Chan and Secretary Department of Employment and Workplace Relations

[2006] AATA 934

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 934

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/79

GENERAL ADMINISTRATIVE DIVISION		)
Re		Simon Chan

Applicant

And Secretary Department of Employment and Workplace Relations

Respondent

DECISION

Tribunal R. Hunt, Senior Member, Dr M. Thorpe, Member & Mr S. Frost, Member

Date1 November 2006  

Place Sydney

Decision The decision under review is affirmed.

……….........................................  

R. Hunt
  Senior Member   

CATCHWORDS

SOCIAL SECURITY - Newstart Allowance - Activity test – No exemption from activity test - Applicant not "incapacitated for work because of a sickness" – No finding that any incapacity was of a temporary nature.

Social Security Act 1991 (“SSA”), s 94(1)(5), 593, s 601 and s 603C, Schedule 1B

Re D’Souza and Secretary, Department of Family and Community Services [2003] AATA 938

1 November 2006

REASONS FOR DECISION

summary

1.Mr Chan, the applicant, sought review of a decision that he was not excused from the activity test, which is a usual requirement for the payment of Newstart allowance. The decision under review relates to a 13 week period in 2005. Mr Chan currently receives Newstart Allowance and his present position is not part of the tribunal’s review. The tribunal has found that, on 19 August 2005, Mr Chan should not have been exempted from the activity test for the period of 13 weeks covered by the decision. Our reasons are set out below.

issue

2.The Tribunal is asked to decide whether, in August 2005, Mr Chan was entitled to receive the Newstart Allowance without having to satisfy the “activity test”.  In simple terms, that will depend on whether he was temporarily incapacitated for work, because of sickness.

The legislation

3.The relevant legislation is set out in s 593, s 601 and s 603C of the Social Security Act 1991 (“SSA”).

4.Subs 593(1) of the SSA provides that:

…a person is qualified for a newstart allowance in respect of a period if:

(a)       the person satisfies the Secretary that:

(i)        throughout the period the person is unemployed;

…

and

(b)in the case of a person to whom subparagraph (a)(i) applies – throughout the period, or for each period within the period, the person:

(i)        satisfies the activity test; or

(ii)       is not required to satisfy the activity test; and

…

5.Subs 601(1) of the SSA sets out how a person satisfies the activity test. Subs 601(1) is in the following terms:

Subject to subsections (1A) and (3), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:

a)    Actively seeking; and

b)    Willing to undertake;

Paid work, other than paid work that is unsuitable to be undertaken by the person.

6.S 603C of the SSA explains in what circumstances a person is not required to satisfy the activity test. Subs 603C provides:

(1)Subject to this Subdivision, a person is not required to satisfy the activity test in respect of a period if:

a)    throughout the period the person is incapacitated for work because of sickness or an accident; and

b)    the incapacity is caused wholly, or virtually wholly, by a medical condition arising from the sickness or accident; and

c)    the incapacity is, or is likely to be, of a temporary nature; and

d)    if this Subdivision had not been enacted and paragraphs 593(1)(b),(c),(d) and (e) were disregarded, the person would qualify for newstart allowance; and

e)    the person has, whether before or after the commencement of this section, given the Secretary a certificate of a medical practitioner, in a form approved by the Secretary, stating:

(i)The medical practitioner’s diagnosis; and

(ii)The medical practitioner;s prognosis; and

(iii)That the person is incapacitated for work; and

(iv)The period for which the person is incapacitated for work; and

f)     the Secretary is satisfied that the incapacity has not been brought about with a view to obtaining an exemption from the activity test.

(2)       In this section:

“work”, in relation to a person, means work (whether full-time, permanent or casual) that:

a)    is of a kind that the person could, in the Secretary’s opinion, be reasonably expected to do; and

b)    is for at least 8 hours per week on wages that are at or above the relevant minimum wage.

Background to the dispute between Mr Chan and Centrelink

7.Mr Chan has some medical problems and has obtained medical help from time to time. He argued before us that he was so debilitated by his poor health during the 13 week period under review that he should not have been required to meet the activity test. This test involves some efforts towards looking for work but it is not necessary for the purposes of our decision to detail these requirements further.

