Raffa and Department of Family and Community Services - [2001] AATA 260

DECISION AND REASONS FOR DECISION [2001] AATA 260

ADMINISTRATIVE APPEALS TRIBUNAL)
Nº V2000/320
GENERAL ADMINISTRATIVE DIVISION)

Re: SOPHIA RAFFA

Applicant

And: SECRETARY TO THE
DEPARTMENT OF FAMILY AND
COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Mr J.T.C. Brassil, am, Member
Date:             2 April 2001
Place:            Melbourne

Decision:The Tribunal decides to set aside the reviewable decision and substitute therefor a decision that the applicant was eligible for a disability support pension on the date of application.

(sgd) J.T.C. Brassil
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – impairment rating – continuing inability to work – whether conditions fully investigated, diagnosed and stabilised – decision set aside
Social Security Act 1991 ss 94, 100(3), Schedule 1B – Impairment Tables

REASONS FOR DECISION

2 April 2001 Mr J.T.C. Brassil, AM, Member

This is an application for review of a decision made by a delegate of the respondent on 2 June 1999 to refuse a disability support pension (DSP). The decision was affirmed on 21 July 1999 by an authorised review officer. The Social Security Appeals Tribunal (SSAT) decided on 14 February 2000 to again affirm the decision.
The applicant was present at the hearing on 8 September 2000 and was represented by Ms Anne Duggan of counsel. The respondent was represented by a departmental advocate, Ms Elizabeth King. The Tribunal was assisted by an interpreter competent in the Italian language during the evidence of Mrs Raffa.
Documents submitted pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were taken into evidence together with X-rays by Dr Coco of 13 June 1991 (Exhibit A1), X-rays by Dr Ng of 17 July 1992 (Exhibit A2), X-rays of Dr Lee of 28 April 2000, medical report by Dr Ting dated 17 May 2000 (Exhibit A4) and medical report of Dr E. Cole dated 30 June 2000 (Exhibit A5).
Facts
The applicant, Ms Sofia Raffa, lodged an application for DSP on 21 April 1999. It was rejected on 2 June 1999 following a medical assessment which concluded that her impairment of oesophageal reflux was the only fully treated and stabilised impairment. This impairment was assessed as having a zero rating hence the threshold requirement of 20 impairment points was not satisfied.
Ms Raffa had left school at age 10 years in the 5th grade (T5, page 43). She had arrived in Australia from Italy in 1967 and her first son was born some six weeks later.
She worked as a machinist in a factory from about 1970 until it closed in 1990 (T3). She has not worked since then. She had experienced some problems with her back prior to the factory closure but did not complain because she did not wish to risk her employment. She was also having problems with her nerves, feeling uptight at times.
Over the past ten years she had been at home. She lives with her husband and has two sons, aged 33 years and 25 years. She is constantly tired and has difficulty doing the housework, particularly in the past year.
Her anxiety has been treated with Zoloft, an anti-depressant, by Dr Lee. She also visited Dr Datta, a psychiatrist. Dr Datta has suggested (T14) she continue to take 50 mg of Zoloft daily but to increase to 100 mg daily if there were major symptoms. She has also been prescribed one Alprazolam tablet, a sedative, in an emergency.
She takes Zantac for her gastritis, Mylanta for heartburn and feels she has arthritis because her fingers are now crooked.
In March 1999 she was diagnosed with panic disorder. Dr Datta states in his report her history suggests anxiety with superimposed panic disorder and minor secondary depression.
The SSAT found that she suffers from anxiety, panic disorder and mild depression as well as oesophageal reflux and that she experiences low back ache and stiffness which interferes with her heavier household tasks (T2, page 8).
It is conceded by the respondent (T11) that the applicant has a single impairment, oesophageal reflux, which has been treated and stabilised.
Legislation
To qualify for DSP the applicant must satisfy all three subsections of s 94 of the Social Security Act 1991 ("the Act") which are set out in s 94(1):
"94(1) A person is qualified for disability support pension if:
(a)       the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)       one of the following applies:
(i)        the person has a continuing inability to work;
(ii)the Health Secretary has informed the Secretary that the person in 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 impairment rating is determined under Schedule 1B of the Act and the "continuing inability to work" is determined by reference to s 94(2), (3) and (5). To prove this continuing inability it is necessary to satisfy the Secretary that the impairment itself would prevent the applicant from working in the next two years and also would prevent the applicant from undertaking any educational, vocational or on-the-job training over the next two years or such training would if undertaken not enable the person to do any work within the next two years.
