Larner; Secretary, Department of Education, Employment and Workplace Relations and

[2008] AATA 151

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 151

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/362

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

Applicant

And SANDRA LARNER

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member

Date26 February 2008

PlaceSydney

Decision The decision under review that Ms Larner satisfies sub-section 94(1) paragraphs (a), (b) and (c) of the Social Security Act 1991 is affirmed.

.....................[sgd]............................

Ms Robin Hunt
  Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – diagnosed hypertension and feet conditions – conditions fully documented and diagnosed – investigated, treated and stabilised – decision affirmed

Social Security Act 1991

Re Secretary, Department of Employment and Workplace Relations and Daniel Hatton [2007] AATA 1631

REASONS FOR DECISION

26 February 2008 Ms Robin Hunt, Senior Member   

summary

1. This matter is about whether Ms Larner was qualified for disability support pension as at 1 August 2005. The decision under review is the decision of the Social Security Appeals Tribunal (SSAT) made on 3 March 2006 which set aside a decision to reject Ms Larner’s claim for disability support pension and sent the matter back to Centrelink for reconsideration in accordance with directions that Ms Larner satisfied paragraphs 94(1)(a), (b) and (c) of the Social Security Act 1991 (the Act) and has done so since the date of her claim. I have reviewed the matter and have decided that the decision of the SSAT was correct as further set out below.

issues

2.        The issue for determination is whether Ms Larner qualified for disability support pension (DSP) at the date of her claim. This depends on findings about any medical conditions she suffered at the time of her claim or within the ensuing 13 weeks and her impairment ratings in respect to those conditions. To succeed in her claim Ms Larner must demonstrate an impairment rating of at least 20 points. While she has a number of documented health problems, Ms Larner is pursuing her claim only in respect of those conditions to which the SSAT assigned impairment points totalling 20.

·     Ms Larner claims an impairment rating of 20 points or more under the Impairment Tables contained in Schedule 1B to the Act.  The SSAT assigned her impairment ratings of 10 points under Table 20 for hypertension and 10 points under Table 4 for conditions affecting Ms Larner’s feet or ‘function of the lower limbs’.

3.        If I find Ms Larner had an impairment of 20 points or more, at the relevant time, a further issue is whether Ms Larner had a continuing inability to work. This turns on whether her impairment was of itself sufficient to prevent her from doing 30 or more hours of work per week during the two years from the date of her claim.  Another criterion is whether the impairment of itself prevented Ms Larner from undertaking educational, vocational or on the job training during the two years from the date of her claim. In addition, the tribunal may consider whether the impairment makes it unlikely that Ms Larner could work. The provisions about these are set out in more detail in section 94 of the Act discussed below.

history

4.        For the review by this tribunal, the parties have agreed that the impairment ratings that are in dispute are those for:

·      hypertension and

·     any conditions affecting Ms Larner’s lower limb function or feet.

5.        Ms Larner lodged her claim for DSP on 27 July 2005. At the time of her claim she was receiving a widow’s allowance. Her claim for DSP was rejected on 15 August 2005 on the ground that her impairment rating was nil points because her medical conditions were of a temporary nature. An authorised review officer (ARO) reviewed the decision and directed a medical assessment to determine whether Ms Larner’s conditions should be regarded as permanent for DSP purposes. The ARO affirmed the decision on 8 December 2005 on the basis that Ms Larner did not have the required impairment rating of 20 points or more, based on an assessment furnished by Dr M Greacen of Health Services Australia.

6.        In his report of 30 November 2005, Dr M Greacen assigned a total impairment rating of 10 points consisting of nil impairment points for various health problems Ms Larner is not contesting. As to the lower limb function and hypertension, Dr Greacen found:

·10 points for osteoarthritis of the feet under Table 4;

·No rating for hypertension as the functional impact of the condition was considered temporary because the condition was ’not optimally controlled’.

7.        Ms Larner appealed to the SSAT and, on 3 March 2006, the SSAT decided that Ms Larner had a combined impairment rating of 20 points based on:

·10 points for lower limb conditions under Table 4;

·10 points for hypertension under Table 20;

·The SSAT also found that Ms Larner had a continuing inability to work.

Legislation

8.        Section 94 of the Act gives the qualification criteria for DSP. At the time of the original decision it stated, in part:

94(1) A person is qualified for disability support pension if:

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

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

(c)       one of the following applies:

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

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

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

(b)       either:

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

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

94(5) In this section:

“work” means work:

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

CONSIDERATION AND FINDINGS

9. It is agreed and I find that Ms Larner satisfies paragraph 94(1)(a) of the Act in that she has a range of physical impairments. However, the Secretary contends that paragraph 94(1)(b) of the Act has not been satisfied as Ms Larner does not have an impairment rating of 20 points or more. The Secretary also contends that Ms Larner does not have a continuing inability to work and thus does not satisfy paragraph 94(1)(c).

