Casson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 1161
•23 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1161
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2393
GENERAL ADMINISTRATIVE DIVISION ) Re JULIE CASSON Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr K S Levy RFD, Senior Member Date23 December 2008
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ...............[Sgd]...................
SENIOR MEMBER
CATCHWORDS
SOCIAL SECURITY – benefits and entitlements – qualification for disability support pension – whether applicant’s impairment is of 20 points or more – whether the applicant has a continuing inability to work – decision under review affirmed
Social Security Act 1991 (Cth), ss 94, Sch 1B
Evidence Act 1995 (Cth), ss 55, 103
Re Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902
Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938
Smith v R (2001) 206 CLR 650
R v Quinn [1962] 2 QB 245
Jones v Dunkel (1959) 101 CLR 298
Ho v Powell (2001) 51 NSWLR 572
Re Watts and Secretary, Department of Family and Community Services [2003] AATA 632
Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
Secretary, Department of Family and Community Services v Michael (2001) FCA 1811
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606
REASONS FOR DECISION
23 December 2008 Dr K S Levy RFD, Senior Member INTRODUCTION
1. Ms Julie Casson has made a number of applications for disability support pension. She initially made an application on 7 March 2005 but this was rejected by Centrelink and subsequently by the Social Security Appeals Tribunal (SSAT) on 6 October 2005. A further claim was made on 2 January 2007 which was also rejected by Centrelink. On review, it was subsequently rejected by an authorised review officer (ARO) on 27 July 2007 and by the SSAT on 8 November 2007. The present claim before the Administrative Appeals Tribunal was lodged on 21 December 2007. It was rejected by Centrelink and on review by an ARO. A further appeal to the SSAT was rejected on 8 May 2008.
2. Ms Casson represented herself and was supported by her partner. The Respondent was represented by Mr Matt Amundsen.
ISSUES
3. The issue to be determined by the Tribunal is:
Does Ms Casson have an impairment of 20 points or more under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (Impairment Tables) with respect to her claimed conditions of one or more of:
(i)Osteoarthritis;
(ii)Lumbar spine condition;
(iii)Depression;
(iv)Obesity;
(v)Hypertension; and/or
(vi)Asthma.
EVIDENCE
4. Owing to the long history of this matter, there was substantial medical evidence provided in respect of a number of the above conditions. In a treating doctor’s report signed by the Applicant on 4 January 2005, Dr Betty Lee, stated that Ms Casson had a condition of osteoarthritis of the left ankle which significantly impacted on her ability to function. This related to a previous fracture of the lower leg in August 1995. Ms Casson suffered pain and stiffness of the left ankle and leg and there was swelling and fluid retention of the left calf. Dr Lee described the impact on the patient as being “…unable to stand for lengths of time due to pain. Unable to squat. Pain and stiffness if sitting for lengths of time. Difficulty walking down steps. Ankle “catches” at times – feels as if it will give way – sometimes it does give way. Wears flat shoes with good grip only”. At that time, the condition was expected to exist for more than 24 months (T6, folio16). Dr Lee also identified two other conditions: hypertension and asthma. Both of these conditions were said to be generally well managed and caused minimal or limited impact on ability to function (T6, folio 18). At the time of that report, Ms Casson had been a patient of Dr Lee for 20 years.
5. A further report by Dr Kumarnath (Health Services Australia) made an almost identical diagnosis and assessment (T8, folio 32). Some weeks later (and only three months after the first report of Dr Lee), Ms Casson has prepared a second treating doctor’s report form. This was completed on 9 May 2005 by Dr Lee and in addition to matters stated in her previous report, a second condition was then claimed – disc degeneration of the lumbar spine. Dr Lee’s report shows that this condition commenced in 1992, some 13 years earlier. The applicant recorded this condition as being intermittent and that there was frequent lower back pain since 1992 particularly if sitting, standing or lying for lengthy periods of time. That report shows that that condition was expected to last for more than 24 months (T10, folio 37). Dr Lee completed a further treating doctor’s report on 27 November 2006 which then described the lumbar spine condition as “mild”; and Ms Casson also recorded a condition of hypothyroidism. In respect of those latter three conditions, Dr Lee expected significant improvement (T16, folio 58). Dr Lee made a further report on 7 March 2007 consistent with her previous reports and identified osteoarthritis of both knees as conditions which would have a significant impact on Ms Casson’s ability to function and identified the lumbar spine condition, asthma, hypothyroidism and hypertension as being conditions which were generally well managed and caused limited minimal impact on her ability to function (T18, folio 72 to 74).
