McWhirter and Department of Family and Community Services

[2001] AATA 493

DECISION AND REASONS FOR DECISION [2001] AATA 493

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1999/445

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      SYLVIA MCWHIRTER      
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       R P HANDLEY, SENIOR MEMBER       

Date6 June 2001 

PlaceSYDNEY

Decision      The Tribunal affirms the decision under review.         

[sgd] R P Handley
  Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – permanent physical impairment – whether the Applicant's impairment is of 20 points or more – whether Applicant had a continuing inability to work – Applicant's eligibility at the time of claim and 3 months following
Social Security Act 1991 – ss 92, 94, 100, 106

REASONS FOR DECISION

R P HANDLEY, SENIOR MEMBER   

1. This is an application by Sylvia McWhirter ("the Applicant") for a review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 24 February 1999, which affirmed a decision of a delegate of the Secretary of the Department of Family and Community Services ("the Respondent") and an authorised review officer  to reject the Applicant's claim for a disability support pension ("DSP").

2. At the hearing, the Applicant was represented by her fiance, Mr Phillip Carey, and the Respondent was represented by Ms H Schuster of the Advocacy and Administrative Law Section of Centrelink. The evidence comprised the documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-Documents"), together with the documents tendered by the parties. The Applicant and Mr Carey gave oral evidence at the hearing.
   background

3. The Applicant, who was born on 1 October 1953 and is aged 47, lodged a claim for DSP on 7 July 1998 (T3). A Health Services Australia ("HSA") doctor examined the Applicant on 30 July 1998, assessed the level of her impairment at 10 points according to the tables in Schedule 1B of the Social Security Act 1991 ("the Act"), and found she was fit for light or sedentary work with restrictions (T17).

4. On 7 August 1998, the Department decided to reject the Applicant's claim for DSP (T18).  This decision was affirmed by an authorised review officer on 25 September 1998 (T22) and by the SSAT on 24 February 1999 (T2).  On 24 March 1999, the Applicant lodged an application for review by the Tribunal (T1).  Since that time the Applicant has undergone surgery and other medical investigations.
   applicable legislation

5. The qualifications for DSP are set out in section 94(1) of the Act. Section 94(1) provides in part:

   "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; and
…"

1. The term "continuing inability to work" is explained in section 94(2) of the Act:

   "92(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."

2. The term "work" is defined in section 94(5) of the Act:

   "…
   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."

the applicant's case

1. The Applicant said her most significant problem is back pain. Bending causes her pain. She tries to vacuum but can only do this for five minutes before needing to sit down and rest.  Similarly, she can only wash up for about five minutes before needing to sit down.  She is very limited in what housework she can do.  Mr Carey hangs out the washing because to do this causes pain in her right ankle and left knee.  He helps her with the shopping - she pushes the trolley if it is not too heavy, but can only walk for 10 to 15 minutes after which she needs to sit down.

2. The Applicant said she is unable to lift her grand daughter who weighs about 10 kgs but thought she would probably lift five kgs.  She finds it uncomfortable being a passenger in a car.  Mr Carey drives her the short distances she needs to travel as she cannot drive.  She is frightened of travelling by car and has been ever since the accident in which she was injured on 12 July 1996.

3. The Applicant spends most of her time at home.  She listens to the radio and watches television.  Mr Carey does most of the cooking.  Standing also affects the Applicant's back and she can only stand for about 15 minutes.  When watching television, she sits on the lounge. The Applicant can sit for up to 30 minutes, although during that times she needs to adjust her position.

4. The Applicant said her condition has deteriorated over the past 3 years, and she needs more help from Mr Carey now.  Lately, the back pain has been going to her hips.  She has about two "good days" a week when she will try and do more of the housework. The medication she takes is Panadeine Forte – two to four tablets a day, although sometimes taken in conjunction with Panamax, together with Feldene – one tablet a day.

5. The Applicant is waiting for another arthroscopy on her left knee.  She last had one in February 1998, which  helped for a time although she still has to be very careful.  Now, however, the condition has deteriorated again.  She has been told she may have to wait up to 14 months for the arthroscopy.  The knee keeps popping and cracking.  If she walks or stands for too long, it becomes painful.  When sitting, the knee can lock on her if she sits in the wrong position.

