Aho and Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2001] AATA 532

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/614

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Mauri Raineri Aho
  Applicant
           And    Secretary, Department of Family and Community Services
  Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date14 June 2001
PlaceSydney

Decision      The decision under review is affirmed.
  ....................[sgnd].…................
  Ms SM Bullock
  Senior Member
Catchwords
SOCIAL SECURITY - Disability Support Pension - Impairment Rating

Legislation
Social Security Act 1991 (Cth) ss 94(1), 94(2), 94(5), 100(3)

REASONS FOR DECISION

14 June 2001 Ms SM Bullock, Senior Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") made by Mr Mauri Raineri Aho of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 22 March 2000, that as Mr Aho's combined impairment points were less than 20, he did not qualify for a Disability Support Pension (T2). The SSAT's decision affirmed a decision of an Authorised Review Officer ("ARO") of the Department of Family and Community Services ("the Department") made on 29 October 1999, that Mr Aho was not qualified for a Disability Support Pension (T36). The original decision made by a Delegate of the Department was communicated to Mr Aho by letter of 14 September 1999 (Exhibit R4).
A hearing was held before the Tribunal in Port Macquarie on 15 March 2001. Mr Aho provided oral evidence to the Tribunal. He was self represented. The Respondent, the Department, was represented by Ms H Schuster, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) ("T-Documents", T1-T50)and the following exhibits:

Exhibit Number    Description Date
T1 – T37 Section 37 Statement and Documents. Various
T38-T50 Supplementary Section 37 Statement and Documents. Various
A1      AMP Superannuation Limited Permanent Incapacity/Invalidity Medical Certificate signed by Dr R McCredie, General Practitioner and Dr G Lucas 7 November 2001 8 November
A2      Treating Doctor's Report prepared by Dr R McCredie, General Practitioner 5 February 2001
A3      Letter from Ms L Black, Claims Officer, AMP     29 December 2000
A4      Further letter from Ms L Black, Claims Officer, AMP     6 February 2001
A5      Medical Certificate from Dr R McCredie, General Practitioner 31 October 2001
A6      Medical Certificate from Dr R McCredie, General Practitioner 5 February 2001
R1      Respondent's Statement of Facts and Contentions     9 March 2001
R2      Report of Fitness for Duty by Dr M Harden, Occupational Physician 22 December 2000
R3      Report of Dr R McCredie, General Practitioner 1 December 2000
R4      Letter to Mr Aho from C F Thomson, Delegate of the Secretary, Department of Family and Community Services          14 September 1999

Issues

The issue in this matter relates to whether or not Mr Aho is qualified to receive a Disability Support Pension. Specifically, the sub-issues are:
(a)Does Mr Aho have a physical, intellectual or psychiatric impairment; and if so
(b)Is Mr Aho's impairment 20 points or more under the Impairment Tables contained within Schedule 1B to the Social Security Act 1991 as required to satisfy subsection 94(1)(b) of that Act; and if so
(c)Whether Mr Aho has a continuing inability to work as required by subsection 94(1)(c)(i) of the Social Security Act 1991 (Cth).

Legislation

The legislation relevant to a determination in this matter is the Social Security Act 1991 (Cth) ("the Act"). Section 94 of the Act deals with qualification for Disability Support Pension. As relevant, section 94 provides:
"Qualification for disability support pension
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
…
(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 within the next 2 years; and
(b)      either:
(i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
Note: For work see subsection (5).
…
(5)      In this section:
educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
work means work:
(a) that is for at least 30 hours per week at award wages or above; and
(b) that exists in Australia, even if not within the person's locally accessible labour market.
…"
Section 100 deals with the commencement day for Disability Support Pension and as relevant states:
"Early claim
100(3) If:
(a) a person lodges a claim for a disability support pension; and
(b) the person is not, on the day on which the claim is lodged, qualified for a disability support pension; and
(c) the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;
the person's provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia.
…"

Background

The facts contained in this section are by way of background information and are not disputed by the parties.

Mr Aho was born on 3 March 1953 in Finland (T3, p44). He left school aged approximately 16 years old and attained the equivalent of year 10 School Certificate (T3, p80).
Mr Aho immigrated to Australia in May 1958 (T3, p47). He married on 13 July 1978 (T3, p45). Mr Aho has a daughter who lives in Sydney and a step daughter who lives in Port Macquarie, where he currently lives with his wife.
Mr Aho worked as a race handicapper with the New South Wales Thoroughbred Racing Board from 10 December 1979 to 30 July 1999 (T3, p81). He was Chief Handicapper at the time of his retirement.
On 9 July 1999, Dr D J O'Sullivan, Neurologist, reported that he could find no evidence of any neurological abnormality in Mr Aho and did not think that changes he had seen on a CT scan were particularly significant. Dr O'Sullivan opined that Mr Aho did not require any surgical procedure to his cervical spine. Mr Aho's reported left axillary itchiness and pain, as well as pain in the penis, left Dr O'Sullivan at a loss to explain these symptoms (T20).
On 13 July 1999, Dr R Janus, General Practitioner, noted that Mr Aho was permanently unfit for work on the basis of "chronic neck pain caused by radiologically proven cervical spondylosis, hiatus hernia, colonic polyps and Meniere's Disease all confirmed by specialists" (T21).
On 21 July 1999, Dr B Kwok, Neurosurgeon, reported that in relation to a disability rating for Mr Aho and having considered an article published in the Medical Journal of Australia by Weiner et al dated 21 September 1992, he assessed Mr Aho as having a Grade 3 severity of symptoms, providing a 15 per cent permanent impairment of efficient use of the neck (T22).
On 2 August 1999, Mr Aho lodged a claim for a Disability Support Pension (T3). Mr Aho claimed the following medical conditions:
·Chronic neck pain – cervical spondylosis Grade 3 severity of symptoms.
·Hiatus Hernia
·Colonic polyps – cancer – two polyps removed.
·Meniere's Disease – imbalance

Mr Aho noted that these disabilities started to make it difficult for him to work from July 1989 (T3, p74).

