Cremer and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1356
•23 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1356
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/880
GENERAL ADMINISTRATIVE DIVISION ) Re LINDA CREMER Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date23 May 2007
PlacePort Macquarie
Decision The decision under review is set aside and in substitution therefor the Tribunal decides that by 6 February 2006, the Applicant had an impairment such as to entitle her to the disability support pension as a result of her claim of 7 November 2005.
................[sgd]........................
Ms N Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY - disability support pension – physical impairment – entitlement to disability support pension – whether the Applicant had an impairment rating of 20 points or more under the impairment tables – whether the Applicant had a “continuing inability to work” – decision under review is set aside
LEGISLATION
Social Security Act 1991 - section 94 and Schedule 1B
Social Security (Administration) Act 1999 – Schedule 2, clause 4
Administrative Appeals Tribunal Act 1975 – section 37
CASELAW
Freeman v Secretary, Department of Social Security (1988) 15 ALD 671
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467
Re Rudder and Secretary, Department of Employment and Workplace Relations [2006] AATA 249
Re Newman and Secretary, Department of Family and Community Services (2002) 71 ALD 222
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517
Re Triantafillou and Secretary, Department of Family and Community Services (2003) 73 ALD 568
REASONS FOR DECISION
23 May 2007
Ms N Isenberg, Senior Member
DECISION UNDER REVIEW
1. Mrs Cremer’s claim for a disability support pension (DSP), made on 7 November 2005, was rejected by Centrelink. While Centrelink, on behalf of the Secretary of the Department of Employment and Workplace Relations, agreed that Mrs Cremer suffers from several conditions, Centrelink did not agree that her various impairments attract the required 20 point impairment rating under the Impairment Tables contained in the Social Security Act 1991 (the Act). Nor did Centrelink agree that Mrs Cremer meets the other requirement of eligibility for a DSP, that is, a continuing inability to work. These requirements are set out in section 94 of the Act. At the time the decision was made to reject Mrs Cremer’s application for the DSP, the requirements in section 94 were as follows:
“94 Qualification for disability support pension
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;
…
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.
…”
BACKGROUND
2. Mrs Cremer was born on 22 January 1963. She left school at 15 to help her mother run a Post Office agency. At the conclusion of the Post Office contract, Mrs Cremer had a Jobstart placement for 6 months with the National Parks and Wildlife Service, and another as a kitchen hand at a restaurant. She worked again as a kitchen hand at a private hospital, and continued to work until her daughter was born about 12 years ago. Mrs Cremer has not worked since.
ISSUES BEFORE THE TRIBUNAL
3.The issues to be determined are:
a)Does Mrs Cremer have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables in Schedule 1B of the Act; and, if so,
b)Does she have a continuing inability to work due to her impairment because:
· the impairment of itself prevents her from doing any work for at least 30 hours per week at award wages within the next two years; and either
· the impairment of itself is sufficient to prevent her from undertaking educational or vocational training or on the job training during the next two years; or
· such training is unlikely (because of the impairment) to enable her to do any work for at least 30 hours per week at award wages within the next two years.
CONSIDERATION PERIOD FOR ENTITLEMENT TO DSP
4. Schedule 2, clause 4 of the Social Security (Administration) Act 1999 provides that the relevant time to consider a person’s entitlement is during the 13 weeks after the claim. Therefore, I had to consider if Mrs Cremer was entitled to the DSP between 7 November 2005 and 6 February 2006.
EVIDENCE
5. In addition to the documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975, further documents were tendered. These documents included:
· A Job Capacity Assessment (JCA) Report, completed by Ms Fiona Brennan, dated 29 January 2007;
· A letter from Mr Chris Reynolds, dated 20 April 2007, in relation to the JCA; and
· An undated report from Dr Stephen Young.
6. Mrs Cremer gave evidence and was cross-examined on behalf of Centrelink. I also asked her questions. Mr Reynolds, a JCA Consultant, also gave evidence.
