Ruiz and Department of Family and Community Services
[2000] AATA 903
•16 October 2000
DECISION AND REASONS FOR DECISION [2000] AATA 903
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1281
GENERAL ADMINISTRATIVE DIVISION )
Re JOSE RUIZ
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr J D Campbell
Date16 October 2000
PlaceSydney
Decision The Tribunal affirms the decision under review.
..............................................
Dr J D Campbell
Member
CATCHWORDS
Social Security - disability support pension - multiple conditions - assessment - inability to work
Social Security Act 1991, sections 94,100, Schedule 1B
REASONS FOR DECISION
Dr J D Campbell
Mr J Ruiz ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal ("the SSAT") dated 5 August 1999 which affirmed the decision of an authorised delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 4 February 1999 that the Applicant did not qualify for a disability support pension. This decision had been affirmed by the decision of an authorised review officer dated 18 March 1999.
A hearing was held in Sydney on 4 April 2000, at which the unrepresented Applicant presented oral evidence. Dr Johnson also gave evidence by telephone. The Respondent was represented by Mr Lozynksy, an advocate from the Administrative Law Section of Centrelink.
The following evidence was placed in evidence before the Tribunal:
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1-T39 pp1-201
Medical Report of Dr Takas dated 7 October 1999 Exhibit A1
Medical Report of Dr Takas dated 4 November 1999 Exhibit A2
Statement of Mr Ruiz dated March 1999 Exhibit A3
Medical Report of Dr Johnson dated 13 October 1999 Exhibit A4
Respondent's statement of facts and contentions dated 29 March 2000 Exhibit R1
Medical Report of Dr Rogers dated 24 February 2000 Exhibit R2
Document relating to CARE employment Exhibit R3
issues
The relevant issues before the Tribunal were:
1.whether the Applicant has a physical, intellectual or psychiatric impairment and that impairment is 20 points or more under the impairment tables in Schedule 1B of the Social Security Act 1991; and
2.if so, whether or not the Applicant has a continuing inability to work because of the impairment because -
·the impairment of itself prevents the Applicant from doing any work for at least 30 hours per week at award wages within the next two years; and either
·the impairment of itself is sufficient to prevent the Applicant from undertaking educational or vocational training or on-the-job training during the next two years; or
·such training is unlikely (because of the impairment) to enable the Applicant to do any work for at least 30 hours per week at award wages within the next two years.
legislation
The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular subsections 94(1), (2), (3), (4) and (5), 100(3) and the tables for the assessment of work-related impairment for disability support pension ("Schedule 1B Impairment Tables").
background
The Applicant lodged a claim for disability support pension on 18 January 1999 (T22). A treating doctor's report was lodged on 23 January 1999 (T23). A whole person assessment had been undertaken by a Health Services Australia Medical Practitioner on 1 December 1998 (T20). The Applicant's claim for disability support pension was denied on 4 February 1999 (T26). This decision was affirmed by an authorised review officer on 18 march 1999 (T34) and by the SSAT on 5 August 1999 (T2).
evidence: the applicantThe Applicant told the Tribunal that he had been sick for a long time, that he is aged 56 and that he is not getting any better. The Applicant finds that he gets confused and takes the wrong train; that he is forgetful; that he has not been able to function normally for a very long time; and that sometimes he is momentarily good, but on other occasions cannot remember what he is up to. The Applicant further stated that he wakes up five times a night to urinate; that he is awaiting another prostate operation; that he has difficulty sleeping; that he gets confused and loses concentration; that his short term memory is poor; and that he can only sit for 30 minutes.
The Applicant indicated to the Tribunal that he was often anxious and felt sad and lonely; that he has mood swings and is anti-social, often arguing with people; and that he suffers from heartburn.
The Applicant described the various medical conditions to the Tribunal in the following terms:
(a) back pain: has experienced central low back pain for the last nine to ten years with occasional radiation to left leg; that this pain is worse in cold weather; restricted when bending forward; does not experience real difficulty with stairs; and can walk for 500 metres.
(b) neck pain: has experienced some pain in neck posteriorly; no limitation of neck movements.