On 19 August 1999, Mr Aho signed a request for Payment of Disablement Benefit in relation to his employment with the New South Wales Thoroughbred Racing Board (T24).
On 30 August 1999, Dr R Alexander, General Practitioner, reported that Mr Aho would never be able to be employed in the capacity for which he is reasonably qualified, because of his "incurable health problems, particularly neck pain caused by radiologically documented cervical spondylosis at C3/4/5/6. He also suffers from a hiatus hernia with reflux oesophagitis, Meniere's disease and colonic polyps". Dr Alexander noted that Mr Aho had been a patient of her practice since 1990 (T25).
On 30 August 1999, Dr R Janus, General Practitioner, provided a Treating Doctor's Report in support of Mr Aho's Disability Support Pension claim (T26). Dr Janus noted that Mr Aho had the conditions of cervical spondylosis, hiatus hernia/oesophagitis, colonic polyps and Meniere's Disease. Dr Janus opined that it would be more than two years before Mr Aho was likely to be able to return to his usual job or any other type of job. Further, Dr Janus opined that Mr Aho would not be able to undertake any type of part-time work in more than two years (T26, p110).
On 1 September 1999, Dr J Ying, Medical Adviser with Health Services Australia, reported that Mr Aho had cervical spondylosis with neck pain, associated headaches and paraesthesia in the hands after about one and a half hours on the computer. Further, Dr Ying noted occasional and unusual pain/sweating in the armpits, penile hypersensitivity, hiatus hernia/oesophagitis, colonic polyps and Meniere's Disease since 1988 (T27).

Dr Ying noted that Mr Aho had difficulty in left rotation of his neck and had a 25 per cent reduction in the range of his movement. There was no abnormality detected with all other movements. Dr Ying further noted that Mr Aho had been assessed by a neurologist with no significant findings. Mr Aho experienced neck pain and headaches requiring "Capadex" for pain, one to four tablets per day. In relation to Mr Aho's colonic polyps, Dr Ying noted that a colonoscopy had been undertaken in April 1999 with some polyps removed. Dr Ying recommended six monthly reviews for the next three years to observe and detect any early cancerous changes. In relation to Mr Aho's Meniere's Disease, Dr Ying noted that Mr Aho still has occasional "heavy headedness" and dizziness, which lasts for approximately one and a half hours. Dr Ying reported that Mr Aho did not experience any actual vertigo but had occasional tinnitus twice per month, which lasted for approximately 30 seconds. Dr Ying noted that there was no abnormality detected with Mr Aho's balance. Dr Ying assessed Mr Aho as having nil impairments for colonic polyps on Table 11.2 and no impairment for hiatus hernia from Table 11.1. There was no impairment rating for Meniere's Disease, although Dr Ying used Table 21 for Intermittent Conditions to assess that there were minor symptoms, with medium duration occurring on over 100 days per year giving a nil impairment (T27, p119). Dr Ying rated Mr Aho's cervical spondylosis at 10 points from Table 20, which he considered better assessed the chronic nature of this condition and the pain. Dr Ying noted that under Table 5.1, Spinal Conditions, Mr Aho would not achieve as high a rating as 10 points from Table 20 for the same condition.
Dr Ying concluded that the appropriate combined impairment was 10 points. In his report of 1 September 1999, Dr Ying noted that a Neurosurgeon's assessment on 28 May 1999 had found no signs of radiculopathy or myelopathy and surgery was not recommended. Dr Ying opined that Mr Aho was not fit for heavy or moderately heavy work but was fit for light full or part-time work, where he could have full flexibility of movement and posture. Possible suitable employment would be as a caretaker or a salesperson. Dr Ying did not consider that Mr Aho required vocational rehabilitation (T27, p124).

On 2 September 1999, Dr R Janus, General Practitioner, confirmed that Mr Aho was permanently unfit for work on the basis of his chronic neck pain caused by radiologically proven cervical spondylosis, hiatus hernia, colonic polyps and Meniere's Disease. Dr Janus concluded:
"…He will never again be able to be employed in a capacity for which he is reasonably qualified by his education, training and experience." (T28)
On 14 September 1999, a Delegate of the Department wrote to Mr Aho informing him that his claim for Disability Support Pension had been rejected (Exhibit R4).
Following the Department's decision to reject Mr Aho's claim for Disability Support Pension, Mr Aho submitted an additional report by Dr Janus dated 2 September 1999 (T28) and also, Dr Alexander's letter of 30 August 1999 (T25). Dr T Kanapathipillai, Medical Adviser with Health Services Australia, wrote on 27 September 1999 that having considered Dr Janus' report of 2 September 1999 and Dr Alexander's report of 30 August 1999, the doctor still considered that Dr Ying's original assessment of 10 points remained appropriate and therefore the impairment rating should not change (T30).
On 12 October 1999, Mr Aho requested that an ARO review the decision of the Departmental Delegate (T31).
On 29 October 1999, Ms C Carboni, ARO, wrote to Mr Aho informing him that she had decided that the decision to reject his claim for Disability Support Pension was correct. Ms Carboni determined that while Mr Aho did have physical impairments, they were not to the requisite 20 points or more under the Impairment Tables. Further, Ms Carboni concluded that Mr Aho was currently fit for suitable light work where he could have full flexibility of movement and posture, such as could be found in clerical work, as a shop assistant, caretaker, ticket collector or parking attendant (T36).
On 16 November 1999, Mr Aho lodged his application for review to the SSAT and on 22 March 2000, the SSAT affirmed the decision under review. The SSAT decided that the appropriate ratings were 10 points for neck pain from Table 20; a nil rating for hiatus hernia and oesophagitis from Table 11.1; a nil impairment rating for colonic polyps under Table 11.2; and a nil rating for Meniere's Disease under Table 21.1. As Mr Aho's total impairment rating was less than 20 points, the SSAT determined that he did not satisfy the legislative requirements under subsection 94(1)(b) of the Act and therefore did not qualify for a Disability Support Pension (T2).
On 26 April 2001, Mr Aho lodged his application for review to the Tribunal.

