Madden and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 203

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 203

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2007/27

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BRUCE MADDEN

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING , COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date14 March 2008

PlaceMilton, New South Wales

Decision The decision under review is affirmed.

.............signed.................................

Mr S. Webb, Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - functional impairment - impairment tables - impairment rating below required threshold - decision affirmed

Social Security Act 1991 s 94, Schedule 1B

Social Security (Administration) Act 1999, Schedule 2

Employment and Workplace Relations Legislation Amendment (Welfare to Work) and Other Measures Act 2005

REASONS FOR DECISION

14 March 2008 Mr S. Webb, Member         

1.      Bruce Madden receives a Newstart allowance.  He applied for a disability support pension.[1]  His claim was rejected by primary determination and on reconsideration by an authorised review officer.

[1] T20.

2.      The issue to be determined is whether Mr Madden was entitled to a disability support pension.

3.      Mr Madden asserts that he suffers significant functional impairments as a result of chronic fatigue syndrome, adolescent osteochondrosis, non-insulin dependent diabetes mellitus, hypertension, plantar faciitis and other related conditions.  In his submission, he satisfies the requirements for a disability support pension and is not able to work.

4.      As will appear, I do not agree.

5. The qualification requirements for a disability support pension are set out at s 94 of the Social Security Act 1991 (the ‘Act’).  Essentially, to qualify, a person must have an impairment that warrants a rating of 20 or more points under the Impairment Tables (Schedule 1B) and must have a continuing inability to work. 

6.      Mr Madden’s claim for a disability support pension was made on 13 June 2006,[2] prior to the commencement of relevant sections of the Employment and Workplace Relations Legislation Amendment (Welfare to Work) and Other Measures Act 2005. Under the transitional arrangements, his claim is to be determined on the provisions of the Social Security Act then in force.

[2] T20.

7.      It is necessary to consider Mr Madden’s claim for disability support pension on the day on which it was made or within the period of 13 weeks thereafter.  Under the Social Security (Administration) Act 1999 (the ‘Administration Act’) a claimant must either qualify for the pension on the day on which the claim was lodged or within the period of 13 weeks thereafter (s 42 and cl 3 and 4 of Schedule 2). Thus the period to which attention must be directed in Mr Madden’s case is from 13 June 2006 to 12 September 2006 inclusive.

does mr madden have a physical, intellectual or psychiatric impairment?

8.      In his claim Mr Madden specified that he suffered disabilities as a result of the following conditions that commenced in 1992:

(a)Chronic fatigue syndrome

(b)Hypertension

(c)Diabetes

(d)Plantar faciitis

(e)Haemochromatosis

(f)Osteochondritis

(g)Injured ankle joint (2 chips)[3]

[3] T21 folio 177 and 178.

The disabilities he claimed are set out at T21 folios 177 and 178.

9.      It appears from previous reports completed by Dr D. Richards[4] and Ms M. Crawford, a rehabilitation consultant,[5] that Mr Madden suffered from social phobia.  However, subsequently and in his oral evidence, he denied suffering from this condition.  Furthermore, Mr Madden informed me that he did not press any claim based on haemochromatosis, as that condition resolved.  In his written submissions,[6] Mr Madden suggested that he suffers from disease and drug symbiosis and metabolic syndrome.

[4] T15.

[5] T14.

[6] Exhibit A2.

10.     Mr Madden’s evidence is that he was told to apply for a disability support pension by Centrelink staff and that he has been disappointed and frustrated by the way in which his case has been dealt with.  He says that he suffers memory and ‘focus’ problems as a result of chronic fatigue syndrome and osteoarthritis and is only able to concentrate for “a couple of minutes in short bursts”.  Mr Madden stated that he lives in a ‘garage’ under his mother’s house.  He said that he used to go upstairs to assist his mother, but that became too much for him.  His evidence is that he cleans only rarely as vacuuming is painful.  He stated that he experiences pain in his hips and legs that occasionally extends up to his neck.  He stated that he does only minor cooking as he “cannot stand for long enough” and he has difficulty bending to access the fridge.  He said that he has difficulty bending to put on socks and shoes and, more generally, has difficulty wearing clothes because of hypersensitivity.  He explained that this also causes difficulty sleeping. [7] 

[7] Applicant’s oral evidence, 27 February 2008.

