Keating; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 1516

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1516

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2006/65

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And MARGERY KEATING

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date6 July 2007

PlaceHobart

Decision The decision under review is affirmed.

..(Sgd B Davis)...........................................

Part-Time Member

CATCHWORDS

Social Security - disability support pension (DSP) - cancellation - medical evidence - dermititis - impairment rating - employment prospects - inability to work - Social Security Appeals Tribunal (SSAT)

Social Security Act 1991 and Amendments, Section 94 (1), (a), (b) and (c) and Schedule 1B - Tables for the Assessment of work-related Impairment for Disability Support Pension

Social Security (Administration) Act 1999

Macdonald and Director-General of Social Security (1984) 6 ALD 6

SDSS and Chin (1998) 52 ALD 337

SDSS and Pusnjak (1999) 164 ALR 572

Watts and SDFCS (2003) AATA 632

Crossland and SDFCS (2004) AATA 864

Coates and DEWR (2006) AATA 938

Muir and DEWR (2005) AATA 902

McKane and DEWR (2006) AATA 1010

Sargeant and SDFCS (2005) AATA 1026

REASONS FOR DECISION

6 July 2007	Associate Professor B W Davis AM (Part-time Member)
Decision under Review

1.      The decision under review is a decision made by the Social Security Appeals Tribunal (SSAT) on 24 April 2006, that set aside cancellation of Ms Keating’s disability support pension (DSP).

Issues

2. Does the applicant satisfy Sections 94(1) (b) and (c) of the Social Security Act 1991?

Legislation

3. The relevant legislation is Section 94 and Schedule 1B – Tables for the Assessment of Work-Related Impairment for Disability Support Pension, including the notes to the schedules, of the Social Security Act 1991.  Note also the Social Security (Administration) Act 1999.

Standard of Proof

4.      The standard of proof is on the balance of probabilities and to the general satisfaction of the Tribunal.

Concession

5. The applicant has conceded that the respondent has a physical impairment in respect of allergies and dermatitis attracting an impairment rating of 10 points and satisfying Section 94 (1) (a) of the Social Security Act 1991.

Background

6.      The respondent, Margery Keating, claimed DSP on 8 November 1996 on the basis of medical conditions which included contact allergies and dermatitis; she was granted pension from 14 November 1996, a treating doctor’s report being submitted at the time.

7.      Dr A Jevtic had reported on 2 August 1996 that Ms Keating was suffering from a permanent condition being hand dermatitis.  She appeared to have suffered the condition for 20 years, having an allergy to nickel and cobalt, causing work restrictions that were related to machinery, driving a vehicle and other conditions, including household duties, which required frequent hand washing or exposure to chemicals.

8.      The respondent’s entitlement to DSP was periodically reviewed during the period she was receiving DSP and a further review commenced in May 2005.  Following receipt of medical evidence a decision was made by Centrelink on 22 September 2005 that Ms Keating was no longer qualified to receive DSP and it was cancelled.  She sought a review of this decision, but it was affirmed by the original decision-maker on 3 January 2006 and again by an Authorised Review Officer (ARO) on 18 January 2006.  She then applied for review by the SSAT on 30 January 2006, which on 7 April 2006 set aside the original decision and substituted a decision the respondent was medically qualified to receive DSP and payments should be reinstated.  DEWR then filed an application for de-novo by the Administrative Appeals Tribunal (AAT) on 11 May 2006.

9. In reaching its decision to reinstate DSP payments to Ms Keating the SSAT determined her disability rating was 20 points, as against the earlier rating of 10 points, thus satisfying Section 94 (1) (b) of the Social Security Act 1991. The SSAT also decided that given the nature of her allergic symptoms, being exacerbated by contact with multiple substances and minerals and repetitive movements of the hands, she would not be able to hold down employment of more than a few hours per week. She therefore satisfied Section 94 (1) (c) of the Act, in that she had an ongoing inability to work.

