Hodgson and Secretary, Department of Employment and Workplace Relations
[2006] AATA 992
•22 November 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 992
ADMINISTRATIVE APPEALS TRIBUNAL № V2005/964
GENERAL ADMINISTRATIVE DIVISION
Re: SHARON HODGSON
Applicant
And:secretary,
department of employment and workplace relations
Respondent
DECISION
Tribunal: Mr Egon Fice, Member
Date:22 November 2006
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Mr Egon Fice
Member
SOCIAL SECURITY – Disability Support Pension – hyperthyroidism – anxiety – hypertension – impairment tables – stabilised condition – inability to work
Social Security Act 1991 s 94
REASONS FOR DECISION
22 November 2006 Mr Egon Fice, Member
1. Ms Sharon Hodgson lodged an application seeking review of two decisions made by a delegate from Centrelink (the agency which acts on behalf of the respondent): a refusal to grant an exemption from the activity test under the Newstart allowance; and the rejection of her claim for a disability support pension (DSP). However, the first issue dealing with exemption from the activity test was resolved prior to the hearing of the matter.
2. Ms Hodgson said she suffers from hypothyroidism, anxiety and hypertension. She claims she meets the criteria for the grant of a DSP. Her claim was rejected by a Centrelink delegate. That decision was affirmed by an Authorised Review Officer on 21 February 2005. The Social Security Appeals Tribunals (SSAT) also affirmed the decision on 15 September 2005.
3. The issues to be decided by the Tribunal are: whether Ms Hodgson satisfies the requirements of s 94 of the Social Security Act1991 (the Act) and in particular, whether her claimed impairments can be assigned a combined rating of at least 20 points under the Tables for the Assessment of Work-related Impairment for Disability Support Pension in Schedule 1B of the Act (the impairment tables); and whether she has a continuing inability to work.
Relevant Facts
4. Ms Hodgson said she presently suffers from anxiety disorder, hypertension and thyrotoxicosis. Her thyroid problem has also been diagnosed as hyperthyroidism.
5. Ms Hodgson said that she started suffering from anxiety when she was married and that she has always been a bit anxious. She said she was not currently receiving treatment for anxiety but she had taken anti-depressants in the past. She decided that she had had enough of chemicals in her system after being diagnosed with the thyroid problem and she then resorted to seeing a Chinese herbalist. She has also received counselling from Ms S. Sansoni, a psychologist, and she indicated that this had assisted her.
6. As best I could determine from her evidence, Ms Hodgson is not presently affected by high blood pressure, although it was high a few months prior to the hearing. She said that Dr E. Poliness, who is a medical practitioner formerly employed by the Victorian Aboriginal Health Service Co-operative Ltd, told her that a diagnosis of hypertension was not conclusive. Ms Hodgson said that she was not aware of high blood pressure and did not think that it impacted on her daily activities. She said she has a general feeling of unwellness.
7. Ms Hodgson was diagnosed with a thyroid problem in about 2004. This was described by Dr Poliness as hyperthyroidism. In a letter dated 12 September 2005 Dr Poliness said her hyperthyroidism had been difficult to control despite regular review by the thyroid clinic at St Vincent’s Hospital, ongoing care through the Victorian Aboriginal Health Service Co-operative Ltd clinic, and work with her registered Chinese traditional medical practitioner. He described Ms Hodgson as suffering from hypertension, racing pulse, anxiety and decreased concentration as symptoms of her thyrotoxicosis; and that her most recent thyroid function tests, conducted in August 2005, show her to be continually thyrotoxic despite treatment.
8. Ms Hodgson lodged an application for the disability support pension on 16 December 2004.
Qualification For Disability Support
9. According to s 94 of the Act a person qualifies for the DSP 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;…
10. Section 94(2) sets out the meaning of the continuing inability to work and it provides that :
A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and
(b)either:
(i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
11. The Secretary did not dispute the fact that Ms Hodgson is a person with a physical, intellectual or psychiatric impairment for the purposes of s 94(1)(a) of the Act. However, the Secretary contended that Ms Hodgson’s impairment does not attract 20 points or more under the impairment tables nor has she a continuing inability to work as defined in the Act.
