Zotti; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and
[2009] AATA 618
•21 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 618
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2609
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Applicant
And
ANGELO ZOTTI
Respondent
DECISION
Tribunal Senior Member R W Dunne Date21 August 2009
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and substitutes a decision that the respondent was not eligible for Disability Support Pension at the time of his claim.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – claim for Disability Support Pension – physical, intellectual or psychiatric impairment – total rating of impairments under Impairment Tables – continuing inability to work – decision set aside
Social Security Act 1991 s 94
Re Ilka and Secretary, Department of Employment and Workplace Relations [2006] AATA 828
REASONS FOR DECISION
21 August 2009 Senior Member R W Dunne introduction
1. The respondent (Angelo Zotti) lodged a claim for Disability Support Pension (“DSP”) with the applicant (“Centrelink”) on 27 July 2006, which was accompanied by two treating doctor’s reports from Dr G F White dated 13 July 2006 and 25 July 2006. On 6 September 2006, Mr Zotti underwent a face-to-face job capacity assessment with Mr Robert Holt, a registered psychologist employed as a job capacity assessor by Centrelink. Mr Zotti’s claim for DSP was rejected on the basis that his medical impairments did not rate 20 points or more as required under s 94(1)(b) of the Social Security Act 1991 (“Act”). The rejection decision was reviewed and then subsequently affirmed by an Authorised Review Officer on 16 March 2007. However, on 11 May 2007 the Social Security Appeals Tribunal (“SSAT”) decided to set aside the decision on the basis that Mr Zotti satisfied paragraphs (a), (b) and (c) of s 94(1) of the Act. On 19 June 2007, Centrelink applied to this Tribunal for a review of the decision of the SSAT.
2. At the hearing, Mr Anthony Parker (from Centrelink Legal Services and Procurement Branch) appeared for the applicant and Ms Margaret Riley (from Welfare Rights Centre (SA) Inc) appeared for the respondent. Mr Zotti gave evidence, along with evidence by telephone given by Ms Tanya Parhas, an occupational therapist with Centrelink. The T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence as Exhibit A1. In addition, the following documents were admitted into evidence:
·report of Dr M Begg dated 2 October 2007 (Exhibit A2);
·report of Dr M Begg dated 22 January 2008 (Exhibit A3);
·report of Dr G Champion dated 25 April 2008 (Exhibit A4);
·report of Dr G Champion dated 11 August 2008 (Exhibit A5);
·Job Capacity Assessment Report of Ms Tanya Parhas (Exhibit A6);
·letter from REST Superannuation dated 24 December 2007 (Exhibit R1);
·letter from REST Superannuation dated 9 July 2008 (Exhibit R2); and
·handwritten note from the respondent outlining his current medication (Exhibit R3).
issues for the tribunal
3. The issues for the Tribunal, under s 94 of the Act, are:
·Did Mr Zotti have any physical, intellectual or psychiatric impairment?
·Did the impairment rate at least 20 points under the Impairment Tables contained in Schedule 1B of the Act?
·Did Mr Zotti have a “continuing inability to work” within the meaning of ss 94(1)(c) and 94(2) of the Act?
4. Consideration of the above qualification issues is to be determined within a 13 week period commencing with the date of lodgement of Mr Zotti’s claim for DSP (Schedule 2, Part 2, s 4 of the Social Security (Administration) Act 1999). The Tribunal notes the applicant accepts that, during the 13 week claim period, the respondent had a “physical, intellectual or psychiatric impairment” as required by s 94(1)(a) of the Act.
legislation
5. By s 94(1) of the Act a person is qualified for DSP if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the impairment attracts a rating of 20 points or more under the Impairment Tables that comprise Schedule 1B to the Act; and
(c)the person has a continuing inability to work (or is participating in a supported wage system); and
(d)the person is aged 16 years or more; and
(e)the person satisfies residency requirements.
As already indicated, the impairment requirement has been conceded, Mr Zotti is aged over 16 years and he satisfies the residency requirements. Thus, paragraphs (a), (d) and (e) of s 94(1) need not be considered further.
6. Section 94(2) of the Act (when read with s 94(3)) gives meaning to the expression “continuing inability to work” and relevantly reads:
“94 Qualification for disability support pension
…
(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).
