Perrett; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and
[2008] AATA 565
•2 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 565
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3097
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS Applicant
And
GEORGE PERRETT
Respondent
DECISION
Tribunal Ms A F Cunningham (Senior Member) Date2 July 2008
PlaceHobart
Decision The decision of the Social Security Appeals Tribunal dated 1 June 2007 that Mr Perrett was qualified for a disability support pension from 27 June 2005 is affirmed.
.[Sgd A F Cunningham]
Senior Member
CATCHWORDS
SOCIAL SECURITY - Disability Support Pension - overseas applicant - International Agreement with Malta - qualification requirements - impairment of 20 points or more - that the impairment be fully treated and stabilised - work capacity and whether severely disabled - decision under review affirmed
Social Security (Administration) Act 1999, Schedule 2, Clauses 3 and 4
Social Security Act 1991 (Cth), sections 23(4)(b), 94, Schedule 1B, Table 3, 6
Social Security (International Agreements) Act 1999 (Cth), section 3
The Guide to Social Security at 1.1.S.110
Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Re Drake (No. 2) (1979) 2 ALD 634
Coates and Secretary Department of Employment and Workplace Relations [2006] AATA 938
REASONS FOR DECISION
2 July 2008 Ms A F Cunningham (Senior Member) 1. The decision under review is one made by the Social Security Appeals Tribunal on 13 June 2007 which set aside a decision of Centrelink rejecting Mr Perrett's application for Disability Support Pension (DSP).
2. Mr Perrett lodged a claim for Australian DSP with the Maltese Department of Social Security on 26 July 2005. The claim was not received by Centrelink until 4 January 2006. On 17 March 2006 the claim was rejected by Centrelink on the basis that Mr Perrett did not satisfy the requirement for an impairment rating of at least twenty points in order to qualify for a DSP. The decision was affirmed by a Authorised Review Officer on 31 January 2007.
Issues
3. The issues before the Tribunal are whether Mr Perrett qualified for DSP on the date of lodgement of his claim on 27 July 2005 or within 13 weeks of that date as provided by for in Schedule 2, Clauses 3 and 4 of the Social Security (Administration) Act 1999.
4. In determining this issue the Tribunal must consider:
1. Does Mr Perrett have an impairment(s)?
2. Do the impairment(s) rate 20 or more points under the Impairment Tables?
3. Are the impairment(s) fully treated and stabilised?
4. What is Mr Perrett's work capacity and was he severely disabled during the relevant period?
5. Mr Perrett is currently resident in Malta and the hearing was conducted by telephone link. Mr Perrett was the only witness who gave oral evidence at the hearing.
Background
6. The following background facts were not in dispute and the Tribunal finds accordingly:
1. Mr Perrett was a resident of Australia from 3 March 1966 to 5 December 1970 when he moved to live in Malta. He ceased full-time employment in February 2005 having worked as a security guard for the last 6 years.
2. Mr Perrett is currently 63 years of age and was 61 years old when he lodged his application for DSP.
3 In 1975 Mr Perrett suffered a number of physical injuries as a result of a work-placed accident.
Evidence
7. It was Mr Perrett's evidence that after suffering his work-place accident in 1975 he was declared unfit for work. Due to his responsibilities to care for two young children and an epileptic wife he persuaded his employer to offer him light duty employment. The physical injuries sustained included a broken wrist, right elbow, both knees which have resulted in a loss of range of movement and ongoing medical problems and pain with his arms and legs.
8. Mr Perrett said that he became increasingly depressed, tired and emotional with temper outbursts. He was advised by his doctor to cease employment which he did in February 2005. Mr Perrett described his physical conditions in 2005 as including problems stretching his right elbow, trembling three fingers in his left hand, problems with both feet locking and requiring assistance to progress from a sitting to a standing position, difficulty bending even when sitting, difficulty walking up to 50 or 60 metres and requiring the use of a stick, requiring assistance to get out of bed, assistance to dress and shower, unable to drive a manual motor vehicle, suffering pain after sitting in one position for 15 minutes. Mr Perrett stated that he had been on medication for severe anxiety since it was diagnosed in 2005.
9. Mr Perrett went on to describe his current disabilities stating that he had more recently been diagnosed with hypertension and hypercholesterolemia. He said that he is now largely housebound and does not believe that he is capable of any form of work.
Legislation
10. The qualification provisions for DSP are found in section 94 of the Social Security Act 1991 (Cth) (the Act) which provides:
"(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
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(f) the person is not qualified for disability support pension under section 94A.
Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2: for Impairment Tables see section 23(1) and Schedule 1B.
(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 independently of a program of support within the next 2 years; and
(b) either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity - -such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next two years'.
Note: For work see subsection (5)".
11. As a result of recent amendments to the Social Security (International Agreements) Act 1999 (Cth) the work ability requirements for DSP were changed in that an applicant must be "severely disabled". It was accepted by both parties to the appeal that the Social Security Appeals Tribunal (SSAT) had erred in not giving effect to the amendment to the legislation which was operative from 1 July 2005.
12. Article 2 of the Agreement between Australia and Malta now refers to "a disability support pension for the severely disabled" Section 3 of the International Agreements Act provides that an expression used in the Social Security Act 1991 has the same meaning when used in this Act as in the Social Security Act 1991. The term "severely disabled" is defined in section 23(4)(b) of the Social Security Act 1991 as:
"For the purposes of this Act, a person is severely disabled if:
(a) a physical impairment, a psychiatric impairment, an intellectual impairment, or 2 or all of such impairments, of the person make the person, without taking into account any other factor, totally unable:
(i) to work for at least the next 2 years; and
(ii) unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or
(b) the person is permanently blind"
13. A further explanation for the term "severely disabled" is included in The Guide to Social Security (the Guide) at 1.1.S.110 as:
"A customer is accepted as being severely disabled if their impairment prevents them from:
·doing any work for 8 hours a week or more for the next 2 years, and
·benefiting from training, education or rehabilitation to the extent of being able to work at least 8 hours a week".
14. The Tribunal frequently sources departmental policy guidelines to assist in the interpretation of legislation where the explanation is not inconsistent with the statutory terminology (Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 and Re Drake (No. 2) (1979) 2 ALD 634.
15. The Guide's reference to work and training, educational rehabilitation being for 8 hours a week would appear to be more generous than that provided by the provisions of section 23(4)(b) which does not specify a number of hours.
Impairment
16. The Treating Doctors Report (TDR) which was completed on 23 August 2005 listed a number of conditions namely chronic depression and severe anxiety, spinal condition, upper and lower limb impairments and hypertension.
17. Mr Perrrett's treating doctor's diagnosis of his impairments was not contested and the Tribunal accepts the evidence that at the relevant time and within the claim period Mr Perrett suffered from a number of impairments.
Impairment Rating
18. In accordance with the provisions of sub-section 94(1) the impairment rating must be of 20 points or more under the Impairment Tables. The impairment rating must apply to the claim period.
19. Centrelink's decision assessed Mr Perrett's overall impairment rating at 10 points. The SSAT in rejecting the decision under review assessed Mr Perrett's impairment rating under the Tables at a total of 45 points.
20. The relevant tables are contained in Schedule 1B of the Act and are based on a person's functionality. The SSAT based its assessment on the evidence as to Mr Perrett's demonstrable loss of function in accordance with the criteria under the Tables. The Tribunal was informed that neither the Maltese Medical Board, nor the treating doctor had a copy of the Impairment Tables or the legislation relating to Australian DSP and nor are they trained in its interpretation.
Depression and Severe Anxiety
21. Mr Perrett's treating doctor, Dr Rapa, described his condition as chronic and permanent. He stated that Mr Perrett's depression and his orthopaedic problems had rendered him unable to do any manual work, that he hardly leaves his home and only does so under pressure and guidance from his family. Mr Perrett was being treated with medication which was varied from time to time with no affect. He was also undergoing psychotherapy. It was Dr Rapa's opinion that his symptoms were getting more pronounced with time. In a subsequent report dated 5 December 2005 Dr Rapa stated that Mr Perrett's depression had developed following a severe injury sustained in 1975.
22. A report undertaken by Dr Tabart on 24 February 2006 for Health Services Australia Ltd assessed Mr Perrett's condition as resulting in "mild, but regular symptoms" generating no impairment rating under Table 6 given that Mr Perrett had been able to continue working in a full-time capacity for 29 years with the condition.
23. On 20 April 2006 Professor Galea, Psychiatrist, opined that Mr Perrett was suffering primarily from post-traumatic stress disorder as well as depression with anxiety/paranoid features. He went on to state that the prognosis was poor and that he considered Mr Perrett totally unfit for any work with no prospects of rehabilitation.
24. In her report prepared on 5 January 2007 Dr Wnekowski for Health Services Australia Ltd, affirmed the previous assessment of a nil impairment rating on the basis that Mr Perrett was able to work full-time with his condition for many years.
