Do and Secretary Department of Employment and Workplace Relations

[2006] AATA 650

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 650

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2005/1609

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MAI THI DO

Applicant

And SECRETARY DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms G Ettinger - Senior Member
Dr M E C Thorpe - Member

Date25 July 2006

PlaceSydney

Decision The Tribunal affirms the decision under review.

[Sgd]  Ms G Ettinger

Senior Member

Catchwords

Disability Support Pension – whether medical evidence supports claim – relevant period at date of application 3 March 2005 and three months thereafter – sections 94(1) of the SS Act 1991and Clause 4 of Schedule 2 of the Social Security (Administration) Act 1999 - decision affirmed.

Social Security Act 1991 ss 94(1) and 94(2)

Social Security (Administration) Act 1999 Clause 4 of Schedule 2

Tables for the Assessment of Work-Related Impairment for Disability Support Pension (“Impairment Tables”) produced pursuant to Schedule 1B of the Social Security Act 1991

Table 5.2 Thoraco - Lumbar-sacral spine

Table 6 Psychiatric Impairment

Table 11.1 Gastrointestinal: Stomach, Duodenum, Liver and Billary Tract

Re Elrich and DFACS [2000] AATA 456

REASONS FOR DECISION

25 July 2006

Ms G Ettinger - Senior Member

  Dr M E C Thorpe - Member

1.      Mrs Mai Thi Do, who was a primary school teacher in Vietnam, first came to Australia in 1985. She gave evidence which suggested that she and her husband have endured great difficulties in their lives. Amongst the problems Mrs Do has endured are that she is one of five children whose father died when she was eleven years old, leaving her mother to resort to selling vegetables in a street stall to make ends meet. 

2.      Mrs Do’s husband was dismissed from his position in the Vietnamese Navy in 1975, and in connection with the political situation in his home country, he was incarcerated in a re-education camp until his escape to Malaysia in 1984. He then came to Australia, followed by Mrs Do, who had spent the years after her dismissal from her teaching position in 1980, living with her mother. 

3.      In Australia, Mrs Do, whose date of birth is 21 June 1946, and who thought she may not be able to have children, gave birth to daughters, one in 1986 when she was aged 40, and the other in 1988. Both are now in tertiary education. 

4.      Mrs Do’s application for disability support pension was refused by the Secretary, Department of Family and Community Services, (“the Secretary”), who is the Respondent in these proceedings. Her appeal to the Social Security Appeals Tribunal was also unsuccessful. Accordingly, Mrs Do has appealed to this Tribunal.

5.      The Applicant and the Tribunal were assisted by Ms Tran, an interpreter in the Vietnamese language.

ISSUES BEFORE THE TRIBUNAL

6.      The issues before the Tribunal were:

·Whether the Applicant satisfies the criteria pursuant to section 94(1) of the Social Security Act 1991 ("the Act") in that at the relevant date she had a physical, intellectual or psychiatric impairment; and if so,

·whether that impairment was 20 points or more under the Impairment Tables in Schedule 1B of the Act; and if so,

·Whether the impairment was of itself sufficient such that she had a continuing inability to work pursuant to the tests in section 94(2) of the Act; and if so

·whether Mrs Do was thus eligible for Disability Support Pension (“DSP”) on and from 3 March 2005 or within a period of 13 weeks thereafter.

LEGISLATIVE FRAMEWORK

7.      The relevant legislation in this matter is the Social Security Act 1991, in particular sections 94(1) and 94(2), which follow, as relevant:

“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  two years.

Note:For work see subsection (5).

…

94(5)In this section:

educational or vocational training does not include a program designed 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 at award wages or above; and

(b)that exists in Australia, even if not within the person’s locally accessible labour market.