(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 a training activity; or
(b)the availability to the person of work in the person’s locally accessible labour market.
…”
background and evidence of respondent
7. Mr Zotti is 44 years of age, he is married and he has two stepchildren aged 19 and 20 who live away from home. He has been out of the workforce since September 2005. On 25 May 2006, he underwent a medical assessment by Dr Carolyn Harris, Health Services Australia, for the purposes of his entitlement to sickness allowance. Dr Harris noted that Mr Zotti had the condition of rheumatoid arthritis (newly diagnosed) (Exhibit A1, T9 at page 75) and described the functional impact of the condition as temporary. In his treating doctor’s report dated 13 July 2006, Dr White confirmed the diagnosis of rheumatoid arthritis. He also identified depression as a condition suffered by Mr Zotti. In his treating doctor’s report dated 25 July 2006, Dr White identified diabetes mellitus as a condition suffered by Mr Zotti. In his Job Capacity Assessment report of 6 September 2006, Mr Holt found the diabetes and the rheumatoid arthritis to be permanent conditions and assigned nil impairment rating points to them.
8. In giving his evidence, Mr Zotti said that he left his last place of employment at Foodland, Torrensville, because he struggled to load the shelves with cans. He had to get other staff to assist him because he could not lift his arms high enough. He was unable to have his heavy truck driver’s licence renewed, because Dr White refused to endorse the renewal, and his licence was downgraded to a normal motor vehicle licence. Dr White had refused the endorsement because Mr Zotti’s shoulder would “lock up”, which could be dangerous to other road users. He had swelling in his hands and joints and this had prevented him from undertaking any form of job training. He found that he had diabetes in June 2006 and suffered pain in his shoulders, elbows and hands. In his lower body, he suffered pain in his ankles, hips and occasionally in his knees. He could walk a minimal distance, but would then have to rest and continue walking. He could climb stairs but, if his hands were sore, he struggled to grip the handrail. He could lift his arms to the horizontal position, but if he pushed further, he would feel pain in his shoulders. He was unable to do much gardening at home and had difficulty sleeping because of the pain in his shoulders. He also suffered from back pain, which Dr White and his new general practitioner (Dr Nicholls) said was caused by his rheumatoid arthritis. He said that any pain that he had experienced in the last two or three years was related to his rheumatoid arthritis.
9. Mr Zotti said he found it difficult to get moving in the mornings, especially in the cold weather. If he did things that he shouldn’t, he experienced adverse reactions that lasted up to two or three days. When he first saw his rheumatologist, Dr Champion, he was prescribed methotrexate to reduce joint swelling, but he still suffered pain and the swelling returned. As to chores around the home, his wife did everything for him. He could not mow the lawns, prune trees and rose bushes and do general gardening. He could go shopping with his wife, but could only carry light shopping bags. He had not tried to return to work because of the pain he was experiencing and his medication often caused him to feel tired and groggy. He said he could not undertake any study because he lacked concentration and would only become frustrated. He found it difficult to use public transport, if his wife was not available to drive, as his hands were sore and he would struggle to climb on board. His arthritis had affected his social life because of his limping, which was an embarrassment to him. Ms Riley referred Mr Zotti to his current medication (Exhibit R3), which comprised methotrexate (10 mg, 1½ each week), prednisolone (5 mg daily), folic acid (500 mg daily), metformin (500 mg twice daily), zocor (20 mg nightly), efexor (75 mg daily) and panadol osteo (665 mg, 2 or 3 times daily). Mr Zotti said that the medication caused him to suffer dizziness, stomach soreness, lack of libido and he needed frequent toilet visits. However, he viewed his medication seriously and always took what his doctors prescribed.
10. When asked to explain the basis for the REST Superannuation payment in July 2008 (Exhibits R1 and R2), Mr Zotti said that, in order for him to receive the payment, he had to show the insurer that he suffered from a total and permanent disability. He had asked Dr Champion, who had provided a “sign-off” in relation to the claim for total and permanent disability. Then, when questioned about the Job Capacity Assessment conducted by Ms Tanya Parhas on 18 February 2008, Mr Zotti said that she had not conducted any stretching, lifting or turning exercises during the assessment. The assessment took about 30 to 35 minutes and did not involve any measurement of movement or loss of movement.