10.      Ms Larner had multiple health problems over recent years. A number of medical certificates and reports on file relate to Ms Larner’s suffering depression as well as other conditions and address the effect on her ability to work. I have summarised below only those reports or assessments that relate to her hypertension and lower limb or feet problems as these are the only conditions Ms Larner says are important for her claim for the DSP.

11.      In the statement of facts and contentions lodged on 5 January 2007, the Secretary accepted an impairment rating of 10 points for neck and back pain. The Secretary further contended that at the time of the original decision a rating of 10 points under table 4 for lower limb function was appropriate but that Ms Larner’s mobility should increase in the next two years after she had surgery on her bunions. In the amended statement of facts and contentions lodged on 5 May 2007, the Secretary contended that Ms Larner suffered from no condition that was permanent and therefore should be assessed at nil impairment points.

The DSP Claim Form

12.      The tribunal documents include Ms Larner’s completed DSP claim form, which sets out medical details. Question J1 required Ms Larner to list any disabilities, illnesses or injuries that she had. She wrote: “I have osteo-arthritis in my back, knees, both feet and all my fingers. I have very painful bunions on both feet … I cannot wear closed shoes. I suffer from high blood pressure, which I am being treated for. I have trouble walking far, bending, gripping and holding things”.

13.      Ms Larner stated that these disabilities commenced in 1989. She also confirmed that she had never been hospitalised because of any of these disabilities, but was expecting to have an operation in the future. In relation to the treatment she was currently receiving she stated that treatment commenced on 1 June 2005. “I need to take pain killers which make me drowsy. They are a relaxant, which has codeine. I am just starting to adjust to blood pressure tablets”.  Ms Larner wrote that her disabilities made it difficult for her to sit, stand and walk all the time and to use public transport sometimes. She added it “takes a while to straighten up. My feet and knees ache. I can’t wear walking shoes.”

14.      She said her disability affected her ability to lift, carry and bend all the time and sometimes affected her ability to operate everyday appliances. “I can’t lift with my back. I can only vacuum the floor for a short time, as I have to stop regularly to straighten up”. Ms Larner said she had no problem reading, speaking, hearing, remembering or understanding or following instructions. However, she often had difficulty writing and interacting with others and had difficulty all the time concentrating and attending work or other appointments. “I can get very snappy when I am in pain”.

15.      She had trouble sleeping all the time, had no problem breathing and sometimes had difficulty managing her personal affairs and caring for herself. “I have trouble sleeping in one place for too long.”  At question J10, Ms Larner wrote, “My arthritis will only get worse, than better, regretfully, my father and mother had osteoarthritis and my 2 sisters have rheumatoid arthritis and osteoarthritis.… bunions on both of my feet make them look deformed. I can’t wear closed in shoes anymore … until they are operated on, which the waiting time is years”.  Ms Larner also wrote that she suffered depression and took an anti-depressant, Lovan, 20 capsules.

Treating doctor’s report, Dr M Botes, 1 August 2005

16.      In a treating doctor’s report, in August 2005, Dr Botes identified various conditions including:

·     Condition 1: Hallux valgus deformity both feet. The condition is confirmed and the date of onset was 1990. “Patient says that she can not wear her normal shoes and can not stand on her feet for long periods of time.”  “Symptom: Pain … across dorsum of feet. Stiff feeling in the morning – hard to walk. Has gained 10kg in 3 years due to not being able to exercise”.  In relation to how the condition currently affected the patient’s ability to function, Dr Botes stated: “Walking – normal. Standing – causes mild to severe pain, morning stiffness. Not able to exercise”. Dr Botes expected the impact of the condition on the patient’s ability to function would persist for 3-24 months and should improve with surgery.

·     Condition 2: Arthritis. This condition Dr Botes said was presumptive. He noted a history of morning stiffness – hands/back/feet and mild to moderate symptoms. Ms Larner’s treatment was listed as glucosamine caps. Dr Botes added, “According to patient, stops her from working as a cleaner”. His opinion was that with constant and correct treatment problems may disappear.

Treating doctor’s report, Dr C McIntyre, 20 October 2005

17.      In a later treating doctor’s report, in October of the same year, Dr McIntyre identified as condition 1, Osteoarthritis. This condition was confirmed and the date of diagnosis noted as 2001. Other information in the report included, “History: X-ray thoracic and lumbar spine – mild degenerative changes. X-Ray feet – bilat. Hallux valgus. No specialist review as yet”.  Current symptoms observed were: “Aches in low back and hands and feet at times and R elbow. Currently when doing computer work at home finds she has to get up and move around every 10 mins or so”. Future planned treatment was described as: “Has not yet trialled glucosamine. Has referral to Dr Diebold regarding bunions/hallux valgus on feet.” Dr McIntyre stated this condition was likely to impact Ms Larner’s ability to function for more than 24 months. It was also likely to fluctuate over the next two years.

Questionnaire completed by Dr C McIntyre, 20 March 2006

18.      Centrelink wrote to Dr McIntyre on 14 March 2006 asking her to answer a list of questions. Questions and answers were:

·     What is the dosage of Avapro prescribed? 300mg/12.5mg 1 morning.

