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Federal Court of Australia - Full Court Decisions |
Last Updated: 21 August 2007
FEDERAL COURT OF AUSTRALIA
Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130
ADMINISTRATIVE LAW – disability
support pension – eligibility – assessment of impairment –
chronic pain –
criteria for assessment – requirement that condition
be diagnosed, treated and stabilised – contradictory findings by
AAT
– finding that condition of chronic pain not diagnosed, treated and
stabilised for purposes of assessment under Impairment
Tables – basis of
conclusion not disclosed – conclusion contrary to the evidence –
error of law – appeal
dismissed
SOCIAL SECURITY –
eligibility criteria for disability support pension – Impairment Tables
– whether condition diagnosed,
treated and stabilised – effect of
further hypothetical third party investigations
Administrative Appeals Tribunal Act
1975 (Cth) s 44
Social Security Act 1991 (Cth)
SECRETARY, DEPARTMENT OF
EMPLOYMENT AND WORKPLACE RELATIONS v INGRID HARRIS
NSD 617 OF
2007
FRENCH, TAMBERLIN & RARES
JJ
20 AUGUST 2007
SYDNEY
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AND:
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THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the
Federal Court Rules.
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
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BETWEEN:
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SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE
RELATIONS
Appellant |
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AND:
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INGRID HARRIS
Respondent |
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JUDGES:
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FRENCH, TAMBERLIN & RARES JJ
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DATE:
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20 AUGUST 2007
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
THE COURT:
Introduction
1 In April 2004 Ingrid Harris applied to Centrelink for a disability support pension based upon a number of conditions, including right carpal tunnel syndrome and associated pain, neck and shoulder pain and depression and anxiety. Her application was refused. She sought internal review and again was refused. She applied to the Social Security Appeals Tribunal (SSAT) for review of the Centrelink decision and was unsuccessful. She appealed to the Administrative Appeals Tribunal (AAT) and on 9 June 2006 the AAT affirmed the decision of the SSAT. Ms Harris then appealed to the Federal Court in the exercise of its original jurisdiction under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). On 22 March 2007 Gyles J set aside the decision of the AAT and remitted it to be dealt with according to law.
2 Ms Harris’ application to the AAT had been supported by medical
evidence indicating that she suffered from chronic pain.
An occupational
physician had assessed her impairment by reason of that chronic pain at 20
points under Table 20 of the Impairment
Tables set out in Schedule 1B of the
Social Security Act 1991 (Cth). The AAT in affirming the decision of the
SSAT had made the explicit finding at one point in its reasons that Ms Harris
was
disabled by chronic pain. However, in the latter part of the reasons, which
were quite brief, it decided that her pain could not
be assessed under Table 20
as it had not been diagnosed or treated, much less stabilised, as required of
any condition assessed under
the Impairment Tables. The basis upon which it
arrived at that conclusion was not disclosed and was contrary to the
overwhelming
weight of the evidence. It was indicative of a failure by the AAT
to actually apply to the evidence the criteria mandated by the
Impairment
Tables. Its reasoning, to the extent that it was exposed, disclosed error of
law. In our opinion his Honour was correct
in his conclusion and the appeal
against his decision should be dismissed.
Factual history
3 Ingrid Harris was born in Austria on 20 January 1950. At age 14, having completed her schooling in Austria, she moved to Australia with her family. During her working life she had a variety of jobs including restaurant worker, machinist and kitchen and laundry worker in a private hospital. In 2001 or early 2002 she was working as an assistant nurse in a nursing home. Previously, from about 1998, she developed symptoms of right shoulder pain, neck pain, right carpal tunnel syndrome, anxiety and depression. Over time they became more constant. She underwent a carpal tunnel decompression procedure on her right hand in December 2002. She suffered ongoing symptoms in her left hand and right hand and was prescribed non-steroidal anti-inflammatories. A whole body bone scan carried out in July 2003 disclosed osteoarthritis involving mainly her right wrist, both hands and both acromioclavicular joints. She began to suffer pain in her thoraco-lumbar spine and neck. In June 2004 she was diagnosed as suffering from osteoporosis. She has an underactive thyroid gland and hiatus hernia which was also diagnosed in 2004. She suffers from fatigue due to Hashimoto’s disease.
