Gilbert and Department of Family and Community Services - [2002] AATA 103

DECISION AND REASONS FOR DECISION [2002] AATA 103

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/893

GENERAL ADMINISTRATIVE DIVISION       )
           Re      DEBORAH GILBERT
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Ms J A Shead, Member

Date19 February 2002
PlaceSydney

Decision The decision under review is affirmed.

[SGD] J A Shead
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant has physical, intellectual or psychiatric impairment – whether applicant has impairment rating of 20 points or more – whether applicant has continuing inability to work

Social Security Act 1991 – section 94

REASONS FOR DECISION

Ms JA Shead, Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Deborah Gilbert ("Ms Gilbert") of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 31 May 2000. The SSAT affirmed a decision made by a Centrelink delegate of the Secretary of the Department of Family and Community Services ("the Department") on 16 September 1999 to refuse Ms Gilbert's claim for a disability support pension. This earlier decision was reviewed and affirmed by an authorised review officer on 8 November 1999.
A hearing was held before the Tribunal on 27 March 2001. Ms Gilbert did not attend the hearing in person but gave evidence by conference telephone. A departmental advocate, Mr George Lozynsky, represented the Department.
The Tribunal took into evidence documents submitted pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents", T1 – T24). Mr George Lozynsky provided the Tribunal with the Department's Statement of Facts and Contentions dated 15 March 2001. In accordance with a request of the Tribunal, Ms Gilbert's lung function test dated 10 September 1999 was submitted to the Tribunal on 22 June 2001 and no further submissions were received.
By way of background, the Tribunal extracts the history of the matter from the SSAT decision dated 31 May 2000 (T2):
"1. Ms Gilbert lodged a claim for disability support pension with Centrelink on 6 August 1999. On 16 September, the claim was rejected after assessment by a Health Services Australia medical adviser conducted on 14 September 1999. A file review was carried out on 7 October 1999 and the decision was reviewed by the original decision-maker on 8 October 1999 when it was determined that the decision was correct. Ms Gilbert requested a review by an authorised review officer and on review the decision was affirmed on 8 November 1999. Ms Gilbert lodged an appeal to the Social Security Appeals Tribunal on 13 November 1999. Ms Gilbert has had two previous appointments to attend a hearing by a tribunal but she has been unable to attend because of illness. On this occasion she could not attend in person as she was recovering from a recent operation. The hearing was conducted by conference telephone.2. The authorised review officer noted that Ms Gilbert suffered from dysthymia and major depression, lower back pain, a heart murmur and chronic obstructive airways limitation. Ms Gilbert had advised that she had further medical conditions which had not been included on her original claim. These conditions were not considered as reports were not available indicating that these conditions had been investigated, treated and stabilised. The authorised review officer noted that the Health Services Australia medical adviser had allocated an impairment rating of 25 points and that she was unfit for any heavy manual work requiring repetitive bending or lifting but she was fit for light work such as receptionist, telephonist or cashier. The authorised review officer accepted these findings. On that basis, she affirmed the decision to reject Ms Gilbert's application for disability support pension."
The SSAT had Ms Gilbert's respiratory function test dated 13 April 2000, which indicated a forced expiratory volume (FEV1) of 106% of normal value and a forced vital capacity (FVC) of 116% of predicted normal value (T24). The SSAT noted in paragraph 13 as follows:
"13. The Health Services Australia medical adviser noted that Ms Gilbert's dysthymia and depressive disorder had improved and allocated no points (Table 6). He considered that Ms Gilbert's endometriosis should be regarded as a temporary condition as it had not been stabilised. For her back pain and limitations of movements, he allocated 10 points (Table 5.2). For her shortness of breath he allocated 15 points (Table 1, 5-6 METs). The tribunal notes that the Health Services Australia medical adviser did not have available the results of Ms Gilbert's respiratory function tests. Using the prediction normogram (Table 2.3 included within A schedule 1B of the Social Security Act, 1991) FEV1 is 97.6% of the predicted normal value and the FVC is 100% of the predicted normal value. These results would attract an impairment rating of 0 points (Table 2.3). The tribunal prefers this objective assessment to the subjective assessment provided by Table 1. The Health Services Australia medical adviser allocated a total impairment rating of 25 points."
The SSAT did not alter the authorised review officer's decision, for the reasons set out in paragraphs 28 to 36 of its decision:
"28.     The tribunal has found that Ms Gilbert suffers from back pain, neck pain, shortness of breath, a depressive illness, heartburn, and endometriosis. Ms Gilbert therefore satisfies section 94(1)(a).
29. Under section 94(1)(b) a medical condition must attract a combined impairment rating of at least 20 points according to the Impairment Tables set out in Schedule 1B of the Act.
30.      The tribunal considers that the correct impairment rating for Ms Gilbert's back pain is 10 points under Table 5.2 – "Loss 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 thirty minutes and with sitting or driving for about sixty minutes".
31.      The tribunal considers the correct impairment rating for Ms Gilbert's neck pain is 0 points under Table 5.1 – "Normal or nearly normal range of movement".
32.      The tribunal considers that as the results of the respiratory function tests are now available, the correct impairment rating for Ms Gilbert's shortness of breath is NIL (80+ percentage predicted FEV 1 or FVC) under Table 2.
33.      The tribunal considers that the correct impairment rating for Ms Gilbert's depressive illness is 0 points under Table 6 – "Mild but regular symptoms which tend to cause subjective distress". One member of the tribunal considered that the correct impairment rating was 10 points – "Moderate and regular symptoms and generally functioning with some difficulty".
34.      The tribunal considers that the correct impairment rating for Ms Gilbert's heartburn is 0 points under Table 11.1 – "Mild symptoms despite optimal treatment".
35.      The tribunal considers that Ms Gilbert's endometriosis cannot attract an impairment rating at this stage as the condition is still being treated and has not been stabilised.
36. Thus Ms Gilbert's total impairment rating is 10 points. Therefore she does not satisfy section 94(1)(b) of the Act. This means she does not qualify to be paid disability support pension. It is therefore not necessary for the tribunal to address the issue of whether Ms Gilbert has a continuing inability to work as required by section 94(1)(c) of the Act."

