Sande and Secretary, Department of Family and Community Services

[2005] AATA 497

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 497

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/547

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL SANDE

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal M Griffin, Member

Date30 May 2005

PlaceSydney

Decision The decision under review is affirmed.

[SGD] M Griffin   Member

CATCHWORDS

SOCIAL SECURITY - disabilities support pension - hypertension, high cholesterol, back injury, neck injury, depression, headaches - less than 20 points under the Impairment Tables - decision affirmed.

Social Security Act 1991 - section 94 and Schedule 1B

REASONS FOR DECISION

30 May 2005 M Griffin, Member

1.      Mr Sande suffered an injury in a motor vehicle accident in 1994. In the same year he suffered further injury when he slipped on some stairs. He has not worked since then. In 1995 he applied for the disability support pension (“DSP”) for neck pain and low back pain and associated headaches and minor reactive depression. The application was refused. Mr Sande appealed that decision to the Social Security Appeals Tribunal (“SSAT”). In February 1999 the SSAT decided that he was entitled to the DSP. In 2003 the DSP was reviewed. Mr Sande was considered to have a total impairment rating of 10 points and the capacity for light full time work. The DSP was therefore cancelled on 23 September 2003 but resumed pending review until 30 April 2004. An authorised review officer (“ARO”) affirmed the cancellation on 26 February 2004. The SSAT affirmed the cancellation on 19 April 2004. That decision is the subject of this review application.

2. A hearing was conducted on 16 March 2005. Mr Sande was self represented. Mr Kenny, a Centrelink Advocate appeared for the Respondent. The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T-documents”) and a letter from Mr Sande’s treating medical practitioner, Dr Dagher dated 4 November 2004.

evidence

3.      Mr Sande told the Tribunal that he suffered pain in his neck, a pain in his forehead and sometimes “I feel my eyes are foggy and also I have a pain in my lower back, the pain will get worse and going to my buttock and I can’t walk, I start limping. Sometimes I feel numbness in my left arm and also my right arm but the left arm more and it’s worse when it’s cold.”

4.      At this point Mr Sande used both arms to lift himself out of the chair in which he was sitting and stood up. He then said “I feel pain in my shoulders and it goes down to my hands and sometimes I can’t even close my hands.”  Mr Sande said that he suffers from hypertension, high cholesterol, pain in the stomach and “I take medication but it makes me depressed. I become nervous and depressed”.

5.      Mr Sande produced the medication he takes, which included Lipex for his cholesterol, Noten for the hypertension, Rani for his stomach and Mobic for pain. He was asked which pain he took the Mobic for. He said “any pain, one per day.” He was asked if he was receiving any specialist’s treatment.  He said “no, just my GP”. He was asked if he was taking any medication or specialist’s treatment for his depression and nervousness. He said “my GP helped me saying take a tablet or two”. He was asked which tablet. He said “Panamax or Panadeine Forte. He used to prescribe some tablets for me but I stopped them, it wasn’t doing any good. My wife helps me by taking the kids into another room and comes back and talks to me to make me relax”. Mr Sande said “because of my condition I feel depressed and I have a short temper”. He was asked if his depression went away when he took the medication. He said “yeah, when I take them I lie down and relax”.  He was asked if it made him feel better. He said “yes, it decreases”. He said ”after 1 and 1/2 to 2 hours lying down I feel OK”. He was asked how long the improvement lasted. He said “it depends, if something comes up it will make me nervous”.       

6.      Mr Sande and his wife have six children. The children’s ages range from seven months to 16 years of age. Neither Mr Sande nor his wife work. Mr Sande was asked about his life style. He said that he was unable to assist his wife with the household chores because of the pain in his neck and back. He said that he drove his children to school in the family van. He said that the van is manual transmission and does not have power steering. Mr Sande said that he could only sit for 10 to 15 minutes but would then need to change position and regularly stand up and move around. He did this during the course of the hearing. On each occasion that he stood up he used both arms to lift himself from the chair. He was asked if he has difficulty lifting himself in that manner. He was asked if he did that four or five times an hour for 10 to 12 hours a day.  He said that he was able to do that without difficulty. He said that he was able to take his full body weight which is in excess of 80 kg and lift himself using both arms from the chair four or five times an hour for 12 hours a day. He then said “I’m not complaining about my arms, the pain is in my neck and back”.  

7.      Mr Sande said that he was regularly attending classes in English at the request of Centrelink. He said that during those classes he had difficulty seeing what the teacher was writing on the white board. He was asked about his eye sight. He said that he had been wearing the same glasses since 1995. He said that he had the eye sight problems since 1994. He said that his eyes had been tested and he had been told that he needed new glasses but could not afford them. It was put to him that his headaches may be related to his eye sight problems and wearing the wrong glasses. He said “it’s not from the glasses it’s from my neck”.  He was asked when he obtained his current glasses. He said that he had them since 1995.

