Coach and Secretary, Department of Family and Community Services

[2005] AATA 86

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 86

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/505

GENERAL ADMINISTRATIVE  DIVISION

Re:         PAUL EDWIN COACH

Applicant

And:       SECRETARY,

DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             27 January 2005

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

SOCIAL SECURITY ‑ disability support pension ‑ polycystic kidney disease ‑ hypertension ‑ urolithiasis ‑ whether 20 impairment points ‑ continuing inability to work

Social Security Act 1991 s 94(1), 94(2), 94(3), 95(5), Schedule 1B

REASONS FOR DECISION

27 January 2005  G.D. Friedman, Member

1.      This is an application by Paul Edwin Coach (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 15 March 2004.  The SSAT affirmed a decision of an authorised review officer of Centrelink dated 27 January 2004 to refuse an application for disability support pension (DSP).

2.      At the hearing on 12 January 2005 the applicant represented himself and Mr M. Todd, a Centrelink advocate, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T20), plus one exhibit (Exhibit A1) lodged by the applicant.

BACKGROUND

4.      The applicant was born on 17 October 1950.  On 5 September 2003 he lodged a claim for DSP due to polycystic kidney disease, hypertension and urolithiasis.  After a medical assessment, Centrelink refused the claim on 14 October 2003.  Although the applicant was given an impairment rating of 20 points under the Tables for the Assessment of Work‑Related Impairment for Disability Support (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act) , the applicant was considered to be able to work within the next two years.  On 27 January 2004 an authorised review officer affirmed the decision.

5.      On 9 February 2004 the applicant sought review of the Centrelink decision by the SSAT.  On 15 March 2004 the SSAT affirmed the decision on the basis that the applicant did not have an impairment rating of at least 20 points.  On 26 April 2004 the applicant lodged an application with the Tribunal for review of the SSAT decision.

6.      The issues before the Tribunal are whether the applicant’s medical condition amounts to an impairment rating of at least 20 points under the Impairment Tables and whether he has a continuing inability to work.

EVIDENCE

7.      The applicant gave oral evidence that after leaving school he joined the family graphic design business, which he helped to develop into a large and successful enterprise.  He said that in about 1990 his role in the business was terminated following family differences, and his mother was diagnosed with a serious kidney disease.  The applicant told the Tribunal that he was diagnosed with the polycystic kidney condition in 1991, and that he may require dialysis and renal transplant in the future, possibly at the age of 60 years.  He stated that his condition is monitored by medical practitioners and he takes medication for hypertension.  He said that his condition has stabilised and is under control.  In respect of urolithiasis (urinary or kidney stones) the applicant stated that acute episodes are rare, but these instances are extremely painful.  The most recent incident occurred 18 months ago.

8.      The applicant stated that although his kidney function is adequate at present, he is lethargic and suffers sleep deprivation because of the need to urinate frequently.  He said his medication causes dizziness.  He explained that he is able to undertake household tasks and drive a motor vehicle, but is unable to stand for extended periods because of tiredness.  He said that has not worked since 1990.  He has applied for a number of positions, unsuccessfully, although he does not believe that he is capable of working 30 hours per week because of the impact of his medical conditions and his inability to devote his energies to the requirements of full‑time employment.  He also stated that if he is forced to work he may require dialysis earlier than otherwise envisaged, because of the stress involved.    

9.      In a report dated 7 September 2003 (T7) Dr P. Cox, the applicant’s treating doctor, stated that the applicant’s polycystic kidney disease was diagnosed after his mother developed renal failure in 1990, and is being managed by a renal physician.  She stated that the applicant’s ability to function within the next two years is expected to deteriorate or is uncertain.  In respect of hypertension Dr Cox stated that the applicant is taking medication and the condition has no effect on his ability to function.  In respect of urinary stones Dr Cox stated that the applicant is completely incapacitated for several hours while the stones pass, but that the stones occur only infrequently.

10.     In a further report dated 18 November 2004 (Exhibit A1) Dr Cox stated that because of the applicant’s conditions he is unable to work for 30 hours per week.  

11.     In a report dated 9 October 2003 (T8) Dr L. Naumoski of Health Services Australia stated that the applicant suffers from polycystic kidney disease which may ultimately lead to renal failure, but that at present there is no significant functional impairment...  He said that the condition is currently under control, and that the only reported symptoms are tiredness, lethargy and nocturia.  He assessed the condition as having an impairment rating of 20 points under Table 20 of the Impairment Tables.  Dr Naumoski said that hypertension, which is a consequence of the kidney condition, is under control through medication, as is the urinary stones condition.  He assessed the applicant as fit for full‑time open market employment.