Medical Evidence

10.     There is a substantial body of medical evidence to consider in the case.  A summary is provided.

11.     When Centrelink commenced its review in May 2005, a treating doctor’s report from her general practitioner Dr S Cooper was sought.  The report of 18 August 2005 identified two conditions, the first being dermatitis combined with allergic reactions and the second being CVA, involving a cerebral aneurysm which was ‘clipped’.  This left Ms Keating with problems of memory and concentration at times. The respondent completed a Medical Service Update on 23 August 2005, agreeing with the above diagnosis.  The report indicated she had no problem with most of the criteria, but there were difficulties associated with criteria 4, in that she experienced difficulty in operating everyday appliances, as well as concentrating, remembering and sleeping.  She also encountered problems under Criteria 2 in managing personal affairs and caring for herself.

12.     A Medical Assessment Report was provided by a Dr M Stewart of Health Services Australia on 5 September 2006, after viewing earlier medical reports.  He categorised Ms Keating’s disabilities of dermatitis and allergies as work-related impairments that despite treatment interfered with some daily activities, with an impairment rating of 10 points for this condition.  Dr Stewart noted the cerebra vascular accident (CVA) as an impairment rating of nil points.  He considered the respondent capable of light unskilled work, but noted she had little work history and lacked motivation and confidence.  The doctor stated that if she achieved employment she would need to wear gloves, avoiding contact with a number of chemicals and certain metals.

13.     Reports were received from Dr P Taplin and Dr M Keady with respect to an ankle injury (16 and 2 November 2005), but the problem was regarded as temporary and awaiting further treatment.  A zero impairment rating was assigned.

14.     On 27 July 2006 Dr R B Watchorn, a dermatologist, provided a report diagnosing contact dermatitis, partially in remission and warranting an impairment rating of 10 points.  However, a further report by Dr Jevtic, dated 28 August 2006, but with no examination of the patient, suggested an impairment rating at that time should be 20 points.

15.     On 27 November 2006 the respondent was examined by Dr Stephanie Auchincloss, a consultant psychiatrist.  She found the patient managed her contact dermatitis well and gave an appearance of enjoying life, actively involved in caring for a number of people.  She considered Ms Keating did not have any psychiatric disorder.

The AAT Hearing

16.     The AAT hearing was conducted in Hobart on 17 May 2007.  The applicant (DEWR) was represented by Mr Brian Sparkes and the respondent by Mr Ben Bartl and Chris Rice of the Hobart Community Legal Service.  Two witnesses for the applicant were called, Dr R B Watchorn, dermatologist, and Ms Maria Bond, Job Capacity Assessor.

17. In opening submissions for the applicant Mr Sparkes said Centrelink was required to periodically review the benefits paid to individuals as their circumstances changed or statutory provisions, social policy or disability rating systems evolved. Although Margery Keating had qualified for DSP in 1996 because of her contact allergies and dermatitis, more recent and comprehensive medical advice indicated her disabilities rated only 10 points and thus failed to meet requirements of Section 94 (1) (b) and (c) of the Act. Thus she did not qualify for DSP.

18.     Counsel for the respondent, Mr Bartl, said the SSAT had not erred in its decision to reinstate DSP.  The Tribunal had considered medical evidence in fine detail, noting the impact on Ms Keating’s lifestyle and lack of employment prospects.  The SSAT had correctly concluded she met provisions of the Act in respect of DSP.

19.     The applicant was then affirmed and in response to questions said her lifestyle was significantly affected by her dermatitis and allergies, since contact with multiple substances such as metals and cleaning products produced an adverse reaction and this even extended to remains of cleaning products on clothes, sheets and other surfaces.  Her GP prescribed creams and gloves which were necessary in cooking, household chores and sleeping.  The disabilities were mostly limited to her hands, but could occur on her body if contact with metals were involved.  Leaving the house was difficult, even for activities such as shopping, because contact with everyday objects could cause a reaction.

20.     Her daily activities were largely restricted to television, caring for two cats she was not allergic to and maintaining contact with her mother and other friends.  With respect to her stroke she said there was limited ongoing impairment apart from minor memory dysfunction.  Her ankle problem which caused her to limp and use a stick had been diagnosed by a rheumatologist Dr Serena Parker in 2005, who diagnosed avascular necrosis.  She coped by taking painkillers, but found putting her feet up was preferable to tablets.  Her overall condition had not improved, but the pain, dermatitis and allergies varied day to day.