11. In cross-examination, Mr Zotti said that he first noticed having trouble with his shoulders and legs a number of months before he went to see Dr White, who prescribed prednisolone and panadol. Within the first five or six weeks, the swelling in his joints reduced, but the pain persisted. When he saw Dr Champion, he was told that there was no cure for rheumatoid arthritis, but he was taking methotrexate, the “Rolls Royce of medication”, and had not tried any different medication. Mr Zotti was unable to explain why Dr Champion would have provided a sign-off in relation to his total and permanent disability claim and the payment made in July 2008 when, up until August 2008, he was not able to describe the arthritis condition as permanent. He said he was confused by Dr Champion’s apparent “back flip” which enabled the payment of the REST Superannuation benefit to occur.
evidence of ms tanya parhas
12. The evidence of Ms Parhas, a registered occupational therapist who worked as a job capacity assessor, educator and advisor, was given by telephone. She said she had assessed Mr Zotti in February 2008 when he presented with the conditions of diabetes, rheumatoid arthritis and depression. The assessment involved a face-to-face interview, at which Mr Zotti’s wife was also present, and took approximately one and a half hours. There was no hands-on assessment, but a discussion during which Mr Zotti demonstrated his active range of motion on his left shoulder and on his right shoulder. She said:
“… He did four active range of motion on his left arm. So he did that and that means that if you’re lifting your arm, you can virtually say that it is mainly upright and you have your arm to your side, he’d lift his arm all the way up to his arm touching his ear. On the right side he moved it to an approximately 90 degree angle on his right shoulder.” (Transcript, page 33)
Ms Parhas explained that, from the type of questions asked and the medical documentation provided, she was able, as at February 2008, to make an assessment of Mr Zotti’s conditions existing in July 2006. As to his rheumatoid arthritis, in terms of the upper limb, it was a permanent condition that was not fully diagnosed, treated and stabilised. She had reached this conclusion from the treating doctor’s report of Dr White completed on 13 July 2006, as well as his report of 25 July 2006, and Dr Begg’s report of 2 October 2007. Dr Begg’s report had assisted her in coming to her conclusion and she said:
“… where he’d reported that clinical examination showed no objective evidence of nerve inflammation, which is the classical finding that rheumatoid arthritis is actually active, also where he had also stated that he could not be convinced that all pain-related physical findings could be fully explained on an organic basis, and also that it was not clear why Mr Zotti had not requested or been sent back to Dr Champion, considering that he hadn’t improved. So those also indicated to me that there was great – that investigations needed to take place.” (Transcript, page 34)
13. When asked whether she was able to attribute any impairment points relating to the upper limb condition, Ms Parhas again said she was unable to do so because the condition was not fully diagnosed, treated and stabilised. In terms of the treatment options that Mr Zotti had undergone at the time of the assessment, she said that he had been referred to a specialist to confirm the diagnosis and had been prescribed medication by his treating doctor. He was to be referred back to Dr Champion to become a private patient and commence the medication. There were other treatment options, such as physiotherapy and occupational therapy, hydrotherapy, hot and cold applications and electro-stimulation, otherwise known as TENS or transcutaneous electric nerve stimulation. In terms of improving Mr Zotti’s functional capacity, she said that these treatment options would decrease pain, increase strength, decrease joint stiffness, increase range of motion and decrease swelling. Collectively, these options would increase his functional capacity to engage in both work-related and personal activities.