4 Ms Harris made a worker’s compensation claim in respect of her right hand. She was certified fit for selected duties but her services at the nursing home were terminated in November 2003 as no further such duties were available. She settled her worker’s compensation claim in 2004. On 30 April 2004 Ms Harris applied to Centrelink for a disability support pension. Her application was supported by medical details provided by her general practitioner, Dr Homsi, who completed a Treating Doctor’s Report dated 27 April 2004.
5 Dr Homsi’s report identified three conditions from which Ms Harris was suffering. The details as set out in his report are summarised below:
Condition 1
Diagnosis – right carpal tunnel syndrome post-decompression
Current symptoms - pain, numbness
Treatment - Non-steroidal anti-inflammatory drugs (NSAID)
The condition was described as long term, ie likely to persist for at least 2 years. It was said to be "fluctuating" out of a choice of "improving, stable, fluctuating, deteriorating, an exacerbation, constant, intermittent".
Condition 2
Diagnosis – neck pain, shoulder pain
Current symptoms - pain
Treatment – NSAID
The condition was said to be long term ie likely to persist for at least 2 years and to be fluctuating.
Condition 3
Diagnosis - depression and anxiety
Current symptoms - mood changes
Treatment - counselling
The condition was said to be long term (ie likely to persist for at least 2 years.) It was also said to be deteriorating.
6 A Centrelink health assessor’s report was prepared on 11 May 2004. It was entitled "Nurse’s Report". Under the heading "Medical Barriers" there was a reference to physical and psychological limitations said to be due to right hand carpal tunnel syndrome, anxiety and depression, shoulder pain and other pain. Post decompression carpal tunnel syndrome was said to have occurred six years before. Pain in her right hand and arm and numbness and swelling in her right hand were described as permanent. She was being treated for pain with Panadeine, Celebrex and Nurofen. The condition was described in the report as permanent. Under the heading "Cervical Spine" a diagnosis of neck pain and shoulder pain of six years’ standing was also made. Symptoms described were pain between the shoulder blades, pain in the shoulders and the right side of the neck. This condition was also described as permanent. The report included a letter dated 15 November 2002 from Dr Shareef Dowla, a consultant neurologist. Neurological tests indicated a "good electro clinical correlation for carpal tunnel syndrome in her right hand". Also included was a report of a whole body bone scan conducted on 24 July 2003 identifying arthritic changes but no evidence of metastatic disease.
7 A medical assessment report prepared by Dr Arad from Health Services Australia and dated 18 May 2004 identified four conditions from which Ms Harris suffered. They were:
1. Neck pain suffered since 1998. The pain was in a variable pattern. It was treated with pain killers and non-steroidal anti-inflammatory drugs. The functional impact of the condition was "permanent".
2. Right shoulder pain and right carpal tunnel syndrome suffered since 1998. Again, pain was in a variable pattern. Panadeine Forte and non-steroidal anti-inflammatory drugs were taken to treat it. Functional impact of the condition was permanent.
3. Left shoulder pain. The pain was in a variable pattern. This was also treated with pain killers and non-steroidal anti-inflammatory drugs. Its functional impact was permanent.
4. Anxiety and depression since 1998. No psychiatrist had been consulted. She received counselling from a family doctor. She did not take medication for the condition. Its functional impact was permanent.
Part E of
the form set out intervention activities and asked the assessor to record levels
of interventions that would address barriers
to economic and social
participation. Increased fitness, psychiatric treatment and on the job training
were all mentioned.