Issues before the Tribunal
As the respondent has conceded (T11) that the applicant has an impairment to satisfy s 94(1)(a) the Tribunal must decide whether Mrs Raffa has 20 impairment points under Schedule 1B and, if so, whether she has a continuing inability to work. In order to do this the Tribunal will have to decide what rating should be given to the conceded impairment and whether the applicant has other impairments within three months which could contribute to the rating under the Impairment Tables. The Tribunal will, if it decides that DSP is payable, also decide the date of effect.
Evidence
The applicant stated she had worked as a machinist in a clothing factory and from 1987 had aches in her lower back and down her left leg. Pain was also felt between the shoulder blades and in her neck. These continued until the factory closed down in 1990. She never felt fit enough to go back into similar employment.
She had consulted Dr Coco who practised in Fitzroy about these problems. These consultations were over a period of five years until she moved from Fitzroy. He had sent her for X-rays and said her working position was causing the problems together with being too close to the air-conditioning. Dr Coco provided her with a cream to apply and some tablets. She did not continue with the tablets as they upset her stomach.
Her new doctor at East Keilor was Dr Ng who also had X-rays taken. When she went to Dr Ng the pain was bad, she could not get up out of the chair, could not walk properly nor turn over in the bed. He used a machine which she thought was also used for acupuncture and provided her with a gel. She went to Dr Ng when the pain got bad and this was three or four times a year.
She thought that Dr Ng went back to China so she changed to Dr Robert Lee who also ordered X-rays. He prescribed Panadol and Panadeine for the pain and told her to apply a Voltaren cream.
Dr Lee provided the Treating Doctor Report (T4) attached to the DSP application. In his report he diagnosed "severe depression and panic" as well as "oesophageal reflux". He certified that in his opinion the applicant could not return to her usual job under two years or more and that she was not likely to be able to return to any kind of work requiring 30 hours per week for more than two years. For work of any kind for at least eight hours per week he was uncertain whether this would be under 12-24 months. He was of the opinion that she would not benefit from vocational training as she was "under psychiatrist".
When asked why Dr Lee did not mention her back pains in this report the applicant said she had told him about her back but he considered the panic attacks were graver and he concentrated upon them.
In respect to her back pain the applicant said that currently she cannot wash the clothes, cannot vacuum in the house, cannot stretch to hang out clothes on the line, cannot mop floors and cannot bend down to clean out the shower. Her husband does all of these things after he comes home from work.
Mrs Raffa said she told the Western Hospital of her back pain in March 1999 when she was admitted for four days after a severe panic attack. This was noted by the Hospital intern, Dr Khamly (T6, page 49).
She stated she had been nervy all her life, reacting to things at home and at work. Once she had a pain in her breast but the Dr Coco told her she did not have cancer but it was her nerves. She could not continue with the medication this doctor gave her as she got sleepy and she could not afford to go to sleep while at work on the machines.
On 1 June 1999 she was examined at the request of the respondent by Dr Mary Christoforou of Health Services Australia (HSA). She accepted the condition of oesophageal reflux (T3) but gave it a zero rating for impairment. She regarded the recently diagnosed anxiety depression condition as temporary even though she had a history of anxiety. She thought the condition not fully stabilised and full treatment has not yet been implemented.
Dr Christoforou recommended that Mrs Raffa be reviewed within 12 months to ascertain her response to therapy and determine her true work ability. Although some 15 months had passed there was no evidence that this had been done.
The applicant had consulted Dr Ing Ting, an orthopaedic surgeon, on 17 May 2000 (Exhibit A4) arranged by her solicitors. Dr Ting diagnosed her as "suffering from musculo-ligamentous strains of her neck and back, lower lumbar disc narrowing with residuals, chronic rotator cuff tendonitis of her left shoulder and pain down her left thigh". He advised that these conditions "have now stabilised and likely to be permanent".
Dr Ting assessed Mrs Raffa's impairment against the relevant Schedule 1B Table as neck 10, back 20, left shoulder 5, left lower limb 10, being a total of 45 points.
