Italia and Secretary, Department of Family and Community Services

[2004] AATA 420

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 420

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V03/765

GENERAL ADMINISTRATIVE  DIVISION		)
Re		WENDY ITALIA

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date28 April 2004

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(Sgd) J Handley

Senior Member

SOCIAL SECURITY   ‑ claim for disability support pension – detached retina of right eye – description of injury differed from language of Impairment Tables – no loss of vision of left eye – applicant acknowledged an ability to work – decision affirmed

Social Security Act 1991 (Cth) s94

REASONS FOR DECISION

28 April 2004 Mr John Handley, Senior Member           

BACKGROUND

1.      Mrs Italia applies to review a decision made by the Social Security Appeals Tribunal (“SSAT”) on 25 June 2003 which decided to affirm decisions previously made by a Centrelink officer on 30 December 2002 and an Authorised Review Officer (“ARO”) on 31 March 2003.

2.      Mrs Italia who is 49 years of age claims Disability Support Pension (“DSP”).  She presently receives Newstart Allowance (“Newstart”) and suffers from a detached retina in her right eye.

3.      Whilst it is not apparent from the decision of the ARO it appears that it was accepted that Mrs Italia did suffer an impairment of 20 points however it was determined that she did have an ability to work and accordingly the claim was rejected.

4.      The SSAT found that Mrs Italia did not suffer an impairment of 20 points and the claim was rejected.  It did not make any findings with respect to Mrs Italia’s ability to work.

THE RELEVANT LEGISLATION

5. Qualification for DSP is to be found under s94 of the Social Security Act 1991 (“the Act”) which is reproduced in the following terms:

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

(Bis 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.

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(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.

6. Having regard to the conjunctive nature of s94(1) of the Act, all of sub-paragraphs (a) to (e) must be satisfied. In the present application it is not in dispute that Mrs Italia does have a physical impairment, that she has turned 16 years and that she was at all relevant times an Australian resident.

7.      The issues for determination in the present application are whether Mrs Italia does have an impairment of 20 points or more under the Impairment Tables and whether she has a continuing inability to work.

8.      The injury suffered by Mrs Italia is confined to her right eye only.  In evidence at the hearing before the Tribunal on 13 April 2004, Mrs Italia said that she has no visual impairment in her left eye but has occasional eye strain manifesting as “pressure” and the appearance of “black spots”.  She said that when she covers her left eye, her right eye has blurred vision.

9.      Mrs Italia said that the retina in her right eye is “fully detached”.  She has discussed the possibility of treatment by way of surgery with her doctors but apparently in the absence of a guaranteed outcome, the applicant has been reluctant to undertake that treatment.

10.     This evidence raises the issue of whether the condition can be regarded as being “permanent”. It presumably will remain permanent whilst it is untreated and in so far as the introductory notes to the Table of Work Related Impairment found under Schedule 1B of the Act is concerned, it is difficult to conclude that the right eye impairment can be considered to be “fully stabilised” (in the absence of “reasonable treatment”).  In the alternative, there is no evidence that “substantial improvement can reliably be expected” because there is no evidence that the surgical procedure to reattach the retina is “of a type regularly undertaken or performed with a high success rate and low risk to the patient” (refer Introductory Notes paragraphs 5 and 6).

11. In any event to determine the extent of impairment, the applicable Tables are No. 13 and No. 15 of Schedule 1B of the Act. Table 13 concerns “visual acuity in the better eye”. The evidence at the hearing was that Mrs Italia did not have any visual impairment or disturbance in her left eye. Accordingly the left eye does not attract any impairment points under Table 13 of Schedule 1B of the Act.

12. Table 15 of Schedule 1B of the Act concerns “visual fields” where the quantum of impairment against defined “visual defects” is determined by whether one or both eyes are affected.

13.     Mr Perdon submitted that the medical evidence indicates Mrs Italia has suffered a loss of field of vision in her right eye only, which is best described as the “loss of the superior field”. He submitted that this should be found to mean the loss of the upper half of vision in the right eye only which attracts 10 impairment points under Table 15. Accordingly it was submitted that by reason of there being a nil impairment in the left eye, Mrs Italia cannot achieve 20 impairment points under the impairment tables and accordingly she cannot qualify under s94(1)(b) of the Act.

14.     This submission concerned me and it raised an issue that I was intending to raise with both parties at the hearing namely, the description of the injury.

15. The documents lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) contain a number of medical reports. Dr Jackson described the injury as the “loss of superior visual field” (T10 p26).  Dr Liang described the injury as the “superior zone defect” (T9 p25).  Dr Hilal described the injury as “visual field defect/upper zone” (T11 p28).

