Flint and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 189 (20 March 2009)

Last Updated: 20 March 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 189

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/1682

GENERAL ADMINISTRATIVE DIVISION		)
	Re		JOHN FLINT

Applicant

And

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

Respondent

DECISION

Tribunal

Deputy President S D Hotop

Date 20 March 2009

Place Perth

Decision

The Tribunal affirms the decision under review.

..........[sgd S D Hotop]........
Deputy President

CATCHWORDS

SOCIAL SECURITY – disability support pension – qualification – applicant has impairment – applicant's impairment of 10 points under Impairment Tables – applicant not qualified for disability support pension – decision under review affirmed

Social Security Act 1991 (Cth), s 94(1)(b) and Sch 1B

REASONS FOR DECISION

20 March 2009

Deputy President S D Hotop

INTRODUCTION

1. John Flint (“the applicant”), who is 53 years of age, was first granted disability support pension (“DSP”) under the Social Security Act 1991 (Cth) (“the Act”) on 5 February 2001 on the basis that he was suffering from neck pain and depression.
2. Following a medical review of the applicant’s qualification for DSP in 2003, the applicant was notified by Centrelink on 9 April 2003 that he would continue to receive DSP.
3. Following a further medical review in 2007, however, the applicant was notified by Centrelink on 31 July 2007 that he was presently not qualified for DSP and that his final DSP payment would be made on 11 September 2007.
4. On 11 September 2007 a Centrelink officer cancelled the applicant’s DSP with effect from that date. That decision was affirmed by a Centrelink authorised review officer (“ARO”) on 21 February 2008.
5. On 1 April 2008 the Social Security Appeals Tribunal (“SSAT”) affirmed the decision of the ARO.
6. On 21 April 2008 the applicant made an application to this Tribunal for review of the ARO’s decision as affirmed by the SSAT.

THE RELEVANT LEGISLATION

7. The conditions which must be satisfied before a person is qualified for DSP are set out in paras (a) – (f) of s 94(1) of the Act. It is common ground that the applicant satisfies the conditions set out in paras (a) and (c) – (f) of s 94(1), but the parties are in dispute as to whether the condition set out in para (b) of s 94(1) is satisfied in the applicant’s case. Paragraphs (a) and (b) of s 94(1) are as follows:

“ (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;
...”

The “Impairment Tables” are set out in Schedule 1B to the Act and are relevantly referred to in paragraphs 11–12 below.

THE EVIDENCE

8. The evidence before the Tribunal comprised:
   • the “T Documents” (T1–T23), pp 1–310) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”);
   • Exhibits A1 and A2 tendered by the applicant;
   • Exhibits R1, R2 and R3 tendered by the respondent;
   • the oral evidence of the applicant.

The applicant’s evidence

9. The applicant’s evidence may be summarised as follows:
   • he has been seeing doctors over the last 10 years regarding his neck condition, and he has also been suffering from severe depression;
   • his neck is “permanently stiff” and he has a “constant neckache” or “throbbing at the back of the neck” and he has “headaches running up the back of the neck”;
   • he gets only 4 hours sleep per night;
   • he tried valium medication but he discontinued taking it because he was concerned about becoming addicted;
   • he presently takes 2 Panadeine Forte tablets in the morning and 2 more at night, and they “ease the pain”;
   • he has not sought specialist treatment for pain management because “there is nothing you can do about bones”;
   • as regards his depression, he has “good days and bad days”;
   • he saw a psychiatrist, Dr Booth, in 2000 and was prescribed anti-depressant tablets which he took for 2 weeks but he found that they made him sleep for 14–15 hours and did not work, so he stopped taking them and did not take any more anti-depressants;
   • last week he started to try anti-depressants again, having obtained a prescription from his general practitioner, Dr Collis (Exhibit A2).

The relevant medical evidence

10. The medical evidence before the Tribunal includes the following relevant material:
    • a report of Dr John Booth, Consultant in Psychological Medicine, dated 19 May 2000, which states (inter alia) that the applicant suffers from “major depression (of longstanding)” (T7, pp 128–131);
    • a report of Dr R J Warner, Occupational Physician, dated 27 July 2000, which states (inter alia) that the applicant has “severe degeneration of his cervical spine from C3 to C6” (T7, pp 133–135);
    • a report of Dr N Street, Health Services Australia Ltd, dated 30 January 2001, which states (inter alia) that:
      • - on examination the applicant had “loss of one half the normal range of movement of the cervical spine”;
      • - the applicant has “in response to his chronic (neck) pain and unresolved medico-legal issues, developed symptoms of depression” (T4, p 101);
    • a report of Dr N Street, Health Services Australia Ltd, dated 20 March 2003, which states (inter alia) that the applicant:
      • - “continues to complain of constant neck pain ...”;
      • - on examination “had loss of one half normal range of movement of his cervical spine”;
      • - has “ongoing symptoms of depression as described in the report ... from Dr Booth (psychiatrist) dated 19.05.00” (T11, p 181);
    • a Centrelink “Treating doctor’s report” form completed by the applicant’s general practitioner, Dr D C Collis, on 24 August 2007 states that the applicant suffers from “chronic cervical neck pain” whose current treatment consists of “analgesia as required” and which currently affects his ability to function as follows:
      • - “unable to sit in one position for prolonged periods”;
      • - “<50% neck ROM”;
      • - “pains with movement of neck” (T17);
    • a report of Dr David Kennedy, Medico-Legal Medicine, dated 21 September 2007, addressed to solicitors acting for the applicant in a workers’ compensation claim, which states (inter alia):