6. The Applicant had surgery on her right ankle on 13 March 1998.  The ankle took some time to recover after the operation and, while this helped, and the ankle is normally fine, it is still tender and sensitive and she needs to be careful  how she stands. While standing, the Applicant needs to continually adjust her position and to take care on uneven surfaces.

7. The Applicant said her urinary incontinence has improved marginally since having surgery on 29 November 2000.  The surgery, for which she had to wait four to six months, was necessary because of the deterioration in her condition.  She had been referred to Dr McCosker, a specialist, by her general practitioner early in 2000.  The Applicant is still liable to incontinence when she laughs or coughs.  She uses about one pad a day.

8. The Applicant has had surgery on both eyes.  While her left eye is fine at the moment, her right eye has deteriorated since about June 2000.  She gets flashes in this eye and her vision is blurry.  She is affected by glare, for example off car windscreens, and gets bad headaches.  She should see her eye specialist, Dr Moller, again, but has difficulty affording the consultations and also buying glasses.

9. The Applicant said she has problems turning her head.  She has only restricted movement in her neck and has constant neck pain, which causes headaches about twice a day.  If she turns her head too quickly, she gets a sharp pain at the back of her neck.

10. In answer to a question from Ms Schuster, the Applicant said she completed a course of physiotherapy and hydrotherapy at Port Kembla Hospital but found this aggravated her pain.  Her general practitioner has not suggested exercises or a pain management program.  Mr Carey said he wanted the Applicant to see a psychologist to help her deal with her condition.  She finds it hard to express her feelings.  The Applicant said she gets upset a lot because she would like to be able to do more.  When upset, she wants to sit by herself and not talk to anyone.  She is also awaiting the results of diabetes and liver function tests.

11. The Applicant said she left school at the age of 15 and did not have a good education.  Her literacy skills are reasonable but she has difficulty reading because she cannot see the print.  Mr Carey has written recent letters for her.  She also has difficulty concentrating.  The Applicant recalled some short-term casual work in about 1971 before she got married – in a factory, and babysitting.  She did not work after her marriage because she had her first child soon thereafter and, over the following years, her time was taken up looking after her family.  Her children are now aged 26 and 21, and she has three grand children.  When the Applicant's younger child, her daughter who is now aged 21, left school at the age of 15, the Applicant did not think she needed to work and it was soon after this that she was injured in the motor vehicle accident in July 1996.

12. The Applicant has been receiving newstart allowance since 1996.  She provides Centrelink with medical certificates and lodges her forms every three months.  She has not been required to look for work.

13. In conclusion, Mr Carey said the Applicant's conditions are degenerative and are not going to improve.  Indeed, her conditions will continue to deteriorate.  The Applicant does not have a position in which she is totally comfortable.  And if one condition is not playing up, another one is.  She is in pain all the time.  Mr Carey noted that Dr Wassenaar (HSA) said in his report dated 1 March 2001 (Exhibit R2) that the Applicant is "morbidly obese".  Mr Carey said this is an indication of the difficulty the Applicant experiences in looking after her health.  He said that if she cannot look after her health, how can she be expected to look for work?  No employer would employ her as she would need too much specific care in the workplace.
    the respondent's case

14. Ms Schuster said the Respondent accepts that the Applicant suffered from permanent impairments at the time she lodged her claim for DSP so that section 94(1)(a) of the Act is satisfied. Ms Schuster noted that it is the Applicant's condition at the time of the lodgement of her claim (7 July 1998), and in the three month period afterwards, which is the focus of the hearing (sections 106(2) and 100(3) of the Act).

15. With regard to the specific conditions, Ms Schuster said the Respondent accepts that the Applicant suffers from left knee and right ankle conditions.  The Respondent contends that the appropriate assessment of these conditions is under Table 4 Function of the Lower Limbs, at 10 points.  Ms Schuster noted that Dr Wassenaar made this assessment in the most recent HSA report dated 1 March 2001 (Exhibit R2).

16. Ms Schuster said that the Applicant's eyesight was assessed under Table 13 Visual Acuity in the Better Eye. The visual acuity in the Applicant's better left eye was 6/9 (for example, Dr Mills, Exhibit A3), which attracts a rating of 0 points.