25. A further report from Dr Mangion dated 21 August 2007 was submitted at the hearing of the appeal in which he stated that Mr Perrett is unfit for work in the long term and probably permanently. This report however is of little assistance to the Tribunal as it post-dates the claim period by almost two years.
26. The report that is most relevant to the claim is that of Mr Perrett's treating doctor dated 23 August 2005, which is six months after Mr Perrett ceased full-time work.
27. The relevant criteria under Schedule 1B Table 6 of the Act for a psychiatric impairment are as follows:
Rating Criteria NIL Mild but regular symptoms which tend to cause subjective distress. On most occasions able to distract themselves from this distress. Minimal interference with function in everyday situations. Exacerbation of symptoms may cause occasional days off work. (eg. There may be some loss of interest in activities previously enjoyed. There may be occasional friction with family, colleagues or friends). Medical therapy or some supportive treatment from treating doctor may be required. TEN
Moderate and regular symptoms and generally functioning with some difficulty. (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships). May have received psychiatric treatment which has stabilised the condition. Minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work. (eg. short periods of absence from work).
TWENTY
Psychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms ). There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.
THIRTY
Serious psychiatric illness with major impairments in several areas, such as work, interpersonal relations, judgement, thinking, or mood (eg. depressed person avoids friends, neglects family, unable to do housework), OR some impairment in reality testing or communication (eg. speech is at times obscure, illogical or irrelevant).
FORTY
Major chronic psychiatric illness which results in an inability to function in almost all areas, OR behaviour is considerably influenced by either delusions or hallucinations, OR serious impairment in communication (eg. sometimes incoherent or unresponsive) or judgement (eg. acts grossly inappropriately).
28. The Secretary's medical witnesses assessed Mr Perrett's impairment rating at nil principally on the basis that he had been able to work full-time with his condition since the diagnosis some 29 years previously.
29. For a nil impairment rating the criteria refers to mild but regular symptoms, minimal interference with function in everyday situations, exacerbation of symptoms which may cause occasional days off work and medical therapy or some supportive treatment from a treating doctor may be required. For an impairment rating of ten the symptoms must be moderate and regular with some difficulty with general functioning, beginnings of some interference with interpersonal or work-place relations, minor effects on work attendance but not a prevention of full-time work and the possibility of psychiatric treatment stabilising the condition.
30. It was Mr Perrett's evidence that as a result of his severe depression he was "having a go at people at work all the time as well as other people" and that he did not believe that after leaving work in 2005 that he would have been capable of working 8 hours per week. Mr Perrett said that he had first consulted Dr Mangion in 2006 and had consulted Dr Galea in 2005.
31. Whilst the condition was first diagnosed in around 1976 following Mr Perrett's accident at work in 1975, Mr Perrett was able to continue working in a full-time capacity for the 29 years albeit on light duties as a security guard at the main gate of a hospital.
32. Despite Mr Perrett's evidence that he consulted Dr Galea, Consultant Psychiatrist in 2005, Dr Galea's report is dated 20 April 2006. In August 2005 Mr Perrett's treating doctor stated that his psychiatric condition is reviewed by him on a monthly basis or as necessary. There is no evidence that Mr Perrett was receiving psychiatric treatment during the claim period, however Dr Rapa stated in his TDR dated 23 August 2005 that Mr Perrett first consulted a psychiatrist in 1976.
33. Dr Rapa reported in August 2005 that Mr Perrett's condition was chronic, that medication changes had not been beneficial, that he hardly leaves the house, that his condition was deteriorating and that he was seeing him on a regular basis.
34. Whilst Mr Perrett's psychiatric condition had not totally prevented him from working in February 2005, by August 2005 his treating doctor opined that he was unable to do any work. It is noted that the impairment rating of 10 points does not require that a person be unable to undertake full-time work. Whilst the Tribunal cannot be satisfied that Mr Perrett was receiving psychiatric treatment during the claim period, there is evidence that he had sought treatment in 1976. Further there is a reference in the Job Capacity Assessment Report that Mr Perrett had stated in his undated letter of appeal that he had been under the regular care of a psychiatrist since 1986. The Medical Assessment Report (MAR) also contains a statement that Mr Perrett "is permanently under psychiatric care".