Evidence of Mr Mauri Aho

Mr Aho explained to the Tribunal that on 2 April 1986, he had left work and was travelling in a bus when the bus stopped suddenly. Mr Aho was thrown about and hit a vertical bar on the right side of his neck. Mr Aho consulted his local doctor the next day about his neck pain. X-rays revealed no fracture and he was commenced on physiotherapy treatment. Mr Aho later resumed work. Mr Aho then experienced severe headaches arising from the back of his neck and this was also associated with nausea. Mr Aho received a compensation lump sum in 1992 arising out of the 1986 accident. The Tribunal noted that Mr Aho developed vertiginous episodes and was subsequently diagnosed by Dr Gibson and Dr J Ell at Royal Prince Alfred Hospital as suffering from Meniere's Disease. Mr Aho was also examined by Dr J Walsh, Neurologist, at Royal Prince Alfred Hospital, in addition to Dr B Kwok, Neurosurgeon at St George Hospital (T20, p100).
Mr Aho told the Tribunal that he currently consults his General Practitioner every two weeks. Dr R Dunn had previously been Mr Aho's General Practitioner but he retired in August 2000. Currently, Dr R McCredie continues to treat Mr Aho.
Mr Aho listed his disabilities as cervical spondylosis, hiatus hernia, colonic polyps, skin condition and eruptions, Meniere's Disease and most recently, Raynaud's Disease and numbness in the left leg and toes.
In relation to his cervical spondylosis, Mr Aho told the Tribunal that he is in pain 90 per cent of the time from his neck. His neck aches four to six hours per day. Mr Aho explained to the Tribunal that if he bends or lifts, he experiences pain at the nape of his neck, which moves through to his left eye, across his face, and to his temple. There is also pain and a dull ache in his shoulder. Mr Aho stated that he experiences these symptoms regularly and cited the day prior to the hearing as the most recent occurrence. Mr Aho takes the medication "Celebrex" to assist with these symptoms, taking two tablets at a time. The medication allows him to have reduced pain for approximately two hours and then the pain resumes. Mr Aho stated that the history of this condition is that he may have one week without pain or he may experience pain every two to three days. He stated that during the three hours of the Tribunal's hearing, he was experiencing pain. If Mr Aho does not move, bend, or twist his neck, he may experience no pain.
Activities such as driving a car create problems for Mr Aho, as he is required to turn his head to judge and react to traffic around him. He cannot drive long distances but is able to occasionally drive the car to the shops. Mr Aho was advised by a specialist examining him for his AMP superannuation, that he should not drive at all. If Mr Aho has taken pain-killing medication, he finds that he cannot drive because of his lack of concentration and the effects of the medication dulling his senses.
Mr Aho used to play snooker and he cannot do this any more. He also used to play other sport. Mr Aho tries to walk two or three times per week but must pace himself. On a good day, in easy conditions, he is able to achieve distances of up to three kilometres.
About nine to twelve months ago, Mr Aho commenced using a nine kilogram traction machine which he attaches to his jaw. Mr Aho finds that regular use of the traction machine strengthens his jaw.
Mr Aho had been advised by Dr B Kwok, Neurosurgeon, that there will come a point where his neck pain will become so unbearable as to require surgical intervention. Mr Aho informed the Tribunal that he considers that he is fast approaching this point in time.
Mrs Aho is partially disabled and Mr Aho must assist his wife. He has a daughter living in Sydney and a step-daughter in Port Macquarie. Mr Aho told the Tribunal that his step-daughter is not of much assistance to the family, but she can help with shopping from time to time.
Mr Aho has another condition, hiatus hernia, which restricts his diet to certain bland foods. He is not able to drink red wine or eat spicy food and cannot eat late at night as this disrupts his sleep. He has to be careful which side he sleeps on. Mr Aho stated that he is not generally in pain from this condition, as long as he takes his medication "Somac". Mr Aho is under the care of Gastroenterologist, Dr V Duncombe, at Prince of Wales Hospital, Randwick.
Mr Aho also suffers from colonic polyps with symptoms of bleeding from the rectum. These symptoms have occurred on two occasions. Mr Aho had a colonoscopy two years ago when two polyps were removed. At the time of hearing, Mr Aho believed he had further polyps which he discovered following a self-examination. Mr Aho told the Tribunal that he was going to make an immediate appointment to have this matter further investigated.

