Ikonen and Secretary, Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2002] AATA 295

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1224

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MARKKU IKONEN
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Ms N Bell, Member

Date1 May 2002
PlaceSydney

Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the Applicant satisfies the requirements in section 94(1)(a), (b) and (c) of the Social Security Act 1991 and has done so since the date of his claim.

[SGD] Ms N Bell Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – physical impairment – impairment rating – whether Applicant has a continuing inability to work

Social Security Act 1991 – section 94

REASONS FOR DECISION

Ms N Bell, Member

This is an application by Mr Markku Ikonen ("the Applicant") for review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 6 August 2001 to affirm the decision of a Centrelink delegate of the Secretary of the Department of Family and Community Services ("the Respondent") dated 7 February 2001 to reject the Applicant's claim for disability support pension. The decision of the Centrelink delegate had been affirmed by an authorised review officer on 22 June 2001.
At the hearing before the Tribunal the Applicant appeared on his own behalf and the Respondent was represented by Mr George Lozynsky, an advocate from the Advocacy and Administrative Law Team at Centrelink. The following documentary evidence was placed before the Tribunal:
Exhibit           Description    Date
T1-T29 pp1-114 Documents prepared pursuant to section 37 of the Administrative AppealsTribunal Act 1975 ("T-documents")
A1      Letter from AXA Australia to Applicant    17 July 2001
A2      Letter from Dr Neil Jacobs            28 November 2001
R1      Respondent's Statement of Facts and Contentions     4 March 2002
background
The Applicant claimed disability support pension on 5 January 2001. The treating doctor's report supporting the Applicant's claim was completed by Dr Ho (T5) who noted that the Applicant suffered from atrial fibrillation, stomach ulcer, gout and back problems. Dr Ho was of the opinion that the Applicant was unfit for work and would not benefit from training.
The Applicant was examined by Health Services Australia Medical Adviser, Dr Elliott, on 15 January 2001. Dr Elliott assigned 10 points to the Applicant under Table 20 of the Impairment Tables in Schedule 1B to the Social Security Act 1991 ("the Act"); 10 points under Table 21.4 for atrial fibrillation/ischaemic heart disease/hypertension and nil points for his ulcer and gout. Dr Elliott found the Applicant to be fit for work immediately and concluded that he would benefit from training. On the basis of this assessment, the Applicant's claim for disability support p-ension was rejected. Following provision of a report from Dr Uther, the Applicant's treating cardiologist, on 15 February 2001, a further file review was undertaken by another Health Services Australia Medical Adviser, Dr Hoang, (T13). Dr Hoang considered the Applicant's heart condition was a temporary condition which rendered him temporarily unfit for work.
Following the provision of a further report by Dr Jacobs on 2 April 2001 (T20), a further file review was undertaken by another Health Services Australia Medical Adviser, Dr Law, (T21). Dr Law concurred with Dr Hoang's assessment and suggested further review in four months.
On 22 June 2001 the authorised review officer affirmed the original decision but concluded that the Applicant had an impairment rating of 10 points and a continuing ability to work (T26).
The SSAT affirmed the decision to reject an application for disability support pension but confirmed the assessment of Dr Elliot, of Health Services Australia of 20 points under the Impairment Tables. However, the SSAT concluded that the Applicant did not have a continuing inability to work.
legislation
The legislation relevant to this application is section 94 of the Act. Section 94 provides:
"Qualification for disability support pension
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
(d) the person has turned 16; and
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident.
…
94(2) 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.
Note: For work see subsection (5).
94(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of educational or vocational training or on-the-job training; or
(b) if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.
94(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.
94(5) In this section:
educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
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."