(c) prostate: cytoscopy six years ago; transurethral resection in 1999; still experiences frequency at night, together with some difficulty in micturition.The Applicant stated that he eats well on occasions; that he does not go out much and that he does not have a car; that he has few friends and any that he has he argues with; that he attempts to give directions to people when he travels on trains; and that he spends his day watching television, sleeping, shopping, cleaning the house, retiring to bed at about 11pm.
The Applicant told the Tribunal that he had been educated through primary and secondary school and a three year accounting course in Mexico, before moving to America. In 1969 he moved to Australia where he has worked as a retailer of jewellery, a car salesman and a real estate salesman, being made redundant from the last activity in 1990. He further stated that he has a 19 year old daughter who no longer lives with him, and that his de facto partner and mother of his daughter left the relationship some years past. The Applicant stated that he does not care about work and has no feeling as regards undertaking courses. It is his desire to be left alone. He is not interested in reading.
dr johnsonIn telephone evidence, Dr Johnson stated that he has been the treating doctor since 1995 and that the Applicant's main medical conditions were:
(a)his emotional state: used to be self-employed; has become
depressed; feels that he will not be able
to function in the work force;
(b)prostate: has had surgery and continues to
experience difficulty with micturition; and
(c)low back pain
In cross examination Dr Johnson made the following further observations:
(a) mental state: gloomy, argumentative and aggressive, aggressive in public, agoraphobic, pessimistic, unhappy. All aggravated by his social isolation and the presence of only a few relatives in Australia. Depressed because of his illness and his inability to find work. Treated for depression in 1995 with Prozac and referred for psychiatric evaluation in July 1999. There is no history of panic attacks or of a suicidal tendency. Moderate to severe depression; anti-social behaviour; memory and concentration affected.
(b) low back pain: chronic pain for many years; 50% loss of normal range of lumbosacral movement; difficulties with bending, lifting, and prolonged sitting; 20 point impairment rating. No anti-inflammatories or analgesics. June 1999 – x-ray indicating early spondylosis; no disc prolapse; no nerve root compression.
(c) cervical spine: spondylosis (1997) – treated with aspirin.
(d) prostate: continuing problems with nocturnal frequency and micturition despite bladder neck resection in 1999.
medical evidence
In a treating doctor's report dated 12 February 1996, Dr Johnson described the Applicant's conditions as depression since 1992, anxiety since 1992, hypertension (1990) controlled by medication, and that all conditions were stable (T3). Medical reviews were completed on 22 May 1996 in which Dr Johnson noted the onset of depression and anxiety as being 1994 (T6). Similarly, on 9 October 1996, he made the added notation that the depression and anxiety conditions were deteriorating and therapy with Prozac was commenced.
A whole person assessment was undertaken on 6 December 1996 by Dr Lamond, who recorded a history of anxiety and depression since 1984, and that the Applicant was unfit for three to six months (T8, p46).
In a treating doctor's report dated 17 February 1997, Dr Johnson confirmed the existence of the earlier nominated conditions and noted the existence of prostatic hypertrophy as a new condition (T9). In a further report of 11 September 1997, Dr Johnson affirmed the existence of the earlier nominated conditions with the year of onset for the anxiety/depression being noted as 1995 (T10).
A whole person assessment was undertaken by Dr Rogers on 1 September 1997 and the following opinion stated on 25 September 1997:
"After leaving school Mr Ruiz completed an accountancy certificate in Mexico. He has mainly worked as a salesman. He was retrenched from his last job as a salesman in 1988. His depression is not severe now and presumably has improved. He in only on a small sedative dose of imipramime and does not consult a psychiatrist. There are no significant biological symptoms of depression and no abnormalities on mental state examination. He is socially isolated – all his relatives are in Mexico and he has found it difficult to keep his social contacts in Australia. His prostate problems would not prevent work. He is thinking about trying to obtain financial help to open a small business. He is fit for work but would benefit from a graduated return to work programme." (T11, p76)
In a treating doctor's report dated 12 March 1998, Dr Johnson confirmed the continuing existence of the nominated conditions, noting in turn that there had been some prostatic surgery (T13).