…”

8. Clause 4 of Schedule 2 of the Social Security (Administration) Act 1999 deals with when a person is taken to have made a claim for a social security payment, including a claim for the DSP:

4  Start day—early claim

(1)       If:

(a)a person (other than a detained person) makes a claim for a relevant social security payment; and

(b)       the person is not, on the day on which the claim is made, qualified for the payment; and

(c)       assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

(d)       the person becomes so qualified within that period;

the claim is taken to be made on the first day on which the person is qualified for the social security payment.

(2)For the purposes of subclause (1), the following provisions have effect:

(a)       subject to paragraph (b), any social security payment, other than newstart allowance or special benefit, is a relevant social security payment;

…”

CONSIDERATION OF WHETHER MRS DO HAS A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT, AND IF SO, WHAT IMPAIRMENT RATING THAT ATTRACTS

9.      Mrs Do gave oral evidence with the assistance of an interpreter in the Vietnamese language. She gave a history of her illnesses, which were gestational diabetes following the birth of her second child, Hepatitis B carrier, sleep disorder, osteoporosis, low back pain and headaches. Mrs Do did not specifically complain about the effects of menopause (Mrs Do underwent a hysterectomy in 1991), and anxiety/depression, but they are discussed in the various doctors’ reports which were in the T-Documents, and the tendered documents.

10.     We noted from Mrs Do’s application for disability support pension at T26/126 of the T-Documents, that Mrs Do listed her disabilities and illnesses as “Hepatitis B – Abdo Pain – Headache – Sleeping Disorder – Menopause Disorder – Intestine Pain – Removed Uterus – Esteoporosis (sic) Back Pain – Infection Lungs – fatty Infiltration in the Liver”. Anxiety and depression were not mentioned.

11.     The tendered documents included the reports of Dr P Harvey-Sutton, occupational physician’s report of 3 April 2006 which was Exhibit A1; Dr A Dinnen, psychiatrist’s reports dated 5 April 2006 and 3 July 2006 which were Exhibits A2 and A3; and Dr K  Lovric, psychiatrist’s report of 21 June 2006 which was Exhibit R2.  From the oral evidence we heard, we concluded that insomnia and low back pain troubled Mrs Do most.

12.     Mrs Do said that the death of her mother in 1994 affected her to the extent that she suffered depression, and insomnia, and consulted a psychiatrist, Dr Law, in 1995. She said that she lacked sleep and was referred to a sleep clinic.  She conceded in reply to cross-examination that she suffered insomnia from time to time, dating back to when she was young, and again to when the children were young.

13.     When asked what she did about the insomnia and its effects, described by the Applicant as weakness and lack of interest in things around her, for the period when she first suffered it in 1995 until 2005 when she applied for Disability Support Pension, Mrs Do said that she depended on her husband financially until he left his job in 2003/4 (and went on Disability Support Pension). She said that she took the medication prescribed by her doctors and trained her body to cope. Ms Do said that she could sleep for approximately two hours without medication, and four to five hours if she took medication. She says that she might take the medication for five to seven days and then stop for some time. In reply to Dr Thorpe of the Tribunal, the Applicant said that she spends the whole evening and night in bed, perhaps 10 – 11 hours. Dr Thorpe told Mrs Do that it was not unusual for people of her age to sleep four to five hours a night. Dr Harvey-Sutton made a similar note in her report, opining “that 4 hours sleep is regarded as sufficient for work purposes.”

14.     Mrs Do said that what prompted her to make the application for Disability Support Pension in 2005 was her back pain.

15.     When asked to describe what made her anxious or upset, she said that it was the children, (now aged 18 and 20 who are students), because they like to stay out late with their friends.

16.     Mrs Do told us that she is able to do some cooking and light duties at home. She exercises by walking an hour a day in the park, can take public transport, and has been able to attend meetings at her children’s school. She also gave us details of the medication she takes, that is some anti-inflammatories for her back pain, a calcium supplement, mild to moderate sleeping pills, a mild anti-depressant, and medication for her osteoporosis.

