Pais and Secretary, Department of Family and Community Services
[2005] AATA 693
•22 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 693
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/376
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN PAIS Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr I R Way, Member Date22 July 2005
PlaceSydney
Decision The decision under review is affirmed.
..............................................
Mr I R Way
Member
CATCHWORDS
SOCIAL SECURITY - Disability Support Pension – left leg pain - right thumb dislocation and related right lower arm wrist and thumb pain – impairments less than twenty points under the Impairment Tables – any psychiatric impairment could not be regarded as diagnosed, treated and stabilised nor permanent – left rib fracture and related pain not permanent - decision affirmed
Social Security Act 1991 ss. 94, 23 and Schedule 1B
Social Security (Administration) Act 1999 Schedule 2, Part 2REASONS FOR DECISION
22 July 2005 Mr I R Way, Member 1. This is an application by Mr John Pais for review of a decision made by the Social Security Appeals Tribunal (“SSAT”) on 14 March 2005, that affirmed the decision of an Authorised Review Officer of Centrelink to reject Mr Pais’ claim for the disability support pension (“DSP”).
2. At the hearing, the Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T33) and other documentary evidence as follows:
·Report of Dr J Perica, consultant psychiatrist, dated 11 April 2005 – Exhibit A1
·The Respondent’s Statement of Facts and Contentions dated 8 June 2005 – Exhibit R1.
3. The Applicant was self-represented and gave evidence by telephone. The Respondent was represented by Mr G Richardson, business coordinator of the Service Recovery Team of Centrelink.
background facts
4. There is no disagreement between the parties about the background facts in this matter and in view of this, and on the material before it, the Tribunal finds as follows:
a)Mr Pais lodged a claim for DSP on 1 July 2004.
b)Mr Pais provided a treating doctor’s report dated 4 June 2004 from Dr Wong, general practitioner, that said:
· Mr Pais had a broken wrist in 2000 and since then had suffered pain and dysfunction; and
· Mr Pais had no other medical conditions.
c)Mr Pais provided a treating doctor’s report dated 9 June 2004 from Dr E Ebrahim, general practitioner, that said:
·Mr Pais had left chest pain with a history of fractured rib on the left;
·the date of onset was 27 January 2004; and
·Mr Pais said that the condition affected his work.
d)On or about 21 July 2004 a Health Services Australia (“HSA”) Health Assessor examined Mr Pais and reported that:
Ÿ Mr Pais had left chest pain following fracture of ribs on the left side of chest that caused pain;
Ÿ Mr Pais took Panadol daily and used Feldene Gel and an elasticised brace daily;
Ÿ Mr Pais had a right wrist fracture that caused constant pain and he took Panadol daily and used Feldene Gel and a wrist guard;
Ÿ Mr Pais had had five or six sessions of physiotherapy in January 2004;
Ÿ No swelling or deformity was observed and Mr Pais could hold a pen without great discomfort; and
Ÿ There was no or mild difficulty with right hand digital dexterity; there was no or mild loss of right hand grip strength; and there was no or mild loss of right arm movement.
e) On 21 July 2004, Dr Arad, a HSA medical adviser conducted a file assessment. Dr Arad reported that:
· Mr Pais presented with right wrist fracture and the functional impact of the condition was unlikely to change within the next two years and was regarded as permanent;
· The impairment rating for the condition was 0 (Table 3);
· Mr Pais presented with left chest pain and broken ribs, the functional impact of which may change within two years and therefore is to be regarded as temporary;
· Mr Pais was unfit for full-time work for three months; however, during this period the impact of the medical conditions on the ability to function may change and review in three months is recommended.
f) On 2 August 2004 a Centrelink delegate rejected Mr Pais’ claim for DSP on the ground that his impairment was less than 20 points. He was notified of the rejection by letter dated 2 August 2004.
g) On 6 August 2004 Mr Pais provided a treating doctor’s report dated 4 August 2004, by Dr R Ghaly, general practitioner, which said:
· Mr Pais had fractured ribs on the left hand side;
· Mr Pais had post traumatic stress syndrome;
· Mr Pais was assaulted on “28/07/04”; and
· He experienced pain in his left leg.