CONSIDERATION OF THE ISSUES

12.     Section 94 of the Act provides:

94(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;

(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system;

…

94(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 within the next 2 years; and

(b)either:

(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

…

94(3)   …In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a)the availability to the person of educational or vocational training or on-the-job training; or

(b)if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.

…

94(5)   …

"work" means work:

(a)that is for at least 30 hours per week at award wages or above; and

(b)that exists in Australia, even if not within the person's locally accessible labour market.

Schedule 1B of the Act provides:

…

4.        A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised…

TABLE 20      MISCELLANEOUS ‑ MALIGNANCY, HYPERTENSION, HIV INFECTION, MORBID OBESITY (IE BMI >40), HEART/LIVER/KIDNEY TRANSPLANTS, MISCELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN

Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension.  Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used.  Double-counting of a particular loss of function, by the use of more than one Table, must be avoided.

Rating  Criteria

NILControlled hypertension.

Malignancy in remission with a good to fair prognosis.

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

TENMild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity.  Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks.  There is minimal effect/impact on work attendance.

Hypertension that is difficult to control despite intensive therapy but without end-organ damage.

Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis.

Heart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms.

FIFTEENModerate 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.

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

THIRTY                 Very severe symptoms which lead to substantial difficulty with most daily tasks.  Assistance with elements of self-care may be required.  Symptoms cause severe interference with ability to work or attend work (ie. minimal residual work capacity).

Heart/Liver/Kidney transplants - poorly controlled (poorly functioning) with fairly severe symptoms which lead to substantial difficulty with most daily tasks.

Malignant hypertension - severe, uncontrolled.

Inoperable, symptomatic and life-threatening aneurysm or malignancy. Very poor prognosis with only a very limited lifespan.

FOURTYMajor restrictions in many everyday activities.  Capacity for self-care is restricted, leading to dependence on others.  No residual work capacity.

13. Mr Todd submitted that at the date of the claim for DSP, or within 13 weeks of that date (the relevant period), the applicant did not have an impairment of 20 points or more under the Impairment Tables. He stated that Dr Naumoski’s assessment of a rating of 20 impairment points was inconsistent with the opinion that the condition of polycystic kidney disease was under control and that there were no serious symptoms that affected the applicant’s ability to function. He suggested that a nil rating for this and the other conditions was appropriate in this instance, and that the applicant did not satisfy s 94(1)(b) of the Act. Mr Todd also submitted that the applicant did not have a continuing inability to work (s 94(1)(c) of the Act).

14.     In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. 

15.     In respect of polycystic kidney disease, the Tribunal accepts the evidence from Dr Cox and Dr Naumoski that the condition is a potentially serious one that might result in renal failure and the need for a transplant, but that the condition is currently under control, although the applicant has attributed lethargy, poor stamina and nocturia to the kidney disease.  The Tribunal notes that Dr Naumoski reports no significant functional impairment due to the illness, and Dr Cox reports that the condition is expected to deteriorate or its future is uncertain within the next two years.  On the applicant’s own evidence he is able to perform household tasks and drive a motor vehicle.  For these reasons, the Tribunal accepts the submission from Mr Todd that, in the relevant period, there has not been a loss of function that would attract a rating of 20 points.  The Tribunal assigns a rating of nil points under Table 20 of the Impairment Tables.  Assessment under Table 19 Renal Function is not appropriate.   

16.     In respect of hypertension the Tribunal notes that both Dr Cox and Dr Naumoski are of the view that the condition is controlled appropriately with medication and has had a minimal effect on the applicant’s ability to function.  The Tribunal assigns a rating of nil points under Table 20 of the Impairment Tables.  In respect of urinary stones the Tribunal accepts the medical evidence that the applicant is incapacitated for several hours while the stones pass, but that the condition occurs infrequently.  The Tribunal notes that at the time he was examined by Dr Naumoski the applicant was symptom‑free.  The Tribunal assigns a rating of nil points under Table 20. 

17. Consequently, during the relevant period the applicant did not have an impairment rating of 20 points or more under the Impairment Tables. As a result, the applicant does not satisfy s 94(1)(b) of the Act, and cannot satisfy s 94(1). Therefore, the Tribunal does not need to consider whether the applicant had a continuing inability to work under s 94(1)(c) of the Act.

DECISION

18.     The Tribunal affirms the decision under review.

I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  12 January 2005

Date of decision:  27 January 2005
Advocate for applicant:                Self‑represented
Advocate for respondent:            Mr M. Todd, Centrelink