17. We were mindful that the Respondent accepted that Mrs Do satisfies the tests in section 94(1)(a) of the Act in that, at the relevant time, she had an impairment rating of 10 pursuant to the Impairment Tables. In so finding, the Respondent relied on the examination and opinion of Dr Lingwood, and agreed that Mrs Do had a physical impairment in regard to her osteoporosis and back pain (Table 5.2 of the Impairment Tables). HSA also rated Mrs Do’s headaches at 5 impairment points in 2004 (T13), but did not do so in its assessment in 2005 where Dr Lingwood included headaches together with the assessment he gave for anxiety and sleep disorder. (T28).

18.     Table 5.2 outlines the impairment ratings for injuries to the back based on demonstrable loss of movement. As relevant these follow.

“NIL               Normal or nearly normal range or movement.

FIVE             Loss of one-quarter or normal range of movement.

TENLoss of one-quarter or normal range of movement as well as back or referred pain:

·     with many physical activities and

·     with standing for about 30 minutes and

·     with sitting or driving for about 60 minutes.

or

Loss of half of normal range of movement.

TWENTYLoss of half of normal range of movement as well as back pain or referred pain.”

19.     When considering Mrs Do’s position in relation to Table 5.2, we noted that she  told us she cannot sit or stand for long periods of time. The reports of medical examinations before us confirmed that she had a loss of one quarter of the normal range of movement in her lumbosacral spine.

20.     After reviewing the medical evidence, (the reports of Drs Pham, Lingwood, Ochtman and Bui), and Mrs Do’s evidence, we were satisfied and, that Mrs Do had a physical impairment with an impairment rating of 10 points in regard to her osteoporosis and back pain pursuant to Table 5.2 of the Impairment Tables, at the relevant time. 

CONSIDERATION OF WHETHER MRS DO HAS AN IMPAIRMENT OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES

21. Next we had to consider whether Mrs Do had, at the relevant time, an impairment rating of 20 points as she claimed, in order to satisfy the conditions pursuant to section 94(1)(b) of the Act. Accordingly we considered her other complaints, namely Hepatitis B carrier, sleep disorder, headaches (more than 100 episodes a year), and anxiety/depression.

22.     We were mindful of Dr Harvey-Sutton’s opinion in regard to Mrs Do’s Hepatitis B, which was that there was no significant established chronic liver disease. Dr Harvey-Sutton did not support Mrs Do’s application for disability support pension. Dr Lingwood reported the condition as temporary and under investigation on 4 April 2005, and described Mrs Do as having fatigue and intermittent abdominal pain in association with her Hepatitis B (T28/145 & 158). Dr Lingwood considered that the liver disease caused Mrs Do “minor loss of efficiency”.  We also noted the report of gastroenterologist Dr Tri Pham dated 27 January 2004, (T9), and that his diagnosis included: “ HBV carrier with inactive viral replication. Likely functional abdominal pain.”  We accepted on the basis of the medical evidence that pursuant to Table 11 of the Impairment Tables, which we have reproduced below, Mrs Do’s impairment rating  for Hepatitis B was 0. 

23.     As relevant Table 11 follows:

“NIL Peptic ulcer/oesophagitis/liver disease: mild symptoms despite optimal treatment.

TEN Nausea and vomiting: moderate symptoms despite optimal treatment; Peptic ulcer/oesophagitis: continuing frequent symptoms despite optimal treatment; Past gastric surgery with moderate dyspepsia and dumping syndrome Established chronic liver disease. Symptoms (eg fatigue, nausea) may cause minor loss of efficiency in daily activities but rarely prevent completion of any activity.

TWENTY Constant dysphagia requiring regular dilatation

Vomiting: severe, not controlled despite optimal medication, and causing significant weight loss Peptic ulcer refractory to all treatment including surgery or with complications eg bleeding or outlet obstruction Established chronic liver disease. Symptoms (eg, more persistent fatigue, nausea, abdominal pain) may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Most daily activities can be completed but only with some difficulty.

