Borel; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and

[2008] AATA 1042

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1042

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/6332

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And CHRISTINE BOREL

Respondent

DECISION

Tribunal Dr I Alexander, Member

Date20 November 2008

PlaceSydney

Decision The decision under review is set aside and in substitution the Tribunal decides that Ms Borel’s impairment rating at the relevant time was 10 points, and therefore she did not meet the requirements of s 94(1)(b) of the Social Security Act 1991 so that she did not qualify for disability support pension.

....................[sgd]..........................

Dr I Alexander
  Member

CATCHWORDS

Social Security – disability support pension – whether various conditions fulfil requirements for an impairment rating to be assigned – whether loss of functional capacity – decision under review set aside

Social Security Act 1991 – s 94, Schedule 1B

Social Security (Administration) Act 1999 - ss 41, 42, Sch 2 cl 3

REASONS FOR DECISION

20 November 2008 Dr I Alexander, Member

INTRODUCTION

1.      Ms Borel lodged a claim for a disability support pension (“DSP”) on 8 May 2007.

2. The claim was rejected by Centrelink because Ms Borel’s impairment rating was assessed as less than 20 points according to the Impairment Tables contained in Schedule 1B of the Social Security Act 1991 (“the Act”).

3. A decision of the Social Security Appeals Tribunal (“SSAT”) dated 20 November 2007 set aside Centrelink’s decision and found that Ms Borel met the requirements of s 94 of the Act and was entitled to DSP.

4.      The Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the Secretary”) seeks review of this decision in the current proceedings on the basis that Ms Borel’s impairment rating according to the Impairment Tables did not reach the required threshold of 20 points and she did not have a continuing inability to work.

5.      Ms Borel gave oral evidence at the hearing on 2 October 2008 but was not represented.

6. After having considered all the available evidence and for the reasons set out below I find that Ms Borel did not meet the requirement of s 94(1)(b) of the Act and therefore did not qualify for DSP.

ISSUES

7. Section 94 of the Act sets out the requirements for DSP and in order to qualify Ms Borel needed to meet the following criteria:

·She must have had a physical, intellectual or psychiatric impairment (s 94(1)(a)) and;

·Her impairment rating was required to be 20 points or more under the Impairment Tables (s 94(1)(b)) and;

·She must have had a continuing inability to work (s 94(1)(c).

8.      The Social Security (Administration) Act1999 provides that the impairment ratings must be determined as at the date of the claim or within 13 weeks of lodging the claim (ss 41, 42, Sch 2 cl 3).

9.      Therefore the relevant period for the assessment of Ms Borel’s qualification for DSP was 8 May 2007 to 6 August 2007.

Documentary Evidence

10.     At the time of Ms Borel’s claim on 8 May 2007 the Treating Doctor’s Report (“TDR”) provided by Dr Artinian listed chronic asthma and sleep apnoea as medical conditions which had a significant impact on Ms Borel’s ability to function, but provided minimal information and no assessment as to the degree of functional impairment.

11.     The report also listed “tendinitis [of the] R wrist” and “migraine” as conditions that are generally well managed and had minimal or limited impact on Ms Borel’s ability to function.

12.     Ms Borel had added “glaucoma” to her list of claimed disabilities in her application for DSP. This was confirmed in a subsequent TDR dated 26 June 2007 where glaucoma was added to the list of medical conditions that are generally well managed and had minimal or limited impact on Ms Borel’s ability to function.

13.     On 22 May 2007 in a Job Capacity Assessment Report a Rehabilitation Counsellor assigned 10 points under Table 3 for Ms Borel’s right wrist condition and nil points for all her other conditions.

14.     With regard to her asthma, Ms Borel had informed the Rehabilitation Counsellor that with medication this condition did not impact on her ability to function on a day to day basis. She also reported that with the use of her “sleeping machine” she is able to get a restful night’s sleep.