In a dissenting decision, one member of the SSAT stated:
"6. I differ in relation to the appropriate rating for her depressive illness. …
The history obtained by Dr Blackwell indicated a long history of depressive illness, particularly during times when Ms Gilbert had been in abusive relationships during which times she had been "acutely suicidal on several occasions". Ms Gilbert had left her abusive relationship at the time of seeing Dr Blackwell and this had improved her condition. Nevertheless, Dr Blackwell expressed the view that Ms Gilbert would remain at risk of becoming depressed in the future. Dr Blackwell also stated that her depressive disorder was "in the moderate to severe range as it has prevented her from working, significantly impaired her social life and caused her to become increasingly emotionally isolated." Dr Blackwell found her condition had made a partial response to anti-depressant therapy but would require ongoing monitoring.
In September 1999, Ms Gilbert told Health Services Australia medical adviser that she had last attempted suicide about three years ago, that she was on medication until March 1998, that she had last seen Dr Blackwell about 1 year before, that she "feels alright but has odd days of anxiety attacks with palpitations, shakiness and sweating". The Health Services Australia medical adviser concluded that Ms Gilbert "appears to be in complete remission" as she is not seeing a psychiatrist, not having any medication and has only occasional symptoms of anxiety.
Ms Gilbert's current level of functioning on medication, can only properly be considered in the context of her history of depressive illness. This is a history of major depressive disorder which her treating psychiatrist stated (in 1998) required continuing monitoring. Only two weeks prior to the hearing, Ms Gilbert had presented at her general practitioner complaining of feeling depressed and restless and unable to sleep. These symptoms contradict the finding that Ms Gilbert is in complete remission. Her depressive state is clearly a continuing problem for her for which medication is required."

In the Application for Review to the Tribunal for review of the SSAT decision, Ms Gilbert's reasons for her application were:
"Disagree with decision." (T1)
In her opening remarks and in response to the Tribunal's question to Ms Gilbert as to why she disagreed with the decision, Ms Gilbert referred the Tribunal to the report of Health Services Australia medical adviser Dr Kanapathipillai that assessed her conditions as warranting 25 points.
On behalf of the Department, Mr Lozynsky advised the Tribunal that for the purposes of subsection 94(1)(a) of the Social Security Act 1991, ("the Act") it was conceded that Ms Gilbert suffered from low back pain, heart murmur, depressive illness and respiratory problems. However it was contended that Ms Gilbert did not have an impairment rating of 20 points or more and consequently she failed to satisfy section 94(1)(b) of the Act.
ISSUES BEFORE THE TRIBUNAL
The issues in this matter related to whether or not Ms Gilbert is qualified to receive a disability support pension, and in particular:
(a)whether Ms Gilbert has a physical, intellectual or psychiatric impairment; and if so
(b)whether Ms Gilbert has an impairment rating of 20 points or more under the Impairment Tables in Schedule 1B of the Act, as required by subsection 94(1)(b) of that Act, and if so,
(c)whether Ms Gilbert has a continuing inability to work as required by subsection of 94(1)(c)(i) of the Act.

