Latchford and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1459

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1459

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200501160

GENERAL ADMINISTRATIVE DIVISION		)
Re		CHRISTINE ANN LATCHFORD

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal G.D. Friedman, Senior Member

Date22 June 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Senior Member

SOCIAL SECURITY - disability support pension - chronic bronchitis - back and chest pain - whether applicant has a continuing inability to work

Social Security Act 1991 ss 94(1), 94(2), 94(3), 94(4) and 94(5)

Secretary, Department of Social Security v Pusnjak [1999] FCA 994

REASONS FOR DECISION

22 June 2007  G.D. Friedman, Senior Member

1.        Christine Latchford lodged a claim for disability support pension (DSP) on 15 February 2005 on the basis of chronic bronchitis, chronic obstructive pulmonary disease, back pain, osteoarthritis in her knees and hips, hypertension, cholesterol and vitamin B12 deficiency.  Centrelink determined that her conditions attracted the required impairment points, but she was not eligible because the conditions did not result in a continuing inability to work for at least 30 hours per week.

ISSUE

2.        The issue before the Tribunal is whether Ms Latchford had a continuing inability to work at the date of her claim or within 13 weeks after lodging the claim.

WHAT IS CONTINUING INABILITY TO WORK?

3. The requirements for qualification for DSP (prior to 1 July 2006) are set out in s 94 of the Social Security Act 1991 (the Act).  The relevant sections provide as follows:

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

…

(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(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a)the availability to the person of educational or vocational training or on-the-job training; or

(b)if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.

94(4)    For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether 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.

94(5)    In this section:…

work means work:

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

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

In relation to an impairment, Schedule 1B of the Act provides:

…

4.        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. …

4.        In Secretary, Department of Social Security v Pusnjak [1999] FCA 994 Drummond J noted that the question of an applicant’s continuing inability to work is to be determined by reference to whether the impairment is sufficient to prevent the applicant engaging in any work for which he or she has the requisite skills and experience. It is then determined by reference to whether training is available, within a two-year period, to work that he or she cannot do now, but would be able to do after training, in light of physical or actual capacities. The Court observed at [27]:

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 a lack of motivation to work. Hence the “of itself” qualification to “impairment” in s 94(2).

DID MS LATCHFORD HAVE A CONTINUING INABILITY TO WORK?

5.        In an undated written statement (Exhibit A1) Ms Latchford said that she suffers from continuous back pain and is unable to sit for more than 30 minutes or stand for more than 15 minutes.  She stated that the back pain causes disturbed sleep, and she takes medication to help her sleep.  She stated that her osteoarthritis causes pain in her knees and hips, and she cannot bend her knees and back because of the pain.  Walking is painful.

6.        Ms Latchford told the Tribunal that she suffers from breathlessness after any exercise, and finds difficulty in performing basic household tasks.  She used to enjoy tenpin bowling but this is no longer possible because of the pain in her knees and back, and her breathlessness.  She said that she has sought treatment from an orthopaedic surgeon, a neurologist, and a physiotherapist for her back pain, but physiotherapy has been unsuccessful in reducing the pain.  She emphasised that she is unable to work because she cannot undertake a normal range of movement or sustain a range of positions during a working day or a working week.

7.        In oral evidence Ms Latchford said that she worked as a storeperson for about 14 years until conflict with her employer forced her to cease this employment in about 2001.  She explained that she then decided to take 12 months off, as her husband was in full-time employment.  She described her medical conditions as at February 2005, and said that she was taking prescribed medication for her various conditions, including Panadeine Forte several times each week to relieve the pain in her back, hips and knees.  She said that she was unable to walk long distances, and had to attempt housework in short periods because of back pain and breathlessness.  Ms Latchford noted that her husband and daughter helped with the housework.

8.        Ms Latchford stated that her ability to work for at least 30 hours per week as at February 2005 was restricted by her inability to sit or stand for extended periods.  She also emphasised that her low literacy level and limited job skills reduced her chances of re-training for full-time work in other fields.

