Bennett and Department of Family and Community Services
[2001] AATA 535
•15 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 535
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1476
GENERAL ADMINISTRATIVE DIVISION )
Re Rosalie Bennett
Applicant
And Secretary, Department of Family & Community Services
Respondent
DECISION
Tribunal Dr J Campbell
Date15 June 2001
PlaceSydney
Decision The decision under review is affirmed
[Sgd] Dr J CAMPBELL
MEMBER
CATCHWORDS
Social Security - Disability Support Pension - Assessment of physical impairments - continuing inability to work
Social Security Act 1991, Sections 94, 100(3), Schedule 1B
REASONS FOR DECISION
Dr J Campbell, Member
In this Application Ms Rosalie Bennett ('the Applicant') seeks a review of the decision of the Social Security Appeals Tribunal ('SSAT') dated 31 July 2000 which affirmed the decision of a Centrelink delegate of the Secretary, Department of Family and Community Services ('the Respondent') dated 30 November 1999 to reject the Applicant's claim for Disability Support Pension ('DSP'). This latter decision had been affirmed by an authorised review officer in a decision dated 7 March 2000.
A hearing was held before the Tribunal at Bathurst on 16 May 2001 at which the self represented Applicant presented oral evidence. The Respondent was represented by Ms Schuster, an advocate from the Advocacy and Administrative Law Team at Centrelink.
The following material was placed into evidence before the Tribunal:
Exhibit No. Description Date
T1-29 P1-159 Documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975
A1 Medical Report Dr McCreery 29 December 2000
R1 Respondent's Statement of Facts and Contentions 27 February 2001
R2 Medical Report of Dr Keen 23 January 2001
ISSUES:
The relevant issues in this matter are:
(a) Whether, for the purposes of subsection 94(1) of the Social Security Act 1991, the Applicant has a physical, intellectual or psychiatric impairment and whether that impairment is 20 points or more under the impairment tables in schedule 1B: and
(b) If so, whether the impairment is of itself sufficient to prevent the Applicant:
From doing any work within the next two years; and
From undertaking educational or vocational training or on-the-job training during the next two years; or
Whether such training is unlikely (because of the impairment) to enable the Applicant to do any work within the next two years.
LEGISLATION:
The relevant legislation in this matter is the Social Security Act 1991 ('the Act') and in particular subsections 94(1), (2), (3), (4), (5), 100(3) and the Tables for the Assessment of Work Related Impairment for Disability Support Pension ('Schedule 1B Impairment Tables').
BACKGROUND AND FILE EVIDENCE:On 17 September 1999 the Applicant lodged an application for DSP (T3). Prior to the lodgement of the Application, the Applicant had completed a work ability – customer information form on 28 July 1999. In this form (T11) the Applicant described her list of disabilities as hypertension, diabetes, recurrent uveitis and polyarthralgia. The Applicant believed that the disabilities would prevent her from lifting, carrying, bending and operating everyday appliances all the time, and would prevent her from standing, walking or using public transport, reading, writing and speaking, sleeping and caring for others. A professional report was completed by Ms Scott of Central West Recruitment on 28 July 1999, in which she listed the Applicant's conditions as neck and shoulder pain, diabetes and blood pressure. Ms Scott considered that the Applicant would be absent from work on four or more days per month; would be unable to work a full day because of endurance problems; had substantially diminished dexterity; would not be able to alternate between tasks; would be unable to lift, carry or move objects; instructions would occasionally need to be repeated and that mobility would be constrained in some situations. (T12)
On 6 August 1999 a literacy/numeracy Initial Assessment Report by Mr Nelson found that the Applicant had the following levels of skill:
Macro Skills NRS Level
Learning Skills One
Oral Communication Skills Three
Reading Skills Two
Writing Skill One
Maths Skills Two
Mr Nelson considered the Applicant's overall NRS to be a level one, and in commenting that vocational courses need a level three, it was considered that the Applicant would need some intensive literacy and numeracy provision to allow her access to these types of courses and to be successful. (T13)
On 17 September 1999 a Treating Doctor Report completed by Dr McCreery was lodged with the Respondent. Dr McCreery considered that the Applicant had the following conditions with associated clinical features as described:
(a)Hypertension: since 1981; on continuing medication; long term and stable.