To qualify for a disability support pension all three subsections of section 94 of the Act must be satisfied and pursuant to section 100 of the Act, the Tribunal has to consider Ms Gilbert's conditions on the day on which her claim was lodged and for a period of three months starting immediately after the day on which the claim was lodged.
LEGISLATION
The legislation relevant to the Tribunal's determination of this matter is section 94 of the Act, which sets out the qualification for a disability support pension. It relevantly provides:
"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;
…
(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 form 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.
Note: For 'work' see subsection (5).
(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.
(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 the work, have regard to the likely availability to the person of work in the person's locally accessible labour market.
(5) In this section:
"educational or vocational training" does not include a program designed specifically 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.…"
In general terms, the impairment rating is determined under Schedule 1B of the Act and the "continuing inability to work" is determined by reference to subsections 94(2), (3) and (5) of the Act.
Section 100 of the Act (effective at the time of the original decision) deals with the commencement day for disability support pension and relevantly states:
"100. Early claim
…
(3) If:
(a) a person lodges a claim for a disability support pension; and
(b) the person is not, on the day on which the claim is lodged, qualified for a disability support pension; and
(c) the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;
the person's provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia."

EVIDENCE

Ms Gilbert was born 20 May 1967. She left school at 14 years and 9 months and she did not obtain a school certificate. She started work as a shop assistant in a cake shop. Ms Gilbert then worked in a rehabilitation centre at Artarmon for about 9 months. She met her first husband and she had four children, now aged 15, 14, 11 and 9 years. These children do not now live with her. She remarried and had another child, aged about 2 years. She resumed work in 1996 for about 4 months. She worked as a kitchen hand, two days a week, 12 hours a day.
On 23 August 1999 Ms Gilbert lodged a claim for a disability support pension for incapacity from major depression with dysthymia and melancholic features, degeneration of the spine, heart murmur and hole in the heart, and lung disease (T3). Her local medical practitioner Dr G Mukherjee diagnosed those conditions as dysthymia and major depression disorder with melancholic features/anxiety; low back pain with clinical features of a disc lesion at L5/S1; chronic obstructive airways disease; and heart murmur from a hole in the heart (T4). Dr Mukherjee opined that Ms Gilbert would be unable to return to any kind of full time work and that she would be unable to work for more than 20 hours a week for more within 2 years. Ms Gilbert also told the Tribunal that she had suffered endometriosis and tennis elbow. In early 2000 she had a hysterectomy and had her left ovary removed.
In evidence as to how the conditions affected her, Ms Gilbert told the Tribunal that her back condition stopped her picking up heavy items and that most of the time she could not pick up her daughter. She also stated that she got shooting pains in her neck and that due to that pain she suffered migraines once or twice a week. Then she had to lie down in a dark room until the headaches and nausea passed. Sometimes she took Panadol or Panadeine Forte. When she had migraines they prevented her performing tasks and going about her normal routine. Although Ms Gilbert said her local medical practitioner was aware of the headaches, she had not mentioned it to the doctors who had examined her.
Ms Gilbert stated that she became breathless walking up the 15 stairs to her residence. She said she could not breathe if she had to run. Ms Gilbert stated she could walk for about 15 minutes before she would have to stop and rest because of shortness of breath and backache. If she took Bricanyl or Ventolin, her heartbeat rate increased and she got pains in her chest. She stated that Dr G Mukherjee had told her not to take Respolin, which had been prescribed by Dr C M Mukerjee Consultant Thoracic Physician. Ms Gilbert stated that she could not afford nicotine patches to help her quit smoking.
In relation to her psychiatric conditions, Ms Gilbert had been seeing Dr Blackwell since 1998. He had prescribed Deppran, 150 mg at night and Citrimil 20 mg in the morning. The medications reduced her depression, stress, anger and mood swings.
In relation to her personal circumstances, Ms Gilbert had experienced domestic violence from her former husband from 1990 to the end of 1997. Presently she was living separately and apart, under the same roof, from her second husband. He did the most of the household tasks such as washing, cleaning and he also looked after their daughter. Ms Gilbert said that she did not have any social life.
In response to Mr Lozynsky's questions, Ms Gilbert did not agree with Health Services Australia Dr Kanapathipillai's opinion that she could do light sedentary duties such as receptionist, telephonist or cashier work. In relation to training programs, Ms Gilbert's evidence was as follows:
"Mr Lozynsky: Ms Gilbert, in relation to training programs, do you think you are capable of performing or undertaking such programs presently?
Ms Gilbert: Not at the moment, no.
Mr Lozynsky: What about at the time of your claim?
Ms Gilbert: No, I wasn't either.
Mr Lozynsky: Why not?
Ms Gilbert: I was breastfeeding.
Mr Lozynsky: Right. But with respect to your medical conditions, would they have prevented you undertaking any type of training program?
Ms Gilbert: No. Depending on what it was."
Ms Gilbert acknowledged she was capable of undertaking training although she stated that she had to move about because of her back condition. Ms Gilbert stated that she would be interested in some type of training program, and she could possibly work as a call centre operator.
During the course of the hearing, the Tribunal requested that the results of the lung function test referred to in the report dated 2 October 1999 of Dr Mukerjee, Consultant Thoracic Physician, be obtained. The Tribunal needed to be satisfied that there was no discrepancy between the spirometry tests undertaken around September 1999 and April 2000, and whether the lung function test results had any bearing on the assessment by Dr Kanapathipillai whose findings the SSAT had not agreed with. From the time that the test results became available, the Tribunal granted both parties a further 28 days to make written submissions, if necessary.
SUBMISSIONS
Ms Gilbert reiterated that the report of Health Services Australia medical adviser Dr Kanapathipillai had assessed her conditions as warranting 25 points.