Mr Aho described skin rashes and itchiness and sometimes pain which occurs in the left armpit with eruptions. He also has eruptions on his face which are discussed in the T-Documents. This is an intermittent condition, which last occurred two months prior to the hearing. Mr Aho uses "Betnovate" cream to manage the condition. This condition does not happen very often, it may not occur for some months and then may occur every week.
In 1988, Mr Aho was diagnosed with Meniere's Disease and he attributes this condition to his bus accident. The condition causes him to have poor balance, with a tendency to move to the left when he is actually meaning to move to the right. Mr Aho also experiences ringing or tinnitus in his ears. He has to rest each morning before he gets out of bed to ensure he has his balance. At night, Mr Aho has had falls, overbalancing and falling down the stairs. Recently when doing the shopping, he experienced balance difficulties. The condition can occur every two or three days or every day. Typically, Mr Aho will lose his gait, if walking, for 20 or 30 seconds. There have been no recent severe falls, Mr Aho stated. Initially, when the condition was diagnosed, the symptoms were very severe; however, there has been a gradual improvement. In recent times, Mr Aho noted the symptoms were once again becoming more frequent and severe.
Mr Aho described more recent problems with his left leg and toes feeling "dead". This feeling lasts for three-quarters of the day. Mr Aho experienced these symptoms approximately one week before the hearing. Further, Mr Aho described coldness and stiffness in his fingers, which often feel like "blocks of ice". He experiences pain from bending his knuckles and recently on a hand strength test, received a 40 per cent strength result. Mr Aho stated that he cannot open and close car doors and cannot lift tables or chairs.
Mr Aho believes that the above described symptoms had been diagnosed by Dr Dunn as Raynaud's Disease. In recent time, however, Dr McCredie has told Mr Aho that he does not have Raynaud's Disease and the symptoms he is experiencing relate to his neck condition. This is somewhat confusing for Mr Aho. Dr Dunn had prescribed the medication, "Minipress", for Raynaud's Disease. Dr McCredie has, however, ceased this medication, Mr Aho told the Tribunal.
In relation to medication, Mr Aho used to take "Moduretic" for his Meniere's Disease. For the polyp condition, he takes "Rectinol" and has frequent salt water baths.
In relation to his daily activities, Mr Aho stated that he gets up each morning at about 7.00am. At this time, his ankles are stiff and sore until he is able to become more active. Mr Aho stated that he is able to assist his wife with vacuuming and shopping. He is unable to do the gardening and Mrs Aho undertakes this work. Any minor household repairs have to be undertaken by a friend who is a carpenter, Mr Aho told the Tribunal. Mr Aho may watch television, listen to the radio or undertake moderate exercise such as a walk or his traction exercises. Mr Aho manages the household bills and other paperwork. Once a week, Mr and Mrs Aho may meet friends and go to a local club, but that depends on how he is feeling and the sleep pattern he had the previous night.
Mr Aho also helps with interpreting in relation to the Finnish language and is contracted to do work for various organisations in Sydney and Melbourne. Mr Aho does not undertake any voluntary work.
Mr Aho told the Tribunal that he had been undertaking clerical work for approximately 26 years and most recently was the Chief Handicapper for the NSW Thoroughbred Racing Board. His local doctor had told him not to work. The difficulty for him in undertaking any vocational training or indeed employment is that he is restricted by pain. If Mr Aho takes medication to ease his pain, this then numbs his senses and his concentration is poor. If Mr Aho elects not to take medication, equally, his concentration is reduced because of the severe level of the pain. Further, because of Mr Aho's Meniere's Disease, he can overbalance without any warning. Driving to and from work, as he would be required to do if working in Port Macquarie, was a significant safety hazard because of his balance problems, pain, restricted mobility of the neck and poor concentration. Employment options suggested by Dr Ying as a caretaker, car park attendant or sales person were totally unrealistic, Mr Aho stated. Mr Aho conceded that he may well be able to provide consultancy advice, but this would have to be on a short term basis of approximately one to two hours at a time.
Recently, Mr Aho had settled his AMP superannuation claim for approximately $75,000.00 net. He had moved to Port Macquarie because it was a better climate for his health conditions. Mr Aho had also recently purchased a new home, having moved into it two weeks prior to the hearing.
Recent Medical and Other Evidence
Dr R Dunn, General Practitioner
Dr Dunn, Mr Aho's former General Practitioner, reported on 28 June 2000 that Mr Aho has the following disabilities:
1.        Cervical Spondylosis
2.        Meniere's Disease
3.        Raynaud's Disease
4.        Colonic Polyps
5.        Hiatus Hernia

Dr Dunn reported that the colonic polyps and hiatus hernia did not cause Mr Aho any functional disabilities.

In relation to cervical spondylosis, Dr Dunn reported a 50 per cent loss of normal range of movement with constant neck pain and rated this as 10 impairment points. In relation to the upper limbs, Dr Dunn assessed an impairment of 10 points for the right arm and 5 points for the left arm, to reflect a loss of function in the right and left arms. In relation to Raynaud's Disease, and using Table 21 for Intermittent Conditions, Dr Dunn opined that the severity was Level 2 and the duration of each attack lasted between thirty minutes and four hours, which therefore could be described as of medium duration. The severity rating was "C" and in relation to frequency, Dr Dunn reported that Mr Aho experienced symptoms of Raynaud's Disease 100 days per year or more. From the various sub-tables of Table 21, Dr Dunn concluded that the correct impairment rating for Mr Aho's Raynaud's Disease was 10 points. The combined impairment points score for all of Mr Aho's conditions was 35 points, Dr Dunn concluded (T38).
Dr Dunn provided a further Medical Review and Treating Doctor's Report signed on 11 July 2000 (T39). Following receipt of this report, a Centrelink delegate requested further information from Dr Dunn on 17 July 2000. Dr Dunn replied on 25 July 2000 that he noted Dr Hopcroft was investigating Mr Aho's cervical spondylosis. Dr Dunn wrote:
"…Therefore my estimation of his disability for this condition is invalid and I would suggest you enquire further from Dr Hopcroft." (T41, p160)

Dr Dunn opined that he did not believe that Mr Aho's symptoms would improve until he had been granted a pension. Further, Dr Dunn noted that he was not prepared to comment further on Mr Aho's physical disability and suggested that Centrelink obtain an opinion from the disability experts at the Commonwealth Rehabilitation Service ("CRS") (T41, p160).
Dr R McCredie, General Practitioner

