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

[2008] AATA 173

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 173

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1066

GENERAL ADMINISTRATIVE DIVISION		)
Re		STEVEN TZIMOGIANNIS

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date29 February 2008

PlaceSydney

Decision The decision under review is affirmed

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

Dr J Campbell
  Member

CATCHWORDS

Social Security – Disability Support Pension – impairments – assessment – fully diagnosed, treated and stabilised – continuing inability to work – decision affirmed.

RELEVANT ACT/S:

Social Security Act 1991: s 94, Schedule 1B

REASONS FOR DECISION

29 February 2008	Dr J D Campbell, Member
Summary

1.      Mr Tzimogiannis was born in 1969. Mr Tzimogiannis attended school to year 11 and thereafter worked as an assistant in a fruit salad bar (one year), as an apprentice in air conditioning (two years), as a salesperson in domestic appliances (two years), and at a service station for (two years), while completing his apprenticeship at TAFE.

2.      In early 1990, Mr Tzimogiannis experienced a number of assaults while working at the Bonnyrigg service station.  These assaults involved Mr Tzimogiannis being tied up, beaten and gun shots being fired.  Mr Tzimogiannis was unable to work for a significant period of time and was treated for a psychiatric disorder (possibly post traumatic stress disorder), by Dr Prior, a consultant psychiatrist.

3.      Around 1996, Mr Tzimogiannis was involved in two separate motor vehicle accidents when working as a courier driver.  One involved a pedestrian, while the other involved injury to Mr Tzimogiannis, which has resulted in him suffering impairments to his neck, lower back, increasing severity of occasional migrainous headaches and continuing symptoms of feeling worthless, difficulty in concentration and with memory, tearfulness and thoughts of self-harm.

4.      Following the accident in 1996 in which Mr Tzimogiannis was injured and for which he received a compensation payment of $20-23,000 in the late 1990s, Mr Tzimogiannis has experienced much difficulty in maintaining any full-time employment, with attempts at part-time employment in 2004 as a toll booth operator for four to six hours a day which he was unable to sustain because of his physical impairments.  At the time of the resumed hearing in January 2008, Mr Tzimogiannis had been working for a week as a driver for a hire car operator.

5.      On 1 September 2005, Mr Tzimogiannis lodged a claim for disability support pension (“DSP”), in which he nominated pain as arising from a permanent neck, back and head condition, together with anxiety, depression and chronic post traumatic stress disorder, all conditions being in existence since 1996.

6.      Mr Tzimogiannis’s claim was supported by his treating doctor’s report: Dr   Thanos (T10), dated 31 August 2005 in which he nominated Mr Tzimogiannis’s conditions as depression, and lumbar and cervical disc prolapse, all conditions being present since 1996.

7. On 23 September 2005, Centrelink determined that Mr Tzimogiannis did not qualify for DSP as his combined impairment assessment was 15 points pursuant to the relevant impairment tables in Schedule 1B of the Social Security Act 1991 (“the Act”), and in so doing considered the claim lodged, together with a job capacity assessment report undertaken by Ms Duffy, a social worker, on 19 September 2005 (T11).  On 7 July 2006, an Authorised Review Officer (“ARO”), after a long delay, affirmed this decision. On 2 August 2006, the Social Security Appeals Tribunal (“SSAT”) re-affirmed the decision to reject Mr Tzimogiannis’s claim for DSP.  

Issues

8.      The relevant issues in this matter are:

(a)From what impairments did Mr Tzimogiannis suffer at the date of lodgement of his claim (1 September 2005), and/or for a period of three months thereafter (to 1 December 2005)?;

(b)What is the assessment for each permanent impairment pursuant to Schedule 1B of the impairment tables during the nominated period?;

(c)Is the combined assessment of the nominated permanent impairments equal to or more than 20 points?;

(d)Does Mr Tzimogiannis have a continuing inability to work?; and

(e)Does Mr Tzimogiannis qualify for DSP in relation to the claim lodged on 1 September 2005?

Decision

9.      For the reasons stated later in this decision, I find in relation to the claim for DSP lodged on 1 September 2005 that:

(a)Mr Tzimogiannis had the following impairments:

(i)Cervical spine small spondylitic lesions with right-sided foraminal encroachment  in the region of the exiting C5 nerve root;

(ii)Lumbar spondylosis;

(iii)Both impairments cause difficulty with bending, lifting and sleeping and require analgesics for persistent pain; and

(iv)Depressive disorder, with variable symptomatology;

(b)The assessments for each impairment pursuant to the relevant Schedule 1B impairment tables are:

(i)Cervical spine impairment – 5 points;

(ii)Lumbar spine impairment – 5 points; and

(iii)Depression – underlying condition, although diagnosed, not considered fully treated and stabilised.  Condition not considered permanent and no assessment undertaken pursuant to the appropriate table;

(c)The combined assessment of the nominated impairments pursuant to the claim of 1 September 2005 is 10 points;

(d)Mr Tzimogiannis does not have a continuing inability to work; and

(e)Mr Tzimogiannis does not qualify for DSP pursuant to the claim lodged on 1 September 2005.

