler, a consultant in pain management, concluded that Mr McInnes suffered from Complex Regional Pain Syndrome Type 2, and that he had an inability to wear a boot and be employed in the construction industry.
7. A work assessment report was completed by Ms Lata on 13 July 2005. This report detailed a condition of chronic non-union of the right clavicle since 1989, for which Mr McInnes was awaiting surgical intervention, a fracture of the left foot with further surgical intervention to occur and emotional problems with further psychological intervention pending.
8. A later work assessment report had been completed on 19 June 2006 in which Ms Zaki, a psychologist and rehabilitation counsellor, detailed a history of abuse at school, an inability for Mr McInnes to use his right shoulder without pain since 1989 and an injury to the left foot in December 2003. Ms Zaki detailed that his psychological condition was affecting him mentally and emotionally and was a barrier to economic and social participation. Ms Zaki assessed the chronic regional pain syndrome at 20 points under Table 20 of the Schedule 1B Impairment Tables contained in the Social Security Act 1991 (the Act), with nil points awarded under Table 3 for the non-union of the right clavicle fracture.
9. On 23 June 2006 Mr McInnes was granted DSP.
10. As part of the review process Mr McInnes provided a further Treating Doctor’s Report on 27 January 2009. In this report, Dr Dixon detailed the condition that affected Mr McInnes’ ability to function as Complex Regional Pain Syndrome Type 2, which limited Mr McInnes’ ability to stand for long periods, limited his ability to walk and prevented him from wearing shoes. Dr Dixon also detailed that Mr McInnes suffered from an anxiety state, which had minimal affect on his ability to function.
11. A Job Capacity Assessment Report was undertaken on 19 March 2009 by Ms Da Costa, a rehabilitation counsellor. Ms Da Costa assessed the chronic pain syndrome at 10 points under Table 20. Ms Da Costa also made mention of continuing focus by Mr McInnes on legal action over issues he believed occurred while at school.
12. Mr McInnes’ DSP was cancelled effective 12 May 2009. The decision was reconsidered and affirmed by a Centrelink Customer Service Advisor on 21 May 2009. The decision was further reviewed and affirmed by an Authorised Review Officer on 3 June 2009.
13. On 28 July 2009 the decision was reviewed and affirmed by the Social Security Appeals Tribunal (SSAT). In so doing, the SSAT made note of Mr McInnes’s reported feelings of anxiety and depression, but concluded that there was insufficient supporting medical evidence to determine whether the conditions were fully diagnosed, treated and stabilised.
Additional Material
14. A CT scan of the left foot dated 29 December 2003 demonstrates an undisplaced longitudinal fracture through the navicular, extending from the anterior to the posterior region.
15. An ultrasound examination of the right shoulder on 11 May 2004 demonstrated findings suggestive of degenerative changes within the acromioclavicular joint.
16. A bone scan study of the right wrist and right shoulder on 13 October 2004 demonstrated no significant bone pathology in the right wrist, and arthritic changes in the right acromioclavicular joint.
17. An MRI examination of the right wrist dated 29 October 2004 demonstrated some small intraosseous cysts, while a CT examination of the right clavicle on the same date is reported to demonstrate a deformed right clavicle from a previous fracture, a normal shoulder joint and minimal arthritic degenerative change in the right acromioclavicular joint.
18. Review of the clinical notes from the Maroochydore Medical Centre confirms Mr McInnes’s history of symptom complaints in the right wrist, right clavicle and left foot since May 2002.
19. A medical report from Dr Bye, a consultant orthopaedic surgeon dated 24 December 2009, notes that Mr McInnes attended upon Dr Lawrie, a consultant orthopaedic surgeon, on 11 October 2004 complaining of a “painful clunk” in the right shoulder arising from a fractured clavicle some ten years earlier and right wrist pain. Dr Lawrie is reported as finding a full range of movements in the right shoulder and right wrist, and that a CT scan of the right clavicle revealed the fracture to be united. Dr Lawrie commented in the end that he was unable to determine any problem with the left foot, right wrist or right shoulder. Similarly, Dr Scott Newman, a consultant orthopaedic surgeon, could not find any evidence of structural injury or osteoarthrosis in the left foot on plain X-ray or CT scan examination. Dr Newman is reported as stating the problem appeared to be that of chronic regional pain syndrome.
20. Dr Bye assessed Mr McInnes on 23 December 2009 and noted healed fractures of both left and right clavicles, with no pain or tenderness at the fracture site. Dr Bye found a full range of shoulder movement in both shoulders, with no pain or tenderness over the right acromioclavicular joint and no evidence of nerve compromise in the upper limbs. Dr Bye found no evidence of local tenderness or instability in the right wrist, a normal range of movement in the right wrist and no measurable arm or forearm wasting.
21. In assessing the various impairments arising from the conditions complained of by Mr McInnes, Dr Bye concluded that:
· Right shoulder and arm
- nil points pursuant to Table 3
· Left foot
- nil points pursuant to Table 4
· Chronic Pain Syndrome
- 10 points pursuant to Table 20
· Anxiety and psychiatric issues
- declined to assess
22. Dr Bye considered that Mr McInnes’ self care is unaffected, his independence is retained, and that Mr McInnes is fit for sedentary work duties.
23. A report from Ms Tamer, a clinical psychologist, dated 20 January 2010, noted that Mr McInnes was suffering from severe depression and moderate anxiety and stress. Ms Tamer concluded that Mr McInnes was suffering from post traumatic stress disorder due to abuse experienced at school, and is expressing substantial difficulty in his occupational and social functioning.