issues

There is no dispute that the Applicant satisfies the requirements of section 94(1)(a) of the Act in that he has a physical impairment. There is also no dispute that the Applicant has an impairment of 20 points under the Impairment Tables. The parties accept the conclusion of the SSAT in this respect. It remains for the Tribunal to consider whether the Applicant has a continuing inability to work within the terms of section 94 of the Act.
applicant's evidence
The Applicant told the Tribunal that the medical condition which prevents him from working is his heart condition. He said that he has been having palpitations and an irregular heart beat since 1998. He said that when he has palpitations he needs to go to bed or take additional medication or, if extreme, telephone an ambulance. He said he has only telephoned an ambulance and gone to the hospital once since he ceased to work in September 2000. On other occasions he goes to bed for usually about ten minutes, although palpitations may last for up to nine hours. He said that after the palpitations occur he feels tired, weak, and short of breath for approximately two to four hours. On days when he has palpitations, that is, most days, he experiences irregular heart beat for the rest of the day which makes him very anxious. The Applicant told the Tribunal that he last worked in September 2000 on a short term project as a quality assessment coordinator. Approximately six weeks into the project he resigned because he was feeling very "poorly". He said that when he got palpitations on the job, he would go outside and have a break. On previous project jobs he had to be taken to the nearest medical centre.
The Applicant said that he did a short course last year through the Wollongong School of Management for about three months but the course was Internet based and all work was done at home at his own pace. The Applicant said that although his back has given him a great deal of trouble in the past, it has now settled down quite a bit. He said that his back condition would not prevent him from working. The Applicant said that when he has palpitations he loses his concentration and becomes very anxious and frightened that he is going to die.
The Applicant said that his pacemaker was inserted on 25 June 2001 and the difference it has made to his condition is that he is no longer having "near blackouts". He still has the same level of palpitations. He said that he gets chest pain when he is under stress and not when he is exhausting himself. However, he disagrees that his exercise tolerance is good and pointed out that in exercise tolerance tests conducted at Westmead Hospital he finished only level three out of seven levels of exercise activities. He said that when examined by the Health Services Australia Medical Adviser he performed no exercise or activity at all.
The Applicant said that he walks at a brisk pace for about 4km each day, shares some housework with his wife, including mowing, gardening and occasionally washing the car, and has no self-care difficulties. He said that he is also involved with his local church and occasionally takes the Sunday service.
The Applicant said that he is qualified in welding and in welding supervision and in quality assessment and quality control.
He described an average day as one on which he would rise before seven, read the newspaper and watch the news, do some housework, cook a meal and have a nap for about one hour in the afternoon. He said that he shops two to three times per week and is able to drive for up to one hour without beginning to have back pain. He said he is able to sit for up to two hours before having pain and is able to stand for up to a similar time.
The Applicant said that Dr Uther is his cardiologist with Dr Jacobs being his emergency cardiologist.
Finally the Applicant said that if there were an employer who was prepared to accommodate his heart condition he would be happy to work.
medical evidence
Dr Ho, the Applicant's treating general practitioner, completed a Treating Doctor's Report form on 9 January 2001 in which he noted the Applicant's various conditions and stated that it would be more then two years before the Applicant could return to any work, full time or part time. He also stated that the Applicant would not benefit from vocational training or rehabilitation because, as a result of his multiple medical problems, he has been constantly unwell (T5).
Dr Elliott, Health Services Australia Medical Adviser, completed a medical assessment report on 15 January 2001 in which he reached the following conclusions:
"1. Atrial Fibrillation/Ischaemic Heart Disease/Hypertension - the client has a history of myocardial infarction, and required coronary bypass surgery to 2 vessels in 1994, followed by a second bypass operation in 1998. His exercise tolerance is generally good, and he only occasionally experiences chest tightness with emotional stress. The client also has a condition known as atrial fibrillation, which causes the heart to intermittently beat rapidly and irregularly. He experiences heart palpitations approximately once daily, which lasts for 30-60 minutes. During these episodes, he experiences mild breathlessness. On discussion with the client's treating heart specialist today (Dr D Jacobs), the specialist stated that the client had no evidence of heart failure, and that he would be medically fit for full-time light sedentary work. Therefore, this condition only prevents work requiring sudden and/or sustained physical effort.
2. Lower Back Pain - the client required spinal surgery (L4/5 laminectomy) for this condition in 1986. A C.T scan of the lumbar spine on the 31/08/99 revealed a moderate disc protrusion at the L5/S1 level, with displacement of the left sciatic nerve. The client stated that he experiences intermittent lower back pain, with radiation down the left leg, approximately every 3 months for 3-4 days at a time. He mentioned that his sitting tolerance is generally 1-2 hours. On examination, his lumbar spine mobility was within normal limits, and he transferred with minimal difficulty. This condition is permanent, and prevents heavy lifting, bending, pushing/pulling and prolonged postures.
3.Peptic Ulcer and Gout (Right Foot/Ankle) - these conditions are adequately controlled by medication, and have minimal impact on the client's work ability.
