Xerri and Secretary, Department of Employment and Workplace Relations
[2006] AATA 493
•7 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 493
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2005/152
GENERAL ADMINISTRTIVE DIVISION ) Re EMANUEL XERRI Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal The Hon R J Groom (Deputy President) Date7 June 2006
PlaceHobart
Decision The decision under review is affirmed. ..............................................
Deputy President
CATCHWORDS
Social Security – disability support pension – impairment – whether qualifies for pension within 13 week period – whether impairments have a combined rating of 20 points or more under Impairment Tables – decision affirmed.
Social Security Act 1991 – ss41(1), 94(1), Schedule 1B
Social Security (Administration) Act 1999 – Schedule 2
Re Goudge and Secretary, Department of Social Security (1989) 17 ALD 415
Re Batson and Secretary, Department of Family and Community Services [2004] AATA 1285
Re Secretary, Department of Family and Community Services and Pistone (2003) 37 AAR 334
Re Giddings and Secretary, Department of Family and Community Services [2003] AATA 893
REASONS FOR DECISION
7 June 2006 The Hon R J Groom (Deputy President) 1. Mr Xerri is 62 years of age and resides in Malta where he was born. He lived in Australia between 1961 and 1985. He was employed as a road worker until July 2004. Mr Xerri suffers from a number of medical conditions.
2. Mr Xerri applied for a Disability Support Pension (“DSP”) on 26 August 2004 but was unsuccessful. He then failed in an appeal to the Social Security Appeals Tribunal (“SSAT”). Mr Xerri now seeks a review of that decision.
3. There is in existence an international agreement between Australia and Malta under the Social Security (International Agreements) Act 1999. It is not in dispute that if the applicant satisfies the requirements of s94(1) of the Social Security Act 1991 (“the Act”) he would otherwise be entitled to receive a DSP.
4. The hearing was conducted by telephone link to Malta. Mr Karmenu Attard acted as interpreter. The applicant attended the telephone hearing and was assisted by his wife Mrs Mary Jane Xerri and Mr Warren Dingli. Mr Brian Sparkes, Centrelink advocate, represented the respondent.
5. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the “T Documents”). Mr and Mrs Xerri and Dr M Tabart gave oral evidence.
6. The issue to be determined by the Tribunal is whether the applicant satisfies the requirements of s94(1) of the Act.
The Legislation
7. Section 94(1) of the Act relevantly provides as follows:
“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 20points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
...”
8. “Impairment Tables” means the Tables in Schedule 1B of the Act (see s23). The introduction to Schedule 1B provides, in part, as follows:
“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. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
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 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”.
Applicant Must Qualify Within 13 Weeks of Date of Claim
9. Section 94(1)(b) provides that a person must have an impairment which rates 20 points or more under the Impairment Tables. In addition, at least one of the matters set out in s94(1)(c) of the Act must be satisfied.
Section 41(1) of the Act is in the following terms:
“Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person’s start day in relation to the social security payment”.
10. Clauses 3 and 4 of Schedule 2 of the Social Security (Administration) Act 1999 relevantly provide as follows:
“Start day-general rule
3.(1) If:
(a) a person makes a claim for a social security payment; and
(b) the person is qualified for the payment on the day on which the claim is made; the person’s start day in relation to the payment is the day on which the claim is made.
Start day-early claim
4.(1) If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
4.2 For the purposes of subclause (1), the following provisions have effect:
(a) subject to paragraph (b), any social security payment, other than newstart allowance or special benefit, is a relevant social security payment”.
11. The legislature clearly intended that if a person is to qualify for payment of a “social security payment”, which term includes payment of a DSP, the applicant must be qualified at the date of the claim or within a period of 13 weeks after that date. There is no provision in the legislation for a start date for payment beyond that period. If a person becomes qualified after the 13 week period has expired then a fresh claim is required.
12. It follows that the Tribunal has to be satisfied that the applicant met the requirements of s94(1) at the date he applied for the DSP or within a period of 13 weeks following that date (see Re Goudge and Secretary DSS [1989] 17 ALD 415 at p.419, Re Batson and Secretary DF&CS [2004] AATA 1285; Re Secretary DF&CS and Pistone (2003) 37 AAR 334 and Giddings and SDF&CS (2003) AATA 893).
13. Mr Xerri lodged his claim for a DSP on 26 August 2004. The 13 week period expired on 26 November 2004.
The Evidence
14. The Tribunal has considered the oral given by Mr and Mrs Xerri and by Dr Tabart as well as the various medical reports and other written material tendered in evidence.
15. The evidence establishes that Mr Xerri suffers from the following medical conditions:
(a)Chronic depression
(b)Impaired Hearing
(c)A left knee condition
(d)Bursitis of both elbows
(e)Hypertension
(f)A heart condition.
