LINDA WARSCHAUER and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2010] AATA 424
•9 June 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 424
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/397
GENERAL ADMINISTRATIVE DIVISION ) Re LINDA WARSCHAUER Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date9 June 2010
PlaceMelbourne
Decision The decision of the Social Security Appeals Tribunal made on 8 January 2009 is affirmed. (Sgd) John Handley
Senior Member
SOCIAL SECURITY – Application for disability support pension – applicant unrepresented – multiple illnesses and injuries claimed as causing an impairment of 20 points – whether qualified at date of claim on 4 June 2008 or within 13 weeks subsequently – qualification for disability support pension by a claim in 2009 irrelevant – absence of medical evidence in support – decision affirmed
REASONS FOR DECISION
9 June 2010 Mr John Handley, Senior Member 1. The applicant has applied to review a decision made by the Social Security Appeals Tribunal (the SSAT) on 8 January 2009. The SSAT then decided to affirm a decision previously made by an Authorised Review Officer (ARO) of Centrelink to reject an application that she had made for disability support pension (DSP).
2. Two of the illnesses suffered by the applicant which she asserted contributed to her entitlement to DSP were chemical sensitivity and chronic fatigue syndrome. She notified the Tribunal that the chemical sensitivity prevented her attending the Tribunal personally. She also advised that her chronic fatigue syndrome caused lethargy each morning. Accordingly she requested that she be notified by telephone prior to her matter being listed. This would ensure, she said, that she was awake, alert and able to adequately participate.
3. This application was listed for a Telephone Directions Hearing on 14 January 2010 at 9.15am. The applicant was contacted in advance by telephone. She was ready to proceed by telephone when the Directions Hearing was convened. The matter was then listed to hear an application to adjourn the hearing which was listed on 28 January 2010 and to have Orders made for confidentiality or restrictions in publication of her name pursuant to s 35 of the Administrative Appeals Tribunal Act 1975. Both applications were heard and refused.
4. On the day of hearing the applicant was contacted by telephone on a number of occasions before 10.00am (the time that the matter was listed to commence). The first call was made at 9.00am. On each occasion the call was not answered but was directed to a voicemail message identifying the subscriber as the Glen Eira Podiatry Clinic (the applicant is qualified as a podiatrist and is believed either to be employed by or self employed at that clinic). A memorandum, completed by a Tribunal officer, recording the attempts made to contact the applicant before 10.00am was completed on 28 January and remains on the Tribunal file.
5. The hearing at 10.06am. Miss Bramley appeared on behalf of the respondent. Attempts to contact the applicant by telephone from the tribunal hearing room (transcript p2) were unsuccessful and the call was again directed to the Glen Eira Podiatry Clinic. Miss Bramley submitted that the hearing should proceed in the applicant's absence.
6. Despite having a power under s 42A(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) to dismiss the application by reason of her failure to appear, I decided that the matter should proceed and be determined on the basis of the submissions of Miss Bramley and the documents which had been lodged by her and by the applicant. I was satisfied that the applicant was aware of the date of hearing having regard to the listing notice which had been forwarded to her on 3 December 2009, discussions with her and Miss Bramley at the telephone directions hearing on 14 January 2010 and a memorandum prepared by Mr Holland, a registry officer on 27 January 2010, who recorded that he had spoken with the applicant on that date (the day prior to the hearing) and he confirmed that the application was listed to proceed on the following day.
7. The hearing commenced and it was transcribed.
8. At approximately 25 minutes past 10 – being approximately 20 minutes after the hearing commenced – a telephone call was received in the tribunal hearing room from another registry officer advising that the applicant had rung the registry telephone number enquiring why she had not been contacted prior to 10.00am. Arrangements were then made to immediately contact the applicant by telephone – on the telephone number which had been rung previously that morning. The applicant answered.
9. The discussion which followed with her need not be reproduced here but can readily be observed from the transcript commencing at page 6. I decided after much discussion with the applicant to reject her application to recommence the hearing or adjourn it to another date. I decided to forward to her a copy of the transcript which would have recorded the entirety of the submissions made by Miss Bramley and invite the applicant to deliver, written submissions both in respect of her own application and in response to the submissions of Miss Bramley. The transcript of 28 January was forwarded to the applicant by letter on 4 February 2010.
10. These reasons have been produced having regard to the submissions of Miss Bramley, the submissions subsequently lodged by the applicant, the documents that were lodged by the respondent pursuant to s 37 of the AAT Act on 2 March 2009 and a supplementary bundle of similar documents which were also lodged and exchanged with the applicant. The respondent also lodged a Statement of Facts and Contentions.