6. Ms Casson has also seen Dr Sylvia Yu since 2007. The first report by Dr Yu is dated 22 June 2007 where she indicated Ms Casson was unable to walk greater than 50 metres; unable to stand for more than 10 minutes; experienced pain while walking; and sleeping difficulties which resulted from pain caused depression (low mood and poor motivation). Dr Yu made a further report on 17 July 2007 where she indicated in addition, that Ms Casson was unable to sit for more than 15 minutes (T24, folio 98). Dr Yu then made a further report on 7 December 2007 and indicated Ms Casson could walk for 100 metres (T28, folio 122). That report is inconsistent with Dr Yu’s earlier report of 22 June 2007 which indicated that Ms Casson could not walk more than 50 metres.
7. Ms Casson has also been the subject of two job capacity assessment reports. On 20 April 2007, a job capacity assessor undertook a face-to-face assessment and concluded that the claimed conditions were permanent. However, only the condition of osteoarthritis of the ankle and knees should be assigned a rating of 10 impairment points, with a nil rating being allocated to the other conditions. On 23 July 2007, a further report was undertaken by a different job capacity assessor, Ms Lina Rimland. Her report made similar findings of the conditions claimed, and again assigned a 10 point rating only to the condition of osteoarthritis. Ms Rimland’s report was based on the reports of Dr Yu and after discussing the matter by telephone with Dr Yu. Ms Rimland also gave oral evidence at the Tribunal that she believed Ms Casson did experience pain but there was no medical evidence that it was as severe as Ms Casson has continually presented it. She said that referral to a treatment program would be suitable for her, however, Ms Casson was only focussed on the claim for disability support pension. She believed it may have been influenced by the fact that her partner was on a disability support pension and that Ms Casson could not understand why she could not also be a beneficiary of such payments. The job capacity assessor also concluded that Ms Casson could work currently for 8 to 14 hours per week for 24 months and that the treatment program would help motivate her to care for her health and improve her wellbeing. Ms Rimland anticipated that Ms Casson’s future capacity for work beyond 24 months from the time of her report would have been 15 to 22 hours per week.
8. There was a report by Dr Geoffrey Tilse of Queensland X-Ray dated 4 January 2008. That report showed some degenerative change in her back and that there was a slight scoliosis and lordosis. It was reported that “discs are intact and the vertebral bodies show osteophytes but no displacement or spondylolysis defect” (T32, folio 156).
9. Dr Yu also provided oral evidence to the Tribunal. In her report of 24 July 2008, Dr Yu states that Ms Casson had lost a quarter of the range of movement with chronic back pain. She assessed her as having 10 points under Table 5.2 of the Impairment Tables. During cross-examination however Dr Yu states that she felt consistently pressured to put in reports, forms of wording which Ms Casson wished to have available for presentation of her claim for disability support pension. Dr Yu was referred to the comments made by the job capacity assessor as to Ms Casson’s capacity for future work and also the focus on pursuing a disability support pension as opposed to undertaking a treatment program. Dr Yu responded “I absolutely agree”. Dr Yu also indicated in earlier reports that some of her assessments had been completed under pressure and that she did not have time to argue with Ms Casson about the report. Dr Yu was clearly emotional about having had to deal with Ms Casson as a patient and stated that she has told Ms Casson that she will not see her again. Indeed, she said that her movement was quite good and that the impairment was worthy of five points on the Impairment Tables and not 10 points as she had earlier reported.
10. Immediately before Ms Yu was called to give evidence, Mr Simpson, partner of Ms Casson, informed the Tribunal that he thought Dr Yu was biased. Ms Casson also made comments that Dr Yu had told her recently that she would not see her again and that she would have to find another doctor. They claimed that she was biased because of contact with Centrelink.