Mrs Raffa has also been examined in relation to her psychiatric condition by Dr Edward Cole. This examination was on 27 June 2000 some 15 months after the firm diagnosis at the Western Hospital of her anxiety/depression. In his report of 30 June 2000 (Exhibit A5) Dr Cole says she is now "suffering from a chronic anxiety state and reactive depression of moderate degree". He considered she would be well advised to remain on anti-depressant medication and "provided she does so her condition may be regarded as stabilised".
In respect to her employment Dr Cole stated he "would regard her as totally and permanently incapacitated for any form of employment that is likely to be open to her". Considering the whole person he stated:
"…when one looks at the situation now and takes into consideration her age, limited range of skills, poor command of English, history of injury, physical restrictions and emotional problems, she would be unemployable in any capacity and will remain so".
In cross-examination Mrs Raffa stated that Dr Christoforou was told about her back problems but she did not ask her to bend or do any movements. She said Dr Lee concentrated on her nerves which he seemed to think more important than her back problems. She confirmed she had not sought another opinion until sent to Dr Ting by her solicitors.
In re-examination the applicant confirmed that Dr Ting had arranged for new X-rays to be taken. She did not think he had any of the X-rays made available to the Tribunal at the hearing.
Submissions
Ms Duggan submitted that there were three impairments affecting the applicant, oesophageal reflux which has been conceded, her back and associated problems and her anxiety/depression. All of these pre-date her application for DSP on 21 April 1999.
Her back problems have been subject of X-ray examination over many years, from about 1987, by three different doctors, Dr Coco, Dr Ng and Dr Lee. It was noted when she was admitted to the Western Hospital. It was her submission there was plenty of evidence that the condition has existed for a long time. It has been described by Dr Ting in his report of 17 May 2000 as now stabilised and likely to be permanent. Using the appropriate Impairment Tables he gives her an impairment rating of 45 from her back, her neck, her left shoulder and her left limb.
Her anxiety/depression has been with her at some level most of her life and was clearly of particular concern to Dr Lee in recent years. She was treated at the Western Hospital for her serious panic attack in March 1999, being hospitalised for four days. Dr Cole in his report of 30 June 2000 gave the opinion that she was totally and permanently incapacitated for any form of employment and calculated an impairment rating from Table 6 of Schedule 1B as 20.
She submitted that the applicant had taken all reasonable steps to have her conditions treated but had various problems with the treatment, particularly because of her oesophageal reflux condition which caused reactions from medications prescribed. It was her submission that her back condition had been investigated, treated and diagnosed and it was open to the Tribunal to find that, because of the back and associated conditions reported by Dr Ting and his impairment rating, the applicant satisfies s 94(1)(a) and (b). She submitted that the Tribunal should take into consideration that the respondent had presented no evidence to contradict Dr Ting.
In respect to the anxiety/depression she submitted this had been a long standing condition which, for various reasons, had not been investigated fully but now Dr Cole has been able to clarify the nature of the condition which has not improved in the period since she went into the Western Hospital in March 1999 and was examined by Dr Cole in June 2000. Dr Lee had prescribed the anti-depressant Zoloft at least from April 1999, Dr Datta noted she was responding to this medication so it was submitted that this condition had been diagnosed, treated and according to Dr Cole now stabilised.
It was the submission on behalf of the applicant that Dr Cole and Dr Ting both support the contention that there is a "continuing inability to work" which would satisfy the requirements of s 94(1)(c).
Ms King on behalf of the respondent conceded that the applicant had three medical conditions but that at the time of her application only one, oesophageal reflux, would have satisfied the requirement for impairment.
It was her submission that s 100(3) permitted other conditions that satisfy the impairment requirements to be accepted but only within three months of the application. This was not the case in respect of the back condition and the psychiatric condition. The medical report from HSA only accepted the first condition as investigated, treated and stabilised which is necessary before the condition can be accepted as an impairment.
Dr Ting in May 2000 and Dr Cole in June 2000 expressed views that the respective conditions meet the requirement for diagnosis, treatment and being stabilised. The Tribunal should consider the opinion of Dr Datta, also a psychiatrist, who in September 1999 said (T14, page 69) "there was no hopelessness, helplessness or suicidal ideation and there were no major negative cognitions...". While Dr Datta agreed with the medication and that it be continued he did not appear at that time to assess the applicant at anywhere near the 20 points that Dr Cole has done.
