Mearns; Secretary, Department of Family and Community Services an D

[2003] AATA 274

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 274

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2002/505

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Secretary, Department of Family and Community Services

Applicant

And Bryce Gordon Mearns

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date24 March 2003

PlaceSydney

Decision The Tribunal affirms the decision under review.

...............................................

RP Handley
  Deputy President 

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – whether Respondent qualifies for Disability Support Pension – whether medical impairment attracts an impairment rating – Impairment Tables – examination of the Respondent’s medical condition - inability to work – decision under review is affirmed.

Social Security Act 1991 ss 94, 94(1), 94(1)(a)(b)(c)(i), 94(2), 94(2)(b)(i), 94(5)

Social Security (Administration) Act 1999 s 122

Impairment Tables  - Table 21 – Meniere’s Disease; Table 20 - Tinnitus

Freeman v Secretary, Department of Social Security (1988) 87 ALR 506

Secretary, Department of Social Security v Pusnjak [1999] FCA 994

REASONS FOR DECISION

24 March 2003 Mr RP Handley, Deputy President          

1.      This is an application by the Secretary of the Department of Family and Community Services (“the Applicant”) for a review of a decision of the Social Security Appeals Tribunal (“the SSAT”) made on 19 March 2002 to set aside a decision of a delegate of the Applicant to cancel the Respondent’s disability support pension (“DSP”).

2. At the hearing, held in Wallsend, the Applicant was represented by Susan Mantaring, Advocate, of Centrelink, and the Respondent was represented by Jerome McClintock, Solicitor, of the Legal Aid Commission. Evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with the documents tendered by the parties at the hearing. Mr Mearns gave oral evidence at the hearing.

Background

3.        Mr Mearns was born in New Zealand on 3 February 1949 and is aged 54.  He is married.  Mr Mearns worked as a train driver until the 16 November 1994.  He was then on sick leave until the 29 June 1995, when he was pronounced medically unfit and resigned.  He has not worked since that time apart from some casual taxi driving in 2001, which he ceased on medical advice.

4.        In 1994, Mr Mearns contracted Meniere’s Disease, an incurable disease with “recurrent and usually progressive group of symptoms including progressive deafness, ringing in the ears, dizziness, and a sensation of fullness or pressure in the ears” (Taber’s Cyclopedic Medical Dictionary, 17^th Edition, p1191).  Mr Mearns’ symptoms vary in frequency according to the level of stress he experiences.  He is unable to perform any activities during these attacks, which are only eased through taking Stemetil and rest. 

3.      In addition, Mr Mearns has tinnitus in his right ear and suffers from asthma and hypertension for which he takes medication.

4.      On the 29 June 1995, Mr Mearns lodged an application for DSP which was granted on 21 August 1995.  After a review of his condition by a Health Services Australia (“HSA”) medical adviser on 14 August 2001, on 23 August 2001, the Department of Family and Community Services (“the Department”) decided to cancel Mr Mearn’s DSP on the basis that his impairment rating was zero.  This decision took effect from 20 September 2001. On 6 September 2001, Mr Mearns sought a review of this decision, providing further medical evidence.   This evidence lead an HSA medical adviser to increase Mr Mearns’ impairment rating to five points in respect of Meniere’s Disease.  On 12 November 2001, the decision was affirmed.  Mr Mearns sought a review by an Authorised Review Officer who, on 19 November 2001, affirmed the decision. 

5. On 24 November 2001, Mr Mearns applied to the Social Security Appeals Tribunal (“SSAT”) for a further. On 6 March 2002, the SSAT set aside the decision. It assigned Mr Mearns an impairment rating of 10 points under Table 21 of the Tables set out in Schedule 1B of the Social Security Act 1991 (“the Act”) for Meniere’s Disease and 10 points under Table 20 for tinnitus, but nil points in respect of Mr Mearns’ hearing loss, asthma and hypertension. The SSAT found that he had a continuing inability to work.

6.      On 16 April 2002, the Applicant lodged an application for a review of the SSAT decision by the Tribunal.

Applicable Legislation

7. The qualifications for DSP are set out in s 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

…

8. The term “continuing inability to work” is explained in s 94(2) of the Act:

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.

