Richard and Secretary, Department of Employment and Workplace Relations

[2007] AATA 2048

Administrative Appeals Tribunal

DIRECTION AND REASONS FOR DIRECTION [2007] AATA 2048

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200601237

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		ALFRED RICHARD

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DIRECTION

Tribunal Dr Kerry Breen, Member

Date13 December 2007

PlaceMelbourne

Direction

In accordance with s 33(2A)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal directs that:

(a)      Centrelink arrange for an independent expert psychiatrist to assess and report upon Mr Richard’s depression, the prognosis of the depression, any relationship of the depression to his back and pelvis pain, and any likely effect of his medical conditions upon his capacity to undertake any work or undertake retraining directed at overcoming his illiteracy;

(b)      Centrelink shall provide a copy of these reasons to the independent psychiatrist referred to in sub‑paragraph 25(a); and

(c)      when that report is available the matter be re‑listed for a resumed hearing before me.

Kerry Breen

Member

PRACTICE AND PROCEDURE ‑ disability support pension – lower back, pelvis and hip pain – depression ‑ impairment rating 20 points – capacity to retrain – psychiatric assessment required.

Social Security Act 1991 s 94(1)

Social Security (Administration) Act 1999 Schedule 2, sub-clause 4(1)

REASONS FOR DIRECTION

13 December 2007 Dr Kerry Breen, Member

1.      Mr Alfred Richard is a 43 year old man who has had very little education. Since commencing work at 15 he has worked as a labourer, a fork lift driver and in other manual roles.  He injured his back at work in 2000 and after a short time off work, he gradually returned to work.  By October 2001 he was working 7 hours per day in slightly modified duties.

2.      On 21 October 2001 Mr Richard was a passenger in the front seat of a car which was struck on the passenger side by another vehicle which had ran a red light.  He was briefly unconscious and was trapped in the car.  He was found to have multiple fractures to the left half of his pelvis as well as fractures to his lower spine.  He was in hospital for four days and spent the next 11 weeks in bed at home.

3.      Since that time Mr Richard has sought treatment for persistent pain in the lower back, left hip and pelvis, and left leg.  He has also become depressed and has attended a psychiatrist regularly for several years.  He applied to Centrelink, which is the service delivery agent for the Secretary to the Department of Employment and Workplace Relations (the respondent), for disability support pension (DSP) in September 2004 for lower back pain, left hip and leg pain and right shoulder pain. That application was rejected by Centrelink on 11 November 2004.  Centrelink’s decision was affirmed by an Authorised Review Officer (ARO) on 20 December 2004 and by the Social Security Appeals Tribunal (SSAT) on 24 February 2005.  Mr Richard applied for review of the SSAT decision to this Tribunal.  This Tribunal affirmed the decision on 24 August 2005.

4.      Mr Richard lodged a new application for DSP on 30 March 2006.  Centrelink rejected his new application on 25 May 2006 on the basis that Mr Richard’s back condition and hip condition did not attract at least 20 impairment points under the Tables for the Assessment of Work‑Related Impairment for Disability Support Pension (the Impairment Tables) under Schedule 1B of the Social Security Act 1991 (the Act).  The decision was affirmed by an ARO on 18 September 2006.  The ARO also considered Mr Richard’s depression which was briefly mentioned in the Treating Doctor’s Report of Dr A Asthana dated 29 March 2006.  The decision was affirmed by the SSAT on 22 November 2006.  The SSAT found that Mr Richard suffered from a back condition, a hip condition and depression.  The SSAT allocated ten impairment points under Table 5.2 of the Impairment Tables for his back condition, ten impairment points under Table 4 for his hip condition and nil points under Table 6 for his depression.  The SSAT determined that Mr Richard was able to undertake retraining, particularly in relation to literacy and numeracy skills, which would permit return to full time light work.

5.      Mr Richard contends that he remains very restricted in what he can do on a daily basis.  This is partly because of ongoing pain in the lower back, hip and left leg and partly because of his depression.

6.      The respondent contends that the SSAT, via the use of Tables 4 and 5.2 of the Impairment Tables, double counted in allocating impairment points for Mr Richard’s conditions. The respondent contends that Mr Richard’s back and hip pain should be assessed under Table 20 of the Impairment Tables. The respondent asks that I accept a rating of 15 points under Table 20 for Mr Richard’s back and hip pain and nil points under Table 6 for depression. Even if I were to find that Mr Richard has 20 impairment points, the respondent further contends that Mr Richard does not have a continuing inability to work in accordance with the criteria at section 94(1)(c)(i) of the Act.

ISSUES AND LEGISLATION

7.      The issues in this case are drawn from section 94 of the Act and can be paraphrased as follows:

During the relevant period:

(a)did Mr Richard have an illness or impairment?

(b)had that illness been fully investigated, stabilised and treated?

(c)did the illness cause an impairment which rates at least 20 points under the Impairment Tables? and

(d)did Mr Richard have a continuing inability to work because of that impairment?

8. The relevant legislation includes s 94(1) of the Act, the Impairment Tables and sub‑clause 4 in Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act).