“ ...
On examining Mr Flint’s cervical spine, there was tightness and tenseness over the erectus spinae and paravertebral musculature, extending into the parascapular musculature. Flexion was painful to 45 degrees, extension was painful and limited to 30 degrees, lateral flexion was restricted to 35 degrees to the left and 30 degrees to the right and lateral rotation was restricted to 30 degrees to the left and 30 degrees to the right. A full central nervous system examination was normal.
...
Mr Flint as a consequence of his occupational duties performed over a prolonged period of time, particularly in relation to observing a TV monitor whilst driving a train, in which he had to look up into the right, upwards of about 250 times during a 10 hour shift, has developed a significant work related injury, involving his cervical spine, with damage to the myofacial structures supporting the cervical spine, in conjunction with extensive osteoarthritic changes from C3 to C6, as well as damage to the intervertebral disc from C3/4 to C5/6, with milder damage at C2/3 and C6/7. There are broad-based posterior disc protrusions at C3/4 and C4/5 and C5/6.
The work injuries sustained are moderate to severe, and have resulted in significant restrictions with respect to the functioning of his neck and as a consequence of the continuous pain Mr Flint has developed significant post traumatic depression and anxiety for which he has received some treatment in the form of some anti-depressants.
... ” (part of Exhibit R1);

• a report of Mr Philip Hardcastle Consultant Orthopaedic Surgeon, dated 28 May 2008, addressed to a firm of insurance lawyers in relation to a workers’ compensation claim by the applicant, which states (inter alia):
• “ ...

Head and Neck
There was tenderness around the C4 region both anterior and posterior. Extension was 30 degrees, flexion was of full range and rotation was 75 degrees and 80 degrees to the left. Lateral flexion was 30 degrees bilaterally. There was no increased pain with compression or distraction.
...
The current diagnosis is of multi-level degenerative cervical neck disease with pain from the degeneration in the absence of any clinical neurologic problems.
...” (Exhibit A1; part of Exhibit R1);

• a Centrelink “Treating Doctor Report” form completed by Dr Collis on 28 July 2008 which states that the applicant suffers from “neck stiffness and pain” whose current treatment consists of “analgesia” and “neck stretching exercises” and which currently affects his ability to function as follows:
  • - “chronic stiffness and soreness of neck – restricted ROM”;
  • - “unable to sit in one position for long periods” (part of Exhibit R1).

THE IMPAIRMENT TABLES

11. Schedule 1B to the Act is headed: “Tables for the assessment of work-related impairment for disability support pension”. The tables themselves are preceded by an “Introduction” in which it is relevantly stated:

“ 1. These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work. ...
2. These tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. ...
...
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.

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 (sic) 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.

...
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.
...” (original emphasis)

12. Table 5.1, which is used to assess impairment of the cervical spine, is as follows:

“ Rating Criteria
NIL Normal or nearly normal range of movement.
FIVE Loss of quarter or normal range of movement.
TEN Loss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain.
TWENTY Loss of three-quarters of normal range of movement and constant neck pain.
THIRTY Loss of almost all movement, or complete ankylosis in position of function.
FORTY Ankylosis in an unfavourable position, or unstable joint.”

Table 6, which is used to assess psychiatric impairment, is as follows:

“ It is important to record a detailed psychiatric history, a mental state examination, and to distinguish between temporary and permanent psychiatric disorders. ... Table 6 is used for permanent psychiatric disorders only. If there is insufficient clinical information available, a current or recent specialist report should be obtained.
Rating Criteria
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.
THIRTY Serious psychiatric illness with major impairments in several areas, such as work, interpersonal relations, judgement, thinking, or mood (eg depressed person avoids friends, neglects family, unable to do housework), OR some impairment in reality testing or communication (eg speech is at times obscure, illogical or irrelevant).
FORTY Major chronic psychiatric illness which results in an inability to function in almost all areas, OR behaviour is considerably influenced by either delusions or hallucinations, OR serious impairment in communication (eg sometimes incoherent or unresponsive) or judgement (eg acts grossly inappropriately).”

