Larkings and Secretary Department of Family and Community Services

[2004] AATA 777

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 777

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1263

GENERAL ADMINISTRATIVE DIVISION		)
Re		GERALDINE LARKINGS

Applicant

And SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date23 July 2004

PlaceSydney

Decision The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant satisfies the requirements for eligibility to receive disability support pension contained in sections 94(1)(a),(b) and (c) of the Social Security Act 1991.

..............................................

Ms N Bell

Senior Member

DISABILITY SUPPORT PENSION – Foot Pain – Insomnia - Depression- Whether Inability to Work is Temporary

Social Security Act 1991

REASONS FOR DECISION

23 July 2004 Ms N Bell, Senior Member

1.      Ms Larkings (“the Applicant”) lodged a claim for disability support pension on 18 October 2002 (T38).  That claim was rejected by a Centrelink delegate of the Secretary of the Department of Family and Community Services (“the Respondent”) on 12 November 2002 (T40, T41) and that decision was affirmed by an authorised review officer on 11 February 2003.  On 8 July 2003 the Social Security Appeals Tribunal affirmed the authorised review officer’s decision to reject the Applicant’s claim (T2).

2.      The Applicant had made two prior claims for disability support pension on both 30 April 2002 (T28) and 4 October 2002 (T36).

3.      The claim relevant to this application, that is, the claim lodged on 18 October 2002, was in respect of foot pain, insomnia and depression and it is not in dispute that the Applicant suffers from those conditions.  Neither is it in dispute that the Applicant was unfit for work at the time of her claim.  The Respondent contends, however, that the Applicant’s inability to work was temporary, not continuing.

4.Section 94 of the Social Security Act 1991 (“the Act”) provides:

“

(1)       A person is qualified for disability support pension if:

(a)       the person has a physical, intellectual or psychiatric impairment; and

(b) the person's impairment is of 20 points or more under the Impairment Tables; and

(c)       one of the following applies:

(i) the person has a continuing inability to work;

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

(d) the person has turned 16; and

(e) the person either:

(i) is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A) is not an Australian resident; and

(B) is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident. Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

Note 2: for Impairment Tables see section 23(1) and Schedule 1B.

94(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a) the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

(b)       either:

(i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years…”

5.Section 94(5) of the Act provides:

“
educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.

on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.

work means work:

(a) that is for at least 30 hours per week at award wages or above; and

(b) that exists in Australia, even if not within the person's locally accessible labour market.”

6.      Therefore, in order to qualify for receipt of a disability support pension the Applicant must:

(i)        Have a physical or psychiatric impairment; and

(ii)Attract an impairment rating of at least 20 points under the Impairment Tables contained in Schedule 1B to the Act; and

(iii) Have a continuing inability to work as defined in section 94.

7.      As noted above, it is not in dispute that the Applicant suffers from foot pain, insomnia and depression, thus I am satisfied that the Applicant meets the first of the above requirements.

8. The next issue for me to consider, is whether the Applicant attracts an impairment rating of 20 points or more under the Impairment Tables contained in Schedule 1B of the Act (“Impairment Tables”).

9.      The Applicant stated that the pain in her feet first started in mid 1993, after prolonged standing and lifting, part of her duties as a Customer Service Officer with Australia Post.  She said she changed jobs and worked in the mailroom, then later in Customer Service at Australia Post’s Head Office, but was unable to cope with either of these positions.  The Applicant left Australia Post in November 1997, after being advised that there was no seated work for her to do. 

10.     The Applicant said that in 2002, she experienced pain in her feet from the moment she woke up in the morning that would become worse from walking, standing and climbing stairs.  She said that any weight on her feet gave, and continues to give her, pain.  The Applicant said her feet remain sore even when she is seated.  She said that at home she does not cook much and does not do much housework.  The Applicant stated that the soles of her feet “burn” and she is unable to stand on her toes.

11.     The Applicant said, in her hearing before the Social Security Appeals Tribunal, she would walk from Newtown Station to the Royal Prince Alfred Hospital, on her three-monthly visits to the sleep disorders clinic.  She said she did this because this was the only way she was able to get there.  The Applicant said this hurt her feet badly and made the pain she experienced later in the day much worse, so much so that by mid-afternoon, she would be exhausted and would have to lie down.  She said her frustration with the pain in her feet is so severe that she often wants to “chop them off”.