A whole person assessment was undertaken by Dr Roberts on 14 April 1998, and as a consequence the Applicant was referred to Dr Lovell, a consultant psychiatrist, for an opinion (T14, p192). In a report dated 9 July 1998, Dr Lovell stated the following opinion:
"Mr Ruiz has received sickness benefits since being retrenched from a sales position for a real estate agency. His hypertension is well controlled. His prostatitis has been treated with a transurethral resection of the prostate. He takes no medication for anxiety or depression nor does he attend a psychiatrist. He description of psychological symptoms appeared to be based on information provided about depression and was not consistent with Major Depression or generalised anxiety disorder or panic disorder of such severity as to prevent him working. I believe that he is currently fit for full time work. He speaks excellent English and has sales skills. Unfortunately he is handicapped by his age and the fact that his accountancy qualifications are not recognised in Australia. His childhood experience is that others look after him and this appears to currently feature in his belief that he should be cared for by the social welfare system." (T16, p106)
In a treating doctor's report dated 24 September 1998, Dr Johnson affirmed the existence of the earlier nominated conditions and confirmed that the prognosis for the prostatitic condition, the anxiety and depression was poor and for the hypertension guarded.
In a whole person assessment report dated 1 December 1998, Dr Rogers noted the existence of the benign prostatic hypertrophy, mild hypertension and mild intermittent low back pain after heavy lifting and in cold weather. Dr Rogers noted that there was a near normal range of movement of the lumbosacral spine and that this was the first occasion on which this condition had been noted. He further noted that the Applicant was in the recovery phase of hepatitis and that he was taking Prozac intermittently when he felt anxious (T20).
In the treating doctor's report accompanying the Applicant's claim for disability support pension dated 23 January 1999, Dr Johnson affirmed the existence of the earlier nominated conditions and included two future conditions, namely cervical spondylosis and lumbar discopathy with the Applicant experiencing low back and cervical pain. Dr Johnson also opined that the Applicant's work ability would be restricted by work absenteeism, work endurance patterns, substantially diminished dexterity and inability to lift, carry and move objects. Dr Johnson also stated that the hypertension condition was stable (T23).
In a letter dated 16 February 1999, Dr Johnson stated that the Applicant was suffering from severe bouts of depression and anxiety, benign prostatic hypertrophy with nocturnal frequency, poorly controlled hypertension, and a recent bout of hepatitis.
In a radiological report dated 10 June 1999 Dr Larbalestier, a consultant radiologist, reported that in relation to the lumbar spine, the Applicant had a stage two spondylolisthesis with early changes of lumbar spondylosis (T37).
In a report dated 7 July 1999 Dr Takas, a consultant psychiatrist, opined that the Applicant has a chronic dysthymic disorder, possibly with a superimposed secondary major depression. Dr Takas increased the Applicant's medication to 150 mgs a day of Efexor (T38).
In a further report dated 19 July 1999, Dr Johnson considered the Applicant to have an impairment rating of 20% for the psychiatric condition, 10% for the lumbar spine for loss of normal range of movement, as well as back pain with most physical activities and 10% for loss of strength in lower limbs (T39).
In two further reports dated 7 October and 4 November 1999, Dr Takas confirmed that the Applicant had an affective disorder, that the impairment rating was 20%, and that the Applicant would not be able to work for at least two years (Exhibits A1, A2).
In a further report dated 13 October 1999, Dr Johnson made the following assessment of the Applicant's conditions:
psychiatric Impairment 20 points.lumbar back pain 20 points – loss of movement and back pain with
most activities.
hypertension labile blood pressure and increasing headaches.
allergy to medication (Exhibit R4)
In a report dated 24 February 2000, Dr Rogers, a medical adviser, made the following conclusion as a result of reading the file and the reports from Dr Takas and Dr Johnson:
"To summarise I have considered all the reports of Dr Takas and Dr Johnson on their merit and I do not think there is good evidence of a permanent depressive condition of a severity to warrant an IR of 20 under Table 6. The back causes minimal functional loss and apparently was never thought significant enough to mention prior to 1999. I cannot change the existing recommendation or impairment rating with this information. I consider that Mr Ruiz has a combined Permanent Impairment Rating of 10 as was determined by the SSAT." (Exhibit R2)
submissions
The Applicant submitted that he had the particular disabilities which he had consistently nominated and that on appropriate assessment his combined impairment rating would be greater than 20 points using the Schedule IB Impairment Tables. In so submitting the Applicant relied upon the evidence and opinion of Dr Johnson and Dr Takas. The Applicant placed similar reliance upon these two doctors in submitting that he had a continuing inability to work.
