McClelland and Secretary, Department of Family and Community Services

[2005] AATA 506

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 506

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/1057

GENERAL ADMINISTRATIVE DIVISION

Re:         WENDY PATRICIA McCLELLAND

Applicant

And:       SECRETARY,

DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             1 June 2005

Place:            Melbourne

Decision:      The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

SOCIAL SECURITY - disability support pension - electromagnetic sensitivity syndrome - knee injury - back pain - impairment tables - whether conditions fully diagnosed treated and stabilised 

Social Security Act 1991 ss 94(1), 94(2), 94(3), 95(5), Schedule 1B

REASONS FOR DECISION

1 June 2005  G.D. Friedman, Member

1.      This is an application by Wendy Patricia McClelland (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 30 August 2004.  The SSAT affirmed a decision of an authorised review officer of Centrelink dated 20 July 1999 to refuse an application for disability support pension (DSP).    

2.      At the hearing on 13 May 2005 in Ballarat, the applicant represented herself. Ms K. Paul, a Centrelink advocate, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T30) plus one exhibit (Exhibit A1) lodged by the applicant.

BACKGROUND

4.      The applicant was born on 17 September 1957.  She has worked mainly in administrative positions such as payroll clerk, secretary and receptionist.  She has also held positions driving trucks and other vehicles.  In March 1998 the applicant started working with a transport company as a clerk, and after two weeks she became unwell.  She lodged an application for worker’s compensation and in June 1998 the company terminated her employment.  On 13 July 1998 she was granted newstart allowance.

5.      On 29 April 1999 the applicant lodged a claim for DSP due to the effects of exposure to electromagnetic radiation.  On 7 June 1999 Centrelink refused the claim because her level of impairment was less than 20 points under the Tables for the Assessment of Work‑Related Impairment for Disability Support (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act).  On 20 July 1999 an authorised review officer affirmed the decision.

6.      On 28 January 2003 the applicant lodged a further claim for DSP and was successful.  On 30 July 2004 she applied to the SSAT for review of the Centrelink decision of 20 July 1999.  On 30 August 2004 the SSAT affirmed the decision on the basis that the applicant’s medical condition was not fully treated and stabilised at the time of the claim, and therefore she did not have an impairment rating of at least 20 points.  On 16 September 2004 the applicant lodged an application with the Tribunal for review of the decision.

7.      The issue before the Tribunal is whether the applicant’s medical conditions satisfy the criteria for payment of DSP as at the date of her claim in 1999 or within 13 weeks of the claim.

EVIDENCE

8.      The applicant gave oral evidence that soon after she started working at the transport company in 1998 she felt unwell and experienced symptoms such as soreness around her eyes, fatigue and headaches.  She said that her working environment was an unventilated room which contained a computer, facsimile machine, photocopier and other equipment which emitted electromagnetic radiation.  A microwave tower was situated nearby.  She told the Tribunal that her employer terminated her employment because she took time off work and lodged a worker’s compensation claim.

9.      In the documents lodged with the Tribunal (Exhibit A1) the applicant explained that her circumstances in 1999 were the same as in 2003, when she was granted DSP because she was suffering from electromagnetic radiation sensitivity (EMR).  She produced extracts from published research on EMR, and said that in 1998 there was ample research to substantiate problems caused by the condition.  The applicant drew the Tribunal’s attention to information downloaded from the internet on 6 August 2001 (T30), which described EMR (or ES) as:

…a physiological disorder characterized by symptoms directly brought on by exposure to electromagnetic fields.  ES is a serious public health concern and the incidence of ES is growing.

The applicant said that governments were aware of the associated health problems, and for this reason all government-sponsored research has ceased.

10.     The applicant stated that she did not apply for DSP immediately because of her worker’s compensation claim, which was unsuccessful because none of the doctors or other experts was prepared to risk their reputation by publicly supporting her case.  She said that none was willing or able to diagnose her reaction to electromagnetic radiation, so she made the diagnosis herself.  The applicant noted that radiation remains in the system for a long time, and that consequently she has been unable to work.  She also stated that she is forced to stay away from electromagnetic radiation in large buildings and equipment which emits radiation, as there is no treatment or medication available.

11.     The applicant stated that she and her husband moved to their current rural location in 1999 to escape the effects of radiation, but she still suffers from severe headaches and chronic fatigue whenever she is near microwave communication towers in Ballarat and other places, and she has no resistance to electricity.  She said that her sleep is affected and her quality of life is poor, with no likelihood of improvement because of the proliferation of computers, mobile telephones and other examples of modern technology which produce radiation.

12.     Other matters taken into account by the decision-maker included a sore back arising from a motor vehicle accident in 1977, and pain in her right knee, both of which the applicant said have affected her ability to work, although she told the Tribunal that she has not had significant treatment for either condition.