9.        Under cross-examination Ms Latchford said that in February 2005 Dr C. Hrstic, her treating general practitioner, suggested she apply for a Health Care Card because of the high cost of her various medications, and Centrelink informed her of the possibility of seeking DSP.  Ms Latchford agreed that she has not sought work since February 2005.  She also agreed that in February 2005 she was driving to tenpin bowling each week, which involved playing three games (bowling a lightweight bowl 60 times) for about two hours.  She also drove occasionally to the local shopping centre.  She confirmed that she has been a smoker for many years, but said that in 2005 she reduced her smoking to about 10-12 cigarettes per day.  Ms Latchford agreed that in February 2005 she would have been able to work for a number of hours each day if she was able to stand, sit and move around at will, but doubted that 30 hours per week would have been possible, particularly if she was suffering pain on any given day. 

10.      In a treating doctor’s report dated 13 February 2005 (T5) Dr Hrstic, who has treated Ms Latchford since about 1998, stated that the claimed conditions were chronic bronchitis/chronic obstructive pulmonary disease and ischaemic heart disease/hypertension.  Under the heading additional information Dr Hrstic included vitamin B12 deficiency and back pain. 

11.      In oral evidence Dr Hrstic said that Ms Latchford’s incapacity to work is a result of her large amount of prescribed medication and an inability to stand or sit for lengthy periods because of her impairments, particularly her back complaint.  She said that at February 2005 the chronic bronchitis/chronic obstructive pulmonary disease had stabilised, although ageing and smoking had caused some deterioration and a shortness of breath.  She said that for similar reasons Ms Latchford would be unable to undertake re-training.  Under cross-examination Dr Hrstic said that her treating doctor’s report did not include hip and knee problems because at February 2005 back and chest pain was the major problem.  Dr Hrstic agreed that in 2005 she had encouraged Ms Latchford to undertake exercise such as tenpin bowling and walking, and agreed that she had not discussed with Ms Latchford the impact of the particular bending or twisting motions involved in tenpin bowling.  Dr Hrstic acknowledged that in 2005 Ms Latchford might have been able to work for a couple of hours per day if the duties allowed flexibility in standing and sitting.     

12.      In relation to the medical centre’s clinical notes concerning Ms Latchford (Exhibit A5) Dr Hrstic agreed that apart from a note made in July 2001 referring to lower back sore, entries from 1999 contain no reference to back pain until 12 August 2005, when the reason for the consultation is recorded as osteoarthritis.    

13.      In a referral dated 30 March 2006 (Exhibit A2) for assessment by a neurologist, Mr M. Khan, orthopaedic surgeon, noted Ms Latchford’s low back pain, respiratory problems and disturbed sleep.  In a report dated 18 May 2006 (Exhibit A3) Mr Khan referred to her conditions and stated at page 3:

In my opinion she was unable to perform the strenuous type of work requiring excessive bending, twisting, turning of the spine, lifting heavy weights and walking for long periods.

He expressed the view that her conditions mean that she has a continuing inability to work for at least 30 hours per week for the next two years.

14.      On 19 September 2006 Mr Khan provided a further report (Exhibit A4) in which he stated that Ms Latchford has fairly extensive disc degeneration in the lower back, causing back and leg pain.  He stated at page 1:

As this condition is associated with pain, even though she could physically cope with ticket sales, such as customer service duties, I do not think she would be able to cope with full time work in that situation.

From the physical aspects of the injury, she cannot perform any work [which] involves excessive bending, twisting, turning of the spine, walking for long distances, climbing up and down stairs or lifting weights.

15.      In oral evidence Mr Khan stated that with her medical conditions and chronic pain Ms Latchford was unable to work 30 hours per week as at February 2005, based on her situation when she was referred to him in February 2006.  He added that the impact of her conditions would make re-training difficult.  Under cross-examination Mr Khan agreed that his conclusion about Ms Latchford’s capacity for work was based largely on activities such as bending, twisting, turning and lifting that would be involved in strenuous work.  He also acknowledged that she would be able to work in some capacity if the duties allowed her to stand, sit and move around at will, and if her conditions were under control.

