Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Read

[2011] AATA 105

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 105

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1108

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And LINDSAY READ

Respondent

DECISION

Tribunal Dr A Frazer, Member  

Date17 February 2011

PlacePerth

Decision The Tribunal sets aside the decision of the Social Security Appeals Tribunal and substitutes a new decision that the respondent is not qualified for the Disability Support Pension and has not been since the date of cancellation on 1 July 2009.   

..(sgd) Dr A Frazer....................

Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - qualification requirements - respondent has impairments - respondent's impairment is of 10 points under Impairment Tables - respondent not qualified for disability support pension - decision under review set aside

LEGISLATION

Social Security Act 1991 (Cth), s 94 and Sch 1B

REASONS FOR DECISION

17 February 2011 Dr A Frazer, Member         

Introduction

1.Lindsay Read, (“the respondent”), who is 58 years of age, had been in receipt of DSP under the Social Security Act 1991 (Cth) (“the Act”) since 15 July 1999.

2.Following a DSP review the respondent was notified by a Centrelink officer on 1 July 2009 that his DSP would be cancelled as the respondent no longer met the requirements for DSP in that the respondent did not have an impairment rating of 20 points and he did not have a continuing inability to work.  The respondent continued to be paid DSP until 12 August 2009.

3.On 10 December 2009 a Centrelink authorised review officer (“ARO”) affirmed the decision to cancel the respondent’s  DSP. 

4.On 5 February 2010 the  Social Security Appeals Tribunal (“SSAT”) set aside the decision of the ARO and substituted a decision that the respondent remained qualified to receive DSP on 1 July 2009 with arrears payable to him from 13 August 2009. 

5.On 16 March 2010 the applicant made an application to this Tribunal for review of the SSAT’s decision.

The Relevant Legislation

6.The conditions which must be satisfied before a person is qualified for DSP are set out in paras (a) – (f) of s 94(1) of the Act. It is common ground that the respondent satisfies the conditions set out in paras (d) – (f) of s 94(1). Section 94 of the Act otherwise 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;

…

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 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 2 years.

Note:    For work see subsection (5).

…

94(5) In this section:

training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

(a)       education;

(b)       pre‑vocational training;

(c)       vocational training;

(d)       vocational rehabilitation;

(e)       work‑related training (including on‑the‑job training).

work means work:

(a)that is for at least 30 hours per week on wages that are at or above the relevant minimum wage; and

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

7.The “Impairment Tables” referred to in para (b) of s 94(1) are set out in Schedule 1B to the Act and are relevantly referred to in paragraphs 19 and 20 below.

The Evidence

8.The evidence before the Tribunal comprised:

8.1the “T Documents” (T1-T32), lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the applicant”);

8.2Attachment 1 tendered by the applicant:  Assorted dates, Employment Income Details

8.3Attachment 2 tendered by the applicant:  Assorted dates, Immigration    Advised Movement Dates

8.4Attachment 3 tendered by the applicant:  Report by Dr Ian Wilson, Rehabilitation Medicine Specialist, dated 23 June 2010

8.5Attachment 4 tendered by the applicant:  Report by Dr Lawrence      Blumberg, Consultant Psychiatrist, dated 23 June 2010

8.6Attachment 5 tendered by the applicant, undated summary CentreLink Records

8.7   oral evidence of the respondent.

The Respondent’s Evidence

9.The respondent said he lives alone and his wife lives in Thailand. He married in April 2007 and tries to visit his wife twice a year and spend some 4 to 6 weeks with her.  Last year he visited for about 3 weeks. 

10.     The respondent said he is a qualified autoengineer and machinist however he now works as a fitter doing shut down work on mine sites.  This work is mostly fly in and fly out and is not technically challenging and many of the more manual tasks are undertaken by assistants.  He said the work is erratic however the pay is attractive.  The respondent said he may work up to a 12 hour day in the  shifts.  As an example, the respondent said he worked 5 days (Monday to Friday) over the week preceeding the AAT Hearing.  The respondent said that he has never said that he couldn’t work and he wants to continue working.  The respondent said he has achieved a degree of independence over the last 5 years because of his work and he now has his own apartment and property. 

