Hussey; Secretary, Department of Family and Community Services

[2003] AATA 307

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 307

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/1114

GENERAL ADMINISTRATIVE  DIVISION

Re:         SECRETARY TO THE
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Applicant

And:       MARY HUSSEY

Respondent

DECISION

Tribunal:       Miss E.A. Shanahan, Member

Date:             21 January 2003

Place:            Melbourne

Decision:The Tribunal decides that the reviewable decision of the Social Security Appeals Tribunal dated 11 September 2002 be set aside and the primary decision be reinstated.

(sgd) E.A. Shanahan

Member

INTRODUCTION

The matter of the Secretary to the Department of Family and Community Services (the applicant) and Mary Hussey (V2002/1114) was heard on 21 January 2003. I gave an oral decision at the time. Ms Hussey has since requested written reasons for the Decision. The oral decision given set aside the decision under review and reaffirmed the decision of a delegate of the Secretary to the Department of Family and Community Services dated 9 May 2002, which rejected Ms Hussey's claim for a disability support pension on the basis that s.94 of the Social Security Act 1991 was not satisfied.  

At the telephone hearing of this matter on 21 January 2003 the applicant was represented by Mr M. Todd, a Centrelink advocate, and the respondent represented herself and gave her evidence by telephone.

SOCIAL SECURITY – Social Security Act 1991 – disability support pension – assessed as ineligible as failed to meet the requirements of s.94 – appealed to Social Security Appeals Tribunal (SSAT) – SSAT assignment of a 25 points impairment rating – respondent not present in person at SSAT hearing

Social Security Act 1991 s.94

REASONS FOR DECISION

21 January 2003  Miss E.A. Shanahan, Member

1. This is an application to review a decision of the Social Security Appeals Tribunal (SSAT) dated 11 September 2002 wherein that Tribunal found that the respondent satisfied the requirements of s.94 of the Social Security Act 1991 (the Act) and was eligible for a disability support pension. 

BACKGROUND TO THE APPLICATION

2.      The respondent had claimed disability support pension on 28 February 2002, stating that she suffered from carcinoma of the breast, diabetes, hypertension, liver dysfunction and a hearing impairment.  A subsequent medical report from her general practitioner confirmed the above conditions and a chiropractor's report stated that the respondent had marked spinal degeneration. 

3.      The respondent was assessed by Health Services Australia Ltd (HSA) on two occasions.  On the first occasion, on 2 May 2002, the examining doctor allotted 5 points for minor lymphoedema of the left arm, attributed to mastectomy for carcinoma of the breast nine years previously.  The diabetes and hypertension were treated, stable and not causing any disability.  The liver dysfunction was not substantiated in that no liver function test results were provided and it was found not to be causing any disability.  The respondent's claimed hearing defect of 45 per cent in the left ear and 65 per cent in the right was based on her recollection of hearing tests conducted 2 years previously.  No difficulty with normal conversation was detected by Dr T. Bisas of HSA.

4.      Following the presentation of a chiropractic report and the respondent's previously unreported conditions of neck and back pain, depression and headaches, Dr T. Paulson of HSA, performed a further assessment on 28 June 2002.  Dr Paulson reviewed the previously advised medical conditions and noted that the lymphoedema, hypertension, liver dysfunction and hearing loss were unchanged.  He commented that an audiogram result was not available.  The respondent informed Dr Paulson that her diabetes had deteriorated recently and her medication dosage had been increased within the last month.  He was of the opinion that this should improve, as she was not, at that time, on maximal therapy.  He could find no evidence of diabetic end organ damage.  On this occasion, the respondent advised that she had suffered from pain in the neck, thoracic and lumbar spinal regions since her mastectomy in 1993.  The pain had become worse in the previous 12 to 18 months and X‑rays had shown multilevel degenerative changes.  The back pain had been managed by a chiropractor and the treatment had relieved the worst of the symptoms.  The respondent was unable to do heavy household chores.  On examination of the spine, Dr Paulson reported near full range of cervical and thoracolumbar spinal movement with no objective neurological deficit in the legs.

5.      The respondent also complained of nervous problems, which had become much worse in the previous 12 months.  She had suffered actual panic attacks and had become increasingly withdrawn.  As she had also experienced frequent headaches, her general practitioner had prescribed Aropax four weeks before this assessment.  Thus, it was too soon to assess the response to treatment.  Dr Paulson had the clinical impression of a moderate agitated depression or depression with some features of panic disorder.  He felt that this would improve with further treatment.  Likewise, the headaches would benefit from active medical management.  