16.      Ms W. Bohn, Ms Latchford’s daughter, gave evidence that she was living with Ms Latchford as at February 2005, and at that time she helped Ms Latchford with the housework because of back, knee and hip pain and breathlessness.  She said that Ms Latchford was suffering pain for much of the time, and had difficulty dressing herself.  Under cross-examination Ms Bohn said that Ms Latchford’s pain at the date of the hearing was much the same as at February 2005.  She said that she still helps Ms Latchford with housework, even though she moved out of the family home in December 2005.

17.      In a report dated 5 April 2005 (T6) Dr P. Loewy, Health Services Australia, said that Ms Latchford told him that her angina and hypertension had improved with medication and had caused no significant problems over the previous six months.  He said she stated that she could perform household tasks including shopping and cooking, and avoided long periods of sitting and standing to ease her low back pain.  Dr Loewy concluded:

On the evidence available, light work with ability to sit or stand at will may be within her capacity.  As claimant has not worked for last 3 years, this would need to be trialled, probably with the assistance of a vocational rehabilitation provider who should liaise with her treating doctor.

18.      In oral evidence Dr Loewy stated that when writing his report he took into account the treating doctor’s report, observations of the patient during the medical examination, and a history given by the patient at the time.  He listed clerical duties, light process work, telephone enquiries, ticket sales etc. as possible types of employment for Ms Latchford.  He said that activities such as tenpin bowling would have caused stresses on her back, and her participation in this activity as at February 2005 supported his conclusion that she had a capacity for light work.  Under cross-examination Dr Loewy agreed that he assessed patients in 40-minute time periods, but said that, as an experienced practitioner, this was sufficient time to form a view of work capacity, as usually he had access to the treating doctor’s report and sometimes other documentation such as radiology reports.

19.      In a report dated 6 July 2005 (T11) Dr D. Cheung, Health Services Australia, noted recent x-rays and said that Ms Latchford’s back condition affected lifting and bending, and she had difficulty at home with heavy tasks involving squatting.  Dr Cheung concluded:

This client is assessed as being fit for full-time work.  The new information provided indicate[s] the nature of her back condition, but does not alter the functional aspects as outlined in Dr Loewy’s report in April 2005.  Her medical conditions reduce her endurance for manual handling, but she should be capable of light sedentary work in a seated position, such as ticket sales.  Vocational and functional assessment may be of benefit.

20.      In oral evidence Dr Cheung stated that his conclusion about Ms Latchford’s ability to work in a seated position was based on his observations during the medical examination that she showed no discomfort when sitting.  Under cross-examination Dr Cheung agreed that he did not discuss work capacity with Ms Latchford, and that her back condition did not appear to be a significant impediment to her capacity for work.  He acknowledged that he had a copy of Dr Loewy’s report at the time of the assessment, but maintained that he reached his conclusions independently.

21.      In a work capacity assessment report dated 17 July 2006 (Exhibit R3) Ms L. Natividad, rehabilitation consultant, reviewed all medical reports, conducted an interview and a range of movement assessments, and observed Ms Latchford.  She took into account the range of prescribed medication for the various conditions and the effect of the medication on Ms Latchford’s ability to function and work.  Ms Natividad found that Ms Latchford’s physical and endurance limitations were the result of pain and a lessened ability to undertake manual tasks.  She concluded that at the date of the original claim and within 13 weeks of the claim:

With mainstream retraining, the customer is considered able to sustain a return to full time work within occupations of light physical exertion, as this level of work is considered less likely to aggravate her medical conditions.

Ms Natividad suggested suitable types of work would include customer service officer, help desk officer or console operator. 

22.      In oral evidence Ms Natividad told the Tribunal that when assessing work capacity she took into account Ms Latchford’s description of her ability to undertake household tasks and activities such as tenpin bowling and driving a car.  Under cross-examination Ms Natividad stated that she disagreed with the assessment by Mr Khan in September 2006 about Ms Latchford’s ability to work.