12.     The Applicant said she has been using orthotics for years and that she wears them all the time.  She has tried taking “Celebrex” for her foot pain but found this medication did not really help her.  The Applicant said that every doctor she has seen, including Dr Laurent, Rheumatologist at Royal North Shore Hospital, has said that she does not require an operation.  The Applicant stated that she visited the University of Sydney Pain Management and Research Centre at the Royal North Shore Hospital (“Pain Management Centre”) during 2000, and tried to comply with their program but found that it was more beneficial to people who had become dependent on drugs and other “crutches”.  She added that she sometimes ran late for her appointments because of the effects of her insomnia.  In cross-examination the Applicant was referred to a discharge summary report from the Pain Management Centre, in which it was reported that it is more likely that her ongoing distress was related to difficulties coping with her relationship with her teenage son.  The Applicant responded that when she was experiencing difficulties with her son it had the effect of distracting her from the pain in her feet.

13.     The Applicant was also shown a number of recommendations made by the Pain Management Centre in relation to coping with her pain. Those recommendations included continuation of an exercise regime; applying pacing and planning strategies to manage her daily routine; using strategies taught by the program for coping with pain; avoiding medications and other passive treatment methods and attending psychological therapy.  The Applicant confirmed that she had followed all of these recommendations.  She maintained, however, that her pain has worsened and is progressive.

14.     In relation to her insomnia, the Applicant said that in 2002, she experienced problems sleeping every day.  She stated it was, and continues to be, hard to go to sleep and most nights she wakes up about three times.  The Applicant said that on a “bad night”, which happens frequently, she does not sleep at all and the next day can barely function due to headaches and nausea which render her unable to leave her home.  She said that this has been happening for years and in 2002 she would experience these “bad nights” more often than not 

15.     The Applicant stated that she had learned from Dr Bartlett, Psychologist at Royal Prince Alfred Hospital’s Sleep and Respiratory unit, a number of techniques to help her relax.  She has begun to swim, and does so about three times per week if possible, but due to her sleep patterns generally only manages to go twice a week.

16.     In relation to her mood, the Applicant said that she first became depressed in 2000, and by 2002, she felt like a failure.  She was seeing Ms L Ross, Drug and Alcohol Counsellor, every week for counselling in relation to her son’s drug problems (T37) and had begun to see Dr Holliday, General Practitioner, in 2001.  Prior to this she saw Dr Angstmann, General Practitioner, and Dr Speechly, also a General Practitioner.

17.     The Applicant said that she was prescribed “Zoloft”, an anti-depressant, in 2001 and took that medication for six to eight weeks.  She said she ceased taking this medication because she felt nauseous and her mood did not improve.  The Applicant also tried “Cipramil”, another form of anti-depressant medication, in 2001, but felt that it affected her concentration, gave her blurry vision and did not improve her mood.  She took “Cipramil” for six to ten weeks.  The Applicant said that no medical practitioner has advised her to take anti-depressants since 2001.  The Applicant said that she was referred to Dr Atreya, during September 2003, and that he recommended ongoing therapy but did not prescribe her with any form of medication.  She said that he helped her only a little and “made me feel bad a lot”.  The Applicant said that she is trying meditation techniques, and will be seeing a new counsellor soon.

18.     The Applicant said that before October 2002, she had not been to see any psychiatrists.  She said she had ceased to visit Ms Ross because Ms Ross had left on maternity leave.

19.     In relation to employment, the Applicant said that she had, after leaving Australia Post, worked three days per week for a recruitment firm but found it a struggle and lasted in this employment for only four weeks.  The firm advised her that she had not been performing well.  She then worked for the Medical Benefits Fund from mid 2001, and would work from 10am to 3pm, four days per week.  The Applicant said that she found it very hard to maintain those hours and tried to negotiate a three day working week.  She left in March 2002.  The Applicant said that at present she is not required by Centrelink to look for work as she has provided medical certificates supporting her lack of fitness for work.

