Veljanovski and Department of Family and Community Services - [2000] AATA 812

DECISION AND REASONS FOR DECISION [2000] AATA 812

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1799

GENERAL ADMINISTRATIVE DIVISION          )
           Re      LJUBE VELJANOVSKI
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal R P Handley, Senior Member

Date13 September 2000
PlaceSydney

Decision      The Tribunal affirms the decision under review.
  R P Handley
  Senior Member
CATCHWORDS
Social Security – disability support pension – assessment of impairments
Social Security Act 1991, section 94, 100, Schedule 1B Impairment Tables

REASONS FOR DECISION

This is an application by Ljube Veljanovski ("the Applicant") for a review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 29 September 1999 to affirm a decision of a delegate of the Secretary of the Respondent of Family and Community Services ("the Respondent") and an authorised review officer to reject the Applicant's claim for a disability support pension.
At the hearing, the Applicant was represented by David Schier of Verekers Solicitors and the Respondent was represented by Adele Alex of Centrelink. the evidence before the Tribunal comprised the documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") together with evidence tendered by the parties. the Applicant and Maria Nacin gave oral evidence at the hearing.
BACKGROUND:
The Applicant, who was born on 18 August 1961 and is aged 38, was injured in an accident at work in 1985. After the accident, he undertook light duty work but accepted a voluntary redundancy package in 1990. thereafter, he managed a restaurant until 1991 but has not worked since. He is currently receiving newstart allowance.
On 30 April 1999, the Applicant lodged a claim for disability support pension. On 2 June 1999, he was examined by a Health Services Australia doctor, Dr Michael Murphy, who assessed the Applicant's impairment at nil points and said the Applicant was fit for a variety of light or sedentary work with restrictions.
On 9 June 1999, the Respondent rejected the Applicant's claim for disability support pension, a decision which was affirmed by an authorised review officer on 19 July 1999 and by the SSAT on 29 September 1999. On 29 November 1999, the Applicant lodged an application for a review by the Tribunal and, on 3 December 1999, the Tribunal granted an extension of time for the lodging of such an application until 29 November 1999.

LEGISLATION

The qualifications for disability support pension are set out in section 94(1) of the Social Security Act 1991 ("the Act"). Section 94(1) provides in part:
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;…

The term "continuing inability to work" is explained in section 94(2) and (3):
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 two 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 two 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 two years.
94(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of educational or vocational training or on-the-job training; or
(b) if subsection (4) does not apply to the person – the availability to the person of work in the person's locally accessible labour market.

The terms "educational or vocational training" and "work" are defined in section 94(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.

THE APPLICANT'S EVIDENCE:

The Applicant said he injured his back at work in 1985. thereafter, he was on light duties but accepted a voluntary redundancy package in 1990. He then opened a restaurant but closed this in 1991 when it was no longer financially viable. He has not worked since. He was also divorced in 1991.
The Applicant said he suffers from pain in his neck, shoulders, back, left leg and right knee. However, he does not suffer pain everyday. He gets sore after sitting or standing for more than 30 minutes and needs to change position regularly. He takes Panadeine Forte for the pain – two Tablets at a time, twice a day – on three or four days a week. He also has difficulty sleeping because of discomfort and takes Valium or Normison to help him sleep on four to six nights a week.
The Applicant said he can lift a bag weighing five kilos in each hand, but not in one hand only because this causes pain. He could lift a case of beer from Table height but would have difficulty bending to the floor to lift – he would kneel instead. When he ran the restaurant, he could not move the Tables and chairs and had to rely on his staff to do this. Lifting causes pain in the lower back and between his shoulders. He cannot raise his arms above shoulder level.
Before the accident in 1985, the Applicant did boxing as a hobby. He has not done this since. He goes fishing but finds it difficult walking on rough terrain, down hills and over rocks. Also, his balance is poor. He can drive a car but not a truck because of the pressure needed to depress the clutch pedal. He has a small automatic car with power steering.
For the past eight months, the Applicant has been in a relationship Maria Nacin whom he sees three or four days a week. She does most of his housework and washing. they only have sex once or twice a fortnight because this causes him back pain.
The Applicant said he started drinking heavily just before the 1985 accident. After the accident, he used alcohol as an additional painkiller. He has had a series of convictions for drink driving since 1992. In 1995, he was disqualified for a period of five years when he was also sentenced to four months periodic detention. He only got his licence back the day before the hearing.
The Applicant's drinking was part of the reason for his divorce. He attended an Alcoholics Anonymous program about five years ago but continued drinking. About 14 months ago, he tried Tablets prescribed by his general practitioner, Dr Boksic, to help him stop drinking without success. Since December 1999, he has been receiving treatment from a psychiatrist, Dr Ishrat Ali. the Applicant tried to stop drinking a couple of months ago but could not keep it up. He sees Dr Ali about once every three weeks for treatment and counselling in respect of his depression and alcohol abuse. Dr Ali has prescribed Zoloft (two Tablets every morning) and Melleril, which the Applicant only takes if he feels more depressed than usual. the Applicant said he also intends to start attending another Alcoholics Anonymous program that he has obtained details about, starting this week.
The Applicant drinks a bottle of Scotch and about five bottles of wine a week. He also drinks beer in summer and will drink more if he is drinking with a friend. He is embarrassed about his drinking problem and he sometimes does not want to leave the house because of his depression. About three years ago, the Applicant started seeing a doctor at the Commonwealth Rehabilitation Service ("the CRS"). He last saw a doctor at the CRS about 15 months ago. He continued to be on a CRS program until two months ago when they took him off the program after receiving a report from Dr Ali. During that time, the Applicant had a work placement with the Western Suburbs Leagues Club but they would not offer him employment because of the risk associated with his back.
The Applicant said he would like to work. He thinks he would feel better if he was working. But he would need to do something that would not affect his back or shoulders. He likes doing bar work although lifting would be difficult.
MARIA NACIN'S EVIDENCE:
Ms Nacin said she has known the Applicant for about eight months. She visits him about four days a week but does not live with him. the Applicant complains of pain for two of the three days she visits him. Ms Nacin said she does the Applicant's vacuuming and other housework and helps him bring things into the house. She does this because of the pain and depression he suffers.
Typically, the Applicant is drinking alcohol on three of the four days when she visits. He drinks Scotch and sometimes wine – to a state of intoxication on two of the three days. the level of his drinking has been about the same since she has known him. the Applicant's depression is noticeable through his drinking. On three or four days he has stayed in bed all day. On another four or five days, he has stayed in bed until noon or 1 p.m. because, he says, he is in pain.
THE APPLICANT'S SUBMISSIONS:
Mr Schier, on behalf of the Applicant, said there was medical evidence of a long history of alcohol abuse including a drink driving record since 1992. In a report dated 16 March 2000 (Exhibit A2), Dr Boksic refers to the Applicant's long term alcohol abuse – he notes that Dr Sarma's (the Applicant's previous general practitioner of 10 years, now retired) medical files show "[the Applicant] was on an alcohol abuse program for some time". The Applicant has been seeing Dr Ali since December 1999. In his report dated 25 May 2000 (Exhibit A3), Dr Ali describes the applicant's drinking history, including that he has "been through delirium stages and also had blackouts". Dr Ali's main diagnosis is "alcoholic dependency" and "adjustment disorder with dysthymia", a form of chronic depression.
Mr Schier submitted that the Applicant's alcohol dependence – which is sufficient to cause prolonged absences from work – should be assessed under Table 7 of the Impairment Tables at 20 points. Mr Schier referred the Tribunal to the introduction to the Impairment Tables. He contended that the Tribunal could take account of new evidence including as to the Applicant's treatment and his attempts at rehabilitation. He said the medical evidence is that the Applicant's condition has been treated and stabilised and that there is unlikely to be any improvement in the Applicant's condition over the next two years. In a report dated 18 July 2000 (Exhibit A4), Dr Ali assessed the Applicant at 20 points under Table 7. Mr Schier noted that the Applicant completed an Alcoholics Anonymous program five years ago without benefit.
With regard to the Applicant's back and neck pain, Mr Schier submitted that it was appropriate that the Applicant be assessed in respect of chronic entrenched pain under Table 20 rather than in respect of spinal pathology under Table 5. In his report dated 16 March 2000 (Exhibit A2), Dr Boksic stated that the Applicant "has developed chronic pain syndrome". Mr Schier submitted that the Applicant should be assessed at 20 points under Table 20 because he can complete most daily tasks only "with some difficulty" and with pain. Mr Schier noted that the Applicant had completed a pain management program at Port Kembla Hospital between 8 February 2000 and 31 March 2000 but that "his perception of his control over the pain remained relatively unchanged" (Report of Betsey Lilley, Clinical Psychologist, 15 May 2000, Exhibit A5).
Mr Schier submitted that the Applicant should also be assessed for a psychiatric impairment under Table 6. In his report dated 25 May 2000 (Exhibit A3), Dr Ali diagnosed the Applicant as suffering from an "adjustment disorder with dysthymia", for which Dr Ali is treating him. Mr Schier noted that depression may stem from chronic pain. Ms Nacin's evidence was that the Applicant regularly "sleeps in" for part or the whole of the day. This, together with the Applicant's other impairments, would indicate the likelihood of prolonged absences from work.
With regard to the qualifications for disability support pension set out in section 94(1) of the Act, Mr Schier said there is no dispute that section 94(1)(a) is satisfied in so far as the Applicant has a physical impairment. Mr Schier said the Applicant has an impairment of more than 20 points under the Impairment Tables (section 94(1)(b)) and also has "a continuing inability to work" (section 94(1)(c)).
Mr Schier pointed out that Dr Ali had said the Applicant was unfit for work and would be unfit for at least two years (Exhibit A3). In a medical review dated 20 December 1999 (Exhibit A8), Dr Boksic said the Applicant would be unable to work for at least 30 hours per week for more than 2 years. Dr Adappa, in his Treating Doctor's Report dated 28 April 1999 (T4), said the Applicant was only able to return to part-time work. Even Dr Murphy, the Health Services Australia doctor, reported (T7) that the Applicant needed assistance to return to work and suggested a referral to the CRS. Yet the CRS have now taken the Applicant off their program.