11. Ms Casson made submissions about the medical reports. She pointed to reports in 2005 by Dr Tilse and Dr Piyoosh Kotecha (Queensland X-Ray) and reports by Dr Elizabeth Carter and Dr Julian Lane referring to her arthritic and lumbar spine conditions. She emphasised one report where it pointed out that she does not do all the housework herself (T25, folio 107 of Job Capacity Assessor’s report). Ms Casson referred also to the decision by the SSAT dated 6 October 2005 where she had then told that Tribunal “that she agreed that she could move quite well and that her back does not limit her too much” (T40, folio 192). She then stated to this Tribunal that her back was not as bad then as what it is now. She emphasised that her capacity for work was based on 8 to 14 hours without intervention whereas 15 to 22 hours was based on where there is treatment or intervention.
12. Ms Casson also referred to depression and to the report by her psychologist, Dr Suzanne Drake. She pointed to a report which shows she had attended counselling in 2006/2007 and she had a letter showing the number of occasions where she had attended Relationships Australia. Reference was also made to hypothyroidism but which has been diagnosed and treated and to an oedema of the left leg.
13. Ms Casson told the Tribunal that obesity had been a problem for most of her life. However, Dr Yu had provided evidence that it was well known that obesity makes arthritis worse and this also includes aggravating her lumbar spine condition. Dr Yu also stated that Ms Casson’s functionality was adversely affected by her weight and for that reason, treatment and diet were important for Ms Casson to improve her physical and psychological condition. That would also enable her to work longer hours.
CONSIDERATION
14. I have considered all of the evidence by all of the parties and witnesses in making a determination in this matter. I have also considered the relevant statutory and case law.
15. In considering this matter I have made the following findings of fact:
(1)The Applicant has a permanent condition of osteoarthritis of both knees and of the left ankle. This has a moderate interference with walking, squatting and kneeling (Table 4 – Function of the Lower Limbs).
(2)The Applicant has a lumbar spine condition with a loss of no greater than a quarter of the range of movement (Table 5.2 – Thoraco-Lumbar-Sacral-Spine).
(3)Depression is co-morbid with osteoarthritis and the lumbar spine condition, as well as obesity. The depression and obesity must be regarded as not fully treated.
(4)The Applicant suffers from hypertension which is well controlled and managed with medication.
(5)The Applicant suffers from hypothyroidism which is well controlled and managed with medication.
(6)The Applicant has asthma which is well controlled and managed with medication.
16. The relevant legislation is contained in s 94 of the Social Security Act1991 (the Act). Section 94 relevantly provides –
“s 94 Qualification for disability support pension
(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;
…
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a) the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.”
17. The relevant extracts from the Impairment Tables are as follows:
Osteoarthritis – Table 4 Function of the Lower Limbs
Because the two lower limbs act to constitute a single functional unit, both legs are assessed together and only one rating may be assigned from this Table even when both legs are impaired.
Table 4
Function of the Lower Limbs
Rating
Criteria
Nil
Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500 metres.
10
Demonstrable loss of strength, mobility, stability, balance, co-ordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking to 250 to 500 metres or less, at a slow to moderate pace (4km/h). Can walk further after resting.
Lumbar Spine – Table 5.2 Thoraco-Lumbar-Sacral Spine
As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.
Rating
Criteria
Nil
Normal or near normal range of movement.
5
Loss of one-quarter of the normal range of movement.
10
Loss of one quarter of the normal range of movement as well as back pain or referred pain:
· with many physical activities; and
· with standing for about 30 minutes; and
· with sitting or driving for about 60 minutes.
or
Loss of half of normal range of movement
18. The Applicant’s case is that she should be entitled to 10 points for the impairment for osteoarthritis of the knees as well as 10 points for the lumbar spine condition. The latter assessment is a major point of contention. She also claims in relation to depression that she had been for 18 counselling sessions with Relationships Australia. She therefore contends that this is confirmation that she did have depression. In relation to obesity, Ms Casson referred to having been overweight for most of her life but had been to Jenny Craig and taken diet tablets when she was successful in losing weight. She stated that at one stage she lost five or six kilos which is noted in her medical history but she stated that she was also taking laxatives at the time. The Respondent’s case is that both osteoarthritis and the lumbar spine condition are not fully treated and that likewise, the condition of depression is not fully treated. In relation to obesity, the Respondent says that a program was commenced but has not been completed and therefore is not fully treated. The Respondent states that hypertension and asthma are permanent conditions but should be rated nil as they are treated and well managed. Neither the Applicant nor the Respondent pressed any claim before the Tribunal in relation to hypothyroidism.
19. To succeed with this application, Ms Casson has the onus of proof in establishing that on the balance of probabilities, she can satisfy s 94 of the Act, as amplified by the conditions in terms of the relevant Impairment Tables.