11. The applicant lodged a number of documents in the nature of a Statement of Facts and Contentions and a summary of her medical history. She also lodged copies of medical certificates completed by Dr Colin Little and a report from him of 27 January 2010, and a certificate of the Malvern Family and Women's Clinic of 5 November 2009. Dr Jones, her treating general practitioner, also completed a barely legible handwritten report appended to a letter of the applicant of 20 November 2009 which was received by facsimile transmission.
12. The documents lodged by the respondent (refer above) include extensive medical reports and other medical type materials which will be referred to in the summary below.
the legislation
13. Qualification for DSP is to be found at s 94 of the Social Security Act 1991 (the Act). The substantial qualifying elements are to be found at ss (1)(a) and (b) namely that the person applying for the pension has a physical, intellectual or psychiatric impairment and the impairment is of 20 points or more under the Impairment Tables. Other qualifying provisions not relevant to this review (because they are satisfied by the applicant) are of the person making application for DSP being 16 years of age or more and being an Australian resident. The remaining issue of qualification is at s 94(1)(c) of the Act and it compels that the person also has a continuing inability to work. For reasons which will follow, that qualifying criteria will not be addressed because I am satisfied that the applicant does not have an impairment of 20 points or more under the Impairment Tables.
14. It is important also to record that qualification is to be determined at the date of claim or within 13 weeks of that date having regard to s 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act). In the present application, the claim for DSP was made on 4 June 2008. A period of 13 weeks expired on 3 September 2008. Accordingly, qualification is to be determined only within the period 4 June 2008 to 3 September 2008. It is worthy also to note that the applicant, by a subsequent claim, has qualified for DSP from 4 August 2009 by reason of a claim made on 1 May 2009 (refer supplementary T‑document 15).
15. The Impairment Tables referred to in s 94 are found at Schedule 1B of the Act.
16. Paragraph 4 of the Introductory Chapter provides that for an impairment rating to be assigned, a condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilized.
17. Although s 94 of the Act does not require that the impairment of 20 points must be permanent, paragraph 5 of the Introduction to the Tables requires a finding that the condition
… must be considered to be permanent. Once a condition has been diagnosed, treated and stabilized, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilized if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
18. Paragraph 6 of the Introduction to the Tables is concerned with a determination of whether a condition is fully diagnosed, treated and stabilized and compels consideration of the nature of treatment, whether treatment is continuing and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.
disabilities, illnesses or injuries claimed by the applicant
19. In her claim for DSP lodged with Centrelink on 4 June 2008 the applicant was required to record in a Centrelink claim form the disabilities, illnesses or injuries which would be the basis for the application for DSP.
20. The applicant recorded as follows (T5, p19):
L/R SHOULDER INJURIES/FROZEN SHOULDERS/OA.
MCS – (MULTIPLE CHEMICAL SENSITIVITY DISABILITY)
FOOD ALLERGIES/HAYFEVER/HEREDITY
ENT PROBLEMS/SEVERE HEADACHES/RASHES
EYE PROBLEMS/SENSITIVE TO SUNLIGHT/CYSTS
DENTAL PROBLEMS
DEPRESSION/ANXIETY/CONFUSION/DELIRIUM
FATIGUE/EXHAUSTION
21. For reasons which will hopefully become apparent later the focus of the medical reports and other certification lodged prior to the commencement of the hearing concern the condition of chemical sensitivity and anxiety.
22. I can find nothing from any of the medical or like medical material lodged with respect to the condition of dental problems or shoulder injuries.
23. In a report at T21 (p61) Dr Cherny of the Caulfield Eye Clinic and Laser Centre wrote a report on 29 March 2006. He recorded that treatment of eyelid cysts apparently suffered by the applicant had resolved with some asymmetry in the position of the eyelids. He found no evidence of acute chalazia however the applicant did have symptomatic presbyopia for which her glasses had been adjusted. The applicant was advised to use ocular lubricants as needed. It was also noted that the applicant had slight photophobia which affected her when driving. I can find nothing from any of the remaining medical data with respect to the claimed conditions of eye problems/sensitive to sunlight/cysts. I note this report was completed more than two years prior to the claim for DSP being made.
24. In a report of 13 December 2007, Dr Kotler, a clinical psychologist (T25, p65), recorded that she had attended the applicant under a mental health plan on a number of occasions with respect to symptoms of depression and anxiety. Dr Kotler recorded that her impression of the applicant was of other underlying psychological issues however she specifically recorded that she had not undertaken a formal assessment. She noted that the applicant had been involved in long term proceedings in the Family Court which (the applicant) found very stressful. Dr Kotler recorded that she remained available to the applicant if needed and did not consider that medication was appropriate.