The Impairment Tables
12. The Introduction to the impairment tables, insofar as it is relevant, states:
…
(4) A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
(5)The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light in the available evidence it is more likely than not it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years. …
13. The Introduction also states that in order to establish whether a condition is fully diagnosed, treated and stabilised, one has to consider:
(a) what treatment or rehabilitation has occurred;
(b) whether treatment is still continuing or is planned in the future; and
(c)whether any further reasonable treatment is likely to lead to a significant functional improvement within the next 2 years.
14. Therefore, before embarking upon an investigation as to the appropriate points to be allocated to Ms Hodgson’s impairment, it is necessary to establish whether the pre-conditions for the allocation of those points have been satisfied.
Anxiety Disorder
15. Ms Hodgson has had a long term anxiety problem, which pre-dates her thyroid condition but, according to Dr Poliness, the anxiety is exacerbated by her thyrotoxicosis. It seems to follow that her anxiety may well diminish if her thyroid condition were to respond to medical treatment. The earliest medical reports provided by Ms Hodgson are Centrelink medical certificates completed by various treating practitioners from the Victorian Aboriginal Health Service Co‑operative Ltd. A medical certificate provided by Dr S. Koh dated 16 July 2004, although not referring to anxiety as a diagnosed condition, recorded that the symptoms of Ms Hodgson’s thyrotoxicosis or hyperthyroidism included anxiety for several months. In a medical certificate provided by Dr C. Stainsby dated 16 July 2004 the only diagnoses were thyrotoxicosis and hyperthyroidism and the symptoms were stated as palpitation and anxiety. Both Dr Koh and Dr Stainsby stated that the symptoms are likely to show considerable improvement within two years. In a letter dated 2 August 2004 Ms Sansoni and Ms C. Rose confirmed that Ms Hodgson had been a client of Camcare’s Counselling Service for in excess of 12 months. Ms Sansoni stated that she had been seeing Ms Hodgson on a weekly basis since 15 July 2003 for support in dealing with anxiety and stress related issues. Ms Sansoni did not state the extent of Ms Hodgson’s stress and anxiety problems, nor did she state the cause of those problems, the degree of incapacity that they caused, or her prognosis.
16. In a treating doctor’s report, prepared for Centrelink by Dr D. Brockman on 15 December 2004, the doctor noted that Ms Hodgson’s anxiety was long- standing and that it affected her concentration and ability to work on a task for long periods of time. As to Ms Hodgson’s ability to function, Dr Brockman stated that she was unable to work in a productive work environment due to poor concentration and sensitivity to pressure which caused anxiety and panic. He stated that the condition was expected to persist for more than 24 months.
17. On 31 December 2004, Dr T. Ching of Health Services Australia Ltd examined Ms Hodgson and provided a report. Dr Ching said that Ms Hodgson’s anxiety was long standing and that she was receiving psychological counselling but was not being treated with medication. Upon examination, Dr Ching noted that Ms Hodgson was slightly anxious. Dr Ching also noted that her condition should be reviewed in two years. Dr Ching said that Ms Hodgson had opted for treatment with Chinese herbs rather than conventional medicine. In fact Dr S. Ren, who describes herself as a doctor of Chinese medicine, provided two reports dated November 2005 and 29 January 2006 respectively. In her first report, Dr Ren stated that she had been treating Ms Hodgson for a medical condition since June 2004. There is no mention in that report of a general anxiety condition. Dr Ren referred to test results from the endocrine specialist and I have assumed that the treatment was directed to her hypothyroid condition rather than anxiety. In her second report, Dr Ren referred to the fact that Ms Hodgson suffers from stress and that she lacked concentration. However, again, that report was directed to questions raised about her thyroid condition, rather than specifically dealing with anxiety.
18. Ms Hodgson was subsequently examined by Dr D. Wong Shee, a medical practitioner from Health Services Australia Ltd, who provided a report dated 28 March 2006. Dr Wong Shee said that on examination, Ms Hodgson appeared moderately anxious and mildly depressed. Dr Wong Shee also noted that Ms Hodgson had a several year history of generalised anxiety disorder. However, Dr Wong Shee opined that the functional impact of Ms Hodgson’s anxiety disorder was temporary and it was an exacerbation of an existing condition. I understand that to mean Ms Hodgson’s anxiety disorder was made worse by her hypothyroidism. However, Dr Wong Shee provided no opinion about whether Ms Hodgson’s anxiety disorder would continue to exist even if her thyroid condition was stabilised or resolved.
