Galdona and Secretary, Department of Family and Community Service S
[2003] AATA 683
•21 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 683
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1917
GENERAL ADMINISTRATIVE DIVISION ) Re MARIA GALDONA Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Rear Admiral A R Horton AO, Member Date21 July 2003
PlaceSydney
Decision The Tribunal affirms the decision under review. …………………………………………….
Rear Admiral A R Horton AOMember
CATCHWORDS
SOCIAL SECURITY – eligibility for disability support pension – whether Applicant has physical, intellectual or psychiatric impairment – whether impairment is of 20 points or more under the Impairment Tables – whether continuing inability to work
Social Security Act 1991, section 94, schedule 1B
Social Security (Administration) Act 1999, schedule 2, part 2
REASONS FOR DECISION
Rear Admiral A R Horton AO Member
1. Mrs Maria Galdona, the Applicant in this matter, seeks review of a decision of the Social Security Appeals Tribunal (“the SSAT”) on 19 November 2002 which affirmed a decision of an authorised review officer (“ARO”) on 22 July 2002, that she is not eligible for the disability support pension (“DSP”). The decision by the ARO had in turn affirmed the original decision by an authorised delegate of the Secretary, Department of Family and Community Services (“the Respondent”) dated 2 May 2002 which determined that the Applicant was not so eligible.
2. The Applicant lodged an application for review by the Administrative Appeals Tribunal (“the Tribunal”) on 13 December 2002. At a hearing before the Tribunal on 25 June 2003, the Applicant was self represented and gave oral evidence, as did her husband, Mr Jose Galdona. Mr E Thistlethwaite, an advocate for Centrelink, appeared for the Respondent.
3. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (the T- documents”). The Tribunal also took into evidence:
A report by Dr S K Uppal, General Practitioner, dated 4 March 2003 (Exhibit R1)
ISSUES
4. The decision of the SSAT was to the effect that the Applicant meets the criteria in section 94(1)(a) of the Social Security Act 1991 (“the Act”) in that she has a physical, intellectual or psychiatric work related impairment (as defined in the Introduction to the Impairment Tables at schedule 1B of the Act), but does not meet the criteria in section 94(1)(b) that the impairment, of itself, be of 20 or more points under the Impairment Tables. The SSAT concluded that a combined impairment rating of nil points was appropriate. In the circumstances, the SSAT did not proceed to consider whether the Applicant had a continuing inability to work pursuant to section 94(1)(c) of the Act.
5. At the outset of the hearing, the Respondent conceded that the Applicant met the criteria in section 94(1)(a) only. Thus the issues before the Tribunal are whether she meets the criteria in section 94(1)(b) and section 94(1)(c), the latter being further defined in sections 94(2)(3)(4) and (5). Should the Tribunal find in favour of the Applicant, the effective date will be 18 December 2001.
LEGISLATION
6. Section 94 of the Act defines the qualification criteria for the disability support pension, and states, relevantly:
"94(1) A person is qualified for disability support pension if:
(a)…; and
(b) …; 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.
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.
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(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.
94(5) In this section:
...
"work" means work:
(a) that is for at least 30 hours per week at award wages or above; and
(b) ..."
7. Schedule 2, Part 2 of the Social Security (Administration) Act 1999 relevantly states:
"4. Start day - early claim
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 was 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 was 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."
8. Impairment is assessed against the work-related Impairment Tables at Schedule 1B of the Act. The introduction to the Tables states, relevantly:
2. These tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. These Tables are function based rather than diagnosis based. ...
3. These tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. ...
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. ...
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;
…
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment …In those cases where significant functional improvement is not expected…it may be reasonable to consider the condition stabilised.
…
8. In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. ..."
BACKGROUND
9. Mrs Galdona was born on 27 March 1945 in Spain. She has lived in Australia since 1981, her present address being at Casula in New South Wales. She is married and there are no children. Prior to her arrival in Australia she worked in a secretariat capacity. Until about 4 years ago, when she ceased work, she was employed part-time as a bookkeeper in her husband’s concrete and steelwork business. Mrs Galdona subsequently became eligible for Newstart Allowance, with an exemption from compliance with an activity agreement. On 3 April 2001, she completed a Medical Review form (T18) which listed her medical conditions and their effects. An accompanying Treating Doctors Report (“TDR”) by Dr S K Uppal diagnosed hypertension, hyperthyroidism and osteoarthritis of the lower back and neck (T20), and opined that all these conditions were long term and stable and a return to any work was not likely within two years.
