Harvey and Secretary, Department of Employment and Workplace Relations

[2006] AATA 473

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 473

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/670

GENERAL ADMINISTRATIVE  DIVISION		)
Re		PAMELA HARVEY

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member P McDermott

Date31 May 2006

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

...............[Sgd}...............................

P McDermott      
  Senior 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 – decision affirmed

Social Security Act 1991 s94
Social Security (Administration) Act 1999 cl 4(1) Schedule 2

Esho and Secretary, Department of Family Services [2004] AATA 1118 at[20]
Secretary, DSS v Murphy (1998) 52 ALD 268

REASONS FOR DECISION

31 May 2006 Senior Member P McDermott       

Introduction

1.      On 15 June 2005 Ms Harvey lodged her claim for a disability support pension. I have to decide whether she is entitled to a disability support pension. My decision will largely turn on whether there is medical evidence that she had a permanent medical condition within 13 weeks after the lodgement of her claim.

PRIOR DECISIONS

2.          The original decision maker on 11 July 2005 made a decision that Ms Harvey did not qualify for a disability support pension because her “medical conditions are temporary”.

3.      On 24 August 2005 the authorised review officer affirmed this decision. That officer considered that the functional impairment of her condition has been rated as temporary and that she has been assessed as capable of working more than 30 hours per week within the next 6 to 24 months.

4.      On 6 October 2005 the Social Security Appeals Tribunal affirmed the decision of Centrelink.

ELIGIBITY CRITERIA

5. The entitlement to a disability support pension is conferred by s 94 of the Social Security Act1991 (“the Act”).

6.      A person is qualified for a disability support pension if the person has a physical, intellectual or psychiatric impairment (s 94 (1) (a)); and the person’s impairment is of 20 points or more under the Impairment Tables (s 94 (1) (b)); and the person has a continuing inability to work (s 94 (1) (c)). All of these requirements must be satisfied before a person is entitled to a disability support pension.

7. I mention that there are other provisions in s 94 that Ms Harvey satisfies. She has attained the age of 16 years (s 94 (1) (d)) and she is an Australian resident (s 94 (1) (e)(i)).

8. In considering whether Ms Harvey had a “continuing inability to work” I must have regard to how that expression is defined by s 94(2) of the Act. That definition requires Ms Harvey to have an impairment which is, of itself, sufficient to prevent a person from doing any work within the next 2 years. The term “work” is defined to be work of at least 30 hours per week at award wages or above (s 94(5)).

IMPAIRMENT TABLES

9. The Impairment Tables which I must consider are to be found in Sch 1B of the Act.

10.     Paragraph 4 of the Introduction to the Impairment Tables provides that a rating is only to be “assigned after a comprehensive history or examination”. The paragraph states that for “a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”.

11.     Paragraph 5 of the Introduction to the Impairment Tables states that a condition must be considered to be permanent. That paragraph states that once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. The paragraph concludes with a statement that a condition will be considered to be fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years.

12.     Paragraph 6 of the Introduction to the Impairment Tables states that in order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider what treatment or rehabilitation has occurred and whether any treatment is still continuing or is planned in the near future.

13.     Paragraph 8 of the Introduction to the Impairment Tables states that in general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it.

TIME PERIOD FOR DETERMINING ELIBILITY

14.     In determining whether Ms Harvey is qualified to receive the disability support pension I am required to consider whether she meets the eligibility criteria on the date of her claim or within 13 weeks of that date.

15. I am required to have regard to that time period by clause 4(1) of Schedule 2 of the Social Security (Administration) Act 1999. As Member Perton explained in Esho and Secretary, Department of Family Services [2004] AATA 1118 at [20], cl 4 (1) allows a person who does not qualify for disability support pension at the date of the application to do so within a further 13 weeks.

16.     The time period for which I must determine the eligibility of Ms Harvey commenced on 15 June 2005, the date of her claim, and concluded on 14 September 2005. I will later in my reasons refer to this period as the “relevant time period”.