·     What are the blood pressure readings in the last 3 years?

17/2/05 – 160/90

12/5/05 – 200/120

19/5/05 – 180/100

18/7/05 – 146/90

25/7/05 – 162/82

20/10/05 – 150/80

·     Would you consider Ms Larner’s hypertension to be well controlled or difficult to control? Still hypertensive but not seen here in last 3 months

·     Would you consider Ms Larner’s hypertension to be difficult to control despite intensive therapy? Not yet on ‘intensive therapy’ only on one antihypertensive.

·     Considering all of Ms Larner’s impairments, would she be able to do any work at award wages for 30 hours per week within the next 2 years? I believe she may be able to work but that a graded return to work would be needed and she may not cope with fulltime work.

·     Do you think Ms Larner could undertake educational or vocational training within 2 years? Yes.

Job Capacity Assessment  Report, 12 November 2006 - Ms Sueanne Trindall

19.      Ms Trindall, a psychologist, furnished a job capacity assessment report on 12 November 2006. In this report, Ms Trindall listed several conditions. She described osteoarthritis as permanent, lower limb deficiencies as temporary, “spinal disorder – other” as permanent, hypertension as temporary and depression as temporary. She noted a neck disorder as “other”, not commenting on whether it was temporary or permanent.

20.      For osteoarthritis, using Impairment Table 3 – upper limb function, Ms Trindall assessed a rating of 0 as there was mild impact on capacity for manual handling on both dominant and non dominant hands. For spinal disorder – other, using Impairment Table 5.2, her recommended rating was 10 points as there was near full range of movement.

21.      Ms Trindall concluded that Ms Larner was best suited to vocational rehabilitation. As to work capacity, Ms Trindall found Ms Larner’s ‘temporary capacity’ for work was 0-7 hours per week with an end date of 13 November 2007. She found Ms Larner’s ‘current capacity’ for work was 8-14 hours per week with an end date of 13 November 2008. The rationale for the current capacity to work was that she took the approach that Ms Larner had several temporary conditions which in combination with her permanent conditions reduced her work capacity to 0. Without her temporary condition she would be able to work 2-3 hours per day in her previous employment situations. Due to her pain symptoms she would not be able to work full time in these roles. Ms Trindall found, as to future capacity for work without intervention, Ms Larner had capacity to work 0-7 hours per week. Without intervention, Ms Trindall noted her current capacity would remain unchanged.

22.      Future capacity for work with mainstream intervention Ms Trindall assessed at 23-29 hours per week. She thought it unlikely that Ms Larner would be able to return to full time employment “before deterioration of her condition reduces her work capacity and endurance further”. However, Ms Trindall thought it reasonable to anticipate she could work up to 25 hours per week.  She suggested light, semi-skilled work.

23.      In the assessment summary, Ms Trindall wrote that the osteoarthritis in Ms Larner’s feet was a “permanent condition” but noted the pain from her bunions was currently limiting her walking capacity. Then Ms Trindall wrote that Ms Larner’s bunions were to be operated on within the next 2 years and consequently the condition was “temporary”. Once the bunions had been treated, Ms Trindall suggested the impact of the arthritis on her functional capacity and mobility could be established and rated.

24.      As to hypertension, Ms Trindall wrote that the guide to Table 20 states that hypertension does not usually cause significant functional effect unless it results in end organ damage. She observed if it was difficult to control, despite “optimal treatment”, it can be rated. She expressed the view that Ms Larner should have received a specialist review and management program. Ms Larner had not provided any evidence that her condition had been assessed by a specialist or that she had obtained a management program from a specialist. In Ms Trindall’s opinion, therefore, her condition was “deemed temporary”. If her condition remained unchanged after specialist review and participation in a management program, her condition should be considered permanent, Ms Trindall continued.

Report of Dr Cheryl McIntyre dated 13 March 2007

25.      Dr McIntyre on 13 March 2007 wrote a response to the Centrelink letter of 29 December 2006 which asked her to provide a report covering various matters. Dr McIntyre noted Ms Larner was last seen at this surgery on 28 October 2006 and previously on 15 June 2006 and on 20 October 2005. She recorded that Ms Larner was on two antihypertensive medications.

26.      Dr McIntyre, when addressing whether Ms Larner’s hypertension was “optimally treated”, replied that Ms Larner’s hypertension was not optimally treated at present, as her last blood pressure reading done on 15 June 2006 by Dr Rhee was 180/110. It was 150/80 when Dr McIntyre had seen her. Dr McIntyre was concerned that the condition had worsened and wrote:

“I believe her hypertension requires review as she is not on optimal treatment at this stage. Ms Larner’s hypertension has not been optimally controlled but further options are available to her.”

Report of Dr Ilana Ginges – Rheumatologist, 7 September 2006

27.      A specialist rheumatologist, Dr Ginges, saw Ms Larner and furnished a report to Dr Rhee of Inverell on 7 September 2006.  Dr Ginges recorded that Ms Larner was well but quite overweight. Ms Larner was hypertensive on the day of the examination with a blood pressure of 180/90. Examination of her feet “revealed some tenderness over the mid foot bilaterally without any swelling. There was some over-pronation of her feet.”

