Matthews and Secretary, Department of Family and Community Services
[2005] AATA 486
•17 May 2005
Administrative
Appeals
Tribunal
WRITTEN REASON REASONS FOR ORAL DECISION [2005] AATA 486
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1119
GENERAL ADMINISTRATION DIVISION ) Re ANTONETTE MATTHEWS Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
WRITTEN REASONS FOR ORAL DECISION
Tribunal Senior Member, Mrs Josephine Kelly Date of decision 17 May 2005
Date of Written Reasons for Oral Decision 27 May 2005
Place Sydney
Decision
The reviewable decision, being the decision of the Social Security Appeals Tribunal of 9 August 2004, is affirmed.
[sgd] Senior Member, Mrs Josephine Kelly
CATCHWORDS
SOCIAL SECURITY – disability support pension – impairment tables – whether impairment rating more than 20 points – lumbar disc disease and scoliosis – constipation/ melanosis coli – continuing inability to work – decision affirmed.
LEGISLATION
Social Security Act 1991 (Cth) section 94
Social Security Administration Act 1999 (Cth) , Schedule 2, Part 2, section 4
WRITTEN REASONS
1. At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Respondent requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975.
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.
I certify that this and the preceding pages are a true copy of the decision and reasons for decision herein of:
Senior Member, Mrs Josephine Kelly
Signed: Miss Sacha Keady
..................................................................................……………………………….Associate
Date of Hearing 16 May 2005
Date of Decision 17 May 2005
Applicant Representative Ray Matthews (husband)
Advocate for Respondent Andrew Zhang
WRITTEN REASONS FOR ORAL DECISION
Senior Member, Mrs Josephine Kelly
1. This is my decision in the matter of Mrs Antonette Matthews and The Secretary, Department of Family and Community Services. This is an appeal from a decision of the Social Security Appeals Tribunal, (“SSAT”), dated 9 August 2004 to affirm Centrelink's decision to reject Mrs Matthews' claim for a disability support pension which was lodged on 7 April 2004.
The Issues
2. The issues are whether between 7 April 2004 to 7 July 2004 Mrs Matthews had a physical, intellectual and psychiatric impairment rating and if so whether the applicant had an impairment rating of 20 points or more under the impairment tables of the Social Security Act 1991 (“the Act”). If the Applicant did have an impairment rating of 20 points, does she have a continuing inability to work within the meaning of section 94 of the Act.
Background
3. Mrs Matthews was born on 4 August 1959, she is now 46 years old. She was examined on 27 May 2004 by Dr Christopher Gow of Health Services Australia. Dr Gow considered the following conditions and found the following assessments of impairment: (T19)
(1)lumbar disc disease and scoliosis, a temporary impairment for which no points were attributed;
(2) cervical spondylosis, zero points under table 5.1;
(3)right and left knee arthritis, zero points under table 4;
(4)constipation/melanosis coli, zero points under table 11.2;
(5)continuing inability to work, temporarily unfit for full-time work, capable of part-time work in 12 months if physical condition improves.
4. On 9 August 2004 the SSAT affirmed that decision, finding a 10‑point impairment under table 5.2 for lumbar disc disease and scoliosis, zero points under table 5.1 for cervical spondylosis, zero points under table 4 for right and left knee arthritis, zero points under table 11.2 for constipation/melanosis coli and the continuing inability work was not considered because the 20 points impairment had not been reached.
5. As noted above, in accordance with Schedule 2, Part 2, Section 4 of the Social Security Administration Act 1999, (“the Administration Act”), Mrs Matthews "must qualify for disability support pension at the date of a lodgment of claim" or would become qualified within 13 weeks, hence the period referred to earlier of 7 April 2004 to 7 July 2004.
6. The respondent accepted that the applicant Mrs Matthews suffered from each of the four conditions referred to earlier, that is, (1) lumbar disc disease and scoliosis, (2) cervical spondylosis, (3) right and left knee arthritis and (4) constipation/melanosis coli and therefore accepted that she satisfied section 94(1)(a) of the Social Security Act 1991.
7. The first issue in relation to section 94(1)(b) is the allocation or assessment of impairment in relation to each of the conditions to which I have referred. Before me the questions of cervical spondylosis and right and left knee arthritis were not pressed. Rather what were in contention were issues of lumbar disc disease and scoliosis and constipation/melanosis coli.