Dr McCredie reported on 1 December 2000, in relation to questions which had been previously sent by Centrelink to Dr Dunn on 17 July 2000 (Exhibit R3). Dr McCredie noted that Mr Aho commenced his day helping prepare breakfast. He ate dinner with his wife, watched television, listened to the radio, undertook neck stretches on door traction twice a day and also wrote letters, such as to solicitors at AMP and Centrelink. Dr McCredie noted that Mr Aho did not do housework, except for cooking and vacuuming and was able to drive short distances to the shops, although Mrs Aho was always with him. Mrs Aho was reported to undertake inside and outside work and further, Mr Aho had bouts of imbalance at night and often felt unsafe driving the car. Dr McCredie noted that Mr Aho's driving ability was limited due to his having to take pain killers or because of his Meniere's Disease. Dr Hopcroft had also advised him to limit his driving. Mr Aho had told Dr McCredie that he could drive for one hour, with two or three minute breaks during that time. Dr McCredie further reported that when sitting and typing, Mr Aho has to bend his fingers and take a walk and stretch every ten minutes. When employed, Mr Aho would have to walk around after spending 10 or 15 minutes at the computer. In relation to walking, Mr Aho reported to Dr McCredie that he could walk for one kilometre at a normal pace, resting for five minutes and then continuing on to walk for a further forty minutes until his knees started to ache or his neck muscles became painful and/or he suffered a headache. At his previous work, there were problems because of his chronic neck pain associated with a burning sensation in his left axilla. Mr Aho's Meniere's Disease produces balance and visual impairments and he suffers from heart burn, reflux, and lack of sleep due to his hiatus hernia. Raynaud's Disease causes Mr Aho to have cold fingers and loss of strength to the tune of 60 per cent, Dr McCredie reported.
Dr McCredie concluded that it was hard to quantify the degree of Mr Aho's disability, but it appeared to him that Mr Aho's employment chances in the future were very remote and that it was unlikely that this condition would improve, with the more likely scenario being that Mr Aho's health would deteriorate over the next few years (Exhibit R3).
On 7 November and 8 November 2000, respectively, Dr McCredie and Dr G Lucas certified for AMP superannuation that Mr Aho had a permanent incapacity caused by cervical spondylosis, Meniere's Disease, Raynaud's Disease, colonic polyps and hiatus hernia (Exhibit A1).
Dr McCredie provided a Treating Doctor's Report dated 5 February 2001, reporting that Mr Aho had been a patient of his since 20 October 2000 and a patient at the practice since 14 December 1999. Dr McCredie reported that Mr Aho would be unable to work in any position within a period of more than two years or to undertake part-time work within that period (Exhibit A2).
Dr McCredie provided a Social Security Medical Certificate dated 5 February 2001, noting that Mr Aho was unable to undertake his usual work or study for eight hours or more per week for more than two years. Further, Mr Aho was unable to lift heavy weights, sit for long periods of time or concentrate for lengthy periods because of his conditions of cervical spondylosis, Meniere's Disease, Raynaud's Disease and hiatus hernia (Exhibit A6).
Commonwealth Rehabilitation Service (CRS)
A Functional Capacity Evaluation Report was undertaken by Ms F Wicks, Occupational Therapist, who reported on 8 September 2000 that in her opinion, Mr Aho was not capable of returning to paid employment. The limiting factors assessed by Ms Wicks related to a combination of Mr Aho's suffering chronic neck pain and decreased function in his upper limbs, Meniere's Disease and Raynaud's Disease. Ms Wicks noted that Mr Aho had a loss of function in both his hands, associated with arthritic symptoms and sensitivity to hot and cold. Ms Wicks further opined that Mr Aho would benefit from involvement with voluntary work and would be capable of sedentary type of work on a casual basis. Ms Wicks noted that a Full Functional Capacity Evaluation was unable to be conducted because Mr Aho "limited, or did not attempt, activities because of his reported perceived pain he would experience" (T45).
On 18 September 2000, Ms Wicks further reported that the results of the Functional Capacity Evaluation indicated that Mr Aho's combined symptoms reflect his inability to perform any work for at least 30 hour per week at award wages within the next two years. Ms Wicks further noted that the unpredictable nature of the onset of Meniere's Disease, Mr Aho's reported headaches associated with cervical spondylosis and his decreased grip strength and fine manual handling associated with Raynaud's Disease, are combined reasons for Mr Aho's being unable to undertake light work for 30 hours per week. It was opined that Mr Aho could work at bench height, avoiding working in forward flexion or undertaking tasks involving fine manipulating skills. The difficulty was, however, that there were also present active symptoms associated with Meniere's or Raynaud's Diseases. The unpredicability of these diseases was significant, Ms Wicks opined, in terms of Mr Aho's undertaking paid employment or undertaking further retraining. Ms Wicks reiterated that the full evaluation was unable to be completed because of Mr Aho's reported exacerbation of pain if he participated in carrying, working in forward flexion and undertaking ladder work (T47).
Subsequently, further information was requested of CRS by Centrelink and Rehabilitation Consultant, Ms K Hamilton, reported on 3 October 2000. Ms Hamilton concluded that Mr Aho's current capacity for work and retraining was limited because of multiple physical restrictions, reduced stress tolerance, sensitivity to heat and cold, communication difficulties and reduced mobility in driving (T50, p191).