28.      Dr Ginges then under a heading “Provisional diagnosis” wrote:

At this point it appears that Sandra most likely has generalised osteoarthritis which is associated with deconditioning and weight gain. It is important to exclude other forms of arthritis particularly psoriatic arthritis given the history. She also has poor footwear and this will be contributing towards her foot pain.

Castlereagh Imaging – Report of Dr Martin Young, 26 September 2006

29.      The x-ray report of Dr Young dealt with lumbar spine, pelvis, si joints and hips, both hands and both feet. As to the x-ray of Ms Larner’s feet, Dr Young noted: “Moderate bilateral metatarsus primus abductus is shown, left worse than right, with mild hallux valgus and mild OA of the 1^st MT-P joints. There is moderate OA of the left 1^st tarso-metatarsal joint also, mild on the right and mild general tarso-metatarsal joint and IP joint OA. Otherwise normal”.

Job Capacity Assessment Report, 10 April 2007, Ms Sueanne Trindall

30.      Ms Trindall carried out a further assessment about five months later, on 10 April 2007. The report discussed Ms Larner’s osteoarthritis, lower limb deficiencies, spinal disorder, hypertension and depression and assessed them all as temporary.

31.      Ms Trindall’s work assessment changed to temporary capacity for work of 8-14 hours per week with an end date of 4 October 2007 and a current capacity for work of 30+ hours per week with an end date of 10 April 2009. In Ms Trindall’s opinion, if Ms Larner did not have her temporary medical conditions, she would have capacity to work full time. Suitable work she listed as ‘Moderate less skilled”, for example, room attendant (hotel/motel) or domestic assistant. Ms Trindall thought her future capacity for work without intervention was 30+ hours per week.

32.      Ms Trindall completed a file assessment taking into account additional medical evidence. Ms Trindall states that Ms Larner’s reports of lost range of movement and limited functional capacity due to arthritis were not supported by Dr Ginges report dated 7 September 2006 which indicates a provisional diagnosis of generalised arthritis. Ms Trindall expressed the opinion on page 8 of her assessment that the provisional diagnosis should be confirmed before the condition could be assessed as permanent. She considered that Dr Ginges had indicated further testing was being conducted to establish a diagnosis. Consequently, Ms Trindall found the arthritis was temporary and “not fully diagnosed, optimally treated or stabilised”. Ms Trindall noted Ms Larner’s arthritis was previously considered permanent but with the new information in the form of the specialist report from Dr Ginges, which outlined further investigations and treatment planned, it should be considered temporary.

33.      Hypertension Ms Trindall also thought “not currently optimally treated” and she observed that further treatment options were available to stabilise the condition. She referred to Dr McIntyre’s letter in response to the question about whether Ms Larner’s hypertension was optimally treated and noted the doctor had replied it was not optimally treated.  Consequently, Ms Trindall considered the hypertension temporary and “not fully diagnosed, optimally treated or stabilised”.

34.      Work capacity Ms Trindall assessed as reduced for six months to allow time for appropriate testing to occur and for treatment programs to be implemented. Without these temporary medical conditions, she thought Ms Larner would have been able to continue in her previous field of employment on a full time basis. Ms Trindall anticipated that within 2 years Ms Larner would have capacity to resume full time employment. She recommended assistance from a vocational rehabilitation provider to assist with a graded return to work.

Ms Trindall’s evidence at the hearing

35.      Ms Trindall agreed in oral evidence that she found Ms Larner’s temporary capacity for work was zero to seven hours per week.  She explained it was a measure of how the person being assessed presented on the day as a whole.  This was in contrast to an assessment where there was an expectation of some improvement with either a different form of treatment or functional improvement over the next two years. When assessing current capacity for work, Ms Trindall agreed she found eight to fourteen hours per week.  She added that on screen the frame within which she was working came up differently to the way it did on the report.  She said:

So for us it is actually the heading is “Current capacity for work excluding any temporary conditions”.  So I am not sure why that doesn’t come through on the report but it is actually looking at her current capacity for work including only permanent conditions.  So it is taking away all of the temporary conditions and just looking at her permanent conditions and the impact that they have.

36.      Ms Trindall said she prepared the assessments using drop-downs for most of her comments, for example, work capacity had available zero to seven, eight to 14, 15 to 22, 23 to 29, 30 plus. Suitable work types were drop-down. She was able to enter free text for some of the assessment such as the treatments expected for the person.

37.      When she prepared the further assessment report dated 10 April 2007, Ms Trindall explained she had been asked to look at new information and review that in line with all the previous information and previous assessment to prepare another report. The additional information she was asked to take into account was a letter from her treating doctor and an attached letter from a specialist.  Ms Trindall explained that as a result of reading the treating doctor’s letter she concluded that Ms Larner’s hypertension was “temporary”. The information from the treating doctor was indicating there were alternative treatment options available and that the condition wasn’t fully treated at this point in time.