20.     The Applicant told the Tribunal that she has slowed down and her lack of sleep “knocks me around”.  She said that employers see her mistakes and ask her leave.  The Applicant said she feels lethargic all the time and finds it very difficult to get up in the morning.  She said her feet begin to hurt straight away and she feels sick.  She added that she has great difficulty in making decisions and enormous trouble in meeting deadlines. 

medical evidence

21.     In the treating doctor’s report dated 29 April 2002 (T27), Dr K Angstmann, General Practitioner, diagnosed depression and sleep disorder, noting that the Applicant was receiving counselling for her depression and attended the Royal Prince Alfred Hospital’s Sleep Disorders Clinic for sleep strategies.  Dr Angstmann expressed the view that the conditions are long-term and likely to persist for at least two years and that her inability to work would persist for more than two years.

22.     In a treating doctor’s report dated 1 October 2002 (T35), Dr C Speechly, General Practitioner, diagnosed the Applicant as having chronic foot pain, for which she has had multiple specialist reviews including reviews by rheumatologists and orthopaedic surgeons, pain clinics and neurologists.  Dr Speechly also advised that the Applicant has undergone various investigative examinations including MRI and CT scans; sleep therapy from Dr Bartlett, Psychologist, for her insomnia; depression and anxiety and that the prescription of anti-depressant medication had been considered.  Dr Speechly indicated that the Applicant’s foot condition was stable and likely to persist for at least two years but stated that her insomnia and depression were temporary and fluctuating.  Dr Speechly further indicated that the Applicant would require a seated job and would be able to return to work in approximately six months.

23.     In a further treating doctor’s report dated 21 October 2002 Dr Speechly diagnosed the Applicant as suffering from “insomnia of many years exacerbated recently by depression/anxiety/crises related to son’s drug taking”, with the date of onset being in 1999 (T39),.  Dr Speechly noted that conservative management of insomnia has not been very helpful and that a trial of anti-depressant therapy has been discussed.  Dr Speechly opined that the condition lowers the Applicant’s cognitive function; reduces the Applicant’s ability to concentrate; produces poor endurance as well as low energy, and fatigues the Applicant to the extent that she is sometimes unable to perform normal home duties.  Dr Speechly opined that the current impact of the condition on the Applicant’s ability to function is expected to persist for three to 24 months and that it is uncertain whether, within the next two years, the effect of the condition on the Applicant’s ability to function will alter.  Dr Speechly also diagnosed chronic foot pain with the date of onset being during 1993 and noted that the Applicant has a combination of “mechanical foot pain”, “radiculopathy” and “plantar fasciitis”.  Dr Speechly opined that the impact of the condition will persist for more than 24 months and that within the next two years the effect of the condition on the Applicant’s ability to function is expected to remain unchanged.

24.     In a treating doctor’s report dated 12 December 2002, Dr D Bartlett diagnosed chronic insomnia and depression with the onset of insomnia being from 1983 (T44).  Dr Bartlett described frequent nocturnal awakenings most nights; mood lability; fatigue and difficulty concentrating.  Dr Bartlett described past therapy as including cognitive behavioural therapy, with the Applicant attending the Royal Prince Alfred Hospital Sleep Clinic, and relaxation strategies.  Dr Bartlett noted that anti-depressant medication has been discussed but that the Applicant would like to continue with behavioural measures at present.  Dr Bartlett stated that the Applicant has periods of anxiety and/or depression when she is unable to get up or leave her flat.  The impact of her condition on the Applicant’s ability to function was expected by Dr Bartlett to persist for more than 24 months.

25. Dr R Jones, Medical Adviser with Health Services Australia, examined the Applicant on 10 May 2002, and considered that the Applicant’s sleep disorder was a temporary condition, not totally incapacitating and thus attracted a nil impairment rating under Table 20 of the Impairment Tables (T29). As to the Applicant’s depression, he considered that it was a feature of her sleep disorder and not a separate condition. Dr Jones noted that the Applicant was not taking any specific medication for depression and had had no psychiatric referrals. He considered that the Applicant would be likely to be able to return to her usual work or study load in six to 12 months and would be likely to be able to work for more than 20 hours per week in six to twelve months and could perform part time work now. Dr Jones noted that the Applicant had arrived for the examination 20 minutes late but agreed to proceed with a limited interview rather than to reschedule the interview.