13.     In a report dated 27 January 1998 (T4) Dr A. Brown, occupational physician, stated:

…

The occurrence of facial rashes among computer users has been described in the literature but remains controversial.  The studies come mainly from Scandinavia.  Although there has been concern about radiation from computer screens, there is also evidence that psychosocial factors are important…

An alternative explanation might be from chemical dusts or fumes in the workplace…The fact that she has had symptoms away from work and in a variety of situations makes this hypothesis less likely and hard to test.

14.     In a report dated 4 September 1998 (T8) Dr J. Coleman, consultant physician and allergist, said that he had carried out a number of tests and was unable to identify a cause of the applicant’s symptoms of swelling, itchiness and burning sensations in her eyes.  He noted that the applicant was convinced that the problem related to radiation or a combination of chemicals and ozone emitted by computers, photocopiers etc., and he stated that this was beyond his expertise.  Dr Coleman concluded that the applicant was not allergic to chemicals and recommended she consult a specialist in the radiation field. 

15.     The medical officer from Health Services Australia (the medical officer) did not assign an impairment rating for electromagnetic radiation sensitivity because the condition was not a recognised medical condition in 1999.  Although other relevant medical reports are no longer available, the Tribunal understands, from the decision of the ARO dated 20 July 1999, that the medical officer did not assign an impairment rating for back pain arising from the motor vehicle accident in 1977 because the applicant’s range of movement in her spine was nearly normal, although the ARO granted a rating of 10 per cent on the basis of pain and interference with everyday activities.  In respect of the knee condition, the medical officer assigned an impairment rating of 10 per cent for right patellofemoral syndrome, but the ARO determined that the condition was not fully diagnosed, treated and stabilised, so no impairment rating was given.

16.     The ARO concluded that an overall impairment rating of 10 per cent was applicable, and therefore the application was refused.

CONSIDERATION OF THE ISSUES

17.     Section 94 of the Act provides:

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;

(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system;

…

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.

…

94(3)       In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a)the availability to the person of educational or vocational training or on-the-job training; or

(b)if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.

…

94(5)    …

"work" means work:

(a)that is for at least 30 hours per week at award wages or above; and

(b)that exists in Australia, even if not within the person's locally accessible labour market.

Schedule 1B of the Act provides:

…

4.        A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. …

18.     Ms Paul submitted that at the date of the claim for DSP, or within 13 weeks of that date (the relevant period), the applicant’s EMR condition could not be assigned an impairment rating because it had not been fully investigated, treated and stabilised.  Therefore, the applicant did not have a rating of 20 points or more under the Impairment Tables.  She said that neither the back pain nor the knee pain attracted a rating of 20 impairment points.

19.     The applicant submitted that at the relevant time her condition was fully documented.  She said that she received all reasonable treatment for her EMR condition, which was stabilised because she kept away from radiation whenever possible; and the condition was fully treated because she consulted local medical practitioners and specialists.  She said that she did not change but technology changed.  

20.     In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. 

21.     The Tribunal notes that the applicant was granted DSP in 2003 after Centrelink received additional medical evidence and assessed her condition as attracting 20 points under Table 20 for other musculo-skeletal pain arising from chronic fatigue.

22.     The Tribunal accepts the evidence from the applicant that her sensitivity to electromagnetic radiation has caused serious health problems that affect her ability to work.  The Tribunal notes that the applicant made a diagnosis of EMR.  However, on the best evidence available, the Tribunal accepts the assessments from medical practitioners in 1998 and 1999 that, during the relevant period, the medical condition which the applicant identified as EMR was described in various ways, including as a possible allergy or a psychosocial condition, and no specific medical condition was diagnosed by a person qualified to do so.

23.     The Tribunal notes the applicant’s evidence that her EMR condition was present in 1998.  Although she gave evidence that she suffered from fatigue in 1998 as a result of her condition, there is no mention of fatigue in the reports by Dr Brown or Dr Coleman.  Further, the Tribunal accepts that she visited a number of medical practitioners at the time, but does not accept that this means that her condition was fully treated.  Similarly, the Tribunal does not accept that avoidance of affected areas necessarily means a condition has stabilised, because in 1998 there was no conclusive evidence that her condition would not improve.    

24.     For these reasons the Tribunal finds that during the relevant period the condition could not be assigned an impairment rating because it was not a fully documented, diagnosed condition which had been investigated, treated and stabilised.  Therefore, the applicant could not have an impairment rating of 20 points or more under the Impairment Tables for this condition during the relevant period.

25. In respect of the applicant’s back pain and knee injury, the Tribunal accepts the medical evidence that these conditions did not attract an impairment rating of 20 impairment points during the relevant period. As a result, the applicant did not satisfy s 94(1)(b) of the Act. As a result, the applicant could not satisfy s 94(1). Therefore, the Tribunal does not need to consider whether the applicant had a continuing inability to work under s 94(1)(c) of the Act.

DECISION

26.     The Tribunal affirms the decision under review.

I certify that the twenty-six [26] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  13 May 2005

Date of decision:  1 June 2005
Advocate for the applicant:          Self-represented
Advocate for the respondent:       Ms K. Paul, Centrelink