Le and Department of Employment and Work Place Relations
[2006] AATA 803
•20 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 803
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1126
DIVISION ) Re QUANG THANH LE Applicant
And
DEPARTMENT OF EMPLOYMENT AND WORK PLACE RELATIONS
Respondent
DECISION
Tribunal Professor Ivan Shearer, Senior Member
Dr John Campbell, Member
Date 20 September 2006
Place Sydney
Decision The tribunal affirms the decision under review. ....................[Sgd]....................
Professor I A Shearer, Senior Member
CATCHWORDS
SOCIAL SECURITY – application for a Disability Support Pension – issue as to whether the applicant has a continuing inability to work – relevant assessment period – evaluation of the medical evidence and applicable law – the Tribunal affirms the decision under review.
Social Security Act 1991
Social Security (Administration) Act 1999
Secretary, Department of Social Security v. Pusnjak (1999) 164 ALR 572; 56 ALD 444
REASONS FOR DECISION
The decision under review
1. The applicant seeks review of the decision of the Social Security Appeals Tribunal (SSAT), dated 1 August 2005, affirming the decision of Centrelink to reject his application for a Disability Support Pension.
2. An appeal lies to this Tribunal from a decision of the SSAT by virtue of section 1283 of the Social Security Act 1991 (“the Act”).
The issue to be decided
3. The issue before the Tribunal is whether the applicant has a continuing inability to work within the meaning of section 94 of the Act.
Factual background
4. The applicant was born on 10 October 1958. He came to Australia from Vietnam in 1981. He was married, but divorced in December 1998. For some years he has lived alone (although until recently he had a male housemate).
5. He is a printer by trade and holds a certificate in offset printing. At the time he ceased work in 2002 he was employed by Cosmo Print at Annandale, a suburb of Sydney.
6. The applicant looked for work for about one year.
7. He applied for a Disability Support Pension on 12 March 2004 by reason of “sinus, back pain and poor concentration”.
8. On 21 May 2004 the applicant was examined by Ms Debra Rilliaud, a registered nurse at Health Services Australia Ltd, Western Sydney, in the presence of a Vietnamese interpreter. She subsequently prepared a Health Assessor’s Report.
9. Nurse Rilliaud’s report was reviewed by way of “file assessment” by Dr Doron Arad, Medical Adviser, of Health Services Australia, who wrote a Medical Assessment Report on 1 June 2004. Dr Arad concluded that the applicant had permanent conditions of chronic allergic rhinitis, back pain, and cataracts, temporary conditions of dyspepsia, hepatitis B and a fractured mandible. Dr Arad accorded an impairment rating of 15 points for chronic allergic rhinitis and nil points for the other conditions. Dr Arad concluded that the applicant was unfit for full time work pending a medical review in 12 months.
10. On 25 June 2004 Centrelink rejected the applicant’s claim for a Disability Support Pension. This letter to the applicant stated, in part:
“One of the rules for getting a Disability Support Pension is that the rating of your permanent medical impairment is 20 points or more as measured by the medical impairment tables in the Social Security Act 1991. Your impairment is below this rating and therefore you cannot be paid a pension.
“Your medical conditions have been assigned impairment ratings as follows: 0 points for back pain under Table 5.2, Nil points as your dyspepsia is considered temporary, Nil points as your hepatitis B is considered temporary, 15 points for chronic allergic rhinitis under Table 20, Nil points as your fractured right mandible is considered temporary, and 0 points for cataracts under Table 13. Your combined impairment rating is 15 points.”
11. The medical impairment tables referred to above are the tables contained in Schedule 1B to the Act. Table 20 relates to miscellaneous conditions, including ear/nose/throat conditions. The criteria for the rating of 15 assigned by Centrelink in respect of the applicant’s chronic allergic rhinitis are described in the table as follows:
“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.”
12. These criteria are to be compared with the criteria under the same table for a rating of 20 points (which would have qualified the applicant for a Disability Support Pension, subject to the other criterion of continuing inability to work):
“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.”