Hence, this client has a combined impairment rating of 20. He is medically fit for full time light sedentary work, with the above-mentioned restrictions. Suitable occupations include console operator, clerical duties and his usual job as a quality controller (although at no more than 35 hours weekly). The client may benefit from vocational training/rehabilitation. This advice differs from the T.D.R, which states that the client is unfit for all work for the next 2 years. However, the treating cardiologist agrees that the client is medically fit for full-time light work, and his heart condition is his most significant condition in terms of work capacity."
Dr Uther, the Applicant's primary treating cardiologist, on 15 February 2001 at T11 wrote that the Applicant has coronary artery disease and recurrent atrial fibrillation, that he has had two by-pass operations in 1994 and 1998 and although no angina is present, he has brachycardia and tachycardia and significant limitations. Dr Uther also stated that the Applicant might need a permanent pacemaker. He encouraged Centrelink to grant a benefit on the basis of that illness.
Dr Hoang, another Health Services Australia Medical Adviser, on 26 February 2001 referred to Dr Uther's letter which indicated that the Applicant's condition is "incompletely suppressed" by medication and that he may need a permanent pacemaker soon. He concluded on this basis that the Applicant's condition is temporary and that he is temporarily unfit for work, vocational training and rehabilitation. Dr Hoang suggested a review in three to six months to assess his progress.
Dr Jacobs, the Applicant's other treating cardiologist, on 2 April 2001 at T20 stated:
"Mr Ikonen has a background of coronary bypass surgery with re-do surgery in 1998 and he is on long term Warfarin treatment for an apical thrombus. He gets frequent episodes of atrial fibrillation despite drug treatment and may need a pacemaker insertion for this. These episodes are worsened by stress and I would support his application for retirement on medical grounds."
Dr Jacobs provided a further report dated 28 November 2001 (Exhibit A2) in which he said:
"I was asked to review Mr Ikonen for the purposes of a medical report. He has a long history of paroxysmal atrial fibrillation, which was unable to be controlled despite high dose Sotacor therapy. This was on a background of coronary bypass surgery and re-do surgery in 1998 and previous apical mural thrombus requiring long term Warfarin. He had a dual chamber pacemaker inserted in June 2001 and his current management strategy appears to be rate control and anticoagulation rather than attempting to keep him in sinus rhythm long term. He currently gets attacks of palpitations once or twice a week and may well develop chronic atrial fibrillation in the future, if he has not done so already. Unfortunately this can only be determined with interrogation of his pacemaker. If you require any further information I would suggest you contact his usual cardiologist, Professor John Uther."
Finally, although not a medical report, the Applicant provided to the Tribunal as Exhibit A1, a letter from AXA Australia, dated 17 July 2001 which enclosed the proceeds of the Applicant's superannuation policy and advised that all policy benefits including life and disablement cover ceased on that date. The Applicant stated that the purpose of this exhibit was to show that he was considered by his early retirement and early release of his superannuation funds to be incapable of further paid employment.
consideration
It is not in dispute that the Applicant suffers from a heart condition, including atrial fibrillation, lower back condition, high blood pressure and gout. The Tribunal is satisfied that an impairment rating of 20 points is an appropriate assessment, given the evidence of the Applicant of attacks of palpitations on most days, which distress the Applicant and require bed rest during the course of attack. The Applicant's evidence was that the attacks last an average of 10 minutes but have on some occasions lasted longer. The Tribunal accepts the Applicant's evidence of the nature, severity and frequency of these attacks and, applying Tables 21.1, 21.2, 21.3 and 21.4 of the Impairment Tables contained in Schedule 1B of the Act, the Tribunal considers 10 points to be an appropriate allocation in relation to the Applicant's heart condition.
The allocation of 10 points in relation to the Applicant's lower back condition was disputed by neither of the parties and, having reviewed Table 20 of the Impairment Tables under which this allocation was made, the Tribunal sees no reason to disturb it.
It follows that the Applicant satisfies the requirement in section 94(1)(b) of the Act.
The Tribunal accepts the Applicant's evidence that he suffers attacks of palpitations on most days and these attacks require some bed rest and make him short of breath, weak and tired afterwards for two to four hours. The Tribunal also accepts the Applicant's evidence that for the remainder of the day following an attack he has a feeling of anxiety and suffers an irregular heartbeat. The Tribunal also accepts the Applicant's evidence that when he has palpitations he loses concentration, and becomes anxious to the point of fearing he will die. The Applicant, in answer to a question from the Respondent, said he would be happy to work for an employer who would accommodate his heart condition. However, the definition of "work" in section 94(5) is:
"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."
There is no evidence to suggest that work exists in Australia that would accommodate the Applicant's need for bed rest during an attack, or accommodate his loss of concentration, tiredness, shortness of breath and anxiety following an attack.
Dr Ho, the Applicant's treating general practitioner, was of the opinion that he could do no work.
Dr Elliott's conclusion that the Applicant can do light sedentary work appears mainly to be based on his conversation with Dr Jacobs, the Applicant's cardiologist. That conversation as reported by Dr Elliott, is contradicted by later direct evidence from Dr Jacobs.
Dr Jacobs, in discussion with Dr Elliott as reported by Dr Elliott, stated that the Applicant could do light sedentary work. However, on 2 April 2001, some four months after his discussion with Dr Elliott, Dr Jacobs wrote a letter of support for the Applicant's retirement on medical grounds (T20). Dr Jacobs' report of 28 November 2001 (Exhibit A2) confirms that the Applicant gets attacks of palpitations once or twice a week, and may well develop chronic atrial fibrillation in the future if he has not done so already. The Tribunal considers that, from the direct evidence of Dr Jacobs it cannot be inferred that he supports the Applicant doing light sedentary work.