Table 20, which is used to assess impairments caused by “miscellaneous conditions”, is (relevantly) as follows:

“ 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
NIL ...
Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.
TEN Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.
...
FIFTEEN Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible.
...
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.
THIRTY Very severe symptoms which lead to substantial difficulty with most daily tasks. Assistance with elements of self-care may be required. Symptoms cause severe interference with ability to work or attend work (ie minimal residual work capacity).
...
FORTY Major restrictions in many everyday activities. Capacity for self-care is restricted, leading to dependence on others. No residual work capacity.”

ANALYSIS

Physical impairment

13. It is common ground that the applicant has at all material times had, and presently has, a “physical impairment” within the meaning of s94(1)(a) of the Act, namely, an impairment of his cervical spine.
14. The respondent concedes that the appropriate rating in respect of the impairment of the applicant’s cervical spine under Table 5.1 is TEN. On the basis of the medical evidence and the applicant’s evidence, the Tribunal is satisfied that the applicant has suffered a loss of at least half, but less than three quarters, of the normal range of movement of his cervical spine and has suffered, and continues to suffer, constant neck pain. The Tribunal is also satisfied, having regard to Mr Hardcastle's report of 28 May 2008, that the applicant’s cervical spine condition has been investigated, diagnosed, treated and stabilised, and is permanent, for the purpose of assigning an appropriate rating under Table 5.1.
15. In the Tribunal’s opinion, therefore, the respondent’s abovementioned concession was rightly made and, accordingly, the Tribunal finds that the rating in respect of the impairment of the applicant’s cervical spine under Table 5.1 is TEN.
16. The question arises, however, whether it is appropriate to use Table 20 for the purpose of assigning a rating in respect of the applicant’s chronic neck pain. The respondent submits that it would not be appropriate to do so because the applicant’s chronic pain has not been fully documented, diagnosed, investigated, treated and stabilised. Alternatively, the respondent submits that, even if Table 20 was used instead of Table 5.1, the applicant would not be advantaged thereby because the appropriate rating under Table 20 would be equal to that under Table 5.1, namely, TEN.
17. In the Tribunal’s opinion it would not be appropriate, in the present case, to use Table 20 to assign a rating in respect of the applicant’s chronic neck pain instead of Table 5.1. Having regard to the evidence before it, the Tribunal is not satisfied that a rating of TEN under Table 5.1 underestimates the level of the applicant’s disability by reason of his chronic neck pain (see para 8 in the Introduction to the Tables in Schedule 1B to the Act). In particular, the Tribunal notes, and accepts, the opinion expressed by Mr Hardcastle in his report of 28 May 2008 to the effect that the applicant’s symptom presentation was consistent with, and not disproportionate to, Mr Hardcastle’s clinical findings on examination of his cervical spine.
18. Accordingly, the Tribunal finds that the applicant has at all material times had, and presently has, a physical impairment, namely, an impairment of his cervical spine, and that that impairment is of 10 points under the Impairment Tables.

Psychiatric impairment

19. It appears from the evidence before the Tribunal that the applicant was examined by two psychiatrists in 1999-2000, one of whom (Dr Mustac) diagnosed alcohol dependence in 1999, while the other (Dr Booth) diagnosed major depression in 2000 (T7, pp 128-131). There is no evidence before the Tribunal that the applicant has been examined by a psychiatrist, or otherwise undergone a thorough mental state examination, since that time. As regards psychiatric treatment, according to the applicant’s own evidence the only such treatment he has received comprised anti-depressant medication prescribed by Dr Booth in 2000 which he took for 2 weeks but then voluntarily discontinued, and anti-depressant medication prescribed by his general practitioner, Dr Collis, on 5 March 2009 (Exhibit A2) – that is, within a week of the hearing before the Tribunal.
20. Assuming that the applicant presently has a “psychiatric impairment” within the meaning of s 94(1)(a) of the Act, it cannot be said, having regard to the circumstances referred to in the preceding paragraph, that the applicant’s present psychiatric condition has been fully documented, investigated, diagnosed, treated and stabilised; nor can it be said that any such condition is permanent. Accordingly, the Tribunal is satisfied that it is not appropriate, at the present time, to assign a rating under Table 6 in respect of psychiatric impairment in the applicant’s case (see paras 4–6 in the Introduction to the Tables, and the introduction to Table 6, in Schedule 1B to the Act).

CONCLUSION

21. The Tribunal concludes that, although the applicant has at all material times had, and presently has, an impairment for the purposes of s 94(1)(a) of the Act, that impairment is of less than 20 points – specifically, 10 points – under the Impairment Tables. Accordingly, the condition set out in para (b) of s 94(1) of the Act is not satisfied in the applicant’s case and he is, therefore, not presently qualified for DSP.

DECISION

22. For the above reasons the Tribunal affirms the decision under review.
    

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

Signed: ...............[sgd D Brodie]........................

Associate

Date of Hearing 11 March 2009

Date of Decision 20 March 2009

Representative of the Applicant Self-represented

Representative of the Respondent Mr A Holt

Centrelink