35. Mr Perrett had ceased work some five months prior to lodging his claim for DSP. The Tribunal accepts Mr Perrett's evidence that his symptoms had been affecting his interpersonal and work place relationships. In August 2005 Mr Perrett was diagnosed with a severe anxiety state and depression. His depressive illness was confirmed by the Maltese Medical Panel in early December 2005 who noted that Mr Perrett was permanently under psychiatric care and unable to work. The Tribunal is accordingly satisfied that an impairment rating of 10 is appropriate for Mr Perrett's psychiatric condition.
Upper Limbs
36. Schedule 1B, Table 3 of the Act provides the criteria for assessing a rating for this condition:
Rating Criteria 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.
FIVE
Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function or manual handling.
TEN
Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.
FIFTEEN
Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes significant interference with hand function or manual handling.
TWENTY
Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes significant interference with hand function or manual handling or
Unable to use non-dominant upper limb at all.
THIRTY
Unable to use dominant upper limb at all.
37. On 23 August 2005 Dr Rapa reported that Mr Perrett was unable to fully extend his right upper limb due to the injury to his right elbow "with consequent limitation of all movements". With respect to his left upper limb he noted a deformity in the left wrist, inability to flex completely all fingers of his left hand. With respect to his dominant limb and the non-dominant limb Dr Rapa affirmed the criteria for "demonstrable evidence of loss of strength, mobility, co-ordination, dexterity and/or sensation of upper limb which causes significant interference with hand function or manual handling".
38. Dr Gatt in a subsequent assessment dated 16 November 2006 confirmed Mr Perrett's upper limb conditions, the loss of dexterity and inability to form a proper grip due to his left wrist being mal-united. This report however is at least twelve months post the claim period. In the MAR completed on 5 November 2005 the medical assessor stated that Mr Perrett "is completely disabled for his lower and upper limb condition" and further "that his limb condition especially the state of the lower limbs precludes the patient from doing any work". The summary of his conditions included a deformed right wrist and complete limitation of movements.
39. In submissions made on behalf of the Applicant, reference was made to the absence of any mention of Mr Perrett's upper limb conditions in the letter from the orthopaedic surgeon dated 22 August 2005. In that letter Mr Gatt referred to Mr Perrett's lower limb conditions. In his subsequent report of 16 November 2006 Mr Gatt reports on all of Mr Perrett's orthopaedic conditions including the upper and lower limbs and his spinal condition. There is no suggestion that the upper limb condition is a recent impairment and was not present at the time of the earlier report. This subsequent report is in response to specific questions asked of Mr Gatt by the Disability Officer with Centrelink International Services.
40. The Secretary's submissions also referred to comments in the HSA Report regarding contradictory and inconclusive nature of the earlier reports. These comments were made it would appear, with reference to the ability to make an assessment of Mr Perrett's work ability rather than the nature and symptoms of the conditions. In the Tribunal's view there really is no conflict with the information provided.
41. In her report of 5 January 2007 Dr Wnekowski referred to the contents of the Maltese medical reports which she contended provide conflicting information. The only identified conflict appears to be Mr Perrett's ability to work in a full-time capacity for 30 years with the claimed injuries. Dr Wnekowski concluded that the balance of the evidence suggests that there is no significant impairment of upper limb function that would rate higher than nil on Table 3.
42. The Tribunal disagrees. The medical assessment reports completed on 23 August 2005 and 5 December 2005 are consistent in their references to Mr Perrett's symptoms and limitations with respect to his upper limbs. Mr Gatt confirms that Mr Perrett is right-hand dominant but the only specific reference to symptoms in the right limb is constant pain in the right elbow. Whilst he refers to lost dexterity, inability to use a hammer and cope with activities of daily living, needing help to dress and with household tasks, in the Tribunal's view these limitations more appropriately relate to his non-dominant left limb where the wrist is mal-united, there is a deformity in the distal half left forearm and cracking noise with elbow movements. Whilst Dr Rapa ticked the box that supports an impairment rating of 10 the symptoms described and affirmed by Mr Gatt are not supportive of the criteria required for a rating of 10 for the dominant upper limb. In the Tribunal's view the evidence supports a rating of 5 for the non-dominant upper limb resulting in moderate interference with hand function or manual handling.
Lower Limbs
43. The criteria for assessing a rating for a condition affecting the lower limbs is contained in Schedule 1B Table 4 of the Act and is as follows:
Rating Criteria NIL
Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.
TEN
Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking to 250-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.
TWENTY
Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking (4km/h) to 50-250m or less at a time. Can walk further after resting or
Unable to walk or stand but independently mobile using a self-propelled wheelchair.