8.On 4 July 2005, Mr Chan’s general practitioner, Dr Thomas Tjeuw, provided a medical certificate for Mr Chan favourable to his position that he was not fit for work and therefore that he should not have been required to meet the activity test for the period in dispute. The medical certificate covered a period of 2 months and was in a standard Centrelink form which included the following words:

In my opinion this person is/has been unfit for work/study from 04/7/05 to 04/09/05 inclusive.

9.Not satisfied with the medical certificate, Centrelink referred Mr Chan for medical assessment by Health Services Australia (“HSA”).  The HSA medical examiner, Dr Doron Arad, wrote a report dated 17 August 2005 in which, among other things, he assessed Mr Chan as having a current work capacity of 30 or more hours per week. On the basis of that report, Centrelink decided, on 19 August 2005, that it was “unable to grant [Mr Chan] an exemption from the activity test at this time” because of Centrelink’s view that Mr Chan was “able to do suitable paid work for at least 8 hours per week”. 

10.Mr Chan contacted Centrelink to say that he disagreed with that decision.  In the written report of the discussion with Mr Chan, a Centrelink officer noted (at T22, p 66) that Mr Chan:

said his condition is very serious – that HSA does not know enough to assess his capacity to work – only specialist can do that – he spends thousands a year for treatment – provided test results showing that his condition is improving.  However Immunoglobulin E level, he says, is still 5 times higher than normal.  He states may be OK in couple more years.

…

As recorded above, he stated a GP cannot assess his condition.  This can only be done by a specialist.

11.Centrelink reconsidered the decision but decided not to change it (T23, p 67). On 25 August 2005, Mr Chan applied for the decision to be reviewed by an Authorised Review Officer (“ARO”).  The ARO also thought the decision was correct, and notified Mr Chan of his decision on 22 September 2005. Mr Chan appealed to the Social Security Appeals Tribunal but that appeal was unsuccessful.  On 23 January 2006 Mr Chan applied to this tribunal for further review.

The evidence before this Tribunal

12.Apart from the T documents, we also had available to us the following material:

§  A “Treating doctor’s report” (“TDR”) by Dr Tjeuw dated 6 December 2005;

§  A medical report dated 3 January 2006 by Dr Richard Lee;

§  A Medical Assessment dated 13 January 2006 by Dr Priya Weerasinghe, a medical adviser with HSA;

§  A further medical certificate written by Dr Tjeuw dated 22 January 2006;

§  A Medical Assessment dated 26 March 2005 by Dr Jennifer O’Riordan, a medical adviser with HSA.  This Medical Assessment seems to have been undertaken in response to a referral from Centrelink dated 17 March 2006, and so the correct date for the assessment is probably 26 March 2006;

§  A report dated 11 April 2006, prepared by Dr Philippa Harvey-Sutton; and

§  A report, in the form of answers to a questionnaire, prepared by Dr Connie Katelaris and dated 23 May 2006.

13.A hearing was held before the Tribunal on 11 October 2006 at which Mr Chan, who represented himself, gave oral evidence.  He was assisted by an interpreter in the Mandarin language.

Mr Chan’s claims

14.Mr Chan claims to suffer from a number of medical conditions, including rhinitis, a broad range of allergies, gallstones, high blood pressure, dry eyes, headaches, and shoulder and arm pain caused by a motor vehicle accident in 1992. 

15.For at least three years he has undertaken a course of very expensive immunotherapy treatment for his allergies, and this treatment seems to be improving his condition. He says that when he is undertaking his immunotherapy treatment (which requires a course of injections once a week over a period of several weeks, and then a break of several weeks before the next course of injections), he needs to rest for a full day after the injection is administered. 

16.In addition to that, he is undertaking a course of study requiring his attendance for two days a week at an educational institution.  That means that during his immunotherapy treatment periods, he is unavailable for work for three days a week.  As a result, he says, even if he actively looked for work, he would not be regarded as an attractive prospective employee. 