The applicant contends that these conditions are serious and permanent, that they rate the 20 points required by s94(1)(b) of the Act and cause him to have a continuing inability to work.
Chronic Depression
16. On the evidence before the Tribunal Mr Xerri’s most serious medical condition is his chronic depression. He has now suffered from this condition for more than 5 years.
17. In her report of 9 February 2005, Dr Tabart stated:
“He has a four years history of chronic depression for which he has been under outpatient treatment for the last three. He has never been hospitalised for the condition. There have been various changes to medication over time and he is currently treated with Sertraline, Alprazolam and Hydroxyzine. There is the possibility of further changes to medication in the future as required. Symptoms affect social interaction, motivation, cognitive function and sleep. It is noted that the condition did not interfere with full-time work prior to reaching retirement age. This condition has ongoing moderate and regular symptoms which require psychiatric treatment and generates and IR of 10 on table 6.”
18. Professor Abraham Galea, a psychiatrist, in his report of 1 December 2005 said:
“Having examined Mr Xerri I would have thought that the assessment is too low because:
The personality of the patient is so deteriorated that he has to be prompted by his wife to wash, dress and take care of himself: he has to urged even to go to Church or to have a rudimentary social contacts including with his 4 children. He shows some poverty of thought and the only rumination is “how to get rid of this miserable life”: he does not even consider any valuable asset of his living. Otherwise the condition described by the initial Psychiatrist is correct and the resistance to treatment is shown by the fact that the duration and qualify of medication (various antidepressant) did nothing to improve his condition. One would have considered E.C.T. but his heart condition is such that it would warrant the risks.
The Tables for assessment of Impairment for Disability Support Pension of the Commonwealth Social Security Act 1991 Schedule 1B would put is at 20 points owing to the seriousness of the symptomology that `most clinicians would think it obviously requiring treatment or attention.’”
19. Dr Tabart when commenting on Professor Galea’s report said in oral evidence at the hearing:
“My assessment of this report is that there are worsening symptoms and with a resulting decline in function, and compared to previously there are now questions as to the cause of the decline in function and severity of – and increase in severity of symptoms.” (Transcript p18)
20. Mrs Mary Jane Xerri said in oral evidence:
“He doesn’t sleep at all during the night. He just wanders around the house. She is saying I am so sad I can’t put up with my sadness. He doesn’t want to think about the children. It is as if they don’t exist. I have to wash him, shower him. His hands start trembling. He can’t control himself while he is about to eat. I have to put his clothes on even to take him to church. He wouldn’t want to go for any reason. He wouldn’t want to go at all. He has got a lot of pain. He can’t stand the pain in his knee. He wavered when he walks from four to 10 paces, he tells me he can’t stand the pain and he sits down. His ear – he doesn’t hear anything. It is all the time buzzing. She is saying he hears a lot of knocks and buzzing in his ears.” (Transcript p 22)
21. Mrs Xerri also said:
“Yes, it has become worse, yes. A lot worse…”.
She later added:
“ …he is always getting worse.” (Transcript p22)
22.In his medical report of 26 March 2005, Dr J Vella Baldacchino states:
“Suffers from chronic depression (>4 year onset) and has been tried on a number of different antidepressants. His condition has deteriorated further precluding him from carrying out any form of gainful employment. Occasionally, he gives a hand with the gardening on my advice (word unintelligible). This was meant only as a therapeutic intervention. I therefore reiterate that his condition has deteriorated further making him unfit for further gainful employment. I therefore request that his case be reconsidered and given due attention.”
23. It is necessary for the Tribunal to look back to the time of the claim and the 13 week period thereafter in order to determine whether the Tribunal is satisfied that, at that time, Mr Ellul’s conditions had been treated and stabilised to the point where they could be said to have had the necessary degree of permanence, as required by the Impairment Tables in Schedule 1B of the Act.
24. Table 6 in the Impairment Tables in Schedule 1B under the heading “Psychiatric Impairment” relevantly provides as follows:
“NIL Mild but regular symptoms which tend to cause subjective distress. On most occasions able to distract themselves from this distress. Minimal interference with function in everyday situations. Exacerbation of symptoms may cause occasional days off work. (eg. There may be some loss of interest in activities previously enjoyed. There may be occasional friction with family, colleagues or friends) Medical therapy or some supportive treatment from treating doctor may be required.
TEN Moderate and regular symptoms and generally functioning with some difficulty. (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships). May have received psychiatric treatment which has stabilised the condition. Minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work. (eg. short periods of absence from work).
TWENTY Psychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms). There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.”
25. As mentioned in paragraph 17 above in Dr Tabart’s opinion Mr Xerri had, at the date of her report in February 2005, “… ongoing moderate and regular symptoms which required psychiatric treatment and generates an IR of 10 on Table 6.” Dr Tabart, however, on the basis of more recent information, in particular Professor Galea’s report of 1 December 2005, is now of the view that Mr Xerri’s condition has not stabilised to the point when it can be rated under the Impairment Tables.