9. The term “work” is defined in s 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.

Mr Mearns’ Evidence

10.     Mr Mearns provided a statement dated 19 September 2002 (R6).  He was critical of his examination by the HSA doctor on 14 August 2001 who did not ask Mr Mearns what arrangements he had made to minimise the frequency of his attacks.  Mr Mearns said he does not keep a record of when he has an attack and its duration and, since his memory is poor, the number of attacks he has specified for a particular period is only an approximation.  Currently, he is suffering two to three attacks per fortnight.  In the last fortnight, he has had three attacks:  on the day prior to the hearing (ie on Sunday 2 March 2003), on the previous Tuesday and about the previous Thursday.  On each occasion, he takes a Stemetil tablet which he gets on prescription from his local doctor.

11.     Mr Mearns said of his examination by the HSA doctor on 14 August 2001, that, at the time, he was having two or three attacks a year as a result of having arranged his life and lifestyle to avoid attacks.  Since the cancellation of his DSP and with the stress of having to look for work in order to qualify for Newstart allowance, he has suffered an increased number of attacks.  He finds looking for work and being rejected very stressful. 

12.     Mr Mearns said the Meniere’s Disease has had a significant impact on his life.  In his statement (R6), he said he and his wife had sold their old weatherboard house with two acres at Brunkerville in 1999 because it was large and difficult to maintain.  They now have a house of Hardiplank and colorbond construction on a quarter acre block which is easy to maintain.  Mr Mearns never drives for more than approximately 20 minutes without having another person with him in the car who can take over the driving if he suffers an attack of Meniere’s Disease symptoms.  He does not push himself to be active. He mows the lawns, which takes one and a half hours, over two days to make this easier.  Any stressful situation can bring on an attack.

13.     Mr Mearns said that if he has an attack, he takes a Stemetil tablet and sits down and relaxes for two to three hours until it passes.  Particular attacks do not stand out in his memory unless they happen when he is out.  For example, when he had an attack in the shopping centre in Hamilton, he had to find somewhere to sit down and relax.  Mr Mearns said he is unable to think of any job he could now do or be retrained to do.

Submissions

Applicant

14.     Ms Mantaring, for the Applicant, said the Applicant contends that Mr Mearns was not qualified as at the date of the decision:  Freeman v Secretary, Department of Social Security (1988) 87 ALR 506 at 509. Section 122 of the Social Security (Administration) Act 1999 provides that such an adverse determination takes effect on the date specified in the determination or, if no date is specified, on the date of the determination. If the frequency of Mr Mearns’ attacks has increased since the date of the determination, then he should lodge a new claim for DSP even though his appeal against the cancellation has still not been resolved.

15.     Ms Mantaring said the Applicant accepts that Mr Mearns’ tinnitus attracts 10 impairment points but contends that his Meniere’s Disease should be accorded five impairment points rather than the 10 points accorded by the SSAT.  Moreover, the Applicant contends that Mr Mearns does not have a continuing inability to work.  Ms Mantaring noted that the Impairment Tables were revised in 1999 with the result that although Mr Mearns’ binaural hearing loss of 6.8% was rated as a 5% impairment in August 1995, and he was assessed as having a hearing loss of 10.2% in 2001, under the revised Tables this attracted nil impairment points.

16.     Ms Mantaring noted there is no independent evidence as to the frequency of Mr Mearns’ attacks.  All the medical reports he has supplied are based on Mr Mearns’ subjective recollection which he says is approximate only because his memory is poor.  Ms Mantaring said little or no weight should be given to the recent reports from Mr Mearns’ treating doctor, Dr James Lin (R4 and R5), because Dr Lin merely states his agreement that Mr Mearns’ condition attracts 20 impairment points without specifying why and basing his opinion on Mr Mearns’ current condition.

