Booth and Secretary, Department of Family and Community Services

[2002] AATA 533

DECISION AND REASONS FOR DECISION [2002] AATA 533

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          NoQ2001/808

GENERAL ADMINISTRATIVE  DIVISION       )        
           Re      DIONNE BOOTH   
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Ms J Cowdroy         

Date2 July 2002 

PlaceBrisbane (heard in Gympie)

Decision      The Tribunal affirms the decision under review.        
  ..................(Sgd)....................
  Ms J Cowdroy
  Member
CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant is qualified to receive disability support pension – whether conditions are permanent - whether conditions have been treated and have stabilised – time at which applicant must be qualified for disability support pension

Social Security Act 1991

REASONS FOR DECISION

2 July 2002Ms J Cowdroy, Member

1. The matter was heard in Gympie on 29 April 2002.  The applicant appeared and gave evidence.    Ms J Dwyer appeared for the respondent.  The T-documents pursuant to the Administrative Appeals Tribunal Act 1975 were admitted into evidence as T1.  The matter was decided on the basis of the material in the T documents, the oral evidence of the applicant and the submissions of both parties. 

Background to the Application:

1. On 14 March 2000 the applicant lodged an application with Centrelink for disability support pension.  By decision dated 18 May 2000 her application was rejected.  That decision was reconsidered by an authorised review officer on 25 July 2000 who affirmed the decision.   Ms Booth sought review of that decision by the Social Security Appeals Tribunal and that Tribunal affirmed the decision on 9 August 2001.   She subsequently applied for review of that decision to the Administrative Appeals Tribunal.

1. At issue is whether the applicant is qualified for disability support pension.

The evidence of the parties:   

1. Ms Booth told the Tribunal that she has suffered from pain and fatigue for the past nine years and cannot work.  She does not consider that her condition will improve and that if she were required to undertake any form of employment, her pain and fatigue would increase.  She contended that she had been under-assessed in relation to fibromyalgia and chronic fatigue and that her symptoms met the criteria for the allocation of 20 points under Table 20 of the Impairment Tables.

1. Ms Booth told the Tribunal she cannot sit for "too long", she cannot sleep in the same bed with her partner, that pain in her neck affects the rest of the body, and that she suffers from soreness in her arms.  She needs considerable assistance in running the household, and that she obtains such assistance from her partner and family members.  She is independent in her self-care.

1. Ms Booth described her daily activities.  She feels better in the mornings, and as the day progresses, she often has to have a rest.  She undertakes any cleaning activities that are required or attends medical appointments in the mornings.    She watches television and does not have any hobbies.  Her partner of three years is employed.   The couple have a "normal suburban garden".

1. In relation to depression, Ms Booth took issue with Centrelink's contention that this condition is not permanent.  She considered it is a permanent condition, in that it will persist as long as the physical symptoms of fibromyalgia and chronic fatigue remain.   She is currently not receiving treatment for depression, having tried Tryptanol and having found it produced undesirable side effects.  She did not see any benefit would be derived from another form of anti-depressant medication.  She stated that she considered her depression had improved over the last five years.

1. Ms Booth stated that Centrelink had focused on her depression as a reason for refusing her claim, on the basis that it was not a permanent condition.  She also took issue with the suggestion that she was capable of undertaking "reception" work, stating that she suffers from pain in her lower back and neck.  She has purchased special chairs for her home and had sold her car in order to purchase another vehicle with power steering.

1. The witness referred to Tables 5.1 and 5.2, which relate to the cervical spine and thoraco-lumbar spine respectively, and suggested that a rating of 10 from each of those tables was appropriate.

1. Ms Booth described constant pain in her neck, knees and right hip.  She obtains pain relief by using Panadol, heat packs, Dencorub and hot showers. She related that Dr Black, her treating medical officer, had advised her that "nothing can be done".  She has tried acupuncture, naturopathy and has come to the point where she believes she "just has to manage it".  She does not undertake any activities that she believes would aggravate her condition. 

1. In cross-examination, Ms Booth stated that she had undergone a rehabilitation programme through WorkCover "years ago" in relation to injuries to her cervical and lumbar spine in 1993. She acknowledged that Dr Barrett, rheumatologist had suggested that she undertake a rehabilitation programme (T19-106) but this had not occurred. 

1. The applicant had consulted Dr Kann at the Gympie Mental Health Service and he advised her that she was not clinically depressed, but that her depression was caused by her physical condition.  

1. The applicant's attention was directed to the report of Dr Joan Lawrence, psychiatrist dated 18 February 1998 which stated that the applicant had rejected the suggestion that she undertake a multimodal approach of pain management.   Ms Booth responded that whilst she does not reject the concept of pain management, she does not believe it will be effective for her.   

1. Ms Booth was also directed to the report of Dr P Mulholland, also a psychiatrist whose report appears at T22 and is dated 31 August 1999.   In that report, Dr Mulholland had recommended ongoing counselling.  Ms Booth's response was that she had had some counselling and apart from the fact she could not afford it, she did not believe it would produce a benefit to her.

1. In response to a question about the members of the household, Ms Booth acknowledged that she has a child aged five weeks, in respect of which she is the primary care provider.   

1. In submissions, Ms Dwyer stated that the appropriate table to be utilised in assessing the applicant's disabilities was Table 20.  The only report that discusses range of movement is that of Dr Barrett dated 30 August 1999 and she found that the applicant had "a full range of pain free movement today" (T19-106).  Accordingly, the respondent contended there was no medical evidence to support the submission that a rating was appropriate from Table 5.

1. Comments in a recent report from Dr C Black dated 12 February 2002 do not contend that the appropriate rating for the applicant's fibromyalgia and chronic fatigue should be other than 15 points.  While Dr Black considers that the applicant's depression is a permanent condition and warrants the allocation of 10 points, it was pointed out that there has not been any long term treatment for this condition, other than a trial of medication and a few sessions of counselling.  