11.     The respondent said his main problem is his long standing neck condition.  He has intermittent pain in the neck, particularly the left side following an injury in 1997 when he fell from scaffolding.  He has some loss of movement in the neck. The respondent said he agreed with the submission by the applicant that his neck pain is permanent.  The respondent also reviewed Table 5.1 of the Impairment Tables (see below) during the Hearing and said he agreed that his neck condition does attracts an Impairment Rating of TEN. 

12.     The respondent said he has long standing problems with his left shoulder after an accident in Thailand in early 2009 when he banged his left arm under the shoulder.  The main issue was pain and difficulty lifting his left arm.  The applicant is right handed.  This injury was treated in Thailand where an x ray was performed and cortisone was injected into the shoulder.  The respondent said he did not have further follow up on his shoulder as he would not be able to pay for it.  The respondent said he has now learned to live with the shoulder problem and that it is only intermittent.  The respondent said he is still able to work with his shoulder problem and he has not consulted a doctor about it since 2009. 

13.     The respondent also told the Tribunal that he had an accident in Laverton in November 1997 where he fell onto concrete.  He was taken by the Flying Doctor to Kalgoorlie Hospital where he was assessed.  There was apparently no broken bones however this accident did affect his mobility for some 8 months.  The respondent also said he suffers from some left groin pain.  He will need to hobble and then the pain will come good.  He said the groin pain has not caused him to have time off work.

14.     The respondent said he has recently had some Basal Cell Carcinomas of his skin removed by local excision.  This does not affect his ability to work. 

15.     The respondent told the Tribunal that he was surprised when he was originally granted the DSP, in part, for depression.  He told the Tribunal that he did not think his psychological issues have been well defined and that he did not have any input from Centrelink to have things clarified.  He said he was “granted the DSP and then forgotten.”  The respondent said he had never seen a treating doctor or a treating psychiatrist for depression. He said he had never taken any medication for depression.  The respondent said that in the past he used to suffer from mood swings, or extremes of highs and lows.  He had a bad day psychologically in January 2009 and required assessment at the local Hospital for 3 hours.  He said that he had not experienced mood swings since 2001 and that now he seems to cope “reasonably well.”

The Relevant Medical Evidence

16.     Report by Dr Leong, treating doctor, dated 14 May 2009. 

“Dr Leung states the respondent suffers from depression since 1998, past and current treatment is not reported but future treatment may include antidepressant medication.”   

17.     Report by Dr Lawrence Blumberg, Consultant Psychiatrist, dated 23 June 2010.

“Dr Blumberg states the respondent has a “chronic adjustment disorder with anxiety and depressed mood.”  The respondent has problems with finance, employment, Centrelink and relationship problems.  Dr Blumberg states “he is not of the opinion that his current symptoms fulfil the criteria of a Major Depressive Disorder, Generalised Anxiety Disorder or Chronic Dysthymia… (the respondent) would benefit from psychiatric treatment ..he would benefit from a trial of an antidepressant medication and psychological intervention.”

18.     Report by Dr Ian Wilson, Rehabilitation Medicine Specialist, dated 2 July 2010

"Dr Wilson states the respondent injured his neck in 1997 when he fell form scaffolding.  A CT and MRI confirmed a C5/6 lesion.  The respondent has continued to experience variable neck pain with a loss of around half of the normal range of movements.  Dr Wilson stated “(the respondent’s) neck condition is stable and has reached maximal medical improvement.”

The Impairment Tables

19. Schedule 1B to the Act is headed: “Tables for the assessment of work-related impairment for disability support pension”. The tables themselves are preceded by an “Introduction“ in which it is relevantly stated:

“1.      These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work. …

2.        These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. …

…

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. …

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.

