Cornett and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1537
•11 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1537
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600279
GENERAL ADMINISTRATIVE DIVISION ) Re ROBERT NEWTON CORNETT Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Senior Member R W Dunne Date11 July 2007
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – claim for Disability Support Pension – physical, intellectual or psychiatric impairment – conditions diagnosed but not fully investigated, treated and stabilised – total impairment rating less than 20 points – decision affirmed
Social Security Act 1991 s 94
REASONS FOR DECISION
11 July 2007 Senior Member R W Dunne 1. The applicant (Robert Cornett) lodged a claim for Disability Support Pension (“DSP”) with the respondent (“Centrelink”) on 13 January 2006, which was accompanied by a treating doctor’s report from Dr R M Hambour. Following a medical assessment by a Centrelink psychologist, the claim was rejected on 9 March 2006 on the basis that Mr Cornett’s conditions did not rate 20 points or more as required under s 94(1)(b) of the Social Security Act 1991 (“Act”). The original decision-maker reviewed his decision and, on 12 May 2006, concluded that the decision was correct. The decision was affirmed by an Authorised Review Officer on 23 June 2006. On 28 June 2006, Mr Cornett applied to the Social Security Appeals Tribunal (“SSAT”) for review of Centrelink’s decision and, on 19 July 2006, the SSAT affirmed the decision under review. On 24 August 2006, Mr Cornett applied to this Tribunal for a review of the decision of the SSAT.
2. At the hearing, Mr Cornett represented himself and Mr Christian Goldsworthy (from Centrelink Legal Services Branch) appeared for the respondent. The applicant alone gave evidence and there were no witnesses for the respondent. The T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal and are referred to in these reasons as Exhibit R1. Although not tendered, the Tribunal also had before it with the T documents the following medical reports:
· report of Dr D Leong, Cardiology Registrar at the Royal Adelaide Hospital, dated 14 August 2006; and
· report of Dr R M Hambour, General Practitioner, dated 3 January 2007.
3. In his claim for DSP, Mr Cornett listed his medical conditions as:
·poor eyesight (1992);
·arthritis in his left knee (1996);
·heart attack (1998);
·angina (current);
·anxiety; and
·Raynaud’s disease.
4. The treating doctor’s report dated 29 December 2005 (Exhibit R1, T4 at pages 19-23) made the following points about Mr Cornett’s medical conditions:
(a)He experienced anxiety symptoms (panic attacks), related to a myocardial infarction he suffered in 1998. The symptoms occurred especially when he was under any form of emotional stress and created fear, sweating, tachycardia and weakness. His concentration and memory were affected and he was unable to perform in front of groups.
(b)He suffered the myocardial infarction in 1998. His physical condition has been stable since then, but he suffered psychological sequelae. He was anxious about his cardiac status and was reluctant to be physically active because of his anxiety.
(c)He suffered arthritis in the left knee. Walking was painful at times, as was squatting and other physical activities.
5. In his assessment dated 3 March 2006, the Centrelink psychologist (Dr J Tucsok) was unable to comment on the applicant’s myocardial infarction. However, he noted that the applicant’s treating doctor had rated this condition as “stable” with “psychological sequelae”. As such, it appeared the treating doctor was suggesting that the functional impairment resulting from the applicant’s physical condition was not significant, but rather it was the psychological symptoms that had emerged, as a result of the physical condition, that were causing a functional impairment. Therefore, he viewed the condition as temporary. As to the history of anxiety, Dr Tucsok noted that the applicant was not receiving any treatment for his psychological condition and that it must be considered temporary.
issues for the tribunal
6. The issues for the Tribunal, under s 94 of the Act, are:
·whether Mr Cornett had a physical, intellectual or psychiatric impairment;
·whether the impairment rated at least 20 points under the Impairment Tables contained in Schedule 1B of the Act; and
·whether Mr Cornett had a “continuing inability to work” within the meaning of ss 94(1)(c) and 94(2) of the Act.
legislation
7. Entitlement to DSP is to be found within the provisions of s 94 of the Act, which is reproduced relevantly as follows:
“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; and
(d) the person has turned 16; and
(e) the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident.
Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2: For Impairment Tables see section 23(1) and Schedule 1B.
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.
Note: For work see subsection (5).