(b)Diabetes Mellitus: since 1997; fatigue, thirst; long term and stable.
(c)Anterior Uveitis: since 1995; painful red eyes and photophobia; long term and fluctuating.
(d)Polyarthralgia: since 1997; neck, shoulder and arm pain; long term and fluctuating.
Dr McCreery considered the Applicant unfit for any form of work for more than two years and that her work ability would be affected in the following ways:
Absent from work one day or less per month;
Only able to persist at tasks for 20 to 90 minutes;
May have some discomfort manipulating objects;
Would be able to alternate between tasks; and
Would be able to lift, carry or move objects with greatly reduced speed, coordination and/or difficulty. (T15)
On 2 November 1999, Dr Drew-Smith, a general practitioner, examined the Applicant and in turn nominated the Applicant's conditions and their associated clinical features as follows:
(a)Hypertension: controlled with medication; no functional impairment.
(b)Diabetes Type II: reasonable control with oral medication; no real functional impairment.
(c)Anterior Uveitis: occurs twice a year and last two weeks; needs new glasses but no evidence of Uveitis at examination.
(d)Non specific neck
and shoulder aches: No formal investigation; some bilateral hand numbness worse at night; aches when sweeping, cooking, washing up, folding clothes; no physical signs of neck, should problems; numbness in hands has not been investigated.
Dr Drew-Smith considered the Applicant needs investigation for suspected carpal tunnel syndrome. He also considered the Applicant fit for work as she has no significant medical impairments, but she would require training or vocational rehabilitation to do so. Dr Drew-Smith concluded that the Applicant's work ability was affected in that she would only be able to persist at a task for 20 to 90 minutes at a time and that she would have some reduction in dexterity. (T16)
In a summary opinion Dr Drew-Smith made the following comments:
This 49-year-old woman simply has a list of treatable conditions. None of these will or do impact on her functionally except undiagnosed bilateral carpal tunnel syndrome.
Once this is repaired she is fit for most duties keeping her age in mind. She would always be better advised to avoid heavily repetitive production line work.
I recommend Newstart not DSP. (T16, P127)
On 22 November 1999, Dr Mould, a medical practitioner employed by Health Services Australia provided a further medical assessment report in which she detailed the same conditions and associated clinical features and provided an assessment of each impairment against the relevant Schedule 1B Impairment Table as follows:
Hypertension Well controlled on medication no affect on ability to work Nil points Table 20
Diabetes Permanent Condition – well controlled on oral medication Nil points Table 19
Non Specific Neck and Shoulder pain While mild interference with hand function – no significant effect on work ability Nil points Table 3
Acute Uveitis Episodic. Shouldn't effect work ability Nil points Table 14
Dr Mould considered the Applicant fit for work and that there was no requirement for vocational or rehabilitation assistance. Dr Mould also considered the Applicant's work ability in relation to only being able to persist at a task for 20 to 90 minutes at a time and there being some diminished dexterity. (T17)
Dr Mould detailed the following whole person assessment of the Applicant:
Mrs Bennett has a number of conditions, none of which cause her significant disability. She does have symptoms which may be related to carpal tunnel syndrome and a specialist opinion would help with assessment and treatment.
Her vision should also be assessed for possible correction. Her TDR assessment is not supported with evidence or by examination.
She is fit for light semi-skilled work not requiring repetitive movements. (T17, P140)
On 30 November 1999 a delegate of the Secretary, Department of Family and Community Services denied the Applicant's claim for DSP on the grounds that the rating of her permanent medical impairments was less than 20 points and that she did not have a continuing inability to work (T20). This decision was reviewed and affirmed by an authorised review officer on 7 March 2000 (T26). The decision was again reviewed by the SSAT and affirmed in a decision dated 31 July 2000 (T2).