19. Dr T. Ranatunga of the Victorian Aboriginal Health Service Co-operative Ltd, in a medical certificate dated 14 May 2006, reported that Ms Hodgson suffered from anxiety and poor concentration and that she should receive counselling and anxiety management assistance. Dr Ranatunga noted that Ms Hodgson was receiving herbal medications and that he had referred her to an endocrinologist.
20. Overall, the medical evidence regarding Ms Hodgson’s anxiety disorder is sparse, to put it at its highest. The evidence does indicate that Ms Hodgson suffered from anxiety and stress related issues before the clinical onset of hypothyroidism or thyrotoxicosis. I accept that her anxiety condition is exacerbated by her thyroid problem. Nevertheless, it is difficult to come to the conclusion that her anxiety condition has been investigated, treated and stabilised. There is contradictory evidence about whether her anxiety disorder is temporary or permanent. However, Dr Ching was of the opinion that the condition was permanent. I am inclined to accept that view, if for no other reason that no examining medical practitioner has indicated that there will be any significant functional improvement, with or without reasonable treatment, in the two years following Ms Hodgson’s application. Dr Ching also opined that under Impairment Table 6, Ms Hodgson’s anxiety condition would attract an impairment rating of 10 points. The criteria for attracting that rating include suffering moderate and regular symptoms and generally functioning with some difficulty. There may be a noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal workplace relationships. A person falling within this category may have received psychiatric treatment which has stabilised the condition. The condition has minor effects on work attendance and/or ability to work but it does not prevent full-time work. This seems to accord with Ms Hodgson’s evidence given at the hearing. She could not say how it affected her ability to function on a day-to-day basis and she could not distinguish the effects of anxiety from her thyroid condition. She was not sure that it prevented her from doing her usual activities. Ms Hodgson’s last form of employment was as a radio broadcaster for a Koori radio station. When asked if she would do more radio work, she responded that she couldn’t do it physically or mentally. She also said that she had attempted to do more radio work about 12 months prior to the hearing but the person with whom she wished to conduct the broadcast did not want to do it. She had formal training in radio broadcasting when she attended a university course which ran for a couple of weeks. When asked specifically whether her anxiety condition would prevent her from doing the work of a radio announcer, she responded I don’t think so. Ms Hodgson did say that she was currently enrolled in a Masters program but that she had to discontinue her studies because of an inability to concentrate and to work under pressure. However, Ms Hodgson admitted that she was learning to deal with anxiety and that she had learned to let things go.
21. Overall, I accept Dr Ching’s analysis that there is no objective evidence of any significant physical or functional impairment that would prevent Ms Hodgson working full time. She is fit for full-time, light, low stress work. I accept Dr Ching’s assessment that Ms Hodgson’s anxiety condition attracts an impairment rating of 10 points.
Hyperthyroidism/Thyrotoxicosis
22. Ms Hodgson was diagnosed with what Dr Ranatunga described as a medical illness related to hyperthyroidism. In the various medical certificates which she has obtained from treating doctors at the Victorian Aboriginal Health Service Co‑operative Ltd, her condition has been described as hyperthyroidism or thyrotoxicosis. According to Dr Poliness, her condition has been very difficult to control although it has been reviewed regularly by an endocrinologist from the thyroid clinic at St Vincent’s Hospital. She has also been treated by Dr Ren as she prefers Chinese herbal treatment to conventional medicine. However, although Dr Poliness said in his report that her thyroid disease is permanent and has been fully investigated, he then went on to state:
…as although she may not qualify for a DSP – as her condition cannot be completely stated to last 2 years (and hopefully, as one of her treating doctors we will show significant treatment in the next few months) – she is definitely too unwell to participate in work at the moment …
23. Although Dr Ranatunga, in a report dated 26 July 2004, confirmed that Ms Hodgson had been diagnosed with a medical illness related to hyperthyroidism and that she had been investigated and clinically managed by a specialist endocrinologist at St Vincent’s Hospital, no report from an endocrinologist was put into evidence.
