Lo and Secretary, Department of Employment and Workplace Relations
[2006] AATA 215
•9 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 215
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/342
GENERAL ADMINISTRATIVE DIVISION ) Re MEI CHING LO Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Dr EK Christie, Member Date9 March 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review. This means Ms Lo’s application for review is unsuccessful. Ms Lo was not entitled to the Disability Support Pension at the time her claim was lodged on 1 April 2004.
..........[Sgd].........
Dr EK Christie
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension - visual disorder - mitral valve disorder -assessment of impairment – inability to work, residency qualification and medical conditions
Social Security Act 1991 ss 94, 95
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316
Re Pirie and Secretary, Department of Social Security (1996) AAT 11505REASONS FOR DECISION
9 March 2006 Dr EK Christie, Member 1. This is an application by Mei Ching Lo for a review of a decision of the Social Security Appeals Tribunal made on 25 May 2005 which affirmed that Ms Lo was not entitled to disability support pension (“DSP”) at the time her claim was lodged on 1 April 2004.
2. In reaching its decision and based on the evidence before it, the Social Security Appeals Tribunal made the following Findings of Fact [T2, Folio 7]:
“(i) Ms Mei Ching Lo claimed disability support pension on 1 April 2004;
(ii) Ms Mei Ching Lo is blind in her right eye and has recurrent uveitis;
(iii)Ms Mei Ching Lo has a visual acuity of 6/6 left eye and 10 degrees loss of visual filed;
(iv)Ms Mei Ching Lo has mitral valve regurgitation, which had not been fully investigated as at 1 April 2004 or within 13 weeks of that date.”
3. During the hearing the respondent acknowledged that Ms Lo is permanently blind in her right eye.
4. At the hearing, the Applicant represented herself. Ms J Forsyth, a Departmental Advocate, represented the respondent.
5. At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the “T” Documents and the various documents lodged by the parties.
Facts
6. Ms Lo was born in Hong Kong on 26 February 1961 and lived there from this time until 28 July 1997. She was granted permanent Australian residency on 1 February 1997.
7. Ms Lo has been a patient of her Treating Doctor, Dr P Ledwoch, since September 2000. Dr Ledwoch prepared a Treating Doctor’s report for Centrelink in relation to Ms Lo’s claim for disability support pension lodged on 1 April 2004 (T6, Folios 66-73). Dr Ledwoch diagnosed the following two medical conditions:
· Condition 1: “Recurrent uveitis of right eye”
· Under Part B of his Report (T6 Folio 71) and in response to a question, “Does the patient have any other medical conditions which are generally well managed and cause minimal or limited impact on ability to function”, he wrote: “Mitral valve regurgitation”.
Statutory Requirements and Relevant Case Law
8. The relevant legislation is the Social Security Act 1991 (“the Act”).
9. Section 94 of the Act sets out the requirements for eligibility for disability support pension as well as the question of “continuing inability to work”.
“Qualification for disability support pension—continuing inability to work
94.(1) [Qualification – continuing inability to work] 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;
…
(e) The person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c) [a continuing inability to work]; or…”
10. In Miss Lo’s case, sections 94(1)(b), 94(1)(c) and 94(1)(e)(i) are in dispute.
11. Section 95(1) of the Social Security Act 1991 has an equivalent provision to s 94(1)(e). Section 15 deals with “Qualification for Disability Support Pension – Permanent Blindness”.
12. Section 94(2) provides a meaning for “continuing inability to work” under the Social Security Act:
“94.(2)[Meaning of ‘continuing inability to work] 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.
where ‘work’ is defined [in s. 94(5) ]to mean work:
(a)that is for at least 30 hours per week at award wages or above; and
(c)that exists in Australia, even if not within the person’s locally accessible labour market.”