15.     I note that at the hearing the representative of the Secretary indicated that the impairment rating of 10 points for the right wrist condition was conceded and not contested.

16.     In a letter dated 10 September 2007, Dr Singh, Consultant Physician, noted that Ms Borel had noticed intermittent oedema of her legs for the previous eight months and on physical examination he found that she was overweight and had some oedema in both legs but no other significant abnormality.

17.     He concluded that Ms Borel had stasis oedema and recommended weight reduction, foot elevation and elastic stockings.

18.     In a medical certificate dated 15 October 2007, Dr Braude, Specialist Respiratory Physician, stated that Ms Borel suffered from sleep apnoea for which she requires a specialised breathing machine at night and asthma for which she takes regular inhalers.

19.     A radiology report dated 31 October 2007 in respect of the spine noted that Ms Borel had moderately severe scoliosis of the lumbar spine and kyphoscoliois of the thoracic spine and some degenerative changes in the mid and lower thoracic spine.

20.     A radiology report dated 14 December 2007 in respect of the left knee noted “minor degenerative spur formation at the lateral aspect of the patellofemoral joint compartment” and a “small effusion in the suprapatellar bursa”.

21.     In a report dated 28 February 2008 Dr Braude stated that when he first saw Ms Borel on 22 July 2005 for the assessment of asthma he noted that she had symptoms suggesting sleep disordered breathing. He also noted that she had a “very severe degree of central obesity with a BMI at that time of 46.6kgs/m²”.

22.     A formal diagnostic sleep study on 27 September 2005 confirmed that Ms Borel suffered from obstructive sleep apnoea of at least moderate severity and treatment with a continuous positive airway pressure (“CPAP”) device was recommended.

23.     Dr Braude indicated that the condition was permanent, but as long as Ms Borel continued to use the CPAP device on a regular basis her condition would be adequately controlled.

24.     Dr Braude indicated that when he saw Ms Borel in October 2007 she had gained further weight with a BMI of 53 kgs/m² and commented that this represented a “very dangerous degree of central obesity”.

25.     Dr Braude also noted that Ms Borel had told him that although she had been using the CPAP device regularly in the previous few months prior to that time she had not been compliant. Ms Borel also told him that her daytime sleepiness had markedly improved since she started to use the CPAP device on a regular basis.

26.     Dr Braude went on to say that although Ms Borel’s daytime sleepiness was due to her sleep apnoea there was “no question that improving her level of fitness and particularly very marked weight loss would be helpful in the management of [her] condition”. He added that CPAP will control sleep apnoea but not cure it and that “the only treatment that [will] dramatically improve underlying sleep apnoea is very considerable weight loss.”

27.     Dr Braude commented that “most patients who use CPAP on a regular basis are not significantly sleepy during the day and are able to hold down full employment.” He conceded, however, that “there is a cohort of patients who, despite excellent control of their sleep apnoea, do have a persisting degree of sleepiness,” but he was uncertain whether Ms Borel fitted into this group.

28.     I note that Legal Aid had arranged for an assessment in April 2008 by Dr Burns, Occupational Physician, but that Ms Borel has declined to provide that report.

29.     I can only infer that the report was not favourable to her claim.

Ms Borel’s evidence

30.     At the relevant time, as noted above, Ms Borel claimed that she suffered from several medical conditions including asthma, sleep disorder (sleep apnoea), migraine, glaucoma and “RSI of [the] right wrist”.

31.     In her oral evidence Ms Borel claimed that she now also suffers from lower back pain because of curvature of the spine, pain in her left knee and depression.

32.     She also indicated that in 2007 she suffered from intermittent swelling of the lower legs which has now resolved.

33.     I note, however, that these recent conditions were not diagnosed at the relevant time.

34.     Ms Borel acknowledged that she has a weight problem which she manages herself by watching what she eats and walking everyday, but said that she had not consulted a dietician.