On behalf of the Department, Mr Loznsky submitted that although Ms Gilbert has a number of medical conditions, the impairment ratings for the conditions were insufficient to satisfy eligibility under sections 94(1)(b) and 94(1)(c) of the Act for disability support pension. It was contended that a rating of 10 points under Table 5.2 of Schedule 1B was appropriate for the back pain and in respect of the other conditions, namely major depression with dysthymia and melancholic features, and heart murmur and hole in the heart, no rating could be assigned. In relation to neck pain, endometriosis and tennis elbow, it was contended that those conditions should not be considered as they had not been stabilised, treated and investigated at the time of lodgement of the claim or within 3 months of that lodgement. Also, in respect of neck pain, not only had it not been identified at the time of the claim, the medical evidence of Dr A Varnava, a radiological report dated 24 September 1999 (T14), and Dr S Connolly, a CT Scan report dated 29 March 2000 (T22), was that Ms Gilbert had no abnormalities.
It was also contended that at the time of Ms Gilbert's claim, she was capable of undertaking full-time work as well as undertaking or participating in training programs. It was noted that although Ms Gilbert has had little work experience and has an infant child now, and at the time of her claim, those are not factors that have any bearing on her ability to work. It was further contended that Ms Gilbert's employment prospects would be improved if she attended a rehabilitation service for vocational assessment and rehabilitation, or undertook a work training program.
CONSIDERATION OF THE ISSUES
The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the submissions and the legislation.
Ms Gilbert gave evidence and was cross-examined. Despite giving evidence by telephone Ms Gilbert had a straightforward manner and ease of discussion of the issues involved in her application. The Tribunal considered her to be a credible witness.
The Tribunal is only able to consider those conditions disclosed in Ms Gilbert's original claim for disability support pension. Ms Gilbert has other medical conditions: neck pain, endometriosis that resulted in a hysterectomy and tennis elbow. In respect of those conditions, there is however no medical report giving a diagnosis or opining as to the effect of these conditions on her work ability. In view of the lack of consideration of these conditions in the decision under review and the absence of medical evidence concerning them, the Tribunal is unable to accept Ms Gilbert's submission that these conditions should be accepted as being present from the date of the lodgement of her claim for disability support pension. Accordingly, the Tribunal considered only the conditions low back pain, heart murmur, respiratory problems and depressive illness.
The Tribunal finds that Ms Gilbert suffers from low back pain, heart murmur, respiratory problems and depressive illness. Therefore Ms Gilbert satisfies subsection 94(1)(a) of the Act in that she has physical and psychiatric impairments.
To satisfy subsection 94(1)(b), Ms Gilbert's medical condition must attract a combined impairment rating of at least 20 points under the Impairment Tables in Schedule 1B of the Act. The Tribunal turned to consider the conditions as follows.
Low Back Pain

