Klibschon and Department of Family and Community Services
[2002] AATA 564
•14 June 2002
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2002] AATA 564
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/869
GENERAL DIVISION )
Re
Gwen Lillian Klibschon
Applicant
And
Secretary, Department of Family and Community Services
Respondent
DECISION
Tribunal Ms SM Bullock, Senior Member
Date14 June 2002
PlaceSydney
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2001/869
GENERAL ADMINISTRATIVE DIVISION ) Re
Gwen Lillian Klibschon
Applicant
And
Secretary, Department of Family and Community Services
Respondent
DECISION
Tribunal Ms SM Bullock, Senior Member Date 14 June 2002
PlaceSydney
Decision For the reasons given orally at the conclusion of the hearing, the Administrative Appeals Tribunal sets aside the decision of the Social Security Appeals Tribunal dated 24 May 2001. In substitution therefor, the Tribunal decides that under section 94 of the Social Security Act 1991 (Cth) the Applicant is qualified for Disability Support Pension, with effect from the 27 July 2000.
..............................................
Ms SM Bullock
Senior Member
CATCHWORDS
SOCIAL SECURITY - Disability Support Pension – Qualification – Impairment Points - Continuing Inability to Work
Social Security Act 1991 (Cth) ss 94(1), 94(2), 94 (3), 94 (4), 94(5)
Secretary, Department of Family and Community Services v Verney (2000) 60 ALD 737
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444REASONS FOR DECISION
Senior Member SM Bullock
1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant and the Respondent of a copy of the decision that was in fact made, the Applicant and the Respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish a statement in writing of the reasons of the Tribunal for its decision.
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
3. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.
I certify that this and the preceding pages are a true copy of the decision and reasons for decision herein of:
Senior Member SM Bullock
Signed:
..................................................................................……………………………….Ms J Purches, Associate
Date of Hearing 13 June 2002
Date of Decision 14 June 2002
Solicitor for Applicant Ms E Biok, Legal Aid Commission of NSW
Representative for Applicant Mr C Colborne of Counsel
Representative for Respondent Mr G Lozynsky, Departmental Advocate
DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2001/869
By MS SM BULLOCK, Senior Member
Gwen Lillian Klibschon and Secretary, Department of Family and Community Services
SYDNEY FRIDAY 14 JUNE 20021. MS BULLOCK: This is a decision by the Administrative Appeals Tribunal (“the Tribunal”) in relation to the Applicant, Gwen Lillian Klibschon and the Respondent, the Secretary, Department of Family and Community Services (“the Department”). Ms Klibschon made an application for review to the Tribunal of a decision by the Social Security Appeals Tribunal, which I will refer to as “the SSAT”, made on 24 May 2001, which affirmed a decision of the Department made on 12 February 2001.
2. Those decisions rejected Ms Klibschon's claim for Disability Support Pension. The SSAT decided that Ms Klibschon met the requirements of subsection 94(1)(a) and also subsection 94(1)(b) of the Social Security Act 1991 which I will refer to as “the Act”, in that Ms Klibschon had a physical impairment which had an impairment rating under the Impairment Tables contained in Schedule 1B of the Act. The impairment table rating provided by the SSAT was 25 points. The SSAT decided however that Ms Klibschon did not meet subsection 94(1)(c) in that she was able to work or retrain for work within a two year period.
3. The SSAT found that the evidence of the medical experts did not confirm that the effects of Ms Klibschon's disabilities are such as to prevent her from doing any work. The SSAT noted from her doctors that Ms Klibschon's left knee condition would prevent her from doing her normal work of child care attendant but that she could perform light sedentary work. Ms Klibschon therefore did not meet all the requirements of section 94 of the Act and accordingly was considered not to be qualified for a Disability Support Pension.
4. The hearing was held before the Tribunal in Sydney on 13 June 2002. Ms Klibschon provided oral evidence to the Tribunal as did Dr M. Lim, Occupational Physician. Ms Klibschon was represented by Mr C Colborne of Counsel who was instructed by Ms E Biok of the New South Wales Legal Aid Commission. The Department was represented by Mr G Lozynsky, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 which comprised of “T Documents”, T1-T29 and a number of Exhibits. Exhibit A1 was a report of Dr M. Lim, Occupational Physician, dated 2 March 2002. A second report from Dr Lim, Exhibit A2 dated 29 May 2002. Exhibit R1 is a report of Dr D Keen who is a Senior Medical Adviser with Health Services Australia. That report is dated 2 May 2002. Exhibit R2 a further report by Dr Keen again in his capacity as Senior Medical Adviser of Health Services Australia is dated 6 June 2002.
5. The issue in this matter is whether or not Ms Klibschon is qualified to receive a Disability Support Pension as set out in the legislative requirements of section 94 of the Act. Section 94 of the Act has a number of subsections. Principally subsection 94(1) states that:
“94(1) A person is qualified for a 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 support wage system administered by the Health Department, stating the period for which the person is to participate in the system;
…”
6. Specifically I must determine whether or not Ms Klibschon has a physical, intellectual or psychiatric impairment; whether or not the impairment is of 20 points of more under the Impairment Tables and whether she has a continuing inability to work. Subsection 94(2) of the Act defines what "continuing inability to work" means and requires that the impairment is of itself sufficient to prevent the person from doing any work within the next two years and either the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on the job training during the next two years, or if the impairment does not prevent the person from undertaking educational or vocational training, such training is unlikely because of the impairment, to enable the person to do any work within the next two years.
7. Under subsection 94(3) of the Act:
“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
…”
8. Subsection 94(4) of the Act states:
“94(4) For the purpose of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether the 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.
…”
9. This does not apply to Ms Klibschon. In the Act, “work” is defined and means work that is for at least 30 hours per week at award wages or above and that exists in Australia even if it is not within the person's locally accessible labour market.
10. I will turn to the evidence of Ms Gwen Lillian Klibschon. Ms Klibschon told the Tribunal that she attended school until Year 10 obtaining the School Certificate. She then worked in various positions including as a telephonist, as a waitress in Sydney and in other locations, in a cotton factory and later working as what she described as a laundry lady working on the gas pipeline being constructed between New South Wales and South Australia.
11. In Victoria, Ms Klibschon worked as an overlocker sewing ladies’ garments. She found this work difficult and only spent four months in this occupation. It was very difficult given her eyesight to be able to see properly to undertake sewing activity. Ms Klibschon started work approximately 17 years ago at a child care centre, as a child care attendant and this was in about 1987. At that time she was working with three to five year olds. Ms Klibschon worked for 40 hours per week.
12. In about 1991 Ms Klibschon was involved in a very serious motor vehicle accident in which she sustained injuries including a broken nose, broken bones in her left foot, severe damage to her left knee and was off work for approximately four months. Ms Klibschon had a left knee reconstruction as a result of the accident. The Tribunal understands that some time after the accident, in approximately 1997, Ms Klibschon was diagnosed as having contracted Hepatitis C. It is understood from the SSAT decision and other medical documents that Ms Klibschon contracted this disease from blood transfusions given to her at the time of the left knee surgery.
13. Ms Klibschon has been blind in her left eye since birth, which she understands occurred as the result of her receiving too much oxygen as a new born baby. Ms Klibschon stated that approximately 12 months after the accident she undertook casual work at a child care centre one or two days per week for between six to eight hours per day. This was for approximately two years until 1994. In 1994 Ms Klibschon undertook three days permanent work at a child care centre working eight hours per day. She did this until about 1998. She then moved from Bathurst to Parkes.
14. In Parkes, Ms Klibschon worked three days per week at the Parkes Child Care Centre and she worked six hours each day. Ms Klibschon told the Tribunal that she undertook this work for approximately six months until she could cope no longer. In this regard Ms Klibschon described being very tired, experiencing great pain during the day which increased towards the end of the day. She also experienced swelling around the knee, the lower part of her left leg, calf and foot. There was also soreness associated with her left leg.