In a further medical report dated 29 December 2000 Dr McCreery stated that the Applicant's diabetes was now unstable and that insulin therapy had been instituted. Dr McCreery assessed the Applicant's impairments as follows:
Diabetes Mellitus Table 19 Nil points
Loss of sensation non dominate upper limb interfering with hand function Table 3 5 points
Demonstrable loss of sensation dominant upper limb interfering with hand function Table 3 10 points
Lower limbs Table 4 Nil points
Hypertension – difficult to control Table 20 10 points
Anterior Uveitis – 10 days/year Table 21 5 points
Carpal Tunnel Syndrome Table 3 Non dominant hand 5 points
Dominant hand 10 points
Polyarthralgia – loss of quarter range of movement Table 5.1 5 points
(Exhibit A1)
Dr McCreery considered that the Applicant's impairments were sufficient to prevent her performing any work for at least two years, despite not preventing her from undertaking educational, vocational or on-the-job training activities. (Exhibit A1)
Following a review of the Applicant's medical file, Dr Keen, a senior medical adviser with Health Services Australia, in a medical report dated 23 January 2001 assessed the Applicant's impairments in the following terms:
Hypertension Table 20 Nil points No evidence to support difficulty of control
Diabetes Mellitus Table 19 Nil points Adequate control should be achieved with insulin therapy
Bilateral Carpal Tunnel Syndrome - No rating assigned as condition has yet to be fully treated and stabilised
- In the absence of surgery the condition to be considered as permanent
Table 3.1 10 points Dominant hand
Table 3.1 5 points Non dominant hand
Anterior Uveitis Table 2 5 points
Cervical degenerative changes Table 5.1 5 points
Diabetic Neuropathy Considers such impairments in the upper limbs to be dealt with in assessment for Bilateral Carpal Tunnel Syndrome(Exhibit R2)
Dr Keen considered that the Applicant is fit for light semi skilled work not requiring repetitive movements. (Exhibit R2)
APPLICANT'S EVIDENCE:The Applicant told the Tribunal that she was born on 16 June 1950 and that she left school, aged 15, having reached first form after repeating on two occasions. After leaving school the Applicant worked as a machinist making shoes for 29 years until she was made redundant in 1995. The Applicant stated that she was on a carer's pension for two years while looking after her mother, and that in 1998 she was granted Newstart, when her mother was admitted to a nursing home. The Applicant indicated that she lives in the family home and has driven a car for 30 years.
In describing her lifestyle to the Tribunal, the Applicant said that she lives alone, does all her own washing, cleaning, cooking, vacuuming, hanging clothes on line and shopping, but does need assistance with shopping bags and is unable to mow lawns. The Applicant stated that she is able to drive, walks extended distances at a fast pace, but does have some difficulty with stairs. She has a good appetite, her weight is constant, she watches a little television and listens occasionally to the radio, and rarely frequents a club or a hotel.
The Applicant described her various medical conditions and associated clinical features in the following terms:
(a) Neck difficulties: Commenced some six to seven years ago, and is slowly getting worse. The ache is in the back of the neck extending to both shoulders and becomes more obvious with prolonged sitting or driving, and when peeling vegetables or with prolonged lifting activity. She notices some limitation of range of neck movement with pain when turning neck to the left. She does suffer some sleep disturbance because of her neck and takes two panadol as required.
(b) Diabetes: Mother and brother both had late onset diabetes. Blood tests in 1997 revealed high blood sugar levels. Treated with oral diabetic medication until October 2000 when changed to insulin. No periods of hospitalisation for diabetes. Has had tingling in toes and feet for three years.
(c) Hypertension: Treated with medication for 20 years. Believes her hypertension to be controlled.
(d) Acute Uveitis: Commenced four to five years ago – gets a painful red eye about twice a year. Treated with drops and resolves over the period of a week.