Issues Before The Tribunal
13. Based on a review of the above statutory requirements that must be satisfied for Ms Lo to be eligible for disability support pension, there were a number of issues for the Tribunal to decide:
(a)whether Ms Lo had an impairment rating of 20 points or more under the Tables [s 94(1)(b)]; and if this was the case;
(b)whether Ms Lo had a continuing inability to work, [s 94(1)(c)].
14. In addition, a further issue for the Tribunal to decide under s 94(i)(e)(i) of the Act, given that Ms Lo’s permanent Australian residency commenced in 1997, was whether Ms Lo was an Australian citizen at the time her continuing inability to work commenced because of the two medical conditions diagnosed by Dr Ledwoch. Dr Ledwoch’s report (T6) was completed on 30 March 2004.
The Tribunal’s Decision-Making Powers
15. In Ms Lo’s case, there is only one decision possible – whether Ms Lo’s is entitled to the DSP at the time she applied on 1 April 2004. The question for the determination of the Tribunal is whether the decision under review is the correct one.
[See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68]
16. Administrative decision-makers are generally required to address the evidence before them and not confine themselves to evidence before a prior decision-maker whose decision is being reviewed unless the relevant legislation requires a decision to be based upon the circumstances at a particular point of time.
[See Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316 at 324-326]
17. However, the evaluation for entitlement to DSP is based on the facts at a particular point of time. Eligibility for the DSP is at the time of claim or within a period of three months thereafter, as provided by s100(3) of the Act (Now Division 3 Part 3, Schedule 2 of the Social Security (Administration) Act 1999).This principle has been referred to in a number of cases. For example, in Re Pirie and Secretary, Department of Social Security (1996) AAT 11505.
18. Consequently, in Ms Lo’s application for review, the only period the Tribunal can consider evidence in relation to the nature of her impairment(s) and entitlement for disability support pension, is prescribed by statute as the 3 month period commencing 1 April 2004, the date her claim for DSP was lodged.
Examination of the Evidence: Whether Ms Lo had an impairment rating of 20 points or more for the period 1 April 2004 - August 2004
19. The Tribunal has considered all of the evidence and information before the Tribunal in addressing this question.
20. Ms Lo’s treating doctor (Dr P Ledwoch) (T6, Folio 17) diagnosed Ms Lo as having “recurrent uveitis” as at 30 March 2004. He stated that the onset of this eye condition was when Ms Lo was six years old in 1967.
21. Dr Ledwoch also diagnosed Ms Lo as having the condition of mitral valve regurgitation – but that “it was generally well managed and caused limited or minimal impact on her ability to function”.
22. In a later report (T48), Dr Ledwoch had diagnosed a change in the eye condition of Ms Lo. At this time (16 March 2005), he diagnosed “right eye uveitis, right eye glaucoma, blindness right eye”. He stated that the onset of this condition was 6 March 1998.
23. Dr Woo treated Ms Lo in Hong Kong. Whilst Ms Lo was still a resident of Hong Kong and at a time before Ms Lo had eye surgery in 1998 in Australia, Dr Woo noted that Ms Lo “gave a history of poor sight vision and right divergent squint after a fall at age of four to five”. (T26, 13 December 1996).
24. Dr Ambler (T29, 29 May 2000), Southport Vision Centre, stated that “I suspect Ms Lo has suffered a penetrating injury to the right eye”.
25. Dr Montgomery, an ophthalmologist (T29, 11 August 2003) states in a letter to Dr Welch, Vision Centre Southport, that “her right eye suffered trauma at six years”. In a complete record of Dr Montgomery’s clinical notes (T50), this exact statement is repeated.
26. Dr Theron, an ophthalmologist at the Mermaid Beach Vision Centre, states that Ms Lo suffers pain more likely because of a previous injury to the eye rather than as a result of her surgery (T17, 6 July 2004).
27. Dr Chan of the Department of Radiology and Imaging, Queen Elizabeth Hospital, Hong Kong, records a history of Ms Lo having “a right eye injury at age 6” (T39, 17 November 2004).