17.He says, in summary, that it is futile for him to be forced to satisfy the activity test.  He would prefer to be left to get on with his immunotherapy treatment so that he can “return to full time employment and lead a normal life like everybody else”.

The medical evidence

18.The direct medical evidence about Mr Chan’s condition around the time when Centrelink made its decision consists of the written material provided by Mr Chan’s general practitioner, Dr Tjeuw, and by the HSA medical examiner, Dr Arad.  The additional reports which have been prepared by Dr Tjeuw and by the various other medical practitioners relate (with two exceptions) to Mr Chan’s conditions and symptoms at the time the reports were written, on the dates set out in the summary below.

19.The two exceptions are that Drs Katelaris and Harvey-Sutton were specifically asked to express an opinion about Mr Chan’s condition as it was in August 2005.  Their responses are discussed later in these reasons. 

20.First, it is useful to summarise broadly what the medical reports disclose:

Doctor’s name	Date of report	No. of medical conditions identified	Name(s) of condition(s)	Permanent/ temporary? (see para 45 below)	Capacity for work
Tjeuw	04.07.2005 (medical certificate)	1	Severe Nasal allergy; Nasal operation	Permanent	Unfit for 2 months
Arad	17.08.2005	1	Allergy	Permanent	30+ hours per week
Tjeuw	06.12.2005 (Treating doctor’s report)	1	Severe allergic rhinitis	Temporary	“Cannot currently do their usual work/ study, or any other work for 8 hours or more per week”
Lee	03.01.2006	1	Gallstones	No specific comment	No specific comment
Weerasinghe	13.01.2006	2	Allergic rhinitis Left shoulder pain	Permanent Permanent	“Mild impact on ability to perform work” 30+ hours per week
Tjeuw	22.01.2006 (medical certificate)	3	Severe Nasal allergy; Nasal operation Gallstones High blood pressure	Permanent Temporary Permanent	Unfit for work from 22.01.2006 to 22.04.2006
O’Riordan	26.03.2006	3	Nasal allergies Gallstones Hypertension	Permanent Temporary Permanent	30+ hours per week

Doctor’s name	Date of report	No. of medical conditions identified	Name(s) of condition(s)	Permanent/ temporary? (see para 48 below)	Capacity for work
Harvey-Sutton	11.04.2006	3	Left shoulder impingement Visual impairment of the left eye Allergic rhinitis/ Perennial rhinitis	No specific comment No specific comment Temporary	“His condition would prevent him from working for more than 8 hours per week”
Katelaris	23.05.2006 (responses to questionnaire)	1 (the doctor was specifically asked about only one condition)	Perennial/ allergic rhinitis	Permanent	Not prevented from doing at least 8 hours per week at award wages or above

Dr Tjeuw’s medical certificate dated 4 July 2005

21.The relevant parts of Dr. Tjeuw’s medical certificate (which is the document that originally caused Centrelink to refer Mr Chan’s case for further assessment by HSA) are as follows (T15, page 47):

§  Under the heading “Diagnosis – Please list all medical conditions (illness, injury or disability) which impact on your patient’s capacity for work or study”, Dr Tjeuw identified only one condition, which he described as “Severe Nasal allergy; Nasal operation”.

§  Under the heading “Is this condition (Tick one for each condition)”, Dr Tjeuw checked the box labelled “Permanent”, rejecting the alternative possibilities “Temporary” and “Exacerbation of existing condition”.

22.There is not necessarily any inconsistency between an assessment of the condition as “permanent” and an opinion that the patient is unfit for work for only 2 months. This is because, generally, the maximum period for which a medical practitioner can give a medical certificate is 13 weeks: See section 603F of the SSA.

Dr Arad’s Medical Assessment dated 17 August 2005

23.Dr Arad’s report contained the following relevant material (T16, pp 51 – 59):

§  The identification, again, of only one medical condition – “Allergy” – in response to an instruction on the form to “clearly record all the conditions mentioned by the treating doctor(s), and any other conditions you observe”.