8.      Mr Sande was asked about his hypertension, cholesterol and stomach problems. He said that the medication was dealing adequately with all those conditions. He said he had a recent blood pressure test which was “bad”.  There was no other evidence about this recent blood pressure test.

consideration of issues

9. Section 94(1), (2) and (5) of the Social Security Act 1991 (“the Act”) relevantly provides:

“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 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.

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.

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.

Note: For work see subsection (5).

94(5) In this section:

educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric 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

(b) that exists in Australia, even if not within the person's locally accessible labour market. “

10.     Mr Sande states that he suffers “depression and nervousness” arising from his back and neck pain. Mr Sande last saw a psychiatrist, Dr Younan, in December 1998. Dr Younan reported (at T32):

“His affective state revealed symptoms of depression…

Mr Sande is manifesting symptoms of chronic adjustment disorder with depressed mood… My experience with such cases is that they do not respond to anti-depressants as the depression is mainly a reaction of the self to life stressors.” 

Mr Sande is not taking any medication for depression or psychiatric condition nor has he been treated for any such condition.

11. Schedule 1B of the Act includes Tables for the assessment of work related impairment for DSP. Table 6 provides:

TABLE 6. PSYCHIATRIC IMPAIRMENT

It is important to record a detailed psychiatric history, a mental state examination, and to distinguish between temporary and permanent psychiatric disorders. People with established psychiatric disorders (eg. Bipolar Disorder) may be highly variable in their clinical presentation and this factor must be taken into account in the assessment. The assessment of psychiatric impairment may benefit from investigating; reports from mental health case managers, compliance with and the effects of medication, support systems that people have in place, the degree of insight present and the presence of psychotic illness. Where a person has a short term problem, for example an adjustment disorder with depression following an illness or marital breakdown, initially this should usually be considered to be of a temporary nature. Table 6 is used for permanent psychiatric disorders only. If there is insufficient clinical information available, a current or recent specialist report should be obtained.

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).

12.     In view of the evidence that Mr Sande has not seen a psychiatrist for some seven years, does not take any medication for psychiatric condition or receive any treatment for such a condition, and noting the assessments by Dr Chew and Dr Chiu I find that the appropriate rating under Table 6 is zero points.

13.     In respect of his arms and hands, Mr Sande’s evidence was that despite intermittent numbness he had normal grip in both hands and could lift objects up to five or six kilograms in weight. He said that he was able to drive his manual transmission motor vehicle which does not have power steering. Mr Sande said “I’m not complaining about my arms, the pain is in my neck and back”. This evidence was consistent with the Tribunal’s observation of Mr Sande’s obvious strength in his arms which allowed him to lift his entire body weight on several occasions in rising from his chair. There is a variety of medical opinion about the condition of Mr Sande’s cervical spine and lumbar sacral spine, that is his neck and his lower back.

14.     Noting Mr Sande’s evidence about his ability to use his hands and arms and having observed his range of movement, I prefer the evidence of the assessments of Drs Chew and Chiu in respect of those conditions and see no reason to interfere with the SSAT’s findings allocating 5 points for the cervical spine and 10 points for the lumbar sacral spine.

15.     The evidence is that Mr Sande’s other medical conditions, namely, hypertension, hyperlipidemia and reflex/heartburn are treated and controlled by medication. Accordingly I find that rating of nil points under Table 20 for the hypertension and nil points under Table 11.1 for the other conditions is appropriate.

16.     As to the claimed carpal tunnel syndrome and upper limb function, it is clear from the evidence that Mr Sande is able to use his dominant limb effectively and has sufficient strength to lift his own body weight and drive his manual motor vehicle. There is a variety of evidence about the claimed carpal tunnel syndrome. In all of the circumstances I prefer the assessments of Drs Chew and Chiu on this matter, where they  note that he has normal grip power and dexterity in both his hands. The doctors also note no evidence of muscle wasting in this regard.  Again under Table 3 the appropriate rating is nil points.

decision

17. In all the circumstances the Tribunal finds that Mr Sande has medical conditions which attract 15 points under the Impairment Tables. The Tribunal finds that Mr Sande does not satisfy subsection 94(1)(b) of the Act, which states that the impairment must attract the rating of 20 impairment points or more under the Impairment Tables. It is therefore not necessary to determine whether Mr Sande has a continuing ability to work, as he does not satisfy subsection 94(1)(b). Mr Sande therefore does not qualify for disability support pension and his application must fail.

18.     The Tribunal affirms the decision under review.  

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of M Griffin, Member.

Signed:         A. Garcia       
  Associate

Date of Hearing  16 March 2005
Date of Decision  30 May 2005  
Representative for the Applicant    Applicant self-represented

Advocate for the Respondent        Mr J Kenny