Curran; Secretary, Department of Family, Housing, Community Services and Indigenous Affairs and

[2008] AATA 944

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 944

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0218

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILY, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And DENNIS CURRAN

Respondent

DECISION

Tribunal Miss E A Shanahan, Member

Date22 October 2008

PlaceMelbourne

Decision The Tribunal sets aside the decision of the Social Security Appeals Tribunal in respect of the impairment rating and substitutes a decision that Mr Curran’s diabetes attracts an impairment rating of zero points under the Impairment Tables.  Therefore, Mr Curran did not qualify for the disability support pension within 13 weeks of his application of 29 August 2006 as he did not have the required impairment rating.

(sgd) E A Shanahan

Member

SOCIAL SECURITY – SSAT assessment of diabetes – contrary medical assessments – continuing inability to work – job capacity assessment – SSAT decision set aside

Social Security Act 1991 s 94
The Guide to the Social Security Act

Impairment Table Schedule 1B

Secretary Department of Education and Workplace Relations v Parry (2007) FCA 1606

Secretary Department of Education and Workplace Relations v Hatton (2007) AATA 1631

REASONS FOR DECISION

22 October 2008 Miss E A Shanahan, Member       

1.      Mr Curran has been receiving newstart allowance (NSA) for many years from Centrelink.  Centrelink is the service delivery agency for the Department of Family, Housing, Community Services and Indigenous Affairs.  On 19 July 2006 a Centrelink delegate decided that Mr Curran was no longer eligible to be exempted from the activity test on the basis that his medical conditions were permanent.  On 29 August 2006 Mr Curran lodged a claim for a disability support pension (DSP). His claim was rejected by a Centrelink delegate on 22 September 2006.  Mr Curran applied for review of both decisions by an authorised review officer (ARO).  An ARO affirmed both decisions on 4 September 2006 and 12 October 2006 respectively. 

2.      On 10 October 2006 Mr Curran sought review of the ARO’s decisions by the Social Security Appeals Tribunal (SSAT).  On 20 December 2006 the SSAT affirmed the decision regarding the activity test. However, it assessed Mr Curran’s diabetes as attracting an impairment rating of 20 points under the Tables for the Assessment of Work‑Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act); and  concluded that he had a continuing inability to work and was thus qualified for the DSP. 

3.      The Secretary to the Department of Family, Housing, Community Services and Indigenous Affairs (the Secretary) then applied to the Administrative Appeals Tribunal (AAT) for review of the decision regarding the impairment rating on 29 January 2007.  The respondent sought an Order staying the implementation of the SSAT’s decision and the Stay was granted on 12 February 2007, effective from 20 December 2006. 

4. The Secretary was represented by Mr Andrew Carson, a Centrelink Senior Advocate. Mr Curran was self-represented. The Tribunal had before it two sets of documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents and the ST-documents).  Mr Curran and Dr Gerstman gave evidence.  The hearing was initially listed for 30 May 2008 but was adjourned as Mr Curran failed to appear.  The matter was subsequently heard over two days, 18 July 2008 and 8 September 2008.  Mr Curran failed to attend on the second day but was contacted by telephone.

5.      Mr Curran tendered a report from his general practitioner, Dr Ken Bowes, dated 19 June 2008 (Ex R1).

ISSUES

6.      The only issue raised by the Secretary related to the SSAT decision that Mr Curran’s diabetes attracted an impairment rating of 20 points.

BACKGROUND TO THE APPLICATION

7.      Mr Curran is aged 61.  He was a professional boxer and had also worked as a labourer and occasionally as a painter and decorator.  It has been said that he has not worked since 1992, 1995 or approximately 1998.  From the late 1980’s until the late 1990’s he suffered from alcoholism. With the assistance of the Melbourne Alcohol Recovery Centre Inc (MARC), his alcoholism has been in remission since late 1997.  There have been occasional alcoholic binges at the rate of one per annum.

8.      In the late 1990’s Mr Curran developed angina, indicative of ischaemic heart disease, and in 2001 underwent percutaneous coronary artery angioplasty and the insertion of two coronary artery stents.  For many years he has suffered intermittent low back pain. He has also suffered tinnitus and migraine since his boxing days, anxiety and depression since his coronary artery stenting in 2001 and Type II diabetes since 2005. 

9.      The Centrelink assessment identified four permanent conditions: ischaemic heart disease, anxiety and depression, low back pain and diabetes.  Mr Curran had provided Centrelink with treating doctor reports (TDR) since December 2001.  Mr Curran has been assessed by Health Services Australia (HSA) doctors at Centrelink’s request on four occasions since 2002.  Earlier assessments were made in 1994 and 1995 but these were not before the Tribunal.  The HSA assessments included job capacity assessments (JCA) which were performed on 12 December 2006 and 11 April 2008.  The medical practitioners assigned Mr Curran’s conditions various impairment ratings under the Impairment Tables over the years, which were subsequently reversed.  At the time of the SSAT hearing Mr Curran’s ischaemic heart disease attracted an impairment rating of 5 points and the other three conditions attracted zero points.  Mr Curran had been found fit for full‑time, light duties.

