Hangan and Secretary, Department of Family and Community Services

[2003] AATA 1012

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1012

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/619

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Margaret Hangan

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date              11 September 2003

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing, the Administrative Appeals Tribunal, pursuant to section 43 of the Administrative Appeals Tribunal Act1975, affirms the decision under review. 

..............................................

Ms SM Bullock      

Senior Member            

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – Impairment Rating – Whether the Applicant has 20 impairment points under the Impairment Tables – Whether the Applicant has a Continuing Inability to Work for at least 30 hours per week at Award Wages

LEGISLATION

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

REASONS FOR DECISION

Ms S M Bullock, Senior Member

1.      At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally.

2.The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding pages are a true copy of the decision and reasons for decision herein of Senior Member SM Bullock.

Signed:         
          ....................................................................................……………………………….

Associate

Date of Hearing  11 September 2003

Date of Decision  11 September 2003

Representative for Applicant      Self-Represented        

Representative for Respondent  Mr E Thistlethwaite, Departmental Advocate

DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2003/619
By MS S.M. BULLOCK, Senior Member
HANGAN and SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
SYDNEY, THURSDAY, 11 SEPTEMBER 2003

1.      This is an application for review to the Administrative Appeals Tribunal, which I will refer to hereafter as “the Tribunal”, by the Applicant, Mrs Margaret Ann Hangan, of a decision made on 11 March 2003 by the Social Security Appeals Tribunal (“the SSAT”).  That decision affirmed a decision of an Authorised Review Officer (“ARO”) of Centrelink made on 8 January 2003 and that reference is at T64.  The ARO affirmed a decision to cancel Mrs Hangan's Disability Support Pension. 

2.      It was noted in the background of this matter that a decision to grant Mrs Hangan a Disability Support Pension was made on or about 19 July 1996 (T9, p51) for the conditions of varicose veins, hyperthyroidism, iron deficiency and irritable bowel syndrome.  The ARO’s decision had affirmed the decision of a Delegate of Centrelink to cancel Mrs Hangan's Disability Support Pension on 8 July 2002, and that is referred to in the documents at T35, with the last payment advised to Mrs Hangan in the letter cancelling the Disability Support Pension, to be made on 15 August 2002. 

3.      The Tribunal notes that Mrs Hangan has subsequently made a fresh claim for a Disability Support Pension and by letters dated 24 July 2003, Mrs Hangan was advised that her claim for Disability Support Pension was rejected because she had not, in fact, attained the requisite impairment ratings of at least 20 points. 

4. Mrs Hangan appeared before the Tribunal in Sydney on 11 September 2003 and represented herself. The Respondent in this matter, the Secretary, Department of Family and Community Services, was represented by Mr E Thistlethwaite, a Departmental Advocate. Documents were lodged and taken into evidence under section 37 of the Administrative Appeals Tribunal Act 1975, those documents being T1 through to T74 and there were the following exhibits.  Exhibit A1 is a letter from Dr PDG Deighton of June 2003, which had attached to it a “Care Plan Authority”..  Mrs Hangan advised the Tribunal that Dr Deighton is her General Practitioner.  Exhibit A2 is a letter from Dr Deighton to Dr DR Chipps dated 22 May 2003, which had attached to it diagnostic reports in relation to “Fe studies”, a report in relation to thyroid function tests and a report in relation to “Ft3”.  Those latter two diagnostic reports were dated 15 May 2003 and the Fe studies report dated 13 May 2003.  Exhibit A3 was a document prepared by Dr Deighton dated July 2003.  It is a handwritten document, which was referred to Centrelink.  Exhibit A4 consists of test results from the Sydney Diagnostic Services which included a full blood count, Fe studies, thyroid function test results, urine microbiological test results, a lipids test and finally an Ft3 test.  Those tests were undertaken variously on either 3 September or 6 September 2003.

5.      Exhibit R1 is the Secretary's Statement of Facts and Contentions dated 10 July 2003.  Exhibit R2 is a letter to Mrs Hangan from a Customer Service Officer, SG Wiseman, of Centrelink and the date of that letter is 24 July 2003.  That was a two page letter and there was a further letter, again dated 24 July 2003, a single page letter, Exhibit R3, and was again authored by SG Wiseman of Centrelink.