7. I asked Mrs Cremer to specifically comment on her conditions as at the date of her application for the DSP, and in the 13 weeks thereafter, rather than her current symptoms. This approach is consistent with that in Freeman v Secretary,Department of Social Security (1988) 15 ALD 671.
CONSIDERATION OF THE EVIDENCE AND FINDINGS
8. In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.
9. I will address the first issue, her impairment rating, by examining each of Mrs Cremer’s conditions in the context of the Impairment Tables.
Did Mrs Cremer have a physical, intellectual or psychiatric impairment of 20 points or more by 6 February 2006?
Abdominal pain
10. Mrs Cremer gave evidence of suffering severe abdominal pain, which has been the major impediment to her working since 2001, following her hysterectomy. To walk or stand for extended periods is “pure agony”. It is an effort for her to vacuum, make beds and to scrub the bathroom. She is unable to hang out washing or to stand when cooking a meal. When walking, she needs to stop and rest. She was able to slowly walk to the hearing from the nearby car park.
11. Mrs Cremer also had an operation for obstructive bowel in 2004, and was hospitalised for 6 weeks.
12. It was not until March 2006 that Mrs Cremer was referred to Dr Hodgson, a gynaecologist. Dr Hodgson was of the view that her abdominal problems were probably associated with lesions that developed following her hysterectomy in 2000-2001. He referred to a 2003 laparoscopy which identified pelvic lesions. Mrs Cremer said Dr Hodgson’s advice was that operating would only exacerbate the condition.
13. In view of Dr Hodgson’s observations that the condition was expected to continue for at least 24 months, the Secretary did not press its contention that Mrs Cremer’s abdominal pain was not a permanent condition. Instead, it was submitted that the condition attracted a rating of 10 impairment points under Table 20.
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
…
Rating Criteria
NIL Controlled 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.
14. On balance, I consider that it is appropriate to allocate 10 points in respect of Mrs Cremer’s abdominal pain under Table 20. Subsequent to Dr Hodgson’s advice, Table 22 in respect of gynaecological conditions may have been more relevant. In any event, a rating of 10 points would have been appropriate under that Table in lieu of Table 20. A rating under both Table 20 and Table 22 is not appropriate: see paragraph 7 Introduction to the Impairment Tables.
Back pain
15. Mrs Cremer gave evidence of suffering pain in her lower back, which has also caused pins and needles in her legs. She has had these problems since about 2001. Dr Young referred her to a “chiropractor” who declined to treat her. Instead, she applies dencorub, takes an arthritis drug daily and panadol as needed. She has had about four X-rays of her back. The pain prevents her from standing at the sink and playing with her children, other than for board games and craft. She is largely unable to differentiate between the pain in her abdomen and the pain in her back. In cross-examination Mrs Cremer agreed that her condition had become worse since July 2006.
16. In a Treating Doctor’s Report (TDR) dated 12 December 2005, Dr Young made no mention of the condition. However, in a TDR dated 17 February 2006, only a few weeks later and marginally outside the period under review, Dr Young noted that Mrs Cremer’s lumbar condition had been present for a number of years, producing pain on standing and sitting. As a result, he found Mrs Cremer unable to bend, lift or stand for more than 10 minutes. The condition was expected to last for more than 24 months, but he was uncertain as to the effect on her ability to function in the next 2 years.
17. When examined by Dr Wassenaar on behalf of Centrelink, Mrs Cremer was found to have a near normal range of movement in her lower back. Dr Wassenaar noted mild symptoms with prolonged sitting. Because Dr Young had not mentioned the condition in the initial TDR dated 12 December 2005, the condition was considered to be only temporary, and was not rated. The Authorised Review Officer did not adopt this approach, having regard to Dr Young’s 17 February 2006 report.