§  In answer to the question “How does this condition affect the customer’s ability to function?”, Dr Arad wrote: “The injections that he gets from his immunologist are very expensive”.

§  In answer to the question “Does your opinion of the customer’s ‘ability to function’ differ from the treating doctor?”, Dr Arad checked the box “No”.  This is despite the fact that the “treating doctor” – Dr Tjeuw – in answer to the question “Can the patient currently do their usual work/study, or any other work for 8 hours or more per week?”, had answered “No”.  As will be seen shortly, Dr Arad considered that Mr Chan was capable of 30 hours per week of modified work.

§  By way of general comment in relation to Mr Chan’s condition, Dr Arad stated:

Mr Chan suffers from moderate symptoms that cause loss of efficiency on some tasks.  He becomes breathless when exposed to dust, pollens and other agents.  He is treated with an immunologist.  He had an anaphylactic reaction and required hospitalisation.  He had this reaction once and it did not recur.  This happened 5 years ago.  He does not have adrenaline or Epi pen.  His medications include antibiotics for his nose, tears for dry eyes, nose spray and Elocon ointment.  During the interview Mr Chan looked generally well.  He had a nose operation 4 months ago.  The functional impact of this condition is unlikely to change during the next two years.  In this case I regard it as permanent. …

§  In relation to Mr Chan’s “fitness for work”, Dr Arad stated:

I agree that the customer suffers from genuine health problems.  Many people with similar presentation can cope with restricted duties.  In this case I find that Mr Chan is suitable for 30 hours per week of modified work.  Mr Chan should work only according to the restrictions.  He should not work where his allergy can be triggered.  He should get clearance from his immunologist.

Dr Tjeuw’s “Treating doctor’s report” (TDR) dated 6 December 2005

24.Question 8 on the form completed by Dr Tjuew was:

If the patient has a temporary (less than 24 months) reduction in ability to function because of their medical condition(s), do you wish to provide medical certificate details on this form?

25.Dr Tjeuw answered “Yes” and certified Mr Chan “temporarily unfit for work/study from 06/12/2005 to 06/06/2006”.

26.From the information before us, we find that Dr Tjeuw considered Mr Chan’s “severe allergic rhinitis” the only condition that had a “significant impact on the patient’s ability to function” as at 6 December 2005 (see question 3 of the TDR and the instructions for answering that question – “List conditions in order of degree of impact on ability to function – starting with condition with most impact”).

Dr Lee’s report dated 3 January 2006

27.Dr Richard Lee is a surgeon to whom Mr Chan had been referred specifically for his symptomatic gallstones.  Dr Lee wrote a narrative report dealing only with his gallstone condition and commenting on possible treatments. He did not issue any certificate about Mr Chan’s fitness for work or otherwise.

Dr Weerasinghe’s Medical Assessment dated 13 January 2006

28.Dr Priya Weerasinghe is a Medical Adviser with HSA, who examined Mr Chan because Mr Chan had apparently lodged a claim for Disability Support Pension.  Dr Weerasinghe assessed Mr Chan as capable of working 30+ hours per week without any intervention programs, and suggested “light sedentary work, retail work, mail sorter”.

Dr Tjeuw’s medical certificate dated 22 January 2006

29.This medical certificate is in a similar, but not identical, standard Centrelink form to the one Dr Tjeuw had given in Mr Chan’s favour on 4 July 2005.  In this later certificate, Dr Tjeuw identified two additional medical conditions “which impact on [the] patient’s capacity for work or study” – “Gall stones” and “High Blood pressure”.  Although the “Date of onset (if known)” for each of them was shown as “Years”, neither of these conditions had been included in the earlier medical certificate dated 4 July 2005.

30.Dr Tjeuw certified Mr Chan “unfit for work” for the three-month period from 22 January 2006 to 22 April 2006.