38.      As to the problems afflicting Ms Larner’s feet, Ms Trindall said she also formed the opinion that these were “temporary” because the specialist, Dr Ginges, had expressed her opinion as a “provisional diagnosis”.  When assessing temporary capacity for work and current capacity for work, Ms Trindall explained that she came up with different results because again she regarded Ms Larner’s lower limb condition and deficiencies and the hypertension as not permanent conditions.

Report of Dr McIntyre dated 8 August 2007

39.      In her most recent report, dated 8 August 2007, Dr McIntyre observed that Ms Larner had hypertension which is a permanent condition. Her most recent blood pressure reading on 23 July 2007 was 149/94 which had improved from 2005 but was not yet “optimally treated”. Medication was changed from Norvasc 5mg to Noten 50mg ½ tablet in the morning together with her Avapro 300/12.5mg 1 tablet in the mornings.

40.      Dr McIntyre wrote:

I believe her hypertension will be able to be treated to target level of 130/85 but that she may require 3 agents to achieve this.

41.      Dr McIntyre further gave her opinion that Ms Larner’s osteoarthritis was the cause of significant disability and was a permanent and progressive condition which was likely to worsen as the years go by. She already had joint pain, joint stiffness and weakness in multiple joints and her analgesic options were limited by the fact that she had hypertension which made anti-inflammatory agents riskier.

Dr McIntyre’s evidence at the hearing

42.      Dr McIntyre gave oral evidence about her responses to Centrelink in the letter of March 2003. When asked about what she meant by “optimal treatment” Dr McIntyre gave evidence to the effect that the treatment she had provided to Ms Larner was not optimal because it had not achieved an optimal result. She framed her opinion in this form of words as the Centrelink letter asked her to comment on whether Ms Larner’s blood pressure was “optimally treated”.

43.      As well as explaining how she came to use the frame of reference of optimal treatment, Dr McIntyre gave other evidence. She said she had been treating Ms Larner since at least February 2005.  Ms Larner’s blood pressure was first measured at 160/90, “which is quite above what it should be”. Dr McIntyre gave evidence that the cut-off point for blood pressure is 140/90 and that the target in treatment of high blood pressure would be 130/85.  Dr McIntyre indicated that Ms Larner’s last blood pressure reading in July 2007, was 149/94, which was much closer to target levels but still of concern.  There was a reading on 15 June 2006 of 180/100 and another on 22 June 2007 which was 187/97.  Not all of these blood pressure readings were actually taken by Dr McIntyre because Ms Larner saw other doctors in the practice. 

44.      Dr McIntyre agreed she was still in the process of treating Ms Larner’s hypertension and exploring options. When asked if treatment was “intensive”, Dr McIntyre gave evidence that having more regular blood pressure checks would be a part of intensive follow up.  Dr McIntyre added that intensive treatment was required if somebody actually had signs of the blood pressure affecting their organs, for example, if they had kidney failure or strokes or mini-strokes. If they had signs of these problems “you would monitor them more closely as in at least monthly and they would also be on several tablets, not just two or one”. This was when treatment became intensive.    

45.      Dr McIntyre agreed that Ms Larner’s hypertension was not as controlled as she would like.  There was still room for adjustment in her treatment. Dr McIntyre indicated that Ms Larner did not attend for review as often as she would like. Dr McIntyre agreed that it might sometimes be difficult to obtain a quick appointment with her but also indicated that she would encourage a patient to make another appointment in about a month or sometimes two weeks. Dr McIntyre agreed that most people with blood pressure problems can be well controlled with the right combination and doses of medication.

46.      Dr McIntyre indicated that blood pressure of 160/90 or above could cause headaches and that headaches could also be caused by treatment for hypertension.  Dr McIntyre could not recall taking a history of headaches from Ms Larner.  She also said there was no mention of dizziness or headaches in the notes about Ms Larner’s visits to Dr McIntyre’s practice in June and July 2007. 

Ms Larner’s evidence

47.      Ms Larner’s oral evidence was that due to hypertension she experiences headaches and dizzy spells.  She said that her headaches occur twice daily, every day.  In answer to a question she described the severity of the pain as ten, on a scale of one to ten. Ms Larner said that when she has a headache she has to take a tablet and lie down and that she is unable to resume her normal activities for two or three hours. The medication prescribed by her doctor, Panadeine Forte, tends to make her drowsy and she normally falls asleep.

48.      Ms Larner said that the doctor she consulted when she first began to suffer headaches and symptoms that she now knows to be hypertension was Dr McIntyre.  She referred to difficulty with obtaining appointments with Dr McIntyre, saying:

… most times she is booked out. It might take me a month or so to get in.  If I was to ring up today, it would be a couple of months before I could get to see her.  So normally I see any doctor that is available.

49.      In cross–examination Ms Larner agreed that she has been living in Inverell since 2002 and she said she has been attending the Evans Street Surgery since arriving in Inverell.  This is the surgery where Dr McIntyre practises. Ms Larner said she often saw other doctors at the practice because she would have to wait to see Dr McIntyre. She said about the hypertension treatment that “I always do what they say because it worries me, the blood pressure because it’s really serious”.