10. Medical assessment for the Respondent was undertaken by Dr C Hoang of Health Services Australia (“HSA”) on 27 June 2001 (T21) the diagnoses being that there was no cervical spine condition, that a lumbar spine condition showed normal range of movement, but heavy lifting was to be avoided, the condition of hypertension was well controlled by medication, and hyperthyroidism had been successfully treated. Dr Hoang considered Mrs Galdona fit to return to full-time work or to undertake training, there being “no significant medical problems”.
11. The Respondent required a further Medical Review form to be completed in January 2002. This form, dated 9 January 2002 (T24), was similar in content to the previous submission, and was also accompanied by a TDR from Dr Uppal (T25), this being similar in diagnoses and content to the previous TDR. There is no evidence before the Tribunal to suggest that an HSA Medical Assessment was undertaken in relation to this second TDR. The Applicant remained in receipt of Newstart Allowance, but with an ongoing requirement to comply with the activity agreement, vide a decision of the Respondent (ARO) on 25 September 2001, as affirmed by the SSAT on 11 March 2002.
12. On 18 March 2002, the Applicant submitted a claim for the DSP (T5). The TDR by Dr Uppal dated 25 March 2002 (T6) diagnosed long-term stable conditions of hypertension, hyperthyroidism, osteoarthritis lower back disc degeneration change and osteoarthritis neck. Dr Uppal’s opinion as to the Applicants inability to return to any kind of work or undertake study remained as in the previous TDRs, that is, not likely for more than 2 years. The subsequent HSA Medical Assessment for the Respondent, undertaken by Dr B Bahari on 10 April 2002 (T7), diagnosed conditions of cervical and thoraco-lumbar spine conditions, but with “near normal range of movements” and nil impairment ratings pursuant to the Impairment Tables at Schedule 1B of the Act. The conditions of hyperthyroidism and high blood pressure were considered to be treated and warranting a nil impairment rating under Tables 19 and 20 respectively. Dr Bahari noted that the Applicant was not taking any pain relief medication, that the total impairment rating was nil, and the Applicant was fit for full-time sedentary employment. The claim for DSP was accordingly refused.
13. This decision was affirmed by an ARO on 22 July 2002, this decision in turn being affirmed by the SSAT on 19 November 2002, which concluded that the combined impairment rating was nil points.
EVIDENCE
14. Mrs Galdona confirmed that she is taking Isoptin to control blood pressure, and that the condition of hyperthyroidism is cured/stable, medication having ceased some one and a half years ago. At one time, seemingly for a short period, she took medication for pain, but takes no such medication at the present time.
15. She described her existing conditions as constant lower and middle back pain, which has been present since attending a tertiary and further education (“TAFE”) college in the early 1990s where she undertook English courses. There was no evident reason for the commencement of this pain.. She also has pain in the neck and shoulders. She considers the lower back pain and that in her shoulders and neck to be much the same now as when she lodged her claim in March 2002, but the middle back pain to be worse. She stated that her treating doctor since August 1998, Dr Uppal, is of the opinion that there is nothing that can be done, and this opinion has been endorsed by Dr J Powell, orthopaedic surgeon, who she saw in March 2002, and Dr M Giblin, orthopaedic surgeon, who she has seen more recently. Before the Tribunal, Mrs Galdona had her right arm strapped, this being in response to pain in the arm which commenced some two months ago. She also has knee pain, which is radiated from the lower back.
16. Mrs Galdona told the Tribunal that her back movements were very restricted, and she had minimal ability to bend. Her shoulder and neck movements were also restricted. Her sleeping pattern was disturbed every night, when she awoke with pain around 4 or 5 each morning, and had to rise and walk around or watch television to relieve the pain. She is restricted in house duties, and whilst she can go shopping, her husband has to carry any heavy parcels. Her medical conditions limit her ability to visit or to travel, and she has problems with steps. She does not use public transport. She can drive but only for short distances because of pain and restricted back movement. Her neck pain impinges on her ability to read for more than a few minutes. She stated that she was unable to work.
17. Mr Galdona gave evidence that his wife had been a part-time bookkeeper for his concrete form business, operating from home. This ceased in 1997 when the company shut down. He was adamant that her restrictions in movement of the back and neck precluded a return to work, even into a sedentary occupation such as secretariat work. He later stated that she may be able to work one to two hours per week, but no-one would employ her on that basis. He stated that she used to walk each morning and evening for half an hour, but had to stop doing this about three months ago due to pain and restriction in movement. He voiced an opinion that those who suggested that she could work in light occupations did not take into account his wife’s inability to travel independently to and from the workplace, nor the limitations of difficulty on steps, an inability to walk for more than about 10 minutes, and difficulty in physically coping with an office environment. Further, neither the Respondent nor the HSA doctors adequately identified the type of employment they considered Mrs Galdona was fit to undertake.
