Perez Amaya and Scretary, Department of Employment, Education and Workplace Relations

[2008] AATA 1059

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1059

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2006/170

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JOSE LUIS PEREZ AMAYA

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date25 November 2008

PlaceCanberra

Decision The decision under review is affirmed.

..............[Signed]................................

Mr S. Webb, Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - qualification criteria and period - qualification criteria not satisfied - decision affirmed

Social Security Act 1991 ss 94, Schedule 1B

Social Security (Administration) Act 1999 Schedule 2, cl 4

Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606

Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130

REASONS FOR DECISION

25 November 2008 Mr S. Webb, Member         

1.      Jose Perez Amaya is a Spanish citizen who lived and worked in Australia from 1972 to 1981. In or about 1978 he hurt his back. He has not been in paid employment since returning to Spain, but he has pursued his interest in ‘making inventions’. Since 1991 Mr Perez Amaya has made a number of claims for a Disability Support Pension (DSP) without success. This application relates to one of those claims, made in January 2005.

2.      I note that Mr Perez Amaya made a further successful claim for a DSP in December 2007 and he has been in receipt of DSP payment from that time.

3.      The issue for determination is whether Mr Perez Amaya is entitled to a DSP from the date of his claim on 6 January 2005.

4.      Mr Perez Amaya says that he has been badly treated by Australian and Spanish social security authorities. In his submission he should have been granted a DSP many years ago. He says that his back condition has prevented him from working since 1980 and that that condition is fully diagnosed, treated and stabilised; further treatment only provides temporary symptomatic relief.

5.      I am not satisfied that Mr Perez Amaya’s claim is made out.

6.      Under the Social Security Act 1991 (the Act), a person is entitled to a DSP if he or she suffers from a physical, intellectual or psychiatric impairment that warrants an impairment rating of 20 or more points and the person has a continuing inability to work.[1] The Social Security (Administration) Act 1999 (the Administration Act) sets out the process by which the start day is to be determined in relation to a claim. In effect, a claimant must either qualify on the day the claim is made or within the period of 13 weeks thereafter.[2]

[1] Social Security Act 1991 s 94(1).

[2] Social Security (Administration) Act1999, Schedule 2, cl 4

7.      It can readily be accepted that Mr Perez Amaya suffers from the following conditions: bilateral hypoacusis; severe dextroconvex dorsolumbar scoliosis with signs of spondyloarthrosis and cervicoarthrosis and cervical, thoracic and lumbar spine pain; myodesopsias in both eyes with pseudo-exfoliative syndrome in the left eye.[3] Thus, it appears that Mr Perez Amaya suffers from physical impairments affecting his hearing, his neck and his back, and his eyesight. I so find. It also appears likely on the evidence of Dr Payne that he may suffer from a psychiatric condition, ‘tachypsychia’.[4] It follows the first qualification criterion for DSP at section 94(1)(a) of the Act is satisfied.

[3] See T8, T27, T32 folio 121 and T42.

[4] See T 32 folio 121 and T42 folio 143.

8. The second qualification criterion for DSP requires that Mr Perez Amaya’s impairments warrant a rating of 20 or more point under the Impairment Tables set out at Schedule 1B of the Act. The preamble to those Tables provides that an impairment, being a functional impairment, may only be assessed if it arises from a condition that has been fully documented, diagnosed, investigated, treated and stabilised.[5]

[5] See Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606 at [7]-[10]; Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130 at [23].

9.      The Secretary says that Mr Perez Amaya’s conditions have not been fully documented, diagnosed, investigated, treated and stabilised. Certainly there is only scant evidence available concerning each of Mr Perez Amaya’s medical conditions and for that reason the matter has been delayed in order to ensure that Mr Perez Amaya has had sufficient opportunity to obtain and file additional materials. This process has been rendered more difficult by the fact that Mr Perez Amaya resides in Spain, without a fixed address. I will proceed to do the best with the available material.

10.     I am reasonably satisfied that the Mr Perez Amaya’s bilateral hypoacusis has not been fully documented, diagnosed, investigated, treated and stabilised. By Mr Perez Amaya’s account he experiences pain if he is exposed to sudden loud noise, but he does not otherwise experience any difficulty with his hearing. On the evidence of Dr Goyanes in November 2004 it appears that Mr Perez Amaya suffered from “moderate perceptive hypoacusis in the high zone above or at 3000hz”.[6] There is no evidence before me, however, concerning investigations, treatment or the likely duration of this condition. There is no evidence that hearing threshold levels had been properly investigated, tested and documented during the relevant period in 2005. There is no evidence that binaural hearing loss had been quantified. Even if I am wrong in this regard the present evidence, as will appear, does not establish a functional impairment that warrants a rating above zero under the applicable Impairment Table.

[6] T23 folio 121.