18. Mr Reynolds gave evidence that when he assessed Mrs Cremer in November 2006, he rated her back condition, at that time, at 10 impairment points under Table 20 in relation to chronic pain. He noted that she had told him of deterioration in her back symptoms in recent months; that is, after the period under review. He considered that prior to the deterioration her condition would have attracted a rating of zero under Table 5.2. This was because of Dr Wassenaar’s observations of her near normal range of movement.
19. On balance, because of her near normal range of movement at the relevant time, I consider that it is appropriate to allocate zero points in respect of Mrs Cremer’s back pain under Table 5.2 as follows:
TABLE 5.2 Thoraco—lumbar‑sacral spine
As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.
Rating Criteria
NILNormal or nearly normal range of movement.
…
Reflux
20. Mrs Cremer gave evidence of suffering a condition which she described as a “stomach ulcer”. She said that it is well controlled by medication, but she is careful in what she eats, avoiding greasy and spicy food, and also lettuce. If she misses her daily medication, she immediately experiences bloating and vomiting.
21. In his TDR dated 12 December 2005, Dr Young described her condition as gastro-oesophageal reflux disease (GORD), and noted her acute reflux for which medication is prescribed. In another TDR dated 17 February 2006, Dr Young did not mention the condition at all.
22. When Mrs Cremer was examined by Dr Wassenaar on behalf of Centrelink, the condition was found to produce mild symptoms only and was under control with medication.
23. Mr Reynolds assessed Mrs Cremer’s condition on 9 November 2006 at 10 impairment points, regarding the condition as producing moderate symptoms, despite optimal treatment.
24. I consider that it is appropriate to allocate zero points in respect of Mrs Cremer’s GORD under Table 11.1 as follows:
TABLE 11.1 Gastrointestinal: Stomach, Duodenum, Liver and Biliary Tract
Rating Criteria
NIL Peptic ulcer/oesophagitis/liver disease: mild symptoms despite optimal treatment.
…
25. In coming to this view I note Mrs Cremer’s evidence that her symptoms are well controlled, provided that she takes her prescribed medication and is careful about her diet.
Depression
26. Centrelink contended that Mrs Cremer’s depression was a temporary condition at the time of claim. The main reason was that the condition had not been fully diagnosed, treated and stabilised within 13 weeks of her claim for the purpose of the Impairment Tables. Centrelink contended that the claim form lodged by Mrs Cremer on 7 November 2005 made no specific reference to depression when listing her disabilities, illnesses or injuries. While this may be so, Mrs Cremer clearly remembered that she was taking anti-depressants at that time.
27. A DSP applicant’s functional impairment point rating must be determined “under the Impairment Tables”: s 94(1)(b) of the Act. The Introduction to the Impairment Tables (Introduction) in Schedule 1B of the Act, governs the way the Tables are to be applied. Paragraphs 4, 5 and 6 of the Introduction explain the extent to which adequacy of treatment, and the stability of an applicant’s condition, are particularly relevant considerations in the application of the Impairment Tables. Those paragraphs (with emphasis added) are in the following terms:
“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. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
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.
In this context, reasonable treatment is taken to be:
·treatment that is feasible and accessible ie, available locally at a reasonable cost;
·where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:
·evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
·indicate why this treatment is reasonable; and
·note the reasons why the person has chosen not to have treatment.
…”
28. The Introduction requires that an applicant’s condition must be “fully diagnosed (and) treated” before the Impairment Tables can be applied to assign an impairment rating: paragraphs 4 and 6. Assessment that a condition has been fully treated involves consideration of past, continuing, planned and “further reasonable medical treatment”: paragraph 6.
29. The Introduction also requires that the applicant’s condition be “permanent” - in the sense of being more likely than not to persist for the foreseeable future – before it can be assigned a rating: paragraph 5. But a diagnosed “permanent” condition must also be “stabilised” in relation to any associated functional impairment before an impairment rating can be assigned: paragraphs 4 and 6. A condition is to be treated as “fully stabilised” if “significant functional improvement” is unlikely to occur within two years: paragraph 5. A consequence of this stability requirement is that a diagnosed condition may be permanent, in the sense that it is “more likely than not that it will persist”, and yet not be “stabilised”. This will be the case where the impairment related to the condition may be such that significant functional improvement within two years is not regarded as unlikely.
