Foley and Secretary to the Department of Family and Community Ser Vices

[2003] AATA 836

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 836

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/657

GENERAL ADMINISTRATIVE  DIVISION

Re:         DENNIS WILLIAM FOLEY

Applicant

And:SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       M.J. Carstairs, Member

Date:             22 August 2003

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) M.J. Carstairs

Member

SOCIAL SECURITY ‑ disability support pension ‑ whether impairment rate at 20 points or more ‑ whether continuing inability to work

Social Security Act 1991 s94(1), Schedule 1B

Social Security (Administration) Act 1999 Schedule 2

Re Secretary, Department of Social Security and Dyer (1998) 51 ALD 190

Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467

REASONS FOR DECISION

22 August 2003  M.J. Carstairs, Member

1.      This is an application by Dennis Foley (the applicant) for review of a decision made by the Social Security Appeals Tribunal (the SSAT) on 14 May 2003.

2.      At the hearing, which was conducted by telephone, the applicant was unrepresented.  Ms K Paul, a Centrelink advocate, represented the respondent.

3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act (1975) as well as the Statement of Facts and Contentions lodged by the respondent on 14 August 2003.

BACKGROUND

4.      The applicant was born on 11 October 1955.   He was educated to Form 3 level in high school.  He has worked as a cleaner in 2002.  He is currently a full‑time truck driver.  The applicant suffers from a heart condition with symptoms of angina and from peripheral vascular disease.  On 10 October 2002 the applicant had surgery to his legs to relieve the symptoms of the peripheral vascular disease.

5.      He lodged a claim for disability support pension on 6 January 2003.  The claim was rejected on 11 February 2003.  An authorised review officer affirmed the on 26 February 2003.  The applicant then sought review by the SSAT and the SSAT also affirmed the decision.  The applicant appealed to this Tribunal on 18 June 2003.

EVIDENCE

6.      The applicant told the Tribunal that he appealed the decision to reject his claim for disability support pension because he did not get assistance from Centrelink when he needed it, and he considered that the system does not provide properly for people in his circumstances.  He said that ultimately he was assisted by one Centrelink officer, named "Bill", who referred him to Commonwealth Rehabilitation Services and it was as a result of that intervention that he now has his job as a truck driver.  However, he said that his cardiologist does not consider that he should do this work, as he should not be lifting more than 5kg and the job entails lifting more than that.

7.      In his application to the Tribunal (T1) the applicant stated that he had been told by the SSAT on 14 May 2003 that he might be able to reapply for disability support pension in view of the fact that Dr P. Loewy, medical practitioner with Health Services Australia, said that his condition should be reviewed in May 2003.  He stated that when he telephoned Centrelink for a review date no‑one returned his calls.  He said he could not understand that if the doctor had said that his condition should be reviewed in three months why this had not occurred.

8.      The applicant said that he prefers to work and always wanted the assistance to get back to work, not to get a pension.  He simply needed the pension in order to obtain the rehabilitation assistance.  Now that he has a job, he said that he realises that he would not be eligible for disability support pension but wished to continue with his appeal as a matter of principle.  The applicant confirmed that his heart symptoms have improved with the changed medication regime that his cardiologist had instituted.

9.      In a medical report dated 9 December 2002 (T5) the applicant’s treating doctor, Dr A. Desai stated that the applicant had three conditions namely:

§Coronary artery atherosclerotic disease with unstable angina, diagnosed on 28 June 2000.  The doctor noted that the applicant had triple by‑pass surgery in 1997 and was due for angiography in February 2003.  Dr Desai stated that the impact of the condition on the applicant’s ability to function was expected to last 3 to 24 months;

§Hypertension with a history of unstable angina.  He said this condition was likely to last more than 24 months and could be expected to fluctuate; and

§Peripheral vascular disease for which the applicant had a femoral popliteal by‑pass on 10 October 2002.

10.     The SSAT referred to a further report by Dr Desai dated 13 May 2003 in their decision but this report was not available to the Tribunal.  In its written reasons the SSAT recorded that Dr Anavekar, Mr Foley’s cardiologist, said that he expects to be able to improve the applicant’s cardiac state through medication.

11.     In a medical report dated 4 February 2003 (T6), Dr Loewy, a medical practitioner with Health Services Australia, stated that the applicant had a history of severe coronary artery disease and unstable angina.  The applicant had three heart attacks before coronary by‑pass surgery in 1997.  After a successful response to the 1997 surgery, the applicant had been free of angina until early 2003.  Dr Loewy stated that at the time he saw the applicant he was under investigation by a cardiologist.  Dr Loewy referred to the applicant’s successful femoro‑popliteal bypass surgery in October 2002.  Dr Loewy explained his rating of the condition in regard to the applicant’s heart by noting that as the applicant is being assessed by a cardiologist, the heart condition had to be treated as “temporary”, and this meant that no rating could be assigned.  He said it was important to review the matter in three months, based on the information that would then be available.