HISTORY OF THE MATTER

17.     Ms Harvey gave evidence in support of her application. I found her to be a witness who gave evidence to the best of her ability. Whilst in her oral evidence she was not sure about certain dates I find that any uncertainty in dates is understandable in view of her experiences and that some of those dates could be verified by a schedule of her treatment sessions (exhibit A4).

18.     Ms Harvey in her evidence stated that in 2003 she undertook a 6 week training course with the Pharmacy Guild to qualify her as a pharmacy assistant. In her claim form has also mentioned that she completed a pharmacy course (T8, fol 46). Soon after she qualified as a pharmacy assistant she was fortunate to be employed in a full-time position in a pharmacy at Kenmore. She held this position until September 2004 when she had a lumpectomy to treat cancer in her left breast. She had in the previous month been diagnosed with cancer of the left breast. Her treatment included radiotherapy as well as surgery.

19.     After her surgery she stated that she was employed on a basis whereby she would work about 20 hours (the claim form mentions 22 hours) in one week and then in an alternate week work about 29 hours. She mentioned that at that time she had difficulty in working more than 2 days in a row because of the pain in her arms. In her claim form she stated that she was working at the time for 52 hours per fortnight (T8, fol 47).

20.     In her claim form she stated that she was suffering from breast cancer (T8, fol 41). She also mentioned that she had time off work. On the form she also wrote about her lymphedema for which she received physiotherapy. At the hearing she gave evidence of her treatment by Hildegard who is a physiotherapist at the Royal Brisbane and Women’s Hospital. Her treatment sessions are documented in exhibit A4.

21.     Ms Harvey is a single person. Her 32 year old son resided with her during 2005 to assist her with domestic matters.

22.     Ms Harvey also gave evidence that on or about 3 February 2006 she ceased work. She stated that she still has continual problems with her left arm.

Treating Doctor’s Report

23.     Centrelink was provided with a Treating Doctor’s Report dated 7 December 2005 from her treating doctor, Dr Buchan-Hepburn (T9). Dr Buchan-Hepburn in his report confirms a diagnosis of the condition of Carcinoma Breast, the date of diagnosis being 17 August 2004. Dr Buchan-Hepburn also confirmed that the onset of this condition occurred in the month of August 2004.

24.     Dr Buchan-Hepburn reported that the condition was treated at the Royal Brisbane Hospital with surgery on 2 September 2005 and then radiotherapy and chemotherapy. I am satisfied that the reference in the treating doctor’s report to the surgery being on 2 September 2005 is a typographical error as a report from the Royal Brisbane and Women’s Hospital confirms that the surgery, being a wide local excision and axillary lymph node dissection, occurred on 2 September 2004 (T 10).   

25.     Dr Buchan-Hepburn reported that Ms Harvey’s then symptoms were a recurrent infection of the left breast.

26.     Dr Buchan-Hepburn also reported on the current impact of the condition on the patient’s ability to function. Dr Buchan-Hepburn then reported that the current impact of the condition was expected to persist for less than 3 months (T9, fol 58).  Dr Buchan-Hepburn also reported that within the next two years the effect of the condition on the patient’s ability to function is expected to significantly improve (T9, fol 58).

MEDICAL ASSESSMENT REPORT

27.     On 6 July 2005 Ms Harvey was assessed by Dr Arvind Das of Health Services Australia who completed a Medical Assessment Report.

28.     Dr Das reported that Ms Harvey’s breast condition was temporary. Dr Das gave a reason why he considered the condition to be temporary was the fact that on the treatment the lymphatic drainage was helping the lymphedema (T14, fol 78).

29.     Dr Das in his report stated Ms Harvey would be capable of undertaking more than 30 hours of work per week within 6 to 24 months (T14, fol 78).

Recent Medical Reports

30.     I mention that some of the evidence before me includes medical reports that have been provided this year by Dr Buchan-Hepburn (report, 6 January 2006, (ex. A5) and Dr Karen Shaw (report, 9 February 2006, (ex. A3).  There is also recent evidence of lymphedema (report of Dr M Iyer, Queensland X-Ray, 23 January 2006, (ex. A2). 