THE DEPARTMENT'S SUBMISSIONS:

Ms Alex, for the Respondent, conceded that the Applicant satisfies section 94(1)(a). However, she submitted that at the time of the Applicant's claim for the disability support pension, and for the ensuing three month period, he was not qualified under section 94(1)(b). Ms Alex referred to paragraph 4 of the Introduction to the Impairment Tables which requires that for an impairment rating to be assigned, "the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised". Ms Alex contended that no impairment rating could be assigned to the Applicant's chronic pain under Table 20, because there was no medical evidence to establish that the pain was entrenched at the relevant time as was required by paragraph 8 of the Introduction to the Impairment Tables.
Ms Alex also drew attention to the Applicant's oral evidence that he can carry five kilos in each hand, can lift a case of beer, that he does not have pain every day and can go fishing. the Health Services Australia doctor, Dr Murphy, reported on 2 June 1999 (T7) that the Applicant told him that he could perform a range of activities including mowing his lawn, light gardening, cleaning and shopping.
With regard to the Applicant's alcohol dependence, Ms Alex submitted that because this is still being treated, it cannot be assigned an impairment rating under Table 7. the introductory paragraph to Table 7 states:
A rating other than NIL on this Table should only be assigned where the person's medical and other reports, history and presentation consistently indicate chronic entrenched drug or alcohol dependence.

Ms Alex said there was no medical evidence at the relevant time to indicate entrenched alcohol dependence. the Applicant first saw Dr Ali on 30 December 1999 (Exhibit A3) and active treatment has only just begun.

With regard to "continuing inability to work" (section 94(1)(c)), Ms Alex submitted that the Applicant was not precluded from undertaking light, sedentary work subject to restrictions in respect of his back condition, as Dr Murphy said in his report (T7). Ms Alex noted that Dr Adappa, in his Treating Doctor's Report dated 28 April 1999 (T4), had said that the Applicant was able to return to part-time work for at least eight hours per week.
Ms Alex concluded that the SSAT had made the correct and preferable decision. It was always open to the Applicant to test his eligibility for the disability support pension by submitting a new claim.
CONSIDERATIONS AND FINDINGS:
There is no dispute that the Applicant suffers a physical impairment following his work related accident in 1985. In determining his qualification for a disability support pension, the issues for the Tribunal to decide are, firstly, whether the Applicant's impairment is of 20 points or more under the Impairment Tables set out in Schedule 1B of the Act and, if so, secondly, whether he has a continuing inability to work.
The SSAT considered that Tables 5.1 and 5.2, which assess impairment on the basis of a demonstrable loss of spinal function, should be used to assess the level of impairment arising from the Applicant's neck, shoulder and lower back pain. the SSAT referred to paragraph 8 of the Introduction to the Impairment Tables which states, in relation to Table 20 (which is used to assess miscellaneous conditions including chronic pain):
Medical reports and the person's history should consistently indicate the presence of chronic entrenched pain or fatigue.