10.     The SSAT assigned Mr Curran’s diabetes an impairment rating of 20 points under Table 19 of the Impairment Tables on 12 December 2006, on the basis that Mr Curran had end-organ damage as a result of the diabetes. The end-organ damage was said to be a peripheral neuropathy. Dr Bowes, the treating general practitioner, had first included this diagnosis in his TDR of 7 April 2006 (T12) but did not provide any details of symptoms or signs supporting this diagnosis.  In his evidence before the SSAT, Mr Curran reported numbness in both legs with associated dull, heavy pain and giving way of his left leg.  Dr Bowes had told him he may be developing arthritis.  Mr Curran had also reported to Dr Bowes a family history of Paget’s disease, recurring chest pain at rest and on exertion, and shortness of breath on exertion.  Mr Curran had informed the SSAT that he was subject to ongoing review of his cardiac status at the Austin Hospital and that he had attended the hospital in the last six months.  Dr P Tutton performed the last HSA assessment on 8 May 2006 and he assessed Mr Curran’s diabetes as asymptomatic and attracting a zero impairment rating.  Dr Tutton recorded that he had not physically examined Mr Curran in respect to this condition.  (T14, p95)

11.     The Secretary sought expert medical opinion regarding Mr Curran’s diabetes following the SSAT decision.  Dr Murray Gerstman, a consultant endocrinologist and diabetologist, saw Mr Curran on 1 June 2007 (ST1, p172).  Dr Gerstman found Mr Curran’s diabetes to be well-controlled, sensation was normal in the lower limbs on testing, with reduction of the knee jerks and ankle jerks.  Biochemical testing detected hyperlipidemia.  Dr Gerstman concluded that Mr Curran’s diabetes did not limit or cause him any significant impairment of function.  He recommended referral to a dietician, daily blood glucose monitoring and that the hyperlipidemia warranted more aggressive treatment. 

12.     At the initial hearing of 30 May 2008, adjourned because of Mr Curran’s failure to attend, the Tribunal instructed the Secretary to seek further medical reports from Dr Bowes and Mr Curran’s medical records from the Austin Hospital.  Centrelink received photocopies of letters by Dr Bowes from the Austin Hospital. Centrelink made enquiries of the hospital and was told no further records were available. 

EVIDENCE BEFORE THE TRIBUNAL

MR CURRAN

13.     The Tribunal questioned Mr Curran in relation to his medical conditions.  Mr Curran said he had developed chest pain in the late 1990’s while performing heavy labouring work.  He eventually underwent coronary artery stenting in 2001.  Over a period of some years he had developed chest pain at rest, approximately once per fortnight and more frequently if he over-exerted himself.  He described the chest pain as dull, continuous and occurring just to the left of the sternum radiating to the right of the sternum.  The pain could radiate to the left arm and shoulder and also be associated with a dull ache in the right shoulder.  The pain would often last up to 10 minutes. It was his practice to wait for five minutes and if the pain had not disappeared he would take a sublingual Anginine tablet.  If the pain lasted for longer than 10 minutes and was unresponsive to the Anginine tablet he would immediately visit the Accident and Emergency Department of the Austin Hospital. 

14.     Mr Curran had been diagnosed with diabetes in January 2005 and was treated with Diabex and Diamicron.  Mr Curran said that currently his blood-sugar readings were around the 11 mark. He had recently seen a dietician and now watched his diet carefully and checked his blood-sugars regularly.  He had not seen an endocrinologist for treatment.  Mr Curran indicated that at times his blood-sugar could be higher or much lower than the usual reading of 11. 

15.     Mr Curran’s migraine, tinnitus and double vision all dated from his boxing days.  The migraine occurred approximately once every two weeks and lasted for one hour.  When he had first developed these symptoms he had undergone a CT scan of the brain and was told that this was normal.  He said that the low back pain comes and goes.  He advised he couldn’t stand for longer than four hours but regular walking kept him mobile and he was able to walk between 500 metres and a kilometre, if he did so slowly, avoided hills and the weather was good.  His anxiety and depression had commenced in 2001 after his coronary artery stenting and, on his assessment, was mild but fluctuated.  Approximately once a week he felt he couldn’t face the world. 

16.     Mr Curran performs voluntary work for approximately eight hours per week at MARC.  He cares for himself, cleans his house and spends his time reading and watching television.  He does not cook as he prefers to eat takeaway food. 

17.     Mr Curran considered Dr Gerstman’s report to be wrong and insisted that he had not felt either pin pricks or vibration applied to his lower limbs.

18.     Mr Carson questioned Mr Curran on his current alcohol intake.  Mr Curran admitted to approximately one bout of binge-drinking, lasting three to four weeks, in the past year.  Some five to six years previously he had undergone psychiatric counselling in relation to his alcoholism but now relied on counselling at MARC. 