Evidence and Submissions of Mrs Margaret Ann Hangan 

6.      Mrs Hangan described her medical impairments as hyperthyroidism, anaemia, varicose veins, a lower back disc prolapse problem and also high cholesterol.  She also referred to, and I will go into some detail about this, her experiencing blood in her urine and the possibility of kidney function problems.  Firstly, in relation to the thyroid condition, Mrs Hangan noted that she has had this for many years.  She had part of her thyroid gland removed many years ago.  Her thyroid levels go up and down and she provided the information that in about May 2003, her levels were very low and she had her medication, Oroxine, increased to 250 milligrams, this medication having been at the level of 200 milligrams, which she had been taking at that level for six months prior to May 2003.  Mrs Hangan described feeling tired and lethargic as a result of her hyperthyroidism and she feels at times not able to do much, if indeed anything.  She stated that this condition has worsened since her Disability Support Pension was cancelled. 

7.      In relation to anaemia, Mrs Hangan has very low iron levels.  There is some uncertainty as to why this is and she is under investigation and has been for some time.  She indicated to the Tribunal that this could be to do with her kidney functioning.  She has seen a specialist about this and has been advised that there could be a neuropathy problem.  This has not been fully diagnosed at this stage..  In a similar way to the way the condition of her thyroid effects her, she is also because of anaemia very tired.  She lacks energy and also stated that it limits her concentration. 

8.      Mrs Hangan has varicose veins in both legs.  The veins were, as she referred to it, stripped some ten years ago.  There has been little improvement.  She stated that she has some difficulty if she has to sit for any length of time.  That could be 20 minutes, or it could be more, it varies.  She also has some difficulty walking for any great distance.  Mrs Hangan gave the example of her attending the Tribunal today.  She was able to walk two blocks but then had to have a rest and then she continued.  She has been advised that it is in her interests medically to exercise every day and she attempts this.  She stated that she will walk for a short time and then rest.  The impact of the varicose veins upon her is that her legs will ache and she finds that she needs to move.  Some days it is better than others.  She takes pain-killers, which she in fact took today and that was in the form of Panadeine, but also takes some other medication at night which the Tribunal understands is a medication called Paroven..  Mrs Hangan stated that she has consulted a specialist in vascular conditions, Professor Fletcher, who, in the course of his investigations, organised radiographic testing and she was then found to have what she described as prolapsed discs in her lower back.  She has been placed on lifting restrictions and is not able to twist or turn.  She stated that most recently these restrictions were reiterated on 2 June 2003, by Dr Deighton. 

9.      Mrs Hangan has had irritable bowel syndrome for many years.  She has to maintain a diet high in fibre.  She stated that she is constantly constipated and this often causes cramping and pain.  She has tried natural and herbal remedies without much success and she has to be very careful about her weight.  Mrs Hangan stated that she is often depressed about her health.  She noted that in relation to the low iron count, her anaemia, that she takes iron tablets, but she has been advised in recent times that she may need to have iron injections.  Mrs Hangan also described later in her evidence her having a very high cholesterol level and she has had to have her medication increased for that condition.

10.     Mrs Hangan stated that she can attend to activities of daily living.  She lives at home with her 20 year old son, who she described as being intellectually disabled.  His disabilities include him being deaf and unable to speak.  Both her son and Mrs Hangan attend work and work at the same organisation.  Mrs Hangan works at a nursery called the Colour Options Nursery.  She works 29 and a half hours per week.  On Monday she works from 7.30am until 4.00pm, the duties include organising orders at the nursery.  This could be doing the orders by phone or by walking around the nursery.  She checks the orders and checks the stores.  Her duties on Mondays do not involve much sitting.

11.     Mrs Hangan has Tuesday off work.  On Wednesday she works from 7.30am until 4.00pm.  During that day, she mostly visits customers and drives to the various locations, but on some occasions and in her most recent Wednesday duties, she was unable to drive because of her pain and feeling unwell and she had to organise with her manager to driver her.  On Thursdays, Mrs Hangan works 8.30am until 4.00pm and on Fridays, she works 8.30am until 3.30pm.  She undertakes similar duties on both those days, that is working in the office undertaking various clerical duties, receptionist duties, answering the phone, chasing up orders and she described her work as being “up and down” in terms of mobility.

12.     Mrs Hangan described the organisation where she is employed as providing employment for people with various disabilities.  She noted that she has a performance review coming up with her manager.  Mrs Hangan told the Tribunal that she is coping with her duties at the moment, but noted that for a period a couple of weeks ago, she had to take one week off work on sick leave.  She was feeling very tired.  She had to seek medical advice and indeed had a number of blood tests performed.  Mrs Hangan stated that in terms of her coping, which she acknowledged she is doing at the moment, she noted that this is on a day to day basis.