The Respondent contended that the appropriate assessment of the Applicant's impairments under the Schedule 1B Impairment Tables was less than the 20 points required. In this issue they relied upon the many examinations of the various medical advisers and the opinion of Dr Lovell. The Respondent placed similar reliance on these opinions in submitting that the Applicant does not have a continuing inability to work.
considerations and findings:In preliminary comment the Tribunal notes that subsection 100(3) of the Act focuses the Tribunal's consideration on the nature and assessment of the various impairments at the date of the claim and for a period of three months thereafter. Material that exists outside this period ("the operative period") can be used by the Tribunal, but only to better understand the nature and effects of the impairments that existed during the operative period.
The Applicant's claim for disability support pension was made on 18 February 1999, with the operative period ceasing three months from the day after the claim was lodged. In this regard the reports of Dr Takas and the later reports of Dr Johnson and the medical advisers fall into the category of material which can only be used by the Tribunal to gain a better understanding of the Applicant's impairment during the defined operative period.
The Tribunal in considering this matter notes the following relevant legislation, namely subsections 94(1) in part, (2), (3), (4), and (5):
"94 Qualification for disability support pension
(1)A person is qualified for disability support pension if:
(a)the person has physical, intellectual or psychiatric impairment and
(b)the persons impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies
(i)the person has a continuing inability to work;…
94(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and
(b)either:
(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on- the- job training during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training - such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
94(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of educational or vocational training or on-the-job training, or
(b) if subsection (4) does not apply to the person – the availability to the person of work in the person's locally accessible labour market94(4) For the purpose of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.
94(5) In this section:
educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychological impairments.
on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments
work means work(a)that is for at least 30 hours per week at award wages or above; and
that exists in Australia, even if not within the person's locally accessible labour market."
In turning to the issue of what medical conditions existed during the operative period, the Tribunal has given particular attention to the conditions the Applicant nominated in his application for disability support pension on 23 January 1999 (T23) and the whole person assessment report undertaken by Dr Rogers on 1 December 1998 (T20). The Tribunal also considered the various medical reports from 12 February 1996 onwards to the operative period and the various medical reports thereafter (after the end of the operative period) including the radiological reports but only in the context of where they assisted in the Tribunal's understanding of what conditions existed and the effects thereof on work ability during the operative period. As a consequence the Tribunal finds that the following conditions existed during the operative period and that they were associated with the following clinical features, and effects on the Applicant's work ability, with an assessment being undertaken under the appropriate Schedule 1B Impairment Tables.
(a) Lumbar Spondylosis
X-ray evidence shows early stage lumbar spondylosis with a stage two spondylolisthesis. Clinical features of low back pain, intermittent in nature but worse with most activities and in cold weather. The Applicant stated that it had been present for 9-10 years, but the first clinical documentation was made by Dr Rogers in December 1998 (ie available in the material). Dr Rogers noted a near normal range of lumbosacral movement, and there is no further documented evidence of range of movement limitation of the lumbosacral spine until well after the operative period is concluded. In neither of Dr Johnson's reports dated 19 July 1999 and 13 October 1999 is mention made of an undefined loss of normal range of lumbosacral movement.
As a consequence of the clinical findings enumerated, the Tribunal concludes that the Applicant does have the physical impairment of lumbar-spondylosis associated with intermittent low back pain and for which no medication was taken during the operative period. The Tribunal further finds that this impairment is associated at the operative period with a near normal range of thoracolumbar sacral spinal movements with the intermittent low back pain becoming increasing with various physical activities and in cold weather. The Tribunal, in view of the clinical findings assesses that the Applicant has a nil points impairment rating under table 5.2 of the Schedule 1B Impairment tables. Further the Tribunal does find that this impairment will restrict the Applicant's ability to lift, bend and carry frequently.