9. The Introduction to the Impairment Tables in Schedule 1B of the Act provides as follows:

...

4.        A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.  The first step is thus to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

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.

…

Does Mr Richard have an Illness/Impairment?

10.     I was provided with the following medical reports:

·Dr Asthana (Mr Richard’s general practitioner dated 24 April 2004, 21 September 2004, 18 November 2004, 22 September 2005, 20 February 2006, 29 March 2006 and 23 March 2007;

·Dr D Parekh (Mr Richard’s treating psychiatrist) dated 10 December 2003, 7 February 2007 and 26 March 2007;

·Dr L Naumoski (Health Services Australia (HSA)) dated 18 November 2004 and 6 December 2004; 

·Dr P Tutton (HSA) dated 24 April 2006; and

·Dr James, an advanced trainee in occupational medicine, dated 16 July 2007.

Several reports sent to the SSAT by Kenyons Lawyers on 1 November 2006 which included reports from:

·Dr P Turner, orthopaedic surgeon, dated 16 March 2001, 18 May 2001, 15 April 2002, 21 July 2003, 8 April 2005 and 1 February 2006;

·Dr K King, orthopaedic surgeon, dated 16 May 2006;

·Dr C Thomas, consultant in rehabilitation and pain medicine, dated 1 April 2004, 13 April 2005 and 22 March 2006.  These reports indicated that he been a treating specialist as well as having been asked to provide a medico-legal report to Kenyons;

·Dr B Carp, general practitioner dated 15 April 2002; and

·Dr H Sutcliffe, occupational physician, dated 30 September 2003 and 20 March 2005.

11.     These extensive and multiple medical reports, the majority covering the years from Mr Richard’s motor vehicle accident in 2001 to mid-2007, provide consistent evidence to satisfy me that Mr Richard has physical impairments and a psychiatric impairment and that these were present at the time of his DSP claim on 30 March 2006.  With regard to his physical impairment, I note the report of Dr King, orthopaedic surgeon, who wrote on 16 May 2006:  Ever since the accident he would appear to have been chronically severely disabled by low back and left pelvic pain and by an irritable hip.  Although using slightly different terminology, these clinical diagnoses are supported by Dr James, Dr Tutton and Dr Naumoski from HSA.

12.     With regard to Mr Richard’s psychiatric impairment, I note the evidence that he has regularly attended consultant psychiatrist Dr Parekh since July 2003 and has been treated with a range of medications by Dr Parekh.  Although Dr Asthana has not always remarked upon this aspect of Mr Richard’s health, he does comment on Mr Richard’s chronic depression in his treating doctor’s report completed on 29 March 2006.  Dr James, in June 2007, took a history consistent with anxiety and depression commencing approximately 18 months after Mr Richards motor vehicle accident. Neither Dr Tutton nor Dr Naumoski recorded any history of symptoms of depression or of Mr Richard’s attending a psychiatrist.

13.     Thus I am satisfied that at the relevant time, that is from 30 March 2006 and for 13 weeks thereafter, Mr Richard suffered from chronic pain in the lower back, left side of the pelvis and left hip and that he suffered from depression.

Have Mr Richard’s illnesses been Fully Investigated, Treated and Stabilised?

14.     The evidence before me leaves little doubt that Mr Richard’s back, pelvis and hip conditions have been fully investigated and that he has been offered appropriate treatment by his general practitioner, orthopaedic surgeon and pain management specialist.  The level of symptoms reported by Mr Richard to specialist doctors he has been referred to for management advice between 2003 and the time of the second claim for DSP (Drs Turner and Thomas) as well as the reports of others who have assessed him during those years has been remarkably consistent and thus I have no doubt that these conditions have been fully treated and stabilised.

15.     Similarly, with regard to his depression and anxiety, it is clear to me from the report of Dr Parekh, and the more recent report of Dr James, that Mr Richard’s psychiatric health issues have been adequately investigated, treated and stabilised. In addition, at the Tribunal, Mr Richard described to me his continuing five weekly visits to Dr Parekh, his ongoing use of medication for depression and his fluctuating moods.

Do these illnesses attract an impairment rating of at least 20 points under the Impairment Tables?

16. The findings of earlier decision-makers (SSAT and Centrelink) and the recommendations by HSA and the job capacity assessor, Ms W Hall‑Wiggins, occupational therapist, dated 5 July 2005, in regard to Mr Richard’s impairment are not consistent. Having regard to the assessment made by Dr King, orthopaedic surgeon, I believe that it is possible to separately diagnose impairments in regard to Mr Richard’s lower back, left pelvis and left hip. However, consistent throughout all the medical reports available to me is the theme of these conditions predominantly causing chronic pain, rather than other specific impairments. Thus, I accept the contention of the respondent that Table 20 of the Impairment Tables in Schedule 1B of the Act is the appropriate table to use.

17.     The only evidence available to me from a doctor who has turned her mind to the use of Table 20 is that of Dr James.  Dr James is identified in her report as an advanced trainee physician.  It is less than ideal that I am required to make a decision in this matter based solely on the report of a trainee physician.  Although, Dr James’s report is co-signed by Dr D Gras, occupational physician, Mr Richard’s evidence to me was that he was not seen by any doctor other than Dr James.  This evidence was not contested.