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) In this section:
educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
on‑the‑job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
work means work:
(a)that is for at least 30 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
…”
background and evidence of applicant
8. Mr Cornett is 63 years of age. He ran a picture framing business from 1993 until 1998, when he suffered a heart attack. Following the attack, he found that he could not work more than 20 hours a week, so he sold the business 2½ years ago. He is registered as unemployed with “DOME”, but has had no response from that organisation. He said he was not educated, hated school and was computer illiterate. However, he said he had told people that he wanted to work. He did voluntary work, but this was different from paid employment, where there was the requirement to perform. He said he was worn out mentally and physically and that, at 63 years of age, it was natural for him to feel worn out. His daughter had experienced substance use problems in the 1980s, which had lasted for 12 years. Following his heart attack, he found that he had to “do things gently”. He did little gardening and no other physical activities. However, he did volunteer work with Operation Flinders Foundation Inc, which undertook fund raising activities and assisted young people in the community. He said he suffered from anxiety, but had found ways to deal with stress – he would simply walk away from stressful situations. Although it had been difficult in the past for him to socialise, he found that he was able to interact freely with people involved in volunteer work. He also found that he was able to socialise and interact with other volunteers and participants in Variety Club “bashes”.
9. Mr Cornett referred to the report of Dr P Clarke, psychiatrist (Exhibit R1, T21 at page 68). He said he felt the issues that had been considered by Dr Clarke had not been adequate to support his claim for DSP. As such, he found that he did not trust Dr Clarke’s opinion. Although Dr Clarke had recommended that he obtain an opinion from his cardiologist, Dr Steele, Mr Cornett said he found that it was difficult to do so and gave up trying. He said that he had a previous medical report from Mr Norman Shum, Consultant Physician. However, Mr Shum was not prepared to provide a further updated report.
10. Mr Cornett said he was “asset rich”. He owned a warehouse which generated rent of $22,000 per annum. However, he said that, because of his medical conditions, he believed he was also entitled to DSP.
medical evidence
11. In addition to the treating doctor’s report (from Dr Hambour) and the medical assessment (from Dr Tucsok), the T documents contained medical reports from Dr D Leong, Cardiology Registrar at the Royal Adelaide Hospital, dated 22 May 2006 (Exhibit R1, T19 at page 65), from Dr D Teague, Orthopaedic Surgeon, dated 1 June 2006 (Exhibit R1, T18 at page 64) and from Dr P Clarke, Psychiatrist, dated 15 June 2006 (Exhibit R1, T21 at page 68). These reports were in addition to the reports of Dr Hambour and Dr Leong referred to in paragraph 2 of these reasons.
Report of Dr D Leong
12. In his report, Dr Leong referred to rapid but brief episodes of palpitations which the applicant had suffered for up to a year, and to a recent prolonged episode of palpitations. The episodes were not associated with chest pain or syncope. In his later report dated 14 August 2006, Dr Leong stated that, since his last review, the applicant “has not had any prolonged episodes of palpitations and remains fairly well”.
Report of Dr D Teague
13. Dr Teague noted the referral to him of the applicant by Dr Hambour and to the complaint of left knee and right hip/back pain. He said that this had largely resolved and been eclipsed by a more recent injury when he dropped a log on his left foot. In commenting on the applicant’s conditions, Dr Teague said:
“…
Clinical examination reveals that he has a good range of right hip movement but a positive FADIR sign which would imply that he has early impingement osteoarthritis with probably an abnormal shape of the right femoral neck. There is nothing to be done about this at this stage though it probably predisposes him in the long term to osteoarthritic change in the joint. If the joint becomes more painful or stiffness is predominating then xrays of both hips would be appropriate.
His left knee has a full range of movements, normal stability and normal patello-femoral movement. He has no effusion. He is a little tender over the medial joint line under his scar from his former surgery back in 1986. However McMurray’s manoeuvre is negative.
His left foot is swollen and bruised particularly over the second and third metatarsal shafts. He is a little reluctant to flex the toes at the MTP joints of the second third and fourth toes.
There is no sign of any facture here. Alignment of the bones is good and tenderness is more local consistent with subperiosteal bruising and haematoma rather than fracture. No xray is required at this stage.