THIRTY
Pain or claudication restricts walking (4km/h) to 50m or less at a time. Can walk further after resting or restricted to walking in and around home and:
requires quad stick, crutches or similar walking aid, or
is unable to transfer without assistance.FORTY
Unable to walk or stand and mobile only in a motorised wheelchair or wheelchair with an attendant.
44. It was submitted on behalf of the applicant that the evidence supports an impairment rating of 20 in accordance with the prescribed criteria. Of relevance is the TDR of 23 August 2005 which affirmed the following:
"pain or claudication restricts walking (4km/h) or less, at a time. Can walk a little further after resting or restricted to walking in and around home and;
·requires quad stick, crutches or similar walking aid; or
·unable to transfer without assistance".
45. The report contained the following additional comments:
"Pt has severe disability amid the knee caused by a malunion. Even if surgery is ever done, the prognosis is bad".
Further, that the patient needs support in the activities of daily living.
46. Mr Gatt's report of 22 August 2005 refers to a limited range of movement of both knee joints to 90 degrees. The report states that an arthroscopy has been booked for the removal of loose fragments and that Mr Perrett is "certainly not fit for any form of gainful employment now or for the foreseeable future".
47. In his second report dated 16 November 2006, Mr Gatt describes the functional impact of Mr Perrett's lower limb condition. He notes that Mr Perrett is unable to walk on sand/soil but can walk on flat ground up to 100 metres and occasionally uses a stick. He is unable to use stairs and walk for long distances. He can rise from a chair without assistance providing that it is not low and is also able to get out of bed without assistance. Mr Gatt noted that Mr Perrett's knees especially the left one, regularly gives way, that his knees have post traumatic osteoarthritis of a severe degree which give constant pain, that his medication of analgesics and NSAIDS is not very effective and that a total joint replacement could be expected in the future.
48. Dr Wnekowski of 5 January 2007 ascribed an impairment rating of 10 points on the basis of the medical reports available at the time.
49. In their report dated 5 December 2005, the Maltese Medical Panel concluded that Mr Perrett "basically ... cannot walk" and "... is completely disabled for his lower and upper limb conditions".
50. The major differences in the criteria for a rating of 10 and 20 under Table 4 relate to the distance that a person is able to walk at a slow to moderate pace of 4km/h. For a rating of 10, walking is restricted to a distance of between 250-500 metres. In Dr Rapa's report of 23 August 2005 he deleted the reference to 50 metres suggesting that Mr Perrett is restricted to walking to a lesser distance and is only able to walk a little further after resting. His report of 16 November 2006 however notes that he can walk on flat ground up to 100 metres. This is still 150 metres less than the minimum distance stated in the criteria for a rating of 10 points but within the distance for a rating of 20 points for 50 - 250 metres.
51. In the Tribunal's Mr Perrett's limitations as described above are clearly relevant to work capacity. The Tribunal accordingly concludes that the evidence supports a rating of 20 points under Table 4.
Spinal Condition
52. Schedule 1B, Table 5.2 of the Act provides the criteria for assessing a rating for a condition affecting the thoraco-lumbar-sacral spine:
Rating Criteria NIL
Normal or nearly normal range of movement.
FIVE
Loss of one-quarter of normal range of movement.
TEN
Loss of one-quarter of normal range of movement as well as back pain or referred pain:
with many physical activities and
with standing for about 30 minutes and
with sitting or driving for about 60 minutes.
orLoss of half of normal range of movement.
TWENTY
Loss of half of normal range of movement as well as back pain or referred pain:
with most physical activities and
with standing for about 15 minutes and
with sitting or driving for about 30 minutes.
orLoss of three-quarters of normal range of movement.
FORTY
Ankylosis in an unfavourable position, or unstable joint.
53. Dr Rapa in his report of 23 August 2005 stated that Mr Perrett's hip and knee arthritis is an after effect of the severe injuries he sustained in 1975 and that he suffers a loss of 3/4 of the normal range of movement. No other functional difficulties were reported. The MAR completed in Malta did not include any reference to a spinal condition in fact a line was drawn across this section. In his report dated 22 August 2005 Mr Gatt, orthopaedic surgeon, only referred to Mr Perrett's lower limb condition but in his subsequent report of 16 November 2006 he reports on Mr Perrett's upper and lower limbs as well as his spinal condition. In that report he assessed Mr Perrett's loss of range of movement as between 50 and 75% of normal and noted that he could reach knee level. He further noted that Mr Perrett is able to sit for up to an hour and can drive for a period of 15 minutes before experiencing pain. He states that Mr Perrett is unable to bend his back and cannot look after the garden. His medication consists of analgesics and NSAIDS and that there is no treatment plan.