18. Mr Galdona gave evidence that his wife had seen Dr Giblin three times, the advice being that nothing could be done to remedy the pain. He stated that she did not take pain relief medication, other than an occasional panadol, as it inflated her, and did not result in any improvement. Mr Galdona considered that undue weight was placed on the opinion of Centrelink doctors, each of whom had only seen his wife on the one occasion. He disputed the claim by Dr Hoang that his wife had been wearing shoes with 10 centimetre heels when examined in June 2001(T22), (when Dr Hoang observed “perfectly normal gait, balance, transfers and movements”). Mr Galdona also opined that medical imagining (x-rays) did not in themselves present a “true picture” as to the seriousness of the medical conditions being experienced by Mrs Galdona.
MEDICAL EVIDENCE
19. Dr T Sing provided a report from Liverpool Diagnostics on 16 July 2001 (T3), which revealed some mild degeneration in both the cervical and lumbar spines, with mild stenosis in the former at C5/6 and C6/7 levels, and some mild to moderate disc bulge in the former at L3/4 and L4/5 levels. Two later reports by Dr Patel of South West Nuclear Medicine (T16) and Dr Mander-Jones of Rayscan Imaging (T17) are generally in accord with these findings. Dr J Powell examined Mrs Galdona on 6 March 2002 (T4), recording pain increasing in severity over time, mild tenderness but minimal restriction in the cervical spine, and no tenderness but some discomfort on extension in the lumbar spine, leading to an opinion that Mrs Galdona suffers from cervical and lumbar spine spondylosis consistent with age and build. Whilst making a guarded prognosis, Dr Powell opined that general mobility could be expected to remain “reasonable”, and considered Mrs Galdona fit to undertake work of a light office nature on a part-time or full-time basis.
20. Dr Uppal has written a number of reports on Mrs Galdona. Treating Doctor’s reports of 3 April 2001 and 9 January 2002 in respect of Newstart Allowance are consistent in stating that a return to any kind of work is unlikely within two years, as is the report of 25 March 2002 in respect of the claim before the Tribunal. Two later reports on 12 November 2002 (T26) and 4 March 2003 (T27) are similar in content, and confirm pain, degenerative changes and some canal stenosis. Dr Uppal notes “there is no radiation of pain onto upper or lower limbs”, that Dr M Giblin has advised physiotherapy and hydrotherapy, that Dr Powell suggests daily walking exercise, and neither Dr Powell nor Dr Giblin report that Mrs Galdona is totally unemployable. The Tribunal notes the comment by Dr Uppal that Mrs Galdona “alleges” that her health is not good. Dr Uppal concludes by stating that in his opinion, she “is not fit for any heavy duty work. She would be better off if she could get light sedentary office work with restrictions such as bending, lifting, pulling, pushing and trunk twisting”.
21. Mrs Galdona was examined by two HSA doctors, one in respect of the review of Newstart Allowance by Dr Hoang (T21), the second in respect of the claim for DSP by Dr Bahari (T7). Both assessed impairment at nil points. Dr Hoang considered Mrs Galdona fit for any work she might wish to do, keeping heavy lifting to a minimum if desired, and Dr Bahari considered her fit for light sedentary full-time employment. Reference has been made to three examinations by Dr Giblin, however the applicant advised that Dr Giblin had not provided any written reports.
FINAL SUBMISSIONS
22. Mrs Galdona confirmed that all relevant issues in respect of the matter before the Tribunal had been raised for consideration. The Respondent submitted that the criteria in section 94 of the Act in respect of eligibility for the DSP had not been met and that whilst Mrs Galdona had physical impairments, the evidence as to the effect of those impairments was insufficient to meet the criteria of 20 impairment points under the Impairment Tables. The Respondent submitted that the rating of pain under Table 20 was inappropriate as pain could not be objectively verified from documentation, and in the absence of medication and reason for the pain, there was a perception of pain which was insufficient to enable a rating to be given. In respect of an inability to work, the Respondent submitted that all doctors considered that Mrs Galdona could return to suitable light work.