30. Mrs Cremer told me that she had been depressed since her mother died in 1999, at which time Dr Young prescribed effexor. She has continued with that medication, albeit with increasing doses. She said that Dr Young told her that if she went off the medication she would be “a real mess”. She said that her condition deteriorated when her father died in 2004 while she was in hospital, and did not have the opportunity to “say goodbye” to him. She avoids situations which might distress her, especially related to her family. She has sought Lifeline counselling a few times when she has been particularly low. Because of her medical conditions she feels “like a has-been” and “useless”, especially where her kids are concerned. Sometimes she “feels like exploding” and will go across from her home to the nearby lookout to compose herself. She relies extensively on her husband for emotional support. She and her mother used to spend a lot of time together, crocheting and knitting, but since her mother’s death she cannot bring herself to do that anymore. She spends much of her day lying on the bed reading.
31. Dr Young’s TDR of 12 December 2005 referred to the condition. Dr Young noted that the depression caused Mrs Cremer to sleep poorly, and that it had an effect upon her concentration. He also considered that significant improvement was to be expected. (I do not draw any adverse conclusion from Dr Young’s failure to mention depression in his TDR dated 17 February 2006, as he had only a short time before made a clear reference to the condition.)
32. In her report of 19 January 2006, Dr Wassenaar noted Mrs Cremer’s symptoms of teariness and being easily upset. She also noted Mrs Cremer’s loss of concentration and emotional lability. However, on the day of the assessment she had presented with no evidence of significant psychiatric disorder. Dr Wassenaar goes on to say that Mrs Cremer has had “basic but not definitive treatment”. Dr Hodgson, in his TDR of 25 May 2006, did not expect significant improvement.
33. In his undated report, Dr Young mentions that Mrs Cremer’s depression has been ongoing since 2001. He also noted that Mrs Cremer is taking anti-depressants, as well as receiving both supportive psychotherapy and Cognitive Behavioural Therapy (CBT). This is in conflict with the JCA Report from Mr Reynolds, dated 9 November 2006, where he reported Mrs Cremer as stating that she had no such treatment. Dr Young also reports that Mrs Cremer had not accessed psychological services or seen a psychiatrist, but noted the lack of psychiatric services in the Port Macquarie area. He considered that Mrs Cremer will require ongoing medication and support for this problem.
34. Mr Reynolds considered the condition to be temporary in nature on the basis that Mrs Cremer has not received either CBT, or counselling from a person with professional training in assisting individuals with depression. He agreed in his evidence that there was no psychiatrist in Port Macquarie. The nearest psychiatrist was an hour drive away in Taree, required private funding and had a waiting list. He understood there to have been a community psychologist service available in Port Macquarie a couple of years ago, whereby specially trained doctors were able to refer some patients in some circumstances.
35. Previous decisions of the Tribunal have held that an Applicant's failure to follow treatment recommendations made by their treating medical advisers can preclude a finding that their condition has been “fully treated”: Re Tlonan and Department of Social Security (1997) 24 AAR 467 (failure to take migraine medication); Re Rudder and Secretary, Department of Employment and Workplace Relations [2006] AATA 249 (failure to use contact lenses to correct vision); Re Newman and Secretary, Department of Family and Community Services (2002) 71 ALD 222 (failure to attend recommended pain management treatment). In the present case, however, Mrs Cremer has closely followed the advice of her doctor.