Dr O’Riordan’s Medical Assessment

31.Dr Jennifer O’Riordan is the third Medical Adviser from HSA to have made a report about Mr Chan since July 2005.  Dr O’Riordan’s assessment, however, was based on a “file review”, rather than a face-to-face examination.  Although Dr O’Riordan’s report was dated 26 March 2005, it seems to have been prepared in response to a referral from Centrelink dated 17 March 2006, and is therefore likely to have been made on 26 March 2006.

32.The three medical conditions reported on by Dr O’Riordan were those identified in Dr Tjeuw’s medical certificate dated 22 January 2006.  Her assessment of the conditions as either permanent or temporary was identical to that of Dr Tjeuw. However, she differed from Dr Tjeuw in her assessment of Mr Chan’s capacity for work.  She assessed him as having a work capacity of 0-7 hours per week without any intervention programs, but with a work capacity of 30+ hours per week with educational training, vocational training or on-the-job training.  She suggested as suitable work “light work, less or semi-skilled (age/previous injuries) e.g. office work, office cleaner”.  She noted that Mr Chan “requires training and assistance to find appropriate work”.

33.Dr O’Riordan also noted that Mr Chan had “multiple non-medical barriers to employment including long period of unemployment” but that he was “fit for work as specified”.  She concluded that Mr Chan was “unlikely to find employment without further training/assistance”.

Dr Harvey-Sutton’s report dated 11 April 2006

34.Dr Philippa Harvey-Sutton describes herself as a Consultant Occupational Physician.  Her report was written in response to a request from Legal Aid New South Wales, which was representing Mr Chan at the time, to assess Mr Chan.  Dr Harvey-Sutton was asked a number of questions.  One of these was:

Are these conditions temporary or permanent? What are the reasons for your opinion?

35.Dr. Harvey-Sutton’s response was:

Because his perennial rhinitis is currently being actively treated by immunotherapy, this condition cannot be considered stabilised and thus the severity is temporary.

36.Later in her report, Dr Harvey-Sutton stated:

I note on page T31 [the Decision Statement of the Authorised Review Officer dated 22 September 2005], the reference to his condition being permanent.  I would agree that his rhinitis condition is long-standing but as he is now having very specific immunotherapy for his condition, his condition could not be considered stabilised and thus could not be considered “permanent”; in other works (sic) not “a permanent functional impact on his ability to work”.

37.Dr Harvey-Sutton’s assessment as to Mr Chan’s capacity for work did not distinguish between the three separate conditions that she had identified.  Dr Harvey-Sutton had been asked:

In your opinion, would Mr Chan’s medical incapacity, if any prevents (sic) him from doing any work for more than 8 hours per week?  If so, what type of work could he do?  What are your reasons for your opinion?

Her response was:

His condition would prevent him from working for more than 8 hours per week, because at this stage it is appropriate that his circumstance are optimal (sic) until his condition is ‘cured’ by the specific immunotherapy course of injections that he is undertaking.

Dr Katelaris’s report dated 23 May 2006

38.Dr C.H. Katelaris is a Clinical Associate Professor and a specialist immunologist.  Her report took the form of answers to a questionnaire prepared by Centrelink.  Dr Katelaris was asked a number of questions about Mr Chan’s condition, which was described in the questionnaire as “perennial/allergic rhinitis”.  Dr Katelaris stated her understanding that Mr Chan had suffered from this condition since the mid 1990s and also stated that he had been seen by her since 2003.  One of the questions in the questionnaire that Dr Katelaris was asked to complete was in the following terms:

Is this condition permanent or temporary? (A permanent condition is a fully documented, diagnosed condition which has been investigated, treated and stabilised and is more likely that (sic) not to persist for more than 2 years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement with or without reasonable treatment within the next 2 years).

39.In response to that question, Dr. Katelaris stated as follows:

The condition is longstanding – has been present for over 10 years and is likely to persist.  Is undergoing longterm immunotherapy treatment which has improved but not cured the condition.  By definition outlined by you, it is permanent.

40.The next question on the questionnaire was:

Was the condition permanent or temporary in August 2005?

Dr Katelaris responded “Yes (permanent)”.

41.The following question was:

Does his medical condition prevent him from doing any work for at least 8 hours per week at award wages or above?