17. The Applicant's urinary incontinence was assessed under Table 16 Lower Urinary Tract.  In July 1998, this was considered stress incontinence (T17), which attracts a rating of 0 points.  Ms Schuster noted that the Applicant had agreed that she only needs one pad per day.  While the Applicant suffered a deterioration in this condition after July 1998, this has been partially corrected by surgery so that the Applicant's present condition is also considered to be stress incontinence.

18. At the time of her claim, examination of the Applicant's lower back indicated a minor loss of range of movement ("ROM") under Table 5.2 Thorco-lumbar-sacral spine, which attracts a rating of 0 points.  Dr Mills found a "near normal range of movement" on 9 June 1999 (Exhibit A3), nearly a year after lodgement of the claim.  However, Ms Schuster acknowledged that in the recent HSA report dated 1 March 2001 (Exhibit R2), Dr Wassenaar had found a loss of ½ ROM, which indicates ongoing deterioration of the Applicant's condition.

19. At the time of her claim, examination of the Applicant's neck indicated no loss of ROM.  Thus,  an impairment rating of 0 points under Table 5.1 cervical spine was appropriate (T17).  However, once again, Ms Schuster acknowledged that Dr Wassenaar's findings (Exhibit R2) indicated deterioration in the Applicant's condition.  Dr Wassenaar found a loss of ¼ ROM that attracts an impairment rating of five points.

20. Finally, with regard to the Applicant's psychological condition, Ms Schuster pointed to the Introduction to the Tables in Schedule 1B of the Act, which requires that a condition must be considered permanent, meaning that it "has been diagnosed, treated and stabilised". Ms Schuster said there is no evidence of a psychological condition at the time of the claim in July 1998. In his report dated 9 June 1999 (Exhibit A3), Dr Mills, an Occupational Physician, refers to her psychological condition which he described as Post Traumatic Stress Disorder. However, he made an impairment assessment of 0 points. Ms Schuster also noted there were no specialist reports.

21. Thus, Ms Schuster submitted that in 1998 a total of 10 impairment points was appropriate, which is less than that required by section 94(1)(b) of the Act.

22. The third qualification for a DSP is a "continuing inability to work" (section 94(1)(c)).  Ms Schuster noted that in August 1998, various medical reports agreed that the Applicant could undertake light sedentary work, albeit with restrictions.  She noted that in June 1999, Dr Mills considered that the Applicant had "a limited degree of residual work capacity" (Exhibit A3).  Ms Schuster said that while the Applicant might wish to consider submitting a new claim for DSP to test her eligibility for DSP now, it had not been established that she was qualified for DSP in July 1998 or in the three months following.
    consideration and findings

23. The Respondent does not dispute that the Applicant suffered from a physical impairment at the time she lodged her claim for DSP (section 94(1)(a)). Thus, the first requirement for a person to be qualified for a DSP under section 94(1) of the Act is satisfied. The issues for the Tribunal, therefore, are, firstly, whether the Applicant's impairment is of 20 points or more under the Impairment Tables in Schedule 1B of the Act (section 94(1)(b)), and, if so, secondly, whether she had a continuing inability to work (section 94(1)(c)). The Tribunal accepts the submission made by Ms Schuster that it is the Applicant's eligibility at the time of the claim and in the three months afterwards that must be considered, pursuant to sections 100(3) and 106(2) of the Act.

24. The first issue is the level of the Applicant's impairment between July and October 1998.  The Applicant told the Tribunal that her most significant problem is back pain.  The Tribunal notes that the HSA doctor, Dr Lu, reporting on 30 July 1998, found a minor loss of ROM and mild degenerative changes in the Applicant's lumbar spine (T17).  The treating doctor's report, dated 14 May 1998, does not refer to this condition, albeit that the report was completed by the Orthopaedic Surgeon, Dr Yiu-Key Ho, to whom the Applicant was referred in respect of her right ankle and left knee (T11 and T15).  Dr Lu assessed the impairment of the Applicant's back at 0 points under Table 5.  This was also the assessment made by Dr Ross Mills, Specialist in Occupational Medicine, on 9 June 1999 (Exhibit A3).  While the Tribunal accepts that the Applicant's back condition has deteriorated since then, there is nothing to indicate that an impairment assessment of 0 points in 1998 was not appropriate.