h) On 31 August 2004 Mr Pais provided a report by Dr Wong, dated 20 August 2004, that stated:
· He believed further consideration should be given to Mr Pais’ case;
· He did not believe Mr Pais was able to perform his original occupation to full capacity;
· There would be reasonable doubt about Mr Pais returning to his original job in a partial capacity
· Mr Pais had degenerative arthritis and pain in the previously fractured right wrist;
· Mr Pais may have further generalised degenerative joint disease but this was currently under investigation;
· Further x-rays and blood tests would soon be available and it would be prudent for him to be assessed by a rheumatologist prior to any final decisions being made.
i) On 13 September 2004, Mr Pais provided a report, dated 7 September 2004, by Dr R White, consultant rheumatologist. Dr White reported that Mr Pais had been referred to him with a number of musculoskeletal complaints arising in the past four years from episodes of trauma. He observed that Mr Pais’ symptomatology appeared disproportionate to the clinical findings and said he suspected that psychosocial factors had had a contributing amplifying effect, resulting in an augmented pain response. He also suggested appropriate treatment.
k)On 21 September 2004 a HSA health assessor (registered nurse) conducted another assessment. The assessor reported that there was no evidence of PTSD. (The Tribunal notes that the Applicant says the nurse did not fully understand his circumstances.)
l)On 24 September 2004 Mr Pais supplied a further report from Dr Wong that said there may be a significant component of PTSD requiring psychiatric evaluation and that may render the patient disabled/invalid.
m) On 6 October 2004, Dr Arad of HSA conducted a further file assessment. He reported on the following conditions:
· Right thumb pain of recent origin. Condition not stable and may change within next two years. Regarded as temporary;
· Left leg pain. Interference with walking not significant and able to walk 500 to 1000 metres. Difficulty with squatting and kneeling. Functional impact unlikely to change during next two years. Regarded as permanent. Impairment rating 0 (Table 4);
· Post traumatic stress disorder. Functions with some difficulty due to moderate regular symptoms. Assaulted two months ago. Condition of recent onset. Not treated and no medication. Has not seen a psychologist or psychiatrist. Functional impact may vary during next two years and therefore regarded as temporary;
· Fractured left ribs. Mild symptoms without significant effect on ability to work. Treated with Mobic. Condition expected to improve further. Functional impact may change within next two years and therefore regarded as temporary; and
· Fitness for work. Mr Pais suffers from genuine health problems. Unfit for full-time work for a period of six months. Review in half a year.
n) On 13 October 2004 a Centrelink delegate affirmed the decision to reject the claim for DSP. The delegate recorded an impairment rating of 10 points for left leg pain. (This was different to the rating of 0 by Dr Arad. The delegate did not explain why a different rating was given). The delegate noted that right thumb pain, post traumatic stress disorder and fractured left rib were regarded as temporary conditions. The delegate notified Mr Pais of the decision by letter dated 13 October 2004.
o)On or about 16 October 2004 Mr Pais provided an additional report, dated 30 September 2004, by Dr White that opined that ongoing pain as well as psycho-social factors would prevent Mr Pais from being able to return to his previous occupation or allow him to be gainfully employed.
p)On 19 October 2004 Mr Pais provided a treating doctor’s report, dated 19 October 2004, that had been completed by Terry Smith, clinical psychologist. The report indicated that Mr Pais had chronic pain associated with psychological factors (anxiety and depression) and medical factors. He reported that the effect of chronic pain on Mr Pais’ ability to function was likely to fluctuate within the next two years. He also reported that the effect of anxiety and depression on Mr Pais’ ability to function was likely to significantly improve within the next two years. Mr Smith advised that Mr Pais had been his patient since 15 October 2004.
issues and legisaltive frame work
5. This matter is to be determined within the provisions of the Social Security Act 1991 (“the Act”) and the Social Security (Administration) Act 1999 (“the Admin Act”).
6. The central issue in this matter is whether the Applicant qualified for DSP, pursuant to the Act.
7. The Act relevantly provides:
“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;
…
94(2) A person has a continuing inability to work because of 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.
Note: For work see subsection (5).
…
94(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.
94(5) In this section:
educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
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.”
