Copson and Secretary, Department of Employment and Workplace Relations

[2005] AATA 1315

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1315

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 2005/459

GENERAL ADMINISTRATIVE DIVISION		)
Re		ELIZABETH  COPSON

Applicant

And SECRETARY, DEPARTMENT
OF EMPLOYMENT AND
WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms M J Carstairs, Member

Date12 December 2005

PlaceBrisbane

Decision For reasons given orally at the hearing the Tribunal affirms the decision under review.

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

M J Carstairs
  Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – impairment tables – less than 20 points – no longer eligible for pension – decision affirmed.

Social Security Act 1991 s94(1)

McDonald and Director- General Social Security (1984) 1 FCR 354

WRITTEN REASONS FOR ORAL DECISION

6 January 2006   Ms M J Carstairs, Member   

1.      Elizabeth Copson has received disability support pension since 2001.  Mrs Copson has a thirteen year old daughter and has been involved in caring for her and the household since she was born.  She has not worked in that time.

2.      In 2005 her disability support pension was reviewed as is part of Centrelink’s usual practice for disability support pensioners.  Her general practitioner was consulted and a report was produced.  Then an assessment of all the issues involved was carried out by a rehabilitation consultant, Ms J Godfrey and on the basis of her report the pension was cancelled with effect from 5 May 2005.

3.      Mrs Copson says that this is wrong; that she should not have her pension cancelled except after having been referred to a doctor - not merely to a rehabilitation consultant.  The difficulty with this is that there is no requirement before cancelling a person’s disability support pension that Centrelink have ensured that the recipient has been seen by a doctor.  Mrs Copson cannot succeed on this point.

4.      It is necessary therefore to look at what issues are entailed in a person being entitled to disability support pension.  Firstly, the person must be impaired to the level of 20 impairment points under the Tables for the Assessment of Work-related Impairment (the Tables) and, secondly, they must have a continuing inability to work.  The major issue for Mrs Copson is that she did not achieve a rating of 20 points when she had been re-assessed in 2005, though evidently she did when she was granted the disability support pension four years ago.

5.      This raises another important matter in taking into account the care that must be exercised in cancellation cases:  McDonald and Director- General Social Security (1984) 1 FCR 354.

6. Section 94 of the Social Security Act 1991 (the Act) relevantly 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;

…

7.      I took into account that Mrs Copson’s evidence about her capacities when working in the home and for mobilising generally was consistent with what she told the SSAT and I have no reason to doubt that she is speaking truthfully when she describes her limitations.  She spoke openly about her past surgery and the fear that she has of facing hospital again.  However, it appears from the medical evidence that no matter how disturbing her earlier hospital experiences, Mrs Copson has made a good recovery from the surgical procedures themselves.  

8.      At the time of the cancellation decision in April 2005, Centrelink had the benefit of a report from Dr S  Chupungco, Mrs Copson’s treating doctor, and I had the benefit of an additional report dated 26 September 2005.  Dr Chupungco also had provided a report dated 17 May 2001.  The reports  consistently show that there are two relevant medical conditions:

§Hip pain with osteoarthritis

§Asthma

9.      Dealing with the second of these, on all the reports of Dr Chupungco the only rating that could be ascribed is Nil because the condition is quite well managed by medication.  Dr GK Ballanden, medical practitioner with Health Services Australia, agreed with this in 2001 (R1) when Mrs Copson first applied for disability support pension. 

10.     I accept all the medical evidence that the condition of asthma is being controlled by medication and thus having a reduced impact on Mrs Copson’s day-to-day life.  There is no other evidence available to disturb that conclusion and it seems appropriate to rate that condition under Table 21 in the absence of lung function tests having been undertaken – which might have raised other Tables for consideration.  Nothing in the evidence of Dr Chupungo suggests that a higher rating is warranted.  She said:

patient has mild-moderate asthma controlled on inhalers.  Asthma exacerbations usually dure to URTI. (R4)

11.     The more complex question is in regard to Mrs Copson’s hip.  This is a more complex question because Dr GK Ballenden clearly thought that it rated 20 points five years ago.  However, I noted that his report (R1) gave no insight to his reasoning processes on that point.  I took into account that the evidence from Dr Chupungco now does not support that view.  She referred to continuing left hip pain and early degenerative changes and x-rays in August 2003.