13.     Mrs Hangan stated that she would, in fact, like to reduce her hours but has not done so.  She wants to try to continue to work as long as she is possibly able to, but noted that particularly with the deterioration of her condition, since the cancellation of the Disability Support Pension in July 2002, that this may not be possible for much longer and she also noted the impact of her increasing age on her health.  Mrs Hangan noted that she had been with the Colour Options Nursery for approximately six years.  Before that, she was employed as a carer working on a bus.  She was not the driver of the bus, but a carer for people with some disabilities.  She was working, at that stage, on a five day per week basis at 8.30am until 12pm and then 3.30pm until 5.00pm.  The work at Colour Options Nursery, she agreed, represented an increase in her hours.

14.     Mrs Hangan told the Tribunal that she had been attending Dr Deighton as her General Practitioner for, she believed, a period of 11 or 12 years.  She has also attended another General Practitioner, who in fact has provided a number of documents in the material available to the Tribunal.  That doctor is Dr N Figol.

15.     In relation to her kidney condition, there are more tests to be done and she has stated that she is being monitored and has to be monitored every three months at the minimum and it could be more, depending on what is happening in terms of her day to day health.  If her condition gets worse, and particularly with the blood in her urine, she may have to have a kidney biopsy.  In relation to the cholesterol level specifically, Mrs Hangan noted that the level has increased and she now has a cholesterol rating of 8 and that her medication, Lipitor, has been increased to 40 milligrams.  Mrs Hangan submitted to the Tribunal that her conditions are permanent.  They are worsening and she does not know how long she is going to be able to continue working.  She reiterated the issue of her concern about the deterioration of her conditions with age.  The conditions have not improved at all. 

Respondent’s Submissions

16. Mr Thistlethwaite, in his submissions, principally relied upon his written contentions, that is, Exhibit R1. In opening in those submissions, Mr Thistlethwaite noted that section 94 of the Social Security Act 1991 (“the Act”) sets the qualification criteria for a Disability Support Pension. To be medically qualified, Mr Thistlethwaite had noted that a person must be assigned an impairment rating of at least 20 points. That refers to subsection 94(1)(b) of the Act.

17. Looking at the impairment rating at the Hearing, Mr Thistlethwaite changed his rating in relation to varicose veins and noted that from Table 4 of the Impairment Tables, which are contained in Schedule 1B to the Act, the impairment rating he considered appropriate is ten points. Reading from that Table, ten points reflects, in relation to the function of the lower limbs: “a demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation, such as to cause moderate interference with walking and one or more of the following”, and those examples are: climbing, squatting, sitting or kneeling or, in the alternative, pain or claudication restricts walking to 250 to 500 metres or less at a slow to moderate pace, that is at four kilometres per hour and then there is ability to walk further after resting.

18.     In relation to the irritable bowel syndrome, from Table 11.2, Mr Thistlethwaite indicated that the impairment is nil, which reflects a mild condition able to work eight hours per day and not on medication.  In relation to the overall impact of Mrs Hangan's various conditions Mr Thistlethwaite referred the Tribunal to Table 20 and assigned a ten point impairment rating which reflects mild to moderate symptoms which, although unpleasant, rarely prevents completion of any activity.  The symptoms may cause loss of efficiency in daily activities, but minimal interference performing or persisting with work related tasks and there is a minimal impact on work attendance.

19.     Mr Thistlethwaite then referred the Tribunal to temporary conditions which he submits Mrs Hangan suffers from.  In this regard, Mr Thistlethwaite referred the Tribunal to the notes to the Impairment Tables which state that to be assigned an impairment rating, a condition must be permanent, that is it must be diagnosed, treated and stabilised with all reasonable treatment having been trialed.  Until the effect of the treatment is known, a condition cannot be considered permanent and cannot be assigned an impairment rating.  Mr Thistlethwaite contended that Mrs Hangan cannot be assigned an impairment rating in respect of her hypothyroidism, as the medical evidence states that further treatment is underway.  Furthermore, Mr Thistlethwaite asserted that until the results of that treatment is known, the condition must be considered temporary.  In relation to the anaemia condition and the haematuria that is also being reported as being under investigation with the diagnosis and prognosis as yet unclear, Mr Thistlethwaite contended..  Furthermore, until those conditions have been fully diagnosed, treated and stabilised the conditions must be considered temporary in line with what is provided in the notes to the Impairment Tables.