The SSAT found that the medical evidence did not establish that the level of entrenched pain was such that the Applicant's condition should be assessed under Table 20.

The SSAT also found that the Applicant's alcohol dependency "has only recently been referred to in medical reports". It found "insufficient medical evidence at this stage to find that there is a chronic problem and the extent of functional impairment caused" (T2, page 14). The SSAT concluded that the Applicant's alcohol dependency had not been fully investigated or diagnosed and so could not be rated under the Tables.
The Tribunal notes that paragraph 4 of the Introduction to the Tables states:
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.
There is no dispute that the Applicant suffers from back, neck and shoulder pain as a result of the spinal injury he suffered in 1985. The Tribunal notes an undated report for the CRS by Dr Ross Mills, Occupational Physician, following an examination on 6 July 1999 (Exhibit A7). Dr Mills said that the Applicant presented with "chronic pain syndrome secondary to underlying back pain". Dr Mills said the Applicant could "significantly improve his job readiness through an exercise program, addressing his alcohol intake and through chronic pain management program". The Applicant subsequently attended a pain management program at Port Kembla Hospital between 8 February and 31 March 2000. Following this program, Betsey Lilley, Clinical Psychologist, reported, on 15 May 2000 (Exhibit A5), that the Applicant's "perception of his control over the pain remained relatively unchanged".
The Tribunal finds there is also medical and other evidence to establish a history of alcohol abuse. Dr Boksic (Exhibit A2) refers to a history and to a record of this in the Applicant's previous general practitioner's medical records. The Applicant's driving record (Exhibit A1) lists a series of drink driving convictions dating from 1992. The Applicant described, in evidence, how he had been dependent on alcohol for many years and that attempts at rehabilitation had failed.
Unfortunately, this evidence as to the Applicant's alcohol abuse was not available to the original decision-maker. Indeed, it is only since the SSAT decision that the Applicant has been treated by a psychiatrist, Dr Ali, for alcohol abuse and depression. the Applicant gave evidence that he would shortly be attending another Alcoholics Anonymous program.

Dr Ali (Exhibit A3) diagnosed an adjustment disorder with dysthymia, a form of chronic depression. He considered that the Applicant had experienced "depressive symptoms for a long time and they have prevented him from working". Dr Ali first saw the Applicant on 30 December 1999. He has prescribed the anti-depressant medication Zoloft. Thus, treatment has only commenced fairly recently.
The overall picture is one of significant steps having been taken to further investigate and attempt to treat the Applicant's various conditions since mid-1999. At the time of the original claim on 30 April 1999 and in the ensuing three month period, which would be relevant in terms of a provisional commencement day for payment of disability support pension under section 100(3), there was relatively little supporting medical evidence detailing the Applicant's conditions or their treatment. In the Tribunal's view, it could not be said that, in accordance with paragraph 4 of the Introduction to the Impairment Tables, the conditions chronic pain, alcohol dependence and depression, were fully documented, diagnosed conditions which have been investigated, treated and stabilised. It was not, therefore, appropriate to assign these conditions impairment ratings.
In the Tribunals view, the SSAT acted correctly in neither rating the Applicant's chronic pain under Table 20 nor rating his alcohol dependency under Table 7. the question of rating the Applicant's depression was not raised at the SSAT hearing but rather was first raised in the current proceedings. the Tribunal therefore concludes that the SSAT's decision that the Applicant did not satisfy the requirement for an impairment rating of 20 points or more under the Impairment Tables (section 94(1)(b)) was correct. Consequently, so also was the SSAT's decision to affirm the rejection of the Applicant's claim for disability support pension.
Given that there is now significantly more evidence as to the nature and effect of the Applicant's conditions, it may be more appropriate for the Applicant to lodge a new claim for disability support pension and test his eligibility for the pension afresh.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision of R P Handley Senior Member:
Signed:         .....................................................................................
  Associate
Date/s of Hearing  21 July 2000
Date of Decision  13 September 2000
Solicitor for the Applicant         David Schier
Advocate for the Respondent Adele Alex