15. Ms Klibschon worked in the Parkes Child Care Centre in work which was similar to that undertaken at the Bathurst Child Care Centre except that she had additionally the responsibility of caring for two children with disabilities. One child had mild cerebral palsy while the other child had a tumour in the brain, making movement and other activities slow for the child. Ms Klibschon had to try and increase the physical conditioning and social conditioning and mobility of the children. She found this was an emotional drain as well as a physical difficulty for her. She would have to squat down, get up and down on her knees and thought that she was not able in fact to give these children all that they required of a carer.
16. Ms Klibschon stated that she ceased work completely in 1999. She then did not undertake any other work apart from a four week period when Centrelink organised a “Work for the Dole” program at a local high school where she was working with disabled adolescent children. Her duties there involved stretching the children, trying to increase their mobility, rolling the children around and having to get them in and out of wheelchairs. Ms Klibschon told the Tribunal that she did not cope with this position at the high school because she had to kneel on her knees, had to roll on the floor with the children and it was too much physically for her. This work was part-time, three days per week, six hours each day. Ms Klibschon told the Tribunal that she has undertaken voluntary work delivering meals on wheels but found this caused her some difficulty getting in and out of the car and also having to carry meals. She found that the difficulty in carrying the meals was in her having to negotiate various paths, driveways and areas which had different gradients and uneven ground. The delivery of meals on wheels occurred over a period of four months where she would deliver once per month.
17. Ms Klibschon had also started in 2002 a program of visiting an elderly person or people in a nursing home where she would spend two hours with the person every fortnight. Ms Klibschon stated that after this two hour period she is extremely tired and is pleased to be back home. Ms Klibschon told the Tribunal that she has had the opportunity to work full time since 1991 but thought that she was physically unable to cope. Ms Klibschon described for the Tribunal her various medical conditions and how they affect her. In relation to her left knee, she stated that she was in constant pain in the knee and it was continually sore.
18. When Ms Klibschon walks she experiences irritation which she described as her being very aware of the screws in and behind her left kneecap. She also experiences tingling, numbness and pain in her three last toes of her left foot. Ms Klibschon was unaware of having had these toes broken although she did note that she had broken bones in her left foot. Ms Klibschon's left knee gets to such a painful stage that she then has to rely on and favour her left leg by relying on her right leg. Ms Klibschon stated that she can walk approximately two kilometres on the flat.
19. It is hard to walk up and down stairs or on uneven ground. In this regard, Ms Klibschon noted that if she walks on a stone with her left leg she experiences pain and great irritation. Going up or down stairs she must hang on to the rails and it is far worse for her going down the stairs. In travelling to attend the Tribunal hearing Ms Klibschon used the train and found it difficult negotiating the stairs at the station. In terms of public transport she must always have somewhere to hang on to particularly when the transport such as a bus or a train is moving.
20. She is able to drive a car but noted that she recently purchased an automatic Ute. Using a manual car when depressing the clutch she has to do this in a two part movement because of the pain and instability in her left knee. Ms Klibschon drove to Sydney to attend the Tribunal hearing but had to take rests and stop after each hour. During the night Ms Klibschon is frequently woken up with pain. It may be that if she rolls in bed the left knee is in an awkward position which is signalled by pain which then wakes her up.
21. Because Ms Klibschon had to come to Sydney to attend the hearing she stayed in accommodation which obviously had a different bed to the one she is used to at home. She described having a very poor sleep the night before the Tribunal's hearing because of the different bed causing irritation and pain to her knee which then prevented her from having a restful night's sleep. This occurrence however, is not unusual to Ms Klibschon's usual circumstances in terms of waking up at night because of pain in her knee.
22. Ms Klibschon stated that she takes medication for her knee in the form of panadol and had taken panadol the night before the hearing. Ms Klibschon does not take panadol, medication or any other analgesic medication for that matter on a regular basis and certainly not every day as she is concerned that an over reliance on this medication would be detrimental to her liver. This is extremely important in view of her status of having Hepatitis C. If Ms Klibschon wakes up in the night because of pain in her left knee, she massages the knee, sometimes will apply warmth, take a panadol and have a cup of tea. She will also get up and walk around and stretch her leg as this seems to make her feel better.
23. During the Tribunal hearing, Ms Klibschon described feeling uncomfortable and was observed to be moving around in her chair. She explained that her knee becomes uncomfortable sitting and she finds that if she moves and stretches it makes it feel better. Ms Klibschon also informed the Tribunal that the pain in her left knee affects her concentration because she experiences distinct pain and soreness. While she takes analgesics to assist with the pain, they do nothing to lessen the soreness which is always there and which she finds extremely debilitating.
24. Ms Klibschon does not use a walking stick. She had physiotherapy for some time after the accident and as the Tribunal understands it had physiotherapy on the last occasion four months ago. Her treatment is basically self directed, she meditates, massages and takes medication from time to time. She moderates her activities according to her abilities to undertake such tasks.
25. In relation to her hearing, Ms Klibschon explained that in about 1990 as a result of a blow to her right ear she had a ruptured ear drum. She had an operation and later had a second operation. Ms Klibschon described having poor hearing and gave the example of continually having to ask friends or family to speak up or repeat what they had said. The Tribunal observed this occurrence for itself. Ms Klibschon also described having a constant buzzing in her ear which she finds also interferes with her hearing. The buzzing is constant every day and at night. At night she is not woken up from sleep by the buzzing but does find it difficult to go to sleep because of this buzzing or tinnitus. Ms Klibschon told the Tribunal that she had an audiogram some eight years ago and has had no test since.
26. Mrs Klibschon is seriously considering obtaining a hearing aid but is reluctant to have something else on her head. Ms Klibschon does not watch a great deal of television but when she does she finds it difficult hear. If there is a loud noise, such as music or other loud background noises, it makes it difficult also for her to hear or distinguish conversations or particular noises. In relation to her eyesight, Ms Klibschon described difficulty in focusing, particularly on small print.
27. Mrs Klibschon is blind in her left eye and has some visual impairment in her right eye which is corrected by glasses. Ms Klibschon likes to read as a recreational pursuit but finds it very difficult to read small print, she often has to use a ruler along a page to make sure she maintains focus and that her eyes do not cause her to jump around in her attempts to read. At school Ms Klibschon had difficulty with reading and also had to be seated at the front of the class in order to maximise her ability to see the blackboard.
28. She was slow reading at that point in her life, not because of any inherent reading difficulties but because of her eyesight. This has not changed as she has grown older, in fact, it has worsened. She must wear glasses to correct vision in her right eye. In terms of using a computer, Ms Klibschon has used this in the past but found it difficult because of the focusing problems that she has in reading the screen. Ms Klibschon stated that she believes she would be unable to do this for very long having to turn away from the computer screen and then re-focus.
29. This re-focusing process has to be undertaken every few seconds, Ms Klibschon told the Tribunal. Ms Klibschon also stated that this is a very disheartening and frustrating process for her. She would dearly love to be quicker but is simply not able to do it because of the constraints imposed upon her by her physical condition. Ms Klibschon stated that she does not own a computer. In pursuing her preferred recreational pursuit of reading, Ms Klibschon will read books and occasionally newspapers.
30. After about 30 minutes of reading her eyes start straying and she feels very tired, she then has to stop what she is doing, she often loses concentration. Ms Klibschon described her fatigue, when she was working full-time she would fall asleep when she came home, having sat in a chair with a cup of tea. Ms Klibschon described not having any “get up and go”. She lacked stamina and endurance she has found.
31. In terms of her sleep pattern, she must now have a sleep in the afternoon and when she sleeps at night, as has been discussed earlier, her sleep is often interrupted. At present Ms Klibschon's condition of Hepatitis C has not resulted in any abnormal liver function tests. Her General Practitioner, Dr Carroll undertook a liver function test approximately three months ago and fortunately the results are good. Dr Carroll has been Ms Klibschon's treating General Practitioner since Ms Klibschon moved to Parkes in about Christmas of 1998.