8. Section 23(1) of the Act provides that the reference to Impairment Tables means the Tables in Schedule 1B of the Act.
9. Clauses 5 and 6 of the Introduction to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (Schedule 1B of the Act) state:
“5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
what treatment or rehabilitation has occurred;
whether treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
treatment that is feasible and accessible ie, available locally at a reasonable cost;
where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:
evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
indicate why this treatment is reasonable; and
note the reasons why the person has chosen not to have treatment.”
10. Schedule 2, Part 2, section 4 of the Admin Act provides that the Applicant must be qualified for DSP at the date of the claim, or become qualified within 13 weeks thereafter. As Mr Pais’ claim was lodged on 1 July 2004, the relevant period for consideration of this matter is 1 July 2004 to 30 September 2004.
applicant’s evidence
11. The Applicant told the Tribunal he was born and educated in India, obtaining his Higher School Certificate and a Bachelors degree in Arts. He came to Australia in 1989 and commenced work with the State Rail Authority (“SRA”), initially on a part-time basis and soon after on a full-time basis. He progressed well in his employment and eventually became an assistant station manager and relief duty manager.
12. It was the Applicant’s evidence that while working with the SRA he was brutally assaulted by a passenger in July 2000 and suffered an injury to his left leg. One week after this incident, he was assaulted by the same passenger with an iron rod, suffering a dislocated right thumb. By agreement, he received workers compensation for these two injuries in June 2002 and at that time it was noted that he had a 20 per cent loss of (the use of his) right thumb (T5/38). At the time of these injuries the Applicant said that he struggled to continue with work and while he was not able to undertake overtime, he nevertheless continued with his normal duties. He told the Tribunal that he did this, despite the pain he was suffering because of the big mortgage he had on his house and that if he had taken sick leave he would have lost penalty rates. It was the Applicant’s evidence that he has continued to have pain in his right arm and thumb and finds it difficult to do lifting or turning with his right hand or to write. He also continues to suffer shooting pain and nerve pain in his left leg which comes and goes, and he has pain after only walking a few yards. The Tribunal notes that Dr Arad, on 6 October 2004 reported that the Applicant was able to walk 500 to 1000 metres.
13. In January 2004, the Applicant said he was assaulted again, this time being elbowed in the ribs and suffering a cracked rib which was treated by his GP with pain killers and ointments/plaster. He said he suffered considerable pain at the time of the injury, which subsided after four months. However, in the winter of that year the pain started again, in his ribs and up to his chest, and he still gets pain when he bends or sits down. He told the Tribunal that he continued with his normal duties (but not overtime) again because of his large mortgage.
14. With respect to treatment of his injuries, the Applicant said initially he had been on pain killers and had physiotherapy but he stopped physiotherapy in August/September 2004 because he could not afford to continue the treatment and currently is not taking any pain killers.
15. The Applicant told the Tribunal that the passenger, who assaulted him early in 2004, also accused him of stealing. Despite his plea of not guilty, after investigation he was dismissed for stealing on 9 June 2004 and he has not worked since that date. He said he disagreed with any finding that he had stolen money from the SRA and that he had been wrongfully dismissed, but did not have the money to appeal against his dismissal. It was the Applicant’s evidence that his dismissal had a devastating effect on him and it “finished my life”. He said at the time, he considered suicide (rating his feeling about doing this at 90 to 95 per cent) but since seeking and receiving medical help he was feeling better. His psychological problems, however, were there day and night and he considered himself now not normal. He said he was forgetful, had poor memory, had difficulty sleeping, was lethargic, felt crazy and despite attempting to get a job had not been able to do so mainly because he had no good character references (because of the stealing charge). He said that if he had not been dismissed, he thought he could still be working with the SRA in his old job, despite his musculoskeletal complaints. He told the Tribunal that he was married and that his partner was now the sole breadwinner and that her remuneration was such that he was not eligible to receive any social security benefits. He said he spends most of his time at home doing nothing but watching TV, that he has to lie down because of his aches and pains, and does not eat much. He was able to dress himself and attend to personal hygiene and grooming and daily living functions, albeit with some difficulty.
