Casha; Secretary, Department of Employment and Workplace Relations and [2007] AATA 1266 (30 April 2007)

Last Updated: 1 May 2007

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1266

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2006/1040

GENERAL ADMINISTRATIVE DIVISION		)
	Re		SECRETARY DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And

EMANUEL CASHA

Respondent

DECISION

Tribunal

Mr Michael Griffin, Member

Date 30 April 2007

Place Sydney

Decision

The decision under review is set aside. In substitution thereof, the Tribunal decides that the original decision to reject the claim for Disability Support Pension is the correct and preferable decision.

................[sgd]...................
Mr Michael Griffin
Member

CATCHWORDS

SOCIAL SECURITY - disability support pension – impairment rating – medical conditions not diagnosed, treated and stabilised – social security appeals tribunal (SSAT) decision set aside

LEGISLATION

Social Security Act 1991 section 94 and Schedule 1B

REASONS FOR DECISION

30 April 2007	Mr Michael Griffin, Member
INTRODUCTION

1. The Secretary, Department of Employment and Workplace Relations (‘the Secretary’) seeks review of a decision of the Social Security Appeals Tribunal (‘SSAT’). The SSAT set aside a decision made by an Authorised Review Officer (‘ARO’) to reject a claim for Disability Support Pension (‘DSP’).
   

HISTORY

2. Mr Casha, the Respondent, first claimed DSP in May 2003. His treating doctor’s report (T9) referred to a condition and diagnosis of ‘left shoulder tendonitis’. This report has a specific section relating to “...other medical conditions which are generally well managed and cause minimal or limited impact on ability to function”. The entries are: heart disease and bilateral inguinal hernia. The doctor noted that he expected significant improvement in the heart condition and made no mention, in the relevant section, of any impact on the ability to function caused by this heart condition. However, by contrast, the doctor noted in that section that Mr Casha experienced recurrent pain on strenuous exercise/work from the hernia condition and made no comment on expected improvement in that condition.
3. In the DSP claim form Mr Casha mentioned the heart condition, the pain in his left shoulder and the hernias. He wrote that he had a triple heart bypass operation in 1993 and two hernia operations in 1997 and 2001. He wrote that “standing up makes me very tired” and “the two hernia operations stops me from lifting and the pain in my shoulder stops me from doing a lot of things”. In that particular section of the claim (T10p42) Mr Casha stated that his conditions caused him “no problem” in his ability to, amongst other things, breathe. The left shoulder condition was rated by Centrelink as temporary and given nil points on the impairment rating tables and the claim was rejected in May 2003.
4. In October 2003 Mr Casha made a second DSP claim, again based upon the heart, left shoulder and hernia conditions. Again his entry in respect of the effect of the conditions on his ability to breathe was described as “no problem”. Mr Casha wrote that “because of the hernia I cannot stand up or walk for long periods and the pain in my left arm stops me doing anything”. Included with the claim was a letter from his heart specialist Dr Jagger stating that Mr Casha has “underlying coronary disease. He had bypass surgery in 1993. He has persistent left arm ache which I am sure is related to the surgery and is unlikely to stop. This is associated with paresthesia in his left hand. At the present time he is not suffering angina but he is certainly at risk of developing problems in the future. He is currently on long-term medication to prevent progression of disease”. Mr Casha told a Work Capacity Assessor that he could walk for 30 minutes (T16p75). This time Centrelink assessed his left shoulder condition as permanent awarding a total of 5 points but rejected the claim as it did not reach the required 20 point minimum threshold.
5. In September 2005, Mr Casha made a third DSP claim which is the subject of this application for review. The treating doctor’s report, by the same doctor that wrote the first two DSP claim reports, this time referred to two medical conditions, namely, “left shoulder tendonitis” and “left/rt elbow pain lateral epicondylitis” (T19). Again, the doctor expected significant improvement in the heart condition and made no mention of any impact from this condition on Mr Casha’s ability to function. The doctor mentioned a third condition of “recurrent backpain” but made no mention of its treatment, expected improvement or impact on ability to function (T19p93). The doctor noted that Mr Casha was “generally becoming weak and tired after mild exertion/walking”.
6. Again Mr Casha reported that his various conditions caused “no problem” with respect to breathing. He described lower back pain after bending for long periods or sitting for long periods. The Work Capacity Assessor wrote that endurance was a barrier to Mr Casha in terms of economic and social participation by reason of “fatigue and tiredness due to heart condition” but noted that he was able to “mow lawns and do yard work without SOB” (that is, shortness of breath). The Work Capacity Assessor identified a loss of one quarter range of movement in the lower back. Centrelink identified five separate medical conditions in this claim, viz, left and right epicondylitis, heart disease, low back pain and hernia. The left arm epicondylitis, heart disease and low back pain were each awarded 5 points giving a total of 15 points. This did not meet the 20 point threshold and as a result the claim was rejected. The claim was then considered by an Authorised Review Officer who also assessed hearing loss and reviewed an audiogram provided by Mr Casha, awarding nil points for this condition. The Authorised Review Officer agreed with the original rejection of the claim.
7. Mr Casha appealed that decision to the SSAT. The SSAT decision (T2) records that Mr Casha described increasing shortness of breath over the last three years. The SSAT accepted evidence that Mr Casha “becomes breathless and tired with slight exertion” and using the ‘Metabolic Cost of Activities’ (METs) ratings awarded 15 points for loss of cardiovascular and or respiratory function which they apparently considered to be the cause of the claimed breathlessness. This rating with the 5 points for the left upper limb and 5 points for the back pain gave a total of 25 impairment points and thus eligibility for DSP. The Secretary seeks review of that decision.