24. The medical certificate provided by Dr Koh notes that Ms Hodgson’s thyrotoxicosis/hypothyroidism is a temporary condition and that it was likely to show considerable improvement within two years. Dr B. Randanowicz, in an undated report, confirmed that her condition was considered temporary. Dr Stainsby, in a report dated 16 July 2004, also described her thyroid condition as temporary and likely to show considerable improvement within two years. However, in a report dated 13 December 2004, Dr Randanowicz described her condition as permanent with an uncertain prognosis. Dr Brockman, in his report dated 15 December 2004, confirmed that Ms Hodgson had been diagnosed with hypothyroidism in June 2004 and that she was being treated with Neo-Mercazole. Dr Brockman indicated that the impact of this condition on Ms Hodgson’s ability to function was expected to persist for more than 24 months. Dr Ching, in his report dated 31 December 2004, described her thyroid disease as adequately controlled. He said there was no objective evidence of any significant physical or functional impairment that would prevent full-time work participation.
25. Dr Wong Shee, in a report 28 March 2006, said that there were no clear symptoms of hyperthyroidism or hypothyroidism, apart from mild heat intolerance and possibly fatigue. The report stated that Ms Hodgson was clinically euthyroid on examination. Dr Wong Shee also reported that Ms Hodgson told her that her recent thyroid function test showed thyrotoxin levels in the upper normal range and fluctuating TSH (thyroid stimulating hormone) levels. Dr Wong Shee concluded that this would suggest the condition was adequately controlled and unlikely to be causing significant functional impairment. Dr Wong Shee was not provided with any thyroid function test results and/or specialist reports.
26. In her evidence Ms Hodgson said that in the two years since being diagnosed with a thyroid problem, she has had ups and downs. She also said her endocrinologist told her she might go into remission at the end of two years but she was not certain about that. She said that Dr Ren told her that she would suffer the problem for the rest of her life. Dr Ren declined to give evidence at the hearing even though she was asked to do so. Ms Hodgson said her endocrinologist wanted her to have surgery. However, she refused because she was scared of having such a procedure. She was not convinced that surgery would solve the problem. Ms Hodgson also admitted that although she was taking Neo-Mercazole, she had reduced her dosage from that prescribed because she felt that she was improving. When she took the prescribed dose she said she said she suffered from side-effects which were unpleasant. She said her endocrinologist agreed that the reduced dosage was satisfactory.
27. In a letter provided to the Tribunal on 16 August 2006, after being given leave to file further documents, Ms Hodgson said she attended the thyroid clinic on 9 August 2006 for a regular test. She said that the results of that test showed an improvement, although other symptoms persisted. She said that she asked if her condition was permanent and she was told that the condition can go into remission and then recur.
28. In my view, the weight of the evidence indicates that Ms Hodgson’s thyroid condition is not permanent as it cannot be said to have stabilised. On her own evidence, there are signs of improvement. For that reason, I am inclined to agree with Dr Ching that this condition should not be assigned a points rating under the impairment table.
Hypertension
29. Although Ms Hodgson claims to suffer from hypertension, and various medical practitioners have referred to the fact that she suffers from hypertension, there is no indication in any of the medical documents regarding the extent of that condition. The brief statements that have been made by various medical practitioners indicate that her hypertension is controlled. She has not been prescribed any medication to assist in its control. Dr Brockman, in his report dated 25 January 2005, makes no mention of the condition. Dr Poliness, in his report of 2 August 2005, said that Ms Hodgson’s hypertension was coupled with her anxiety condition. In her evidence Ms Hodgson said that she could not feel the impact of hypertension on her daily activities although generally she said she didn’t feel well. She also said Dr Poliness tested her recently but the tests were not conclusive. She preferred to continue with her Chinese herbal medicine rather than any conventional medication. She also thought that her blood pressure was high a few months prior to the hearing.
30. In his report Dr Ching agreed that her hypertension condition is permanent but that it attracted impairment rating of zero points.
CONCLUSION
31. Section 94 of the Act sets out three essential conditions, all of which must be satisfied for a person to qualify for the disability support pension. The problem for Ms Hodgson is that she does not satisfy the condition that her impairments attract a minimum of 20 points under the impairment tables. On that basis she must be excluded as a person qualified for the disability support pension. Although there was some evidence about her continuing inability to work, as that expression is defined in the Act, because Ms Hodgson does not meet one of the three essential conditions for qualification for the disability support pension, there is no purpose in further assessing that criterion.
32. In my opinion, the decision of the SSAT made on 15 September 2005 was correct. Accordingly, that decision must be affirmed.
I certify that the thirty-two [32] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice
Signed: Ursula Noyé
ClerkDate/s of Hearing 18 September 2006
Date of Decision 22 November 2006
Solicitor for the Applicant Self-represented
Solicitor for the Respondent Julia Hume
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