11.     Mr Madden’s evidence is that he cannot sit for long periods and that sitting for periods of 2 to 10 minutes at a time is difficult.  On his evidence, the only comfortable position is lying in a ‘special chair’ with his feet up.  Mr Madden stated that he shops for himself but often accompanies his mother.  He said that he prefers to go alone as it is quicker for him to do so.  He explained that he is concerned about picking up infections from other people when shopping and likes to be quick because of back pain.  Mr Madden’s evidence is that he walks for exercise but does not walk on the beach or swim even though he lives closeby.  He stated that he drives his mother to Nowra (which is 45 minutes from his home) for medical appointments, but needs to rest afterwards.  His evidence is that he can drive his mother’s car which is automatic, but that driving a manual car is difficult because of problems with his left ankle, which he broke in 1992.

12.     Mr Madden’s evidence is that his diabetes is substantially controlled by medications, but his feet swell every day.  He stated that his hypertension is controlled by medications, but that he experiences migraines regularly.  He explained that his haemochromatosis has resolved and that the plantar faciitis “flares up now and then” but is otherwise “tolerable”.  However, he asserted that this condition was worse in 2006 and caused him to stop assisting his mother with chores.

13.     Considering Mr Madden’s evidence concerning his disabilities and the medical evidence that has been filed, including reports by Dr Mulvaney dated 11 February 2008, and Dr Garth Nicholson dated 14 September 2007,[8] I am reasonably satisfied that Mr Madden suffers from chronic fatigue syndrome (possibly associated with Epstein Barr virus in or about 1992), adolescent osteochondrosis that commenced at the age of 16, non-insulin dependent diabetes mellitus, hypertension and plantar faciitis.  At the time of Mr Madden’s claim for disability support pension, those conditions had been fully documented and diagnosed, and were investigated, treated and where possible stabilised.  Those conditions were permanent for present purposes. 

[8] Exhibit A1.

14.     If Mr Madden suffered from social phobia or metabolic syndrome during the relevant period, and there is significant doubt that he did, those conditions were not fully documented or diagnosed and had not been investigated or treated at that time or subsequently.  There is no medical evidence before me that Mr Madden suffers from disease or drug symbiosis.  If he does, and I make no such finding, there is no evidence that any such condition has been fully documented, diagnosed, treated or stabilised, and cannot therefore be considered permanent for present purposes.

15.     It is probable that Mr Madden suffered from haemochromatosis, and may still.  However, by Mr Madden’s account, that condition has improved and resolved since 2006.  On that basis, despite the absence of medical evidence to corroborate that the condition has resolved, I am prepared to accept that it did and that the condition was not permanent in 2006.

16.     I accept that Mr Madden broke his left ankle in or about 1992 and subsequently underwent arthroscopic surgery to remove 2 chips.  However, there is no medical evidence that any such injury or impairment persisted in the relevant period in 2006.

17.     Mr Madden asserted that he had suffered a stroke in or about 2000 and submitted that the report of Dr Raymond Lau,[9] a radiologist, supported this assertion.  That may be so, although Dr Lau’s report is not conclusive evidence that he did suffer a stroke in 2000 and states “I cannot entirely exclude a small localised region cerebral ischaemia”[10].  It is also to be noted that Dr Lau’s report is dated 6 June 2007.  Considering this evidence, all that can be said is that if Mr Madden did suffer a left cerebral ischaemia, there is no evidence when this event occurred and there is no evidence that it has been fully documented, diagnosed, investigated, treated or stabilised.  For that reason it is not possible to ascertain the nature of any functional impairment that may result from the alleged stroke.