32. Ms Klibschon told the Tribunal that she is not seeing any counsellor although she did see a marriage counsellor with her husband some time ago. She is not taking any anti-depressant medication, nor has she been referred to a psychiatrist. Ms Klibschon told the Tribunal that she can sit for approximately 30 minutes and then she must get up and move around. It is not true she stated, as was reported by the SSAT, that she can sit for 2 hours. She is able to look after herself in terms of activities of daily living.
33. Ms Klibschon lives in a three-bedroom house which she is able to look after and clean herself. She undertakes such activities as washing, vacuuming, general cleaning, cooking and the like. Ms Klibschon has lawns at the front and back of her home and most usually, her brother will help her with the back lawn. She on occasions is able to mow the front. In terms of shopping Ms Klibschon uses a shopping trolley to move around a supermarket which she then wheels to the car. She will carry the bags from the car to her home.
34. The Tribunal was told that Ms Klibschon has had various family members stay with her at her home over the past three years, they have provided a great of assistance to her in the house and when they have gone, although she is able to cope, she noticed the absence in terms of having to do all the work herself. On a typical day, in the morning Ms Klibschon gets out of bed, she will massage her knee and get herself moving. After breakfast she may undertake any housework which is needed and then either visit a friend or have friends or family visit her. Ms Klibschon does not go out very much and is not a person who attends clubs or hotels, preferring to have friends at home playing cards or other activities. She enjoys listening to music and reading and fairly recently has undertaken tuition in banjo playing which she enjoys greatly. In terms of her work capacity, Ms Klibschon stated that she would like to work and she feels that she could work two days per work, she would even try six hours per day.
35. She has not done clerical work and considers this would be difficult because of her eyesight because she has no vision in her left eye and this causes her difficulty in terms of depth perception and distinguishing characters, problems she had as previously described when she was at school. Ms Klibschon did not agree with Dr Carroll's answer at Question 5 of Dr Carroll's Treating Doctor's Report dated 18 July 2000. In that answer Dr Carroll recorded that Ms Klibschon had no difficulty moving around or using public transport. Ms Klibschon said this was simply not true and she did have great difficulty moving around and had to be extremely careful on public transport.
36. Ms Klibschon told the Tribunal that while she would like to give training a try, she still thought that the pain, stiffness and swelling in her knee which she has to contend with continually would be difficult for her. She emphasised at this point the difficulty she experiences with her kneecap, the feelings of pain and soreness she has in the knee and at the sight of the two screws which have been used in the reconstruction of her knee.
37. Ms Klibschon was referred to the opinions of Dr Meachin who is an Orthopaedic Surgeon. Dr Meachin on 16 October 2000 opined that, “she is fit for a variety of other work if she re-trains herself”. Dr Meachin referred to Ms Klibschon's possible ability to work in computer or office-type employment. (T16, p49). Dr Carroll, Ms Klibschon's General Practitioner told the SSAT that the main reason that Ms Klibschon cannot work is because of her left knee condition and in particular, the pain she suffered from it. Dr Carroll noted at the SSAT that she could not conceive of a job where Ms Klibschon would not have to be getting up and down. Dr Carroll further stated to the SSAT that “office work might be all right if Ms Klibschon was seated at a desk for reasonable periods of time” (T2, p7). Dr Carroll also noted that it might be reasonable for Ms Klibschon to try such a situation. Dr Carroll had stated in this regard: “Ms Klibschon might be able to perform six hours a day, five days a week with such work” (T2, p7).
38. When faced with this evidence Ms Klibschon reiterated that she would like to try to train although it was not her natural inclination, for example, to undertake clerical work which she had never done before. Ms Klibschon again reiterated her concerns about her capacity to continue and sustain her work efforts if she sits or stands for any length of time. This relates to the pain, soreness and stiffness and swelling in her left knee. Even when she is able to change position, once she stands up she must not move for a few seconds and then she is able to move. Ms Klibschon stated that because of all her medical conditions, that is, her eyesight, her left knee, her hearing, she knows that she would be slow in most positions she would undertake and that this would particularly be the case in clerical-type duties. Activities where she is required to have some dexterity and use her eyesight would be difficult and she referred to her problems at school and the problems she had when she was sewing in the overlockers position.
39. Ms Klibschon was asked whether she could undertake such activities as considered suitable for her by Dr Keen, a Senior Medical Adviser with Health Services Australia. In his report of 2 May 2000, Dr Keen had undertaken a review of Ms Klibschon's medical file and opined that with her medical conditions she would be able to undertake a number of positions of a largely sedentary nature which did not require her to operate machinery and where she was not required to have public contact against a background of noise. Such positions included work as a console operator, a cashier, working in light processing or bench work or in office work or similar. Furthermore, Dr Keen did not consider that her conditions would preclude her from undertaking suitable training programs. Ms Klibschon stated that if by console operator Dr Keen was referring to something similar to the work done by a petrol console operator at a petrol station, then perhaps she could cope.
40. In terms of bench-type operations or processing work she stated that she would have difficulty having to stand or sit for any length of time or if she had to use a computer to key in data or indeed, operate a cash register, this would present her with some difficulties in terms of her sight. She stated that she would not be able to sit or stand for any great length of time and in a supermarket-type situation because of the noise and the need to deal with the public, she would find this would cause her some difficulty. Ms Klibschon also referred to her problems with concentration arising out of the pain, her fatigue and from her eyesight and ear problems. In terms of specifically light processing work, Ms Klibschon was concerned as to whether or not she could sustain this work because of her knee condition, the noisy factory situation and having to work fairly quickly, this would cause her problems because of her eyesight.
41. I now turn to the evidence of others who have provided medical opinions. Firstly, I will deal with the evidence of Dr M. Lim, Occupational Physician. Dr Lim provided two reports dated 2 March 2002 and 29 May 2002, Exhibits A1 and A2. Dr Lim examined Ms Klibschon on 22 February 2002 and at that examination he spent 75 minutes with her. He had the T Documents with him in addition to the Impairment Tables. He also had reports from Dr Keen.
42. Dr Lim noted that the current symptoms Ms Klibschon suffers are constant pain in the left knee, exacerbated by prolonged walking, standing and sitting. The pain can occur spontaneously without an identifiable cause. There is an accompanying symptom of swelling in the knee. Dr Lim noted that when he examined Ms Klibschon the knee was very unstable, furthermore, he noted that she had numbness along the lateral border of the left lower leg beginning below the lateral joint line and extending half-way down to the ankle. Dr Lim noted a large area of disfiguration of the medial aspect of the proximal left lower leg. This was due to the wound from the motor vehicle accident. Ms Klibschon was noted by Dr Lim to be embarrassed by the disfiguration and wears garments that hide the defect of the leg. Dr Lim noted that Ms Klibschon has a lack of energy which she copes with by managing to break up her chores into small achievable amounts, she also has to rest frequently.
43. Dr Lim noted Ms Klibschon's lack of concentration over prolonged periods, he also noted her severe total blindness in the left eye and a visual defect in the right eye which is corrected by a prescription lenses. Without glasses Ms Klibschon's ability to focus on distant objects is severely impaired. Dr Lim noted that Ms Klibschon has constant tinnitus in the right ear which is worsened by loud music. Due to the partial loss of hearing in the right ear she often misinterprets verbal communications especially when there is background noise.
44. Dr Lim noted that during his examination he had to repeat himself on numerous occasions and he usually does not have this happen. Dr Lim noted that Ms Klibschon was very stoic and understated in the discussion of her various medical conditions. He believed that Ms Klibschon was very genuine and tries to cope with her problems without fuss. He certainly did not consider that she embellished in any way her conditions and by talking to her, combined with his clinical examination of her, he was able to fully appreciate the extent of her problems and the need to consider them in their totality as impacting on her life, particularly her ability to work.