14. As to the effect of the arthritis on Mr Zotti’s lower limbs, Ms Parhas concluded that it was permanent and was not fully diagnosed, treated and stabilised. The treatment options in relation to the upper limbs would also be relevant or appropriate for the lower limb function. In relation to the diabetes, she concluded that the condition was permanent and was not fully diagnosed, treated and stabilised. When asked whether there were any treatment options she could recommend for the diabetes she said that, although he was on medication for the condition, he had reported to her that he had never received education in regard to his dietary intake and did not have a controlled diet. Based on the treating doctor’s reports and what Mr Zotti had reported, she concluded that the diabetes was temporary. Also, as all treatment options had not been utilised, she concluded that the depression was a temporary condition. In relation to work capacity, Ms Parhas said she assessed Mr Zotti’s current and future capacity to work, without any form of intervention, as 8 to 14 hours per week. She made this assessment by looking at the functional impact of his medical conditions, his ability to engage in activities of daily living and his past employment history. He reported to be working about 25 hours a week as a stock filler and, on this basis, Ms Parhas assessed his work capacity at 8 to 14 hours per week, at least in a light role. As to future capacity to do light work in a supported workplace with intervention from psychologists, physiotherapists and occupational therapists, Mr Zotti would be capable of between 26 to 29 hours work per week. Employment options would include light courier work, coupled with manual handling education and a no-lift policy. Another employment option would be administrative- type work for customer service. Ms Parhas noted that, from what she could see, since 2005 when Mr Zotti had been diagnosed with rheumatoid arthritis, he had not attempted to return to work.
15. In cross-examination by Ms Riley, Ms Parhas was referred to the two treating doctor’s reports of Dr White (Exhibit A1, T7 and T8, pages 54-69). She said she regarded the report dated 25 July 2006 to be more up-to-date and of greater significance in considering Mr Zotti’s medical conditions. In commenting on the reports, she said:
“Well, no. I – the fact that the subsequent one – I mean, from the fact that the subsequent one he’s written – has put them in section B is saying that he may have received them since then or he’s seen Mr Zotti again since then. I mean, I don’t necessarily agree with that. I think he’s got ample room to write the other three, the other conditions. There’s plenty of room. From reading it if you look at them in subsequent order, Dr White has written these conditions down, and then Mr Zotti must have gone back to his doctor to give him another treating doctor’s report and he has now written a more thorough report, in my view, because he knows he’s only completed one. So this is – I consider this last report of more significance because that’s what he wrote most recently. So I consider his last treating doctor’s report more significant, holding a bit more significance than the first because he wrote that last.” (Transcript, page 43)
16. In re-examination, when asked whether a person who presented with rheumatoid arthritis would have gone through a process of looking at the various treatment options, Ms Parhas said:
“It can depend on the individual, but in most cases, with anything, they – usually – I’m surprised – very rarely do I see anybody with rheumatoid arthritis who has not pursued those treatment options. Even if you’re looking at, just as an example, depression or anxiety, a lot of people tend just to go to see a psychologist before starting with the medication. But look, there’s no right or wrong way. Each person is an individual, but very rarely, very rarely have I seen someone who has not pursued the physiotherapy or occupational therapy form of intervention because these forms of – the treatment options are quite readily available. …” (Transcript, pages 58-59)
medical evidence
17. The T documents contained a Medical Assessment Report (from Dr C Harris, Health Services Australia) and a Job Capacity Assessment Report from Mr R Holt, registered psychologist. Also, before the Tribunal were medical reports from Dr M Begg, rheumatologist (Exhibits A2 and A3) and from Dr G Champion, rheumatologist (Exhibits A4 and A5).
Report of Dr C Harris dated 25 May 2006
18. Dr Harris’ report referred to Mr Zotti’s newly diagnosed rheumatoid arthritis and his pain in both shoulders, ankles, knees and hands. Mr Zotti required help with showering and was unable to mow lawns or perform any lifting or carrying. He also found driving difficult. Dr Harris described the functional impact of the condition as temporary. As it was recently diagnosed, the condition would probably stabilise to a point where Mr Zotti was more active. He was considered fit for light, part-time employment, 8 to 14 hours per week with capacity expected to increase to 30+ hours within 24 months.
Report of Mr R Holt dated 6 September 2006
19. Mr Holt’s report stated that, at the time of the assessment, Mr Zotti’s conditions of arthritis and depression were regarded as generally well-managed and of limited impact on his ability to work. Diabetes mellitus had been diagnosed in July 2006 and had not stabilised. Mr Zotti was regarded as treatment compliant, and the diabetes was believed likely to have a fluctuating impact and expected to continue for in excess of 24 months. He reported being restricted by pain in his right shoulder, ankle and hand, ranging from discomforting to distressing, most days. He also reported continuing fluctuating blood sugar levels, sleep disturbance, low frustration tolerance and reduced motivation. Mr Hold noted that some unrecognised and untreated inter-personal issues were likely to be contributing to difficulties with stabilising the diabetes. This condition should still be treated as temporary and regarded as not yet fully treated and stabilised. Mr Zotti’s condition remained medically intensive and he would not be expected to be capable of 8 to 14 hours work per week.