23.      In relation to the back pain suffered by Ms Latchford, the Tribunal accepts the evidence from Dr Hrstic, supported by the clinical notes, that despite numerous attendances Ms Latchford did not complain of back pain until late 2005.  The Tribunal takes into account that Dr Hrstic’s initial report in February 2005 did not list back pain as a significant medical condition at the time, suggesting that the back pain was not troubling Ms Latchford as much as it is in 2007.  This is supported by the virtual absence of reference to back pain in the clinical notes until late 2005, and the observations of Dr Loewy and Dr Cheung.  It is consistent with Ms Latchford’s participation in tenpin bowling in February 2005, and casts considerable doubt on the credibility of Ms Bohn’s evidence.  The Tribunal also takes into account the concession by Ms Latchford and Mr Khan that in February 2005 she would have some work capacity if she was able to stand, sit and move around at will.  The Tribunal notes that the referral to Mr Khan occurred in late 2005/early 2006, significantly later than February 2005 or within 13 weeks after that date.

24. For these reasons, as at 15 February 2005 or within 13 weeks after that date the back condition was not a fully documented and diagnosed condition that had been investigated, treated and stabilised, and the Tribunal finds that an impairment rating cannot be assigned. Consequently this condition may not be taken into account in an assessment of Ms Latchford’s continuing inability to work under s 94(2) of the Act. Similarly conditions involving Ms Latchford’s hips and knees are not mentioned in the clinical notes until August 2005 and are also excluded from an impairment rating. The conditions of ischaemic heart disease/hypertension appear to have been brought under control by appropriate medication and would have had a minimal impact on an ability to work.

25.      In relation to the chronic bronchitis/chronic obstructive pulmonary disease suffered by Ms Latchford, there are limited references in the clinical notes.  The Tribunal places considerable weight on the comprehensive report by Ms Natividad, an experienced and qualified rehabilitation consultant.  Ms Natividad took into account Ms Latchford’s particular needs and limitations and concluded that the respiratory condition would not prevent her from undertaking work with appropriate restrictions.  The Tribunal also accepts the reports from Dr Loewy and Dr Cheung, both of whom are experienced medical practitioners in the area of work capacity and who assessed Ms Latchford in early 2005 as able to work full-time with appropriate vocational rehabilitation, based on their observations, examination of her and the history given to them at the date of the assessment.  Dr Hrstic’s evidence concentrated on the back condition, and in relation to the breathing problems did not indicate a significant effect on Ms Latchford’s ability to work.  Consequently the Tribunal finds that as at 15 February 2005 or within 13 weeks after that date Ms Latchford could work for 30 hours per week.   

26.      The Tribunal accepts Ms Natividad’s evidence and concludes that Ms Latchford would be able to attend appropriate educational or vocational training designed to retrain her and assist her return to the workforce.  For this reason, the Tribunal finds that the impairments suffered by her are not of themselves sufficient to prevent her from undertaking educational or vocational or on-the-job training during the next two years (s 94(2)(b)(i) of the Act); or that such training is unlikely (because of the impairments) to enable her to do any work within the next two years (s 94(2)(b)(ii) of the Act).

27. Consequently, the Tribunal finds that Ms Latchford has not demonstrated a continuing inability to work and does not satisfy s 94(2) of the Act. Therefore, she is unable to satisfy s 94(1)(c)(i). It follows that she cannot satisfy s 94(1). Consequently, at the relevant time, Ms Latchford did not qualify for DSP.

DECISION

28.      The Tribunal affirms the decision under review.

I certify that the twenty-eight [28] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)       Lydia Zozula

Associate

Dates of hearing:  28 and 29 March 2007, 4 June 2007

Date of decision:  22 June 2007
Counsel for the applicant:            Mr T. Best
Solicitor for the applicant:            Victoria Legal Aid
Counsel for the respondent:        Mr J. Lenczner
Solicitor for the respondent:        Australian Government Solicitor