(e) Painful Wrists and Hands: Commenced five to seven years ago. Painful when sitting, sometimes after tea in bed, and at night. Some pins and needles in both hands at times. Had tests in Orange early last year.
The Applicant in response to direct questions from the Tribunal stated that she has no real aspiration to work and would like to stay home. She has a few friends and does not have to look for work as she receives a medical certificate every three months stating she is unfit for work.
SUBMISSIONS:
The Applicant:The Applicant contended that she has particular impairments and that the appropriate combined assessment rating for these was greater than 20 points. In making such a contention, the Applicant relied upon the opinion of Dr McCreery in Exhibit A1, dated 29 December 2000. Similarly the Applicant relied upon the opinion of Dr McCreery in contending that she has a continuing inability to work.
The Respondent:The Respondent contended that the appropriate impairment rating for the Applicant's various medical conditions was 10 points, being five points under Table 5.1 for a degenerative neck condition and five points under table 21 for the acute uveitis. In relation to the hypertension and the diabetes mellitus the Respondent contended that, as each is controlled with medication, a nil points impairment rating under Tables 20 and 19 respectively is suitable. As regards the bilateral carpal tunnel syndrome, the Respondent contended that a rating should not be assigned as the condition has not been fully stabilised and treated.
The Respondent, in relying upon the opinions of Dr's Smith and Mould, contended that the Applicant does not have a continuing inability to work.
CONSIDERATION AND FINDINGS:In this matter, the Tribunal does comment that it was impressed with the sincerity and matter of fact, non self serving attitude of the Applicant. Further it was evident to the Tribunal that the Applicant had some difficulty in working through and responding to some of the issues raised and this coupled with the evidence available within the Tribunal documents of a literacy/numeracy initial assessment report dated 6 August 1999, is suggestive that the Applicant may have either a mild intellectual impairment and/or a learning difficulty. The Tribunal would comment that as this issue has been raised in the file, it is appropriate that this matter be further addressed, if the Applicant is to be properly assessed in terms of impairments in the future.
STATUTORY FRAMEWORK:The Statutory Framework under which this matter is to be considered is as follows:
"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;
94.(2) A person has a continuing inability to work because of an impairment if the 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.
94.(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of educational or vocational training or on-the-job training; or
(b)if subsection (4) does not apply to the person-the availability to the person of work in the person's locally accessible labour market.
94.(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.
94.(5) In this section:
"educational or vocational training" does not include a program designed specifically for people with 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.
…
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."
In further considering this matter, the Tribunal acknowledges the purpose and intent contained with subsection 100(3) of the Act, and recognises that there is a period of three months commencing on the day after her lodgement of an application for DSP, during which an Applicant's impairments can and must be considered. Clinical material pertaining to the Applicant's impairments prior to and at the time of application can be further enhanced during this three month window of opportunity for the Applicant ("the operative period"). Material created after the operative period can be used in the Tribunal's review only in such circumstances as it assists the Tribunal in gaining a better understanding the Applicant's impairments during the operative period.
In turning to the evidence which has been addressed, the Tribunal, in noting that the date of lodgement of the application in this matter was 17 September 1999 turns to a consideration of the evidence relevant to that application. Following a consideration of the reports of Mr Nelson, Dr McCreery, Dr Drew-Smith and Dr Mould, the Tribunal makes the following findings of fact in relation to the Applicant's various impairments and their particular clinical features:
(a)Hypertension: since 1981; on continuing medication; long term and stable (all doctors.)
(b)Diabetes Mellitus: since 1987; fatigue and thirst; oral medication; long term and stable (all doctors).
(c)Anterior Uveitis: painful red eyes twice a year for 10 days a year since 1995; some associated photophobia; long term and fluctuating (all doctors).
(d)Neck and shoulder pain: since 1997; long term and fluctuating.
(e)Bilateral hand pain and numbness: some bilateral hand numbness and pain worse at night; requires investigation and treatment (Dr Drew-Smith).
