Grant and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1289

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1289

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2006/285

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DAVID GRANT

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date2 May 2007

PlaceCanberra

Decision The decision under review is affirmed.

........(Signed).....................

Mr S. Webb, Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - impairment ratings - alcoholism and related impairments not declared on claim and not fully documented and investigated - decision affirmed

Social Security Act 1991 ss 94, Schedule 1B

REASONS FOR DECISION

2 May 2007 Mr S. Webb, Member         

1.      David Grant lodged a claim for disability support pension on 13 February 2006.  His claim was rejected.  Having pursued his rights of review without success, Mr Grant has placed the matter before the Tribunal for review.

2.      Thus, the issue for determination is whether Mr Grant qualified for disability support pension on 13 February 2006 or within the period of thirteen weeks thereafter (the qualification period). 

3.      Mr Grant submits that during the qualification period he was extremely unwell and suffered substantial functional impairments that prevented him from working or studying.  He says that the impairments he suffered were permanent (likely to last more than 2 years) and incurable.  The impairments persisted and Mr Grant maintains there has been no improvement in his functional capacity.  In relation to alcoholism and related psychological impairments, Mr Grant asserts that he is a chronic alcoholic even though he has abstained from alcohol since 1990.  In Mr Grant’s submission his alcoholism was fully investigated, diagnosed and documented in 1990, when he attended a 6 month residential rehabilitation program at the Kenmore Hospital.  He says that he did not include alcoholism in his disability support pension claim form because Centrelink staff informed him that as he was not presently abusing alcohol he was not an alcoholic and that that condition would not assist his claim.  He asserts that his regular (at least) weekly attendance at Alcoholics Anonymous meetings is treatment that keeps his condition stable.  He said that he has a history of violence and is fearful of what might occur if he is forced to forgo that treatment.  Mr Grant maintains that he becomes “insane” and abusive and violent under any stress (this was apparent during the hearing), and that he suffers from depression as a result of his alcoholism.  For those reasons, Mr Grant submits that he has no functional capacity for work or study and should qualify for a disability support pension

4.      I have some sympathy for Mr Grant in the circumstances, and his frustration in dealing with issues concerning the social security payments on which he relies for his sole income is quite apparent.  However, unfortunately for him aspects of his presentation, specifically psychological impairments that may relate to his alcoholism, were not and have not yet been properly investigated, diagnosed and documented.  Thus, these impairments cannot appropriately be assessed for present purposes.  I note that Mr Grant subsumes these issues under the broad heading of alcoholism and relates his functional problems to that source.  That may be so, but it is not yet established on the medical evidence.

5.      Under the Social Security Act 1991 in order to qualify for a disability support pension during the qualification period a person must have: a physical, intellectual or psychiatric impairment[1] warranting a rating of 20 or more points under the Impairment Tables set out in Schedule 1B[2] and, relevantly, a continuing inability to work[3].

[1] Subp 94(1)(a

[2] Subp 94(1)(b)

[3] Subp 94(1)(c)

6.      It is not in dispute that Mr Grant had the following impairments during the qualification period: membranous glomerulonephritis (renal disease), chronic obstructive airways disease (COAD), alcoholism and depression.  On the evidence of Dr Hutchins, Mr Grant’s general practitioner for many years, I am reasonably satisfied that he has mental health problems, described as extreme emotional disability and long term problems with anger and impulsiveness, that constitute psychiatric impairments for present purposes[4].  Thus subp 94(1)(a) is satisfied.

[4] Dr Hutchins’ report at T13 folio 97 refers

7.      Does Mr Grant have an impairment of at least 20 points under the Impairment Tables at Schedule 1B of the Act?  I am reasonably satisfied that he does not, and so find.

8.      Mr Grant’s evidence concerning his renal disease is consistent with the medical evidence from 2006[5].  That is, his renal disease was diagnosed in May 2005 and responded to treatment.  I am reasonably satisfied that the condition is likely to be a permanent condition that may fluctuate in severity over time subject to treatment.  On the available medical evidence it appears that the nephrotic syndrome resolved with treatment[6]  and other aspects of the disease appear to be reasonably managed by medication[7].  Nevertheless it is accepted that this impairment caused and presently causes Mr Grant to experience functional difficulties performing physical tasks that a man of his age could reasonably be expected to perform without difficulty.  Mr Grant’s evidence was that he would not be capable of carrying a 3 litre bottle of milk (approx 3kgs) from the shop to his home if he was walking (a distance of approximately 1 kilometre) and that he usually drives his mother’s car if he needs to purchase such items.  He gave evidence that reaching up to prune a nectarine tree with secateurs caused pain in his kidneys that was sufficient to render him incapable and forced him to lie down.  There is evidence that Mr Grant complained of backache from gardening in November 2005[8].  Nevertheless it is not appropriate to provide an impairment rating for the condition during the qualification period as at that time the condition was improving and was not fully treated or stabilised[9].