ISSUE

8. Mr Casha was assisted by his son in law Mr Clear at the hearing. Mr Gersten appeared for the Secretary. Mr Gersten accepted a rating of 5 impairment points for Mr Casha’s cervical spine restricted range of movement of 25 per cent. Both parties agreed that the principal issue for the Tribunal to determine was the 15 points assessed by the SSAT for the heart condition.
   

RELEVANT LEGISLATION

9. The Social Security Act 1991 (‘the Act’) relevantly provides, at Section 94 subsections (1), (2) and (5):

94(1) A person is qualified for disability support pension if:

(a) the person has a physical, intellectual or psychiatric impairment; and

(b) the person's impairment is of 20 points or more under the Impairment Tables; and

(c) one of the following applies:

(i) the person has a continuing inability to work;

(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

(d) the person has turned 16; and

(e) the person either:

(i) is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A) is not an Australian resident; and

(B) is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident; and

(f) the person is not qualified for disability support pension under section 94A.

Note 1: For Australian resident , qualifying Australian residence and qualifying residence exemption see section 7.

Note 2: for Impairment Tables see section 23(1) and Schedule 1B.

94(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a) the impairment is of itself sufficient to prevent the person from doing any work 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).

94(5) In this section:

"training activity" means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

(a) education;

(b) pre-vocational training;

(c) vocational training;

(d) vocational rehabilitation;

(e) work-related training (including on-the-job training).

work means work:

(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

(b) that exists in Australia, even if not within the person's locally accessible labour market.

Person not qualified in certain circumstances

10. Schedule 1B of the Act contains the Tables for the Assessment of Work-Related Impairment for DSP. The introductory paragraphs of the Schedule states, part, as follows:

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. Work is defined in section 94(5) of the Social Security Act 1991. The Tables represent an empirically agreed set of criteria for assessing the severity of functional limitations for work related tasks and do not take into account the broader impact of a functional impairment in a societal sense. For this reason, no specific adjustments are made for age and gender. The outcome of the application of these Tables following a medical assessment is termed work-related impairment and this term is used throughout this document.