45. Dr Lim noted that Dr Meachin, an Orthopaedic Surgeon, in his report of 16 October 2000 at T16 was considering the impairment of her left leg alone, as would be expected of a doctor of his speciality. Dr Meachin did not consider the other medical conditions which Ms Klibschon has, notably her eye defect, her concentration, her fatigue and her hearing problems. In relation to the Opthalmologist's report, that doctor only considered Ms Klibschon's visual defects.
46. In relation to the Health Services Australia examination by the registered nurse, Ms Ellem, as approved on the papers by Dr M G Williams at T11 page 42, Dr Lim noted that Ms Ellem was not a qualified medical practitioner and Dr Williams did not have the benefit of examination of Ms Klibschon.
47. Furthermore, the reports provided by other Health Services Australia Medical Advisers namely, Dr Richards, who provided a report of 23 January 2001, also did not examine Ms Klibschon and yet opined that Ms Klibschon was capable of office based work or other sedentary work. Dr Richards for example did not take into account the instability of Ms Klibschon's left knee, the numbness, the deformity of the lower left leg, her tinnitus and loss of hearing and her right eye problems.
48. Furthermore, in relation to Dr Keen's report, Dr Lim noted that Dr Keen did not have the benefit of examination of Ms Klibschon. This is an extremely important point which Dr Lim emphasised over and over again because it was only on examination that one was fully able to appreciate the extent and impact of Ms Klibschon's combined difficulties from her medical conditions. At hearing Dr Lim told the Tribunal that his expertise is in the assessment of impairment and work ability. He had not previously done an assessment requiring him to utilise the Impairment Tables contained in Schedule 1B to the Act which are used for the purpose of assessing Disability Support Pensions.
49. Dr Lim stated that Ms Klibschon would satisfy a rating of 10 from Table 4 which covers a demonstrable loss of strength, mobility, stability, balance, coordination and/or difficulties in sensation which cause moderate interference with walking and in either climbing, squatting or sitting. Dr Lim opined that a rating should also be made in relation to the left knee condition under Table 18 which is for skin disorders. A rating of 10 is appropriate from that Table to recognise the impact of the skin graft and wound on the lower leg which had not healed properly and has led to subcutaneous tissue loss causing difficulty in lymphatic and venous flow. This is extremely important because without proper lymphatic and venous flow the leg will swell up leading to significant symptoms. This occurs when Ms Klibschon sits or stands for too long. A rating under Table 18 for skin disorders recognises disability in restriction arising out of the fluid retention of the leg. Whereas Table 4 recognises mobility problems related to the muscular skeletal system. Dr Lim stated that Table 18 has nothing to do with muscular skeletal problems and distinguished it from ratings under Table 4.
50. In relation to Ms Klibschon's hearing problem, Dr Lim noted that tinnitus was a significant problem which was linked to hearing loss. He recognised that there was no audiogram and thus there was a difficulty in making a rating under Table 12. Dr Lim stated however that he was frustrated that he could not use the Tables to provide a rating for hearing loss specifically when in his clinical examination and from his clinical judgment there was a hearing impairment which he was able to clearly observe. When Dr Lim was acquainted with Table 20 he stated that this could be used to cover a rating of 10 for tinnitus. This Table, covering miscellaneous conditions, states that it is there to cover ear, nose and throat conditions as well as many others. In relation to the eye defect, Dr Lim opined that a rating of five under Table 14 was appropriate to recognise the permanent loss of eyesight. Dr Lim also wanted to be able to rate the impairment in the right eye or better eye as he felt it important that this disability be recognised as it did have an impact on her overall visual acuity.
51. The Impairment Tables forwarded to Dr Lim unfortunately had been superseded and he had been given an incorrect Table 13 which did not have the full description of the purpose of that Table which was to take into account any cataract extraction.
52. In Dr Lim's examination he was concerned that Ms Klibschon suffered from reactive depression arising out of her reaction to all her medical conditions and her life circumstances. Dr Lim stated that he clearly recognised that he was not a psychiatrist and that there had not been a firm diagnosis of depression, nor had there been treatment, nor could it be said that the condition, if it existed, was stabilised. He thought that this matter needed to be followed up. Whilst Dr Lim was not a qualified psychiatrist, he stated that by virtue of his training he has an ability to identify the possibility of the existence of such a psychiatric condition. The fact that the condition had not been diagnosed, Dr Lim noted, may well be a function of Ms Klibschon living in a regional centre where psychiatric expertise was often sorely lacking or indeed absent. Dr Lim also considered that there should be a separate rating for Ms Klibschon's pain experienced from her knee and he believed that a rating of 10 points from Table 20 is appropriate.
53. In relation to her employment, Dr Lim opined that one had to consider the totality of Ms Klibschon's medical condition as in combination they provide her with an inability to work for more than 20 or 30 hours per week. In this regard he referred to Ms Klibschon's loss of stereoscopic vision making it difficult for her to work in situations where there has to be visual acuity and the ability to have depth perception. This would impact upon her working on assembly lines where she has to be quick and to be able to manipulate. She would not be able to drive a commercial vehicle as a license would not be issued. Ms Klibschon could in fact be a danger to herself and others where there is a need for depth perception.
54. In the office situation, Dr Lim opined that Ms Klibschon may well be able to learn to touch type although learning such a skill later in life with her eye condition would not be easy for her. Even if she were able to learn to touch type and use the computer she would then have to coordinate the eye movements and hand movements when focusing and reading the screen and then using the keyboard. Other difficulties which would be presented by such a clerical or office-type situation would be her having to sit for any length of time. If she was using a headset for telephone work, if it was placed over her good ear so that she could hear the conversation, she would then not be able to hear the background noise around her because of her hearing impairment and tinnitus. That again could be quite dangerous. Ms Klibschon would be unable to work in noisy environments because of her tinnitus and this also impacts upon her concentration. In relation to the pain and swelling and loss of mobility this impacts as has been stated previously on her ability to sit or stand or keep positions for any length of time. It impacts upon her level of endurance and her concentration. Dr Lim opined that all of this is part of the reason that Ms Klibschon is not feeling well. It is why she is fatigued and has great endurance and stamina problems. It alone would not prevent her working but in combination with all of her problems this has led Dr Lim to conclude that Ms Klibschon would not be able to have the capacity to cope with work in terms discussed by the Act.
55. In discussing Ms Klibschon's ability to work, Dr Lim also noted Ms Klibschon's poor sleep pattern, principally because of her knee problems. She is drowsy in the day because she is unable to sleep well at night. This cannot be disregarded. Dr Lim went on to describe specifically his views about the specific positions concluded by Dr Keen to be suitable for Ms Klibschon. In relation to the consol operator, Dr Lim stated that this would not be particularly physically demanding and she may be able to overcome the computer or clerical problems by training but she would need to have someone to relieve her fairly frequently. With the problem of background noise she would not be as effective as other workers. She would also have the difficulty of the swelling of her left leg in the lower part and her ability to be at work continuously day after day would not be a good prospect.
56. In relation to clerical work although Dr Lim had stated that she may be able to retrain, with all of her problems Ms Klibschon does not have the capacity to sustain such work. Dr Lim stated that Ms Klibschon may well be able to work for one day or perhaps even two days of full time work if she set her sights on doing it. However, it is the continued work over a number of days that make it impossible in Dr Lim's view for her to continue with this type of work. Even with the best motivation which Ms Klibschon obviously has, Dr Lim did not consider that working in a clerical type position would be a prospect for Ms Klibschon.
57. In relation to the bench or light processing work there is the difficulty of hearing, the knee impairment and the visual impairment. In a situation where the noise level was above a certain decibel level, Ms Klibschon would have difficulty hearing, Dr Lim opined. In relation to the position of cashier, this would present similar difficulties as to those discussed in relation to clerical work. It would be difficult for Ms Klibschon to work in face to face situations where there was noise. Dr Lim further opined that she would have difficulty dealing with customers because of her hearing and in terms of keying in data she would have difficulty because of her visual impairments and her mobility problems would cause her to have pain and swelling in relation to her left leg.