[9] Exhibit A1.

[10] Ibid.

18. Nevertheless, it is not disputed that Mr Madden suffers from physical or psychiatric impairments. I am reasonably satisfied that he does. Thus subparagraph 94(1)(a) of the Social Security Act is satisfied.

Are Mr Madden’s impairments of 20 or more points under the Impairment Tables?

19.     I am reasonably satisfied that the answer to this question, with reference to the relevant period from 13 June 2006 to 12 September 2006, is that Mr Madden’s impairments do not warrant a rating of 20 or more impairment points.

20.     Mr Madden gave oral evidence concerning the functional impact of the various conditions he claims he suffered during the relevant period in 2006.[11]  However, there is scant medical evidence on this point. 

[11] T21 folios 177-178 refer.

21.     On 9 June 2006, Dr D. Mulvaney completed a Treating Doctor’s Report.[12]  Dr Mulvaney reported functional impairments as a result of chronic fatigue syndrome and adolescent osteochondrosis, although he indicated that the impairment resulting from chronic fatigue syndrome was expected to fluctuate.[13]  Dr Mulvaney reported that Mr Madden’s hypertension and haemochromatosis did not cause functional impairment and that ‘significant improvement’ was expected in relation to Mr Madden’s non-insulin dependent diabetes mellitus and plantar faciitis.[14]  Dr Mulvaney did not refer to social phobia or disease or drug symbiosis, or to metabolic syndrome.

[12] T22.

[13] T22 folios 186-189 inclusive.

[14] T22 folio 190.

22.     Dr Mulvaney reported Mr Madden’s symptoms and impairments in the following terms:

Chronic fatigue syndrome:     “Lethargy – chronic – constant

moderate to severe:
pain – chronic – constant
moderate to severe – specific foot pain limits mobility
renal angle pains intermittent
lack of motivation – sleep disturbance
headache:” [15]

[15] T22 folio 186.

“There is variable reduction in abilities ranging from moderate to severe – the changes are not predictable.  No assistance with activities of daily living.”[16]

[16] T22 folio 187.

Adolescent osteochondrosis: “Back pain

Back stiffness
Difficult to walk long distances on hard surfaces”[17]

“Reduced exercise tolerance”[18]

Hypertension:  “N/A”[19]

Diabetes:“N/A”[20]

Plantar Faciitis:  “variable depending on pain”[21]

Haemochromatosis:               “N/A”[22]

[17]  T22 folio 187.

[18] T22 folio 189.

[19] T22 folio 190.

[20] Ibid.

[21] Ibid.

[22] Ibid.

23.     On 24 July 2006 Ms M. Camus, a rehabilitation consultant, completed a Work Capacity Assessment in relation to Mr Madden.[23]  Ms Camus assessed the functional impairments resulting from chronic fatigue syndrome and adolescent osteochondrosis to warrant a rating of 15 points under Impairment Table 20.  In her assessment, Mr Madden’s hypertension, haemochromatosis and plantar faciitis warranted a nil rating under Table 20 and his diabetes mellitus warranted a nil rating under Table 19.[24] 

[23] T26.

[24] T26 folio 207.

24.     Ms Camus’ assessment of functional impairment resulting from chronic fatigue syndrome is similar to a prior assessment on 21 June 2005 by Ms M. Crawford, a rehabilitation consultant.[25] Curiously, a Medical Assessment Report by Dr E.  Wassenaar, of 13 January 2006, reported that Mr Madden’s “main condition appears to be diabetes. The level of control is unclear as is it’s [sic] functional impact”[26].  Dr Wassenaar did not assess any impairment rating.

[25] T14 folio 118.

[26] T17 folio 149.