(f)Intellectual Disability: issue of learning difficulty/intellectual impairment raised by Applicant's evidence and the report of Mr Nelson in relation to the Applicant's numeracy and literacy skills evaluation of 6 August 1999.
The Tribunal does recognise that latter reports by Dr McCreery indicate a more definitive diagnosis of carpal tunnel syndrome following nerve condition studies; that the Applicant's diabetes requires control with insulin, and that the hypertension has required a change of therapy for effective control. Nevertheless, as with the medical file evaluation report undertaken by Dr Keen, these later reports are in general terms, constructed some 12 months after the end of the operative period, and as such are more appropriate to a further application.
The Tribunal in considering the evidence of the Applicant and the relevant opinions of Dr's McCreery, Drew-Smith and Mould concludes that the Applicant's nominated impairments have the following ratings pursuant to the Schedule 1B Impairment Tables:
Hypertension Nil points Controlled hypertension Table 20
Diabetes Mellitus Nil points Controlled Table 19
Cervical pain & shoulder pain 5 points Loss of quarter range of movement Table 5.1
Bilaterial wrist pain and hand pain and numbness No rating given as diagnosis then yet to be established and treatment to be instituted. (Para 5 of Introductory Notes to Tables)
Anterior Uveitis 5 points Two attacks per year, such severity of 3 and a severity grading of F) Table 21.4
Intellectual Disability No rating given as no comprehensive assessment undertaken.
As a consequence of the Tribunal's findings that the combined rating for the Applicant's impairments is 10 points, it is further concluded that the Applicant does not satisfy subsection 94(1)(b), and despite satisfying subsection 94(1)(a) of the Act, does not qualify for a disability support pension in relation to this particular application.
In terms of finalising this application, the Tribunal also notes the evidence of the Applicant, the literacy/numeracy evaluation of Mr Nelson and the opinion of the medical practitioner in relation to the Applicant's ability to work. Having considered these reports and the nature and rating of the Applicant's impairments at that time, the Tribunal is of the view that the Applicant did not have a continuing inability to work at the time of application. In reaching such a conclusion the Tribunal has paid particular attention to the Applicant's description of her impairments and the limitations they cause to her everyday function. Further the Tribunal, while noting the opinion of Dr McCreery, considered that the assessment sby Dr Drew-Smith and Dr Mould are preferable in that their assessment as to work ability was more in keeping with the nature and severity of the impairments. The Tribunal does comment however that if the Applicant is to return to work, there exists a requirement for a thorough psychological assessment as to intellectual ability and the presence of any learning difficulty and secondly vocational, training or on-the-job training programs which will assist the Applicant in any such return to work activity.
As a consequence of the these further considerations, the Tribunal concludes that the Applicant does not satisfy subsection 94(2)(a), (2)(b)(i) and (2)(b)(ii), as the Applicant's impairments do not prevent the Applicant working or undertaking educational, vocational or on-the-job training programs during the next two years. Further the impairments, while not preventing the courses of training from being undertaken, are not unlikely to prevent the Applicant from working within the next two years.
In conclusion, the Tribunal finds that the Applicant, at the relevant period, did not satisfy subsection 94(1)(b) and 94(1)(c)(i), as defined by subsection 94(2) of the Act and thus does not qualify for a disability support pension at the time of this application. In further comment arising both from the Applicant's evidence and the later reports of Dr McCreery and Dr Keen, the Tribunal observes that particular attention should be paid to completing the assessment as indicated in this decision, before coming to a determination on a further application for disability support pension, as such an assessment will go both to impairment rating and ability to work.
DETERMINATION:The Tribunal determines that the decision under review be affirmed.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J Campbell
Signed: .....................................................................................
AssociateDate/s of Hearing 16 May 2001
Date of Decision 15 June 2001Solicitor for the Applicant Self Represented
Solicitor for the Respondent Hannah Schuster
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