31.     These recent medical reports do not concern her state of health during the relevant time period for determining her eligibility to a disability support pension. It is for that reason why I have not in these reasons outlined the nature of her current medical conditions. I have also had regard to privacy considerations.

32.     These recent medical reports will undoubtedly be considered in determining any further claim that Ms Harvey may make. I was informed during the hearing that she has been advised to make a further claim.

33.     I have, however, had regard to these recent medical reports in granting Ms Harvey some time for the lodgement of any written submissions that she desires to make. She has now decided not to make any further submissions in support of her application.

FINDINGS OF TRIBUNAL

34.     In determining this application I have considered the documented condition of breast cancer which is the subject of the claim of Ms Harvey (T8, fol 47). There is no doubt that this condition constitutes an impairment (s 94 (1) (a)).

35.     I have to consider whether her impairment is of 20 points or more under the Impairment Tables (s 94 (1) (b)); and whether she has a continuing inability to work (s 94 (1) (c)).

36.     In Secretary, DSS v Murphy (1998) 52 ALD 268 Drummond J explained, at 271, that the documented condition must also be the condition of disability that the applicant is in after that person has received appropriate treatment for the condition.

37.     My decision is based upon my conclusion that during the relevant time period the condition of Ms Harvey was not “considered to be permanent” in accordance with paragraph 4 of the Introduction to the Impairment Tables. I have already mentioned that paragraph 4 of the Introduction to the Impairment Tables provides that for “a  rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”.

38.     I have relied upon medical evidence to find that during the relevant time period the condition of Ms Harvey was not permanent. I also find that during the relevant time period her condition was not stabilised.

39.     Ms Harvey was examined during the relevant time period, on 6 July 2005, by Dr Das who reported that Ms Harvey’s breast condition was temporary. On 7 December 2005 Dr Buchan-Hepburn, her treating doctor, reported that the current impact of the condition was expected to persist for less than 3 months (T9, fol 58).  Dr Buchan-Hepburn then also reported that within the next two years the effect of the condition on the patient’s ability to function is expected to significantly improve (T9, fol 58).

40.     I have relied upon the evidence of Dr Das and Dr Buchan-Hepburn to base my finding that during the relevant time period the breast cancer condition of Ms Harvey had not stabilised. I cannot assign a rating for her impairment in these circumstances having regard to paragraph 4 of the Introduction to the Impairment Tables.

41.     I have also regarded as significant the fact that during the relevant time period Ms Harvey was having treatment for her condition (T22).  I have taken this into account to base my finding that her condition had not then stabilised. In making this finding I have had regard to paragraph 6 of the Introduction to the Impairment Tables which provides that in order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider what treatment or rehabilitation has occurred and whether any treatment is still continuing or is planned in the near future.

42.     A further reason why I consider that Ms Harvey is not entitled to the disability support pension relates to the fact that there is evidence that she was capable of working for 30 hours per week within the next 2 years. This was the conclusion of Dr Das who reported that Ms Harvey would be capable of undertaking more than 30 hours of work per week within 6 to 24 months (T14, fol 82). The opinion of Dr Buchan-Hepburn that he expected a significant improvement in her condition within the next two years is consistent with this opinion of Dr Das.

43.     I accept the evidence of Dr Das and find that that during the relevant time period Ms Harvey was capable of undertaking more than 30 hours of work per week within 6 to 24 months. Indeed there is evidence from Ms Harvey that during the relevant time period she worked for 29 hours on each alternate week.

44. I have decided that Ms Harvey does not satisfy the requirements of s 94 of the Act and is not entitled to a disability support pension.

45.     I make the observation that my decision relates to the evidence of the condition of Ms Harvey during the relevant time period and would not have any bearing upon her entitlement to the disability support pension under any subsequent claim that she has now lodged or may lodge in the future.

DECISION

46.     I affirm the decision under review.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott

Signed:          .....................................................................................
           J. Mills, Legal Research Officer

Date/s of Hearing  5 April 2006         
Date of Decision  31 May 2006
The applicant appeared in person
Respondent  Ms Dole, departmental advocate