50.      When asked if the doctors at Evans Street ever recommended that she see a specialist for hypertension, Ms Larner said “Not a specialist, no.  They have put me on different tablets on top of the blood pressure tablets as well, which hasn’t been working.  They have tried two different ones now”.

51.      As to her foot problems, when Ms Larner was asked had any doctor before Dr Ginges said she should wear special shoes, Ms Larner said Dr Ginges was not the only doctor to suggest special shoes.  She said there were doctors in Brisbane and a specialist who also suggested special shoes but when she went to a supplier and tried the shoes, she couldn’t wear them, “they just were too restricting on my foot and closed in and they caused more pain”.

52.      Ms Larner added that Dr Ginges gave her an address in Tamworth where they sell the special shoes and she spoke with Dr McIntyre about shoes. Nothing came of that conversation because she could not wear those closed in shoes that the doctors recommend.  This was because of the bunions, especially from the big toe. Ms Larner said both of them stick out and closed in shoes are too painful to wear.

53.      When exploring the possibility of surgery in order to remove the bunions, Ms Larner gave evidence that she would have to travel to another town some distance away and that transport was a problem.  In order for her to come from her house into Inverell, she relied on an elderly lady who lived about a kilometre away.  Otherwise, she would take a taxi and this was often how she came home as she felt she could not ask her neighbour to wait around for her. A taxi to make the journey cost $14.90. Ms Larner said she did not drive and never had a car licence.  So she normally rang up the elderly lady and asked her if she was going into town and got a ride with her.  This elderly neighbour was aged 86.

54.      In the reports of some of the doctors there is mention of a specialist at Armidale by the name of Dr Diebold. Ms Larner agreed she had discussed seeing Dr Diebold with Dr McIntyre but gave further evidence that she could not see Dr Diebold because there were no buses from Inverell to Armidale and it was located about 170 kilometres away. 

55.      Ms Larner said there were buses that went to Tamworth and left at 7.00 in the morning. There was only one service and it arrived back in Inverell about 7 pm. It went from the transit centre in Inverell and did not pass near her place. She would have to get a taxi to the bus terminal and back again. She would find it exhausting and expensive to go to Tamworth if anyone suggested she see a specialist there.

56.      Ms Larner said her feet had become worse since 2005, over the last two years. When she made the DSP claim, her pain was excruciating.  It stopped her from walking very far at the time.  When asked, Ms Larner said at one time she had a friendship with someone and she tried to walk around a golf course with him but she would have to go back to the clubhouse and sit there and wait for him.  She said to walk on the course, she had to wear closed in shoes like joggers and they caused her a problem.

57.      She compared these shoes to the special shoes the doctors recommended and said they were too expensive. She had tried some special shoes. They showed her different sorts of shoes. Some were very soft and all that sort of thing but after walking around for a couple of minutes in the shop she thought “if I was to walk around town with them I am pretty sure that they would be the same as the closed in joggers”.

58.      As to her blood pressure, Ms Larner said she had symptoms for years before it was diagnosed by one of the doctors in the Evans Street practice. Before the diagnosis, she had put her headaches and dizziness down to other things. She had visited other doctors in Inverell as well as those at the Evans Street practice for testing and other reasons. For example, she had a bad dose of flu and saw another doctor recently because no one was available at Evans Street. She also had blood pressure tested at the Inverell Pharmacy.  She said she had been to the pharmacy three or four times before she obtained a blood pressure monitor some time in 2005. Since then, she checked her blood pressure regularly at home, about every second day. She had been doing that for about two and a half years.

59.      She said she had also been to the Inverell hospital for day treatment and the staff had rung around to find a doctor before treating her there. She had something in her eye and she had already rung all the doctors and they rang around as well and couldn’t get anyone to see her.  She gave further evidence that none of the doctors in Inverell bulk billed and that it cost about $42 to $50 to see a local doctor. 

Findings about impairment ratings

Hypertension

60.      The Secretary accepts that hypertension is a documented and diagnosed condition.  However, the Secretary argued treatment had not been completed; in that the condition had not been stabilised and further investigation may be required.  Although Ms Larner gave evidence of suffering from debilitating headaches, experienced twice daily, which she attributed to hypertension there was no medical evidence that the headaches are indeed caused by hypertension.  Dr McIntyre acknowledged that headaches can be a symptom of hypertension or its treatment but she was unable to recall Ms Larner reporting to her or her colleague the headaches that were reported to the tribunal. 

61.      Treatment of Ms Larner’s hypertension commenced in February 2005.  In the medical details questionnaire completed on 27 July 2005 Ms Larner stated, “I am just starting to adjust to blood pressure tablets”. Dr McIntyre described variations to the treatment of Ms Larner’s hypertension since February 2005.  As well, Dr McIntyre was still working to achieve control of Ms Larner’s hypertension or the target blood pressure level of 130/85. 