8 A general summary of Ms Harris’ circumstances was provided in a section of the medical assessor’s report entitled "Additional Information". Dr Arad assessed that the functional impact of each of the four conditions was unlikely to change in the next two years. He assigned impairment ratings under the Impairment Tables scheduled to the Social Security Act 1991 used to assess the degree of impairment for the purpose of benefit entitlements as 0, 10, 5 and 0 respectively. On the basis of those assessments Centrelink calculated the total impairment applicable to Ms Harris at 15 points.
9 On 3 June 2004 a delegate of the Secretary rejected Ms Harris’ claim for disability support pension. This was done on the basis that her impairment was rated at less than the 20 points necessary to establish her entitlement. A written notice of the decision was sent to her. She sought internal review of the decision and provided additional evidence in the form of a written report from a chiropractor. This report was reviewed by Dr Arad on 20 October 2004. He advised that the letter did not provide new information that would change his recommendations.
10 By a letter dated 8 November 2004 Centrelink advised Ms Harris that following internal review, the decision was correct under s 94 of the Social Security Act 1991. She was informed by that letter that she could ask for an authorised review officer to consider the matter.
11 On 6 December 2004, Ms Harris applied for review of the decision by an authorised review officer. In her application she said, inter alia, "I’m in pain all the time". On 13 April 2005 she was advised by Centrelink that her review application would be forwarded to an authorised review officer. On 9 May 2005 the authorised review officer informed Ms Harris that her application for review of the original decision had been disallowed. In his reasons the authorised review officer said that he was satisfied that her total impairment rating was 15 points. He based this on the medical reports from her treating doctor, Dr Homsi, and the report from Dr Arad.
12 Ms Harris next applied to the SSAT to review the decision of the Department. On 20 July 2005 the SSAT affirmed the decision to reject her claim for disability support pension. It did so on the basis that her impairment rating did not equal or exceed 20 points under the Impairment Tables. She then applied to the AAT for review. In support of this application she submitted two additional medical reports. The AAT already had before it the previous medical assessments to which reference has been made. In addition, there were two reports obtained by Legal Aid NSW from Dr Mark Burns, an occupational physician. They were dated 9 January 2006 and 6 February 2006. In the first of those reports, Dr Burns listed Ms Harris’ conditions and considered each of them in turn. The conditions he listed were as follows:
. Bilateral carpal tunnel syndrome
. Osteoarthritis of both shoulders and both wrists
. Osteoarthritis and osteoporosis of the thoraco-lumbar spine
. Sleep apnoea
. Thyroid disease
. Hiatus hernia
. Depression
He summarised the history and symptoms and treatment of each of the conditions. In respect of the depression he said:
Ms Harris believes that she developed depression after the operation on her right hand. Her general practitioner, Dr Homsi, prescribed Zoloft. She took this medication for two months but found that the side effects were too great. She has now ceased the medication.
She reports that she cries easily and has mood swings. I note, though, that she has had no psychological or psychiatric assessment. She has not been referred off for any further treatment and is currently on no medication. It appears that this condition is currently under-diagnosed and under-treated.
13 Under the heading "CURRENT TREATMENT" Dr Burns noted that Ms Harris remained on two medications for thyroid disease and took either Panadol, Panadeine Forte or Tramal for her pain. She also tended to rotate her anti-inflammatory medication. She took sleeping pills and Somac at night for her hiatus hernia.
14 In his report Dr Burns assessed Ms Harris’ disability rating according to the tables in Schedule 1B of the Social Security Act 1991 at 15 points. His assessment was as follows:
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Disability
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Table(s)
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Impairment
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1. Carpal Tunnel Syndrome Right Arm – Operated
2. Carpal Tunnel Syndrome Left Arm 3. Osteoarthritis Right & Left Wrist & Hands 4. Osteoarthritis Both Shoulders 5. Osteoarthritis/Osteoporosis Thoraco-Lumbar Spine 6. Sleep Apnoea 7. Thyroid Disease 8. Hiatus Hernia 9. Depression |
3
3 See 1 & 2 above See 1 & 2 above 5.2 20 19 11.1 6 |
10
5 - - Nil Nil Nil Nil ? |
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Total
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15
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Dr Burns said that Ms Harris’ main problems were pain in her
upper limbs and, to a lesser degree, pain in her neck and
spine. Functionally
she had a reasonable range of movement in her spine and in the joints of her
upper limbs. He said:
Because her main problem is pain she does not rate particularly highly from the Schedule 1B Tables.