54. A report from Dr Bologna, orthopaedic surgeon, dated 28 August 2007 confirmed Mr Perrett's lumbar spondylosis and facetal osteoarthritis noting that forward flexion is reduced to 60% of normal. He considered however that the "spinal disorder is overwhelmed by the serious disabilities in the left hand and both knees". Whilst this report significantly post-dates the claim period, it is consistent with the findings in the two reports referred to earlier.
55. Mr Perrett refers to pain in his spine, in his Work-Ability Customer Information form completed on 24 August 2005. Whilst Mr Gatt refers to a painful condition, he described the pain as episodic and intermittent becoming worse on bending and lifting.
56. The Tribunal's difficulty is to determine the nature of Mr Perrett's spinal condition during the relevant claim period. There is an absence of symptomatic and functional information regarding Mr Perrett's condition at this time. The only information available regarding the condition during the claim period is the TDR dated 23 August 2005 which reports a loss of 3/4 normal range of movement. Dr Wnekowski in her report of 5 January 2007 concludes that the condition does not attract an IR under Table 5.2. In her report Dr Wnekowski states:
"The orthopaedic surgeon indicates this is as a result of the 1975 accident, however I note that the panel doctor report indicated no spinal condition. There is said to be loss of half ROM, with intermittent pain related to bending and lifting".
Dr Wnekowski made no reference to the treating doctors assessment of a 3/4 loss of range of movement and chose to adopt the lower range referred to in Mr Gatt's report.
57. The criteria for an impairment rating of 20 in the alternative only requires that there be a loss of 3/4 of normal range of movement and does not refer to any functional impacts. The Introduction to the Tables however states that the Tables are function based rather than diagnosis based and that the emphasis is on the loss of functional capacity that a person experiences in relation to work. An impairment rating is only to be assigned following a comprehensive history and examination.
58. It is noted that there is no reference to a spinal condition in the MAR. This may indicate the absence of the condition or that it was not assessed, for the box indicating a normal or near normal range of movement was not marked. Although the MAR report refers to a 3/4 loss of range of movement there is no evidence that it was arrived at after a comprehensive history and examination and an assessment of functionality with respect to work capacity as required by the Introduction to the Tables. Despite his spinal condition, Mr Perrett was able to undertake his work as a security guard albeit on light duties. There is no evidence of any significant deterioration since he ceased work. The medical evidence does not suggest that he ceased work due to the effects of his spinal condition but rather due to his depression and anxiety and lower limb conditions. For these reasons the Tribunal does not accept that Mr Perrett's spinal condition should be ascribed a rating under the Impairment Tables.
Hypertension and Hypercholesterolemia (Hyperlipidemia)
59. Mr Perrett's hypertension first became known in 1996. The MAR of 5 December 2005 reported that the condition is permanent. Mr Perrett was prescribed medication. Dr Tabart notes in her report of 24 February 2006 that "further treatment would be recommended to better control the condition until fully treated and stabilised the condition is rated as temporary".
60. In her report Dr Wnekowski states that the condition is not an impairment for work and that although uncontrolled hypertension can lead to heart problems in the future, it is a fully treatable condition. Dr Wnekowski stated that hyperlipidemia is not an impairment for work.
61. On the evidence provided there is no evidence upon which an impairment rating can be prescribed for these conditions.
62. In accordance with the above findings, the Tribunal's preliminary assessment of Mr Perrett's impairment rating is 25 being 10 points for depression and severe anxiety, 5 points for upper limbs and 10 points for lower limbs. Mr Perrett accordingly satisfies the requirement of section 94(1)(b) for an impairment rating of 20 points or more.
63. The remaining issues are whether the impairments are fully treated and stabilised and whether Mr Perrett was severely disabled as defined by the Act.
Permanent Conditions
64. The Introduction to the Tables for assessment of work-related impairment states that for a rating to be assigned, the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The condition must also be considered to be permanent in that, on the basis of the available evidence, it is more likely than not that it will persist for the foreseeable future which is taken as lasting for more than two years. The condition may be considered to be fully stabilised, if it is unlikely that there will be any significant functional improvement with or without reasonable treatment, within the next two years.
65. The Introduction to the Tables states that this assessment should be undertaken prior to assigning an impairment rating, accordingly the Tribunal's preliminary impairment ratings are dependent upon these further assessments.