17.     Ms Mantaring said the Applicant contends Mr Mearns does not have a continuing inability to work as a result of his impairments.  The HSA doctor, Dr C Aus, in her report dated 14 August 2001 (T12), said Mr Mearns is fit for full-time sedentary duties where he is not working at heights or is unsupervised in the use of machinery.  The HSA doctor who reviewed the file came to a similar conclusion (T20).  Ms Mantaring submitted that Mr Mearns’ impairments also do not prevent him from participating in educational or vocational training during the next two years and his employment prospects would be improved if he attended the Commonwealth Rehabilitation Service (“CRS”) or a similar rehabilitation service for vocational assessment and rehabilitation or undertook a work training program.

Respondent

18.     Mr McClintock, for the Respondent, said Mr Mearns would like to work but his doctor has advised against this.  For example, Mr Mearns tried driving taxis on a part-time basis but his doctor told him to stop.  In his report dated 17 May 2002 (R1), Dr RJ Burke, Occupational Physician, said in his opinion, Mr Mearns’ Meniere’s Disease and tinnitus “would stop him from working and undertaking educational and vocational training on the job within the next two years”.

19.     Mr McClintock noted Mr Mearns’ description of the HSA doctor, Dr C Aus’ lack of thoroughness in her examination (T15).  For example, Dr Aus accorded Mr Mearns’ tinnitus nil impairment points contrary to the HSA doctor’s assessment of an impairment rating of 10% on 16 August 1995 (T8).  Dr S McBurnie, the HSA doctor who conducted the file review on 16 November 2001 (T20), made a similar error.

20.     Mr McClintock submitted that the doctors’ reports tendered indicate what happens to Mr Mearns’ symptoms if he changes his lifestyle.  Meniere’s Disease is an incurable condition and the changes in symptoms suffered by Mr Mearns are a reaction to changing circumstances.  Mr Mearns has made his best effort to treat the condition with a resulting reduction in the number of attacks.  The Applicant’s contention that Mr Mearns can work ignores the fact that work causes him stress and stress increases the frequency of the attacks.  Similarly, the current increased frequency of Mr Mearns’ symptoms is a manifestation of the stress involved in this review and in his having to look for work in order to qualify for newstart allowance.  Dr Burke stated that stress was aggravating Mr Mearns’ symptoms (R1).

21.     Mr McClintock noted that both Dr Burke and Mr Mearns’ treating Ear, Nose and Throat (“ENT”) specialist, Dr SV Fernandes (R2), state that Mr Mearns suffers three to four attacks per fortnight, which total more than 40 attacks per annum.

22.     Mr McClintock pointed out that in Freeman’s case (supra) at 509, Davies J noted that

In coming to its decision, the Tribunal was entitled to take into account all the facts before it.

The reports of Dr Burke and Mr Mearns’ treating doctors indicate that Mr Mearns’ condition has been consistent and has not changed over time.  The recent changes in the frequency of his symptoms is a response to the stress being experienced by him rather than a change in his condition.

23. Mr McClintock referred the Tribunal to the Introduction to the Impairment Tables in Schedule 1B of the Act. Paragraph 2 to the Introduction emphasises that the Tables “are function based rather than diagnosis based”.. Paragraph 8 speaks of the assessment being made in terms of the underlying medical condition. The current frequency of attacks suffered by Mr Mearns is a manifestation of his underlying condition.

24.     Mr McClintock noted the Disability Support Officer’s assessment of Mr Mearns on 21 August 1995 (T9).  The officer said:

The condition is unpredictable and during an attack claimant is unable to do anything including driving a car or using public transport.  It is unlikely that he could maintain a regular attendance at any mainstream training.  Claimant notes the condition is aggravated by tiredness and stress both of which are probably inevitable with any attempt at re-training when claimant’s 24 year history with SRA and other pre-disposing factors.

Mr McClintock noted that Mr Mearns’ other nil rated impairments – including hypertension and hearing loss – should also be taken into account in assessing his ability to work.   In any event, both Dr Burke (R1) and Dr Fernandes (R2) state that Mr Mearns’ impairment would stop him from working and retraining within the next two years.

25.     Mr McClintock referred to the Federal Court decision in Secretary, Department of Social Security v Pusnjak [1999] FCA 994 where, at paragraph 32, Drummond J noted in relation to continuing inability to work and s 94(2)(b)(i), the question to be asked is whether the impairment of itself is sufficient to prevent the particular pension claimant from commencing retraining of a kind which would fit the person for a class of work available in Australia that he currently lacks the skills or experience to perform, even if unimpaired. Thus, the person’s existing skills are relevant. In this case, Mr Mearns is qualified for driving. Dr Fernandes has directed him not to pursue an occupation in driving because of his condition.