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. These Tables are function based rather than diagnosis based. The Medical Officer should not approach the Tables hoping to find various conditions listed for which he or she can read off a rating. One of the skills which needs to be developed in order to assess impairment in this context is the ability to select the appropriate tables. The question which must be asked in each and every case is "which body systems have a functional impairment due to this condition?"

3. These Tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. This is measured by reference to an individual's efficiency in performing a set of defined functions in comparison with a fully able person. In using these tables ratings can only be assigned for conditions where there is an associated current loss of function or where prolonged loss of function would be expected in most work situations.

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.

EVIDENCE

11. The Tribunal had the benefit of specialist medical evidence both written and oral that was given on behalf of the Applicant Secretary. This evidence was not before the SSAT. The Tribunal also had the benefit of receiving oral evidence from Mr Casha.
12. Dr Gliksman a physician of some 18 years experience specialising in occupational medicine, provided oral and written evidence about his examination of Mr Casha. Mr Robilliard, a physiotherapist of some 23 years experience, for the most part in private practice and since 2002 working as a Work Capacity Assessor, gave evidence of his examination of Mr Casha.
13. Dr Gliksman said that Mr Casha’s case was, in his experience, complex because of the large number of medical problems presented. He said that the individual problems were not themselves unusual; it is the number of them that makes the case unusual. Dr Gliksman said the problems were actually standard and straightforward.
14. Dr Gliksman identified seven separate ‘presenting problems’, as follows:
    1. poor concentration and memory
    2. pain in both upper limbs
    100. pain and stiffness in right knee
    4. increasing shortness of breath on exertion
    5. bilateral hearing loss
    6. lower lumbar pain
    7. inguinal pain
       
15. Dr Gliksman examined Mr Casha on 31 October 2006. He had the benefit of an Electrocardiogram (‘ECG’) stress test report from Dr Jagger, Mr Casha’s cardiologist dated 5 October 2006. The report included a description of “moderate exercise capacity without definite signs of recurrent ischaemia”. Dr Gliksman also had the benefit of the 2003 audiometry report and a May 2006 X-ray of Mr Casha’s right knee.
16. Dr Gliksman modified his written report (A2) at page 6 to describe the ECG test as showing a normal stress result rather than the original “near normal”. He said “the reported ECG is clearly normal”.
17. Dr Gliksman gave the following opinions in respect of the seven identified ‘presenting problems’ as listed in paragraph 14 above:
    1. concentration and memory - “the exact nature, extent and prognosis is unknown and thus not permanent”;
    2. upper limbs - “the conditions affecting the upper limbs have not been appropriately investigated or treated and may be reversible, at least partially...and therefore cannot be assigned an impairment rating at this stage”;
    100. right knee - “the condition affecting the right knee has been investigated by x-ray only. Today’s clinical examination suggests the possibility that the right knee problems may be associated with medial meniscal pathology. However the condition has not been fully investigated, treated or stabilised and therefore...cannot be assigned an impairment rating”.
    4. increasing shortness of breath on exertion – “...in view of the normal stress ECG, and the lack of any other explanation or diagnosis capable of explaining a finding of 5 to 6 METs, it is my opinion that on the balance of medical probability Mr Casha is capable of substantial aerobic activity, in keeping with the results of objective stress ECG testing and therefore, cannot be correctly awarded impairment rating points for this reason”.
    5. bilateral hearing loss – “Mr Casha’s hearing loss is correctly assessed at zero impairment rating points”.
    6. lower lumbar pain – “Today’s clinical findings in relation to the back indicate that there is no significant loss of range of movement. In other words, there is a normal or nearly normal range of movement which...means that Mr Casha should be awarded nil impairment rating points for this condition”.
    7. inguinal pain – “The condition...appears to have been successfully treated by surgery...The condition is not rateable...in my medical opinion”.
       