(b) Cervical Spondylosis
This diagnosis was made by Dr Johnson. There is no further clinical documentation relating to this condition, although the Applicant does complain of headaches, while also stating there is no limitation of movement of the neck. In the absence of the necessary and particular clinical documentation on this condition, the Tribunal finds that an impairment rating cannot be granted as there is insufficient clinical evidence to support the diagnosis and there is no evidence of any therapy being instituted. In the alternative, on the limited evidence available, the Tribunal would assess the impairment with a zero points impairment rating under Table 5.1.
Further the Tribunal finds that this condition has no defined effect on the Applicant's ability to work, such a finding being made in the absence of evidence to the contrary.
(c) Hypertension
The hypertension appears to be well controlled at the operative period (T23) and while in later reports Dr Johnson talks of some lability, there is no evidence of a change in therapy. It is the Tribunal's assessment that the Applicant has a zero points impairment rating under Table 20.
(d) Prostatic Hypertrophy
The Tribunal finds that there is particular evidence to support this diagnosis and that treatment is continuing in an attempt to minimise the continuing symptomology of nocturnal frequency and difficulties with micturition. An assessment of the impairment by the Tribunal is inappropriate at this point in that the condition, whilst diagnosed, is still in the process of being treated. Such an assessment or indeed non-assessment is consistent with paragraphs 5 and 6 of the introductory comments to the Impairment Tables.
(e) Depression with Anxiety:
The Tribunal notes the Applicant's list of symptomology in this regard and also the opinions of the treating doctor and Dr Rogers. The opinion of Dr Lovell is noted as is its date (July 1998), as well as the opinion of Dr Takas and the date of that opinion (July 1999). It is the Tribunal's finding that the Applicant does have a psychiatric disorder, characterised by features of depression and anxiety and that this had been treated intermittently with Efexor. It is the Tribunal's finding that the Applicant's psychiatric impairment is consistent with an impairment rating of 10 points under Table 6 of the Impairment Tables. In making such a finding the Tribunal has paid particular attention to the Applicant's symptomology as stated by himself and as interpreted by the medical practitioner, with particular reference to those reports in or leading up to the operative period.
(e) Hepatitis
A resolving condition with no impairment rating given as the condition is temporary.
In summary the Tribunal finds that the Applicant has particular physical and psychiatric impairments and that the combined assessment of these impairments is 10 points under the various Schedule 1B Impairment Tables. It is the Tribunal's further finding that the Applicant, while satisfying subsection 94(1)(a), fails to satisfy subsection 94(1)(b) and therefore does not qualify for disability support pension in relation to this particular claim.
Further, and for the sake of completion, the Tribunal, in acknowledging the limitation placed on his work ability by his impairments, and the opinions of Drs Lovell, Rogers and Johnson, finds that the Applicant does not have a continuing inability to work. In so finding, the Tribunal has given preference to the opinions expressed by Drs Lovell and Rogers, in that while the former opinion was in July 1998, there is no evidence nominated which demonstrated a particular change in the Applicant's psychiatric condition after that time, with any symptomology described by Dr Johnson being consistent throughout the period in question.
The Tribunal, in summary, finds that during the operative period the Applicant did not have a continuing inability to work, in that he had the ability to work after his continued recovery from hepatitis, ie within a period of three months, and at that stage would be able to undertake light and/or moderate skilled, semi-skilled or lesser skilled work. Similarly his impairments did not prevent him from undertaking vocational, educational or on-the-job training programs, and having undertaken such programs his impairments were not likely to prevent him from working within the next two years.
As a result of the Tribunal's finding, the Applicant fails to satisfy subsection 94(1)(c)(i) of the Act, in that he has failed to satisfy subsection 94(2)(a) and 94(2)(b)(i) and (ii) of the Act. Again and for this reason the Applicant fails to qualify for a disability support pension in relation to this claim.
The Tribunal affirms the decision under review.
I certify that the thirty-nine (39) preceding paragraphs are a true copy of the reasons for the decision herein of DR JD CAMPBELL.
Signed: .....................................................................................
AssociateDate of Hearing 4 April 2000
Date of Decision 16 October 2000
Representative for the Applicant Self RepresentedRepresentative for the Respondent George Lozynsky
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