Has Ms Casson satisfied s 94(1)(a) – Does she have a physical, intellectual or psychiatric impairment?
20. Based on the consistent evidence of Dr Lee, Dr Yu, and also taking account of the job capacity assessment report, it is clear that Ms Casson has osteoarthritis of the left ankle and both knees and that this condition is permanent. On that basis and without anything further, I find that the Applicant satisfies s 94(1)(a) of the Act.
Is s 94(1)(b) satisfied – Does Ms Casson have an impairment of 20 points or more under the Impairment Tables?
Osteoarthritis
21. In terms of osteoarthritis, the Respondent has accepted that Ms Casson has the permanent condition of osteoarthritis of the left ankle and both knees. The Respondent however submits that the Applicant’s claim is exaggerated. Dr Lee in 2005 and 2006 assessed the claim for this condition but has not allocated an impairment rating specifically under the Impairment Tables. However, Dr Arvind Das on 31 May 2005 assigned a rating of 10 points in relation to the left ankle condition as did a job capacity assessment report on 18 December 2006. Dr Yu has also assessed this condition as warranting 10 points and the Respondent has made submissions that the appropriate impairment rating under Table 4 for this condition also is 10 points. I take note of those reports and submissions but also the report of the job capacity assessor of 23 July 2007. Job capacity assessment reports are useful in considering a practical assessment of the level of disability where such assessments are based on the reports of medical practitioners (Re Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902). That job capacity assessment report on Ms Casson together with the written reports and oral evidence of Dr Yu that the Applicant’s present condition, although permanent, is aggravated by her limited physical activity, provide professional opinions that her functional capacity would increase if her obesity was improved. All professional reports making comment on this aspect consistently refer to the likely improvement in her physical capacity in relation to this impairment where physical fitness and weight loss occurs. The job capacity assessment report and the oral evidence of the job capacity assessor, Ms Rimland, noted that her knees and ankle condition are aggravated by her weight gain. Dr Yu also gave consistent evidence.
22. On the basis of all of the evidence, I find that while the condition is permanent, there is apparent cause for Ms Casson to be optimistic that the condition could at least be improved where her obesity was better managed. I observed Ms Casson standing at the bar table making submissions on a number of occasions throughout the hearing and I saw nothing inconsistent with the expert evidence reports submitted. I therefore find that at this stage, the impairment could cause no higher than a “moderate interference” with her mobility. I find that a rating of 10 points under Table 4 is the most appropriate assessment.
Lumbar Spine Condition
23. The Applicant makes a submission that despite all of the evidence, her lumbar spine condition is worse than her osteoarthritis. She therefore submits that she should be entitled to an impairment rating of 10 points under Table 5.2.
24. Application of impairment ratings require that an impairment must be “…fully diagnosed, treated and stabilised…” (see Introduction to the Impairment Tables). Whether a condition is permanent must be judged at the relevant time, documented fully, and be a diagnosed condition. The fact that a diagnosis could be made not at the relevant time but at a later time is of no assistance to an applicant. It was submitted to the Tribunal that “the evident legislative intent is that disability support pensions be paid only when the disabling condition has reached the stage where it can be regarded as being permanent and having a permanent impact upon normal function as it relates to work performance” (Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938 at [22]).
25. In this case, the Applicant’s claim is not supported by the medical evidence. Indeed, the weight of evidence is against the Applicant. However, she makes a claim that Dr Yu is biased against her. It is true however that Dr Yu has revised a former report downwards in more recent times. Dr Yu was examined by Mr Amundsen and an opportunity to cross-examine Dr Yu was declined by Ms Casson. I then asked further questions of Dr Yu and gave Ms Casson a further opportunity to cross-examine Dr Yu, but that opportunity was again declined.
26. I must therefore consider the weight of evidence to be put on the conflicting account of facts put by Ms Casson and Dr Yu. Section 55(2) of the Evidence Act1995 provides that evidence is not irrelevant only because it relates to a party’s credibility. In addition, credibility evidence can be admissible if it is adduced in cross-examination and has substantial probative value (s 103(1)). But any evidence which is relied upon in this respect must be evidence which can rationally affect the assessment of the probability of the existence of a fact in issue (Smith v R (2001) 206 CLR 650).