28. In her oral evidence as to any past injury to her right eye, Ms Lo said that neither eye had ever been injured, nor had there been any infection of the eyes. She said that she could remember being asked by Doctors whether her eye had been injured. She stated that her reply was that she had been born with a squinting problem. All she could remember about her eye problem during childhood was what her mother had told her.
29. In response to Dr Chan’s history taken in Hong Kong on 17 November 2004, as to her right eye injury, she stated that this statement would have been based on all the medical reports of her treating Australian doctors that she had given to Dr Chan as part of her consultation.
30. In more recent medical reports provided to the Tribunal Dr Dolar, a GP at the Miami Medical Clinic, refers to Ms Lo as having “iritis right eye with secondary glaucoma” (16 June 2005).
31. Dr Hamilton, Ophthalmologist, Burleigh Waters states that Ms Lo has a “long standing recurring iritis and secondary glaucoma of her right eye” (16 June 2005).
32. Dr J Gurr carried out a medical assessment for Health Services Australia of Ms Lo with respect to a new claim for disability support pension lodged in 2005. In her report dated 14 September 2005, Dr Gurr made the following conclusions:
(a)An assessment of “nil” points for an impairment rating under Table 13: “Visual Acuity in the Better Eye” for her “Visual Disorder” (Iritis).
(b)An assessment of “20” points for an impairment rating under Table 1.2 “Loss of Cardiovascular Function, for her Mitral Valve Disorder”. This condition was now a permanent condition”;
(c)Whilst Ms Lo was recognised as suffering depression, this impairment could not be assessed against Table 6, as this condition had not yet stabilised. Under the Social Security Act, a condition must be stabilised before it can be assessed under the Tables.
(d)Whilst it was recognised that Ms Lo suffers “moderate and severe pain” to her right eye because of a congenital cataract, this impairment could not be assessed under Table 20, as it has not yet been stabilised.
(e)Finally, in relation to Ms Lo’s ability to work, Dr Gurr stated that “In my opinion, she is unfit for fulltime work within the next two years, when she should be reviewed.”
33. In her oral evidence during cross-examination, Ms Lo stated that her eye condition had become “more serious” since April 2004.
Consideration Of The Issues
34. The first issue for the Tribunal to decide is whether Ms Lo had an impairment rating of 20 points or more at the time her claim was lodged in April 2004 or within the three month period 1 April – 1 July 2004.
35. The SSAT found that Ms Lo’s eye condition, based on medical opinion that relates to the period 1 April to 1 July 2004, attract a rating of nil impairment points under Tables 13, 14 and 15 of the Tables for the assessment of work related impairment for disability support pension; the visual acuity in the better (left) eye was 6/6 and there was only 10 degrees loss of visual field left eye (T2, Folio 7).
36. Following the above finding by the SSAT, Dr Gurr also concluded that Ms Lo had “nil rating” under Table 13 for her Visual Disorder on 14 September 2005.
37. Ms Lo’s oral evidence was that her eye condition had become more serious since April 2004.
38. Based on the SSAT conclusions, Dr Gurr’s opinion and Ms Lo’s evidence as to the deterioration in her eye condition over time, the Tribunal can make no other conclusion than to find that at the time Ms Lo lodged her claim for disability Support Pension, on 1 April 2004, she would have “nil” impairment points under Table 13 for her visual disorder. Therefore, she would not qualify for this medical condition for disability support pension.