Report of Dr M Begg dated 2 October 2007
20. In his discussion and conclusions, Dr Begg’s report stated that a diagnosis of diabetes type 2 was presumed on the basis of the history given, without physical signs being elicited. The pains Mr Zotti described in his thighs and calves, when walking, were suggestive of claudification. The symptoms he described were consistent with a diagnosis of rheumatoid arthritis, but clinical examination showed no objective evidence of synovial inflammation, a classical finding when the disease was active. The degree of shoulder movement restriction was consistent with severe pathology in these joints, but the expected degree of disuse muscle wasting was absent. Dr Begg said he could not be convinced that all the pain related physical findings could be fully explained on an organic basis. To confirm the diagnosis of rheumatoid arthritis it would be desirable to have access to the original and progress blood findings and x-ray results.
21. By reference to the Impairment Tables, Dr Begg made the following functional assessments:
·right upper limb – 5 points;
·non dominant left upper limb – 5 points;
·the clinical impression was that interference with right and left hand function or manual handling was mild;
·in relation to Mr Zotti’s legs, there was no demonstrable loss of function. Claudication symptoms on history, bilaterally, consistent with 10 points.
Report of Dr M Begg dated 22 January 2008
22. Dr Begg stated that, from his examination of Mr Zotti on 2 October 2007, he concluded that his rheumatoid arthritis had been fully treated and that it had been stabilised. There was no indication of the need to consider any other treatment options. As to the status of the upper limbs, a rating of nil was applicable to both the dominant and non-dominant limb if the applicable criteria were that any loss of strength or mobility in the upper limbs was immaterial if there was minimal interference with hand function or manual handling, as was apparent in Mr Zotti’s case. The lower limb rating of 10 points in Dr Begg’s report of 2 October 2007 remained unchanged.
Report of Dr G Champion dated 25 April 2008
23. Dr Champion’s report referred to his examinations of Mr Zotti on 12 October 2005, 11 December 2007 and 20 March 2008. He stated that, on 12 October 2005, his opinion was that Mr Zotti had rheumatoid arthritis and there were good clinical grounds for that diagnosis, together with objective supportive evidence on the blood tests. He was commenced on a disease modifying agent, the gold standard for the treatment of rheumatoid diseases, that of methotrexate, together with folic acid supplementation and prednisolone. On 11 December 2007, he confirmed his earlier assessment of rheumatoid arthritis, based on Mr Zotti’s history, physical examination and blood tests, and that it was then currently clinically active. Mr Zotti also had type 2 diabetes mellitus, based on blood tests, which was poorly controlled, based on history. Dr Champion said that, on 20 March 2008, he assessed Mr Zotti as still having active rheumatoid disease, with quite a degree of inflammatory arthritis across the MCP joints.
24. In giving his current report (at page 4), Dr Champion stated:
“… he [Mr Zotti] requires ongoing treatment of his rheumatoid arthritis and I would expect that the control of this would be improved if he follows my treatment regime. I believe to assess him as having a permanent disability without appropriate treatment of his rheumatoid arthritis would be foolish, not withstanding that at this stage I believe he requires more treatment of his rheumatoid disease before one can say he is significantly and permanently disabled. …
I emphasise that I should be able to gain better control of his rheumatoid arthritis in the future. However, it was not controlled when I last saw him.”
Report of Dr G Champion dated 11 August 2008
25. Dr Champion’s report referred to his earlier report dated 25 April 2008. He stated that, in the earlier report, he was indicating that it was inappropriate to consider a permanent disability regarding rheumatoid arthritis without appropriate treatment. In Mr Zotti’s case, he could not state that he had a permanent residual disability related to his rheumatoid arthritis because he had had inadequate treatment to date. As he had had inadequate treatment, one could not regard him as having a permanent disability that would prevent him from working. Dr Champion stated that, for the purposes of social security law, he would not regard Mr Zotti as having a permanent condition, in that he had not been fully treated and stabilised. There were far more treatment options available to him to consider any disability as permanent at this stage.
consideration
Did Mr Zotti have a physical, intellectual or psychiatric impairment?