Consideration of the Law and Findings

26.     There is no dispute about the various conditions from which Mr Mearns suffers which give rise to an impairment:  Meniere’s Disease, partial hearing loss, tinnitus, asthma and hypertension.  At issue is whether his impairment is of 20 points or more under the Impairment Tables (s 94(1)(b)) and, if so, whether he has a continuing inability to work (s 94(1)(c)(i)).

27.     The Applicant acknowledges that the assessment of Mr Mearns’ tinnitus at 10 impairment points is correct, but contends that Mr Mearns’ Meniere’s Disease should be assessed at five impairment points rather than the 10 points contended by the Respondent.  There is no dispute about the nil rating of the other conditions.  The Tribunal will, therefore, focus on the assessment of Mr Mearns’ Meniere’s Disease.

28.     In its decision (T2), the SSAT does not seem to have drawn a distinction  between the frequency of Mr Mearns’ symptoms as at the date of the decision in August 2001 and at the time of the SSAT review on 6 March 2002.  The SSAT noted Mr Mearns’ evidence that he usually experienced between 10 and 12 attacks a year but more recently has been experiencing up to three attacks per fortnight.  The SSAT found that he suffers symptoms “from two to three times per fortnight when under any stress”..  On this basis, the frequency of the symptoms was assessed at 40 plus per annum which, with assessment under Table 21 of a severity level of 3 and a duration rated as medium, attracts 10 impairment points.

29.     The issue of contention in the current proceedings is the frequency of symptoms at the time of the decision:  Freeman (supra). In the Tribunal’s view, the SSAT’s assessment under Table 21.1 of the severity of Mr Mearns’ condition as “loss of efficiency is discernible in many everyday activities …”, level three, was in line with Mr Mearns’ evidence.  Similarly, the SSAT’s assessment under Table 21.2 of the duration of his symptoms as “medium”, “lasting from 30 minutes to four hours”, was also supported by Mr Mearns’ evidence.  This gives rise to a grading code “D” under Table 21.3.  The number of impairment points is then calculated according to the frequency of the symptoms in terms of affected days per annum under Table 21.4.  With a frequency of 40 plus per annum found by the SSAT, there is a rating of 10 impairment points.  The Authorised Review Officer, by contrast, accorded Mr Mearns’ Meniere’s Disease a rating of five impairment points on the basis of a frequency of 10 to 19 affected days per annum and an assessment of the duration of symptoms as “prolonged”.

30.     In the Tribunal’s opinion, it is the underlying condition which is to be assessed under the Impairment Tables.  Mr Mearns’ Meniere’s Disease is an incurable condition that has remained unchanged in its effect since he contracted the condition in 1994.  The Tribunal finds, based on Mr Mearns’ evidence which is supported by reports from his treating ENT specialist Dr Fernandes (R2),  his treating doctor Dr James Lin (R4),  and the Occupational Physician Dr Burke (R1), that stress and tiredness exacerbate Mr Mearns’ symptoms and, in particular, increase the frequency of the Meniere’s Disease attacks.  Mr Mearns manages the condition by arranging his life to, as far as possible, avoid stress and tiredness.

31.     Mr Mearns describes the Meniere’s Disease  “attacks” as follows (R1):

The symptoms I feel from Meniere’s disease are getting dizzy, falling over, headaches, vomiting, constant ringing in my ears and deteriorating hearing.

He states that when he does have an attack, he takes a Stemetil tablet and sits down for two to three hours until the symptoms pass.

32.     Ascertaining the frequency of Mr Mearns’ attacks was difficult because Mr Mearns’ memory is poor and he does not keep any record of attacks.  However, it seems from the various statements he has made in relation to these proceedings that prior to the cancellation of his DSP, Mr Mearns was suffering approximately 10 to 12 attacks a year.  With the cancellation of his DSP and his transfer to newstart allowance with the attendant requirement that he look for work, his stress level increased and the frequency of his attacks increased to two to three attacks per fortnight.  This was his oral evidence at the hearing on 3 March 2003 which was similar to that at the SSAT hearing on 6 March 2002. 