11.     It appears that Mr Perez Amaya is most concerned about his back condition and pain that he experiences as a result. Considering the available evidence, it appears that he has a long history, possibly since childhood, of scoliosis. On 30 November 2004 Dr Goyanes gave a diagnosis of “dextroconvex dosolumbar scoliosis with signs of spondyloarthrosis and cervicoarthrosis”.[7] On 10 March 2005 Dr Riera gave a diagnosis of dorsolumbar scoliosis with and cervicoarthrosis.[8] While it appears likely that ‘signs’ of spondyloarthrosis and cervicoarthrosis may not be consistent with the requirement for full documentation, diagnosis and investigation, I am reasonably satisfied that the signs to which Dr Goyanes referred were clinical in nature. This is consistent with her conclusion concerning the pinching of nerves at the C5/6 and C6/7 levels. There is no reference in her report to evidence of a radiological kind. I am reasonably satisfied that in all likelihood Mr Perez Amaya’s dextroconvex scoliosis is a condition that has been fully documented, diagnosed, treated (insofar as there is any treatment for this condition in a man of Mr Perez Amaya’s age) and stabilised. I so find. On the evidence of Dr Goyanes and Dr Riera it appears that this condition may be related to spondyloarthrosis and cervicoarthrosis. It is unclear, however, on their evidence, whether the particular arthroses are within the frame of Mr Perez Amaya’s scoliotic condition, or whether they are diagnostically distinct disease entities. I will proceed on the basis that the scoliosis and the arthroses are related but distinct conditions for present purposes.

[7] T8 folio 29, T32 folio 121.

[8] Dr Riera- T27 folio 111.

12.     On 21 September 2007, consequent upon a CAT scan, Dr Cornide reported a diagnosis of thoracic spondyl osteoarthritis with associated degenerative discopathy; chronic lumbar pain secondary to spondyl osteoarthritis with discopathy at L2-L3; interapophysary osteoarthritis; and cervical osteoarthritis with disc protrusions at C6, C7 and C8.[9] Considering that evidence, it appears to me that the radiological investigations in 2007 gave rise to a detailed diagnosis and treatment plan. On that basis, even though I accept that Mr Perez Amaya experienced cervical, thoracic and lumbar spine pain in 2005, I am not persuaded on the present evidence that his degenerative discopathy and related cervical, thoracic or lumbar osteoarthritis had been fully documented, diagnosed or investigated on 6 January 2005 or within the 13 weeks immediately thereafter.

[9] See report dated 21 September 2007, Respondent Statement of Facts and Contentions, Attachment 9, 33-34.

13.     It is plain enough from the evidence of Dr Goyanes in November 2004 that she did not consider Mr Perez Amaya’s condition to be stable.[10] Dr Riera considered that no significant improvement in Mr Perez Amaya’s neck, back and hearing conditions was likely in March 2005.[11] Neither Doctor, however, completed sections of the respective assessment forms concerning the likely duration or treatment of each of Mr Perez Amaya’s conditions. I note, however that Dr Riera indicated that Mr Perez Amaya did not have a medical condition that had a significant impact on his ability to function.[12] On that basis this case is to be distinguished from the facts in Secretary, Department of Employment and Workplace Relations v Harris.[13]

[10] T8 folio 30.

[11] T27 folio 111.

[12] T27 folio 101.

[13] [2007] FCAFC 130.

14.     The evidence concerning myodesopsias in both eyes with pseudo-exfoliative syndrome in the left eye is similarly opaque, and indicates only a probable diagnosis.[14] As it appears to me the probable existence of a condition is not consistent with the requirement that a condition must be fully documented, diagnosed, investigated, treated and stabilised before an impairment assessment can be made. There is no evidence that Mr Perez Amaya’s left or right eye conditions, whether in the form of myodesopsias in both eyes or pseudo-exfoliative syndrome in his left eye, have been fully diagnosed, investigated, treated and stabilised. I so find.

[14] See T27 folio 111.

15.     The evidence concerning psychiatric illness is tentative at the highest. If Mr Perez Amaya suffers from a psychiatric illness, ‘tachypsychia’ has been proffered as a label, there is no evidence before me that the particular condition has been fully documented, diagnosed, investigated, treated or stabilised. I am reasonably satisfied that it has not, and so find.

16.     This is not a case in which it is either feasible or desirable to subject Mr Perez Amaya to further investigations or examinations. As I have said, Mr Perez Amaya resides in Spain and is of no fixed address. The present proceedings relate to a claim he made for DSP on 6 January 2005. The relevant period to which attention must be directed with regard to the qualification criteria for DSP is that date and the 13 weeks immediately thereafter. Any further medical examination in November 2008 may properly assess his present condition, but is unlikely to add further probative evidence concerning his state in early 2005. In any event, he has been granted DSP from December 2007.

17.     Thus, the only condition that can be said to be fully documented, diagnosed, investigated, treated and stabilised at the relevant time in 2005 is scoliosis. On the present evidence it is not possible to distinguish or attribute particular symptoms of cervical, thoracic or lumbar pain to the different scoliotic and arthritic conditions that affect Mr Perez Amaya’s back. That being so I will proceed, with an eye to the beneficial nature of the legislation, to assess Mr Perez Amaya’s back impairments, including pain, on the basis that these are attributable to scoliosis. Functional impairments arising from this condition may be assessed under the applicable Impairment Tables.