58. Dr Lim had read the introduction to the Impairment Tables and noted the issue of double dipping and also the necessity of using system specific Tables where they are available. Dr Lim stated that he understood all of this but he must provide the assessment of a patient based on what he finds at clinical examination and on any other documents which he has in addition to discussing with the patient their various difficulties. Dr Lim stated that he brings to his assessment the expertise of an Occupational Physician who has examined the patient. Dr Lim did not agree with Mr Lozynsky's proposition that the knee could only be assessed for the systems specific Table of Table 4. There are two distinct conditions, a muscular skeletal problem and the subcutaneous skin problem which causes different problems to that of the muscular skeletal difficulties. Therefore a rating must be made under both Tables.
59. Dr Lim accepted that in relation to the Hepatitis C, Ms Klibschon has not yet experienced chronically the disease and therefore there should be no rating for this disease. Dr Lim stated that he believed that Ms Klibschon's conditions were stabilised and that in his opinion having examined her in 2002, and considered the documents which relate back to her claim and various tests and assessments, that he can find no difference in her condition then as it is now in 2002. The symptoms have been stable over time and this is borne out by the documents and also by Ms Klibschon's evidence. In relation to training, Dr Lim concluded that Ms Klibschon may well be able to undertake training but this would be of no great benefit to her because she would not be able to sustain the employment having had the training.
60. Dr Carroll provided evidence in the form of Treating Doctor’s Reports, two of which are contained in the T Documents. She also provided evidence to the SSAT. In the Treating Doctor’s Reports, Dr Carroll referred firstly to the left knee condition and osteoarthritis as being a long term deteriorating condition which would not enable Ms Klibschon to do her usual job or any other job full time or part time or return to work or other work for a 20 hours per week period and that these inabilities would not be rectified in two or more years.
61. While Dr Carroll did note that Ms Klibschon would be able to travel to and from work and move around, this was denied by Ms Klibschon. In her second report Dr Carroll noted the left knee reconstruction, chronic pain in the left knee and a tendency of the knee to give way. She also noted Hepatitis C. The Tribunal could find no mention of other conditions, such as the eye and ear condition. Dr Carroll again confirmed her previous report in that she did not consider that Ms Klibschon would be able to work part time or full time, eight hours per week or 30 hours per week within a two year period and this was the case in relation to face to face training.
62. Ms Ellem, Registered Nurse, provided a report based on her examination of Ms Klibschon. Ms Ellem noted Ms Klibschon's conditions of osteoarthritis of the left knee, the blindness in the left eye, Hepatitis C and concluded for Centrelink purposes, Ms Klibschon is capable of returning to light duties for at least eight hours per week within six months and increasing to 30 hours per week in the following 12 to 24 months. Ms Ellem noted that this differed from the Treating Doctor's Report. The conclusions of Ms Ellem were signed and agreed to by Dr M.G. Williams of Health Services Australia, Canberra.
63. Dr Richards provided a medical report. He is a medical adviser with Health Services Australia. His report is dated 23 January 2001. Having reviewed all of the available documentation in relation to Ms Klibschon, Dr Richards noted that Ms Klibschon is only able to see light with the left eye and concluded that she is blind but has normal vision corrected in the right eye. He noted that Ms Klibschon has osteoarthritis effecting her left knee causing pain limitation. It appeared to Dr Richards on the documentary information available to him that Ms Klibschon has difficulty continuing her usual occupation as a child care worker. In Dr Richards’ opinion she is capable of undertaking light, sedentary duties such as office based work and may benefit from vocational assessment and retraining.
64. Evidence was provided by Dr D. Keen, Senior Medical Adviser of Health Services Australia. In Dr Keen's report of 2 May 2002 Dr Keen agreed that Ms Klibschon satisfied a rating of 10 for her lower limb disorder under Table 4 of the Impairment Tables. In this regard she has pain and requires simple pain tablets and this provides relief. She has difficulty with kneeling and squatting, but can do most household tasks and walk 10 kilometres without aids. In relation to Dr Lim's rating of 10 points under Table 18, Dr Keen did not agree with this as such a rating would indicate extensive cosmetic loss and some interference with daily activities other than restriction on mobility. Furthermore, Dr Keen noted that the knee condition has been assessed under Table 4 and he believed that the use of Table 18 for the same function or loss results in double dipping.
65. In relation to the rating of 10 for visual disturbance in the better right eye under Table 13, Dr Keen stated that this is inappropriate. Dr Keen opined that Dr Lim appears to have misinterpreted Table 13 and applied the rating intended only for those who have normal acuity with glasses after a cataract extraction. Ms Klibschon has not had a cataract removed and therefore a nil rating is appropriate under Table 13. Dr Keen agreed with the rating of five under Table 14 given her loss of meaningful vision in the left eye. In the absence of an audiogram Dr Keen believes that it is premature to allocate a rating of five points under Table 12 for hearing loss.
66. Dr Keen noted that the hearing loss is partial and unilateral. He considered that the rating should be nil. In relation to Dr Lim's concern that Ms Klibschon has chronic depression, secondary to various factors, Dr Keen noted that this condition has not been previously mentioned and a specific diagnosis has not been made. As the condition has not been diagnosed or stabilised, Dr Keen opined that there should be no rating under the psychiatric Impairment Tables. In summary, Dr Keen concluded that a rating of 15 was appropriate to cover Ms Klibschon's conditions.
67. The SSAT had given a rating of 10 for hepatitis under Table 11.1. Such a rating requires that there is established chronic liver disease. Mr Klibschon's General Practitioner told the SSAT that her liver function tests had been normal. There is no mention of any physical signs of liver disease. Dr Keen therefore thought it debatable as to whether or not Ms Klibschon meets the criteria for a rating of 10 under Table 11.1. Dr Keen opined in relation to Ms Klibschon's work capacity, that fatigue is not a significant barrier to her ability to return to work and that she is limited predominantly by her left knee.
68. Dr Keen noted the Orthopaedic Surgeon's view that Ms Klibschon is fit for a variety of sedentary work on the basis of that condition, that is the left knee. For the vision problem she would not be able to undertake specialised jobs where depth perception was critical but it did not prevent every day tasks such as private driving, reading or operating most appliances and most jobs would not be effected, Dr Keen opined. Ms Klibschon's unilateral hearing loss may make it difficult for her to hear localised sounds or voices against background noise but this should not restrict most employment possibilities. Dr Keen considered Ms Klibschon therefore would be suitable with her medical conditions for positions of largely sedentary nature where she is not required to operate precision machinery or have concerted or direct public contact against background noise.
69. I now turn to the submissions. Mr Colborne submitted that Ms Klibschon is a genuine person who clearly was understated in the discussion of her various medical conditions, which was commented upon in some detail by Dr Lim. Mr Colborne noted that Dr Lim did not appreciate the statutory function of the Impairment Tables but this should not detract from his expertise as an Occupational Physician who had thoroughly examined Ms Klibschon and considered the documentary evidence and provided his expert opinion. Mr Colborne referred the Tribunal to the Introduction in the Impairment Tables contained in Schedule 1B. Paragraph 8 states:
“In general pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, where the medical officer involved in making an assessment is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates. Medical officers must use their clinical judgment and be convinced that pain or fatigue is a significant factor contributing towards the person’s overall functional impairment. Medial reports and the person’s history should consistently indicate the presence of chronic entrenched pain or fatigue.”
