SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS and SPECA

[2010] AATA 714

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 714

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0716

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

Applicant

And Walter Speca

Respondent

DECISION

Tribunal Dr Amanda Frazer

Date17 September 2010

PlacePerth

Decision The Tribunal sets aside the decision under review and substitutes a new decision that the respondent is not qualified for the DSP and has not been since the date of claim on 21 July 2009.

…(sgd) Dr A Frazer…..  Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – qualification requirements– respondent has impairments – respondent’s impairments do not attract impairment rating under Impairment Tables – respondent does not have a  continuing inability to work - 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 September 2010 Dr Amanda Frazer, Member

Introduction

1.Mr Speca (“the respondent”), who is 48 years of age, lodged an application for disability support pension (“DSP”) on 21 July 2009.

2.On 13 August 2009 Centrelink determined the respondent was not eligible to receive DSP.

3.On 20 November 2009 a Centrelink authorised review officer (“ARO”) affirmed the decision that the respondent was not eligible to receive DSP.

4.On 22 January 2010 the Social Security Appeals Tribunal (“SSAT”) set aside the ARO’s decision and substituted a new decision that the respondent was qualified for DSP and was so from the date of claim.

5.On 19 February 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 applicant 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 15 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 38 – 44 below.

The Evidence

8.The evidence before the Tribunal comprised:

·the “T Documents” (T1-T19), pp 1-187) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the applicant”):

·Exhibit A1 (letter from Dr Stephen Proud to Centrelink dated 19 March 2010) tendered by the applicant

·Exhibit A2 (Job Capacity Assessment Report dated 13 April 2010) tendered by the applicant

·Exhibit  A3  (Guide to the Tables for the Assessment of work related Impairment for Disability Support Pension) tendered by the applicant

·Exhibit  R1 (letter from Mr Tony Jeffries (Orthopaedic Surgeon) to Dr Sands dated 15 March 2010) tendered by the respondent

·Exhibit R2 (letter to Mr Speca from Dr Visser dated 10 August 2010) tendered by the respondent

·the oral evidence of the respondent.

The applicant’s submission

9.The applicant accepts that the respondent suffers from a right upper limb condition, a low back condition and depression.

10.The applicant accepts that the respondent has impairments and satisfies section 94(1)(a) of the Act.

Right upper limb condition

Right shoulder

11.It is common ground that the respondent sustained a fracture/dislocation of the right shoulder following an injury in 1985.  The injury required surgical fixation at the time of injury and the respondent suffered from a rotator cuff problem.  The respondent required further surgery on the right shoulder in 1987. (T5 at 100, T17)

12.The respondent underwent a right shoulder X ray and a right shoulder ultrasound in April 2008 which demonstrated rotator cuff calcific tendonitis (T6 at 108 – 109)

13.The applicant accepts that the respondent suffers from ongoing pain in the right shoulder and is prescribed the analgesics, OxyContin and Tramol, from his treating General Practitioner, Dr Sands.  (T6 at 108 – 109).

14.The applicant submits that the respondent is under the care of Orthopaedic Surgeons at Fremantle Hospital and on 28 July 2009 the respondent told the job capacity assessor that the orthopaedic surgeon was investigating whether to clean out the shoulder joint.  The respondent also told the SSAT on 22 January 2010 that his shoulder injury might require surgery to clean up and that one doctor had suggested the screws inserted in the original surgery in 1985 may need to be removed. (T2 at 7). 

15.The applicant accepts that the respondent was reviewed by Dr Jeffries, Orthopaedic Surgeon at Fremantle Hospital, on 15 March 2010 following an MRI scan of the right shoulder.  Dr Jeffries states:

“The MRI of his right shoulder shows that the rotator cuff is intact with some low-grade tendonopathy.  ..There was no significant bursal thickening.  There was some mild degenerative change in the glenohumeral joint.”

