Clarke and Department of Family and Community Services - [2000] AATA 568

DECISION AND REASONS FOR DECISION [2000] AATA 568

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/0223

GENERAL ADMINISTRATIVE DIVISION          )
           Re      SUZANNE CLARKE
  Applicant
           And    DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date11 July 2000
PlaceMelbourne

Decision The decision under review is affirmed.

….……………………………
Senior Member

SOCIAL SECURITY: Applicant applies to have cancelled Disability Support Pension restored; multiple injuries; whether 20 impairment points; whether a continuing inability to work; whether prevented from educational, vocational or on the job training; decision affirmed.

Administrative Appeals Tribunal Act s.37
Social Security Act 1991 s.94, s94(1), s94(3)

REASONS FOR DECISION

11 July 2000 Mr J. Handley, Senior Member

The applicant applies to review decision of the Social Security Appeals Tribunal made on 12 January 2000 which affirmed a decision previously made by an officer of the respondent to cancel disability support pension.
At the hearing of the application Ms Clarke appeared without representation. The respondent was represented by Mr Baker.
The Tribunal had before it documents filed pursuant to s.37 of the Administrative Appeals Tribunal Act which contained many medical reports and questionnaires completed by doctors who have treated the applicant and who have consulted at the request of the respondent. Reports were also made available at the hearing from doctors who have treated and continue to treat Miss Clarke. These documents will be referred to later in these reasons.
the legislation
Qualification for Disability Support Pension is found at s94 of the Social Security Act 1991. For the purposes of this application a person is qualified to receive a disability support pension if that person has a physical, intellectual or psychiatric impairment and the impairment is 20 points or more under the impairment tables and the person has a continuing inability to work.
Sub-section 2 of s94 provides that "a continuing inability to work" means that the impairment is sufficient to prevent the person from doing any work within the next two years and the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on the job training during the next two years or, 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 two years.
Sub-section 5 provides that "work" means work that is for at least 30 hours per week at award wages or above which exists in Australia if not necessarily within the person's locally accessible labour market.
Sub-section 3 provides that when considering whether a person has a "continuing inability to work" regard shall not be had to the availability of educational or vocational training or on the job training.
Having regard to the provisions of s94(1) where it refers to an impairment of 20 points or more "under the impairment tables", paragraphs 4, 5 and 6 of the introductory notes to Schedule 1B of the Social Security Act apply. This schedule contains the impairment tables.
The introductory notes, provide at paragraph 4, that a rating is to be assigned after a comprehensive history and examination. It also provides that a rating is to be assigned only after the condition has been fully documented and diagnosed and which has been investigated, treated and stabilised.
Paragraph 5 of the notes provide that "the condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two 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 two years".
Paragraph 6 of the introductory notes provide that when considering whether a condition is fully diagnosed, treated and stabilised consideration must be given to the treatment and rehabilitation that has occurred to date, whether the treatment is continuing or planned in the future and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.
the application
Miss Clarke is presently 25 years of age having been born on 23 September 1974. Disability Support Pension was first granted on 15 May 1997 but following review was cancelled with effect from 23 September 1999. Since that time Miss Clarke has received New Start Allowance but regularly provides medical certificates to exempt her from the work activity requirements of that benefit.
Throughout the T documents and the other medical reports filed there are a multitude of illnesses described as applying to Miss Clarke. She has been described as having suffered from Scheuermann's Disease, Fibromyalgia, Temporo-Mandibular Joint Dysfunction, Chronic Sinusitis, Chronic Pain Syndrome, Chronic Fatigue Syndrome and Depression.
Miss Clarke was previously employed as a nurse until 1996 but ceased because of stress. In 1998 she worked as residential care supervisor in an elderly persons hostel but was again forced to cease this employment because of her illnesses.
The applicant has been treated at the Box Hill Clinic for many years by Dr McDonald and by Professor Burke. She has also been treated on referral by Dr De Graff at the Cedar Court Rehabilitation Hospital and by Dr Talacko.
Dr De Graff in a report dated 20 April 2000 reported that the applicant achieved 20 impairment points under table 20 of the Guide. Mr Baker acknowledged that the applicant presently did satisfy 20 impairment points but was not satisfied, having regard to medical evidence filed and by reference also to a file note memorialising a conversation he had had with Dr De Graff, that the conditions suffered by the applicant could be regarded as being permanent.