THIRTY Diet limited to liquid or to pureed food or long term total parenteral nutrition;

Gastrostomy

Established chronic liver disease. Symptoms (eg, ascites, bleeding disorders, hepatic encephalopathy, more severe fatigue, nausea, vomiting) may cause substantial difficulty with most daily tasks.”

24.     We next considered Mrs Do’s insomnia, headaches and anxiety/depression, mindful in particular of the reports of psychiatrists Drs Law, Dinnen and Lovric.

25.     Dr Law, whom Mrs Do consulted in 1995 wrote a report dated 10 March 2005 which is at T27. He wrote to Dr Pham, Mrs Do’s general practitioner that Mrs Do reported having suffered a sleep problem for 15 or more years. He concluded however that “Mental examination revealed she was somewhat nervous, but not clinically depressed… She probably suffers from chronic anxiety disorder.”  Mrs Do told us that she had consulted two different psychiatrists two to three times; she could not remember their names.

26.     We also considered the diagnosis of Dr Dinnen who examined Mrs Do in April 2006, approximately a year after her application. Notwithstanding the fact that the examination and report were approximately a year after the application, Dr Dinnen’s report can be used to allow an increased understanding of the conditions that existed at the time of the application (Re Elrich and DFACS [2000] AATA 456). Dr Dinnen agreed that Mrs Do has an anxiety disorder but opined in addition, that: “there are important associated features, particularly with regard to elements of post traumatic stress disorder which can be easily identified… The alternative diagnosis of post traumatic stress disorder or somatoform disorder provides some indication of the chronic and complex nature of this patient’s psychiatric illness.”  Dr Dinnen opined that the onset of Mrs Do’s illness was in 1991 following her hysterectomy, and that by 1995, the illness had been diagnosed, treated and stabilised so that an impairment rating could be given. Dr Dinnen opined that Mrs Do could be given an impairment rating of 10 points in relation to her psychiatric illness.

27.     Dr Dinnen also provided a follow-up report commenting on Dr Lovric’s report. Dr Lovric saw Mrs Do in June 2006, over a year after her application for disability support pension, but as discussed above, her report can be of assistance in this matter. Dr Lovric did not find Mrs Do suffered from a diagnosable psychiatric illness and therefore found she had zero impairment points in that regard.  Dr Dinnen commented as follows: “Dr Lovric has missed the point of this patient’s ongoing inability to work and her chronic medical complaints which clearly are a psychosomatic expression of chronic anxiety.” Dr Dinnen stated that repeated nightmares, dreams about her mother, chronic insomnia, multiple somatic complaints and preoccupation with health, feelings of tiredness and loss of energy, recurrent headaches and nervous stammer, all needed to be explained. We did not obtain such an extensive history from Mrs Do when she gave her evidence, and we certainly did not perceive any stammer when Mrs Do was giving her evidence. We noted further that  no other medical practitioner has mentioned a nervous stammer and  we accepted Mrs Do’s evidence that she had suffered insomnia since her youth.

28.     We also noted that the history Mrs Do gave of seeing psychiatrists to Dr Dinnen, Dr Lovric and to the Tribunal were quite inconsistent, although they all confirmed Mrs Do had only consulted psychiatrists for a short time. We do not accord much weight to either the inconsistencies in telling this aspect of her story, or to the treatment she received, which appeared to have been quite short term.

29.     We were also mindful of Dr Lingwood’s opinion (T28), noting that he examined the Applicant in April 2005, shortly after she made her application for disability support pension. He considered that her anxiety and sleep disorder were “temporary”, rather than permanent, due to the fact therapy had only just commenced at that time, and suggested a review in six months from then. As to the treatment anticipated by Dr Lingwood; we now know that Mrs Do did not continue to see Dr Law, nor take the Nortriptyline he prescribed, and that she reported she saw two other psychiatrists only two or three times.

30.     Dr Ochtman of Health Services Australia (T32) examined Mrs Do on 26 May 2005, and she too, mentioned chronic anxiety disorder in her report, and a long history of sleep problems. She categorised the condition as temporary, and ordered a review in six months. It seems no such review was carried out.