26. To qualify for DSP, Mr Zotti must satisfy the relevant requirements of s 94(1) of the Act. It is to be noted at the outset that, by virtue of s 42 and Schedule 2 of the Act, Mr Zotti’s entitlement to DSP must be considered as at the date of his claim, namely 27 July 2006, and a period of 13 weeks thereafter. Any subsequent change in his health is irrelevant to the questions that arise in this matter, except insofar as it may cast light on the position at the relevant time. The applicant does not dispute that Mr Zotti has a physical impairment, having been diagnosed with rheumatoid arthritis prior to the medical assessment by Dr Harris on 25 May 2006. The requirements of s 94(1)(a) of the Act are thus satisfied.
Did Mr Zotti’s impairment rate at least 20 points under the Impairment Tables?
27. The second requirement in s 94(1) is that Mr Zotti’s medical conditions must attract an impairment rating of at least 20 points under the Impairment Tables set out in Schedule 1B of the Act (see s 94(1)(b) of the Act). As the Tribunal has noted on previous occasions, the introduction to the Impairment Tables relevantly provides (in paragraphs 4, 5 and 6):
“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.
…”
28. The SSAT found that Mr Zotti’s rheumatoid arthritis had been fully diagnosed, treated and stabilised and the condition was likely to last more than two years. Under Table 4 of the Impairment Tables, the rheumatoid arthritis attracted an impairment rating of 10 points because Mr Zotti suffered moderate interference with walking (250-500 m) and an inability to squat or kneel. Under Table 3, the rheumatoid arthritis attracted an impairment rating of 10 points because of moderate interference of function of the dominant arm. The diabetes mellitus was of limited impact and attracted a nil impairment rating. The depression was rated as temporary and did not attract an impairment rating. Thus, with regard to his rheumatoid arthritis, Mr Zotti’s impairment rating was 20 points, which qualified him for DSP.
29. The Tribunal agrees with the findings of the SSAT in relation to Mr Zotti’s diabetes and depression. The findings are supported by Dr Begg and Dr Champion in their reports, and by Mr Holt and Ms Parhas in their Job Capacity Assessment Reports.
30. In relation to Mr Zotti’s rheumatoid arthritis, there are competing opinions expressed by Dr White in his treating doctor’s reports and by Dr Begg, Dr Champion and Ms Parhas in their reports. Dr White provided his reports approximately two weeks apart. The first report dealt with rheumatoid arthritis (Condition 1) and depression (Condition 2). The only Condition dealt with in the second report was diabetes mellitus, although provision was available for other Conditions to be dealt with. In her evidence, Ms Parhas suggested that Dr White’s second report was of more “significance” because he wrote it last. The Tribunal does not accept this argument. In it’s view, Dr White prepared his report dated 13 July 2006 and, when it became apparent that Mr Zotti had developed diabetes, which may have been overlooked earlier, a second treating doctor’s report was required dealing only with that condition. Although there are competing reports, they have been presented by the respondent’s treating doctor and by specialist rheumatologists. In Dr Begg’s report of 2 October 2007, he assessed both Mr Zotti’s right upper limb and non-dominant left upper limb with a rating of 5 points. Under the Impairment Tables, both upper limb functions are assessed under Table 3, which does not provide for a rating of 5 points for both left and right upper limbs. Dr Begg corrected his assessment in his second report (dated 22 January 2008) and attributed a rating of nil to both the dominant and non-dominant upper limbs. In Dr Champion’s reports, he did not consider Mr Zotti’s rheumatoid arthritis to be permanent. In page 2 of his report of 11 August 2008, he said:
“As he [Mr Zotti] has had inadequate treatment, therefore, one cannot regard him as having a permanent disability that will prevent him from working.
… Therefore, for the purposes of social security law, I would not regard him as having a permanent condition, in that he has not been fully treated and stabilised. There are far more treatment options available to him to consider any disability as permanent at this stage.”