36. I do not accept Centrelink‘s contention that the condition should not be regarded as permanent on the basis that Mrs Cremer has not received counselling which is, in summary, Centrelink’s position. Firstly, Dr Young said that she did receive “supportive psychotherapy and CBT”. Secondly, I am not satisfied that the counselling described by Mr Reynolds was known to Dr Young, or that Mrs Cremer would necessarily have qualified for sessions. Most importantly, Dr Young has treated Mrs Cremer for depression since at least 2001 and she has continuously been on anti-depressants since that time. Ms Brennan was also of the view that this continuous medication, and Mrs Cremer’s compliance with her medical treatment, were sufficient to deem the condition permanent. In any event, referral to a psychiatrist is not mandatory: Harris v Secretary, Department ofEmployment and Workplace Relations [2007] FCA 404.
37. Rating Mrs Cremer’s condition is more problematic. In his TDR of 12 December 2005, Dr Young described the depression as a condition that was well managed, with a minimal or limited impact on her ability to function, albeit causing poor sleep and reduced concentration. In his undated report, Dr Young wrote of the condition regularly interfering with Mrs Cremer’s ability to do household tasks. Dr Hodgson in his TDR dated 25 May 2006 expected no significant improvement, and described the condition as appearing “to affect attitudes to work”.
The relevant descriptors in Table 6 are as follows:
“TABLE 6 Psychiatric Impairment
…
Rating Criteria
NILMild but regular symptoms which tend to cause subjective distress. On most occasions able to distract themselves from this distress. Minimal interference with function in everyday situations. Exacerbation of symptoms may cause occasional days off work. (eg. There may be some loss of interest in activities previously enjoyed. There may be occasional friction with family, colleagues or friends) Medical therapy or some supportive treatment from treating doctor may be required.
TENModerate and regular symptoms and generally functioning with some difficulty. (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships). May have received psychiatric treatment which has stabilised the condition. Minor effects on work attendance and/or ability to work but the impairment would not prevent full‑time work. (eg. short periods of absence from work).”
38. On balance, I consider that it is appropriate to allocate I0 points in respect of depression under Table 6. In coming to this view, I note Mrs Cremer’s evidence was that in the period under review she spent much of her day lying on the bed reading, and that she no longer undertook her favoured recreational activities of knitting and crocheting. She has become somewhat withdrawn in her activities with her children, and has feelings of hopelessness which she deals with by going to look out to sea. She is heavily medicated. I note that psychiatric treatment is not obligatory in the descriptor for 10 points.
39. I note Mrs Cremer’s evidence that by the time she saw Mr Reynolds she had a low mood, more difficulty concentrating, did not want to go out or see anyone, and was generally socially withdrawn. She did say, however, that the severity of symptoms had developed over the preceding months.
Combined impairment
40. Taken together, Mrs Cremer’s combined impairment is 20 impairment points. I now turn to the remaining question:
Does Mrs Cremer have a continuing inability to work because of the impairment?
41. Assessment of Mrs Cremer‘s continuing inability to work must be made in accordance with the legislation. This is explained by Drummond J in Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444, where the Court set out at 452 to 453 the relevant questions:
“As to s 94 (2)(a): Does the impairment of itself, ie, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant's capacity for work that it prevents him from doing work available anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining? “
42. Mrs Cremer gave evidence that when her claim for the DSP was refused, she considered possible jobs that she could do instead. She thought she could possibly work packing shelves at Coles or Target, but although she went for interviews, she was unsuccessful in securing a position. Her evidence about her symptoms, however, was of limitations on her ability to sit, stand, and bend for long periods because of abdominal pain. In addition, her sleep is interrupted by pain, and heavy medication decreases her powers of concentration. The medical evidence is consistent in confirming these symptoms.
43. In Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517 at 525, the Tribunal described the realities of the modern workplace and the need to consider the issue of work in its context:
"When considering the issue of work in this context, the tribunal is of the view that it is the “normal workplace” against which a person's abilities are to be judged, not the workplace of the “benign employer”".
44. Relying on Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517, the Tribunal in Re Triantafillou and Secretary, Department of Family and Community Services (2003) 73 ALD 568 interpreted “work” to be work that is carried out in the "open workplace" and not work that is insulated from dynamic and unpredictable demands.