33.     The Tribunal finds that when Mr Mearns arranges his life to avoid stress he suffers approximately 10 to 12 attacks per annum.  When Mr Mearns is unable to avoid stress, he suffers over two to three attacks per fortnight and, therefore, over 40 attacks per annum.  This has been the situation while he has been receiving newstart allowance since the cancellation of his DSP in September 2001 with the requirement that he look for work.  Thus, while Mr Mearns' condition has remained unchanged since 1994, the frequency of his symptoms can fluctuate according to the level of stress and tiredness he is experiencing at any particular time.

34.     The “Introduction” to the Impairment Tables states in paragraph 2:

These tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical condition on normal function as they relate to work performance.

Similarly, paragraph 3 begins:

These Tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work.

The emphasis is on the assessment of the impairment in relation to work.

35.     In the Tribunal’s view, the assessment of the frequency of Mr Mearns’ symptoms should therefore be in relation to work or retraining for work.  Although obviously some work situations are more or less stressful than others, it seems likely that all work will entail a modicum of stress in so far as a person will have to meet certain obligations and expectations.  Thus, the Tribunal considers it is reasonable to consider the frequency of Mr Mearns’ attacks in the context of some work place stress as at the date of the cancellation of his DSP on 23 August 2001.  On the evidence before the Tribunal, even this is likely to give rise to a frequency of attacks of at least 40 per annum.

36. On this basis, the Tribunal assesses Mr Mearns’ Meniere’s Disease at a severity level of three pursuant to Table 21.1, being of medium duration – lasting from 30 minutes to four hours; pursuant to Table 21.2, severity – grade code D; pursuant to Table 21.3 and a rating under Table 21.4 for a frequency of 40 plus affected days a year, the appropriate assessment is 10 impairment points. Together with 10 points for tinnitus, this gives Mr Mearns a total of 20 impairment points. Thus, he satisfies the requirement of s 94(1)(b) of the Act.

37.     To be qualified for a DSP, Mr Mearns must also have a continuing inability to work.  The medical reports submitted by the Applicant state he is unable to work.  Dr Fernandes stated that Mr Mearns is unable to work for 30 hours per week and because of his attacks “his attendance at work or retraining is unpredictable” (R2).  Dr Burke stated that Mr Mearns’ Meniere’s Disease and tinnitus “would stop him from working and undertaking education and vocational training on the job within the next two years” (R1).  The Disability Support Officer who assessed Mr Mearns’ qualification for DSP on 21 August 1995 (T9) noted that his condition is unpredictable and “it is unlikely that he could maintain a regular attendance at any mainstream training”.  Moreover, Mr Mearns “notes condition is aggravated by tiredness and stress, both of which are inevitable with any attempt at retraining”.

38.     While Mr Mearns’ hearing loss is accorded a rating of nil impairment points, the Tribunal’s experience speaking with Mr Mearns at the hearing indicates that the hearing difficulties he experiences, in conjunction with tinnitus, would adversely affect his ability to hear and concentrate on the instructions which are an inevitable part of retraining.  This, in turn, is likely to raise his level of stress.

39. This leads the Tribunal to conclude that, in accordance with s 94(2), Mr Mearns’ impairment is sufficient to prevent him from doing any work within the next two years (s 94(2)(a)) and is of itself sufficient to prevent him from undertaking educational or vocational or on-the-job training within the next two years (s 94(2)(b)(i)). Thus, Mr Mearns has a continuing inability to work and satisfies s 94(1)(c) of the Act. Subject to meeting any other eligibility requirements, the Tribunal therefore determines that as at the date of the decision – 23 August 2001, Mr Mearns was qualified to receive the DSP and the decision of the SSAT made on 19 March 2002 is affirmed.

I certify that the preceding 39 paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

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

Date/s of Hearing  3 March 2003
Date of Decision  24 March 2003
Representative for the Applicant               Ms S Mantaring
Representative for the Respondent          M J McClintock