13. On 19 October 2004 Dr Arad conducted a file review of the assessment of the applicant, and concluded that, as there was no evidence that all the applicant’s conditions had stabilised, his inability to work remained temporary and that his progress should be reviewed.
14. This file review was prompted by the applicant’s request to Centrelink that it reconsider its decision to deny him a Disability Support Pension. Centrelink replied on 22 October 2004 affirming the earlier decision. The Centrelink Officer stated that:
“The recent further medical information you have provided has been reviewed by our medical adviser. There is no evidence that all your conditions have stabilised, as such, your inability to work remains temporary. This does not satisfy the criteria for the Disability Support Pension where your medical conditions must be diagnosed, treated and stabilised, and be unfit for full-time work for 2 years or more.”
15. On 15 December 2004 the applicant requested a review by an Authorised Review Officer (ARO) of the decision of 25 June 2004, as affirmed on 22 October 2004, rejecting his claim for a Disability Support Pension.
16. Before the ARO considered the requested review the applicant’s treating General Practitioner, Dr James Ly, FRACGP, furnished to Centrelink an Employment Assistance – Professional’s Report on 16 March 2005. The report form did not request any allocation of points. The four principal medical conditions diagnosed were:
(1) Chronic significant back pain;
(2) Chronic frequently relapsing haemorrhoids;
(3) Fracture of (R) mandible; and
(4) Chronic dyspepsia.
17. Dr Ly added:
Other conditions include:
(5) Bilateral cataracts – mildly impaired vision;
(6) Chronic rhinitis with post nasal dripping – frequently blocked nose, rhinorrhoea causing phlegmy blocked lower throat; frequent coughing;
(7) Kidney stones;
(8) Chronic hepatitis B;
(9) Insomnia – poor sleeping at night time, poor concentration in day time, poor learning skills.
18. On 20 May 2005 an ARO affirmed the decision. The ARO agreed with the medical assessment that the applicant had 15 points for chronic allergic rhinitis and nil points for the other permanent conditions. The ARO did not consider it necessary to decide whether the applicant had a continuing inability to work, since the applicant’s assessed impairment level was less than 20 points. In her letter to the applicant, the ARO concluded: “Therefore, as you do not have at least 20 points under the Impairment Table and potentially you may not have a continuing inability for work, you do not qualify for the Disability Support Pension at this time.”
19. On 17 June 2005 the applicant lodged an application for review of this decision with the SSAT.
20. On 1 August 2005 the SSAT affirmed the decision. Referring to the applicant’s condition of chronic allergic rhinitis, the SSAT stated:
“Mr Le gave evidence that he has a blocked nose and sometimes experiences bleeding and vomiting. The authorised review officer noted that the 15 points awarded by Health Services Australia was generous given Mr Le’s symptoms. The tribunal agrees that a 15 point impairment rating is not warranted because although Mr Le’s symptoms are generally mild and unpleasant, they would rarely prevent completion of an activity. The tribunal has concluded that this condition would have minimal impact on Mr Le’s ability to attend work and has therefore assigned an impairment rating of 10 points under Table 20….Therefore the tribunal determined that overall that Mr Le has a total impairment rating of 10 points. As such with a rating of less than twenty points he does not satisfy the provisions of section 94(1)(b) of the Social Security Act 1991 and does not qualify for a disability support pension. Accordingly it was not necessary for the tribunal to go on to consider the question of continuing inability to work under paragraph 94(1)(c) of the Act.”
21. On 31 August 2005 the applicant lodged an application for review of the SSAT decision with the Administrative Appeals Tribunal (AAT).
Medical evidence subsequent to the lodging of an appeal to the AAT.
22. On 16 January 2006 the applicant was examined, at the request of the Legal Aid Commission acting on behalf of the applicant, by Dr Philippa Harvey-Sutton, FAFOM (RACP), FAADEP, an occupational physician. A Vietnamese interpreter was present during the examination. Dr Harvey-Sutton accorded 15 points for chronic allergic rhinitis and 5 points for the applicant’s back condition. Dr Harvey-Sutton concluded that the applicant had a continuing inability to work primarily due to his “chronic explosive cough” caused by chronic allergic rhinitis.
