Collier and Secretary, Department of Family and Community Services

[2004] AATA 739

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 739

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/1052

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARION COLLIER

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms M J Carstairs, Member

Date14 July 2004

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

..............[Sgd]............

M J Carstairs
  Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – disability support pension – applicant has an ability to work – decision affirmed

Social Security Act 1991 s 94

REASONS FOR DECISION

14 July 2004 Ms M J Carstairs, Member            

1.      This is an application by Marion Collier (the applicant) for review of a decision made by the Social Security Appeals Tribunal (the SSAT) on 3 December 2003.  The SSAT affirmed a decision of a delegate of the Secretary to the Department of Family and Community Services (the respondent) that the applicant was not qualified for disability support pension.

2.      At the hearing the applicant represented herself.  The respondent was represented by its advocate, Mr S Letch.

3. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975, numbered T1 to T28, as well as exhibits marked A1 for the applicant, and R1 – R2 for the respondent. 

BACKGROUND

4.      The applicant is aged fifty.  She has undertaken clerical work in the past, and last worked as a call centre operator, a position from which she took a redundancy payment in about 1991.  Since that time she has received Centrelink payments and is presently receiving newstart allowance.

5.      On 2 May 2003, she claimed disability support pension. Her claim was rejected.  She sought review of that decision.  However, the rejection was affirmed by an authorised review officer and by the SSAT, primarily on the basis that the applicant did not meet the necessary level of impairment when assessed under the Impairment Tables used for disability support pension.  The applicant sought review of the decision with this Tribunal on 19 December 2003.

EVIDENCE

6.      The applicant gave oral evidence that she had worked as a postal clerk until the early 1980s when she resigned as she was finding work too stressful when her children were young.  She later obtained work in the call centre.  She said that during the 1990s she took over the care of her two grandchildren, now aged three and seven.  She moved with her grandchildren to Russell Island, Queensland in early 2003. She was joined there by her ex-husband in April 2003, when she found the physical demands of caring for young children too much for her.

7.      In a written statement dated 26 February 2004 (exhibit A1), the applicant referred to her condition of benign paroxysmal positional vertigo, and said it was diagnosed in December 2002 though she now realises she had it for many years.  She said that she experienced several severe bouts in the months prior to her disability support pension claim. She said she obtained relief with a treatment plan prescribed by a physiotherapist. She noted however that vertigo prevents her from enjoying a full quality of life. The applicant said that she in never without dull pain in her head and neck and in acute phases, about twice a month, suffers nausea with the headaches.  She said in oral evidence that she believed she would be unable to work, as she would have numerous absences occasioned by headaches and pain.  She also cannot sit or stand for long, and her vision would be a problem if working with computers. She said that she is very restricted in what she can do at home, but Mr Collier undertakes those tasks that she is unable to do. She said that she had received no retraining or assistance in seeking employment whilst on newstart allowance, but she confirmed that she would like to work.

8.      Mr Collier gave oral evidence confirming that the applicant was unable to care for their grandchildren because of her physical restrictions and that he carries out most household tasks including cooking and washing. He said that she is rarely without a headache and is in bed for most of each day.

9.      On 18 March 2004 (exhibit R1), Dr R Edmonds stated that he had reviewed all medical information and he confirmed that the applicant had benign positional vertigo with tinnitus; degeneration in her cervical spine; and loss of stereoscopic vision due to permanent blindness in one eye.  He considered that she should be rated 10 points for the neck condition; 5 points for vertigo, and 5 points for loss of stereoscopic vision, giving a total of 20 points.  However he considered that the neck condition would not prevent light semi-sedentary work, and such work was within her capacity even with her loss of stereoscopic vision.  He said that the applicant was able to work full-time in a suitable light position in the clerical, retail or customer service fields.  He acknowledged that vertigo would lead to absences from work.

10.     The reports of Dr G Rolls, dated 8 July 2003 (T10), and Dr I Hadwen, dated 25 July 2003 (T19), predated the review of the file conducted by Dr Edmonds and both had rated the applicant at 15 points under the Tables.  Dr Hadwen noted the applicant had attacks of vertigo once every 1 to 2 months, which would result in occasional absences from work.  He ruled out heavy work, or work involving driving. Dr Hadwen said that vertigo was a permanent condition. He also diagnosed cervical disc degeneration, and headaches (left occipital neuralgia) with heavy or prolonged lifting and carrying.  He considered the vertigo was permanent, though the symptoms were mild to moderate.  In regard to blindness of the left eye, Dr Hadwen said that there was no significant impact on the applicant’s ability to function, as vision was normal in the other eye. Dr Hadwen stated that the barriers to employment were physical limitations concerning the type of work and work environment, and chronic pain. He stated that the applicant needed vocational assistance.

11.     Dr Hadwen summarised as follows:

“This 50 year old lady has clerical experience, leaving her last job with a redundancy payment secondary to harassment by a Supervisor.  She has good sitting posture tolerance.  Her conditions would have only a mild impact on work attendance.  This lady is fit to work 30 or more hours per week in her usual role as a Clerical worker.”