Dr Tabart said in evidence at the hearing:
“On the basis that there is now a question as to the cause of the worsening symptoms and decline in functional capacity, this would be unable to be rated on the impairment table. It is a requirement that a condition is fully investigated, diagnosed, treated and stabilised before an impairment can be allocated.” (Transcript p19)
26. In Dr Tabart’s opinion, as reported in February 2005, Mr Xerri’s depression rated 10 points under the Impairment Tables. The SSAT, in its decision of 28 September 2005, gave this condition the same rating of 10 points. Despite Dr Tabart’s present misgivings, in light of the then available evidence the Tribunal finds the rating of 10 points was correct. In the relevant period Mr Xerri was suffering “moderate and regular symptoms and generally functioning with some difficulty”, but did not then have the more serious symptoms required to rate 20 points under Table 6.
27. The evidence which has now emerged well beyond the 13 week period, strongly suggests that Mr Xerri’s condition has worsened and that 10 points may not now be an appropriate rating. Dr Tabart, who gave persuasive evidence, expressed the following opinion on the symptoms now being experienced by the applicant:
“There is now a question as to whether or not there is a degenerative cerebral disorder in addition to or instead of a depressive disorder.” (Transcript p18)
This relatively recent manifestation of a worsening or perhaps distinct condition cannot be considered as part of the present claim lodged by the applicant in 2004, but can only be considered by Centrelink as part of a fresh claim.
28. Indeed the Tribunal notes that in paragraph 4.38 of the respondent’s Statement of Facts and Contentions the following comment is made:
“The Secretary notes that the applicant has been invited to lodge a new claim for DSP, and indeed the Secretary would encourage him to do so.”
Impaired Hearing
29. Dr Tabart said in her report of 9 February 2005:
“No further details were provided regarding the hearing loss and this complaint could not therefore be assessed and rated.”
30. No details of this condition were provided in the medical assessment report (see T8, p55 of the T documents).
31. The SSAT said: “A rating cannot be allocated his hearing loss … due to lack of medical information.” (T2, p11).
32. Professor Galea said:
“His ear condition has been diagnosed and treated to some extent by E.N.T. surgeon at Gozo General Hospital but he is still partially deaf.”
33. In a report dated 2 December 2005 Dr John Curmi stated:
“This is verify that the above (i.e. Mr Xerri) is suffering from defective hearing in both ears due to otosclerosis with persistent tinnitus.”
34. Although the applicant generally has a significant hearing problem the Tribunal concludes that there is insufficient evidence to establish percentage loss of hearing under Table 12 of the Impairment Tables.
Left Knee Condition
35.In her written report of 9 February 2005, Dr Tabart said:
“The customer also reports impaired hearing and osteoarthritis, and the Maltese Medical Panel Report notes painful left knee with major interference with walking, squatting, kneeling and climbing. … There were no medical details provided regarding the painful left knee such as onset, investigation results, diagnosis, treatment examination findings and specific functional limitations. It too could not therefore be fully assessed and rated.”
36. Mr Raymond Aquilina, an orthopaedic surgeon, said in his more recent report of 6 December 2005:
“I saw this man for the purpose of this report today. He has been suffering with pain in his left knee for about 10 years, getting progressively worse with time. There is occasional swelling in it when it is also uncomfortable at rest. However the main problems is pain on standing and especially, walking. He can now manage about 100m on the plain before he has to rest.
He takes diclofenac 50 gm tablets for symptomatic relief. Any benefit he get is short lived.”
37. After considering all of the evidence ,the Tribunal accepts Dr Tabart’s opinion that at the relevant time the knee condition was not a fully documented and diagnosed condition which had been “investigated, treated and stabilised”.
Heart Condition, Hypertension and Bursitis
38. There is a one page report from the Department of Cardiology, St Luke’s Hospital, Malta, but little other evidence of Mr Xerri’s heart condition. Similarly, there are only brief references to the applicant’s hypertension. Mr Aquilina, orthopaedic surgeon, describes the bursitis in the elbows as “a relatively minor point in the history…”.
39. The Tribunal finds that there is insufficient evidence to allow a rating of these three conditions under the Impairment Tables.
Conclusion
40. At the relevant time the applicant conditions did not satisfy the threshold of 20 points as required by s94(1)(b) of the Act.
41. As the applicant has not satisfied s94(1)(b) of the Act it is not necessary to consider the requirements of s94(1)(c) of the Act.
Decision
42.The decision under review is affirmed.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 10 April 2006
Date of Decision 7 June 2006
Counsel for the Applicant Applicant appeared on his own behalf
Solicitor for the Applicant
Counsel for the Respondent Mr Brian Sparkes
Solicitor for the Respondent Centrelink Advocate
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