6.        In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

·what treatment or rehabilitation has occurred;

·whether treatment is still continuing or is planned in the near future;

·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

In this context, reasonable treatment is taken to be:

·treatment that is feasible and accessible ie, available locally at a reasonable cost;

·where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person.  In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.

In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:

·evaluate and document the probable outcome of treatment and the main risks and or (sic) side effects of the treatment; and

·indicate why this treatment is reasonable; and

·note the reasons why the person has chosen not to have treatment.

…

20.Table 5, which is used to assess spinal impairments, is as follows:

“ TABLE 5  SPINAL FUNCTION

Determination of spinal impairments must be based on a demonstrable loss of function

TABLE 5.1  Cervical Spine

Rating  Criteria

NIL  Normal or nearly normal range of movement.

FIVE  Loss of quarter of normal range of movement.

TENLoss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain.

TWENTYLoss of three-quarters of normal range of movement and constant neck pain.

THIRTYLoss of almost all movement, or complete ankylosis in position of function.

FORTYAnkylosis in an unfavourable position, or unstable joint.”

ANALYSIS

Impairments

21.It is common ground that, at all material times, the respondent has had various physical impairments, within the meaning of para (a) of s 94(1) of the Act, by reason of his suffering from the following conditions, neck pain, depression, left shoulder condition, left leg injury and skin lesions.

22.The first matter for the Tribunal’s determination is whether the respondent, when his DSP was cancelled, had a total impairment, by reason of the abovementioned conditions, of at least 20 points under the Impairment Tables, for the purposes of para (b) of s 94(1) of the Act.

Neck Pain

23.     The Tribunal accepts the applicant’s written and oral submission, the oral submission by the respondent and the written evidence of Dr Wilson  that the respondent’s neck condition is permanent and is associated with chronic pain and a loss of a half of the range of normal movement of the cervical spine.  The Tribunal accepts this condition attracts an Impairment Rating of TEN points under Table 5.1.  

Depression

24. The Tribunal accepts the respondent’s evidence that he has been coping reasonably well and that he no longer suffers from mood swings. The Tribunal notes that the respondent has not been treated for depression and has not been reviewed by a treating psychiatrist. The Tribunal accepts the written evidence of Dr Blumberg that the respondent would benefit from a trial of antidepressant medication and psychological intervention. The Tribunal is not satisfied that the respondent’s condition of depression, as at 1 July 2009 (from when his DSP was cancelled) and as at the present time, has been sufficiently investigated, treated and stabilised. In the Tribunal’s opinion, therefore, it is not appropriate to assign a rating under Table 6 of the Impairment Tables in respect of psychiatric impairment in the respondent’s case (see paras 4-6 in the Introduction to the Impairment Tables, and the introduction to Table 6, in Schedule 1B to the Act).

Left shoulder condition. left leg condition and skin lesions

25.     The Tribunal accepts the respondent’s evidence that these conditions do not cause any functional disability and do not affect his ability to work.  The Tribunal considers these conditions do not attract any Impairment Rating under the Tables.

Conclusion

26. The Tribunal concludes that, although the respondent has at all material times had impairments within the meaning of para (a) of s 94(1) of the Act, as at 1 July 2009 (from when his DSP was cancelled) he had a total impairment of 10 points under the Impairment Tables and, accordingly, he did not satisfy para (b) of s 94(1) of the Act and, therefore, was not then qualified for DSP. Accordingly, cancellation of the respondent’s DSP was appropriate.

Decision

27.     The Tribunal sets aside the decision of the SSAT and substitutes a new decision that the respondent is not qualified for the Disability Support Pension and has not been since the date of cancellation on 1 July 2009.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Dr A Frazer, Member

Signed: .(sgd) T Freeman..............
  Associate

Date/s of Hearing  24 January 2011
Date of Decision  17 February 2011
Representative for the Applicant               Self-represented       
Representative for the Respondent          Mr P Maishman        
  Centrelink Legal Services Branch