It was Ms King's submission that the applicant was not eligible in respect to either her back condition or her psychiatric condition at the time of her application nor within three months of that date. She submitted that the Tribunal should, in the circumstances, treat the application as not having been made.
Ms Duggan requested the Tribunal to read the medical reports as a whole and not dwell on sections being emphasised on behalf of the respondent. It was her submission that the section of Dr Datta's report quoted was merely saying that the applicant was not psychotic.
Consideration of the Issues
The applicant has three medical conditions. At the time of application for DSP it was agreed that she had the condition oesophageal reflux as advised by the HSA doctor on 1 June 1999. On this basis the respondent on 2 June 1999 rejected the application. That is the decision under review.
It has been put in evidence that the HSA doctor did not examine the applicant in regard to her back and associated problems but the anxiety condition she regarded as not yet stabilised.
The submission on behalf of the applicant is that both of the unaccepted conditions, now viewed by Dr Ting and Dr Cole as meeting the requirements for DSP, should be accepted as being present unchanged from the date of the application or thereabouts. This submission is rejected by the respondent although it is conceded that the views of Dr Ting and Dr Cole could be accepted as the current state of the two conditions.
The back condition goes back at least to 1987. It was investigated by various doctors consulted by the applicant and X-rays taken. At various times medications were prescribed but, apparently because of her stomach condition the applicant could not persevere with the treatment. Dr Lee appeared more concerned with her psychiatric condition and gave priority to its treatment instead of the back condition.
It is submitted by Ms Duggan that the condition now described by the specialist, Dr Ting, has not developed since the date of the application but has been investigated by at least three different doctors and treated, without much success, over many years before. The question arises as to why the other doctors were not persevering with treatment of the back and associated conditions, on the one hand because it was stabilised and little could be done because of the applicant's other conditions, or because it was not of the immediate concern that her anxiety state was.
Without direct evidence the Tribunal could not be assisted by the doctors. It is sufficient to satisfy DSP requirements for the applicant's back condition to be accepted as an existing condition at the time of her application, or three months later. Dr Ting did not report recent deterioration and no contrary evidence was offered. Hence from the evidence, on the balance of probabilities, the Tribunal is of the view that the back condition did exist in April 1999, if not at the severity found by Dr Ting a little over a year later (45 impairment points), then at a level of impairment that would rate at least 20 points.
In respect to the anxiety/depression Dr Cole rates this as stabilised and rates it with 20 impairment points. When the Tribunal compares his report with that of Dr Datta and those of Dr Lee and the documentation from the Western Hospital it is not so clear that her psychiatric condition has not deteriorated since April 1999. The Tribunal is not satisfied that this condition was there at its current severity when the application was made.
In the circumstances the Tribunal is satisfied that the back and associated conditions existed at sufficient severity to meet the requirements for DSP at the time of the application pursuant to s 94(1)(a) and (b).
It is necessary to decide whether there was a "continuing inability to work" as required by s 94(1)(c). The Tribunal notes Dr Ting's expressed view that she was unfit for any manual employment and will be likely to remain so and the view of Dr Cole that the whole range of her vocational, educational and medical conditions, not only her psychiatric condition but including it, means she is totally and permanently incapacitated for any form of employment. Considering these circumstances the Tribunal is of the view that the applicant satisfies the additional requirement of having a "continuing inability to work" pursuant to s 94(2), (3) and (5).
Conclusion

The Tribunal will find that the applicant's back and associated conditions were at the time of application sufficient to qualify her for a DSP.
I certify that the fifty-three (53) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J.T.C. Brassil, AM, Member
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  8 September 2000
Date of Decision  2 April 2001
Counsel for the Applicant        Ms A. Duggan
Solicitor for the Applicant         Harry Norwicki & Co.
Solicitor for the Respondent    Ms E. King, Centrelink