66. The concept of permanent was considered by Deputy President Hack in Coates and Secretary Department of Employment and Workplace Relations [2006] AATA 938 where he said at paragraph 21 and 22:
"... that judgement is to be made on the basis of the material capable of throwing light on the issue of whether the conditions were, at the relevant time, fully documented and diagnosed conditions which had been investigated, treated and stabilised.
It is not to the point that they may have answered that description at a later time. Nor is it to the point, for present purposes, that the point at which the conditions could have been investigated, treated and stabilised at an earlier time had Centrelink acted in a different manner. Parliament has determined that disability support pensions are to be paid when certain qualifying criteria are satisfied. The evident legislative intent is that disability support pensions be paid only when the disabling condition has reached the stage where it can be regarded as being permanent and having a permanent impact upon normal functioning as it relates to work performance".
67. The TDR noted that Mr Perrett first sought psychiatric treatment in 1976 and that the 1975 accident caused severe stress resulting in depression. Further that his "symptoms are getting more pronounced with time". The TDR noted treatment as comprising medication of anti-depressants and seratax (20mg taken once or twice daily depending on state of depression) as well as psychotherapy. The MAR stated that Mr Perrett is permanently under psychiatric care and confirmed his treatment of 2 seratax tablets per day and psychotherapy.
68. Professor Galea reported on 20 April 2006 that Mr Perrett's"
"... prognosis is made worse by his family history (sister is handicapped, wife is epileptic), and personal medical history (Hypertension and high serum lipid restricting the diet further). Treatment cannot be improved upon to that being given by his GP, namely psychological support and Paroxetine 20mgms twice daily - but the prognosis is poor and I consider Mr Perrett as totally unfit for any work and cannot be rehabilitated doing any alternative".
69. It is acknowledged by the Secretary that this condition is long-standing and permanent for the purposes of the Act. The Tribunal agrees. There is no evidence relevant to the claim period that any further or alternative treatment would improve his condition. A more recent report from Dr Mangion dated 21 August 2007 confirms that he continues to suffer from chronic depression with morbid anxiety and that his treatment is essentially unchanged and is ongoing.
Upper Limbs
70. Mr Perret's upper limb condition is also long-standing having largely resulted from the accident in 1975. Mr Gatt's report in November 2006 detailed Mr Perrett's medication which he stated was not very effective and provided only minor relief and further that no treatment was planned for the future. No other treatment is suggested by Dr Bologna in his subsequent reports of 28 August 2007 and 13 September 2007.
71. Given this evidence and the long-standing nature of this condition, the Tribunal is satisfied that the condition is permanent as defined by the Introduction to the Tables.
Lower Limbs
72. The TDR reported a severe disability around the knee joints caused by a mal-union and even if surgery was ever done, "the prognosis is bad". Mr Gatt stated in his report of 22 August 2005 that a booking for an arthroscopy of the right knee had been made to remove loose fragments. Further, that surgery could not be ruled out and will be done when and if the symptoms persist. Mr Perrett's treatment in December 2006 consisted of analgesics and NSAIDS which were reported as not being very effective and that a total joint replacement is planned for the future. In Dr Bologna's report of 28 August 2007 he states "short of a bilateral knee replacement, his permanent confinement to a wheelchair is a foregone conclusion".
73. There was no evidence that a total joint replacement would lead to any significant functional improvement nor was there any evidence at the hearing that this procedure had been undertaken. The Tribunal is according satisfied that the condition could be considered permanent as at the claim period in that there was no indication that any further medical treatment was likely to lead to a significant functional improvement within the next two years.
Spinal Condition
74. In Mr Gatt's report of 16 November 2006 he reported that Mr Perrett was taking analgesics and NSAIDS but there was no treatment for his back. Mr Gatt diagnosed multilevel degenerative facets and spondylosis which had persisted since the accident in 1975.
75. The Tribunal is satisfied on this evidence that for the claim period this condition was considered to be permanent and that it was unlikely that there would be any significant functional improvement within the next two years.
76. The Job Capacity Assessment Report completed on 14 August 2007 describes each of the claimed conditions as permanent. The assessor, Karen Hanzal-Jones, registered nurse, suggested however that Mr Perrett's osteoarthritis condition was not fully diagnosed, treated and stabilised because there was no evidence that the suggested treatment for an arthroscopy to remove loose fragments or a total knee replacement had been undertaken. The Tribunal has previously referred to these procedures and decided that there was no evidence that such treatment, even if undertaken, would result in any significant functional improvement.