70. Noting the paragraph 8 in the Introduction, Mr Colborne submitted that the appropriate rating for Ms Klibschon's left knee condition should be made using Table 20, based on the discussion in paragraph 8. Accordingly, to account for the functional loss of the left knee condition in addition to chronic pain experienced Mr Colborne submitted that the appropriate rating would be at least 15 and more properly 20 which is described as “More severe symptoms with a decreased ability/efficiency to carry out many everyday activities". The description also notes that most daily activities can be completed with some difficulty and that the symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms and fatigue will result. There could be significant interference under a rating of 20 with a person's ability to perform or to persist with work-related tasks. Symptoms may in fact cause prolonged absence from work.
71. In relation to Ms Klibschon's blindness in the left eye the appropriate rating is 5 points for Table 14, Mr Colborne submitted. In relation to the condition described by Mr Lim arising out of the poorly healed wound and skin graft as a result of Ms Klibschon's motor vehicle accident, this particular and specific condition has caused a loss of subcutaneous tissue and poor lymphatic and venous flow. Mr Colborne submitted that the appropriate rating for this separate condition, in Table 20 for miscellaneous conditions is 10 points.
72. In relation to Ms Klibschon's hearing condition, principally for tinnitus, this can also be rated under the miscellaneous Table which specifies that in ear, nose and throat conditions they can be appropriately rated under Table 20. The rating of 10 was considered by Mr Colborne to reflect the mild to moderate symptoms that the tinnitus causes which are irritating or unpleasant but which rarely prevent completion of any activities. A rating of 10 also recognises that symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is a minimal affect under a rating of 10 in terms of impact on work or attendance.
73. Thus, the combined impairment rating for Ms Klibschon's medical conditions is 45 points. Mr Colborne submitted that this satisfies the requirements of subsection 94(1)(b) of the Act.
74. Turning to consider Ms Klibschon's employment capabilities, Mr Colborne noted Dr Carroll's evidence is equivocal. In this regard the Treating Doctor's Report of 18 July 2000 and the subsequent report indicates that Ms Klibschon is considered by Dr Carroll not to be able to undertake any work, either full or part-time, for the next two years or to undertake training. The nurse-examiner's report noted that Ms Klibschon would be able to return to study within six months and would be likely to be able to attend full-time work in 12 to 24 months and to work for the required hours. This seemed to be inconsistent in its conclusions, Mr Colborne noted, particularly when it is concluded by most of the medical opinion that Ms Klibschon's conditions are deteriorating. Dr Carroll's opinion to the SSAT stated that she could not conceive of any employment situation where Ms Klibschon would not have to get up or to sit down. Her discussion of office work referred only to the mere possibility that Ms Klibschon might be able to undertake work of a clerical nature or that she might be able to undertake training. Dr Carroll did not mention Ms Klibschon's eye condition, or her hearing conditions.
75. In relation to Dr Meachin's opinion as an Orthopaedic Surgeon, Mr Colborne submitted that he only dealt with Ms Klibschon's orthopaedic conditions and also did not consider her other disabilities. Dr Richard's provided an opinion based on a file review. He had never conducted a physical examination of Ms Klibschon nor discussed her problems with her. He had not seen her left leg scar. Dr Keen's opinion was also based on file and document review. There was no clinical examination of the patient. Mr Colborne referred the Tribunal to the Community Disability Officer's opinion which also seemed to have been undertaken on a file review as Ms Klibschon had not recorded any contact with a Disability Officer. Thus, the opinion of the Community Disability Officer indicated that whilst there should be vocational assessment and training and that Ms Klibschon would be able to undertake computer work there was no justification for that and no discussion as to how she reached that opinion.
76. Mr Colborne contended that the most thorough examination was undertaken by Dr Lim who is an expert. He is experienced in assessment for employment ability. His opinions were provided based on careful clinical examination, review of the documents and discussion with the patient. While Dr Lim may not have an understanding of the statutory mechanisms of the Tables this should not detract from his expertise as a clinician. It is up to the Tribunal to make findings of fact based on the medical opinions provided to it. Thus, the Tribunal was urged to take into account the totality of all of Ms Klibschon's problems as noted by Dr Lim. That is, the conditions of the knee as a muscular skeletal problem, the skin graft and swelling, the inability to hear because of the buzzing and tinnitus and the eyesight problem.
77. The Tribunal was referred to subsection 94(1)(c) and in a discussion of this in the Applicant’s Statement of Facts and Contentions the Tribunal was referred to the decision of Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444. In that Federal Court decision Drummond J outlined a three-limbed test for determining whether an applicant meets the requirement of subsection 94(1)(c) as qualified by section 94(2) of the Act. The three-limbed approach as described by Drummond J notes that firstly a question must be asked as to whether the impairment prevents the applicant from undertaking work for which he or she is currently skilled. Secondly, it has to be ascertained whether or not there is training available which would permit the applicant to undertake the new type of work within two years. Thirdly, it must be ascertained whether the applicant's impairment prevents him or her from undertaking the foreshadowed training.
78. Furthermore, Drummond J noted, and I refer to paragraph 26:
“But it can be seen clearly enough that the intention of the current
s 94(2) is that the question of a disability support pension applicant's continuing ability to work because of his impairment is to be determined by reference, first, to whether his impairment is sufficient to prevent him engaging in any of the necessarily limited range of work for which he has the requisite skills and experience and then by reference to whether there is training available to him of a kind that should fit him, within a 2-year period, for work which he cannot now do, but would be able to do, given his actual capacities. In making his decision on the second of these issues, the only circumstance peculiar to the particular claimant that the secretary can take into account is whether the claimant's impairment itself may prevent him from completing what would ordinarily be no more than a 2-year retraining course in that time.
It is also clear from the extraneous material that the legislature intended that the secretary, in applying this test, should disregard attitudinal factors peculiar to the applicant, such as lack of motivation to work. Hence the "of itself" qualification to “impairment” in s 94(2). But this does not mean the term "impairment" in s 94(1)(a) is a narrow concept: a psychiatric condition caused by a physical injury can be as much part of “the impairment” within s 94(2)(a) as is the physical injury itself. Section 94(1)(a) prevents the secretary in applying s 94(2) to disregard such a disabling psychiatric consequence of physical injury.
But subsection 94(2) involves no departure from the intent of the 1991 version of the section: the necessarily limited range of work activities for which the particular claimant is fitted by his actual skills and experiences is not to be ignored, in determining his eligibility for this pension.
Section 94(3), properly understood, shows that this is the way it was intended s 94(2)(a) would operate. The expression "any work" in s 94(2)(a) is not accompanied by any words of qualification. So, prime facie, the secretary is required to have regard to work of any kind that may be available anywhere in making the determination required by s 94(2)(a). The definition of "work" in s 94(5) requires the expression, "any work" to be read as limited, but only to any work that exists anywhere in Australia. Section 94(3)(b) reinforces the secretary's obligation, in applying s 94(2)(a) to a particular pension claimant, to have regard to any work available anywhere in Australia.
…”
79. Thus, Mr Colborne submitted that in reference to subsection 94(1)(c) as qualified by subsection 94(2), that we are able to take into account other factors in addition to the medical problems. Mr Colborne also referred the Tribunal to another decision, a Federal Court decision, Secretary, Department of Family and Community Services v Verney (2000) 60 ALD 737, where at paragraph 47, it was noted:
“The Australian Government Solicitor, on behalf of the secretary, advised the court that the appeal to the full court in Pusnjak had been discontinued and it no longer contests the construction of s 94(2) of the Act applied by Drummond J, and now does not press the alternative construction advanced by the secretary on the hearing. That means that the secretary is content to have the matter decided on the basis "work" for the purposes of s 94(2)(a) means work of a kind which the pension applicant is, by reason of his or her existing work skills and experience capable of performing without the need for re-training. Further such an approach requires that “work” for the purposes of s 94(2)(b)(ii) is work other than that for which the pension applicant, but for the impediment, is capable of performing without the need for re-training: Pusnjak at ALR 579-80.”