31. Interestingly, Mr Zotti’s evidence was that Dr Champion, along with Dr White, supported his insurance claim to REST Superannuation for total and permanent disability. This suggested some inconsistency in Dr Champion’s reports, which Ms Riley noted in her closing. She said it was her understanding that Dr Champion would be giving evidence for the applicant and she intended to cross-examine him. However, when he was not called, she was unable to obtain a copy of his report given to Dr White at the time of the REST Superannuation claim. Although there would appear to be some inconsistency, the Tribunal must have regard and give appropriate weight to the medical evidence before it. It is unclear what form the “sign-off”, by Dr Champion, of the insurance claim took. Mr Zotti did not see what Dr Champion said in the documentation forwarded to the insurer. In the absence of evidence detailing what he said in the “sign-off”, the Tribunal must rely on the content of his reports dated 25 April 2008 and 11 August 2008, the latter post-dating the REST Superannuation payment on 11 July 2008.
32. In circumstances where the Tribunal has not seen or heard orally from Dr Begg, Dr Champion or Dr White, the Tribunal must determine which body of opinion is to be preferred, by reference to the experience and qualifications of the persons expressing the opinions and the nature of the evidence put forward by them. On this basis, the Tribunal prefers the opinions of Dr Begg and Dr Champion, as specialist rheumatologists, rather than Dr White, as Mr Zotti’s treating doctor. The evidence of Ms Parhas was of some persuasive value. However, like Deputy President P E Hack SC in assessing the evidence of a senior occupational therapist in Re Ilka and Secretary, Department of Employment and Workplace Relations [2006] AATA 828 (at paragraph 45), the Tribunal noted the particular enthusiasm displayed by Ms Parhas in the course of her presentation and it was considered necessary by the Tribunal that her evidence be tempered accordingly.
33. As to the evidence of Mr Zotti himself, the Tribunal is satisfied that he suffers from some level of pain in his shoulders, his ankles and his hands. However, as was said by Dr Begg in his report of 2 October 2007, clinical examination showed no objective evidence of synovial inflammation, a classical finding when rheumatoid arthritis is active. Dr Begg could not be convinced that all the pain related physical findings could be fully explained on an organic basis.
34. Thus, having regard particularly to the reports of Dr Begg, the Tribunal is not satisfied that there was demonstrable evidence of loss of strength, mobility, co-ordination, dexterity and/or sensation in both Mr Zotti’s dominant and non-dominant upper limbs which caused moderate interference with hand function or manual handling. At worst, there was only mild interference with the hand function or manual handling of the non-dominant limb. In these circumstances, as the criteria in Table 3 of the Impairment Tables has not been met, the rating assigned to the upper limb impairment must be nil. Dr Begg’s assessment of Mr Zotti’s lower limb function, which was rated at 10 points under Table 4, would remain unchanged. It follows that the respondent’s combined impairment is not 20 points or more under the Impairment Tables.
35. The Tribunal was reminded by Mr Parker in his closing, in obvious fairness to Mr Zotti, that his claim under review was made in July 2006 and that he was welcome to test his eligibility for DSP at any time. Mr Zotti is encouraged to do this if circumstances are appropriate.
Did Mr Zotti have a “continuing inability to work”?
36. Given the Tribunal’s finding in relation to s 94(1)(b) of the Act, it is unnecessary to consider whether Mr Zotti had a continuing inability to work within the meaning of s 94(1)(c)(i) and s 92(2). In any event, the Tribunal recognises that there are conditions for which no rating has been given as the conditions have not been fully documented, investigated, treated and stabilised. In these circumstances, it is likely that a reasoned analysis of Mr Zotti’s continuing inability to work would be open to some difficulty.
decision
37. For the reasons above, the Tribunal sets aside the decision under review and substitutes a decision that the respondent was not eligible for DSP at the time of his claim.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: .....................................................................................
AssociateDate of Hearing 17 March 2009
Date of Decision 21 August 2009Advocate for the Applicant Mr A Parker
Centrelink Legal Services & Procurement Branch
Advocate for the Respondent Ms M RileyWelfare Rights Centre (SA) Inc
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