In respect of the lumber spine, the radiological report of Dr D E C Lim dated 17 July 1998 (T5) stated:
"The alignment is satisfactory. All the disc spaces are well preserved. There is no evidence of any fracture. Minimal spondylosis is present at L5 as denoted by the arrow. All the pedicles are intact. A spina bifida at S1 if of no clinical significance. Both sacro iliac joints are normal. …"

That report was supported by the radiological report of Dr A Li, dated 30 June 1999 who concluded "Minimal degenerative lumbospondylosis." (T9)

The assessment of Health Services Australia medical adviser Dr Kanapathipillai was that the level of impairment of the lower back warranted 10 points having regard to Table 5.2 of Schedule 1B of the Act. His reasons were as follows (T12, p52):
"Has a history of chronic pain with restrictions in sitting, standing and walking for longer than short periods of 15-20 minutes, bending over and lifting heavy objects. Her spinal movements are mildly restricted. X-ray changes are minimal."

Dr Kanapathipillai went on to report that Ms Gilbert's ability to work was restricted in that she "cannot do heavy, manual work requiring repetitive bending and heavy lifting."

From the medical evidence, the Department had accepted that the level of impairment of the lower back warranted 10 points having regard to Table 5.2 of Schedule 1B of the Act. Having regard to the radiological evidence and in consideration of Dr Kanapathipillai reasons, the Tribunal, on the balance of probabilities, also accepts that assessment.
Cardiorespiratory

In regard to chronic obstructive airways disease and heart murmur from a hole in the heart, Dr R Rajaratnam, Consultant Physician Cardiologist, in a report dated 4 May 1999 also confirmed that condition (T7) and noted:
"[Ms Gilbert] has a patent foramen ovale and palpitations suggestive of supraventricular tachycardia. She also suffers with chest tightness on effort occasionally, for which further investigations would be required. I have organised a 24 hour Holter monitoring to screen for arrhythmias and ischaemia at this stage. Once the pregnancy is over, I would aim to obtain an exercise stress test in the short term and follow the progress of the patent foramen ovale by echocardiography on an intermittent basis."

On 17 May 1999 Dr R Rajaratnam reported (T8):
"The 24 hour Holter monitoring showed signs of sinus tachycardia up to 150 beats per minute. There were no significant arrhythmias. ST depression of uncertain significance was noted during this study.
…
Therefore, in summary, these palpitations appeared to be sinus tachycardia…"