62.      Section 4 of the Introduction to the Impairment Tables in Schedule 1B to the Act provides that “For a rating to be assigned the condition must be a fully documented diagnosed condition which has been investigated, treated and stabilised”.  Section 6 of the Introduction indicates that in order to assess whether a condition is fully diagnosed, treated and stabilised one must consider what treatment or rehabilitation has occurred; whether treatment is continuing or is planned in the near future; and whether any reasonable medical treatment is likely to lead to significant functional improvement within the next two years.

63.      On balance, I am satisfied that Ms Larner has been receiving reasonable and appropriate treatment for her hypertension, even though the targeted level has not been reached.  I accept the truth of Ms Larner’s evidence that she has had symptoms such as dizziness and headaches for some years and has been monitoring her blood pressure levels consistently since it was diagnosed early in 2005. Dr McIntyre has clarified what she meant by optimal treatment and optimal control and that these expressions were related to results rather than neglect or inadequate treatment. I further note that the expressions optimal treatment and optimal control do not appear in the legislation, the guidelines or table 20 in schedule 1B. Assessment of 10 points is based on a fairly low level problem when compared to impairment in the higher ranges, noting that impairment points range from nil to thirty in table 20.

64.      For 10 impairment points, one of the criteria is:

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.

65.        In addition, the introduction to the tables refers to the need for a condition to be “a fully documented, diagnosed condition which has been investigated, treated and stabilised”. In my view, again on balance at the very least, Ms Larner’s hypertension was, at the time of her application, a fully documented, diagnosed condition which had been investigated, treated and stabilised. I have commented in a previous case on the erroneous interpretation of the test in the introduction to the tables that a condition must be “fully” stabilised. This is not what the introduction says. See my decision in Re Secretary, Department of Employment and Workplace Relations and Daniel Hatton [2007] AATA 1631.

66.      On the evidence of Dr McIntyre and of Ms Larner, it is clear that Ms Larner’s hypertension has been fully documented and diagnosed. It also has been investigated, treated and stabilised with some improvement although it may be that further experiments with medication may one day achieve an even better result. Dr McIntyre has done the best she can to stabilise the condition with the resources available. Ms Larner does not have the option of travelling far and wide to find a specialist who may be able to do better. She has sought the treatment available to her, has monitored her blood pressure regularly by various means including her own machine at home, as well as attending on local doctors. She has followed treatment advice by adhering to her medication.  

67.      Although Dr McIntyre was asked to comment on whether Ms Larner had received intensive therapy and thought this was not a description she would apply this was based on her opinion that:

… having to have more regular blood pressure checks would be a part of intensive follow up.  That would be done if somebody actually had signs of the blood pressure affecting their organs.  So for example if they had kidney failure or kidney problems as a result of the blood pressure or signs of strokes or mini-strokes,…

68.      Dr McIntyre has interpreted intensive therapy to mean therapy in a more threatening situation than that of Ms Larner. The situation in Ms Larner’s case is not one affecting her organs but her condition still comes within the range of 10 points in my view. Dr McIntyre has set out in her letter of 8 August that Ms Larner’s condition is permanent and the improvements achieved to date and her hopes for further improvement over time. On balance, while treatment might be more intensive, I find that it is excellent ongoing and monitored treatment as intensive as the circumstances allow.

69.      Ms Trindall’s assessment was incorrectly based on an opinion that Ms Larner’s condition had not been a “fully documented, diagnosed condition which had been investigated, treated and stabilised” because she relied on the letter of Dr McIntyre in which the doctor responded to a different question. Dr McIntyre had been asked to comment on whether Ms Larner had been “optimally treated”. Dr McIntyre has given evidence that she thought this meant that the best possible target had been achieved.   This is not the same test as that set out in the introduction to the tables. Accordingly, I find the most accurate impairment rating that should be assigned is that of 10 points under table 20 as found by the SSAT.

Conditions affecting Ms Larner’s feet

70.      In the medical questionnaire completed on 27 July 2005 Ms Larner advised that she had arthritis and bunions on both feet.  She said, “…I can’t wear closed in shoes anymore until they are operated on, which the waiting time is years (sic)”. Ms Larner gave evidence that she has experienced pain in her feet since living in Brisbane during the 1990s.  She also gave evidence that her only treatment has been painkillers.  She is unable to wear closed shoes.  She has not seen a podiatrist because of the cost.  Ms Larner advised that since arriving in Inverell she had seen a specialist, Dr Ginges.  While Dr Ginges arranged to see Ms Larner again three months after her consultation and had not seen her again, Ms Larner did try the shoes recommended and could not wear them, and her evidence implied it would not be useful to see her again. 

71.      Ms Larner has reportedly been suffering from painful feet due to arthritis and bunions since the mid 1990s.  At the hearing Ms Larner indicated that surgery had been discussed with a specialist when she was living in Brisbane.  She also said in evidence that she had decided against surgery because the specialist that she saw told her that surgery would not fix the problem.  She also spoke to other people who had had the surgery “and it didn’t work”.