It was concluded that Mr Aho would not substantially gain from a program with CRS at that point, as no immediate suitable vocational options could be identified. It was predicted that Mr Aho would be unlikely to be successful in securing and performing suitable paid employment, because of factors such as his age and having few transferable skills on the labour market. Further note was made of Mr Aho's medical conditions and the need to have ongoing coordination of his complex treatment needs. There was unlikely to be any significant improvement in Mr Aho's work capacity, Ms Hamilton had concluded. It was recommended that Mr Aho undergo a neuropsychological assessment to ensure that there was no significant Acquired Brain Injury impacting on his ability to work or learn new tasks. It was also recommended that Mr Aho focus on retraining for sedentary work, such as clerical work or on computers and that he contact the relevant Departmental Disability Support Officer in order to obtain assistance to complete retraining activities (T50, p191).
Dr M Harden, Occupational Physician
Dr Harden reported on 22 December 2000 that Mr Aho presented as a person whose objective evidence for medical problems was inconsistent with the degree of alleged handicap for employment (Exhibit R2). Dr Harden noted that Mr Aho's worst problem was neck pain. However, it was noted that objectively, Mr Aho has a small disc bulge in his mid cervical spine, which was probably the cause of the pain. Dr Harden reported no sinister or significant problems in Mr Aho's neck and regarded the objective findings as very common. Dr Harden reported a loss of a quarter of the range of movement of his neck. Given that neck pain was Mr Aho's most significant factor, Dr Harden rated the condition of cervical spondylosis under Table 20 of the Impairment Tables and considered that at most, Mr Aho would achieve a rating of 15 points for chronic pain. Dr Harden considered this rating appropriate to reflect Mr Aho's reported moderate to severe symptoms which distressed him but which prevented his undertaking few every day activities. Dr Harden opined that Mr Aho may have occasional problems with work attendance because of his neck, but considered that full-time work was entirely possible.
In relation to Mr Aho's Meniere's Disease, Dr Harden rated this under the Intermittent Conditions Table, Table 21. On Table 21.1, Dr Harden considered Mr Aho's Meniere's Disease had a severity grading of 3. The attacks were considered to be of short duration, being less than 30 minutes and most usually lasting about 10 minutes. These episodes occurred approximately every month and accordingly, undertaking the instructions for Table 21.4, this condition would attract a nil rating. Dr Harden suggested that Mr Aho avoid working with machinery or working at heights because of his Meniere's Disease.
In relation to Mr Aho's reported condition of Raynaud's Disease, Dr Harden did not consider that such a diagnosis had been confirmed or indeed managed by an appropriately qualified specialist. If there were such a condition, then it would be present only intermittently, Dr Harden opined. Dr Harden reported that Mr Aho's hands demonstrated normal function and the reports of impairment during attacks appear to be related to the sensation of coldness, which is transient and does not result in any significant loss of function. Again, using Table 21 for Intermittent Conditions, Dr Harden indicated that the attacks were minor, of Grade 1 severity and that while the symptoms were irritating or unpleasant, they rarely prevented completion of any activity. The attacks of coldness only lasted briefly, Dr Harden noted and could be considered as of short duration in accordance with Table 21. The overall rating for Raynaud's Disease was nil, Dr Harden opined. Any tightness and knuckle pain reported by Mr Aho could be considered under Table 3 for Upper Limb Function, where again, it would attract a nil rating for upper limbs, since there was no demonstrable evidence of dysfunction.
In relation to Mr Aho's colonic polyps, while Dr Harden reported that there are further polyps to be removed in the future, this is not associated with any symptomatology. Any removal may afford Mr Aho temporary incapacity, but the condition does not attract any rating in terms of permanent impairment, Dr Harden opined.
In relation to hiatus hernia, there are mild intermittent symptoms, Dr Harden reported, generally controlled by medication. From Table 11.1, Dr Harden considered that there was no impairment rating. Dr Harden concluded that the overall impairment rating for all of Mr Aho's conditions is 15 points for his cervical spondylosis.
Dr Harden further concluded that Mr Aho could perform a range of activities including sales work, customer liaison work, ticket sales, care-taker work and administrative work.
In relation to conclusions by the CRS that Mr Aho was not likely to be able to return to the workforce, Dr Harden did not consider that there was any absolute barrier posed by Mr Aho's medical conditions and it was his opinion that Mr Aho had chosen not to return to the workforce. Dr Harden could not support a determination of total incapacity for work on the evidence provided by Mr Aho's presentation and by Dr Harden's review of the extensive supporting documentary documentation (Exhibit R2).
Submissions
Mr Aho submitted that he had recently been assessed by the AMP doctor to have a permanent disability. AMP had initially rejected his claim for permanent incapacity, but had changed its decision following consideration of the report from the CRS. Mr Aho had received this decision two weeks prior to hearing.
Mr Aho submitted that the Tribunal should consider the reports of his treating doctors, Dr Dunn, who assessed him at 35 points (T38, p147) and more recently, Dr McCredie's report (Exhibit A2).
In relation to the assessment by Occupational Physician, Dr Harden, Mr Aho submitted that this was a superficial view, not undertaken by anyone who knew his history well. Further, Mr Aho objected to Dr Harden's referring to his conditions of cold hands and loss of grip strength as being "brief episodes". This was not the case. There was ample medical evidence from his treating doctors and also from Dr Hopcroft, who examined him for AMP, that he suffered from pain which caused a lack of concentration. Further, the Meniere's Disease condition caused Mr Aho to be dangerous in that he was unable to drive a car any distance nor be certain when he might have an attack of poor balance, tinnitus or extreme neck pain and headache from his cervical spondylosis. Mr Aho submitted that neither his Meniere's Disease nor any of the other conditions should be taken lightly, as they have very real and demonstrable effects on his life and his ability to work. Further, Mr Aho noted that his hiatus hernia condition, while controlled, does still cause him problems and he again has colonic polyps which need to be treated.