23. On 24 March 2006 the applicant was examined by Dr Arthur Wong, FAFOM, FAFMM, FAADEP, an occupational physician, at the request of Health Services Australia. A Vietnamese interpreter was present. Dr Wong accorded 10 points for chronic allergic rhinitis and 20 points for the applicant’s back condition. In this, and in a supplementary report dated 20 April 2005, Dr Wong concluded that the applicant was not fit to engage in heavy manual work but had the capacity to engage in full-time suitable (light sedentary) employment (more than 30 hours a week). He is of the opinion that:
“Suitable employment would include working as a factory worker assembling small items or at a garment factory inspecting and packing light items. Whilst at work Mr Le should be allowed to alternate between sitting and standing whenever necessary and he should avoid frequent bending or twisting of his lower back….I would suggest that he avoids lifting weight in excess of 15 kg.”
24. On 28 April 2006 Dr Harvey-Sutton provided a supplementary report addressing Dr Wong’s assessment. Dr Harvey-Sutton agreed with Dr Wong’s assessment that the applicant had the capacity to engage in suitable (light sedentary) employment for more than 30 hours a week having regard only to his back condition. But she maintained that as a result of the nature and severity of the applicant’s chronic allergic rhinitis, he was unfit to work 30 or more hours a week. Dr Harvey-Sutton explained her conclusion in the following passage:
“The reason is that his episodic coughing to the point of vomiting disrupted his work place productivity when he was working at a printing company and would disrupt him working in a factory, including working as a factory worker assembling small items or at a garment factory inspecting and packaging light weigh items….I would note that at the clinical examination on 16 January 2006 the repetitive and explosive nature of his episodes of coughing was consistent with his reported disruption of his working capacity. In other words, if he was in a factory assembling small items, the action of placing his hands over his mouth or using a tissue to cover the mouth whilst coughing would interfere with his ability to do the manual tasks and disrupt the process line or pace of work. The disruption to his manual capacity, caused by his coughing, would also apply to other forms of light sedentary work….I appreciate that he has had his chronic allergic rhinitis for many years and he appears to have been able to cope until his condition became so severe that his work was disrupted by the nature of his condition and he was terminated. Although he may be able to attend for educational or on the job training for 30 hours or more a week, if there were no work performance issues or evaluation tasks, the educational or job training would not lead to gainful employment, for 30 hours per week or more. I would confirm my previous view, which was that he does satisfy the criteria that he cannot work for 20 hours or more per week.”
…
The applicant’s evidence at the hearing
25. The applicant gave evidence through a Vietnamese interpreter. He coughed frequently but moderately during his evidence.
26. After explaining the circumstances of his arrival in Australia as a refugee from Vietnam and his earlier work and training as a printer in Western Australia the applicant referred to the circumstances of his leaving his employment as an offset printer at Cosmo Print, Annandale Sydney. He stated that he left because of his back pain. He then stated, as an additional reason, that his boss had observed him coughing a lot, and bleeding, and that he went to the toilet quite often. The applicant told the tribunal “the boss told me to resign.”
27. At work the applicant would need to go to the toilet every one or two hours to clear his throat. He would also often vomit then. At the direction of his boss he would need to stop his machine, for safety reasons, every time he went to the toilet.
28. After leaving his employment the applicant sought medical treatment for his various conditions for a period of about one year. No improvement resulted. Then, at the direction of Centrelink, he engaged in an English course at TAFE for nearly a year.
29. The applicant stated that his back still causes him sporadic pain, if he tries to lift anything heavy or do something with his hands. He had suffered back pain for a period of some 15 years.
30. The applicant stated that he had suffered from rhinitis for the past 5 to 7 years. It appeared to be getting worse. It became worse after leaving his employment, and “is very bad now.”