Medical Evidence
8. First of all going to lumbar disc disease and scoliosis, the respondent contends that the correct impairment rating is 10 under table 5.2 and relied on the evidence provided by Dr Christopher Gow and his medical assessment that the applicant had a loss of a quarter of the normal range of movements of the back, (T19) I note that there is degeneration of the appellant's back at various levels which is supported by various radiological investigation reports in evidence before me. I accept Dr Gow's assessment of the loss of range of movement and in accordance with the tables I would allocate 10 points.
9. In relation to cervical spondylosis, that condition was not pressed and the evidence before me would not satisfy me in any event that there was any impairment for which a rating should be given. I make the same finding in relation to the right and left knee arthritis.
10. In relation to the constipation/melanosis coli, as I have indicated the respondent now accepts that the correct impairment rating is 10 under table 11.2 and relies on the evidence of Dr Arthur Grillas who is a gastro-enterologist and whose report is dated 3 December 2004 in which he accords 10 points under table 11.2. I accept Dr Grillas's finding in that report and I note the history that he gave.
11. I would note my concern that although he had first seen her in 2003 and again in June 2004, when there was no significant change in her clinical condition, that the doctor had prescribed a substance called Movicol which Mrs Matthews had not tried at all. This does concern me and reflects a certain attitude in my opinion that Mrs Matthews does not seem to pursue possible forms of relief for her various conditions. However, as I have said, I do accept his finding of 10 points in relation to that condition.
12. I note that there are various other medical investigations and reports before me which date from 1999 when Mrs Matthews was in Newcastle. For example, an imaging report of Dr Mariola Wierna on 15 April 1999 of the bowel and also a report of Dr R. Smith on 13 May 1999 which considered her bowel disorder or complaint in which he said that at that time “she was single, lives alone and was working as a casual infants and primary teacher last year, but not this year.” He said he did not know what the solution was to the form of chronic constipation that she suffered but suggested some possible remedies that she might try.
13. Coming to the inability to work which is the essence of my decision, the respondent contends that Mrs Matthews does not have a continuing inability to work within the next two years on a relevant assessment period and relies on Dr Gow's medical assessment that the applicant should be capable of some part-time casual teaching progressing to full-time work as her physical condition improves and Dr Grillas's report dated 3 December 2004, already referred to, that she could undertake work for 30 hours a week in the next two years and will undertake educational vocation training within that time frame.
14. In addition to the material that was before the SSAT, I have additional medical reports in terms of medical certificates for Mrs Matthews, for example, exhibits A3 and A5. I also have an updated medical history provided by Mrs Matthews which has become exhibit A4 and additional material in exhibit A1 including a statement from Mr Matthews. There is also a report from a psychologist, Mr Alan Ward, dated 6 May 2005 which expresses an opinion in relation to Mrs Matthews, depression and anxiety, which seem to have worsened because of pending application for the disability support pension.
15. Before I consider the evidence that Mrs Matthews and Mr Matthews gave, in a little more detail, I will just refer to some of the medical certificates that have been tendered on behalf of Mrs Matthews. In exhibit A3 there is a medical certificate signed by Dr Peter Nguyen dated 17 March 2004 which is a certificate for two days off work from the 16 to 18 March 2004. Dr Nguyen refers to her suffering from lower back pain. A medical certificate from Dr James Herrman dated 5 April 2004 which refers to aggravation of chronic lower back pain, discogenic There is no reference to constipation. A further certificate from Dr James Herrman of 9 August 2003 that refers to operative recovery from surgery which I understand was varicose veins, which had nothing to do with either of her conditions subject to this application. In exhibit A5, a certificate of Dr Nguyen of 3 March 2005 refers to degenerative arthritis in her neck and scoliosis and degenerative change in her lumbar spine. It does not say that she is not fit for work. Rather it says not fit for heavy physical work (bending and lifting) and to avoid prolonged sitting (maximum one hour).
16. Exhibit A5 contains a medical certificate dated 21 April by Dr James Condoleon, one of Mrs Matthews' treating doctors, and noted severe lower back pain, disc pathology, diarrhoea and melanosis coli. I note that diarrhoea is precisely the opposition of constipation. He certified her unfit for work for six months from 21 April to 21 October 2004 on that basis. There are other certificates from Dr Condoleon of 19 July 2004 for three months to October 2004 noting L3/4 and L4/5 disc bulge, cervical spondylitis, constipation, slow transit bowel, right and left knee osteoarthritis, also headaches, insomnia, restricted movements. He expressed the opinion that she was unable to work more than two years.