Dr Katelaris answered “No”.

42.The next, and final, question on the questionnaire was:

Was this the situation in August 2005?

Dr Katelaris’s response was:

No – his symptoms were present and worse in Aug 2005 but could not be viewed as preventing him from working.

Consideration of the issue

43.The questions for the Tribunal are:

§  Whether, in August 2005, Mr Chan was “incapacitated for work because of sickness or an accident”, and, if the answer to that question is “Yes”, then

§  Whether the incapacity was “of a temporary nature”.

44.One of the difficulties in this case arises from the standard Centrelink forms that have provided much of the medical evidence.  At least one of the forms seems to ask a question that has no bearing on the questions that need to be considered.

45.The standard medical certificate (two of which have been provided by Dr Tjeuw) ask whether the “condition” is permanent or temporary.  This Tribunal has noted in other cases that the issue in a case such as this is whether the incapacities are of a temporary nature, not whether the medical conditions are temporary: see for example Re D’Souza and Secretary, Department of Family and Community Services [2003] AATA 938.

Was Mr Chan “incapacitated” for work because of sickness?

46.The Macquarie Dictionary defines “incapacitate” as:

1.    to deprive of capacity; make incapable or unfit; disqualify. …

and “incapacity” as

1.    lack of capacity; incapability. …

47.For the purposes of s 603C of the SSA, Mr Chan will have been “incapacitated” for work because of sickness if he was deprived, by sickness, of the capacity to work for at least 8 hours per week at award wages or above.

48.In relation to Mr Chan’s “work capacity” at 17 August 2005, after identifying Mr Chan’s “Allergy” and assessing him in relation to it, Dr Arad thought that he had a “work capacity – current” of “30+ hours per week”.

49.We will come back to Dr Arad’s assessment shortly.  Before we do that, it is worth noting that the threshold of 30 hours per week was relevant under the former provision to determining a person’s qualification for disability support pension. That is probably the reason why the Centrelink forms completed, at different times, by Drs Arad, Weerasinghe and O’Riordan also assess “30+ hours per week” as an option for work capacity.  No doubt these forms are used for a variety of purposes, not just for assessment in relation to the Newstart Allowance activity test.

50.These forms also ask the reporting doctor to nominate where, if at all, the “work-related impairment” of each identified medical condition appears in the Impairment Tables (these are listed in Schedule 1B to the SSA).

51.Strictly speaking, Schedule 1B is only relevant to a person’s entitlement to disability support pension, but it is not surprising that a doctor might also use the well-defined and comprehensive criteria set out in those tables to explain to what extent a person is “incapacitated for work” for the purposes of the Newstart Allowance activity test.

52.Dr Arad classified Mr Chan’s “allergy” to Impairment Table 20 – “Miscellaneous – … Miscellaneous ear/nose/throat conditions …”, and rated the impairment at 15 points.  The relevant “descriptors” from the Table, at that rating, are:

Moderate to severe symptoms which are more distressing but prevent few everyday activities.  Self-care is unaffected and independence is retained.  Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work.  Full-time work would still be possible.

Potentially life-threatening condition which is currently interfering with daily activities but self-care is unaffected.

53.The instruction on the form is to “choose a descriptor that provides a ‘best fit’ to indicate level of effect on capacity to work”.  Dr Arad wrote:

Mr Chan suffers from moderate symptoms that cause loss of efficiency on some tasks.  This is a potentially life threatening condition which interferes with daily activities.  Self care is unaffected.

54.Dr Weerasinghe, using an identical form but in January 2006, also classified Mr Chan’s condition, now described as “allergic rhinitis”, to Impairment Table 20 with an impairment rating of 15 points.

55.In March 2006 the third HSA medical examiner, Dr O’Riordan, classified the condition “nasal allergies” to Impairment Table 20, but this time with an impairment rating of NIL points.  NIL points means, relevantly:

Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.

56.We now return to Dr Arad’s assessment on 17 August 2005.  Mr Chan disputed that assessment, stating (according to the Centrelink officer) that “a GP cannot assess his condition.  This can only be done by a specialist” (paragraph 10 above).