16.     None of those descriptions are to be found within the criteria at Table 15.  It was submitted by Mr Perdon that the word “superior”, which is used in the diagnosis of Dr Jackson and Dr Liang, refers to “upper”.  Accordingly, “superior visual field” has the same meaning as “upper half loss” as that expression is used to describe a visual defect in Table 15 and attracting 10 impairment points, whereas if the loss of vision was described as “lower half loss” as that expression appears in Table 15, it would be described by the doctors as an “inferior visual field”.

17.     There may be merit in the submissions made by Mr Perdon but there is no medical evidence to support this interpretation.  The notes appended to Table 15 do not assist.  There is no medical report within the documents filed where the expression “upper half loss” is used (save that Dr Hilal referred to the “upper zone”).  Mrs Italia was unable to describe her loss of vision as affecting the upper visual field or the lower visual field.  She described her visual field, in (the whole of) the right eye as being “blurred”.

18.     The SSAT analysed the medical opinions and found that an error had been made by Dr Liang who referred to superior zone defect of the left eye and concluded that the right eye should have been recorded as having the defect.  I agree with that conclusion.

19.     The SSAT also took note of comments made by Dr Hilal who reported that there was a nil impairment in the left eye pursuant to Table 13 but found 20 impairment points under Table 15 for “upper quadrant loss” of the right eye.  That assessment must be incorrect because upper quadrant loss of the right eye under Table 15 (on the basis of one eye only affected) attracts nil impairment.  The 20 impairment points could only be achieved if there was an affect on both eyes.  In another part of his report he refers to a “visual field defect/upper zone” which may be more consistent with “upper half loss” as that expression is found within Table 15.  There is nothing in any of the medical opinions lodged or from the evidence heard at the hearing that the injury concerns “upper quadrant loss” only.

20.     If in medicine the expression “superior field” refers to the “upper half” of visual field I would be in agreement with the submissions of Mr Perdon.  That is to say Mrs Italia could attract 10 impairment points only under Table 15 and she would not qualify for DSP.  I am however, in the absence of evidence unable to make that finding.

21.     I would find however that the opinions expressed by Dr Hilal are incorrect and there is nothing from the evidence read and heard to support his conclusion of a rating of 20 impairment points under Table 15 for the condition of “upper quadrant loss” (for the reasons given above).

22.     If the issue of impairment is put to one side I would additionally be unable to find that Mrs Italia has a “continuing inability to work” within the meaning of s94(1)(c) of the Act.

23.     Dr Hilal concluded that in his opinion Mrs Italia would be fit to undertake work involving cleaning or as an attendant or use of a telephone.

24.     Despite Mrs Italia deciding not to drive a motor vehicle (although she holds a current motor car licence) and the difficulty associated with the use of public transport and being at risk of stumbling or tripping when stepping off a footpath onto a street surface I cannot conclude on the evidence that she has a continuing inability to work.  Mrs Italia said that she believed that she was capable of working involving the use of a telephone and recently completed a questionnaire at the request of Centrelink where she volunteered this ability.

25.     Upon the basis of this evidence I cannot conclude that Mrs Italia does have a “continuing inability to work” as defined in s94(2)(a), (b) and (3) of the Act.

26.     In all of the circumstances and for the above reasons the decision under review is affirmed.

27.     Mrs Italia submitted at the hearing that “stress and anxiety” were also contributors to her impairment.  After the conclusion of the hearing she faxed a copy of a medical certificate dated 8 October 2003 in support.  The document indicates Mrs Italia suffered “depression and anxiety” in addition to her “retinal detachment” and was therefore unfit for work or study from 8 October 2003 to 8 January 2004.  It was further indicated that its likelihood of persistence is “uncertain”.  Apart from this ailment not being stable, (as necessary under the Introduction Of The Impairment Tables), the date of being unfit for work commencing on 8 October 2003 is well outside the date of claim of 13 November 2002 and is not within 13 weeks of that date of claim (refer ss3 and 4 of Schedule 2 of the Social Security (Administration Act) 1991).

28.     If Mrs Italia is now of the belief that her right eye is deteriorating (as she indicated at the hearing) and she is impaired also by the conditions of stress and anxiety, it may be appropriate to consider another application for DSP.  In that event, the medical evidence would be current and is likely to accurately permit an assessment of capacity for employment.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member

Signed:         Holly Weston
  Associate

Date of Hearing  13 April 2004
Date of Decision  28 April 2004
Solicitor for the Applicant          Self represented
Departmental Advocate            Mr D Perdon