26.     The report of Dr C Browne, to whom the Applicant was referred for a medico-legal assessment, dated 31 October 2000 (T23), states that the Applicant’s pain is:

“strictly related to standing and weight bearing and she gains relief at night and when sitting down.  Generally, her symptoms are worse later in the day, than early mornings.  She has had some very good orthotics supplied and has taken very little in the way of anti-inflammatory medications.  She went through the ADAPT program at Royal North Shore Hospital which as you indicate, did not help much.”

27. Dr D P Lewis-Enright, Independent Medical Examiner, in reports dated 25 February 2004 (Exhibit A2) and 15 April 2004 (Exhibit A3), after examining the Applicant and reviewing the medical documentation available, concluded that the assessment made by Dr Dinnen (discussed below) in regard to depression should be adopted and an impairment rating of ten points given to that condition alone. Dr Lewis-Enright also opined that in relation to the Applicant’s feet, an impairment rating of ten points, pursuant to Table 20 of the Impairment Tables should be allocated to the Applicant. Dr Lewis-Enright noted, in his second report, that the Applicant has chronic entrenched pain and is of the opinion that the use of Table 4, under which she would receive a nil impairment rating, would under-assess her disability. In this respect Dr Lewis-Enright referred to note 8 at the beginning of Schedule 1B (reproduced below).

28.     In relation to future employability or rehabilitation of the Applicant Dr Lewis-Enright said that he cannot exclude that the Applicant could be rehabilitated both medically and vocationally within the next two years.  He noted, however, that her chronic depression/dysthymia will be a significant barrier to any planned vocational rehabilitation.  Dr Lewis-Enright finally concluded that the Applicant will be able to work, if successfully medically and vocationally rehabilitated, but she will not be able to work 30 or more hours per week and expressed his agreement with Dr Dinnen that she will be able to work a maximum of 20 hours per week.

29.     Dr A Dinnen, Consultant Psychiatrist, diagnosed the Applicant with dysthymic disorder and personality disorder and described symptoms of depression; tearfulness; impaired memory and concentration; loss of interests; reduced drive; fatigue; sleep disturbance; difficulty copying with day to day life and various medical problems.

30.     In answer to the question “when would you say that her conditions were fully documented and diagnosed, and investigated, treated and stabilised?”, Dr Dinnen reported:

“… the reports from her treating Drs, the letter from Dr Atreya, information from Dr Dennis Enright and the history given by the patient suggests that her condition is chronic and has affected her ability to cope for some time.

It appears that there is now a well established pattern of illness and invalidity, extending back to about 1995, firstly involving her feet and then involving an array of psychological symptoms.  I would say that by this time she has certainly received adequate exposure to opportunities for treatment.  I do not believe there is any new treatment which would radically change her situation, other than perhaps the lengthy psycho analytic therapy suggested by Dr Atreya or environmental factors which I have suggested might change her circumstances and her frame of mind.” (Exhibit A4, page 7)

31.     When asked whether the Applicant’s impairment was of itself sufficient to prevent her from performing any work for at least 30 hours per week in the next two years, Dr Dinnen said that it was because of poor motivation together with preoccupation with mental and physical problems, fatigue and depression.

32.     Dr Dinnen expressed the opinion that the Applicant, given the right motivation and environment, could benefit from re-training to work a maximum of 20 hours per week with a flexible and sympathetic employer.  He did not consider that the Applicant could, in the next two years, work for 30 hours per week.