Dr De Graff gave evidence by telephone. It was his opinion that the applicant would be fit to undertake permanent part-time work "within the next few years". It was his opinion that Miss Clarke would need to continue with exercising at Cedar Court over the next 6 to 12 months, principally with respect to her pain and fatigue management. Dr De Graff said that Miss Clarke has completed a number of programs as an out-patient and continues to attend Cedar Court on one or two occasions per week for exercising and hydrotherapy.
With respect to the present diagnosis Dr De Graff said that the applicant suffers from Chronic Pain Syndrome which has Chronic Fatigue Syndrome and Fibromyalgia as principle components. He thought that the Scheuermann's Disease had little relevance to her present assessment. He noted that the applicant had suffered from Infectious Mononucleosis when she was eight years of age, which he said had relevance to a bio-mechanical instability affecting muscle structure. In his opinion, the legacy of the Infectious Mononucleosis is to cause a pain and fatigue throughout the applicant's musculature, by reason of activity, principally in employment.
He was of the opinion that Miss Clarke would not be able to return to work within the next two years and thought that manual employment would be impossible. Presently he thought that she was capable of some domestic activity but she had the "potential" to undertake educational or vocational training within the next two years. He thought her greatest problem presently with educational training was tolerance with regard to her inability to concentrate and her ability to remain seated comfortably.
Dr De Graff was uncomfortable with the language adopted in paragraphs 4, 5 and 6 of the introductory notes to the Guide. He regarded the applicant's conditions presently to be permanent but permitting her to have a partial capacity for employment and/or educational or vocational training. It was his opinion that the concept of an injury being "stable" and "permanent" were not synonymous. He also said that with continuing treatment and a belief in the potential of the applicant to improve that whilst her condition will probably remain permanent the present impairment will become less than 20 impairment points under Table 20.
Miss Clarke said that her condition had not changed since September 1999 when pension was cancelled. This is despite extensive treatment by a number of doctors and her rehabilitation program at the Cedar Court Hospital.
Miss Clarke presently undertakes some volunteer work with the Guide Dogs Association of Victoria where she either walks dogs or performs some light clerical and administration work. She said that this activity produces exhaustion, which frequently requires her to rest. It is her opinion that she would not be able to undertake employment within the next two years. She is also of the opinion that she would not be able to undertake educational or vocational training by reason of her poor ability to concentrate and back and neck pain associated with being seated. By way of example Miss Clarke filed a two-paged typed submission during the hearing, which she said took her one and a half hours to complete.
Within the T documents were a number of questionnaires completed by doctors who have treated Ms Clarke and consulted at the request of the respondent.
Professor Burke completed questionnaires on 7 June 1999 and 10 November 1999. In both questionnaires he reported that in his opinion the applicant would be "likely to be able to return to any kind of part-time work – not just last job" in "6/12 months time". When asked whether, in his opinion, the applicant would be "likely to be able to work more than 20 hours per week" and when the applicant would be "likely to be able to return to any kind of full-time work – not just their last job (for at least 30 hours per week)" he said "6/12 months" in the questionnaire of 7 June 1999. In answer to the same questions in the questionnaire of 10 November 1999 he answered "12/24 months". When asked when the applicant would be "likely to be able to return to (her) usual job" he said "12/24 months" in the questionnaire of June 1999, however, in the questionnaire of 10 November 1999 he answered "more than two years".
In the questionnaire of 7 June 1999 Professor Burke concluded that "Miss Clarke would not benefit from vocational training or rehabilitation", however, in the questionnaire of 10 November 1999 he concluded that she would benefit but "not involving heavy lifting, bending, prolonged immobility (secretarial etc)".
In the same questionnaire of 26 June 2000, Dr McDonald, who has also treated the applicant, in answer to all of the above questions said "more than two years".
Dr Harries in a report dated 17 September 1999 (T6) concluded that the applicant was (then) "currently fit for full-time work". She concluded that the applicant should, however, avoid "heavy lifting, frequent bending and prolonged standing" and "her previous part-time jobs would, therefore, not be considered appropriate but she could do clerical work e.g. as a doctors receptionist or similar. She may be assisted by appropriate rehabilitation and training".
Dr W Kemp examined the applicant upon referral from Health Services Australia Limited and reported to the respondent on 27 August 1999. In his report found at T7 he concluded "in my opinion there is no definite medical reason for occupational restriction but in view of her persistent back pain it would be reasonable to recommend that she should avoid work that involves frequent bending or lifting weights". Nonetheless, he concluded that the "outlook for recovery is not good and it is likely that her persistent symptoms will continue indefinitely".
conclusion and reasons for decision