25. When applying the Impairment Tables at Schedule 1B of the Social Security Act, one must determine which body systems have a functional impairment due to the permanent conditions that have been identified. The Tables are function based and are not diagnosis based. Each medical condition must be assessed on all relevant Tables in relation to separate loss of function in more than one body system. Nevertheless, pain or fatigue should generally be assessed in terms of the underlying medical condition that causes it. If 2 conditions cause a common functional loss, a single rating must be assigned for the combined functional loss. If the Tables underestimate the level of disability because of chronic entrenched pain, then Table 20 may be used to assign a rating.

26.      Turning to consider Mr Madden’s conditions and related functional losses, I am reasonably satisfied that during the relevant period he suffered functional losses as described by Dr Mulvaney.  Thus the functional losses that must be assessed are in relation to chronic fatigue syndrome, adolescent osteochondrosis and plantar faciitis.

27.     The functional losses that result from chronic fatigue syndrome are appropriately assessed under Table 20 (see the introduction to that Table).  The functional loss relating to adolescent osteochondrosis is reduced exercise tolerance as a result of back pain and stiffness.  However, there is no medical evidence concerning any loss of range of movement in the lumbar spine.  Thus, if the impairment is assessed under Table 5 concerning spinal function, a NIL rating must result.  The functional loss relating to diabetes mellitus is to be assessed under ‘the appropriate tables’ (introduction to Table 19) and added to the rating under Table 19.  As Mr Madden’s diabetes mellitus is adequately controlled by medication, it warrants a NIL rating under Table 19.

28.     Plantar faciitis is a condition affecting Mr Madden’s heels (heel spurs).  Dr Mulvany’s evidence is that the condition is variable.  There is no evidence that plantar faciitis causes Mr Madden moderate interference with walking and climbing, squatting, sitting or kneeling.  Nor is there any evidence that the condition causes Mr Madden difficulty walking more than 500 metres on different terrains and at varying speeds.  Thus, if that condition is to be assessed under Table 4, a NIL rating would result.

29.     Furthermore, on the available evidence, it is difficult to assess whether or the extent to which the pain and other symptoms of which Mr Madden complains relates to chronic fatigue syndrome or osteochondrosis or non-insulin dependent diabetes mellitus or plantar faciitis.  Thus, I am satisfied that it is appropriate to assess Mr Madden’s functional impairments under Table 20.

30.     The relevant rating criteria under Table 20 are as follows:

Rating  Criteria

NIL                  Controlled hypertension

Malignancy in remission with a good to fair prognosis

Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.

TEN                 Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work‑related tasks. There is minimal effect/impact on work attendance.

Hypertension that is difficult to control despite intensive therapy but without end‑organ damage

Potentially life‑threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis

Heart/Liver/Kidney transplants ‑ well controlled (well functioning) with only mild systemic symptoms.

FIFTEEN         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.

Potentially life‑threatening condition which is currently interfering with daily activities but self‑care is unaffected.

TWENTY        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.

THIRTY          Very severe symptoms which lead to substantial difficulty with most daily tasks. Assistance with elements of self‑care may be required. Symptoms cause severe interference with ability to work or attend work (ie. minimal residual work capacity).

31.     Dr Mulvaney assessed the functional impact of Mr Madden’s chronic fatigue syndrome as moderate to severe reduction in abilities without the requirement for assistance with activities of daily living.  Ms Camus assessed that Mr Madden’s functional impairment warranted a rating of 15 points.  However, the basis of that assessment is not clear and Ms Camus was not available to give evidence.  Nevertheless, I am reasonably satisfied that Mr Madden’s functional impairment is consistent with the rating criteria at the 15 point level.  I accept that he experienced moderate to severe symptoms that were distressing and prevented few daily activities.  He retains his independence, and his abilities in relation to self care are unaffected.