72.      In a job capacity report dated 13 November 2006, Ms Trindall reported that Ms Larner’s bunions were to be operated on within the next two years.     For this reason, she assessed the condition as temporary. However, no surgery was planned in fact.

73.       Dr Ginges, in a report of 7 September 2006, said examination of Ms Larner’s feet revealed some tenderness over the mid foot bilaterally without any swelling.  She also reported that Ms Larner had poor footwear and that this would be contributing towards her foot pain.  However, Ms Larner has given further evidence that she cannot wear the enclosed shoes that Dr Ginges recommended and has not been able to have surgery on her bunions, which is what prevents her wearing the shoes and exacerbates her pain. The root cause of her reduced lower limb function is arthritis.

74.      The existence of the conditions affecting Ms Larner’s feet is not disputed.  The evidence shows that the conditions have been present for many years. Dr McIntyre on 8 August 2007 wrote that Ms Larner’s osteoarthritis was the cause of significant disability, permanent and likely to worsen. The Secretary contends the conditions affecting Ms Larner’s feet have not been fully investigated and any impairment arising from the conditions has not been treated appropriately. It is true that Ms Larner has not followed the advice of Dr Ginges to consult a podiatrist to obtain appropriate footwear or the advice of Dr McIntyre that she should see a local podiatrist. According to Ms Larner this is because the cost is too great and she also gave evidence about her transport difficulties.   These suggestions have merit but will not overcome the permanent condition of osteoarthritis although they may provide some relief from pain. Dr McIntyre also referred to Ms Larner having limited analgesic options because of the risk of inflammatory agents adversely impacting her hypertension.

75.      It is true that Dr Ginges set out her diagnosis under the heading “provisional”. However, there is no doubt that Ms Larner suffers osteoarthritis. This is well documented and affects her hands and other areas as well as her feet. Dr Ginges recounts that Ms Larner presented with long standing polyarthritis and described a 20 year history of arthritis which affects her distal interphalangeal joints, lower back, knees and feet. The provisional part of Dr Ginges’ diagnosis was related to her opinion that it was important to exclude other forms of arthritis. The footwear advice related to pain, not to whether osteoarthritis was permanent.

76.      In this situation, I am not convinced that I should find that Ms Larner has declined to undertake further investigation and treatment. I conclude, on balance, that an impairment rating can be assigned and that the appropriate impairment rating under Table 4 is 10 points.  This is based on the description by Dr Greacen that Ms Larner’s foot conditions, at the relevant time, caused discomfort with closed shoes and prolonged weight bearing and moderate interference with walking.   This is the same finding as that made by the SSAT.

Did Ms Larner have an impairment rating of 20 points or more?

77.      As I have decided that in the relevant period Ms Larner had an impairment rating of 10 points for hypertension and 10 points for loss of function in her lower limbs, she has met the requirement of 20 impairment points under the Schedule 1B table. 

Continuing inability to work

78.      Only impairments that have been rated under the Impairment Tables may be taken into account in determining whether Ms Larner has a continuing inability to work. As I have found Ms Larner’s conditions of hypertension and lower limb function loss are permanent and attract an impairment rating, the basis for taking these into account when determining whether she has a continuing inability to work, has shifted from that assessed by Ms Trindall. 

79.      It is true that soon after Ms Larner’s claim for DSP, Dr Greacen, an adviser to Centrelink, concluded that with appropriate mainstream intervention Ms Larner would have a work capacity of 30+ hours per week within 6 months.  Dr Greacen considered that Ms Larner was fit for work of a sedentary or semi-sedentary nature. Dr Greacen reached this conclusion notwithstanding that he assigned an impairment rating for conditions affecting Ms Larner’s feet.  However, no appropriate mainstream intervention is likely in Ms Larner’s case because of her remote location. In addition, the specialist Ms Larner saw about her feet, Dr Ginges, has not actually recommended surgical intervention. Ms Larner also gave evidence she had thought about surgery but was reluctant because there was no guarantee it would work.

80.      In the light of the information then available, Ms Trindall concluded in April 2007 that within two years of August 2005 Ms Larner would have had a capacity to work full-time if appropriate investigations and treatment had occurred. The job capacity assessment reports completed by Ms Trindall identified a number of interventions that she considered would address the barriers affecting Ms Larner’s work capacity. Her conclusions, however, were based on erroneous assumptions as set out above. In my view, taking all the evidence before me into account, the weight of evidence shows that in the relevant period Ms Larner had a continuing inability to work.

conclusion

81.      As I have found that Ms Larner attracts 20 impairment points, being 10 for hypertension under table 20 and 10 for her feet condition under table 4, plus incapacity for work, the decision of the SSAT should be restored.

decision

82. The decision under review that Ms Larner satisfies sub-section 94(1) paragraphs (a), (b) and (c) of the Social Security Act 1991 is affirmed.

I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member

Signed: .........................[sgd]..........................................

Jennifer Wong, Associate

Date of Hearing                   13 November 2007
Date of Decision                   26 February 2008       
Solicitor for the Applicant                           Mr G Richardson        

Solicitor for the Respondent  Mr S Hodges