21.     She was asked whether she had contemplated returning to employment, but pointed out she last worked at a supermarket in 1989, but at the time was bleeding between her fingers from dermatitis and regarded it as unhygienic as gloves caused customers concern, so she ceased work.  Asked if should she resume any kind of work, she said she was unsure.

22.     After communication difficulties, Dr R B Watchorn, dermatologist, was contacted and affirmed and invited to present his evidence.  He stated it was apparent Ms Keating had experienced dermatitis and allergies for many years and despite attempts to alleviate the situation via creams, changes of materials she handled and gloves, there remained problems, especially in traces of nickel and cobalt as well as cleaning products.  He considered her condition was fully treated and stabilised, but was unlikely to change.  She was in partial remission when he saw her, but admitted it could flare up at any stage.  He would rate her impairment as 10 points, in that signs and symptoms of skin disorder remain present despite optimal treatment and result in some interference with daily activities, however she was capable of looking after herself.

23.     Mr Bartl asked how many times he had seen Ms Keating; he said only once.  He was also asked whether he had seen the treating doctor’s report; he replied he had not.  He did not regard Ms Keating as having an obsessive personality, but rather passive and not motivated to work.  If she did seek employment it would have to be clean dry work, not involving water or steam situations which would exacerbate her condition.

24.     Ms Maria Bond, accredited rehabilitation counsellor, was affirmed and gave evidence for the applicant.  She said she had conducted an assessment of Ms Keating’s job capacity and rehabilitation prospects in January 2007 for Centrelink and possessed considerable experience in vocational rehabilitation and counselling.  She considered the client’s dermatitis as probably permanent, the aneurysm as creating minor problems, the lower limb deficiencies (avascular necrosis of ankle) as temporary and some pain from arthritis.  She considered that to provide support which would improve quality of life and build work capacity would take 12 to 24 months.  It would then be feasible for Ms Keating to work 8 to 14 hours per week in light skilled or process work, with later limited prospects of working up to 30 hours per week.

25.     Mr Bartl said this seemed a rather optimistic view, given the restrictions Dr Watchorn had noted, Ms Keating’s limited work experience and long time out of the work force and the reality flare-ups in dermatitis and allergies cold occur at any time.  Ms Bond said her assessment had taken into account many factors and she accepted full rehabilitation would be needed, but she considered the respondent was capable of some work.

26.     In closing submissions Mr Sparkes for Centrelink said Ms Keating had received welfare payments since 1996 and this continued, but she had perhaps become too reliant upon assistance and a particular lifestyle she had adopted, when a less passive individual might have actively sought alternative therapies or vocational rehabilitation.  Dr Jevtic’s claim of August 2006 that the disability rating should be 20 points was not based upon anything other than past evidence, with no further examination of the patient.  Dr Watchorn’s disability rating of 10 points should be preferred, since it was based on personal examination and very detailed assessment and Ms Bond was convinced some rehabilitation was feasible.

27. While Centrelink accepted the respondent had significant disabilities and thus met provisions of Section 94 (1) (b) of the Act and there was an ongoing incapacity to work as required by Section 94 (1) (c), Criteria for being granted DSP had tightened under amendments of the Act which came into operation in July 2006 and she had currently not been assessed as having more than 10 points disability, so did not qualify. There was also no convincing evidence of an ongoing inability to work.

28. Mr Sparkes said the SSAT was incorrect in reinstating DSP payments; there was a substantial gap between the Schedule 1B, 10 point rating for skin disorders, involving some interference with normal daily activities and the 20 point rating requiring persistence of the malady and significant interference with normal daily activities. The correct and preferable decision for the Tribunal to make was to put aside the SSAT determination and reinstate Centrelink’s initial decision that Ms Keating’s DSP payments be cancelled.