27. I have taken into account Ms Casson’s evidence and that of her partner about Dr Yu being biased against her. I have also taken account of Dr Yu’s evidence and her obviously emotive state and the pressure which she felt in dealing with Ms Casson. Dr Yu’s evidence is corroborated independently by Ms Rimland, the job capacity assessor. Indeed, Ms Rimland is even more direct and analytical in her assessment which is against the evidence of Ms Casson. The weight of evidence is dependent on the degree of relevance of the evidence (R v Quinn [1962] 2 QB 245). But in circumstances where a party fails to call or give evidence, or produce evidence to an expert witness (which can also be in the cross-examination of an expert witness), this may lead to an inference that the uncalled evidence would not assist the party’s case (Jones v Dunkel (1959) 101 CLR 298). That principle can operate against a party whether the party bears an onus of proof or not (Ho v Powell (2001) 51 NSWLR 572 at [76]).
28. Taking account of these authorities, the strength of evidence and the consistency of evidence of virtually all of the medical practitioners, I am satisfied that Dr Yu was honest in her final appraisal and had felt either bullied or pressured by Ms Casson over an ongoing period. Also, taking into account the logical explanation by the expert witnesses, Ms Rimland and Dr Yu, that the obesity is an aggravating factor for Ms Casson’s osteoarthritis as well as the lumbar spine condition, I am satisfied that condition can at most satisfy the criterion of 5 points under Table 5.2 ie. “loss of one-quarter of normal range of movement”. That assessment of course gives Ms Casson the benefit of the doubt as to whether the condition is stabilised and fully treated.
Depression
29. Ms Casson submits that she should be entitled to have the condition of depression taken into account in the impairment assessment. She points to her attending counselling sessions with Relationships Australia and says this verifies that she did have depression. She points to the evidence of Dr Ramon Kousary dated 26 July 2007. The Respondent on the other hand, refers to the report of Dr Drake (T38, folio 175) which refers to Ms Casson attending upon her for treatment from January 2008 until, at least, Dr Drake’s report of 26 April 2008. The Respondent’s position is that this indicates Ms Casson’s depression is not fully treated.
30. I note from the report by Dr Drake, Ms Casson was very compliant during the cognitive behavioural therapy which she underwent from January to April 2008. However, I note that that period ends four months after the date of the application and therefore outside the relevant time of assessment of the application. In any event, it was not indicative in anything stated by Dr Drake that the condition was fully treated.
31. The report by Dr Kousary of 26 July 2007 (T26, folio 111) merely states “I think it is likely that she may have some underlying depression for which further investigation and maybe a psych referral would be advisable”. That report of itself is not either a diagnosis or support that a depressive disorder exists. Indeed, the sentence in Dr Kousary’s report which immediately precedes the sentence relied upon by the Applicant, as well as the paragraph preceding that, points to her alcohol (spirits) intake of about 10 standard drinks per night which Dr Kousary says is a significant risk for her gastritis. In addition, he indicated that he had had a long discussion with Ms Casson about the safe level of alcohol intake and advised her that she should limit her drinking to two to three standard drinks per night and that she should have at least three nights per week when she had no alcohol intake. The depression would appear to be affected therefore by factors other than her osteoarthritis and lumbar spine condition. As suggested by Dr Yu and Ms Rimland an improvement in the level of obesity will also be of great assistance to her level of pain and mobility which at present, provide challenges for the Applicant.
32. Ms Casson has submitted that she has been overweight all her life and that she has lost weight in the past mainly when on diet tablets and even when taking laxatives. The Respondent states that a program to assist with obesity was commenced but was not completed. The Respondent therefore says that the condition is not fully treated.
33. There is evidence provided as annexures to the Respondent’s Statement of Facts and Contentions of the records made by dieticians at QEII Jubilee Hospital and which indicates progress reported. Ms Casson met the dietician on the 5 June 2007 and then on 9 July 2007, showed a reduction in calorie intake and had also started riding a bike. Weight loss was recorded at that appointment. On 6 August 2007, she again met the dietician and again showed weight loss although it was noted that at that time she had not started exercise. On 1 October 2007, she again recorded a weight loss and that she had started exercising on a bike but that had only lasted two days. Even though weight loss was recorded at that time, the comments show her strict adherence to a diet plan was not consistent. On 7 January 2008, immediately after the Christmas/New Year period, it was apparent that her weight had then increased again but that was largely due to unhealthy foods over this period. An exercise plan was again set for her. On 10 March 2008, an appointment was made but was cancelled.