33.     In relation to the Applicant’s treatment, Dr Dinnen said:-

“Because of her multiple problems, and because of the history of treatment, it is evident that anti-depressant medication has not been effective until this point in time.  She has been involved with various counsellors over the past 12 or 13 years, and as I noted in my report, there has been some difference of opinion about treatment.  … I believe that one reason why no anti-depressant trial has been undertaken is because all the clinicians who have had contact with her have not considered that this would be likely to be successful.  Interesting (sic) there is good evidence that psychological therapy such as cognitive behavioural therapy have been shown to be as effective as anti-depressant medication in treating some forms of depression.”  (Exhibit A6, pg 2)

34.     Dr D Atreya, to whom the Applicant was referred for assessment for psychotherapy, provided a report dated 23 September 2003 (Exhibit A7).  In his report Dr Atreya noted that the Applicant presented with: chronic recurrent insomnia which is associated with chronic depression and anxiety manifested as chronic sadness and tearfulness; pessimistic thoughts; hopelessness and helplessness; severe feelings of guilt especially exacerbated by severe emotional conflicts; fights with her teenage son who is drug and alcohol dependant; poor concentration, lack of will and volition, lethargy, fatigue and inability to get ready and leave her flat in the mornings

35.     Dr Atreya noted that the Applicant has tried various remedies for her anxiety/depression including anti-depressants; cognitive behaviour therapy; sleep clinic; pain clinic; group therapy; counselling and relaxation strategies.  Dr Atreya has suggested to the Applicant that she may gain benefit from long-term psychoanalytic psychotherapy.  He said that he did not expect any real change in her personality structure in less than two years, with the suggested therapy and that it is unlikely that her anxiety/ depression will take any less time to get better.

36.     Dr Michael Stewart, Medical Adviser of Health Services Australia, in his report dated 9 May 2004 (Exhibit R2), reviewed the medical evidence and concluded that at the time of lodging her claim for disability support pension, the Applicant had symptoms sufficient to impair her ability to work, but could be reasonably expected to respond to appropriate intervention.  From this he deduced that her psychiatric condition was temporary and it was not appropriate to assign any impairment ratings. 

37. In relation to the Applicant’s foot pain, Dr Stewart was of the opinion that her condition should be assigned a rating under table 4 of the Impairment Tables and that the appropriate rating under that Table would be nil. Dr Stewart was of the view that the Applicant, at the time of her claim and in the period of 13 weeks following, had a temporary inability to work but with treatment could be expected to become fit for sedentary full-time work within an approximate timeframe of six to 12 months.

consideration

38. There is no dispute that the Applicant suffers from an impairment and so the requirement in section 94(1)(a) is satisfied. It remains to be considered whether she has an impairment rating of 20 points or more and, if so, whether she has a continuing inability to work.

39. In relation to the Applicant’s foot pain, I find, on the basis of the evidence of Drs Speechly and Browne, that this pain is significant and is not adequately addressed under Table 4 of the Impairment Tables which deals with function of the lower limbs. In this respect I had regard to Note 8 of the Impairment Tables which provides in part:

“

8.  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 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 to assign a rating 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 judgement and be convinced that pain or fatigue is a significant factor contributing towards the person's overall functional impairment.  Medical reports and the person's history should consistently indicate the presence of chronic entrenched pain or fatigue.”

40.     I consider that the extent to which Table 4 underestimates the level of disability suffered by the Applicant from this condition justifies assessment under Table 20.  I also note the evidence of Dr Lewis-Enright to this effect.  Table 20 provides:

“

TABLE 20.     MISCELLANEOUS - MALIGNANCY, HYPERTENSION, HIV INFECTION, MORBID OBESITY (IE BMI >40), HEART/LIVER/KIDNEY TRANSPLANTS, MISCELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN

Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension.  Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used.  Double-counting of a particular loss of function, by the use of more than one Table, must be avoided.

Rating

Criteria

NIL

Controlled hypertension

Malignancy in remission with a good to fair prognosis

Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.

TEN

Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity.  Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks.  There is minimal effect/impact on work attendance.

Hypertension that is difficult to control despite intensive therapy but without end-organ damage

Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis

Heart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms.

FIFTEEN

Moderate to severe symptoms which are more distressing but prevent few everyday activities.  Self-care is unaffected and independence is retained.  Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work.  Full-time work would still be possible.

Potentially life-threatening condition which is currently interfering with daily activities but self-care is unaffected.

TWENTY

More severe symptoms with a decreased ability/efficiency to carry out many everyday activities.  Most daily activities can be completed with some difficulty.  Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue.  Symptoms cause significant interference with ability to perform or persist with work-related tasks.  Symptoms may cause prolonged absences from work.”