He believed that she would be unable to return to any of her previous types of employment and was not able to return to work as an assistant in nursing or a kitchen or laundry hand in a nursing home. He did not believe that she would be fit for work in an open workforce in her previous occupations.
15 In summarising his conclusions, Dr Burns said he did not believe that Ms Harris’ condition was likely to improve over the next two years. It was likely that she would have ongoing pain and discomfort in both upper limbs as well as her spine. She was currently taking anti-inflammatories and analgesics for her pain and discomfort, as well as being on medication for her hiatus hernia and thyroid disease. He stated a belief that her depression should be assessed by a psychiatrist as it had not been fully diagnosed. He added:
I believe that her ongoing pain syndrome would make it very difficult for her to do any educational vocational training. It is extremely unlikely that she would ever be able to do educational training which would make her fit to work.
16 Dr Burns revisited his assessment in a supplementary report dated 6 February 2006. That report is of critical importance in these proceedings. It took the form of a letter to a solicitor at Legal Aid NSW who was acting for Ms Harris. In his report Dr Burns said:
Thank you for your correspondence dated 6 February 2006. I have read this correspondence in conjunction with my previous report dated 9th January 2006.
I have reviewed my initial ratings using the Schedule 1B Tables of the Social Security Act. I note that Ms Harris’ upper limb problems are moderately severe, but would only give a rating of 15 points using Table 3 of the Schedule 1B Tables. I have reviewed the Social Security tables and believe that it would be appropriate to assess her using Table 20, which looks at Miscellaneous Conditions such as chronic pain. In Ms Harris’ case she certainly has chronic pain and ongoing disability in both upper limbs. They certainly do have an effect on her everyday efficiency and her ability to carryout daily activities. As mentioned in my previous report they have a marked affect [sic] on her ability at home as well as in work situations.
I believe that under Table 20 of the Social Security tables that she would obtain a rating of 20 points. I believe this is a much fairer estimate than that obtained from Table 3. I believe that this table certainly under estimates her disability.
In conclusion I believe that from Table 20 her ongoing pain present in both upper limbs would be rated at 20 points.
17 A Work Capacity/Participation Assessment Report was prepared in relation to Ms Harris by Rachel Shipton. She is a registered physiotherapist who works as a rehabilitation consultant with an organisation known as Advanced Personnel Management. She set out a list of continuing conditions suffered by Ms Harris:
. Thoraco lumbar pain (diagnosed, optimally treated, not expected to improve over the next 2 years) – PERMANENT
. Cervical spine pain (diagnosed, optimally treated, not expected to improve over the next 2 years) – PERMANENT
. Sleep apnoea (diagnosed, optimally treated, not expected to improve over the next 2 years) – PERMANENT
. Thyroid disease (diagnosed, not optimally treated, expected to improve with treatment)
. Depression (diagnosed, not optimally treated, expected to improve with treatment)
Ms Shipton’s report was based on a 75 minute assessment interview with Ms Harris and her review, prior to the assessment, of the various medical reports to which reference has been made. It is clear from the nature of the assessment that Ms Shipton was not offering medical assessments in her own right, nor was she offering psychiatric diagnoses. She stated, inter alia:
Customer presents with depression. She states her symptoms include low mood, feeling very negative, focusing on her pain, feeling low motivation and angry/frustrated. Customer reports treatment with medications was trialled, but she did not tolerate these well. She states there has been no further assessment or treatment of this condition.
18 Under the heading "Pain management program" Ms Shipton stated:
Following participation in psychological assessment, participation in a suitable pain management program may assist customer improve pain management and increase activity tolerances.
Later she reported:
Customer should participate in psychological counselling and pain management prior to referral to Vocational Rehabilitation services.