19.     Mr Curran had recently seen an ophthalmologist regarding double vision but was unaware of the result of tests or the ophthalmologist’s opinion.  He confirmed that he had attended the Accident and Emergency Department at the Austin Hospital on two occasions in the past six years because of persistent chest pain.  He had not seen a cardiologist despite having informed the SSAT that this was planned.  Mr Curran had applied for a job in telemarketing and had been interviewed but was never again contacted by the employer.

DR MURRAY GERSTMAN

20.     Dr Gerstman’s evidence is summarised under Background to the Application above.  On examination of the lower limbs he was unable to confirm the diagnosis of a peripheral neuropathy but said he could not exclude early sensory changes, which did not yet give rise to physical signs.  He assessed the impairment rating of Mr Curran’s diabetes at zero points under the Impairment Tables. 

21.     The hearing was adjourned to allow both parties to obtain further medical reports from Dr Bowes and the Austin Hospital. 

22.     Mr Curran did not attend the resumed hearing on 8 September 2008.  The reports from the Austin Hospital indicated that Mr Curran had last attended there in 2002.  He had been re‑investigated for the recurrent chest pain but this was not considered to be of cardiac origin.  A thallium cardiac scan was normal, the current ECG was unchanged over a period of 12 months and cardiac enzymes were normal.  The Tribunal noted that a random blood glucose level performed in 2002 was high, the level being 13.9 (the norm being 3.3 to 8.00).  This was performed on 20 August 2002 but no further action was taken in respect to this finding.  It does however indicate that Mr Curran was probably diabetic in 2002.

23.     When Mr Curran failed to appear at the resumed hearing, the Tribunal contacted him by telephone.  He explained he had not attended as he had found the first day of hearing stressful.  He said that while he had obtained further test results from Dr Bowes he had chosen not to forward them to the Tribunal. 

24.     The Tribunal strongly recommended to Mr Curran that he re-apply for the DSP; and be fully medically assessed as it was possible that his medical conditions had deteriorated in the interval since his application of 2006. 

RELEVANT LEGISLATION

25.Section 94 of the Act concerns the qualification for DSP and states:

94  Qualification for disability support pension

(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; …

TRIBUNAL’S DELIBERATIONS

26.     The Secretary’s application relates only to the impairment rating assigned to Mr Curran’s diabetes by the SSAT.  It is not necessary for the Tribunal to consider the other three permanent medical conditions: that is the ischaemic heart disease, the anxiety and depression and low back pain; nor his job capacity assessment.  The Tribunal does however note that Mr Curran’s low back pain has never been investigated in terms of radiological examination nor has it been assessed by a referral to an appropriate consultant. 

27.     The ischaemic heart diseases appears to have last been assessed by a cardiologist in 2002, at which time the chest pain experienced by Mr Curran was considered atypical, that is, not suggestive of angina; and the various tests performed were normal.  Despite having taken the statin Zocor since 2001, his blood lipids were elevated in June 2007. The Tribunal strongly suggests that he should obtain a re-assessment by a cardiologist in the interests of his health, if not to assess more accurately his impairment rating.

28.     Mr Curran first saw an endocrinologist in June 2007.  Dr Gerstman considered the diabetes well controlled and did not find evidence of peripheral neuropathy on examination.  Dr Gerstman advised Mr Curran regarding daily glucose monitoring and recommended consultation with a dietician.  Mr Curran has acted on these recommendations.  While Mr Curran’s blood sugars on his evidence do fluctuate, this does not suggest that the condition is not permanent or that it is essentially unstable. As other tests have indicated, his diabetes is well controlled (Secretary Department of Education and Workplace Relations v Hatton (2007) AATA 1631 Secretary Department of Education and Workplace Relations v Parry (2007) FCA 1606).

29.     Expert endocrinological opinion has not confirmed the presence of diabetic end-organ damage in the form of an established peripheral neuropathy.  Thus, the SSAT assignment of an impairment rating of 20 points has not been substantiated.  Dr Gerstman has provided an impairment rating of zero points under the Impairment Tables.  

30.     For these reasons, the Tribunal sets aside the decision of the SSAT in respect of the impairment rating and substitutes a decision that Mr Curran’s diabetes attracts an impairment rating of zero points under the Impairment Tables. Therefore, Mr Curran did not qualify for the disability support pension within 13 weeks of his application of 29 August 2006 as he did not have the required impairment rating

31.     The Tribunal and the Secretary strongly advise Mr Curran to re-apply for the disability support pension.

I certify that the thirty one (31) preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E A Shanahan, Member

Signed:     Dianne Eva        

Clerk

Dates of Hearing  18 July 2008 and 8 September 2008
Date of Decision  22 October 2008
Self Represented  Mr Dennis Curran

Advocate for the Respondent   Mr Andrew Carson - Senior Advocate,           Centrelink Legal Services Branch