80. Thus, it is concluded by Mr Colborne that Ms Klibschon is currently only skilled for work as a child care worker, process worker, waitress and laundry assistant. She is prevented from undertaking such employment because of her left knee impairment. She is unable to squat, kneel, lift or bend and has eye and ear conditions. Ms Klibschon would be required to undertake training in, for example, computer skills and office administration before she could gain employment of that light, sedentary nature.
81. Ms Klibschon is prevented, Mr Colborne submitted, from undertaking training courses because of her chronic fatigue, visual and hearing problems. And although it may be possible to undertake training for some short period and Ms Klibschon agreed that she would like to try, one has to look at the actuality. Furthermore, Ms Klibschon is prevented from undertaking routine work in an office environment or as a console operator, a cashier, or light process work because of all of her conditions combined, including her visual and hearing impairments and her limited experience and training.
82. In such circumstances, Mr Colborne submitted that the decision under review should be set aside and Ms Klibschon should be seen to be qualified for a Disability Support Pension as provided under the provision of section 94 of the Act.
83. Mr Lozynsky, for the Respondent, submitted that the assessment of the Health Services Australia medical advisers should be preferred over Dr Lim, who on his own evidence, was found to have assessed Ms Klibschon as his first assessment for a Disability Support Pension using the Impairment Tables. Mr Lozynsky submitted that Dr Lim had inappropriately assessed Ms Klibschon. The medical advisers from Health Services Australia were expert in assessment for the purpose of Disability Support Pension and for making an assessment as to a person's continuing inability or ability to work. Their opinions should therefore be preferred.
84. In relation to the impairment ratings Mr Lozynsky agreed that Ms Klibschon should be assessed under Table 4 and that the correct impairment rating is 10 points. For her eye condition the correct rating under Table 14 is 5 points. Mr Lozynsky stated that the attempt to rate the knee condition on Table 4 and Table 18 and/or Table 20 was double-dipping and referred the Tribunal to the Introduction to the Impairment Tables at paragraph 7. Paragraph 7, in short, refers to the systems specific Tables and that a single medical condition should be assessed on the relevant Tables. There is a concern expressed in the Introduction that when using more than one Table for a single medical condition the possibility of double assessment of a single loss of function must be guarded against. The example given would be that it would be inappropriate to assess an isolated spinal condition under both the spine Table 5 and the lower limb Table 4 unless there was definite secondary neurological deficit in a lower limb or limbs.
85. Mr Lozynsky did not accept the argument as found in paragraph 8 of the Introduction to the Impairment Tables that where there was a level of disability that could not be adequately assessed under the system specific Table and specifically when there was entrenched pain that Table 20 should be used instead of the system specific table. Mr Lozynsky stated that it was not a correct approach to hunt for extra points by using different Tables. He reiterated that the knee condition should be only assessed under Table 4. Mr Lozynsky did not accept Dr Lim's opinion that there should be a separate rating under Table 18, which is for skin disorders, for the impairment and disability suffered by Ms Klibschon in relation to the subcutaneous tissue loss arising out of the scar and grafting following the left knee injury. Furthermore, in relation to the assessment Dr Lim pressed upon the Tribunal in relation to Ms Klibschon's better eye, it would not be appropriate to rate this under Table 13, because the Table had only reference to a person where there had been a cataract extraction.
86. In relation to the ear condition, Mr Lozynsky stated that there was no audiogram and thus it would not be possible to make an assessment under Table 12. In relation to the tinnitus, Mr Lozynsky submitted that that could not be assessed either because there was no audiogram, although he conceded that the condition of buzzing in the ear, which is tinnitus, was recorded in the claim forms and has been there present with Ms Klibschon since the claim and continuing.
87. In relation to the condition of depression also urged upon the Tribunal by Dr Lim, Mr Lozynsky submitted that this condition has not been properly diagnosed, certainly not assessed or stabilised and there has been no treatment for it. In such circumstances, no impairment rating would be appropriate. In relation to the condition of Hepatitis C, Mr Lozynsky noted that there had been no abnormal liver function test and that there was no indication from symptoms of liver disease or failure, therefore there could not be a rating under Table 11.1.
88. The highest rating that Ms Klibschon could achieve for her condition of the left knee and leg and her hearing and her eyesight, would be 15 points. Accordingly, Mr Lozynsky submitted that Ms Klibschon did not meet the requirements of subsection 94(1)(b) and therefore her claim and qualification for Disability Support Pension must fail.
89. For completeness, Mr Lozynsky considered subsection 94(1)(c) in relation to Ms Klibschon's inability or ability to work and he contended that Ms Klibschon has been assessed by experts from the Health Services Australia medical advisers who have great experience and ability in assessing a person's ability to work and also whether or not a person has an ability to retrain.
90. Mr Lozynsky contended that the Tribunal should accept the opinion provided by Dr Keen which is that Ms Klibschon is capable for work in light, sedentary positions such as a console operator, a cashier, clerical work or bench or process work and that she is also capable of undertaking retraining. Mr Lozynsky concluded that Dr Lim's own evidence was that she was, because of her pain in her left knee, not unable to work solely because of that condition. This, Mr Lozynsky submitted, was in line with the opinions of Dr Keen, Dr Meachin and Dr Williams, also Dr Richards. While Dr Carroll's evidence was equivocal in terms of what was written in her reports and what was said to the SSAT, Mr Lozynsky submitted that Dr Carroll must have had in her minds that in fact Ms Klibschon could do some work. While Mr Lozynsky noted the reference by the Applicant's counsel to case law, Mr Lozynsky stated that the decision must be made by the Tribunal with reference only to the legislation.
91. Mr Lozynsky concluded that while Ms Klibschon does meet the requirements of subsection 94(1)(a), she does not meet the requirements of subsection 94(1)(b) or 94(1)(c) and therefore is not qualified to receive a Disability Support Pension. She did not qualify at the time of her claim, nor within the next 13 weeks, thus the decision under review should be affirmed.
92. I now turn to my findings. I have reached a decision in this matter, taking into account the oral and documentary evidence, the legislation and the case law. At the outset, I wish to record that I found Ms Klibschon to be a truthful and genuine person. She was very understated in her evidence. There was no suggestion of embellishment and I concur with Dr Lim's opinion in relation to these matters.
93. It is clear that Ms Klibschon meets the requirements of subsection 94(1)(a) of the Act in that she has a number of physical disabilities. In relation to the Impairment Tables I will pause to note that much reference has been made to the Introduction, as is proper. What needs to be done, however, is that the Introduction needs to be considered in its entirety and in this regard I refer to paragraph 2 of the Introduction. At paragraph 2, it is noted that the Tables are designed to assess impairment in relation to work and consist of a system based Table that assigns ratings in proportion to the severity and impact of the medical conditions. The Tables are function-based rather than diagnosis- based. The medical officer, and this goes for Health Services Australia medical officers as well as those providing opinions, should not approach the Tables hoping to find various conditions listed for which he or she can read a rating. One of the skills which needs to be developed in order to assess the impairment in this context is the ability to select the appropriate Tables. The questions which must be asked in each and every case is which body system has a functional impairment due to the conditions.
94. Paragraph 4 states:
“A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned, the condition must be a 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.
…”
95. I also note at paragraph 9:
“Always use a Table specific to the functional impairment being rated unless the instructions in a section specify otherwise. The system- specific Tables provide appropriate criteria with which to rate a disorder. The procedure is to identify the loss of function, refer to the appropriate system Table and identify the correct rating eg. a person with a CVA (stroke) could be assessed under five different Tables: upper and lower limbs, (3 and 4), neurological (8 and 9) and visual field disorders (15). Table selection would depend on the functions affected.
…”
96. Referring to paragraph 12:
“A medical condition such as a Vascular disease (Stroke) may cause brain damage to different parts of the brain: eg. damage to the cortex causing cognitive/comprehension impairments, damage to the speech centre causing aphasia (receptive or expressive communication impairments) and damage to the motor centre causing hemiparesis. Each separate or additional loss of function must be assessed under the relevant Table(s), in this case Tables 8, 9, 3 and 4. This is not double counting (also see paragraph 7). Double counting is where one functional loss is counted twice. For instance, where a condition causes a cognitive impairment, the presence of mental confusion may suggest an extra communication impairment. However, if the speech centre of the brain is undamaged, the overall situation is regarded as a single impairment.