And in a section dealing with Ms Harris’ capacity to do any work without intervention programs, she said, inter alia:
Further medical management may improve symptoms of depression. Further medical management not likely to improve symptoms of bilateral carpel (sic) tunnel syndrome, thoraco-lumbar pain, bilateral shoulder and wrist pain, sleep apnoea and hiatus hernia.
Her report was dated 15 March 2006.
19 The AAT heard Ms Harris’ appeal against the decision of the SSAT on 26 May 2006 and delivered its decision on 9 June 2006 affirming the decision under review. Ms Harris then appealed to the Federal Court in the exercise of its original jurisdiction under the AAT Act on the basis that the AAT had made an error of law in coming to its decision. On 22 March 2007, Gyles J made the following orders:
1. The decision of the Administrative Appeals Tribunal be set aside.
2. The matter be remitted to the Administrative Appeals Tribunal to be dealt with according to law.
3. The respondent pay the costs of the applicant of the appeal.
20 The secretary of the Department of Employment
and Workplace Relations appeals to this Court against the decision of Gyles J.
The appeal requires consideration of the relevant provisions of the Social
Security Act 1991 including the "Tables for the assessment of work related
impairment for disability support pension" set out in Schedule 1B to the
Act.
Statutory framework – Social Security Act 1991
21 Section 94(1)(a) and (b) of the Social Security Act 1991, at the relevant time, provided:
(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; ...
Paragraphs (c) to (e) of subs (1) and subss (2) through to (6)
of s 94 are not material for present purposes. The "Impairment Tables" are
defined in s 23 of the Act as "... the Tables in Schedule 1B".
Statutory Framework – The Impairment Tables
22 The Impairment Tables set out in Schedule 1B comprise a number of system or disorder specific tables. There are 19 of those. Table 20 picks up miscellaneous conditions including chronic fatigue or pain.
23 There is an introduction to the Tables comprising a number of general paragraphs which assumed some significance in the appeal. It is not necessary to reproduce all of them here. It is sufficient to refer to those which mandate particular approaches to the application of the tables. The paragraphs in question are [4] through to [8]. They are in the following terms:
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.
7. A single medical condition should be assessed on all relevant Tables when that medical condition is causing a separate loss of function in more than one body system. For example, Diabetes Mellitus may need to be assessed using the endocrine (19), exercise tolerance (1), lower limb function (4), renal function (17), skin disorders (18) and visual acuity (13) tables. When using more than one Table for a single medical condition the possibility of double assessment of a single loss of function must be guarded against. For example, it is inappropriate to assess an isolated spinal condition under both the spine table (5) and the lower limb table (4) unless there is a definite secondary neurological deficit in a lower limb or limbs.
8. In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates. Medical officers must use their clinical judgement and be convinced that pain or fatigue is a significant factor contributing towards the person’s overall functional impairment. Medical reports and the person’s history should consistently indicate the presence of chronic entrenched pain or fatigue.
24 As the present case turns upon the application of Table 20 it is helpful to refer to relevant parts of that Table, namely its introduction and the criteria for a rating of 20 points.
TABLE 20. MISCELLANEOUS – MALIGNANCY, HYPERTENSION, HIV INFECTION, MORBID OBESITY (ie BMI>40), HEART/LIVER/KIDNEY TRANSPLANTS, MISCELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN
Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used. Double-counting of a particular loss of function, by the use of more than one Table, must be avoided.
Rating Criteria
...
TWENTY More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work.
The Reasons for Decision of the AAT
25 The AAT began by observing that Ms Harris’ entitlement to disability support pension must be considered as at the date of her original claim, 3 May 2004, and for a period of 13 weeks thereafter. Any deterioration in her health after that date was irrelevant to the AAT’s consideration of the matter. The AAT referred to s 94 and the Impairment Tables. At [5] of its reasons it said:
There is no dispute that the Applicant is severely disabled by several conditions, namely:
(a) Bilateral carpel [sic] tunnel syndrome;
(b) Osteoarthritis of both shoulders and both wrists;
(c) Osteoarthritis and osteoporosis of the thoraco-lumbar spine;
(d) Sleep apnoea;
(e) Thyroid disease;
(f) Hiatus hernia; and
(g) Depression.