32.     I note in passing that Mr Madden’s evidence concerning his difficulties with concentration and his difficulty sitting for long periods was inconsistent with my observation of him during the hearing.  Mr Madden displayed no apparent difficulty understanding or keeping up with the hearing over a number of hours.  He gave coherent evidence without any apparent discomfort or difficulty maintaining ‘focus’.  He was observed to remain seated for periods in excess of 90 minutes without apparent discomfort.  I informed Mr Madden at the outset of the hearing to inform me if he experienced discomfort and required a break.  He did not do so until prompted.  As it appears to me, Mr Madden’s symptoms may be variable from time to time, and may not be as severe as he has made out in his evidence on a continuous basis.  That assessment is consistent with Dr Mulvaney’s evidence.

33.     I am reasonably satisfied that Mr Madden’s symptoms may have a moderate impact on his ability to perform or persist with or attend work.  Mr Madden’s own evidence indicates that he is able to undertake computer and other activities that are akin to light administrative duties, so long as he is able to work at his own pace and to get up and move around from time to time.  I accept that his impairments may interfere with his work attendance and capacity from time to time at a moderate level, but not to the extent of causing ‘significant interference with ability to perform or persist with work-related tasks’ or ‘prolonged absences from work’.  There is scant evidence on this point.  However, I note that Ms Crawford and Ms Camus both assessed Mr Madden’s functional impairment at the 15 point level.  Ms Crawford and Ms Camus are both qualified rehabilitation consultants.  Even though neither Ms Crawford nor Ms Camus gave oral evidence, their opinions, albeit 12 months apart, cannot simply be dispensed with or ignored.

34.     Unfortunately for Mr Madden, there is no evidence before me that his functional impairments warrant a rating greater than 15 impairment points.  His own evidence does not persuade me that a higher rating is warranted.  I am reasonably satisfied that it is not.

35.     Thus, I find that Mr Madden’s functional impairments warrant a rating of 15 impairment points under Table 20.

36. That being so, Mr Madden does not satisfy the requirements of subp 94(1)(b) of the Social Security Act, and his claim for disability support pension must fail. I so find.

37. Strictly, it is not necessary to proceed further to consider whether or not Mr Madden has a continuing inability to work more than 30 hours per week for the purposes of subp 94(1)(c) of the Act. Even though Ms Camus did not complete that part of the Work Capacity Assessment, I accept her evidence that Mr Madden is not prevented by his impairments from undertaking vocational retraining within the 2 years following the date of his claim, and that such retraining may equip him for work that he is not presently equipped to perform, for example, in relation to information technology. Dr Mulvaney’s Treating Doctor’s Report is silent in relation to Mr Madden’s ability to undertake education or vocational retraining within the ensuing 2 year period. Mr Madden’s own evidence is that he would welcome the opportunity to work again if he is able. Further education and vocational retraining may assist him to that end.

38.     Mr Madden worked for Qantas for approximately 20 years in the purchasing, forward planning and engineering facilities areas.  He managed a video store for a number of years on his own account and later as an employee.  He has managed a number of businesses, including a driving school and has worked as a business consultant.  He has driven a taxi for a short period, but was prevented from continuing by his impairments.  He has worked in sales in the insurance and motor vehicle industries and was employed in a call centre.  Presently he is involved in developing an Internet business and is engaged in web site construction, even though, by his own account, he has no training in this area.  I am satisfied that Mr Madden may benefit from education and vocational training support in this area and that his impairments do not render him unable to undertake such activity within the 2 year period following his claim.

39. Thus, even if Mr Madden’s impairments warranted at least 20 impairment points, his claim would fail because there is no reliable evidence that he has a continuing inability to work pursuant to subp 94(1)(c) of the Social Security Act.

40.     The decision under review is affirmed.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:       ....signed......................................................
  Jane Gribble
  Associate

Date of Hearing  27 February 2008
Date of Decision  14 March 2008
Representative for the Applicant             Bruce Madden
Representative for the Respondent        Jillian Furner
  Centrelink Legal Services