Consideration and Findings

10.     There is much evidence in the material before me, that Mr Tzimogiannis has some difficulty in remembering accurately the sequence of events that occurred and which have led to him suffering particular impairments.  Nevertheless, I am satisfied that the events he has described and the symptoms experienced by him since 1996, are the consequence of events nominated by him, albeit there being some confusion about the order in which the various motor vehicle accidents occurred and the nature and outcome of the various assaults at the Bonnyrigg service station.

11.     In detailing my findings in this matter, I was further assisted by the back assessment report dated 11 June 2003, of Ms Carolina De Martin, a physiotherapist (T4), and the report dated 8 September 2003 of Ms Sharon Flanagan, a clinical psychologist and neuropsychologist (T5).  Further, I was assisted by Mr Tzimogiannis’s evidence in which he detailed the restrictions arising from his impairments, including the range of activities he can and cannot do, as well as his description of the various symptoms he experiences.  It is my finding that Mr Tzimogiannis detailed his circumstances to the best of his endeavours and did not attempt to exaggerate either the events that occurred and/or the symptoms experienced over time.  Finally, once again I express my concern at the inadequacy of the clinical material in relation to the measurement of loss of range of movement of the cervical and/or lumbar sacral spine.  In this regard, I note that the treating doctor, Dr Thanos, makes no such assessment (in fairness, the form does not seek such), and Ms Duffy, a social worker, in September 2005 detailing a finding of a quarter loss of normal range of movement of both the cervical and thoraco-lumbar sacral spinal entities, without detailing any measurements as to each movement.  Thereafter it would appear that her assessment is repeated.  Less it be assumed that I have a bias against allied health graduates making such measurements, my plea is for details as to measurements of loss of each movement against a norm, whether it be done by a doctor, nurse, or allied health worker, no matter of what discipline.  Thereafter, any summary assessment is more transparent.

12.     In the circumstances of this matter and with the reservations I have nominated, I conclude that in relation to the claim lodged on 1 September 2005, Mr Tzimogiannis suffered from the following impairments:

(a)Cervical spondylosis with evidence of right-sided foraminal encroachment at nerve root C5;

(b)Lumbar spondylosis; and

(c)Depressive disorder, with variable symptomatology.

13.     In arriving at such findings, I have relied upon Mr Tzimogiannis’s evidence, the reported findings dated 5 June 2000 of a CT scan of the cervical spine contained within Ms Flanagan's report of 8 September 2003, the report of Dr Thanos of 31 August 2008 and the two reports and oral evidence of Dr Kathryn Lovric, a consultant psychiatrist.  As regards to Dr Lovric’s report of 27 August 2007, I note her opinion that “Mr Tzimogiannis probably suffered from a major depressive disorder from 1 September 2005 to 1 December 2005” – a conclusion that Dr Lovric affirmed in her oral evidence.

Assessment

14. In addressing the assessment of the impairments, I turn to a consideration of the relevant Schedule 1B impairment table in relation to each. Table 5.1 deals with assessment of impairments of the 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.

15.     In making an assessment of the cervical spine impairment, I acknowledge that Mr Tzimogiannis described his current circumstances as involving an episodic loss of feeling in his right hand, pins and needles in all fingers for the last two months together with feeling tired and dizzy, coupled with neck pain and headache.  As noted, such symptoms were described by Mr Tzimogiannis at the initial hearing in July 2007.  A careful examination of clinical material prior to his lodgement of his claim on 1 August 2005 and within three months thereafter details a history of headaches and chronic neck pain.  I note that the only examination findings available detailed a quarter loss of the normal range of movement of the cervical spine (T11, Ms Duffy, 19 September 2005).  In such circumstances, I find that the assessment of the cervical spine impairment is five points, pursuant to table 5.1.

16.     Table 5.2 details the criteria for assessment of the thoraco─lumbar-sacral spine:

Rating           Criteria

Nil                 Normal or nearly normal range of movement.

Five               Loss of one quarter or normal range of movement.

TenLoss of one quarter normal range of movement as well as back pain or referred pain:

● with many physical activities; and

● with standing for about 30 minutes; and

● with sitting or driving for about 60 minutes;

or

Loss of half or normal range of movement.

17.     In assessing Mr Tzimogiannis’s lower back condition, I note that Mr Tzimogiannis’s evidence would indicate relative comfort with walking for half an hour, while at other times an inability to move because of pain.  Further, it is noted that Mr Tzimogiannis prefers to drive rather than use public transport and is able to stand for 10 to 20 minutes, with the length of time he is able to sit being variable.  Further, I note Mr Tzimogiannis stated that his ability to undertake activities around the home was variable and that at times he can mow the lawn, do variable cleaning and other activities around the house including cooking and washing, but not bed-making.  Further, he drives his wife to the shops but remains in the car while the shopping is done.  Mr Tzimogiannis’s main restrictions because of his back condition are noted as difficulties with bending and lifting.