31. The applicant was extensively cross-examined as to his medical and personal history.
32. The applicant’s evidence was not always entirely clear, even taking into account the need for interpretation.
33. The applicant stated that he was sacked by his boss because of his coughing, or at least asked to resign. At the same time, however, he thought that this might have been merely an excuse to lay off staff when his boss was intending to return overseas. However, it was later explained by his counsel that the latter reason applied to previous employment by a different employer.
34. There was uncertainty too about the applicant’s ability to care for himself. He told Dr Harvey-Sutton and Dr Wong that his housemate did all the household chores. However, before the Tribunal he stated that he could do everything for himself except mow the lawns.
35. In relation to the claim form for the Disability Support Pension (T-Documents, T3), which the applicant made out on 16 February 2004, the applicant could not now affirm that the boxes checked in that document correctly reflected his medical conditions at the time. He left the question relating to employment details for the past five years entirely blank. Asked whether he had understood the form and whether he had given careful answers, the applicant stated that:
“Well, frankly speaking, at the time it was so tense. …I didn’t know the importance of the form. When I filled it in I just try to answer the question, and whatever I understand the question and whatever I felt, I just put it down. Had I known about the importance of this document I would have read it much more carefully and I would have thought about my answers much more carefully and not just doing it for the sake of completing it and hoping that someone else could check it and correct it for me. …My understanding was that I would be asked to an interview and I would be able to verify the situation or answer the question when it was asked.”
36. The boxes checked were not specific to each of the conditions alleged to exist (“sinus, back pain, poor concentration”) but related to the degree of disability experienced from all conditions together. The possible responses were “no problem”, “sometimes”, “often”, and “all the time”. The applicant gave “all the time” responses to the questions regarding his ability to lift, carry and bend. He gave an “often” response to the questions relating to his ability to stand, concentrate, remember, sleep and breathe. He gave “sometimes” and “no problem” responses to the other questions, including “no problem” in relation to managing his personal affairs and caring for himself.
37. The applicant then said that he wished to retract the entire page of Document T3 on which the boxes had been checked.
38. The treating doctor’s report (Dr. James V.Q. Ly, FRACGP) accompanying the claim, dated 15 February 2004, named two major medical conditions. Condition 1 was given as fractured right mandible, Condition 2 as chronic mechanical back pain for more than 15 years. Under Part B – Additional Information – the doctor reported four other medical conditions in the following order:
1. chronic dyspepsia-gastritis;
2. bilateral cataract;
3. chronic allergic rhinitis; and
4. chronic acute hepatitis B.
39. As to the chronic allergic rhinitis, Dr Ly noted “blocked nose, rhinorrhoea, and itchy, phlegmy and blocked lower throat.” He further noted that in respect of this condition he had prescribed a nasal cream and an oral antihistamine. Coughing was not mentioned as a symptom.
Other evidence at the hearing
40. Mr Simon Howe, a former workmate of the applicant’s at Cosmo Print, gave evidence by telephone. Mr Kelly for the respondent objected to Mr Howe’s being called on the grounds of lack of relevance. However, the tribunal decided to allow the evidence on a provisional basis, subject to a later decision. The issue of the admissibility of the evidence was not later pursued by the respondent.
41. Mr Howe stated that he and the applicant worked at adjacent machines, some four metres apart. He observed the applicant coughing and clearing his throat frequently, approximately a couple of times an hour. Asked to describe his reaction to the applicant’s coughing he stated that “I didn’t find it appealing at all… I kept my distance.” He also stated that the applicant was “sort of slow and lethargic” at work.
Medical evidence at the hearing
42. Dr Phillipa Harvey-Sutton gave evidence by telephone. She confirmed her earlier written reports. In particular she confirmed her opinion that the applicant’s coughing was the major factor adversely affecting his employment prospects by reason of the severity of the coughing, and the need to absent himself frequently to go to the toilet. Although the coughing was not in itself contagious or dangerous to others, it might be perceived as such by fellow workers. It could become dangerous if the applicant contracted a viral infection, when his coughing would then have a contagious effect.