“Based on the MRI findings I have advised...that I do not think there is any indication for further shoulder surgery.  I very much doubt a further arthroscopic decompression would help him. It would be a difficult prospect to remove the internal fixation and may cause more damage.

I have not arranged further review at this stage.” (R1)

Right elbow condition

16.The applicant accepts that the respondent has suffered fractures of his right elbow in 1972 and 2008.  The applicant accepts that the right elbow injury required internal fixation in 2008 and removal of the fixation device in 2009.  (T17, T10 at 128)

17.The applicant accepts that the respondent is receiving no current treatment for his right elbow and that no future treatment is planned. (T5 at 102)

Low back condition

18.The applicant accepts the respondent has a medical history of a right lumbar L5/S1 disc prolapse since 20 February 2006 and that the pain from this condition has been managed with opiate analgesia from 19 February 2007.  (T15 at 161)   

19.The applicant accepts the respondent had a MRI Lumbar Spine on 15 November 2006.  This demonstrated a broad based posterior disc annular bulge with a more focal right sided disc protrusion causing a mass effect on the antero-lateral theca and the forming right S1 nerve root.  There are also degenerative changes at L4-5 and L5 – S1.  (T6 at 107)

20.The applicant accepts that Dr Sands indicated on 20 July 2009 that the respondent suffered from an L4-5 disc lesion requiring opiate analgesia, Oxycontin and Tramal. Dr Sands also indicated that the disc lesion causes the respondent to have difficulty lifting or bending and also causes right sided sciatica.  (T5 at 104)  Dr Sands indicated that significant improvement was not expected. (T5 at 104).

21.The applicant noted that the respondent told the SSAT that in the past he has undergone physiotherapy for his back and that he has also had an epidural injection into the back.  The respondent also stated he had undergone 4 spinal cortisol injections at 3 monthly intervals and that he had attended pain management courses run through Fremantle Hospital.   

Depression

22.The applicant accepts that the respondent has been diagnosed with depression from 1 October 2003 to 1 December 2003 and from 27 November 2003 to 1 January 2004 (T5 at 161).  Dr Sands, the respondent’s GP, also diagnosed depression on 12 October 2009 and stated that it caused minimal or limited impact on the respondent’s ability to function.  (T10 at 130)

23.The applicant submits that on 19 March 2010 Dr Proud, Consultant Psychiatrist, stated the respondent had a chronic major depressive disorder of moderate to severe severity.  At that time, the respondent had been prescribed Cymbalta (an antidepressant medication) for 2 weeks.  The respondent had not consulted a treating psychiatrist or psychologist.  Dr Proud stated that the respondent should be referred to a Consultant Psychiatrist to optimise his treatment. (A1)

24.The applicant submits that the respondent’s right upper limb condition, low back condition and depression are not fully diagnosed, treated and stabilised conditions and therefore cannot be allocated an impairment rating on the impairment tables. 

25.The applicant further submits that the Job Capacity Assessment report of 13 April 2010 states that the respondent does not have an ongoing inability to work. The job capacity assessor determined that the respondent could work 15 to 22 hours a week without intervention in light less skilled type of work.  With vocational assessment and retraining the assessor was of the opinion that that the respondent could work for 30 hours a week or more within the next 2 years. (A3)

26.The applicant further submits that Dr Proud, in a report of 19 March 2010 states “(the respondent) would be able to do a simple job for 20 hours a week” and “(the respondent) is currently well enough to undergo vocational assessment and retraining and to join a rehabilitation provider to try and get him into a suitable work trial.” (A1)

27.The applicant submits that the respondent is not eligible for DSP as he does not meet sections 94(1)(b) and (c) of the Act.

The respondent’s evidence

28.The respondent told the Tribunal that he is separated and lives with 2 other people in his own house in a boarder type arrangement. There is some sharing of shopping responsibilities, cooking and household tasks. 