25. The applicant was referred by her general practitioner to Dr Siemensma, a consultant allergist. In reports of 12 September 2007 and 21 September 2007 (T23 and T24, pp63 and 64). He recorded that the applicant's nasal mucosa was inflamed but without abnormality and her throat was normal. Skin prick testing for inhalants, pollens, moulds and foods was negative. He found that the applicant did not suffer from
.. an 1gE mediated allergic disorder. She has environmental hypersensitivity which means that she has lots of triggers including environmental triggers such as changes in the air temperature, changes in the humidity, air pollution levels, irritants in the air etc, as well as food additives and chemical triggers which cause an inflammatory response. …
He suggested to the general practitioner that the applicant be referred to Dr Colin Little.
26. Dr Fraser of the Malvern Family and Women's Clinic wrote a certificate which is undated but which records that the applicant presented to her on 5 November 2009 with an acute respiratory illness on a background of multiple chemical sensitivities and chronic fatigue syndrome.
27. Dr Jones is the applicant's treating general practitioner. In a report of 6 December 2007 (T7, p33) he reported that between 2 and 8 June 2007 a chemical lubricant (WD40) was used on some machinery adjacent to a laundry which was occupied by the applicant on 27 June. She reported to Dr Jones of feeling unwell with pain, inflammation and tightness in the throat, breathing problems, nausea, dizziness, chest pains, stomach pains, headache and faintness. The applicant was apparently admitted to Epworth Hospital where investigations were conducted of worsening symptoms however blood tests and other examinations failed to permit a diagnosis being made. Dr Jones also reported that the applicant used the laundry between 8 and 27 June for considerably shorter periods and he obtained a history of coughing episodes, sore throat, headaches and chest pains associated with these periods. He concluded that the applicant had not previously reported these symptoms and believes that they are severely affecting her quality of day to day life.
28. The purpose of the report of 6 December 2007 is not known. It is not addressed and the claim for DSP was not made until 4 June of the following year. Dr Jones appended to his report a copy of a report from the Epworth Hospital dated 27 June which records that the applicant was admitted on 26 June and the diagnosis recorded is non specifically unwell ?? viral normal ECG, bloods, examination. Reassured, home, review as required.
29. In a questionnaire dated 6 June 2008, apparently in support of the claim for DSP which has given rise to these proceedings, Dr Jones recorded (T6) that the applicant suffered long term malaise, nausea, tiredness, depression, anxiety, due to severe stress at home. Dispute with ex husband over child care. He recorded that the diagnosis was confirmed. He also recorded that the condition described was the condition with most impact. He recorded that the impact of the condition is likely to persist for between 3/24 months and within the next two years it was expected to somewhat improve. He also recorded that the applicant suffered possible multiple allergies which were being investigated and he expected that there would be significant improvement.
30. In another questionnaire completed by Dr Jones on 30 April 2009 (ST6) apparently in support of a later DSP claim which was apparently accepted, he recorded a diagnosis of chemical allergy sensitivity. This includes perfumes, kitchen odours, urban pollution and chronic fatigue. He thought the condition was expected to persist for more than 24 months and was also expected to deteriorate within the next two years. He also recorded that the applicant suffered anxiety, depression, anger, limited endurance and needed support from her family. He thought that condition would be expected to persist for between 3/24 months and the affect upon the applicant's ability to function was expected to remain unchanged. He also recorded that the applicant suffered from hearing problems in her left ear and he expected significant improvement.
31. In a job capacity assessment report found at supplementary T‑documents 3 at page 7, the assessing officer has referred to a certificate of Dr Jones dated 15 January 2009. It is recorded that the GP has decided that the applicant is likely to show considerable improvement within the next 1/2 months and this condition is deemed to be temporary. I cannot find any certificate of Dr Jones of 15 January 2009 and the expressed opinion of improvement within 1/2 months of a condition which is deemed to be temporary is inconsistent with the questionnaires that he completed in 2008 and 2009. Alternatively there were signs of improvement. This need not be pursued because it is outside the 13 week period which expired on 3 September 2008 (refer para 14 earlier).
32. As recorded earlier the applicant was referred to Dr Colin Little at the recommendation of Dr Siemensma. Dr Little has provided a number of medical certificates which are found throughout the T‑documents. The first certificate is dated 19 September 2008 and he records that he first saw the applicant on 9 April 2008. He diagnosed the applicant as suffering from chemical sensitivity and rhinitis/sinusitis. He was of the opinion, on 19 September, that both conditions were permanent, they were both likely to persist and the onset of each condition was June 2007.
33. The certificate of Dr Little of 19 September 2008 (refer above) was completed outside the 13 week qualification period. Even if I were to find that the applicant then had a condition which was permanent and which attracted an impairment rating of 20 points it would not be of assistance, especially in the absence of any report or other material from Dr Little pointing to qualification before 3 September. His report of 20 May 2008 (T26, p66) does not assist the applicant. It was written to the treating general practitioner two weeks before the DSP claim was made. The last paragraph points to conditions then being assessed and evaluated. The conditions then could not, on the basis of that report, be regarded as permanent.