…”
97. I refer to those paragraphs in the Introduction, because I would not want it to be thought that in coming to an assessment of any particular condition that if the condition has different functional loss or problems that the condition would preclude rating under different Tables. It is not a matter of medical practitioners point-hunting or double-dipping if there is a situation where a condition causes separate and distinct functional losses.
98. Having said that, I turn to the specific impairments. I conclude that Ms Klibschon has the following conditions which I consider to have been present at the time of the claim and 13 weeks after the claim. In saying this I also conclude that the opinions of Dr Lim who assessed Ms Klibschon in 2002 are just as valid at this time as they were in the year 2000. I find this because Ms Klibschon's conditions as I read them in the documents and as I hear from her in evidence, are very much the same. Her knee may have deteriorated somewhat. However, at the time she made the claim I am satisfied that the impairment ratings which I am about to give are accurate.
99. The conditions which I have rated are the left knee condition and this is comprised of a rating under Table 4, the muscular skeletal aspect of the problem, which refers to the mobility and the difficulties of the osteoarthritis. In addition to a rating under Table 18, which I consider is necessary to deal with the loss of subcutaneous tissue arising out of the motor vehicle accident with its problems of poor venous and lymphatic flow resulting in swelling, soreness and different and distinct problems to that associated with the muscular skeletal problem associated with the left knee.
100. When I was undertaking this assessment, I originally thought that there should be two assessments under Table 4 and Table 18. However, when referred to the Introduction to the Tables and the reference to there being problems of not only mobility, but also the problems of entrenched pain, I consider that Table 20 for miscellaneous conditions as was referred to in the Introduction should therefore be used. Thus, under Table 20 I consider that the correct rating for the knee condition in terms of the muscular skeletal problem and mobility should be assessed as 20 points under Table 20. This takes into account that there are severe symptoms particularly in relation to the pain and mobility that are not adequately addressed under Table 4. The symptoms lead to avoidance of some daily tasks and are aggravated and can cause symptoms of fatigue. This rating fits very neatly with Ms Klibschon's symptoms. There is a significant interference in my view, with Ms Klibschon's ability to perform or persist with work related tasks and they may cause if she were forced to work, prolonged absences from that work.
101. I also think that there should be a rating under Table 18 for the left knee condition in relation to the specific and distinct condition arising out of the poorly healed skin graft and the attendant problems of subcutaneous skin loss and the difficulty and impairment to venous and lymphatic flow. In this regard under Table 18 I find that the appropriate rating is 10 points, to reflect that there are signs and symptoms of the condition which despite treatment have resulted in interference with normal activities. There is also embarrassment, there is swelling and this is distinct as I have said, from the mobility problems.
102. In relation to the ear condition which I refer to as tinnitus and has been referred by Dr Lim, appropriately in my view as tinnitus, I consider that this needs to be rated. It is condition which impacts upon Ms Klibschon's functioning. There is no requirement in the rating of tinnitus to have an audiogram. I accept her evidence that she does have this problem. I accept that it is a continuing, permanent and stabilised condition and accordingly it should be rated. I consider that the impairment rating should be 10 points from Table 20 for Ms Klibschon's ear problem which I refer to as tinnitus. This takes account of mild to moderate symptoms, irritating and unpleasant which may not in itself prevent completion of any activity. The symptoms do cause loss of efficiency in my view, particularly in a work setting but also in social settings and there would be minimal impact on actual work attendance.
103. In relation to Ms Klibschon's eye condition, I consider that the appropriate rating, and there is agreement on this from all sides, from Table 14 is 5 points. In relation to an impairment rating under Table 13 for the better eye, I do not consider that Table 13 allows me to take any rating, therefore there is a nil rating.
104. While I accept in relation to Dr Lim's opinion that there may be some reactive depression consequent on Ms Klibschon's medical condition and her life circumstances, such a condition has not been properly diagnosed, certainly not treated or stabilised and, accordingly, I am unable to make any rating for this condition. I do note that Dr Lim's opinion was that this condition should be investigated. In relation to Hepatitis C, while potentially this is a very disabling condition, at this time and fortunately there are no symptoms or signs present which would enable me to make any rating, specifically a rating under Table 11.1.
105. It is my view on all of the evidence that the combined impairment rating which is appropriate to Ms Klibschon's condition is 45 points. I have stated that I understand the Respondent's concern for double-dipping and hunting for points from Tables. This has clearly been discussed as I have included in this discussion in the Introduction to the Impairment Tables. What I believe must be acknowledged, however, is that if a claimant's conditions are clearly identified, have been stabilised, have been treated and were present at the time of the claim and within a 13 week period then they must be rated. It is not a matter of hunting for points if a particular condition has a number of functional components which can be rated by separate Tables. I conclude that Ms Klibschon's circumstances and medical conditions allow me to conclude that she satisfies subsection 94(1)(b) of the Act.
106. In relation to subsection 94(1)(c) as qualified by subsection 94(2) of the Act, it is my finding that on all of the evidence in Ms Klibschon's case and taking into account the totality of the impairments arising from her disabilities of her left knee, her left eye and her right ear, the Tribunal finds that in relation to subsection 94(2) of the Act that Ms Klibschon's impairments are of themselves sufficient to prevent her from undertaking any work as defined.
107. I find that in relation to subsection 94(2)(b)(ii) of the Act that while Ms Klibschon may have the ability to undertake some vocational training, although this I believe would be extremely difficult for her, this training is unlikely because of the nature of her conditions to enable her to work within the next two years. In this regard I find that while Ms Klibschon may have difficulty undertaking the training in terms of computer and clerical type work which she has never done before, the training would be extremely slow, by no means easy and would cause her inherent difficulty because of her eyesight problems, her hearing, and because of these conditions combined with her left leg condition would cause her fatigue and loss of concentration.
108. All of these consequences are a natural consequence of the pain in addition to the physical impairments. All of the training in the world, if it was able to be achieved would not in the Tribunal's view enable Ms Klibschon to sustain her work and to sustain herself in a work setting in the terms of the Act, particularly as is noted in the opinions of Dr Keen in the semi-sedentary work. I make these findings also noting that the opinions provided by the Health Services Australia medical advisers were made based on the documents. The one examination which was undertaken for Ms Klibschon was undertaken by a Registered Nurse. While not in any way suggesting that the Registered Nurse is not professionally qualified nor expert in her tasks it is difficult for the Tribunal when considering this matter on the report provided by Ms Ellem to understand that there was any consideration of all of the combined conditions that Ms Klibschon brought to her claim. It is hard for the Tribunal to understand how it is, given the evidence provided to the Tribunal, that Ms Ellem was able to make the findings that she did. The conclusions of Ms Ellem were then carried on by the review of the other medical advisers on the documents. It is only with the benefit of clinical examination and clinical judgment combined with the documentary reports that a proper and thorough assessment can be made. In this regard it is clearly foreshadowed in the Introduction to the Impairment Tables that there must be a clinical examination.
109. I conclude in relation to subsection 94(1)(c) of the Act, Ms Klibschon has an inability to work as qualified and described in subsection 94(2) of the Act, also taking into account the definitions in subsection 94(5). For all of the reasons discussed and taking into account all of the evidence, I determine that Ms Klibschon satisfies section 94 of the Act and is qualified for a Disability Support Pension with effect from the date of her claim.
110. The decision under review is therefore set aside under section 43 of the Administrative Appeals Tribunal Act 1975 and in substitution therefor, the Tribunal finds that Ms Klibschon is qualified for a Disability Support Pension.
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Qualification
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Impairment Points
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Continuing Inability to Work
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