29.The respondent said he has 3 children with his ex partner aged 13, 11 and 9 years old.  A few weeks ago the respondent was granted access to the children and now sees the children every second weekend from Friday afternoon to Monday morning.  The respondent picks the children up from school and drops them at school on the Monday morning and spends time with them over the weekend at their various sporting activities. The respondent said he also has another infant who is currently in care and that he has started a process whereby he can have access. 

30.The respondent said he has problems with his right arm following his fractures of the shoulder and elbow.  The main issue is that he cannot raise his arm above 90 degrees from his side. He also gets some pain in the shoulder with repeated movements. He is right handed and can still his right hand to write, tie laces, do up buttons and brush and comb his hair.  He said he can carry a shopping bag of around 5kg with the right arm and goes shopping twice a week.  The respondent has his license and is able to drive his Toyota Corolla (manual) for around 1 hour when he picks his children up from school and takes them home.  He copes by resting his right arm on the side window although changing gears is uncomfortable for his back. 

31.The respondent confirmed he had recently seen Dr Jeffries, Orthopaedic Surgeon, at Fremantle Hospital about his shoulder.  He said Dr Jeffries told him there was nothing more he could do surgically.  The respondent said he had an appointment with Dr Visser, Pain Medicine Specialist, on 29 September 2010 for his back and shoulder. (R2)

32.The respondent said he injured his back when he slipped and fell in 2006.  He said he has a disc problem and has been treated with opiate analgesics for his pain for years (OxyContin and Tramal).  The respondent said he has recently been feeling pain in the right leg from his back. The respondent said he tried a pain management course some time ago for his low back pain at Fremantle Hospital but it didn’t work. He is seeing Dr Visser (Pain Medicine Specialist) on 29 September 2010 to seek treatment for his back pain.   

33.The respondent said his back pain makes it uncomfortable to drive especially when changing gears, although it is not so bad when he drives his automatic car. The pain also restricts his activities although he is able to do some gardening and household tasks such as the dishes and sweeping.  The respondent has an interest in cars and he is restricted in how much work he can now do on them.  He is able to change the spark plugs and can fix broken cables or a stereo and can do some cleaning for up to 2 hours.  He occasionally will take his old HR into the driveway and drive around  the block

34.The respondent said he has recently been diagnosed with depression and he  now thinks he has suffered from this off and on over many years. He has had antidepressants prescribed in the past by GPs but has not taken them consistently or for any length of time.  The respondent said that he has now been taking Cymbalta since March 2010 and that the side effects of this medication are not as bad so he thinks he can keep taking it.  The respondent said he has been feeling a little more motivated recently and that he is able to share in more of the household tasks for example.  The respondent gave evidence that he thought his General Practitioner was going to refer him to a psychologist.

35.The respondent gave evidence that late last year, around October 2009, he became vexed and started to insist on further treatment for his conditions by his GP.  The respondent said nothing had been done for him in that he had not been referred to a psychiatrist for example.  The respondent said he had to do something as he needed more motivation.  The respondent said he has been helping more around the house and that he has also gained access to his children since that time. 

36.The respondent said he has not worked for about 10 years.  He last worked in the factory at BHP doing general duties such as packing, indentifying contents and labelling, sweeping up and answering the phone. The respondent said that in mid 2004 he was considering going into an imported motorbike business with his brother but they did not proceed as there was too much competition in the market.  The respondent said he thought he could work as a storeman for around 3 hours a day or for 20 hours a week if he could stand and sit up regularly. 

37.The respondent said that he really wanted the DSP so that he could get a “Pension Card” as this would help him with his medical bills.

The Impairment Tables

38.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.

…

Analysis

Impairments

39.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, namely, a right arm condition, a low back condition and depression.

40.The first matter for the Tribunal’s determination is whether the respondent, when he lodged his claim for DSP on 21 July 2009, 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.