18. Mr Clear cross-examined Dr Gliksman at length about Mr Casha’s symptoms and treatments. He made particular inquiries about the difference between the METs ratings for the claimed breathlessness symptoms and Dr Gliksman’s assessment. Dr Gliksman said that an ECG test is an objective measure that has breathlessness as a trigger point to stop the test and that did not happen. Dr Gliksman said that the ECG test overrode the reported clinical symptoms of breathlessness. He said a normal ECG is incompatible with the 15 impairment rating points assessed by the SSAT. He said he did not believe that METs could be used in this case and that he could safely conclude from the ECG it is highly unlikely that Mr Casha has significant cardiac problem. He did acknowledge that Mr Casha is at greater risk of heart attack and opined that he is medicated accordingly. He said that attempting to combine an ECG with the MET table does not have medical validity and reaffirmed his original opinion that the ECG was normal and no impairment points could be awarded for breathlessness arising from heart condition.
19. Mr Robilliard gave evidence about his examination of Mr Casha on 5 January 2007. He said Mr Casha told him that he used to walk for 45 minutes every day up until 12 months prior to the examination when he ceased this activity because of knee pain and not because of shortness of breath. Mr Robilliard said there were certain jobs that Mr Casha could do without undertaking vocational rehabilitation for 15 to 22 hours per week for 12 months from the date of his claim and then building up to 30 plus hours per week. Those jobs included parking inspector, tele-marketer, console operator, gate-keeper and sales person.
20. Mr Casha gave evidence that he walks for about 20 minutes three times a week. He said he covers about two kilometres and feels the need to rest sometimes. He said Dr Jagger was not present in the room when he did the ECG stress test. He said a nurse/assistant was present. He said the nurse told him “if you feel pain let us know”. He said he felt breathless before the test stopped but did not report this. Under cross examination he said the stress test lasted for eight minutes and that he was breathing heavily at the end of the test. He agreed that he told Mr Robilliard he stopped walking because of knee pain but said he told him it was a combination of knee pain and breathlessness. Mr Casha said he did not mention breathlessness in his September 2005 claim form because he did not have it then. He said it developed later.
    

DISCUSSION AND FINDINGS

21. Mr Casha did not mention breathlessness or breathing problems in his DSP claim. He told me he did not have the problem at that time, that is, in September 2005. The SSAT decision record of the evidence given on 12 July 2006 is that “...in the last three years his shortness of breath has worsened”. Mr Robilliard recorded at his consultation with Mr Casha on 5 January 2007 that he no longer walked for 45 minutes per day because of knee pain and not because of shortness of breath. Mr Casha said he told Mr Robilliard it was a combination of the two reasons. Having had the benefit of observing both witnesses give their evidence and be cross examined on it, I prefer the evidence of Mr Robilliard who made contemporaneous notes of the conversation and who was not tested on this point in examination. I find Mr Casha’s evidence as to the onset and extent of his claimed breathlessness from exertion to be unreliable.
22. In light of the ECG stress test and Dr Gliksman’s expert opinion, I find that on the balance of probability Mr Casha is capable of substantial aerobic activity, in keeping with the results of objective stress ECG testing and therefore, cannot be correctly awarded any impairment rating points for this claimed condition.
23. I find that Mr Casha should be given 5 impairment points for the 25 per cent restricted range of movement in his cervical spine.
24. I find that Mr Casha’s remaining medical conditions do not for the reasons articulated by Dr Gliksman, attract any impairment points under the relevant tables.
25. It follows from the above that it is not necessary for me to consider the question of Mr Casha’s continuing ability to work as he does not have impairment rating of 20 points or higher.
    

DECISION

24. The decision under review is set aside. In substitution thereof, the Tribunal decides that the original decision to reject the claim for Disability Support Pension is the correct and preferable decision.

I certify that the preceding 24 paragraphs are a true copy of the reasons for the decision herein of Mr Michael Griffin, Member

Signed: ..........[sgd].........Mwela Kapapa................

Associate

Date of Hearing 7 March 2007

Date of Decision 30 April 2007

Counsel for the Applicant Joseph Gersten

Counsel for the Respondent Self-represented