18.     Further, I note that Mr Tzimogiannis’s lower back condition has been the subject of much investigation, treatment and rehabilitation.  I am satisfied that his back condition has been fully documented, diagnosed, treated and stabilised over the nine years prior to the lodgement of his claim.

19.     In addressing Table 5.2, I again note that the only documented evidence of the range of movement is that nominated by Ms Duffy in her report of September 2005 - namely, a quarter loss of the normal range of movement of the thoraco­­-lumbar sacral spine.  Further, I note that, while Mr Tzimogiannis has given somewhat variable evidence about the limitations placed on his activities as a consequence of his lower back condition, there is much evidence to suggest that Mr Tzimogiannis is able to sit for an hour (as evidenced during assessments/hearings), stand for 10-20 minutes and walk for half an hour and that there is a range of activities that he is able to accommodate.  In such circumstances, an impairment rating of five points is appropriate, as Mr Tzimogiannis does not satisfy all the criteria necessary for a 10 point finding, namely, pain with most physical activities and an inability to sit and/or drive for about 60 minutes.

20.     In addressing the depressive disorder impairment, I note a variety of symptoms have been documented since 1996.  Further, I note some evidence of treatment both by a general practitioner and by Dr Prior, a consultant psychiatrist.  However, I note the intermittent nature of the treatment undertaken and later the discontinuation of any treatment by Mr Tzimogiannis for his psychiatric condition prior to claim lodgement on 1 September 2005.  I again note, Ms Duffy’s assessment in September 2005 in which she notes such discontinuance and observes that Mr Tzimogiannis “would benefit from additional psychiatric assessment”.

21. While noting Mr Tzimogiannis’s various mental health symptoms, as described by him since 1996 to the Tribunal, referral to Dr Lovric, a consultant psychiatrist, was of assistance in achieving a better understanding of Mr Tzimogiannis’s mental health impairment in relation to the period covered by his claim lodged on 1 September 2005. In Dr Lovric’s reports of 27 August 2007 and 3 December 2007 and her oral evidence, she concluded that it was probable that Mr Tzimogiannis suffered from a major depressive disorder in the period from 1 September 2005 to 1 December 2005; that this illness was neither fully treated or stabilised at that time, in that there was needed a clinical opinion as to the management of pain, psychological treatment of 8 to 10 sessions of cognitive behavioural therapy and anti-depressive medication prescribed. Dr Lovric considered that all such treatments were reasonable, as they were available locally, affordable and of clinical benefit. I accept the analysis and opinion of Dr Lovric and, in turn, conclude that Mr Tzimogiannis’s depressive disorder was not a permanent disorder at the time of lodgement of his claim on 1 September 2005 or within the three month period thereafter, as his depressive condition had not been fully treated and stabilised. In such circumstances, pursuant to the Introductory Comments of the Schedule 1B impairment tables, the assessment of an impairment rating for a non-permanent condition is not permitted.

22. In summary, the combined assessment of Mr Tzimogiannis’s impairments found to exist during the period covered by the claim lodged on 1 September 2005 is 10 points. With such an outcome, I find that Mr Tzimogiannis fails to satisfy s 94(1)(b) of the Act. In such circumstances, I further find that Mr Tzimogiannis fails to qualify for DSP in relation to his claim of 1 September 2005, with the decision under review being affirmed.

23.     In considering briefly the issue of whether Mr Tzimogiannis has a continuing inability to work, I note the job capacity assessment reports of both Ms Duffy and Mr Robilliard.  Ms Duffy considered in her report of September 2005 that Mr Tzimogiannis was then limited to seven hours of work as a driver but with educational, vocational or on the job training, he would be able to work more than 30 hours per week within two years as a console operator.  Mr Robilliard in his report of 5 June 2007 considered that at 1 September 2005 Mr Tzimogiannis, despite the presence of permanent conditions, had a work capacity of 30 plus hours per week because the symptoms and functional losses associated with his impairments were assessed as having minimal impact on Mr Tzimogiannis’s ability to work.  Mr Robilliard considered that with the provision of disability specific intervention, Mr Tzimogiannis would be able to manage and accommodate his symptoms in the workplace, thereby ensuring that he is more easily able to sustain full-time employment for the long term.

24. In the circumstances I have noted, and having earlier concluded that the depressive disorder was not permanent at the relevant period, I further conclude that in response to the claim of 1 September 2005, Mr Tzimogiannis does not have a continuing inability to work. As a consequence, Mr Tzimogiannis does not satisfy s 94(i)(c) of the Act, with the consequence that he fails to qualify for DSP in relation to his claim lodged on 1 September 2005.

25.     For the reasons nominated earlier in this decision, I determine that the decision under review should be affirmed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed:   .........[sgd]...................................................................
               Felicia Daniele, Associate

Date of Hearing:  11 July 2007 and 23 January 2008
Date of Decision:  29 February 2008
Solicitor for the Applicant:         Self Represented
Solicitor for the Respondent:     Ms G Heggen, Centrelink, Legal Services      Branch