On 6 August 1999 Dr R Rajaratnam's report (T10) to Dr G Mukherjee stated:
"…She continues to smoke and has complaints of chronic bronchitis.
An echocardiogram confirmed a small left to right shunt form patent foramen ovale. This was not haemodynamically significant at this stage and there was no evidence for right ventricular strain. The left ventricular function was normal.
In view of her exertional shortness of breath, I obtained an exercise stress test which was negative for effort induced ischaemic at a good work load.
…
In the meanwhile, she was encouraged to give up smoking and was advised to contact you if she requires nicotine patches."
On 10 September 1999 a CT Scan of the Thorax report by Dr Adrian Gale stated (T11):
"There are scattered subpleural bullae present in each upper lung field. Isolated central bullae are present also in the left upper lung field.
The lung fields are otherwise clear. The broncho-pulmonary pattern is otherwise normal in appearance.
No other abnormality is demonstrated.
The appearances are in keeping with early changes of bullous emphysema."
On 14 September 1999 Health Services Australia medical adviser Dr Kanapathipillai, having reviewed the above reports, assessed that the cardiorespiratory impairment warranted 15 points from Table 1 of Schedule 1B of the Act, for reasons as follows (T12, p52):
"Has a history of shortness of breath on walking fast – climbing up hills and stairs and on running from her bullous emphysema and hole in the heart. Cannot exert much at work therefore exercise tolerance = 5 – 6 METS."
The Tribunal noted that, subsequently, Consultant Thoracic Physician Dr C Mukerjee's report dated 2 October 1999 stated (T15):
"…Lungs – NAD. Her Lung Function Test showed mild airways obstruction with reversibility. Her CT Scan chest showed bullous emphysematous changes both upper lobe, more on the right. …"
Also, Dr Vivian Fernandes, Consultant Nuclear Medicine and General Physician, investigated Ms Gilbert's chest pains by a stress myocardial perfusion study and her report dated 7 October 1999 concluded (T16, p63):
"This patient has a moderate exercise intolerance. The cardiac workload achieved was adequate. The heart rate response to exercise was optimal. In the presence of an optimal cardiac workload there is not convincing evidence of exercise induced ischaemia to suggest functionally significant large vessel coronary artery disease. This patient's post test likelihood of a major coronary event in the next 6 to 12 months is therefore very low".
On 7 October 1999 Health Services Australia medical adviser Dr T Rogers reviewed the file and stated (T17):
"The stress test is normal. It does not alter the existing recommendations and impairment rating."
It was contended on behalf of the Department that the SSAT's use of Table 2.3, rather than Table 1, of Schedule 1B of the Act was to be preferred given that the applicant's respiratory function tests were not available at the time the Health Services Australia medical adviser assessed a rating of 15 points under Table 1. That contention appears to be based on the SSAT's statement in paragraph 13 of its statement of reasons for decision. It was further contended by Mr Loznsky that the rating of nil points under Table 2.3 was the correct rating.
The Tribunal noted that Ms Gilbert's lung function test dated 10 September 1999 at Liverpool Respiratory Laboratory indicated FEV1 of 92% and FVC of 112%. That report also commented:
"There was mild reversible airflow obstruction…"
The Liverpool Respiratory Laboratory test results dated 10 September 1999 were in the range of the test results dated 13 April 2000. While the Tribunal agrees that either of those tests results (80% + predicted FEV1 or FVC) would warrant assessment of an impairment rating of 0 points from Table 2.3, the Tribunal does not agree that the Table 2.3 is the appropriate Table.
In particular, the Tribunal had regard to the instructions in Table 1 of Schedule IB of the Act titled "Loss of Cardiovascular and/or Respiratory Function: Exercise Tolerance." Table 1 states in part:
"The clinical judgment of medical officers based on history and examination is to be used but in cases where a reliable history is difficult to obtain despite discussions with the treating doctor or the history of exercise tolerance is inconsistent with clinical findings on examination, the results of an Exercise ECG or Respiratory Function Test may be obtained.
…
…Where exercise intolerance is caused by a combination of cardiac and respiratory conditions, Table 1 is to be used…"
Also, Table 2 of Schedule 1B of the Act titled "Loss of Respiratory Function: Physiological Measurements" states in part:
"Furthermore, this Table is only to be used for people with irreversible lung disease."
Having regard to:
1. Ms Gilbert being diagnosed with both a cardiac condition, even though a congenital one, and a respiratory condition of bullous emphysema;
2. the Liverpool Respiratory Laboratory test results dated 10 September 1999, which stated that Ms Gilbert's lung condition was reversible; and
3. the review of the medical reports by Health Services Australia medical adviser Dr Kanapathipillai, which was confirmed by Dr T Rogers,

the Tribunal was satisfied that Table 1 was the appropriate Table and that the assessment of 15 points from Table 1 was appropriate.