This is an unusual application. I am moved by the age of the applicant (25 years) and note that she first qualified for Disability Support Pension in 1997 when she would then have been 23 years of age.
I note also that the period of "two years" variously referred to with respect to the assessment of impairment and incapacity for work commences at the date of primary application or the date of cancellation of benefits. In the present circumstance the decision to cancel benefit was effective from 23 September 1999. Some eight months has subsequently elapsed.
Professor Burke has largely modified opinions that he expressed in June 1999 and given a more pessimistic outlook to the applicant's capacity to return to employment. Dr McDonald on 26 June 2000 said the applicant would not return to any form of employment within two years.
Nonetheless, Professor Burke, Dr De Graff and Dr McDonald are all of the opinion (refer questionnaires) that the applicant would benefit from vocational or rehabilitation training.
In his discussions with Mr Baker on 10 May 2000 (refer file note) Dr De Graff said that Miss Clarke could not presently work, he was not able to say whether her condition was permanent, he was loathe to label Miss Clarke as "invalid" yet in his evidence to the Tribunal he said that she had the potential to improve "within 12 months".
Like Dr De Graff I am also uncomfortable with the words "stabilised" and "permanent" as they appear in the notes introducing Schedule 1B. For my part I could imagine a condition or illness or injury being "permanent" but not being "stabilised" in the sense that it might either fluctuate in severity or in the production of incapacity or there may be occasions where symptoms and ability to work could be improved.
In the absence of the notes introducing Schedule 1B I would assess the applicant presently as attracting 20 impairment points and would find that the assessment of 15 impairment points (as decided by the Social Security Appeals Tribunal) to not be appropriate. It includes a reference to an applicant being "possibly" able to undertake full-time work. I am satisfied presently that the applicant has no such capacity. In my view the opinions expressed by Doctors Harries and Kemp are harsh and I prefer the comments expressed by Doctors Burke, McDonald and De Graff who have variously treated the applicant.
In all of the circumstances I am satisfied that the applicant presently suffers from Chronic Pain Syndrome with manifestations of Fibromyalgia and Chronic Fatigue Syndrome,
I note that the applicant has undertaken extensive rehabilitation to date. I note that that rehabilitation is continuing. I would be hopeful that continuation of that treatment regime will ultimately restore the applicant into the full time work force.
I am presently satisfied that the applicant is incapable of employment even on a part-time basis yet within a period of two years from September 1999 I would be satisfied on the available medical evidence that the applicant will no longer have a "continuing inability to work" as defined under s.94(3).
In the alternative I am confident with continuing rehabilitation and support from Dr De Graff that the applicant will, within two years of September 1999, not have an impairment that would be sufficient to prevent her from undertaking educational or vocational training.
In these circumstances the decision under review should be affirmed.

I certify that the forty (40) preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:    Linda Nemeth    ............................................
                 Secretary
Date of Hearing  3 July 2000
Date of Decision  11 July 2000
Counsel for the Applicant        Not Represented
Solicitor for the Applicant
Counsel for the Respondent    Mr T Baker
Solicitor for the Respondent