43. In response to Mr Kelly, Dr Harvey-Sutton stated that the fact that the applicant had attended two English language courses at TAFE did not prove that he was capable of employment in the same way as a vocational training course. It might be theoretically possible for the applicant to return to full-time work, but not probable from a practical point of view.
44. In response to the Tribunal, Dr Harvey-Sutton conceded that her opinion that the symptoms presented by the applicant on her examination of him in 2006 were similar to those present in 2004 was based on the findings of Dr Arad. When it was pointed out to her that Dr Arad’s report was based on a file review of a nurse’s report, and not on a personal examination, Dr Harvey-Sutton stated that she had been unaware of this and was, in principle, opposed to such a procedure. All she could go on now was her own finding in 2006 that the applicant merited an assessment of 15 points for his rhinitis condition, and 5 points for his back condition. The applicant might have become worse since 2004. Asked whether she was able to say whether the applicant would have been unfit for work in 2004, Dr Harvey-Sutton stated: “It’s two years ago. I’d need to see further information. I would clearly have to say I don’t know.”
The applicable law
Section 94 of the Act provides:
…
94 Qualification for disability support pension
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.
…
…
…
The issue before the tribunal
45. The sole issue before the Tribunal is whether the applicant had a continuing inability to work, within the meaning of section 94 of the Act, during the relevant assessment period. Reliance was placed by the applicant at the hearing on coughing as the principal reason for his alleged continuing inability to work.
46. In accordance with Schedule 2, Part 2, Section 4 of the Social Security (Administration) Act 1999, the applicant must have been qualified for the Disability Support Pension at the date of lodgement of the claim, or have become qualified within 13 weeks after that date. The relevant assessment period in the applicant’s case is therefore 12 March 2004 to 10 June 2004. It does not assist the applicant in these proceedings that he may have become qualified at some date after 10 June 2004. In particular it did not assist the applicant that, at the hearing, it was agreed between the parties that the applicant presently merited a permanent impairment rating of 20 points, consisting of 15 points for chronic allergic rhinitis and 5 points for the back condition.
47. There was no dispute between the parties as to the interpretation of the Act, as distinct from its application to the applicant in his particular circumstances. It was accepted that the leading authority on the interpretation of section 94(2) of the Act is Secretary, Department of Social Security v. Pusnjak (1999) 164 ALR 572; 56 ALD 444 (Drummond J).
Applying the law to the evidence
48. The clinical history of cough as a symptom, let alone a significant symptom, of the applicant’s impairment through chronic allergic rhinitis was first mentioned by Dr. Ly, the treating general practitioner, in a medical report dated 16 March 2005 (T42). As noted in para. 38, Dr Ly had earlier diagnosed chronic allergic rhinitis as the fifth of six conditions suffered by the applicant, but without mention of coughing..
49. The Tribunal notes the absence of any mention of a clinical history of cough as a symptom in the following material before it:
·Report of Dr. McGill, consultant rheumatologist, dated 1 June 1998 (T5);
·Referral by Dr Ly to Dr. Farrell, consultant ear nose and throat surgeon, dated 19 September 2002 (T7);
·Report of Dr. Vu, treating doctor, dated 14 January 2003 (T9);
·Newstart Allowance Referral Report by Dr. S. Kotulski, Medical Adviser to Health Services Australia, dated 27 February 2003 (T12);
·Medical certificate by Dr. Ly, dated 9 April 2003 (T13);
·Medical certificate by Dr. Ma, general practitioner, dated 25 September 2003 (T17);
·Report by Dr. Ly, dated 13 January 2004 (T22);
·Report by Dr. Ly, dated 15 February 2004 (T26);
·Assessment Report by Ms. Rilliaud, nurse, dated 21 May 2004 (T29);
·Assessment Report by Dr. Arad, Medical Adviser to Health Services Australia, dated 1 June 2004 (T30);
·The applicant’s letter to the ARO dated 20 April 2005 (T37); and
·Dr. Wong’s report dated 12 April 2006 (T44).