Ms Schuster, for the Respondent, submitted that the Tribunal must apply section 94 of the Act to determine Mr Aho's qualification for Disability Support Pension. Further, Ms Schuster noted that the evidence is that a number of Mr Aho's conditions have worsened and that he may indeed have new conditions. Ms Schuster referred the Tribunal to subsection 100(3) of the Act, which requires that decision-makers are only able to consider the conditions claimed at the time of the claim for Disability Support Pension and within the following three months. Many of the reports from Mr Aho's doctors are some 11 months or more after his claim for Disability Support Pension and report worsening of conditions, as did Mr Aho and indeed, new conditions, such as the possibility of Raynaud's Disease and arthritic changes to the hands as reported by the CRS.
In relation to cervical spondylosis, Ms Schuster noted that the reports of Dr Ying assessed a 25 per cent loss of range of movement as did Dr Harden. Dr Dunn assessed an impairment on 28 June 2000, some 8 months after the claim of a 50 per cent loss of range of movement. Further, Ms Schuster referred to Dr Kwok's report of 28 May 1999, that cervical movements were restricted on the lateral rotation. A CT scan undertaken on 16 April 1999, confirmed degenerative changes to the C3/4 and C5/6 regions, although there was no focal or significant disc protrusion evident (T13). Dr O'Sullivan, Neurologist, reported on 9 July 1999, contemporaneous with Mr Aho's claim, no evidence of any neurological abnormality and dismissed changes seen on the CT scan as being of no particular significance. Further an MRI scan of 5 June 2000 found no evidence of nerve root impingement (T38, p146).
In assessing a 10 point rating for cervical spondylosis, Dr Ying not only had regard to Dr O'Sullivan's report of 9 July 1999 and to Dr Kwok's report, but also to the fact that Mr Aho had only 25 per cent loss of range of movement of the spine. Ms Schuster submitted that the appropriate table for assessment of Mr Aho's cervical spondylosis is Table 20, to reflect the chronic nature of the pain. While Ms Schuster noted the higher impairment of 15 points provided by Occupational Physician, Dr Harden, Ms Schuster submitted that this assessment was undertaken in December 2000, more than a year after the claim. Accordingly, while Ms Schuster recognised that Mr Aho's condition may have worsened, she submitted that the correct impairment was 10 points, to reflect the symptomatology at the time of the claim and three months hence.
In relation to Meniere's Disease, Ms Schuster submitted that this condition affects Mr Aho's balance and he has had the condition since 1988. The evidence is that this condition settled somewhat but has recently worsened. The Respondent considers that the appropriate rating is nil under Table 21. The symptoms produced are not particularly severe, Ms Schuster submitted and there does not appear to be any functional loss. From the Respondent's Statement of Facts and Contentions, it is noted that the only doctors who believe that this condition contributes to Mr Aho's inability to work, are the General Practitioners from the Flynn's Beach Medical Centre, namely Dr Lucas, Dr McCredie and Dr Dunn. Dr Ying and Dr Harden rate Meniere's Disease as a nil impairment under Table 21.
In relation to Mr Aho's colonic polyps, Ms Schuster noted that the polyps have been removed by surgery and found to be non-malignant. While there may be some reoccurrence of the polyps, they have not been treated or stabilised and the evidence is that at this stage there is no functional loss. Accordingly, a nil impairment is appropriate under Table 11.2.
In relation to hiatus hernia, Ms Schuster noted that this condition produces mild intermittent symptoms which are controlled by medication and that again there was no functional loss and the appropriate impairment is nil under Table 11.1.
Ms Schuster referred to the possibility of the presence of Raynaud's Disease. There is a difference of opinion as to whether or not this condition is present and until such time as it is properly diagnosed, stabilised and treated, no rating is appropriate and in any event, if the disease is present, Ms Schuster considered that a nil impairment rating is appropriate from Table 21 because of the intermittence of the condition, if it indeed exists.
The Respondent's Statement of Facts and Contentions noted Dr Dunn's report of 28 June 2000, in which he assigned a total impairment of 35 points (T38, p147). This rating was considerably higher than those provided by Dr Ying or Dr Harden. When Dr Dunn was asked to substantiate his ratings on 17 July 2000, Dr Dunn declined to do so and in fact requested that his previous report be treated as invalid. The Respondent suggested that Dr Dunn may have felt compelled to provide a favourable report at Mr Aho's insistence.
It is contended by the Respondent that little weight should be placed on the CRS evaluation reports. It is significant, the Respondent submitted, that a full report was unable to be completed, because Mr Aho refused to complete many of the assessment tasks. The Tribunal was asked to consider that Ms Wicks, an Occupational Therapist, was not a medical practitioner and perhaps it was not reasonable for her to provide an opinion as to Mr Aho's employability. Dr Harden, an Occupational Physician, on the other hand, specifically addressed the concerns expressed by CRS regarding employability and he noted that any inability of Mr Aho to return to the workforce was not because of any barrier posed by his medical conditions. Dr Harden did concede that Mr Aho suffers pain as a result of a small disc bulge in his spine and in recognition of this increased pain, also increased the impairment rating from 10 points, as assessed by Dr Ying, to 15 points under Table 20.
In all the circumstances, Ms Schuster submitted that all of the available medical evidence supports the conclusion that Mr Aho did not have a minimum impairment of 20 points as required by section 94 of the Act for qualification for Disability Support Pension. Even though not required to go further in relation to subsection 94(1)(c) of the Act, Ms Schuster submitted that Mr Aho did not have a continuing inability to work. In all of these circumstances, the Respondent submitted that the decision under review should be affirmed.
Findings
The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the submissions, legislation and case law.
Mr Aho's evidence to the Tribunal is that his condition has worsened since the time of his claim and this particularly applies to his Meniere's Disease and cervical spondylosis. There is further evidence that there may be a new condition of Raynaud's Disease causing loss of sensation and strength in his hands, feelings of numbness or cold and also a new condition of numbness and dead feeling in his left leg and toes.