More importantly however she is disabled by chronic pain. [emphasis added]
26 The AAT referred to Dr Arad’s assessment of Ms Harris’ degree of impairment as at 18 May 2004 and to Dr Burns’ reports of 9 January 2006 and 6 February 2006. At [12] the AAT said:
We accept the Applicant’s evidence that she is depressed. Whether this is as a result of chronic pain or other reasons we cannot assess. The difficulty in having regard to the Applicant’s depression is that adverted to by Dr Burns, namely that she has never had any psychiatric or psychological involvement in that condition.
27 The AAT referred to the prescription of the antidepressant drug, Zoloft for Ms Harris and then quoted from [4], [5] and [6] of the Introduction to the Impairment Tables. The rest of the reasons were contained in five short paragraphs which it is convenient to set out in full:
15. So far as the Applicant’s anxiety state/depression is considered we are satisfied that it has not been fully investigated or treated. Without proper diagnosis and treatment by a psychiatrist or psychologist, just what psychiatric illness the Applicant is suffering and what treatment regime is appropriate remains speculative.
16. Similar difficulties arise for the Applicant’s chronic pain syndrome. Apart from the possibility it is interconnected with her anxiety/depressive state, there has been no intervention such as reference to a pain clinic.
17. We find therefore that the Applicant cannot be assessed under Table 20 as her chronic pain has not been diagnosed or treated much less stabilised. The difficulty then is that under the other applicable Tables of Schedule 1B, namely Table 3 – Upper Limb Function and Table 5.1 – Cervical Spine, both Dr Arad and more importantly, specialist occupational physician Dr Burns, give a total rating of only 15 points.
18. So far as the Applicant’s ability to work is concerned we are satisfied on the material before us that the Applicant has a present inability to work and it is clear that no vocational training would render her fit to work in any capacity available to her.
19. We are therefore satisfied that the Applicant does have a current inability to work but because her degree of incapacity does not amount to 20 impairment points, the decision to refuse a grant of a disability support pension must be affirmed.
Reasons for decision of the primary judge
28 His Honour referred to the findings of the AAT with respect to depression against Table 6 which relates to psychiatric impairment. He rejected the submission that the AAT’s reasons erected a mandatory requirement of specialist psychiatric or psychological diagnosis and treatment for the assessment of a claim based upon depression. The reasons did not lay down any such general proposition. He understood the force of the criticisms levelled at the merits of the decision which involved rejecting the contemporaneous opinion of the treating doctor in relation to a condition accepted to still exist some two years later. The AAT accepted the views of Dr Burns in relation to depression notwithstanding that he had no particular qualifications in that field. But that was not an error of law.
29 Under the heading "Chronic Pain" his Honour referred to the unequivocal finding in [5] of the AAT’s reasons that Ms Harris "is disabled by chronic pain". He referred then to Dr Burns’ assessment of her under Table 20 and the very brief disposition of that matter by the AAT. No source was quoted for the speculative finding that it was a "possibility" that Ms Harris’ chronic pain syndrome was interconnected with her anxiety/depression state and that there had been no intervention such as reference to a pain clinic. The finding appeared to have been based on Ms Shipton’s report and her opinion that following participation in psychological assessment, participation in a suitable pain management program might assist Ms Harris improve pain management and increase activity tolerances. There was no evidence from Ms Shipton or any other source as to what was involved in reference to a pain clinic or a pain management program. His Honour said (at [16]):
The finding that the chronic pain had not been diagnosed, treated or stabilised is puzzling. Pain had been diagnosed and treated at the time of the claim in 2004 and it had persisted and was treated for a two year period thereafter. There was a question as to whether the pain should be assessed as an aspect of the relevant portion of the body under Table 3 or as a separate condition under Table 20. However, there was no suggestion in any of the material that the condition was temporary. Referral to a pain clinic was not suggested by any of the medical practitioners and that suggestion does not point to any particular diagnosis or treatment which was required. Thus, there could be no judgment as to whether any treatment fell within cl 6 of the Introduction to the Tables.