35.     Ms Borel indicated that two years ago she had been referred by Dr Braude to a surgeon to discuss the possibility of a gastric banding operation. At first she said that she had decided not to go ahead because of the risks involved, but later commented that the operation was only available as a private patient and that she could not afford to pay for it.

36.     In respect of her right wrist condition Ms Borel claimed that she suffers constant pain and requires assistance with household chores from her friend, Mr McKnight, who lives in the same house.

37.     In respect of her asthma she said that she controls her symptoms with Bricanyl and Seretide inhalers and did not describe any significant functional impairment.

38.     In respect of the sleep apnoea Ms Borel explained that she uses the CPAP device every night and that this has helped her energy level but she gets tired by about 3pm in the afternoon and needs to have a sleep.

39.     Ms Borel described intermittent attacks of migraine that may require treatment with narcotic medication and hereditary glaucoma which she treats with regular eye drops. She did not describe any significant functional impairment as a result of either of these conditions.

Consideration

40. Schedule 1B of the Act provides various Tables to be used for the assignment of an impairment rating when assessing eligibility for DSP.

41. The Introduction to Schedule 1B states that a rating can only be assigned to conditions that have been fully documented and diagnosed as well as being investigated, treated and stabilised. In addition, the conditions must be considered permanent which means lasting for more than two years. A condition is considered stabilised if it is unlikely to show “significant functional improvement, with or without treatment, within 2 years.”

42.     In Ms Borel’s case the conditions that fulfil these requirements, at the relevant time of 8 May 2007 to 6 August 2007 include the right wrist condition, asthma, migraine and glaucoma.

43.     As noted above an impairment rating of 10 points under Table 3 for the right wrist condition is not disputed.

44.     In respect of the asthma, migraine and glaucoma there is no evidence before me that there is sufficient loss of functional capacity as a result of any of these conditions to warrant the assignment of an impairment rating under the relevant Tables.

45.     With respect to the sleep apnoea the evidence from Dr Braude’s report would, in my view, support a conclusion that at the relevant time this medical condition was not stabilised and that significant functional improvement could have been expected with more regular use of the CPAP device, improvement of her level of fitness and weight loss.

46.     Therefore at that time an impairment rating could not be assigned for this medical condition.

47.     It is also clear from Dr Braude’s report that at the relevant time Ms Borel had been diagnosed as suffering from “morbid obesity” which is defined in Table 20 as a BMI of greater than 40.

48.     Although the evidence suggests that Ms Borel suffered and continues to suffer significant functional impairment as a result of this medical condition it appears that she has made no consistent effort to address her weight in that she has not consulted a dietician or sought assistance with an exercise program.

49.     Therefore, in terms of the current proceedings I find that the evidence does not support a conclusion that at the relevant time the condition had been treated or stabilised so that no further significant functional improvement could have been expected in the subsequent two years.

50.     Therefore an impairment rating could not be assigned for this medical condition at the relevant time.

51.     However, I note that the evidence does not include any assessment of Ms Borel’s “morbid obesity” by an appropriately qualified medical expert with regard to either treatment or prognosis.

52. It follows from the above that Ms Borel’s impairment rating at the relevant time was 10 points, and therefore she did not meet requirements of s 94(1)(b) of the Act so that she did not qualify for DSP.

53.     It was not necessary to consider whether Ms Borel had a continuing inability to work.

DECISION

54. For the reasons given above, the decision under review is set aside and in substitution the Tribunal decides that Ms Borel’s impairment rating at the relevant time was 10 points, and therefore she did not meet the requirements of s 94(1)(b) of the Act so that she did not qualify for DSP.

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

Signed:         ..............[sgd]..................................................................
  Associate

Date of Hearing  2 October 2008
Date of Decision  20 November 2008

Solicitor for the Applicant          Ms J Maclean, Legal Services and Procurement Branch, Centrelink

Advocate for the Respondent   Self-represented