While noting the worsening of conditions and possible onset of new conditions, the Tribunal is only able to make an assessment in relation to this application for review regarding a Disability Support Pension for those conditions which have been claimed and are diagnosed, treated and stabilised. The assessment must take into account the condition at the time of claim and for three months hence, as is required under subsection 100(3) of the Act. The Tribunal will deal with each of Mr Aho's claimed conditions.
Cervical Spondylosis
The Tribunal considers that Table 20 is the most appropriate to assess this condition, as it is able to take into account the neck and associated nature of Mr Aho's chronic pain. Usually, cervical spondylosis would be assessed under Table 5.1. The Tribunal considers on all of the evidence, that the appropriate rating is 15 points and that this rating is appropriate from the time of the claim. While the Respondent considers that 10 points is a more appropriate rating, the Tribunal's reading of the contemporaneous medical evidence and also that of Mr Aho, is that a rating of 15 under Table 20 is more appropriate to reflect moderate to severe symptoms, which, however, prevent few everyday activities.
Meniere's Disease
Meniere's Disease is an intermittent condition which has been present since 1988, after which it settled somewhat but has gradually worsened. In his claim, Mr Aho noted that he had ear pain on the left side and also tinnitus and occasional imbalance (T26, p108). Dr Ying reported occasional heavy headedness and loss of balance, with symptoms lasting approximately one and a half hours, twice per month. Mr Aho's current symptoms occur much more frequently, every two to three days and the Tribunal accepts that he has had a number of falls or difficulties either in the supermarket or at home. The Tribunal can, however, as expressed ealier, only consider the impairment as at the time of the claim or three months after that.
Turning to Table 21.1 for Intermittent Conditions, the Tribunal considers that the intermittent attack severity is two, to reflect severe symptoms which may cause loss of efficiency in some activities. From Table 21.2, Intermittent-attack duration, on all of the evidence, the Tribunal considers that the attack duration is "medium", which reflects an attack lasting 30 minutes to four hours. From Table 21.3, the Tribunal considers that the Severity grading is code "C" and combining all of this information into Table 21.4, the assessment of the rating of a severity of two, with a medium duration and a severity grading of C, produces a nil impairment. Though not within the Tribunal's purview, the likely impairment rating for Meniere's Disease, if taken currently with Mr Aho's increased symptomatology, would be increased.
Hiatus Hernia
In relation to this condition, there is no functional loss, though the Tribunal does note and accept Mr Aho's restriction of diet and use of medication. However, from Table 11.1, the Tribunal considers that at the time of the claim in 1999, the appropriate rating is nil from Table 11.1.
Colonic Polyps
The Tribunal considers that at the time of the claim, the appropriate rating for this condition from Table 11.2 is nil, to reflect that the condition is controlled by medication and salt baths.
The most recent evidence indicates that there may be further polyps, but this is some considerable time after the claim and Mr Aho would be well advised, if he has not done so already, to have the condition investigated and treated. Further medical evidence could then be provided in relation to any subsequent claim Mr Aho might make in relation to this and his other medical conditions.
Therefore, the Tribunal finds that on all of the medical evidence and other evidence, that the following ratings are appropriate:
Condition     Table Impairment Rating
Cervical Spondylosis         20       15 points
Meniere's Disease   21       Nil
Hiatus Hernia          11.1    Nil
Colonic Polyps        11.2    nil
Accordingly, for all the reasons expressed above and in all the circumstances, the Tribunal concludes that Mr Aho has an impairment rating of 15 points, which is not sufficient to meet the requirement contained in subsection 94(1)(b) of the Act. Accordingly, Mr Aho is not qualified to receive a Disability Support Pension arising out of his claim dated 2 August 1999 (T3).
The Tribunal wishes to conclude this decision by noting that Mr Aho may possibly have further conditions such as Raynaud's Disease and also another, as yet undiagnosed condition relating to his numbness in his left leg, as reported at the hearing. Mr Aho also described skin eruptions on his face, itchiness and skin rashes under his left armpit. Mr Aho did not list these skin problems in his claim for Disability Support Pension. There are, therefore, a number of conditions which have not been claimed nor, on the evidence available to the Tribunal, have final diagnoses or treatment regimes been established. A further consideration, which may be difficult for Mr Aho to understand, is that the Tribunal has no power, some 18 months after his claim, to rate the worsening of pre-existing conditions which were claimed. The medical evidence provided in 2000 and in 2001, indicates a possible worsening of his claimed conditions, but this new information will need to be formally expressed in a claim. Should Mr Aho make a further claim for Disability Support Pension which included his new conditions, these would need to be properly diagnosed and the severity of these conditions noted. If such a claim was made, the Tribunal considers that the assessments made most recently by Mr Aho's treating doctors would need to be carefully considered by the Department. Reports of the CRS should also be considered, as this organisation's expertise in matters such as rehabilitation and suitability for work assessments has long been recognised by the Department, which also refers clients to the CRS for expert assessment.
Accordingly, for all the reasons set out above and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member
Signed:         ...........[sgnd]...................................................................
  Stella Vaughan, Associate
Date of Hearing  15 March 2001
Date of Decision  14 June 2001
Representative for the Applicant              Mr Aho, Self Represented
Representative for the Respondent        Ms H Schuster, Departmental Advocate

[2001] AATA 532

14 June 2001

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Disability Support Pension

Impairment Rating

Medical Evidence

Functional Capacity