39. Next, the Tribunal considers the impairment rating for Ms Lo’s mitral valve disorder. This condition was first diagnosed by Dr Ledwoch on 30 March 2004. At this time, he stated that this condition was generally well managed and with little impact on her ability to function. However, in a later report (T48, 7 March 2005) Dr Ledwoch states that “further tests/investigations are planned to confirm the diagnosis” of mitral valve regurgitation. The Social Security Act requires a medical condition to be fully investigated, treated and stabilised before an impairment rating can be made under the Tables. Unfortunately, this requirement could not be satisfied for Ms Lo’s “mitral valve disorder” at the time her claim was made on 1 April 2004 because of Dr Ledwoch’s conclusions in March 2005 that further investigations are required to confirm the diagnosis. Therefore a “nil” rating must be made under Table 1.2 for her “mitral valve disorder”. The Tribunal has no discretion to make any finding other than the one it has made for Ms Lo, for this medical condition, at the time her claim for Disability Support Pension was made on 1 April 2004.
40. In determining whether the decision that Ms Lo was not entitled to disability support pension when she applied on 1 April 2004, is the correct one, the Tribunal can only consider the two medical conditions diagnosed by Dr Ledwoch on 30 March 2004 (“Visual Disorder” and “Mitral Valve Disorder”) at that time. Because the Tribunal has made findings that only nil points can be given for both these conditions, Ms Lo is not entitled to Disability Support Pension as at the time she applied on 1 April 2004. The decision she has sought a review of is the correct decision.
41. The Tribunal makes the observation that a further problem for Ms Lo’s application for Disability Support Pension in April 2004 relates to the time each medical condition was diagnosed in relation to the date her permanent Australian residency commenced in February 1997. Dr Ledwoch (T6, 30 March 2004) states that the date of onset of her visual disorder (“recurrent uveitis”) was 1967 – 30 years before she became a permanent Australian citizen.
42. The patient histories taken by many treating doctors over the years all express an opinion that an injury to the right eye occurred whilst Ms Lo was a young child. In this regard, Dr Woo’s history in 1996 is significant as it was taken before Ms Lo consulted with Australian doctors whose reports are in evidence before the Tribunal. However, there is also consistency in the history taken between Dr Woo’s and Ms Lo’s Australian doctors (see paras 23-26). As a result, the Tribunal can only make one inevitable conclusion: that the “visual disorder” to the right eye of Ms Lo, diagnosed by Dr Ledwoch in March 2004, commenced before she became an Australian citizen in February 1997.
43. Nothwithstanding the above findings, the Tribunal makes the observation that there is sufficient evidence before the Tribunal to indicate that the medical situation for Ms Lo has changed over time and so may well justify a new claim for disability support pension. In this regard, the report of Dr Gurr in September 2005 is important as it concludes that the “mitral value disorder” is now permanent and Dr Gurr has assessed an impairment rating of 20 points for this condition under Table 1.2. In addition, Dr Gurr also concluded that Ms Lo was unfit for full-time work within the next two years.
44. However, there is one issue in relation to the “mitral valve disorder” where the evidence raised by the respondent at the Tribunal hearing on 27 February 2006 was uncertain. Ms Lo’s medical condition was simply referred to as a past coronary condition. However, the evidence and information before the Tribunal could not point to a time for the onset of the “mitral valve disorder” that could be established in the form of an “identifiable physiological change” in Ms Lo.
45. This means that, in relation to any new claim for disability pension made, Ms Lo may need to be reassessed by a medical practitioner in terms of:
(a)the date of onset of her “mitral valve disorder” and her continuing inability to work because of this medical condition; and
(b)the date Ms Lo was granted permanent Australian residency.
46. This assessment will require a review of any relevant medical documents that Ms Lo received for the treatment of her “coronary condition” whilst she was a resident of Hong Kong as well as after she commenced her permanent resident status in Australia. The Tribunal has issued a Direction in this regard on 27 February 2006.
47. For all of the above reasons, the decision under review is affirmed. Ms Lo was not entitled to the Disability Support Pension at the time her claim was lodged on 1 April 2004.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: K Donohue
Administrative Assistant
Date of Hearing 27 February 2006
Date of Decision 27 February 2006
Date of written reasons 9 March 2006
The Applicant was unrepresented
For the Respondent Ms J Forsyth, Departmental Advocate
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