31.     We considered the medical evidence regarding Mrs Do’s headaches, insomnia and anxiety, and the fact that Drs Lovric and Dinnen saw her approximately a year after she lodged her claim. We were mindful that Dr Law thought that Mrs Do probably (the Tribunal’s emphasis) suffered from chronic anxiety disorder when he saw her, and we noted Drs Lingwood and Ochtman’s opinions, mindful they are not psychiatrists. We were mindful of Mrs Do’s evidence that she suffered insomnia in her youth. She mentioned that she had also suffered insomnia when her children were young.  We also noted the report of Professor Sullivan at T5 to whom Mrs Do was referred for insomnia in June 1995. He reported his impression was that Mrs Do’s sleep disturbance was part of the normal grieving process related to her mother’s death the year before.

32.     We consulted Table 6 and considered whether Mrs Do meets the tests for any of the ratings. Table 6 outlines psychiatric impairment, as follows:

“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.

TEN Moderate 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 would not prevent full-time work. (eg. short periods of absence from work).

TWENTYPsychiatric illness or disorder with either serious symptomatology in functioning that requires treatment by a psychiatrist (eg. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms). There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.

THIRTY Serious psychiatric illness with major in several areas, such as work, interpersonal relations, judgement, thinking, or mood (eg. depressed person avoids friends, neglects family, unable to do housework), OR some impairment in reality testing or communication (eg. speech is at times obscure, illogical or irrelevant).

FORTYMajor chronic psychiatric illness which results in an inability to function in almost all areas, OR behaviour is considerably influenced by either delusions or hallucinations, OR serious in communication (eg. sometimes incoherent or unresponsive) or judgement (eg. acts grossly inappropriately).”

33.     In considering Mrs Do’s situation pursuant to Impairment Table 6, we looked first at the criteria for the nil impairment rating, and noted that Mrs Do’s symptoms such as her headaches were intermittent. She told us that they occurred more than 100 times a year, but indications were that she was able to function nevertheless. She told us that she does some housework and cooking, and because she does not drive, and has never driven, she goes shopping with her husband. We noted that Mrs Do walks in the park for an hour a day, that she can take public transport, and that she has been able to attend meetings at her children’s school. She reported some friction regarding her daughters’ going out late at night, and said that she feels some loss of energy.

34.     We considered whether Mrs Do met the tests for a ten point impairment rating for her psychiatric condition at the relevant date, and found that she did not meet those tests in that we could be satisfied from her evidence that she is functioning, and has not been receiving psychiatric treatment on a regular basis. We were mindful that as she has not been in the workforce since arriving in Australia, the comments on work attendance in Table 6 did not apply. We were not told of any diminution of Mrs Do’s social contacts or recreational activities.

35.     We  were mindful that Dr Dinnen’s opinion about Mrs Do included certain features consistent with PTSD, but we were not satisfied from the evidence before us, including that of the other doctors, who at best considered Mrs Do had an anxiety state with depression and associated insomnia, that we could accept Dr Dinnen’s diagnosis. We noted that Dr Dinnen dated Mrs Do’s PTSD and insomnia to her hysterectomy in 1991, whereas her evidence was that she has suffered insomnia since her youth. Accordingly we were unable to accept Dr Dinnen’s opinion that Mrs Do suffers post traumatic stress disorder. We were satisfied that Mrs Do rates nil impairment in relation to Table 6.

36. Accordingly Mrs Do’s impairment rating does not reach 20 impairment points and it is not necessary for us to consider whether Mrs Do has a continuing inability to work pursuant to section 94(1)(c) of the Act. She is accordingly not eligible for disability support pension pursuant to the legislation.

DECISION

37.     The decision under review is affirmed.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr M E C Thorpe, Member.

Signed:         .....................................................................................

Associate

Date of Hearing  5 July 2006

Date of Decision  25 July 2006
Counsel for the Applicant              Ms K Guilfoyle
Advocate for Respondent               Mr K Bullock