1. In any event, Dr Black's report is of recent origin.  In an earlier report dated 15 March 2000, Dr Black was of the view that depression was a temporary condition (T25, p 173-178).  Additionally, it was pointed out that Dr Black is a general practitioner and generally it is desirable to prefer the opinion of a psychiatrist, given that that person has specific psychiatric expertise.  General psychiatric opinion is to the effect that the applicant's depression would improve if she availed herself of treatment options, which Ms Booth has declined.    

1. In respect to whether the applicant has a continuing inability to work, the Tribunal's attention was directed to the two assessments carried out by practitioners from Health Services Australia.    The first is that of Dr G Rolls dated 2 May 2000, who considered the applicant unfit to work but with improvement should be able to do light work in about twelve months (T26-192). The second opinion is from Dr A Bonert dated 12 September 2000, who opined that the applicant was temporarily unfit to work. The respondent contends that the applicant did not have a continuing inability to work at the time of the claim and for the relevant time thereafter.

1. In response to the respondent's contentions, the applicant stated that the fact that she had a full range of movement when Dr Barrett examined her was not surprising.  She said that it is not the case that she cannot perform bending and stretching movements, rather it is the fact that such movements produce soreness and pain.  

The Legislation and its Application:

1. Section 94(1) of the Social Security Act 1991 sets out the qualifications for disability support pension.   It states:

"94(1) [Qualification – continuing inability to work]  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.

94(2)  [Meaning of "continuing inability to work"]  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.

94(3)  [Secretary not to have regard to certain matters]  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)  [Secretary's consideration when person 55]  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)  [Interpretation]  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."

1. The Tribunal finds that Ms Booth suffers from soft tissue rheumatism/fibromyalgia, relying on the report of Dr C Barrett, rheumatologist, dated 30 August 1999. This condition falls within the definition of "physical, intellectual or psychiatric impairment" (s 94(1)(a)). The issue then becomes whether that condition is fully documented and has been investigated, treated and stabilised.  If that is the case, then it is regarded as a permanent condition and it can be allocated a rating under the Impairment Tables, which are set out in Schedule 1B of the Act.

2. The evidence points to this condition has having been present for several years.  Although it was initially described as chronic pain syndrome in back, wrists, neck and right knee, which were thought to be the result of a work related injury in 1994, specialist opinion is that the pain is attributable to soft tissue rheumatism/fibromyalgia. The applicant has undergone various forms of treatment and the Tribunal is satisfied that the condition has stabilised.  Indeed, the evidence points to there having been no discernible change in the applicant's condition for many years. 

3. Section 100(3)(c) of the Social Security Act states in effect that a person must be qualified for disability support pension at the time of the claim or within three months of the lodgement of that claim.   Ms Booth's claim was lodged on 14 March 2000.  At T26, Dr G Rolls has opined that that fibromyalgia/chronic fatigue warrants 15 points pursuant to Table 20.  Whilst the applicant has submitted that a rating under Table 5 is appropriate, there is no demonstrable loss of movement in either the thoraco-lumbar spine or the cervical spine on the evidence before the Tribunal, consequently, it was not persuaded that Table 5 should be utilised.

4. The applicant also contended that her symptoms warrant more than 15 points under Table 20.  However, in order to attract 20 points, there must be evidence of the following:

   "More severe symptoms with a decreased ability/efficiency to carry out many everyday activities.  Most daily activities can be completed with some difficulty.  Symptoms may prevent or lead to avoidance of some daily talks and simple tasks will usually aggravate symptoms of fatigue.  Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work."  

5. Apart from Dr Rolls, the only medical practitioner who has commented on the applicant's symptoms relative to the impairment tables is Dr C Black.  He does not take issue with the allocation of 15 points and he makes the comment that it is difficult to assess the condition, given that assessment relies on subjective symptoms.  There is no medical evidence which suggests that the allocation of 15 points is inappropriate and the Tribunal is reasonably satisfied that this rating should remain.

6. The other issue which has been raised relates to the applicant's depression.   In the decision under review, the SSAT declined to allocate a rating on the basis that it is a temporary condition.  Whilst the applicant states that it has been present for many years, the Board considered it significant, if that is the case, that she has not received any treatment other than a short trial of an anti-depressant medication and some counselling.

7. The Tribunal noted the opinion of Dr P Mulholland, psychiatrist, dated 14 September 1999, who was then of the view that ongoing counselling/ psychotherapy would be beneficial.   The applicant has decided not to pursue these forms of treatment.    Although Dr Black opines that the applicant's mental state/mood has not improved to any great extent in the last three years, and consequently it must be regarded as a permanent condition, his opinion is given on 12 February 2002, which is well outside the time-frame for the applicant to meet the qualifying requirements.   In any event, Dr Black had provided an earlier report dated 15 March 2000, in which he stated that the applicant's depression was temporary.

8. That being the case, medical opinion at the relevant time is to the effect that the applicant's depression cannot be allocated a rating under the Impairment Tables and the Tribunal agrees.

9. As Ms Booth's disabilities attract a total impairment rating of 15 points, she does not satisfy subparagraph 94(1)(b) of the Act, in that she does not have an impairment of 20 points or more under the Impairment Tables.  She is therefore not qualified for disability support pension.  It is therefore unnecessary for the Tribunal to consider whether the applicant has a "continuing inability to work".

Decision:

1. The Tribunal affirms the decision under review. 

   I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member 

   Signed:        Sarah Oliver
     Associate

   Date of Hearing  29 April 2002  
   Date of Decision  2 July 2002
   The Applicant appeared in person
   Solicitor for the Respondent    Mr J Dwyer, Departmental Advocate