6.      Dr Paulson found the respondent temporarily unfit for work, pending further medical treatment of the diabetes, the headaches and the depression.  A review in six months was recommended.  There appears not to have been a further review. 

7. Following Dr Paulson's report, the decision to reject disability support pension was reviewed by an authorised review officer. Once again, the primary decision that the respondent did not satisfy s.94 of the Act was affirmed.

8. The respondent appealed to the SSAT on 5 August 2002 and her appeal was heard on 11 September 2002. The SSAT found that the respondent satisfied s.94(1)(a), (b) and (c) of the Act and did so from the time of lodging her original claim. The SSAT spoke to the respondent by telephone. The SSAT did not have a face to face discussion with the respondent.

9.      Primarily on telephone evidence of the respondent, the SSAT accepted the respondent's description of her symptoms and physical findings, and determined that she had loss of function in her left (non‑dominant upper limb).  The Tribunal allotted 10 points on the basis of the history of panic disorder and depression, which interfered with her work ability.  The neck and back pain, complained of by the respondent, was assigned an impairment rating of 10 points.

10.     The respondent's liver condition, hearing impairment and hypertension were assigned nil points and her diabetes was not considered as this condition required further medical management to improve control. 

11. Thus, the SSAT found the respondent had an impairment rating of 25 points and satisfied s.94(1)(b) of the Act. In addition, the SSAT found s.94(1)(c) of the Act satisfied as, in its opinion, the reported functional limitations would prevent her from undertaking any work and also any retraining, education or on‑job training within two years.

RELEVANT LEGISLATION

12. The relevant legislation is contained in s.94 of the Act, which states:

94.(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;

(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

…

94.(5)      In this section:

…

"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.

APPLICATION OF THE FACTS TO THE LEGISLATION

13.     The respondent has only been seen by the treating general practitioner, who merely listed her conditions and did not provide information regarding their severity or the results of any investigations.  The chiropractor, Dr J. Morrow, provided her opinion in a letter dated 21 May 2002.  It appears from this report that the plain X-ray of the spine was interpreted by Dr Morrow and no copy of the original radiologist's report was provided.

14.     There is no evidence before this Tribunal that any of the respondent's claimed medical conditions have been investigated further by a specialist or any extensive radiological or haematological investigation.  The depression and headaches have not been the subject of an investigation, nor referral to a psychiatrist.  The general practitioner started the respondent on Aropax (an anti‑depressant) in late May 2002.  The respondent had informed the SSAT that she had derived no benefit from this but at that time she had been taking the drug in small dosage for only three months.  Her depression and headaches could not be considered to have stabilised or been fully investigated and treated. 

15.     The respondent's abnormal liver function had been attributed to chemotherapy following radical mastectomy in 1993.  While the respondent told the SSAT that her skin occasionally had turned yellow, there was no substantiation of abnormal liver function by the production of liver function tests.  There was only the respondent's word that these are abnormal.  It would be anticipated that nine years after mastectomy and eight years after cessation of chemotherapy the liver function tests would most probably be normal.  However, there is no evidence one way or the other regarding liver dysfunction.  The respondent's spinal problems have not been fully investigated, there is no radiologist's report of the X‑ray findings and there has not been a CT scan or a MRI scan performed.  It would seem that reliance has been placed totally on the respondent's description of her symptoms.  It is noted that Dr Paulson found no abnormality of spinal range of movement and no evidence of nerve root impression. 

DECISION

16.     Based on the medical evidence before this Tribunal, the assignment of 5 points for mild lymphoedema of the non‑dominant left arm would appear appropriate.  The assignment of nil points for hypertension, liver dysfunction, hearing impairment and diabetes is appropriate.  The psychiatric status of the respondent and the depressive disorder, and back and neck pain have not been fully investigated, treated or stabilised.  On this basis, no points can be assigned.

17. The respondent's disability estimation remains at point 5. Further investigation of her various complaints may result in a higher scoring of her disabilities in the future, but at this time she does not meet the requirements under s.94(1)(b) of the Act and is not entitled to a disability support pension.

18.     The reviewable decision of the Social Security Appeals Tribunal dated 11 September 2002 be set aside and the primary decision be reinstated.

I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision herein of

Miss E.A. Shanahan, Member

(sgd)     Catherine Thomas

Clerk

Date of hearing:  21 January 2002
Date of decision:  21 January 2003
Advocate for the applicant:          Mr M. Todd, Centrelink

Advocate for the respondent:       Self‑represented