12.     In a medical report dated 2 May 2003 (T5), Dr K Steffensen, general practitioner, diagnosed the applicant’s conditions as left occipital neuralgia/headaches; vertigo/tinnitus. He said that physical therapy was the planned treatment for the headaches and neuralgia, along with daily doses of Prothiaden and Neurontin.  He stated that the condition would affect the applicant’s ability to function for a period of between 3 and 24 months, and would result in her having difficulties with lifting, tiredness, problems with concentration, and with static positions. In a medical certificate dated 3 October 2003 (T22), Dr Steffensen stated that the condition was chronic neck pain: cervical spondylosis which he said was likely to persist.

13.     In a written record of a telephone call to Dr Steffensen on 27 October 2003 (T24), the authorised review officer noted that Dr Steffensen told him that the applicant would be able to undertake light work, including administrative work. The applicant disputed that Dr Steffensen would have said this, as he had not told her about any phone call from Centrelink.  

14.     In a medical report dated 4 October 2002 (T9), Dr J Lance, consultant neurologist said that the applicant suffers from a constant dull ache in the left side of her head with monthly attacks of more severe headaches.  He said that he could find no abnormality in the nervous or other systems but thought her chronic daily headache was of the “transformed migraine type”.  He stated that her symptoms were relieved by Prothiaden.  Other medical reports which the Tribunal took into account were at T8, T27 and T28.

CONSIDERATION OF THE ISSUES

15. Section 94 of the Social Security Act 1991 (the Act) relevantly provides:

“(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 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.

(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.”

16. Mr Letch submitted that the applicant satisfied the requirement of 20 impairment points (s94(1)(b)) as evidenced by Dr Edmonds report. However, as she had a capacity to undertake light work full-time she could not satisfy s94(1)(c) of the Act. He noted that part of the applicant’s impairment was a loss of stereoscopic vision which would have minimal impact in clerical or office settings. Mr Letch submitted that Dr Steffensen agreed that the applicant could undertake light work.

17.     The applicant submitted that Dr Edmonds was not able to comment adequately upon her case as he had not examined her and merely had access to the reports of others.  She noted that in his report, Dr Edmonds referred only to the reports of Dr Rolls and Dr Hadwen and did not refer to reports of medical practitioners who had been involved in her treatment.  The applicant submitted that Dr Edmonds took insufficient account of the cumulative effect of her conditions, as he commented upon the effect of each in isolation.  She also submitted that the reports of specialists should be preferred.  She said that she would be unable to sustain work because of her reduced capacities and because her conditions would mean an unacceptable level of absences from work, and said that if retraining was a possibility, Centrelink would have approached her to do this.

18.     The Tribunal reached a decision taking into account the oral and documentary evidence and the submissions made at the hearing.  The only matter now in dispute is whether the applicant has a continuing inability to work.  The medical evidence is particularly significant in regard to this and is essentially in agreement. Dr Steffensen considered that the applicant’s condition of occipital neuralgia with headaches would affect the applicant’s ability to function for the period of 3 to 24 months (T12).  He considered that the vertigo/tinnitus would last in excess of 2 years, but he refers to it as “restriction on ability to move about when vertigo existing… (intermittent brief episodes lasting up to 1/52)… otherwise normal functioning” (T12). Dr Hadwen referred to the occipital neuralgia as presenting with mild to moderate symptoms, which were irritating but which would rarely prevent completion of any activity. He noted that the applicant’s conditions ruled out heavy lifting or repetitive work such as process work, as well as driving. Dr Edmonds report adds little but is in agreement on the conclusion that the applicant’s scope for work is restricted, and she would be absent from employment from time to time, but she is able to sustain 30 hours work per week, working within her limitations: s94(5) of the Act.

19.     The Tribunal accepts the evidence of Dr Steffensen, Dr Hadwen and Dr Edmonds, and notes that the reports of Dr Lee (T6), Dr Houang (T7), Dr Coroneo (T8) and Dr Lance (T9) do not comment on the applicant’s ability to work.  The Tribunal notes that Dr Steffensen made no comment on the applicant’s capacity to work or retrain where this was asked in the medical certificate dated 3 October 2003 (T22).  There is nothing in the reports from Dr Steffensen that suggests that the applicant has a continuing inability to work, as this is assessed under the Act.

20.     On the evidence as a whole, the Tribunal is reasonably satisfied that, at the time of the claim, in May 2003, or within three months of that time, it could not be said that the applicant had a continuing inability to work. For these reasons the Tribunal is satisfied that the applicant cannot satisfy s94(1)(c) of the Act and therefore affirms the decision under review.

DECISION

21.     The decision under review is affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member

Signed:  S Oliver

Associate

Date of Hearing  5 July 2004
Date of Decision  14 July 2004

The Applicant appeared in person
For the Respondent                  Mr Letch, Departmental Advocate