34. It appears from the evidence that obesity is an underlying aggravation to both of the significant conditions claimed by Ms Casson but that that is an ongoing challenge for her in improving the level of pain in her knees and ankles, and also in her back.
Hypertension And Asthma
35. Both of these conditions show that she was under treatment in 2007 and in relation to hypertension, significant improvement was expected (Dr Yu’s report of 22 June 2007) (T23, folio 95). Likewise, asthma was a condition which was regarded as being well controlled and managed with medication and would also be expected to improve in the future.
SUMMARY
36. In summary therefore, I regard Ms Casson as having an impairment rating of 10 points in relation to osteoarthritis and 5 points in relation to the lumbar spine condition. I would allocate nil points to the other conditions. Therefore, the total applicable is 15 points under the Impairment Tables. As s 94(1)(b) of the Act requires 20 impairment points, then that provision cannot be satisfied.
37. Section 94(1)(c)(i) requires, in addition to satisfying s 94(1)(a) and s 94(1)(b), that an applicant must also have a continuing inability to work. As Ms Casson cannot satisfy s 94(1)(b), technically it is unnecessary to consider s 94(1)(c) as her claim must fail in any event. However, for the sake of completeness and in light of the Applicant’s pursuing applications for disability support pension now on multiple occasions, I will examine that aspect also. Section 94(1)(c)(i) is described in detail in s 94(2). That provides that a person will have a continuing inability to work if the Secretary is satisfied that the impairment will be sufficient to prevent the person from doing any work independently of a program of support within the next two years. In addition, the person must either be prevented from undertaking a training activity or such training activity would be unlikely to enable the person to do any work independently of such a program of support, within the following two years.
38. To satisfy the requirement of a continuing inability to work, this is not limited to skills and training for which a person is already qualified. It refers to being able to undertake any work in the following period of two years (subject of course to the provisos in s 94(2)(b)) (Re Watts and Secretary, Department of Family and Community Services [2003] AATA 632; Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864). An assessment of a continuing inability to work must also ignore a number of factors including, availability of work in the locally accessible labour market (s 94(3)(b)); impairments that have not been assigned a rating under the Impairment Tables (Secretary, Department of Family and Community Services v Michael (2001) FCA 1811); a person’s motivation for work (Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444 at 451); any special places of employment, ie. only a standard ordinary place of work is included in the assessment (Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606).
39. The evidence of the job capacity assessors show that Ms Casson has a present ability to work between 8 and 14 hours per week. With treatment, it is expected she would have a future capacity of being able to work between 15 and 22 hours per week.
40. Ms Casson emphasises that those assessments, particularly the latter assessment, is only relevant where there is intervention. It is certainly true that the professional advisors have indicated that she needs a program of support, to help deal with general health issues and obesity but also to help motivate her to care for her health and improve her general wellbeing. These provisos are not however irrelevant in the sense that mere non-compliance with recommended programs of support increase her eligibility for disability support pension. All of the relevant factors about her state of health and whether conditions are treatable and fully treated are factors which are taken into account. I therefore find that based on the whole of the evidence and considering s 94(1)(c) independently of the assessment under s 94(1)(b), I cannot find that she has a continuing inability to work. She therefore cannot satisfy s 94(1)(c). The application fails as Ms Casson does not satisfy s 94(1)(b) or s 94(1)(c). To be successful, she must satisfy both of those provisions. Even had she satisfied s 94(1)(b), that would not have been sufficient.
41. Taking account of all of the evidence, I find that Ms Casson is entitled to an impairment rating of 10 points in relation to osteoarthritis and 5 points in relation to her lumbar spine condition. The conditions of depression, obesity, hypertension and asthma for the reasons given above, each attract a rating of zero points. Therefore, the aggregate impairment amounts to 15 impairment points. It therefore does not satisfy the minimum points required under s 94(1)(b).
42. In the circumstances, the decision under review is affirmed.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD Senior Member
Signed: ...................[Sgd]..................................................
Joan Torbey, AssociateDate of Hearing 26 November 2008
Date of Decision 23 December 2008
The Applicant was self-represented
Solicitor for the Respondent Mr Matt Amundsen, Departmental Advocate
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