41.     In accordance with the assessment of Dr Lewis-Enright and the evidence of the Applicant I conclude that she attracts a rating of 10 points under Table 20.

42.     In relation to the Applicant’s depression and insomnia, I propose to treat these conditions as related, with insomnia being the sequelae of the Applicant’s depression.  I rely on the evidence of Dr Atreya; Dr Dinnen; Dr Angstmann; Dr Speechly and Dr Bartlett in this respect. 

43.     Dr Stewart concluded that the Applicant’s depression was temporary.  The evidence simply does not sustain such a view.  Dr Dinnen, after examining and taking a full history from the Applicant, concluded that she had suffered from a psychiatric condition from at least 1995.  Dr Dinnen described her condition as chronic and was of the view that she had received treatment.  I accept the Applicant’s evidence that she has been treated with anti-depressant medication and has received extensive counselling over the years.  I have no hesitation in concluding, on the basis of the Applicant’s evidence and that of Dr Dinnen, that her depression has been diagnosed, treated and has stabilised.

44. It follows that it is appropriate to assess the Applicant’s psychiatric condition under the Impairment Tables. The relevant table is Table 6 which provides in part:

“

Rating	Criteria
NIL	Mild but regular symptoms which tend to cause subjective distress.  On most occasions able to distract themselves from this distress.  Minimal interference with function in everyday situations.  Exacerbation of symptoms may cause occasional days off work.  (eg. There may be some loss of interest in activities previously enjoyed.  There may be occasional friction with family, colleagues or friends)  Medical therapy or some supportive treatment from treating doctor may be required.
TEN	Moderate and regular symptoms and generally functioning with some difficulty.  (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships).  May have received psychiatric treatment which has stabilised the condition.  Minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work.  (eg. short periods of absence from work).
TWENTY	Psychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms ).  There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.”

45.     Dr Dinnen opined that the Applicant attracts an impairment rating of 10 points under this table.  Having regard to the Applicant’s evidence of her condition and its effect on her, which I accept, I agree with Dr Dinnen.

46. Therefore, the Applicant has an impairment rating of twenty points and thus satisfies the requirement in section 94(1)(b) of the Act. It remains now to consider whether the Applicant has a continuing inability to work within the meaning of the legislation.

47.     I accept the Applicant’s evidence of the debilitating effect of her insomnia, depression and foot pain.  I note the opinion of Dr Dinnen that the Applicant is not unemployable and would benefit from retraining but that she could not work, because of her conditions, for more than 20 hours per week and only with a flexible and sympathetic employer.  Dr Lewis-Enright was of the view that while the Applicant could be rehabilitated medically and vocationally within the next two years, her chronic depression would remain a barrier to such rehabilitation.  Dr Lewis-Enright added that, even if she were able to be rehabilitated, she would be prevented from working more than twenty hours per week.  Both Dr Dinnen and Dr Lewis-Enright expressed the view that this situation would persist for the next two years.  I am persuaded by these expert opinions.

48.     I note that the definition of “work” in section 94(5) of the Act is work “that is for at least 30 hours per week”.  The term “continuing inability to work” is defined in section 94(2) as requiring that the impairment is of itself sufficient to prevent a person from doing any work (of at least 30 hours per week) within the next two years. The Applicant meets this requirement. The Act also requires, in section 94(2), that vocational or educational training would not, because of the impairment, equip a person to do any work (of at least 30 hours per week) within the next two years. On the basis of the opinions of Dr Dinnen and Dr Lewis-Enright, the Applicant also meets this requirement.

49. It follows that the Applicant has a continuing inability to work within the meaning of the Act and she therefore satisfies the requirements for eligibility to receive disability support pension contained in section 94(1)(a),(b) and (c) of the Act.

decision

50. The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant satisfies the requirements for eligibility to receive disability support pension contained in section 94(1)(a),(b) and (c) of the Social Security Act 1991.

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         Linda Blue................................................
  Associate

Date of Hearing  13 May 2004
Date of Decision  23 July 2004
Counsel for the Applicant         Ms Cathy Sant
Solicitor for the Applicant          Ms Cretanka Jaukulouska
Solicitor for the Respondent     Mr George Lozynsky