50. The Tribunal notes the various conditions suffered by Mr Le of chronic allergic rhinitis, mechanical low back pain, chronic dyspepsia/gastritis, hepatitis B, haemorrhoids, kidney stones, bilateral cataracts and fractured right mandible. The Tribunal considers that the significant impairments to be considered in determining the issue between the parties as to whether or not Mr Le has a continuing inability to work are his chronic allergic rhinitis and his mechanical low back pain.
51. The Tribunal further notes the agreement between the parties that Mr Le satisfies section 94(1)(a) and (b) of the Act in that he has at least one attested physical impairment and that his impairment is of 20 points or more under the Impairment Tables. The issue remaining is whether he also satisfies subsection (c)(i) of the Act, namely a continuing inability to work.
52. The Tribunal notes that the parties agree that Mr Le’s chronic mechanical low back pain, while causing some physical limitations to workplace activity, does not prevent him from working 30 or more hours a week and/or undertaking educational, vocational or on-the-job training within the next two years. The two occupational physicians, Dr Wong and Dr Harvey-Sutton, were of the same opinion, provided that Mr Le’s employment was limited to light sedentary to semi-sedentary work.
53. The Tribunal accepts the agreement of the parties as noted in para. 51 and the opinions of the two occupational physicians in finding that Mr Le’s chronic mechanical low back pain does not of itself prevent him from working for 30 or more hours a week in light sedentary or semi-sedentary work and/or from undertaking vocational, educational, or on-the-job training within the next two years.
54. In addressing Mr Le’s chronic allergic rhinitis impairment, the Tribunal observes from an analysis of all the documented clinical material before it, that chronic cough, productive or otherwise, was not recorded as a symptom, let alone as a significant symptom, of this impairment before or during the relevant assessment period. The first such report was that of Dr. Ly on 16 March 2005. While acknowledging what Mr Le stated in evidence as to the nature of his cough symptoms prior to cessation of work in 2002, with such symptoms increasing since then, the evidence of Mr Howe, a former workmate, was to the effect that Mr Le’s cough, although “unappealing” and causing him to keep his distance, occurred only a couple of times an hour.
55. In the absence of medical evidence, and indeed of any evidence, detailing the severity of Mr Le’s cough symptoms at the time of the lodgement of his claim (12 March 2004) and during the period of 13 weeks thereafter (constituting the applicable assessment period), the Tribunal concludes that it is unable to find with any degree of satisfaction what effect, if any, Mr Le’s chronic cough had on his capacity or ability to work. In these circumstances the Tribunal must conclude that Mr Le’s chronic allergic rhinitis was an impairment that did not of itself prevent him from working for 30 hours a week in light sedentary or semi-sedentary work and/or undertake educational or vocational training, or on-the-job training, for 30 hours or more within the two years immediately following the assessment period.
56. In so finding, the Tribunal acknowledges the difficulty Dr Harvey-Sutton experienced in being asked to give a retrospective opinion in the absence of adequate clinical details as to the cough symptoms during the assessment period. Her difficulty deepened when she became aware only at the hearing that she had relied on a medical assessment (Dr. Arad, 1 June 2004) which she had assumed to have been based on a physical examination by that doctor, whereas in fact that assessment was a “file review” of a nurse’s report. While her evidence was persuasive as to Mr Le’s present medical condition, it cannot be taken by the Tribunal to be persuasive as to Mr Le’s medical condition at the relevant time.
DECISION
57. The Tribunal affirms the decision under review.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Professor I. A. Shearer and Member Dr J. Campbell.
Signed: (sgd) .....................................................................................
AssociateDate/s of Hearing 4 July 2006 and 5 July 2006
Date of Decision 20 September 2006
Counsel for the Applicant Craig Colbourne
Solicitor for the Applicant Yolanda D’Aquino
Counsel for the Respondent Brendan Kelly
Solicitor for the Respondent Brooke Griffin
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