24. In a medical report dated 21 June 2010, Dr Quan Vo details Mr McInnes’ symptoms as disturbed sleep including restlessness, waking up in cold sweats, flash backs of events from childhood abuse, rapid breathing, sweating and increased heart rate, poor appetite, tiredness, low mood, low motivation and agitation, together with occasions of suicidal ideation. He is socially withdrawn, lives by himself and has difficulty in interacting with other people. Dr Vo also noted that Mr McInnes has been treated with antidepressants since 2004.
25. In oral evidence before the Tribunal, Mr McInnes confirmed that he was still having difficulties with his left foot (tightness in foot particularly at night), which caused him some difficulty with walking and prolonged standing. He also confirmed that he was taking panadol-osteo and propranolol for this condition. Mr McInnes also detailed his problems with both clavicles and particularly the clunk in the right clavicle.
26. Mr McInnes confirmed that he was living in a room in a warehouse, drank little alcohol, drove and owned a car, was able to undertake self care and cater for his own needs, and that he had limited social or interpersonal interaction.
27. Mr McInnes detailed his school experiences related to different teachers when aged eight and 13. He stated that he was harassed and abused and picked upon because of his red hair and freckles. He denied being unruly in class, with his response to his situation being to truant school. Mr McInnes stated that his departure from school was associated with a six month period in a correctional facility at Windsor. Mr McInnes acknowledged that he had thoughts of self harm from time to time, and that his main preoccupation was related to seeking legal redress for the treatment he received while at school. Mr McInnes admits to feelings of isolation and difficulties with interpersonal relationships. He expresses feelings of loss in relation to an absence of friends, particularly an inability to relate to women, and an absence of family and home. Mr McInnes stated that he has seen some psychiatrists in relation to his redress, and is currently treated with ketoprofen and serten. Mr McInnes also acknowledged that he had not been expansive in his psychological difficulties in the past, as he did not appreciate the significance of such in relation to his work situation.
Consideration and Findings
28. I have been particular in detailing the sequence of events leading to the cancellation of Mr McInnes’ DSP. It is evident that particular focus and importance has been placed on physical symptomatology, with much evidence furnished to detail the nature and source of problems in the left foot, right wrist and right shoulder. Symptomatology arising from a psychological condition or impairment has been evident from the time he first made his claim for DSP in 2006. Exploration and investigation of his psychological symptoms has not, for a variety of reasons, been pursued. Such reasons include, I suspect, the emphasis placed by Mr McInnes on such symptoms both at the time of the application and particularly at time of cancellation; the focus given to the chronic pain syndrome as the mechanism leading to the grant of DSP by all parties; the absence of significant detail of psychological symptoms in the Treating Doctor’s Report and, in particular, the impression gained from Dr Dixon’s comment that Mr McInnes’s anxiety state had a minimal effect on his ability to function.
29. Irrespective of the reason that this was not explored, I am left with an uninvestigated psychological condition that is bereft of any meaningful clinical documentation or communication as to its nature or treatment at the time Mr McInnes’ DSP was cancelled. While I cannot exclude that there has been a deterioration of his psychological condition over time, I do conclude that the condition was present at the time of cancellation. In the absence of either a meaningful clinical analysis and/or detailed clinical documentation at the time of cancellation, I can take the matter no further in terms of assessment, as the condition has not been fully documented, diagnosed, treated and stabilised.
30. In addressing the remaining conditions, I conclude that Mr McInnes has the following conditions, with impairments assessed pursuant to the following nominated Tables. In so doing, I rely upon the statements made by Mr McInnes and the clinical material detailed earlier in this decision, as well as the report of Dr Bye:
(a)Pain and clunking in right shoulder arising from a previously fractured right clavicle which has healed:
·Some degenerative change in right acromioclavicular joint, but full range of movement of right shoulder, no nerve deficit and no loss of power.
·Able to manage self care and drive a car.
·Assessment is nil points pursuant to Impairment Table 3.
(b)Pain in right wrist:
·No evidence of loss of power or impairment of sensation.
·Full range of movement.
·No loss of strength.
·Able to use dominant limb effectively.
·Assessment is nil points pursuant to Impairment Table 3.
(c)Left foot pain and discomfort:
· No current radiological evidence of ununited facture.
· Discomfort occurs when he is weight bearing and at night.
· Normal gait pattern.
· No evidence of muscle wasting or nerve entrapment.
· Heel walking and eversion movements normal.
· Assessment under Table 4 is not appropriate for the impairment nominated, namely pain and discomfort in particular circumstances. Appropriate Table is Table 20. The rating under Table 20 is assessed at 10 points, as the symptoms complained of are mild to moderate which are irritating and or unpleasant, but rarely prevent completion of any activity. Symptoms cause loss of efficiency in daily activities but minimal interference performing or persisting with everyday tasks.
31. In summary, the total impairment points allocated is 10. In the circumstances, while Mr McInnes satisfied section 94(1)(a) of the Social Security Act 1991 at the time of cancellation of his DSP, he failed to satisfy section 94(1)(b), in that the total assessment was less than 20 points. In such circumstances, it is not necessary to consider the issue of continuing inability to work (section 94(1)(c) of the Act). With such findings, I conclude that the decision under review is affirmed.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member.
Signed: .....................................................................................
Associate: B. DhanasarDate of Hearing 30 June 2010
Date of Decision 22 July 2010
Representative for the Applicant Neale McInnes (Self)
Representative for the Respondent Ante Rado (Centrelink Advocacy)
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