20. The issue then remaining and in contention, given that on Mr Thistlethwaite's submission Mrs Hangan has reached the required impairment of 20 points, that is, she satisfied subsection 94(1)(b) of the Act, is only the subsection 94(1)(c) of the Act requirement and that is, to paraphrase, that Mrs Hangan has a continuing inability to work. In relation to that matter, Mr Thistlethwaite furthermore noted that that is qualified by subsection 94(2) of the Act, and that work means work of at least 30 hours a week at award wages or above which exists anywhere in Australia and that reference comes from subsection 94(5) of the Act. At hearing Mr Thistlethwaite had provided advice to the Tribunal that he had contacted the manager of the Colour Options Nursery, Mr Doherty, and had confirmed that Mrs Hangan is paid at award wages and thus the work that she does can be considered work as defined within the Act.

21.     Mr Thistlethwaite noted that on 20 July 2002, in relation to Mrs Hangan’s continuing inability or ability to work, Dr Deighton had noted at T43 in a Treating Doctor's Report that Mrs Hangan could work eight hours per week and 30 hours per week within six months.  There is a medical certificate from Dr Figol dated 24 December 2001 which states that Mrs Hangan is fit for light duties but with no lifting and that is to be found at T23.  On 5 March 2002 there was a further medical certificate indicating that Mrs Hangan was fit for work four days per week.  That is at T24.  Mr Thistlethwaite also referred in his submissions to T27, which is again a medical certificate of 4 May 2002, which indicated that Mrs Hangan was fit for work four days per week with no lifting more than 5 kilograms.  At T45 a document dated 3 August 2002 certified that Mrs Hangan was fit for work four days per week but noting that she had some restrictions.  All of these documents are referable to the period which is relevant to the cancellation, Mr Thistlethwaite submitted.

22.     Mr Thistlethwaite then referred the Tribunal to the Health Services Australia report by Dr Ma, Medical Adviser.  That report was dated 23 September 2002.  Mr Thistlethwaite submitted that the Respondent relied upon that document.  Dr Ma in a two page written summary of his assessment of Mrs Hangan noted, particularly at page 184 of the T documents, that Mr Hangan as of 23 September 2002 was considered temporarily unfit for full time work for six to 12 months while she needs further tests to investigate the conditions of anaemia and haematuria.

23.     Mrs Hangan is also pending for follow up for her condition of hypothyroidism. She is currently fit for her usual work.  It was noted that after all her problems have been fully managed, she is potentially capable of working light sedentary duties of 30 hours or more a week.  Thus, Mr Thistlethwaite concluded that the decision under review should be affirmed because Mrs Hangan, on all of the available evidence, does not have a continuing inability to work. 

Findings

24. In this matter as was explained at the Hearing, the Tribunal must apply the qualification criteria for a Disability Support Pension as contained within section 94 of the Act. It is my finding that Mrs Hangan satisfies subsection 94(1)(a) of the Act in that she has a number of physical conditions. In relation to the impairment rating, I also am satisfied that Mrs Hangan has an impairment of 20 points or more under the Impairment Tables and specifically in relation to her varicose veins condition the appropriate rating is ten points from Table 4. In relation to her thyroid condition the appropriate rating is ten points from Table 19. In relation to the irritable bowel syndrome, I consider that the appropriate impairment is nil from Table 11.2. I also consider that nil ratings are appropriate for the condition of anaemia and that of haematuria because it is clear from the evidence available, not just at the time of the cancellation of the Disability Support Pension but currently, that these conditions are still under investigation, so appropriately applying the notes to the Impairment Tables, I cannot assign a rating.

25.     I note that there are other conditions which were not part of the original constellation of conditions referable to the initial grant of Disability Support Pension. Specifically, I refer to the disc prolapse problems referred to by Mrs Hangan and also her cholesterol problem.  I note that all of the material that Mrs Hangan provided to the Tribunal at Hearing consists of documents which relate to either reports from Dr Deighton or medical or diagnostic test results which have been undertaken in May 2003 or indeed September 2003.  The further medical reports from Dr Deighton provided by Mrs Hangan dated June 2003 and the handwritten letter from Dr Deighton of July 2003 refer to not only medical conditions that were the subject of the initial grant of the Disability Support Pension but to other conditions.  Specifically, Exhibit A1 refers to the L4/5 disc prolapse which results in constant low back pain with radiation down both legs.  Furthermore, there is a condition of the hypercholesterolaemia, which Dr Deighton noted increases Mrs Hangan's risk of ischaemic heart disease and peripheral vascular disease.  Those conditions, as I understand the material before me, were not part of the initial grant of Disability Support Pension.