29.     Mr Bartl for the respondent said his client’s case was clearly summarised in the statement of facts and contentions he had submitted to the Tribunal.  Ms Keating was a credible witness who coped with ongoing disabilities that appeared permanent.  She had initially been assessed as 20 points disability, no improvement in her condition had been identified, yet she was now rated at 10 points, even though the daily impact on her life was substantial.  Despite claims there was some work capacity she had been out of the work force a long time and on Dr Watchorn’s evidence any attempt at employment was unlikely to prove acceptable to employers or the public she might serve.  Overall her eligibility for DSP had been clearly demonstrated for more than a decade and should not be rejected now.  He urged the SSAT decision be affirmed.

Analysis

30.     The Tribunal is required to conduct a de-novo review, taking all evidence into account, as well as statutory and policy provisions and any relevant prior case determinations.

31. This case is primarily about provisions of Section 94 (1) (a), (b) and (c) of the Social Security Act 1991 and disability ratings found in Schedule 1B of the Act dealing with Impairment Tables for skin disorders (dermatitis and allergies), aneurysm, ankle problems and arthritis. The key issue is the degree to which these maladies impact upon the lifestyle and prospects of employment of the respondent, to the extent of qualification or non-qualification for disability support pension (DSP).

32.     In order for DSP to have been granted to Ms Keating in November 1996 a disability rating of 20 points minimum must have applied.  Despite ongoing treatment from that date her condition has not improved and must be regarded as permanent, with respect to dermatitis and allergies.  Her cerebral aneurysm causes minimal ongoing impairment, apart from minor memory dysfunction, and her ankle problem and arthritis are amenable to treatment and pain management.  Yet the dermatitis and allergies do force her to adopt a particular lifestyle which is not pleasant and requires constant care and attention, limits her capacity to undertake some tasks and certainly limits employment prospects to the degree that her capacity to be consistently available is open to question.

33.     In respect of skin disorders Table 18 of the Impairment Tables applies.  The actual functional loss is of prime consideration, however where there is substantial cosmetic or cutaneous involvement, this must also be considered.  The criteria are as follows:

Rating 10:  Signs and symptoms of skin disorder present despite optimal treatment and results in some interference with normal daily activities.

Rating 20:     signs and symptoms of skin disorder present despite optimal treatment and results insignificant interference with normal daily activities.

Essentially the difference between 10 and 20 points requirement is whether the skin disorder causes some interference or significant interference with normal daily activities.

34.     Having examined Ms Keating’s own evidence, the comments of her treating doctor and evidence from the dermatologist both at the time of initial claim and currently, it is clear to the Tribunal that Ms Keating does have ‘significant’ interference with normal daily activities.  This is borne out by the fact she is allergic to multiple substances, including metals that are difficult to avoid in household duties, personal care, social and shopping contacts and most forms of employment.  She is required to wear gloves for many activities and while sleeping; this in itself posing a risk of sweaty hands and exacerbation of dermatitis.

35. Overall her disabilities must be regarded as fully treated, stabilised and permanent, given no improvement after a decades’ treatment, thus the 20 points initial disability rating appears justified and warranted to continue. In that sense she meets the provisions of Section 94 (1) (b) of the Act.

36.     Although a well qualified and experienced rehabilitation counsellor considers Ms Keating to have some employment prospects after 12 to 24 months capacity building, the SSAT took a different view, considering that the nature of her symptoms would be exacerbated by repetitive movement of the hands and the probabilities of allergic and dermatitis reaction interrupting employment would be high, so that she would be unable to hold regular employment of more than a few hours per week.  Finding such employment prospects in itself would not prove simple.  In the view of the Tribunal these are fairly convincing arguments on the balance of probabilities that Ms Keating, who has not worked since 1997, has an ongoing inability to work.

37. Having completed a de-novo review, the Tribunal has decided that on the balance of probabilities Ms Keating’s disabilities meet provisions of Section 94 (1) (a), (b) and (c) of the Act, thus she remains qualified to receive DSP.

38.     The decision under review is affirmed.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time member)

Signed:   H E Healy (Administrative Assistant)

Date/s of Hearing  17 May 2007
Date of Decision  6 July 2007
Counsel for the Applicant         Brian Sparkes
Solicitor for the Applicant          Centrelink Legal Services
Counsel for the Respondent     Mr B Bartl and Mr C Rice
Solicitor for the Respondent     Hobart Community Legal Service