34. The next certificate of Dr Little is dated 20 February 2009 and it is in almost identical terms as the previous certificate save that it also includes a diagnosis of hearing impairment. He said that impairment was the exacerbation of an existing condition which had its onset in January 2009 however he was uncertain whether it was likely to persist.
35. The next certificate completed by Dr Little is dated 1 May 2009 (ST7) and it is virtually identical to the certificate of 20 February 2009 save that the diagnosis of chemical sensitivity is now recorded as chemical sensitivity with chronic fatigue syndrome.
36. In each of the three certificates referred to above, in the part of the form under the sub-heading Treatment – please describe the patient's treatment regime, include past, current and planned treatment, Dr Little has recorded avoidance of chemicals to which she is sensitive.
37. In a questionnaire completed by Dr Little on 25 June 2009 apparently in support of the DSP application made in that year (supplementary T‑document 12), Dr Little recorded that the diagnosis of chronic fatigue syndrome associated with chemical sensitivity was diagnosed on 9 April 2008. That was the date of his first attendance upon the applicant. He recorded the onset of that condition as at June 2007. He has again recorded that the treatment of the applicant has been avoidance of chemicals to which she is sensitive and specifically recorded under the sub‑heading of past treatment the word provera. Future/Planned Treatment is recorded as being continuation of present treatment. He recorded that the condition of chronic fatigue syndrome with chemical sensitivity is expected to persist for more than 24 months and he recorded that within the next two years the effect of the condition is expected to remain unchanged and deteriorate.
38. In another part of the report he recorded that the condition of rhinitis/sinusitis had been treated by antibiotics and significant improvement was not expected. He also recorded that the applicant suffered hearing impairment which should be treated by avoidance of Erythromycin and significant improvement was not expected.
39. At part 8 of the form he reported that the applicant did not have a temporary (less than 24 months) reduction in ability to function because of the medical condition.
40. On 27 January 2010 being the day before the hearing of this application, Dr Little provided a report which is reproduced entirely in the following terms:
This woman was seen by me several times, initially on the 9th April 2008 and most recently on the 14th May 2009. She presented with numerous symptoms which included fatigue, headache, musculoskeletal pain, dizziness, poor concentration, cough, shortness of breath and sore throat. These symptoms were thought to be associated with adverse reactions to low level chemical exposures, levels encountered in every day life i.e. consistent with chemical sensitivity. Other problems were rhinitis and sinusitis. A further problem was hearing impairment, suspected to be associated with treatment with Erythromycin. Please contact me if further information is required or updated assessment.
41. The applicant lodged written submission on 18 March as she was invited following the conclusion of the hearing on 28 January. Despite the history of the application, the documents she received from Centrelink, the Reasons for Decision of the SSAT and discussions at Directions Hearings on 16 November 2009 and 14 January 2010, there is much to indicate that the applicant has not understood that this review is:
(i)Confined to whether there is qualification for DSP in the 13 week period subsequent to 4 June 2008; and
(ii)Whether the conditions were permanent; and
(iii)Whether there was an impairment of 20 points or more.
42. The submissions of the applicant mainly refer to the contents of reports previously lodged, none of which refer to any impairment which was permanent in the qualification period.
43. I consider that the applicant has had more than an adequate opportunity to address these issues. She is aware for example of qualification by impairment of 20 points or more (refer submissions at pages 17 and 18). However, she asserts that she has an impairment greater than 20 points but there is no medical evidence in support.
44. Her subsequent successful claim for DSP in 2009 – by acceptance of an impairment of 20 points for a respiratory disorder (Supplementary T‑documents 13 at p59) has no relevance to this review. Respiratory disorder was not one of the injuries or illnesses claimed and which gave rise to this review.
45. Unrepresented applicants are often disadvantaged because of unfamiliarity with relevant legislation and having to be confronted with Tribunal practices. On a number of occasions the nature of medical evidence that would be in the applicant's interests has been discussed with her and she has been encouraged to obtain it or at least discuss relevant issues with her doctors. It follows that every opportunity has also been given to the applicant to obtain and provide documented evidence in support of her case from appropriately qualified persons. It was not provided.
46. I cannot find permanency or impairment of 20 points or more on the evidence of both parties. Those are issues within the qualifications of the doctors. If the evidence was forthcoming I would of course have considered it. But it is absent.
47. Having made this finding it is not then necessary to determine whether the applicant has a continuing inability to work.
48. In all of the circumstances I have no alternative but to decide that the decision under review should be affirmed.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior MemberSigned: Grace Carney, Members Support Team
Date of Hearing 28 January 2010
Date of last submission 18 March 2010
Date of Decision 9 June 2010
Solicitor for the Applicant Self Represented
Advocate for the Respondent Miss A Bramley, Centrelink
0
0
0