18.     As can be seen, Table 5 sets out criteria for functional impairment ratings in relation to ranges of movement in the cervical, thoracic and lumbar spine. There is no evidence before me concerning the extent of any loss of range of movement in Mr Perez Amaya’s spine in 2005. Dr Goyanes and Dr Riera made no such assessment. Dr Payne reported that he was unable to rate any functional impairment in Mr Perez Amaya’s spine for this reason.[15]

[15] T42 folio 143.

19.     Mr Perez Amaya gave oral evidence that in 2005, and for many years, he has lived in a Kombi van in cramped circumstances. By his account he copes well with these limited circumstances, even though he cannot stand inside the van and is repeatedly forced to bend his back and his neck when entering, exiting or moving about inside this vehicle. His evidence is that in 2005 he was restricted in some activities, lifting heavy weights for example, but he was able to exercise in accordance with medical recommendations. He spends long periods reading or watching films while seated, but has some difficulty standing for long periods. Furthermore, he was able to pursue his interests in making inventions so long as he did not lift heavy weights or twist his back in certain ways.

20.     On that evidence it is not possible to ascertain with any amount of precision the extent of reduced mobility in Mr Perez Amaya’s spine at that time. Even if I accept that he suffered from a minor degree of loss of movement, possibly equating to one quarter of the normal range in his cervical and thoraco-lumbar spine, it does not assist his case. Loss of one quarter of the normal range of cervical spine movement is consistent with a rating of 5 impairment points. Additionally, the loss of one quarter of the normal range of thoraco-lumbar spinal movement warrants a rating of 5 impairment points, unless there is back pain or referred pain with many physical activities, with standing for about 30 minutes and with sitting or driving for about 60 minutes, in which case a rating of 10 points would be warranted. Mr Perez Amaya’s own evidence concerning his daily activities living in his Kombi van, sitting for long periods reading, or sitting at a cinema watching a film, for example, are not consistent with a thoraco-lumbar spine impairment warranting a rating of 10 impairment points. Thus, on that basis, his back impairments may warrant an overall assessment of 10 impairment points under Table 5: 5 points in relation to the cervical spine impairment and 5 points in relation to the thoraco-lumbar spine impairment.

21.     That, however, is not the end of the matter. The introduction to the Impairment Tables provides that:

“8.  In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it.  For example, Table 5 should be used for spinal pathology.  However, where the assessor is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates.  Assessors must use their judgement and be convinced that pain or fatigue is a significant factor contributing towards the person's overall functional impairment.  Medical reports and the person's history should consistently indicate the presence of chronic entrenched pain or fatigue.”

22.     Considering this in the light of the very scant evidence, it is conceivable that a rating assigned under Table 5 may underestimate the level of Mr Perez Amaya’s spinal disability. Turning to Table 20, I am reasonably satisfied on the present evidence concerning the relevant period that the back pain Mr Perez Amaya experienced in 2005 was chronic and entrenched, albeit sporadic and mild to moderate in degree; it caused him some distress from time to time. By his own account, these symptoms prevented few daily activities but may have caused some loss of efficiency in daily activities. Mr Perez Amaya was well able to care for himself and to function independently during the relevant period. The contemporaneous medical evidence suggests that his impairment did not affect his ability to function.[16] On that evidence it appears that there was only minimal interference with work-related activities. As Mr Perez Amaya was not in employment other than self employment as an inventor, the work-related tasks are those relating to his activities as an inventor. Thus, a rating of 10 points under Table 20 may be warranted.

[16] Dr Riera, T27 folio 101.

23.     Unfortunately for Mr Perez Amaya a rating of 10 impairment points under Table 5 or Table 20 is not sufficient to satisfy the second qualification criterion at section 94(1)(b), which requires a rating of 20 or more impairment points. Mr Perez Amaya’s application falters at this hurdle.

24.     It follows that Mr Perez Amaya did not qualify for a DSP on 6 January 2005 or within 13 weeks thereafter and the decision under review must be affirmed.

25.     I observe in closing that even if I accepted that Mr Perez Amaya’s hearing and eye conditions were fully documented, diagnosed, investigated, treated and stabilised during the relevant period, the outcome would remain the same. There is simply insufficient evidence to establish a rating above zero under Impairment Tables 12, 13, 14 or 15.

26. It is not necessary to proceed further to determine whether Mr Perez Amaya has a continuing inability to work because of his impairments alone. I simply note Mr Perez Amaya’s own evidence concerning his continuing self employment as an inventor. Whether Mr Perez Amaya’s purported activities as an inventor, thus far without apparent success or income, are consistent with the meaning of ‘work’ under section 94(2) of the Act is moot. There is no evidence, nevertheless, that Mr Perez Amaya’s impairments prevented him from undertaking ‘any work’ (as defined) or vocational or on-the-job training during the 2 years following the date of his claim for DSP in January 2005.

decision

27.     The decision under review is affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member.

Signed: ............[signed]......................................
  Demelza-Rose Gale           
  Associate

Date of Hearing  16 October 2008

Date of Decision  25 November 2008

Representative for the Applicant: Unrepresented

Representative for the Respondent:  Ms M. Welfare