18.     Dr James allocated 15 impairment points for Mr Richard’s chronic pain disorder in his lower back and left leg.  Under Table 20, 15 points may be allocated where (inter alia):

…Symptoms may have mild to moderate impact on ability to perform or persist with work‑related tasks and/or to attend work.  Full time work would still be possible.

I find that this allocation underestimates the degree of impairment that has been described by Mr Richard to me and to most of the professionals he has consulted. As described by Dr Tutton in 2006 …The condition interferes with walking, climbing, squatting and kneeling … and had problems negotiating stairs and slopes.  Dr Sutcliffe in 2005 reported …constant unremitting pain which increased with walking, standing and sitting.  Dr Thomas in 2005 reported that Mr Richard described:

…difficulty twisting or bending and at times the pain prevents him from getting out of bed in the morning and has no difficulty walking for up to 10 minutes, but has difficulty walking beyond that.

Dr Thomas observed that Mr Richard had an antalgic gait and he walked very slowly and tentatively.  Dr James report of 2007 includes mention of antalgic gait and required assistance in removing and putting on his socks.

19.     Under Table 20, 20 impairment points may be allocated if the following criteria are met:

More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work–related tasks. Symptoms may cause prolonged absences from work.

Having regard to the disability Mr Richard described to me, to the SSAT and to numerous assessors as already outlined, I believe that the preferred allocation under Table 20 should be 20 impairment points.

20.     Coming to Mr Richard’s depressive state, I note that Dr James has chosen to put to one side her findings of dysthymia with lowered mood, anhedonia, low self esteem, poor motivation and anxiety and her observation that using the Beck Depression and Anxiety Inventories… he scored in the severe range.  While her decision to put these findings of quite serious depression to one side is understandable in that she was asked to retrospectively assess his depression as at March 2006, I am very reluctant to accept this.  Dr James is a trainee physician and is not training to be a psychiatrist.  In my view it would have been preferable if Dr James had either taken note of several years of treatment under the care of a psychiatrist for depression (ie for the same condition she was observing with her own eyes) or had suggested that an assessment of an experienced independent psychiatrist should be sought.

21.     Theoretically, if such independent psychiatric advice were available to me and if that advice indicated that Mr Richard’s depression during the relevant period would have drawn impairment points, this would have impacted on the decision I am now asked to make.  Mr Richard’s capacity to undertake any work or retraining will in my view be strongly influenced by the interplay between his chronic pain condition and his ongoing depression.  I note that this is the opinion of his treating psychiatrist Dr Parekh who on 26 March 2007 stated This depression is an ongoing one and will continue as long as he cannot recover from his physical disability.  I have not been provided with any other psychiatric advice to the contrary.  Dr Parekh elsewhere noted that Mr Richard’s depression affected his ability to concentrate, an important practical issue should Mr Richard be asked to engage in retraining.

22.     It needs to be emphasised that the retraining that has been recommended is intended to overcome Mr Richard’s illiteracy.  Mr Richard’s evidence to me was that he had attended school in Malta until the age of about 12.  He was taught in the Maltese language and was moved up a class every year without ever learning to read or write.  His family brought him back to Australia at about 12 years of age and shortly afterwards he joined the workforce.  He has taught himself to read a little of the newspapers but cannot write. 

23.     Again theoretically, if I were only assessing Mr Richard’s capacity to undertake any work or training in relation to the physical aftermath of his injuries (pain, limp, restricted movements etc,) I may come to the same conclusion as did the SSAT.  However, having seen and heard from Mr Richard and his wife, and having regard to the intimation of very severe depression contained in the report of Dr James, I believe I should not make any decision at present.

24.     Instead I direct that Centrelink obtain an independent specialist assessment of Mr Richard’s psychiatric health.  That report should, among other things, attempt to assess the degree of depression experienced by Mr Richard during the thirteen weeks following 30 March 2006, assess whether that degree of depression made him unable to work; and should address the question of the potential benefits (including expected outcomes in an illiterate male of 43 years) versus any potential harms of referring Mr Richard for retraining, should he be found to have been significantly depressed at the relevant time.

25. In accordance with s 33(2A)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal directs that:

(a)Centrelink arrange for an independent expert psychiatrist to assess and report upon Mr Richard’s depression, the prognosis of the depression, any relationship of the depression to his back and pelvis pain, and any likely effect of his medical conditions upon his capacity to undertake any work or undertake retraining directed at overcoming his illiteracy;

(b)Centrelink shall provide a copy of these reasons to the independent psychiatrist referred to in sub‑paragraph 25(a); and

(c)when that report is available the matter be re‑listed for a resumed hearing before me.

I certify that the twenty‑five [25] preceding paragraphs are a true copy of the reasons for the decision of:

Dr Kerry Breen, Member

(sgd)     Olympia Sarrinikolaou

Clerk

Date of hearing:  9 November 2007

Date of direction:  13 December 2007
Advocate for the applicant:          Self‑represented
Advocate for the respondent:       Ms K. Paul, Centrelink Legal Services Branch