25. The Tribunal accepts that the Applicant's right ankle and left knee impose restrictions on her ability to walk and to move around.  While Dr Lu assessed these lower limb problems at 0 points under Table 4 (T17), her treating doctor, Dr Ho assessed this impairment at 10% (sic) (T15), as did the SSAT (T2).   Dr Mills also assessed the impairment of the Applicant's ankle at 10 points (Exhibit A3).

26. While Dr Lu found early arthritic changes affecting the Applicant's neck, he found no loss of ROM and made an impairment assessment under Table 5 of 0 points (T17).  Dr Mills made a similar impairment assessment (Exhibit A3).  Again, there is nothing to indicate that an impairment assessment of 0 points in 1998 was not appropriate.

27. Both Dr Lu and Dr Mills noted the Applicant's eye problems but neither accorded this condition any impairment points.  With regard to her urinary stress incontinence, Dr Lu made an assessment of 0 points under Table 16 (T17). Dr Mills made an assessment of 10 points (Exhibit A3).  Dr Mills also noted that the Applicant was suffering from sleep disturbance and mood swings.  He listed Post Traumatic Stress Disorder without explaining how this diagnosis was arrived at, but assessed this at 0 impairment points.

28. The Tribunal found it difficult to make an accurate assessment of the Applicant's condition in 1998, given that the medical evidence is that her degenerative conditions have deteriorated since then.  The Tribunal notes that the Applicant recently had surgery to address her urinary incontinence with "a good result" according to the HSA report (Exhibit R2), although she still suffers a degree of stress incontinence.  She is also to have a further arthroscopy to her left knee, and is awaiting the results from other medical tests.

29. The most impairment points that could be attributed to the Applicant's medical conditions in 1998 would be 10 points in respect of her lower limb problems and, if accepted, 10 points in respect of urinary incontinence (Dr Mills). This would give her the required 20 points under the Impairment Tables to satisfy section 94(1)(b) of the Act.

30. However, even if such an assessment is made, the Applicant does not, in the Tribunal's opinion, satisfy section 94(1)(c). The HSA doctor, Dr Lu, found the Applicant to be "fit for light or sedentary work full time" with restrictions (T17).  Her treating doctor, Dr Ho, said the Applicant was able to return to a "light duty job without much walking or standing" (T16).  Dr Mills, while finding the Applicant had permanent impairments totalling 20 points, said the Applicant "does have a limited degree of residual work capacity" (Exhibit A3).  He noted that the Applicant had not had any pain management counselling and recommended vocational assessment.  The Applicant's general practitioner, Dr James Condoleon, in a Treating Doctor's Report dated 28 August 1998 (T19) said, in his opinion, the Applicant was temporarily unfit for work for the next year.

31. In the Tribunal's opinion, the medical evidence dating from 1998 does not support a finding that the Applicant had a continuing inability to work at that time.  Thus, she was not at that time qualified for a DSP and the SSAT decision must be affirmed.

32. The Tribunal notes, however, that the recent HSA report of Dr Wassenaar dated 1 March 2001 (exhibit R2) assessed the Applicant's impairments at 25 points. While finding the Applicant fit for sedentary work with restrictions, Dr Wassenaar noted that "CRS [Commonwealth Rehabilitation Service] is essential".  Dr Mills also recommended vocational assessment in 1999 (Exhibit A3) and noted the Applicant had not had any pain counselling.  At the hearing, Mr Carey told the Tribunal he was seeking to arrange psychological counselling for the Applicant.

33. As Ms Schuster noted the Applicant may wish to consider lodging a new claim for DSP and test her eligibility now.  If she is found able to undertake sedentary work, then the assistance of rehabilitation services is indicated.

    I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of R P HANDLEY, SENIOR MEMBER

    Signed:         .....................................................................................
      Associate

    Date/s of Hearing  11 May 2001
    Date of Decision  6 June 2001
    Counsel for the Applicant        Mr Philip Carey   
    Solicitor for the Respondent    Ms H Schuster