Work Capacity
77. At the time of Mr Perrett's claim for DSP he had been out of work for some five months. The issue is whether at the time of the claim or within 13 weeks thereafter his impairments were sufficient to prevent him from undertaking any work within the next two years and whether he could benefit from any training, education or rehabilitation which would enable him to work for at least 8 hours per week.
78. The conclusions reached in the Job Capacity Report that "Mr Perrett's work capacity is further reduced until the osteoarthritis in his knees is optimally treated and stabilised" appear to be based on the expectation that the suggested arthroscopy to remove bone fragments and total replacement of his knees will result in improved work capacity prospects. The Report also suggests that Mr Perrett will require training and support in building work capacity, job-seeking activities and post placement to re-enter the labour market and obtain/maintain suitable work. The Report was prepared following a review of the available medical reports and relevant documentation but without the benefit of a face-to-face consultation. Whilst the experience and knowledge of the relevant Tables by the assessor is acknowledged, the conclusions are noticeably inconsistent with the opinions of the treating medical specialists. The Report contains no detail of suggested rehabilitation and job training that would be appropriate in Mr Perrett's circumstances. Mr Perrett was on light duties since his accident in 1975. For the past five years his duties consisted of pressing a button to open and close the main gate at a hospital. He had been experiencing difficulties with his work for some time and had been advised by his doctors to cease working. The Tribunal has no reason to disbelieve Mr Perrett's evidence in this regard and finds it difficult to conceive a more sedentary type of employment to which he may be suited. Without further detail the Tribunal does not accept that participation in a program of assistance or a rehabilitation program would enable Mr Perrett to have re-entered the work force within the next two years, even for eight hours a week.
79. The medical reports that deal with work capacity and relate to the claim period are the TDR in which Dr Rapa states that Mr Perrett's capacity to do any work with or without any intervention programs, training or disability specific intervention is nil and the MAR which states that Mr Perrett's psychiatric and limb problems preclude him from doing any work on a permanent basis. Mr Gatt in his report of 22 August 2005 states "he is certainly not fit for any gainful employment now and for the foreseeable future". The HSA report of 24 February 2006 states that it is not possible to make an assessment of work ability from the information provided and suggests that a comprehensive orthopaedic assessment and report be undertaken. The second report of 5 January 2007 states that Mr Perrett "is fit for light work of 30 hours with restrictions as outlined". Those restrictions include no repeated bending, twisting and lifting or prolonged sitting or standing. The restrictions outlined by Dr Wnekowski relate to Mr Perrett's lumbar spondylosis which she has stated does not attract an impairment rating.
80. The conclusions of Dr Wnekowski that Mr Perrett was able to continue working with his conditions were largely based on her assessment of his chronic depression/anxiety state. The Tribunal however has preferred the conclusions of Mr Perrett's treating doctors in preference to the opinions expressed by Dr Wnekowski who based her findings on the written reports received.
81. It was submitted on behalf of the Secretary that it is exceedingly unlikely that Mr Perrett was able to work full-time (albeit on light duties) immediately prior to retirement and yet only five months later be totally unable to work. As indicated above, the Tribunal has accepted Mr Perrett's evidence that his psychiatric condition was affecting his ability to work by impacting on his relationships with others and that he was at the time, or shortly thereafter, prescribed medication for his depression and severe anxiety for his symptoms and difficulties with general functioning.
82. Dr Galea on 20 April 2006 assessed Mr Perrett as being totally unfit for any work and unable to be rehabilitated for alternative work. Further, that the treatment prescribed by his GP could not be improved.
83. In his report of 13 September 2007 Dr Bologna assessed Mr Perrett as being totally unable to work for 8 hours or even less per week and confirmed that his physical status pertained to his condition as at 27 July 2005 and thenceforth.
84. The Tribunal is satisfied that the evidence supports a finding that Mr Perrett was severely disabled in the relevant period within the meaning of the Act in that he was unable to work for at least eight hours a week for the following two years and would not benefit from training, education or rehabilitation to enable him to do so.
85. In accordance with the above findings and the Tribunal's assessment of a total impairment rating of 25 points, the Tribunal determines that Mr Perrett was qualified for a DSP from 27 July 2005 and affirms the decision of the SSAT made on 1 June 2007.
I certify that the 85 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 27 March 2008
Date of Decision 2 July 2008
Solicitor for the Applicant Mr Brian Sparkes, Centrelink Legal Services
Solicitor for the Respondent Mr Ben Bartl, Mr Mark Littlejohn, Hobart Community Legal Service
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