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

[2011] AATA 328

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 328

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0668

GENERAL ADMINISTRATIVE DIVISION		)
Re		Shane SING

Applicant

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

Respondent

DECISION

Tribunal Dr I S Alexander

Date18 May 2011

PlaceSydney

Decision The decision under review is affirmed.

......................[sgd]........................

Dr I S Alexander

Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – qualification period – impairment tables – documented disease – diagnosed disease – treated disease – investigated disease – stabilised disease – insufficient evidence during qualification period – unable to assign impairment rating – decision under review affirmed.

Social Security Act 1991 (Cth) s 94, Schedule 1B.

Social Security (Administration) Act 1999 (Cth) cl 3 and cl 4 of Schedule 2.

REASONS FOR DECISION

18 May 2011         Dr I S Alexander         

1.      In this application Mr Sing seeks review of the Social Security Appeals Tribunal’s (SSAT) decision of 2 February 2010 affirming an earlier decision by Centrelink to reject his claim for Disability Support Pension (DSP) which had been lodged on 22 June 2009.

2.      At the hearing on 2 May 2011 Mr Sing was not represented but did give oral evidence.

ISSUES

3.      Mr Sing claimed that he suffered from several medical conditions that cause him sufficient impairment to qualify for DSP.

4.      The conditions, as listed by his general practitioner Dr Yu, in a medical report dated 20 June 2009, included a psychological condition described as “Anxiety & panic attacks, Paranoia/depression” and a lower back condition described as “Lumbo-sacral disc prolapse”.

5. Section 94 of the Social Security Act 1991 (the Act) sets out the criteria for qualification for DSP.

6. Relevantly s 94(1) states interalia that:

94 Qualification for disability support pension

(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

…

7.      There is no dispute that Mr Sing satisfies subsection 94(1)(a).

8. Therefore the issue before the Tribunal is whether the impairment suffered by Mr Sing as a result of his various medical conditions satisfies s 94(1)(b) and if so whether he has a continuing inability to work as per s 94(1)(c).

9. Clause 4 of Schedule 2 to the Social Security (Administration) Act 1999 provides that the assessment for DSP must occur within a period of 13 weeks after the day on which the claim is made (the qualification period) which in this case is between 22 June 2009 and 21 September 2009.

10. The introduction to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) at Schedule 1B of the Social Security Act states that the tables 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” and that for a rating to be assigned to the medical condition it must be considered to be permanent, that is, “the condition must be a fully documented, diagnosed condition, which has been investigated, treated and stabilised”.

MR SING’S MEDICAL CONDITIONS

Lower Back Condition

11.     In oral evidence Mr Sing stated that his lower back problem started suddenly in 2008 while he was hanging out the washing.

12.     His main complaint has been in respect of pain in the lower back, buttocks and lower limbs. He claims that the pain has gradually become more severe over the last three years so that his ability to function has now become significantly impaired.

13.     On 7 April 2009 a CT scan of the lumbar spine was reported as showing “very mild circumferential bulging” of the L4/5 and lumbo-sacral discs.

14.     Nevertheless, Mr Sing conceded that at the time of the DSP application Dr Yu was not able to fully explain the cause of his symptoms and that his problems with the pain are significantly worse now than during the qualification period.

15.     In July 2009 Mr Sing was referred to Dr McMaster, a neurosurgeon, who arranged for a magnetic resonance imaging (MRI) examination of the lumbar spine.

16.     A report of the MRI dated 6 July 2009 noted that “there is mild degenerative change in the L4-5 and L5-S1 discs. Small annular tears are noted. At the L5-S1 level, there is also a minor right foraminal bulging of the disc associated with a localised endplate thickening”.

17.     I note that the CT scan and MRI examination revealed only relatively minor abnormalities and did not demonstrate “lumbo-sacral disc prolapse”.

18.     Dr McMaster recommended treatment with the non-steroidal anti-inflammatory medication Mobic and the pain medication Tramal.

19.     Mr Sing said that except for one prescription of Panadeine Forte, he had not taken any medication for his pain over the previous 18 months and that the regular medication recommended by Dr McMaster was not very effective.

20.     In August 2009 and September 2009 lumbar interlaminar injections were performed with little effect on his symptoms.

21.     On 18 November 2009, Dr Yu referred Mr Sing to the pain clinic at Westmead Hospital. He was not examined until November 2010 and the only new treatment was a change in pain medication to Endone.

22.     Mr Sing’s next pain clinic appointment is in August 2011 and he believes that recommendation for an operation on his spine is being considered.

23.     More recently Dr Panjratan, an orthopaedic surgeon, examined Mr Sing and in his report, dated 31 August 2010, he noted that the MRI was not very helpful as it revealed only minor degenerative changes and also observed that Mr Sing has “a lot of subjective complaints but the objective and radiological examination does not substantiate these claims”.

24.     In my view the evidence set out above points to a conclusion that the nature of Mr Sing’s lower back condition and its relationship to his apparently severe symptoms remains unclear. According to his evidence the condition is getting worse despite definitive treatment which I note was only started in July 2009 and is still being reviewed.

25.     Therefore I am satisfied that during the qualification period Mr Sing’s lower back condition was not fully “diagnosed, treated and stabilised” which means that an impairment rating could not have been assigned.  

Psychological Condition

26.     In a medical report dated 9 June 2009, Ms Harrysunker, a psychologist, diagnosed “Anxiety and panic attacks, Paranoia /Depression” with no meaningful explanation to support her diagnosis but recommended psychotherapy and medication.

27.     Mr Sing stated that he saw Ms Harrysunker second weekly on six occasions and found the consultations to be of some benefit. He did not start on any medication apparently because of concerns about possible drug interaction with the medication for his back.

28.     Apart from the six consultations with the psychologist, Mr Sing indicated that he has had no other treatment for his psychological symptoms and that although some of the symptoms are still present he suffers no impairment because of these symptoms.

29.     I accept that Mr Sing suffered some psychological symptoms during the qualification period but neither his evidence nor the somewhat sparse medical evidence supports a conclusion that he suffered a permanent psychological condition that was diagnosed, treated and stabilised.

30.     Therefore an impairment rating could not have been assigned during the qualification period.

DECISION

31. For the reasons set out above, I am satisfied that during the qualification period Mr Sing’s impairment rating was nil points which means that s 94(1)(b) of the Social Security Act was not satisfied and Mr Sing was not eligible for DSP.

32.     The decision under review is affirmed.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I S Alexander

Signed:         .........................[sgd].......................................................
  Associate

Date/s of Hearing  2 May 2011
Date of Decision  18 May 2011
Solicitor for the Applicant               Self-represented

Solicitor for the Respondent  Glenda Heggen, Centrelink Advocacy Branch