16. In respect to his psychiatric condition, the Applicant was somewhat confused about when he had first seen Dr Smith (a clinical psychologist) who diagnosed anxiety and depression. He initially told the Tribunal that he had seen Dr Smith on four occasions in July 2004, however subsequently he agreed that Dr Smith’s report (T27/149) shows his first consultation was on 15 October 2004. The Applicant said that he had difficulty in getting appointments to see Dr Smith, having to wait three months before consultation time became available.
17. The Tribunal notes:
a. the Applicant was seen by GP’s Dr Wong (on 4 June 2004) and Dr Ebrahim on (9 June 2004);
b. that on 1 July 2004, the Applicant in making a claim for compensation referred to “leading a disorder life and depression”;
c. that the Applicant saw Dr Ghaly on 5 August 2004, who alluded to post traumatic stress syndrome;
d. that Dr Wong on 20 August 2004 provided a letter suggesting that the Applicant be given further consideration in respect of his musculoskeletal problems;
e. that a registered nurse, S A Nott, on 21 September 2004 found no evidence of PTSD (see paragraph 4 (k) above);
f. that on 24 September 2004 Dr Wong opined that there may be a significant component of PTSD requiring psychiatric evaluation and that his case should be kept open for assessment;
g. that Dr Arad, a HSA medical adviser, on 6 October 2004 assessed the Applicant for PTSD and opined that the Applicant functions with some difficulty due to moderate symptoms and the functional impact of his condition was temporary and the condition should be reviewed in six months;
h. that Dr Perica on 28 February 2005 (T1/3) and 11 April 2005 (Exhibit A1) opined that the Applicant suffers from a major depressive disorder with associated anxiety and post-traumatic features.
consideration
18. The Tribunal finds that the Applicant, during the relevant period, had only the following permanent impairments pursuant to section 94 (1) of the Act:
·Left leg pain
·Right thumb dislocation and related right lower arm wrist and thumb pain
19. The Tribunal, after careful consideration of all of the material before it and the submissions of both parties, does not accept that during the relevant period, the Applicant had any psychiatric impairment which could be regarded as having been diagnosed, treated and stabilised, such that it could be considered to be permanent. In arriving at this finding, the Tribunal is mindful that the Applicant has been diagnosed as suffering from a psychiatric condition, that this condition is the subject of ongoing medical assessment and that the Applicant is free to pursue a subsequent claim for DSP in respect of this condition should he so wish.
20. In respect of the Applicant’s left rib fracture and related pain the Tribunal finds on the medical evidence before it, that this condition, at the relevant time, was temporary and expected to improve and cannot be considered to be permanent.
21. Turning then to the assessment of each of the accepted permanent impairments.
22. The Tribunal has assessed the relevant impairments using the Impairment Tables as set out in Schedule 1B of the Act. In so doing, the Tribunal has taken into account the medical evidence before it, the evidence given by the Applicant and the submissions of both parties.
23. The Tribunal is satisfied that the SSAT has correctly rated the Applicant as nil for each of Table 4 (Function of the Lower Limbs) and Table 3 (Upper Limb Function). However, the Tribunal accepts the Respondent’s submission that the Applicant’s impairments, taken collectively and considered under Table 20 (Miscellaneous - … Pain), at best, would allow a rating of 10.
24. The criteria for a nil rating under Table 4 is:
“NIL Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.”
The criteria for a nil rating under Table 3 is:
“NIL Can use dominant limb effectively and/or
Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.”
The criteria for a rating of 10 under Table 20 includes:
“TEN 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/impact on work attendance.”
25. The Tribunal finds that the Applicant’s overall impairment rating is 10 points.
26. The Tribunal therefore finds that the Applicant does not satisfy section 94(1)(b) of the Act and, as a result, is not qualified for DSP.
27. That being so, the Tribunal is of the view that it is not necessary to consider whether the Applicant satisfies section 94(1)(c) of the Act.
28. The Tribunal affirms the decision under review.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member.
Signed: A. Garcia .....................................................................................
Associate
Date/s of Hearing 22 June 2005
Date of Decision 22 July 2005
Representative of the Applicant self-represented
Representative of the Respondent Mr G Richardson
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