30 His Honour found it troubling that an applicant with a long standing diagnosed condition being treated in a conventional fashion was rejected for benefit simply on the basis that further examination by another medical practitioner might suggest some other diagnosis or some other treatment. An applicant for benefit should present with a properly prepared application supported by a treating doctor. His Honour observed that it did not follow that an applicant must foresee potential difficulties and obtain specialist advice and treatment before making a claim. The decision maker was entitled to make its own investigation of the claim and to form a view adverse to the claimant based on that investigation. But that was a very different thing from the decision maker rejecting a claim because of speculation that a hypothetical third party might come to an adverse opinion. His Honour said (at [18]):
That is an unsatisfactory situation bearing in mind the capacity of, and the resources available to, applicants for this kind of benefit. In my opinion, such speculation could not be a proper basis for a decision to reject this applicant’s claim based upon chronic pain. The same can be said of the claim based upon depression. If further investigations were required, it was up to the Department to organise them.
He went on to observe that the AAT stood in the shoes of the Department and was in precisely the same situation as the decision maker. It could have arranged investigation of the claim under the provisions of s 33 of the AAT Act. This having been said, his Honour did not go so far as to say that the AAT was obliged in this case to carry out an investigation but rather that, absent investigations, it should have made a decision on the material before it without taking account of hypothetical third party investigations.
31 His Honour then set out in [20] of his judgment a number of questions and answers reflecting his findings. He held that on the proper construction of Schedule 1B of the Social Security Act 1991 the AAT was required to make material findings of fact including (at [20]):
(a) a finding as to whether [Ms Harris’] pain arose from her diagnosed conditions;
(b) a finding as to whether her treatment to date had been adequate;
(c) a finding as to whether any proposed future treatment could be reliably expected to result in substantial improvement in her condition; and or
(d) a finding as to whether any proposed future treatment had a high success rate.
None of these findings had been made.
32 His Honour also held that the AAT had failed to correctly identify an
issue that it was required to address in order to apply
Schedule 1B and that was
whether referral to a pain clinic met the definition of "reasonable treatment".
The AAT was required under
Schedule 1B to determine whether or not it was
unlikely that there would be any significant functional improvement with or
without
reasonable treatment within the next two years. It was not open to it
to find that Ms Harris’ chronic pain had not been diagnosed,
treated and
stabilised. Nor was it open to it to find that there had been no intervention
in relation to her chronic pain. Having
thus identified errors of law on the
part of the AAT, his Honour concluded that its decision should be set aside and
the matter remitted
to the Tribunal for determination according to law.
The merits of the appeal
33 The appellant’s notice of appeal asserted that his Honour had misconstrued provisions of Schedule 1B in the questions and answers which he posed and provided in his reasons. The appellant contended that his Honour failed to identify any error of law on the part of the AAT. Two grounds of appeal added in an amended notice claimed that his Honour erroneously concluded that the AAT was obliged to carry out its own investigation of Ms Harris’ claim.
34 As to the latter complaint, it was without substance. His Honour said that the AAT should decide the matter on the evidence before it rather than reject an application on a speculative basis. If further investigations were required it had the power to arrange for them to be done. To say that was not to impose upon the AAT an obligation to carry out any such investigation.
35 The remaining grounds of appeal were not framed with precision. The submissions tended to suggest that his Honour had engaged in merits review, rather than identifying any error of law on the part of the AAT.
36 It is not necessary to discuss the grounds at length. In our view there was legal error on the part of the AAT which was sufficiently identified in his Honour’s reasons. It related to the AAT’s treatment of the issue of chronic pain suffered by Ms Harris and its assessment for the purposes of Table 20 of the Impairment Tables.