12.     I must give weight to the treating doctor, Dr Chupungco, who seeing the patient regularly, is in the best position to speak.  Her comments were consistent with the x-ray results at T31 where it was noted:

..previous history of septic arthritis left hip joint.

Findings: The bones appear to be of normal density for the patient’s age.

No acute fracture or dislocation is demonstrated.

A sclerotic band across the proximal femoral neck is suggestive of a previous injury and should be correlated clinically.

There is no evidence of joint effusion.

Both SI joints are normal in appearance.

COMMENT: EARLY OA CHANGES ARE SEEN AT THE LEFT HIP. NO ACUTE FRACTURE OR DISLOCATION IS DEMONSTRATED.

13.     I accept that Mrs Copson has had surgery and has been told she must take care and is inevitably a candidate for hip replacement.  But that is in the future, not now, and the entitlement to disability support pension rests firmly in the present. 

14.     I took into account that the medical evidence supports a rating no higher than 10 under Table 4.  The description at that level provides:

TEN

Demonstrable loss of strength, mobility, stability, balance, coordination 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 250-500m or less, at a slow to moderate pace (4km/h).  Can walk further after resting.

15. Based upon current medical evidence Mrs Copson does not meet the requirements of s94(1) of the Act.

16.     On her presentation at the hearing it was clear that Mrs Copson is very distressed and she told me that her distress has increased since her pension was cancelled.  This was confirmed by Dr Chupungco in his report at R4 (26 September 2005) where she commented on Mrs Copson’s anxiety and depression since May 2005 with symptoms of headaches, nausea, vomiting and insomnia.  Mrs Copson said that she has seen Dr Cook, psychiatrist and is seeing a counsellor as well, to talk issues through.

17.     The Introduction to the Tables in Schedule 1B to the Act  provides, in part:

…

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 …

5.        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 2 years.

6.        In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

what treatment or rehabilitation has occurred;

whether treatment is still continuing or is planned in the near future;

whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

18.     There may be a psychiatric component that has not been assessed in Mrs Copson’s case.  That is far from clear.  As the Introduction to the Tables makes plain, whether there is a medical condition that can be rated at all cannot be addressed while reasonable treatment is still being undertaken.  Mrs Copson is still in treatment with her counsellor and there is no medical evidence to presently suggest  that she will not respond to treatment.  I explained to Mrs Copson that the issue of any impairment arising from a condition that is found to be present after the cancellation of her pension would require that she make a new claim. 

19.     It seems to me that on the state of the medical evidence at the time no conclusion could be reached other than that  Mrs Copson’s pension should be cancelled.  Having looked at the earlier medical evidence upon which it was decided to grant Mrs Copson’s initial claim in 2001– that is, reports by Dr Chupungco and Dr Ballandean – the decision to grant Mrs Copson initial claim seems to have been a generous one.  Dr Ballenden made a favourable assessment of 20 points under Table 4 at that time.  However, nowhere does Dr Ballandean explain his clinical assessment of Mrs Copson  meeting the requirements of 20 points.  His conclusion seems to me to be at odds with what Dr Chupungco said of the condition at that time (R2) where she described on and off hip pain and indicated few restrictions under questions on “Work Ability”. 

20.     At the start of 2005, based on the medical evidence, no decision was open other than that there was no entitlement to disability support pension, and Mrs Copson’s pension should be cancelled. 

DECISION

21.     For reasons given orally at the hearing the Tribunal affirms the decision under review.

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:         Jeff Mills
  Legal Research Officer

Date/s of Hearing  12 December 2005
Date of Request for Written Reasons       4 January 2006
Date of Written Reasons  6 January 2006        
The Applicant was unrepresented
For the Respondent  Ms J Forsyth, Departmental Advocate