12.     Dr Loewy’s report reflects, therefore, that he considered the applicant had two conditions which he had to take into consideration: 

§Peripheral vascular disease which he considered under Table 4 in Schedule 1B of the Act. The condition attracting NIL points under that Table because the surgery in October 2002 was successful and symptoms had improved; and

§Coronary artery disease with hypertension.  Dr Loewy, as stated, considered this, “temporary.”

13.     Dr Loewy stated that the applicant's future work capacity could only be determined at a later time, but it was likely that the applicant would be restricted to light duties.  He considered that all intervention options, that Centrelink might refer the applicant to, should be delayed for three months pending assessment by the cardiologist.

CONSIDERATION OF THE ISSUES

14. Section 94(1) of the Social Security Act 1991 (the Act) relevantly provides:

94.(1)  A person is qualified for disability support pension if:

(a)the person has a physical, intellectual or psychiatric impairment; and

(b)the person's impairment is of 20 points or more under the Impairment Tables; and

(c)one of the following applies:

(i)the person has a continuing inability to work;

...

15.     Ms Paul submitted, through the respondent's Statement of Facts and Contentions, that the question of qualification for disability support pension must be determined at the date of claim.  In this case, that is 6 January  2003.  She further submitted that qualification for disability support pension requires that there be a permanent condition, which is not likely to change.  Referring to the Introduction to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Introduction to the Tables), she said that the condition has to be a …fully documented, diagnosed condition which has been investigated, treated and stabilised and is likely to persist for at least 2 years.

16.     Ms Paul submitted that the evidence before the Tribunal showed that the applicant’s condition had not been treated and stabilised. Therefore, it could not be rated under the Tables in Schedule 1B of the Act. She submitted that the applicant's medical evidence showed that full treatment has not occurred.

17. The Tribunal reached a decision taking into account the oral and documentary evidence and the submissions made at the hearing. The Introduction to the Tables in Schedule 1B of the Act provides:

…

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.

…

18.     The question of determining whether a condition is temporary or permanent was considered in the case of Re Tlonan and Secretary Department of Social Security (1997) 24 AAR 467 and in Re Secretary, Department of Social Security and Dyer (1998) 51 ALD 190. In Tlonan the Tribunal stated, at page 475:

…

If a person is qualified for a DSP, it may not be payable… As a general rule, a person’s provisional commencement day is the day on which he or she lodges a claim for a DSP.  In some cases, a person is not qualified on that day but later becomes qualified…

No provision is made for the case in which the person first becomes qualified for the DSP at some date later than three months after he or she lodged the claim.  In view of that, there is no provisional commencement day specified for such a person...

19.     Despite some legislative changes since Tlonan was decided, it remains the case that qualification for disability support pension must be established within three months of a claim (clauses 3 and 4 of Schedule 2 of the Social Security (Administration) Act 1999).   The Tribunal in Tlonan also looked at the meaning of treated as used in the Introduction to the Tables.  The Tribunal said:

…

What is meant by the requirement that the condition be treated?  The word “treatment” means, among other things, “....the application of medical care or attention to a patient, ailment etc ...":(The New Shorter Oxford English Dictionary, 1993)…

These meanings must be considered in the light of the context in which the word “treated” is used in Sch 1B of the Act.  Taken in that context, it seems to me that it should not be given a restrictive meaning.  That is to say, it should not be limited to medical treatment in the sense of surgery or the prescription of medication.  In its context, the word “treatment” refers to a broad range of therapeutic measures which are reasonable to adopt in the particular case and may include passive measures such as rest as well as active measures including, but not limited to, such diverse measures as the prescription of medication, physiotherapy, exercise generally and counselling.  What amounts to the treatment in any particular case will depend on the individual circumstances of that case.

20.     The Tribunal agrees with the applicant that as he is currently working he is not qualified for disability support pension.  The Tribunal considered the medical reports and took into account the reference made by the SSAT to their discussions with Dr Anavekar.  The Tribunal accepts the medical evidence, all medical reports being in agreement, that the applicant has a coronary artery atherosclerotic disease, which his cardiologist is monitoring and stabilising with a changed pattern of medication.  The Introduction to the Tables provides that conditions that are under treatment and have not stabilised are not to be rated, thus, this heart condition cannot be rated as at the time of the claim, in January 2003, or within three months of it.  The medical reports all agreed that the applicant’s other condition of peripheral vascular disease has been successfully treated with surgery in October 2002.  It follows, when looking at Table 4 dealing with the function of lower limbs, where this condition is to be rated, the level of impairment is presently NIL.  This is described by the following Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.

21. For these reasons the applicant cannot satisfy the requirement in s94 of the Act, namely that his impairment rating is 20 points or more under the Tables in Schedule 1B of the Act. As this prerequisite was not satisfied, and as the applicant is now working full-time, the Tribunal did not go on to consider the other qualifying requirements under s94 of the Act.

DECISION

22.     For reasons given orally the Tribunal affirms the decision under review.

I certify that the twenty‑two [22] preceding paragraphs are a true copy of the reasons for the decision of:

M.J.Carstairs, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  22 August 2003
Date of decision:  22 August 2003
Advocate for applicant:                Self‑represented

Advocate for respondent:            Ms K. Paul, Centrelink