Right arm condition

41.The Tribunal has regard to the fact that the respondent has recently been reviewed by an orthopaedic surgeon on 15 March 2010 with respect to the ongoing treatment and management of his right upper limb condition. Whilst it is accepted that the Orthopaedic Surgeon did not recommend further surgery there is no medical evidence presented as to other appropriate treatments or rehabilitation programmes which may assist the functioning of the respondent’s right upper limb. The respondent also gave evidence that he has an appointment with Dr Visser, a pain management specialist, in September 2010 to seek an opinion about the appropriate management of his right arm condition. Therefore, the respondent is still receiving treatment for his right upper limb condition which may reasonably be expected to lead to significant functional improvement. The Tribunal is mindful of the long standing nature of the respondent’s right arm condition however it is not satisfied that the respondent’s right upper limb condition, as at 21 July 2009, 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 the Impairment Tables in respect of the right upper limb condition 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).

Low Back Condition

42.The Tribunal accepts that the respondent suffers from low back pain of long standing for which the respondent is prescribed narcotic analgesia.  The respondent gave evidence that he is now experiencing worsening pain in the right leg from his back.  The respondent has an appointment to see a Pain Medicine Specialist on 29 September 2010 for ongoing management of his back pain.  The Tribunal accepts the respondent’s evidence that he has undergone treatment for his back condition some years ago by epidural injections and cortisol injections however there is no recent medical evidence relating to any treatment or rehabilitation options which may assist the respondent in managing his back pain which may reasonably be expected to improve functionality.  

43.The Tribunal is not satisfied that the respondent’s low back condition, as at 21 July 2009, 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 the Impairment Tables in respect of the back condition 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).

Depression

44.The Tribunal accepts the respondent is suffering from depression and that he has commenced Cymbalta, an antidepressant, in March 2010. The Tribunal accepts the respondent’s evidence that he is a little more motivated now and that the respondent has also been successful recently in gaining access to his children. The Tribunal considers that there has been some therapeutic effect from the medication. The Tribunal accepts the evidence from Dr Proud, Consultant Psychiatrist, that the respondent may benefit from referral to a treating Psychiatrist for ongoing management and to optimise function. There is no medical evidence presented as to any other treatments or interventions planned for the respondent such as referral to a psychologist for example. The Tribunal is not satisfied that the respondent’s depression, as at 21 July 2009, 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 the Impairment Tables in respect of the depression 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).

Conclusion

45.The Tribunal concludes that, although the applicant has at all material times had impairments within the meaning of para (a) of s 94(1) of the Act, as at 21 July 2009 and to the present time, the respondent does not have an impairment rating under the Impairment Tables. Accordingly, the respondent does not satisfy para (b) of s 94(1) of the Act and, therefore, the respondent was not qualified for DSP as at 21 July 2009 and to the present time.

46.Although that conclusion makes it unnecessary for the Tribunal also to consider whether the respondent satisfied para (c) of s 94(1) of the Act, the Tribunal will, for the sake of completeness, briefly address that issue.

47.The Tribunal accepts the respondent’s evidence that he could work for 20 hours a week as a storeman if he could stand up and sit down regularly.  The Tribunal also accepts the evidence of Dr Proud that the respondent could do a simple job for 20 hours a week and that he is well enough to undergo vocational assessment and retraining.    

48.The Tribunal therefore finds that, as at 21 July 2009 and to the present, that the respondent did not have a “continuing inability to work” (as defined in s 94(2) of the Act) and, accordingly, did not satisfy para (c)(i) of s 94(1) of the Act.

Decision

49.For the above reasons the Tribunal sets aside the decision under review and substitutes a new decision that the respondent is not qualified for DSP from 21 July 2009 to the present. 

I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Dr Amanda Frazer, Member

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

Date of Hearing  27 August 2010
Date of Decision   17 September 2010
Representative of the Applicant                 Mr Paul Maishman,
  Centrelink Legal services Branch

Representative for the Respondent        Self represented