17. Dr Peter Nguyen again on 15 October 2004 certified her unfit for work for three months again from 22 October to 20 December 2004. He referred to the conditions of lower back pain and chronic constipation. There is another certificate from Dr Nguyen in similar terms of 16 March 2005 which certifies that the applicant is unfit to work from 20 March to 30 June 2005 and another one from 20 December 2004 to March 2005 again in similar terms.
18. In relation to the certificate of Dr Condoleon of 21 April 2004, in fact what he had ticked in that one was that the patient would be likely to work for at least 8 hours within six to twelve months and there was a blue handwritten marking around a period of more than two years. That is, the doctor's opinion was a certification for six to twelve months and not more than two years.
Mr and Mrs Matthews
19. Turning to the evidence given by Mr Matthews and Mrs Matthews. Mr Matthews was Mrs Matthews' spokesman and at times he spoke for her although at other times she spoke directly to the Tribunal. There is simply no history of back pain or medical evidence prior to 1999 for Mrs Matthews and it became apparent during the course of the evidence that she only began to investigate and seek medical attention in relation to either of those conditions after she met Mr Matthews who is relevantly, and was at all times, on a Veterans Affairs pension and some level of disability support pension. Mr Matthews has suffered ill health from many and various causes and he continues to do so and continues to have operations and to require care from Mrs Matthews.
20. Mrs Matthews last worked full time at the end, she says, of 1999 although according to Dr Smith's report of that year she perhaps had given up work in 1998. The work had been casual teaching, working full-time five days a week in up to six week blocks. That is, I have no doubt that at that time Mrs Matthews was quite capable of working full time with no impairment or incapacity at all. However, she has not worked since. Why?
21. Mrs Matthews went to Queensland with Mr Matthews in about 1999 and spent some time in that State. She was unable to work as a teacher because her qualifications were not recognised in Queensland and she started on a Social Security benefit for unemployed people. They came back to New South Wales to Queanbeyan in mid 2001 but only stayed there for a short time because of the cold. They then moved to Eden for two years which I believe to be 2001-2002, and in April 2003 moved to Wollongong where they still live.
22. Mrs Matthews has provided two detailed medical histories in relation to her back and constipation problems which are found at T26. There is also an amended and updated document tendered to the Tribunal which became exhibit A4. In relation to Mrs Matthews' back, she sets out a history of many investigations and very little treatment. The history reads that back spasms occurred on 21 May 2001, mid March 2002 for three to four days, mid July 2002 for three to four days, December 2002 for six days, none in 2003, in March 2004 three days of back spasm, and then in November 2004 two days of back spasm, the last time being in January 2005 when she was in bed for six days. Mrs Matthews describes having back spasm of the kind which requires her to take to her bed and incapacitates her for some days. However, over that period of time I find that while back spasm does require Mrs Matthews to go to bed it does not mean that she is permanently impaired from working.
23. Over the period of time since Mrs Matthews has known and then been married to Mr Matthews, which occurred in about April 2000, her life seems to have been marked by the moves that I set out before and by attention being given to Mr Matthews because of his various conditions including lung and heart biopsies, operations, investigations and so on. It seems to me that she has simply got out of the routine of going to work. I was impressed by her having undertaken a counselling course while she was in Eden which she completed. Mr Matthews said that she was hoping to become a school counsellor but for reasons that he said included the fact that it was a very tight inner circle which allocated such work, she has not done any.
24. In 2004 Mrs Matthews was going to undertake a course at TAFE but she said first, she was unable to undertake the technology aspect of the course because she was not taught to use computers when she went to the Teachers College and secondly, there is a practical work requirement of two weeks from 8.30 am to 4.30 pm which she felt she could not do. She therefore withdrew from that course in about March 2004 and subsequently on 7 April 2004 the application for a disability support pension was made.
25. On all the evidence including the medical evidence and opinions expressed, for example, by Dr Gow and Dr Willis and the incapacity alleged by Mrs Matthews, I am not satisfied that she is unable to work 30 hours a week or to undertake vocational training. In my view she is quite capable of doing so and it should be recommended that she seeks to do so.
Decision
26. For those reasons I find that while Mrs Matthews does have the 20 points impairment as I have previously set out. Mrs Matthews does not satisfy the inability to work test and I therefore affirm the decision of the SSAT and find that she is not entitled to a disability support pension.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 16 May 2005
Date of Decision 17 May 2005
Applicant Representative Ray Matthews (Husband)
Advocate for the Respondent Andrew Zhang
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