[5] Dr Hutchins, Dr Coote, Dr Falk and Dr Karpe

[6] T17 folio 118

[7] T17 folios 119-120

[8] T17 folio 117

[9] See T17 folios 119-121

9.      Mr Grant informed me that his COAD has not changed much since February 2006.  He gave evidence that he uses an inhaler with Spiriva capsules from time to time, when he needs to.  His evidence was that he could walk 1 kilometre on a flat concrete footpath (from his mother’s house where he resides to the local shop, for example) without too much difficulty and without stopping.  He said, however, that he would be out of breath and would be unable to carry more than a newspaper and a loaf of bread home on his return journey.  Mr Grant told me that he could mow his mother’s lawn (approximately 10 metres by 6 metres) but would be out of breath and would have to lie down and sleep for between 10 and 30 minutes immediately afterwards in order to recover.  Dr Hutchins reported on 13 February 2006 that the condition was likely to last more than 2 years with only slight improvement expected.  Dr Coote reported that the condition was temporary on the basis that the results from spirometry testing should be taken into consideration[10].  Dr Williams reported that the condition was temporary but provided no detail or explanation[11].  Spirometry testing was carried out on 28 November 2005 and 17 May 2006.  The results of these tests reveal some improvement in Mr Grant’s COAD over that period, whereby the percentage ratio of his Forced Expiratory Volume and Forced Vital Capacity improved from 59 percent on 28 November 2005 to 71 percent on 17 May 2005[12].  Mr Grant’s evidence was that he uses the Spiriva inhaler less frequently than he used to.  Dr Hutchins apparently informed the Social Security Appeals Tribunal that Mr Grant’s vital breathing capacity was, at that time (2 November 2006), within the normal range[13].  Considering this evidence I am reasonably satisfied and find that Mr Grant’s COAD impairment was not fully stabilised during the qualification period.  That being so, with reference to the qualification period I am unable to accurately assess an impairment rating under Table 2 of the Impairment Tables.

[10] T7 folios 75 and 82

[11] T16 folio 106

[12] T23 folio 138

[13] T2 folio 13

10.     Mr Grant presently suffers from depression.  It is possible that he has suffered from depression for many years, as he asserts.  However, Dr Hutchins’ evidence is clear enough: treatment of the condition with anti-depressant medication (Lexapro) commenced in May 2006[14].  By Mr Grant’s own account, his depression improved with treatment.  Thus, it cannot be said that this condition was fully treated and stabilised during the qualification period.  Plainly enough it was not, and I so find.

[14] T13 folio 97

11.     Alcoholism and what Mr Grant described as his “dis-ease” or “insanity” are significant impairments[15].  I accept Dr Hutchins evidence that Mr Grant has been “severely emotionally disabled for many years” and that he has “long term anger and impulsive problems”[16]. By his own account, these aspect of his presentation are the most significant impediments to his functional capacity and his ability to work (I also note Dr Hutchins’ reported comments to the Social Security Appeals Tribunal in this regard[17]).  I accept that evidence.  However, Mr Grant’s mental health problems have not been fully diagnosed, investigated, documented or treated.  It may be, as Mr Grant asserts, that these problems are related to alcoholism, but that is not established on the medical evidence before me.  I note that Mr Grant attended a 6 month residential rehabilitation program at the Kenmore Hospital in 1990 and has not consumed alcohol since.  I accept that Mr Grant has a continuing struggle with alcoholism and that he relies heavily on the Alcoholics Anonymous meetings and literature[18] as treatment in order to maintain his abstinence.  The difficulty for Mr Grant is that the mental health symptoms he described[19] were not fully diagnosed, investigated, documented or treated prior to or during the qualification period – and on the evidence before me it appears that they have not yet been fully assessed.  I note Dr Hutchins’ apparent frustration concerning his unsuccessful attempts to obtain a psychiatric assessment of Mr Grant[20].  That is unfortunate for Mr Grant.  Nevertheless I am unable to assign an impairment rating for these impairments with reference to the qualification period.

[15] Exhibit A3 refers

[16] T13 folio 97

[17] T2 folio 12 refers

[18] Exhibit A1 refers

[19] Exhibit A3

[20] T13 folio 97 and T2 folios12-13 refer

12.     It is appropriate to observe at this point that there was no challenge to Mr Grant’s credit or to the reliability of his evidence.  Mr Grant gave his evidence in a straightforward manner, even though his difficulty maintaining concentration was apparent during the hearing.  Nevertheless, I accept his evidence as truthful but note that some caution is required as Mr Grant clearly stated that he has substantial difficulty with his memory, to the extent that he loses track of what he is saying from time to time (this was demonstrated a number of times during the hearing) and has to write things down so as not to forget.

13.     Thus, in conclusion, Mr Grant does not have an impairment rating of 20 or more points applying the Tables at Schedule 1B of the Act.  It follows, pursuant to s 94 of the Act that he was not qualified for a disability support pension during the qualification period, and the decision under review must be affirmed. 

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:       .....................................................................................
  Peter Strauch, Associate

Date of Hearing  13 April 2007
Date of Decision  2 May 2007
Applicant  David Grant
Solicitor for the Respondent        Jillian Furner
  Centrelink Legal Services Branch