Depressive illness

In relation to the appropriate rating for Ms Gilbert's dysthymia with major depression disorder with melancholic features with anxiety condition, the Tribunal, having considered the medical evidence, agrees with the reasons of the dissenting member of the SSAT as set out in paragraph 7 in this statement of reasons for decision. Accordingly, the Tribunal considers the assessment of dysthymia with major depression disorder with melancholic features with anxiety, is 10 points from Table 6 of Schedule 1B of the Act.
The Tribunal considers that the psychiatric condition met the criteria for 10 points in Table 6 of Schedule 1B which provides as follows:
"TABLE 6. PSYCHIATRIC IMPAIRMENT
It is important to record a detailed psychiatric history, a mental state examination, and to distinguish between temporary and permanent psychiatric disorders. People with established psychiatric disorders (eg. Bipolar Disorder) may be highly variable in their clinical presentation and this factor must be taken into account in the assessment. The assessment of psychiatric impairment may benefit from investigating; reports from mental health case managers, compliance with and the effects of medication, support systems that people have in place, the degree of insight present and the presence of psychotic illness. Where a person has a short term problem, for example an adjustment disorder with depression following an illness or marital breakdown, initially this should usually be considered to be of a temporary nature. Table 6 is used for permanent psychiatric disorders only. If there is insufficient clinical information available, a current or recent specialist report should be obtained.
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.
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 impairment would not prevent full-time work. (eg. Short periods of absence from work).
TWENTY Psychiatric illness or disorder with either serious symptomatology OR impairment 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 impairments 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).
FORTY Major 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 impairment in communication (eg. sometimes incoherent or unresponsive) or judgement (eg. acts grossly inappropriately)."
Consequent upon the Tribunal's findings that the low back pain condition warranted 10 points, the cardiorespiratory conditions warranted 15 points, and the psychiatric condition warranted 10 points, the level of impairment would be 35 points. Accordingly, the Tribunal was also well satisfied that the conditions existed at sufficient severity to meet the requirements of subsection 94(1)(b) of the Act.
Work ability
Then next issue was to decide whether there was a "continuing inability to work" as required by subsection 94(1)(c). By reference to subsections 94(2), (3) and (5) of the Act, to prove continuing inability to work, it is necessary that the impairment itself would prevent the person from working in the next two years, and either would prevent him or her from undertaking any educational, vocational or on-the-job training over the next two years, or if such training were undertaken, it would be unlikely to enable the person to do any work within the next two years.
The circumstances of Ms Gilbert are that she is a relatively young person, has minimal high school education, has a post-school Certificate in Hospitality, little work experience, has been in an abusive relationship, has little or no contact with her four eldest children and she has an infant child. That she has little work experience and has an infant child are non medical factors which are not taken into account in considering whether she is medically able to perform work or able to be retrained as referred in subsections 94(1)(c) and 94(2) of the Act.
Dr G Mukherjee opined that Ms Gilbert was a permanent invalid who cannot work under any circumstances (T19). There were, however, no reasons given for this opinion. Dr Kanapathipillai stated (T12, p58):
"She should be able to do light sedentary job in the future after appropriate training and counselling for a suitable job."

In support of that opinion, Dr Kanapathipillai stated in the work ability report that although Ms Gilbert cannot do heavy physical work; is likely to be absent from work for four or more days per month; would require breaks; and would have difficulty with transport to and form work and with moving about at work, he assessed her as being fit for work for 30 hours per week within the next 2 years, and stated that she requires training or vocational assistance. In particular, he stated that she could do light sedentary work within 6 – 12 months and would be capable of working as a receptionist, telephonist or cashier (T12, page 53).

The Department accepts, as does the Tribunal, that Ms Gilbert cannot do heavy, manual work requiring repetitive bending, and lifting. The Tribunal considered however that Ms Gilbert was able to undertake light work.
During her evidence Ms Gilbert acknowledged that she was capable of undertaking training. Having regard to her apparent ease during the telephone hearing and her capacity to deal with the issues raised during the hearing, the Tribunal also considered that Ms Gilbert was able to undertake training and that with appropriate training and assistance, Ms Gilbert would be suited to work such as telephone call centre operator.
Having regard to the written and oral evidence, the Tribunal considered, on balance, that Ms Gilbert's conditions, individually or collectively, would not prevent her from working in the next two years and also would not prevent her from undertaking any educational, vocational or on-the-job training over the next two years, or such training would, if undertaken, enable her to do work within the next two years. Consequently, she did not satisfy the requirements of subsection 94(1)(c).
CONCLUSION

The Tribunal's determination in relation to Ms Gilbert's claim is that at the time of the claim for disability support pension she did satisfy the requirements of subsection 94(1)(a) and subsection 94(1)(b), however she did not satisfy the requirements of subsection 94(1)(c).
Accordingly, for the reasons set out above, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal determines that the decision under review is affirmed. This means that the decision under review is unchanged.

I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J A Shead, Member.
Signed:         .....................................................................................
  Associate
Date of Hearing  13 March 2001
Date of Decision  19 February 2002
Representative for the Applicant   Self
Advocate for the Respondent       George Lozynsky

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Gilbert and Department of Family and Community Services [2002] AATA 103

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