57.Dr Katelaris is a specialist immunologist who has been treating Mr Chan since 2003.  She was specifically asked whether, as at the date of her report in May 2006, Mr Chan’s medical condition prevented him from doing “any work for at least 8 hours per week at award wages or above” (the subsection 603C(2) definition).  She said it did not.

58.Asked about the situation in August 2005 (when Mr Chan was a patient of hers), she acknowledged that his symptoms were worse then, but that they “could not be viewed as preventing him from working”.  (In the context in which that answer was given, that must be taken to be a reference to his ability to work for at least 8 hours per week at award wages or above.)

59.This was not mere speculation on Dr Katelaris’s part.  She had been treating Mr Chan since 2003 according to the report before us.  The Tribunal accepts Dr Katelaris’s statement as an accurate assessment, in May 2006, of Mr Chan’s capacity for work in August 2005.

60.We also accept Dr Arad’s assessment as accurate. He made an examination of Mr Chan and made reference to the objective criteria in the Impairment Tables. He used language reflecting the “descriptors” in the particular table. He considered Mr Chan capable of more than 30 hours per week of work. The threshold of 30 hours per week of work capacity is clearly in excess of the “8 hours per week” test in section 603C.

61.By comparison, Dr Tjeuw’s medical certificate dated 4 July 2005 is quite general, although it is clear that the form itself gives a doctor little opportunity to be more specific or more detailed.  In addition, Dr Tjeuw would have had no reason to suppose that his certificate would be queried, and so his failure to elaborate is understandable.  He also seems to have been given no opportunity to support his opinion. He did, however, make the TDR on 6 December 2005, which provided more detail than the earlier medical certificate.  But the opinion that Mr Chan was not capable of working for 8 hours or more per week is not supported by the same degree of objective observations that Dr Arad had made in August 2005.

62.Dr Weerasinghe also made reference to the objective criteria in the particular Impairment Table.  The assessment was, again, that Mr Chan was capable of more than 30 hours per week of work, although this was an assessment made in January 2006, in relation to Mr Chan’s capacity to work at that time.  We accept that assessment as accurate. 

63.Dr Harvey-Sutton’s report was detailed and specific.  She examined Mr Chan on 28 March 2006.  She was well placed to identify his medical conditions as at that date, but could do no more than give an opinion on the “likely presentation” of Mr Chan’s symptoms as at August 2005.

64.We find the reports of Dr Arad and Dr Katelaris the most reliable before us in relation to the question of Mr Chan’s “incapacity” in August 2005. Dr Arad was thorough in his assessment, made an examination of Mr Chan and made reference to the objective criteria in the Impairment Tables. Dr Katelaris is a specialist immunologist who has been treating Mr Chan since 2003. She directed her mind towards Mr Chan’s situation in August 2005 and acknowledged that although his symptoms were worse then, they could not be viewed as preventing him from working.

65.By reference to all the medical information before us and Mr Chan’s own evidence, we find that Mr Chan’s allergic rhinitis was the most serious condition that he suffered in August 2005.  We find that Mr Chan probably also suffered, at that time, from:

§  gallstones;

§  some residual pain and lack of mobility in his left arm and shoulder as a result of his motor vehicle accident in 1992; and

§  hypertension.

66.However, we find that neither the allergic rhinitis alone, nor that condition in combination with any other condition that he suffered, rendered him “incapacitated for work” for at least 8 hours per week at award wages or above.

67.On the basis that we have not found a relevant “incapacity”, there is no scope for us to make a finding as to the “temporary nature” of any such incapacity (paragraph 603C(1)(c) of the SSA).

68.Accordingly and for the reasons detailed we affirm the decision under review.

decision

69.The decision under review is affirmed.

I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         .....................................................................................
  Rhonda Pietrini        Associate

Date/s of Hearing  11 October 2006
Date of Decision  1 November  2006
Solicitor for the Applicant          N/A – Applicant self-represented
Solicitor for the Respondent     George Lozynsky