…”
Report of Dr P Clarke
14. Dr Clarke noted that the applicant had also been referred to him for consultation by Dr Hambour. Dr Clarke opined that the applicant suffered with panic disorder, with agoraophobia, social phobia and ischaemic heart disease. His impression was that the applicant tended to minimise various problems and issues. He noted that the applicant had declined antidepressant treatment at that stage. With regard to the claim for DSP, Dr Clarke recommended an opinion be obtained from his cardiologist, Dr Steele.
Report of Dr R Hambour
15. In the most recent medical report before the Tribunal (dated 3 January 2007), Dr Hambour has said:
“The following medical information is provided for an appeal concerning qualification for Disability Support Pension for the abovenamed.
On 13 January 2006 Mr Cornet [sic] had and continues to have physical and psychological impairments. The conditions are permanent.
He has early arthritis in his right hip and left knee which causes moderate interference with walking, climbing and squatting. My assessment of the impairment under the Impairment Table 4 is a rating of 10.
He suffers from ischaemic cardiac disease associated with a regional wall abnormality and frequent palpitations. He has reduced effort tolerance and experiences dyspnoea and fatigue with exertion. My assessment of the impairment is that he has a Symptomatic Activity Level of 6-7 with a rating of 5 under Impairment Table 1.
He suffers from a chronic anxiety disorder with moderate and regular symptoms of anxiety and panic attacks. These cause a noticable [sic] reduction in social contacts and some interference with interpersonal relationships. My assessment of the impairment under the Impairment Table 6 is a rating of 10.
The impairments themselves prevented Mr Cornett from doing his usual work or other work for which he is skilled or capable of, for at least 2 years.
The impairments prevented Mr Cornett from undertaking educational or vocational training during the next two years.
No further tests or specialist opinion are necessary to complete this report.”
consideraton
Does Mr Cornett have a physical, intellectual or psychiatric impairment?
16. In order to qualify for DSP, the applicant must satisfy the relevant requirements of s 94(1) of the Act. The evidence before the Tribunal is that Mr Cornett suffers from myocardial infarction, arthritis of the left knee and anxiety. The Tribunal is satisfied (and, it is understood, the respondent accepts) that Mr Cornett has a physical, intellectual or psychiatric impairment within the meaning of s 94(1)(a) of the Act.
Do Mr Cornett’s impairments rate at least 20 points under the Impairment Tables?
17. The second requirement in s 94(1) is that Mr Cornett’s medical conditions must attract an impairment rating of at least 20 points under the Impairment Tables set out in Schedule 1B of the Act (see s 94(1)(b) of the Act). The introduction to the Impairment Tables relevantly provides (in paragraphs 4, 5 and 6):
“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. On the evidence before it, the Tribunal agrees with the findings of the SSAT. The Tribunal is satisfied that Mr Cornett’s myocardial infarction has been fully diagnosed, but has not been fully investigated, treated and stabilised. The Tribunal is not able to allocate points from the Impairment Tables in respect of this condition. The Tribunal is also satisfied that Mr Cornett’s anxiety has been fully diagnosed, but has not been fully investigated, treated and stabilised. The Tribunal is not able to allocate points from the Impairment Tables in respect of this condition. The Tribunal is not satisfied that Mr Cornett’s arthritis has been fully diagnosed, investigated, treated and stabilised, nor is the condition of a severity at this stage to allocate it points from the Impairment Tables. In these circumstances, Mr Cornett’s combined rating under the Impairment Tables, in respect of the impairments that have been considered, is nil. The Tribunal come to this conclusion, notwithstanding the report provided by Dr Hambour. The Tribunal is also satisfied that, on the evidence, none of the other medical conditions listed by Mr Cornett in his claim for DSP require its consideration.
Does Mr Cornett have a continuing inability to work because of the impairments?
19. Given the Tribunal’s finding in relation to s 94(1)(b) of the Act, it is unnecessary to consider whether Mr Cornett has a continuing inability to work within the meaning of s 94(1)(c)(i) and s 94(2).
20. The Tribunal has sympathy for the applicant and the predicament in which he finds himself. However, it is noted that several of the medical reports before the Tribunal contain recommendations regarding further medical information or opinions that might be of assistance to the applicant in re-applying for DSP.
decision
21. 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 Senior Member R W Dunne
Signed: .............J Coulthard.........................................
AssociateDate of Hearing 17 April 2007
Date of Decision 11 July 2007
Representative for the Applicant In personAdvocate for the Respondent Mr C Goldsworthy
Centrelink Legal Service Branch
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