26.     Furthermore, the handwritten document from Dr Deighton addressed to Centrelink and dated July 2003, refers to the known or previous conditions which were part of the initial grant of Disability Support Pension, those conditions relating to the thyroid, the varicose veins and the anaemia.  But there is also the condition referred to in terms of the spinal conditions, the L4/5 disc disease.  I note in passing that in relation to the fresh claim for Disability Support Pension made by Mrs Hangan, that this was rejected in July 2003.  However, there has been, as advised by Mr Thistlethwaite, a review about to be or currently being undertaken by Health Services Australia in relation to all of the recent medical information.  I note also that Mr Thistlethwaite at the Tribunal's behest has undertaken to ensure that the Health Services Australia Medical Adviser undertaking this review has available to him or her the handwritten document from Dr Deighton, a most recent pronouncement on Mrs Hangan's conditions.

27. With that aside, I am satisfied, as I said, that Mrs Hangan does satisfy subsection 94(1)(b) of the Act in that she has an impairment of at least 20 points given the impairments I have assigned. In relation to Mrs Hangan's continuing inability to work, I have some findings which are based on the evidence provided to me by the Applicant, based on the medical information provided in the documents and at hearing and also taking into account the submissions from both Mrs Hangan and Mr Thistlethwaite.

28.     At the current time, Mrs Hangan is working 29 and a half hours per week, and has been working this since at least March 2002, as I understand the documents.  I am not satisfied that at the time of the cancellation of the Disability Support Pension in July 2003, given Mrs Hangan's evidence and the medical evidence that I have before me, that Mrs Hangan was not capable of working 30 hours per week.  It is certainly the case, and I find, that her conditions since July 2002 have worsened.  There have also been the discovery of new conditions, which I believe have some significant impact on her continuing ability to work.  That worsening and those new conditions are in my view the subject of the fresh claim for Disability Support Pension and I am not able to enter into any determination in relation to that as it is still under investigation most particularly by the Health Services Australia Medical Advisers. 

29.     I do consider that the evidence provided to me by Mrs Hangan was truthful.  I consider her a credible witness.  From Dr Deighton's medical reports and particularly during July 2003, the most recent one, and also Mrs Hangan's evidence, I am firmly of the view that her condition, her physical condition has worsened.  However, I must look at the matter before me and that is the initial cancellation of the Disability Support Pension in July 2002.  It is my finding that Dr Figol has indicated as a General Practitioner during periods before July 2002, and subsequently, and I note in August 2002, that Mrs Hangan was able to continue working for four days per week.  There was no description in the medical certification available to me that this should be less than 30 hours.

30.     In relation to Dr Deighton's report, his Treating Doctor's Report, he certifies that Mrs Hangan was able to work eight hours per week and that within a period she would be able to work up to the 30 hours.  It is my view that, given the description of the duties provided by Mrs Hangan, given the medical evidence as a whole and that is Dr Figol, and the Medical Advisers of Health Services Australia, that there was a capacity at the time of the cancellation for Mrs Hangan to continue working 30 hours per week.  The fact that she did not is something that I am not able to make any conclusions about.  I believe that she was able to work 30 hours and reiterate comments made by the SSAT in its decision that Mrs Hangan currently works for 29 and a half hours per week at a normal job and although she works for four days per week the SSAT thought that the medical evidence suggests that she was capable of working an extra half hour per week. That reference is at paragraph 19 of the SSAT decision.  All of the evidence available to me supports that finding by that earlier SSAT decision.

31. Accordingly, under section 43 of the Administrative Appeals Tribunal Act 1975, I must affirm the decision under review principally because I am not satisfied that Mrs Hangan does not have a continuing inability to work.  I am of the view that she had at the time of the cancellation and indeed at least until August when Dr Figol made his certification that Mrs Hangan had the ability to work 30 hours per week.  So with all of that, I affirm the decision under review.

32.     I reiterate my view in relation to Mrs Hangan's health subsequent to the original cancellation of the Disability Support Pension and particularly in relation to her subsequent fresh claim for a Disability Support Pension, and that is that her medical conditions on the evidence available to me, most particularly from Mrs Hangan herself and from Dr Deighton her General Practitioner in his report of July 2003, that the conditions have worsened.  I believe that that is the case and would urge that any investigation of those matters must look at the possible changes in Mrs Hangan’s continuing inability to work, which of course must take into account whether or not there is a capacity for retraining.