37 Dr Burns had identified the condition of chronic pain in his report of February 2006 and had rated it as 20 points under Table 20. There was clear evidence of chronic pain before the AAT. In the AAT’s own reasons at [5] it said that Ms Harris was "disabled by chronic pain". That finding, standing alone, reflected a diagnosis and supported a conclusion that the condition was permanent. Attempts by counsel for the appellant to argue that chronic pain was a manifestation of other conditions and should not have been regarded as a condition in its own right for the purpose of impairment ratings flies in the face of the express provision made for it in Table 20. True it is that [8] of the Introduction to the Tables provides that in general pain or fatigue should be assessed in terms of the underlying medical condition which causes it. It goes on to say, however, that:
... where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates.
Dr Burns did precisely that in his letter of 6 February 2006. It is not to the point that his attention may have been drawn to the provisions of Table 20 by Legal Aid NSW. There was no suggestion that his assessment was not genuine and it reflected his earlier opinion when he did not consider Table 20, that "because her main problem is pain she does not rate particularly highly from the Schedule 1B Tables".
38 Counsel for the appellant relied upon the requirement in [4] and [5] of the Introduction to the Tables that for a rating to be assigned a condition must be one which has been "diagnosed, treated and stabilised". It was submitted that the material before the AAT clearly indicated that its findings regarding chronic pain were open to be made on the basis of the material before it.
39 In our opinion the evidence before the AAT was all one way. Chronic pain had been diagnosed, was being treated with pain killers and although there was evidence that the pattern of the pain was variable, this could not be translated into a finding that the condition had not stabilised. In each of the cases in which Dr Arad referred to pain "in a variable pattern" he found its functional impact to be "permanent". Reliance was placed upon the report by Ms Shipton which recommended participation in a pain management program. Whatever that meant, it was not inconsistent with the proposition conveyed in plain terms in all the medical evidence that the chronic pain from which Ms Harris suffered had been diagnosed, treated and stabilised.
40 When attention is focussed on [15] to [19] of the AAT’s reasons for decision, which effectively set out its substantive reasoning, [15] involved a conclusion about Ms Harris’ anxiety state and depression. There was a finding that this had not been fully investigated or treated. That finding, of course, did not impact on the question whether she was suffering from chronic pain, assessable under Table 20, as Dr Burns had done. Rather there followed a delphic statement by the AAT:
Similar difficulties arise for the Applicant’s chronic pain syndrome. Apart from the possibility it is interconnected with her anxiety/depressive state, there has been no intervention such as reference to a pain clinic.
There was then the leap made to the conclusion that Ms Harris could not be assessed under Table 20 "... as her chronic pain has not been diagnosed or treated much less stabilised". How that conclusion could stand with [5] of the reasons in which the AAT stated "... she is disabled by chronic pain" is impossible to divine. The basis of the conclusion that "... her chronic pain has not been diagnosed or treated much less stabilised" was not disclosed. It lay against the evidence before the AAT. The irresistible conclusion is that the AAT failed to apply to the evidence, in any considered way, the criteria which it was required to apply under the introductory paragraphs of Schedule 1B.
41 The asserted "possibility" that her chronic pain syndrome was interconnected with her anxiety/depressive state cannot be read as a finding that uncertainty about the future of her depressive state reflects upon the future of her chronic pain syndrome. That requires the counter intuitive conclusion that the chronic pain could have been a result of her anxiety state rather than the other way round. There was not a scintilla of evidence to support the possibility of any such causal connection. Moreover the inadequacy of the AAT’s reasons suggest, although this was not a basis upon which his Honour set aside the decision, that it had not complied with the requirements of s 43 of the AAT Act in relation to the provision of written reasons.
42 In our opinion, it is clear that the AAT has failed, as his Honour found,
to properly address the questions which it was required
to address in the
application of the Impairment Tables, and in particular, in the application of
Table 20.
Conclusion
43 For the preceding reasons the appeal will be dismissed with costs.
Associate:
Dated: 20
August 2007
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2007/130.html