DECISION
23. The Applicant must meet the criteria in subsections 94(1)(a)(b) and (c) of the Act. Section 94(2) amplifies this requirement in that it requires the impairments of themselves to be sufficient to preclude any work within the next two years. The impairments must also of themselves be sufficient to prevent the undertaking of educational or vocational or on-the-job training during the next 2 years, or in the alternate, if the impairments do not prevent such training, it is unlikely to enable the person to work within the 2 years. However in respect of this latter alternate, the Applicant, being over 55 years of age, can benefit by the provisions of section 94(4) which permits the Tribunal to have regard to the likely availability of local work. The availability of educational or vocational training or on-the-job training is not a consideration vide section 94(3) of the Act. Finally, work is defined as being at least 30 hours per week in Australia vide section 94(5), and training does not include a program specifically designed for people with impairments.
19. On the evidence before it, the Tribunal finds that the Applicant has permanent physical impairments of high blood pressure, hyperthyroidism, and cervical and lumbar spine conditions, and these are considered under the respective and appropriate tables in Schedule 1B of the Act. High blood pressure is controlled by isoptin, the condition being seen as stable by Dr Uppal, “treated and having no impact on work capacity” by Dr Bahari, and not leading to any opinion to the contrary by Mrs Galdona in oral evidence. Hence, a nil impairment rating under Table 20 is appropriate, this being defined as “controlled hypertension….minor symptoms which are easily tolerated and have no appreciable effect on ability to work”. Hyperthroidism may be similarly addressed, both Dr Uppal and Dr Bahari accepting that no treatment is required, and the Applicant herself stating the condition was stable/cured. Hence a nil impairment rating under Table 19 is appropriate, which refers to endoctrine disorders being adequately controlled.
20. Cervical spine condition is assessed under Table 5.1, which states relevantly:
“Nil Normal or nearly normal range of movement
Five Loss of quarter range of movement
TenLoss of half of normal range of movement and frequent/constant neck or loss of three quarters of normal range of movement with infrequent neck pain”
Neither Dr Powell nor Dr Bahari found evidence of any significant restriction in movement. Whilst Dr Uppal refers to the Applicant complaining of pain, he does not indicate any restriction in movement. Reports on CT scans are not helpful in suggesting limitations in movement and Dr Powell notes no neurological deficit. Whilst Mrs Galdona gave oral evidence as to severe limitations in movement, this has not been supported in reports by examining medical specialists. Thus the Tribunal is unable to allocate an impairment rating other than Nil under Table 5.1.
21. Similar considerations apply to the lumbar spine condition. Table 5.2 states relevantly:
“Nil Normal or nearly normal range of movement
Five Loss of one quarter of normal range of movement
TenLoss of one quarter of normal range of movement as well as back pain 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”
and again, whilst the Applicant gave evidence of restricted movement, there is no medical evidence to support the contention that movement is other than normal or near normal. Hence a nil rating is appropriate for the lumbar spine condition under table 5.2.
22. Table 20 can be used to rate miscellaneous conditions such as pain. The introduction to the Impairment Tables notes, “In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates”, and as the introduction to Table 20 notes, double counting is to be avoided. In this matter, a history of neck and back pain is recognised by Dr Uppal, who sees the pain symptoms as being of a permanent nature, and accepted by Drs Bahari and Powell. Dr Powell make a guarded prognosis that Mrs Galdona will continue to suffer intermittent pain. However, as with the SSAT, this Tribunal has difficulty in assigning any rating under Table 20 in respect of pain as Mrs Galdona takes no medication and is under no remedial treatment. However, on balance, and noting that pain has been accepted, with reservations, by all doctors, and that no points have been assigned under the functional tables at Table 5, the Tribunal assigns an impairment rating under Table 20 of ten points, the criteria for which is “Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity…”. There is insufficient evidence before the Tribunal to support a higher allocation relating to “moderate to severe symptoms….”.
23. The combined impairment rating is therefore ten points. Thus the Applicant does not meet the required twenty points or more required under subsection 94(1)(b) of the Act, and is ineligible for the disability support pension. In the circumstances, the Tribunal is not required to address subsection 94(1)(c) of the Act in respect of inability to work, but points out that all medical opinion, including that of the Applicant’s general practitioner, Dr Uppal, in his most recent report of 4 March 2003 at T27 is that Mrs Galdona is fit for sedentary light full-time employment, albeit with some restrictions in regard to bending, lifting and prolonged standing and sitting lifting.
24. The decision under review, that being of the Social Security Appeals Tribunal on 19 November 2002 that the Applicant is ineligible for the disability support pension, is affirmed.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of
Rear Admiral A R Horton AO Member
Signed: .......................................................................................
AssociateDate of Hearing 25 June 2003
Date of Decision 21 July 2003
Applicant Self-represented
Advocate for the Respondent Mr E Thistlewaite
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