45. I do not think Mrs Cremer’s goal of obtaining a job entailing physical labour was realistic. She demonstrated an inability to lift or to bend - tasks which are obviously required in shelf packing. For the same reason, I do not think a job such as a kitchen hand, her previous occupation, would be attainable. In my view, it is unlikely that any employer would engage her for those kinds of tasks with her physical limitations.
46. I note that the concept of a continuing inability to work is not confined to a person’s ability to undertake work for which they are trained and skilled, but rather their capacity to undertake any work. Having eliminated those unskilled roles because of her physical limitation, I do not consider that other unskilled roles would be achievable either.
47. Mrs Cremer gave evidence that she thought at that time she might be able to do some computer–based survey work from home, for possibly up to 5 hours per day. However, the work required a $500 bond which she was unable to meet. Therefore, on her evidence, she might have been able to work for 25 hours per week, at best.
48. Centrelink relied on the medical report of Dr Wassenaar, dated 19 January 2006, where the doctor expressed the view that Mrs Cremer could be fit to work 30 hours per week within 6 to 24 months. The doctor qualified this, however, by noting that Mrs Cremer’s abdominal pain needed to improve prior to any return to work. In this regard I note Mrs Cremer said that Dr Hodgson’s advice was that to operate would only exacerbate the condition. In his letter of 20 March 2006, Dr Hodgson refers to Mrs Cremer suffering from abdominal pain which would prevent her from working for at least the next six months. In his TDR of 12 December 2005, Dr Young noted that the condition would last for more than 24 months. He repeated this opinion in his subsequent TDR. In essence, her abdominal pain is unlikely to improve. Even Centrelink’s doctor sees the condition as an impediment to work.
49. I find that Mrs Cremer, by virtue of her incapacity, is prevented from doing any kind of work, without the need for retraining.
50. Having come to this view, I now turn to the next limb identified in Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444 - is the impairment of itself sufficient to prevent Mrs Cremer undertaking, during the next two years, retraining of a kind that is available to her and which would fit her for a class of work available in Australia that she currently lacks the skills or experience to perform, even if unimpaired?
51. I note that Mr Reynolds considered Mrs Cremer had a future capacity for full-time work “with intervention”. He considered that if Mrs Cremer was given appropriate assistance in relation to depression, pain management and work fitness, and was provided with assistance by Vocational Rehabilitation Services in identifying employment that met her physical capacities, her work capacity would have the potential to increase significantly. It was suggested that she would be suited to light and less skilled work, such as selected retail sales and call centre work.
52. Centrelink submitted that Mrs Cremer’s impairments do not prevent her from participating in educational or vocational training. The medical report of Dr Wassenaar, dated 19 January 2006, was again relied on. It was suggested that Mrs Cremer could undertake educational training, vocational training and vocational rehabilitation assistance. However, Dr Wassenaar again qualified her remarks by noting that the abdominal pain would first need to settle. Furthermore, even Ms Brennan, on the basis of the depression alone, considered that only 15-22 hours per week “with intervention” was achievable.
53. I therefore find that Mrs Cremer was, at the relevant date, qualified for the DSP because she had an impairment which is properly rated at at least 20 points under the Impairment Tables. I also find that because of the impairment, she has a continuing inability to undertake any work for at least 30 hours per week in the next two years. In addition, Mrs Cremer’s impairment would prevent her from doing any educational or vocational training during the next two years. Even if Mrs Cremer could undertake training, her impairment is such that she would not benefit from the retraining by being able to work within the next two years.
DECISION
54. The decision under review is set aside and in substitution therefor the Tribunal decides that by 6 February 2006, the Applicant had an impairment such as to entitle her to the disability support pension as a result of her claim of 7 November 2005.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
Signed: [Skye Owen]
AssociateDate of Hearing 24 April 2007
Date of Decision 23 May 2007
Appearance for Applicant Self-representedAdvocate for the Respondent H Wallis-Dunn of Centrelink, Legal Services
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