The Tribunal considers that this medical evidence together with the accepted evidence of the Applicant, that he requires some bed rest when he experiences palpitations, loses concentration and becomes tired and anxious, establishes that the Applicant's heart condition is of itself sufficient to prevent him from doing any work, that is, work of 30 hours per week at award wages or above, that exists in Australia, within the next two years.
The Applicant's evidence was that the course he undertook in 2001, through the Wollongong School of Management, was done entirely over the Internet. The Tribunal does not consider that this establishes an ability on the part of the Applicant to undertake educational or vocational training. In any event, the Tribunal is of the view that, even if educational or vocational training could be undertaken by the Applicant, given the Applicant's heart condition and the symptoms he continues to suffer, such training would be unlikely to enable the Applicant to do any work within the next two years.
It follows that the Applicant has a continuing inability to work and thereby satisfies the requirement in section 94(1)(c) of the Act.
There is no evidence to suggest that the symptoms currently suffered by the Applicant were not suffered by him at the time of his claim. The Applicant gave evidence that there has been some improvement since he received his pacemaker, but that the attacks of palpitations he currently suffers were experienced by him at the time of his claim. His evidence was also that the pacemaker has simply prevented the blackouts that he was experiencing. The Tribunal accepts this evidence.
decision
The Tribunal sets aside the decision under review and in substitution therefore decides that the Applicant satisfies the requirements in section 94(1)(a), (b) and (c) of the Social Security Act 1991 and has done so since the date of his claim.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member
Signed: O. Caragianni            .....................................................................................
  Associate
Dates of Hearing  13 March 2002
Date of Decision  1 May 2002
Applicant  self represented
Advocate for the Respondent George Lozynsky

[2002] AATA 295

1 May 2002

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Administrative Appeals

Jurisdiction

Disability Support Pension

Impairment Rating

Continuing Inability to Work