Ms a and Secretary, Department of Employment and Workplace Relations

[2006] AATA 735

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 735

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2006/11

GENERAL ADMINISTRATIVE DIVISION		)
Re		Ms A

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date25 August 2006

PlaceSydney

Decision The decision under review is affirmed.

Ms N Isenberg, Member

CATCHWORDS

SOCIAL SECURITY – Entitlement to Disability Support Pension – physical impairment –– whether the Applicant had an impairment rating of 20 points or more under the impairment tables – whether the Applicant had a “continuing inability to work” – decision

LEGISLATION

Social Security Act 1991 – sections 94(1), (2), (3), (4), (5), (6), Schedule 1B

Social Security (Administration) Act 1999 –Schedule 2

CASE LAW

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

Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467

Kitanovski and Secretary, Department of Family & Community Services [2004] AATA 301

REASONS FOR DECISION

Ms N Isenberg, Member

DECISION UNDER REVIEW

1.      Ms A’s claim for Disability Support Pension (DSP), made on 15 July 2005, was rejected by Centrelink.  While Centrelink, agreed that she suffers from supraventricular tachycardia, left arm lymophedema and thyroid disease, Centrelink did not agree that her various impairments attract the required 20 point impairment rating under the Impairment Tables contained in the Social Security Act 1991 (the Act). Nor did Centrelink agree that she meets the other requirement of eligibility for DSP, that is, a continuing inability to work. These requirements are set out in section 94 of the Act and are as follows:

Qualification for disability support pension

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

(d)  the person has turned 16; and

(e)  the person either:

(i)  is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii)  has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii)  is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A)  is not an Australian resident; and

(B)  is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident; and

(f)  the person is not qualified for disability support pension under section 94A.

Note 1:       For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

Note 2:       for Impairment Tables see section 23(1) and Schedule 1B.

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 independently of a program of support within the next 2 years; and

(b)  either:

(i)  the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii)  if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

Note: For work see subsection (5).

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 a training activity; or

(b)  the availability to the person of work in the person’s locally accessible labour market.

94(4)  A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:

(a)  is unlikely to need a program of support that:

(i)  is designed to assist the person to prepare for, find or maintain work; and

(ii)  is funded (wholly or partly) by the Commonwealth or is of a type that the Secretary considers is similar to a program of support that is funded (wholly or partly) by the Commonwealth; or

(b)  is likely to need such a program of support provided occasionally; or

(c)  is likely to need such a program of support that is not ongoing.

94(5)  In this section:

"training activity" means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

(a)  education;

(b)  pre‑vocational training;

(c)  vocational training;

(d)  vocational rehabilitation;

(e)  work‑related training (including on‑the‑job training).

"work" means work:

(a)  that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

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

Person not qualified in certain circumstances

94(6)  A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person’s incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment.

Note: a person who is receiving a disability support pension may be automatically transferred to the age pension if the person becomes qualified for the age pension (see subsection 48(3)).

BACKGROUND

2.      Ms A was born on 28 February 1946.  She has not worked since 2000 and, on 8 December 2000 was granted DSP.  Later she was transferred to Carer Pension on the basis that she was caring for her mother.

3.      On 15 July 2005, Ms A lodged another claim for DSP (T30). 

4.      On 19 August 2005, Ms A was examined by Dr Keen, HSA Senior Medical Adviser.  He found her to have multinodular goitre, breast carcinoma and supraventricular tachycardia with a total impairment rating of 10 points.  She was considered fit for full-time work and would benefit from retraining (T32).  As a result, her claim was rejected on 26 August 2005 (T33). 

5.      On 16 September 2005 Dr Keen reviewed the medical evidence but the previous findings were not altered (T36).  On 19 September 2005 Commonwealth Rehabilitation Service Australia (CSR) advised that she had declined to participate in a program with CRS (T37, p163). 

6.      The decision to refuse the DSP was affirmed on review and by the Social Security Appeals Tribunal (SSAT).

7.      On 26 June 2006 a report was prepared by Dr Brener, Ms A’s GP (T29).  She gave a combined impairment rating of 30 points and concluded that Ms A had a continuing inability to work.  

8.      On 1 August 2006 a Work Capacity/Participation Assessment report was prepared by Ms Shipton, APM Rehabilitation Consultant.  Ms A’s combined impairment rating was 10 points and she was considered fit for full-time work with retraining within 2 years.  

ISSUE BEFORE THE TRIBUNAL

9.      The issues to be determined with relation to this matter are:

a)Does Ms A have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables in Schedule 1B of the Social Security Act 1991 (“the Act”); and, if so,

b)Does she have a continuing inability to work because of the impairment because;

·     the impairment of itself prevents her from doing any work for at least 30 hours per week at award wages within the next two years; and either

·     the impairment of itself is sufficient to prevent her from undertaking educational or vocational training or on the job training during the next two years; or

·     such training is unlikely (because of the impairment) to enable him to do any work for at least 30 hours per week at award wages within the next two years.

CONSIDERATION PERIOD FOR ENTITLEMENT TO DSP

10. Schedule 2, clause 4 of the Social Security (Administration) Act1999 (“the SSA Act”) provides that the relevant time to consider a person’s entitlement is during the 13 weeks after the claim. Therefore, I had to consider if Ms A was entitled to the DSP by 14 October 2005.

CONSIDERATION OF THE EVIDENCE and FINDINGS

Did Ms A by 14 October 2006 have a physical, intellectual or psychiatric impairment of 20 points or more?

11.     I asked Ms A to specifically comment on her conditions as at the date of the application for her Disability Support Pension, and not her current symptoms.  This approach is consistent with that in Freeman v Secretary,Department of Social Security (1988) 87 ALR 506.

12.     Ms A was asked to rate her conditions in order of severity: her heart, her left arm, her thyroid and her depression, and she spoke about each of these in turn.  The relevant evidence is discussed below in the context of the Impairment Tables.

Supraventicular Tachycardia

13.     Ms A gave evidence of suffering heart palpitations.  She told me she is very careful to avoid situations that might bring on an ‘episode’ – situations that are sudden or cause over-stimulation.  For example she does not carry heavy shopping and lives a very quiet life.  For the most part the palpitations occur spontaneously, but sometimes she may get a warning such as heaviness in the chest. 

14.     She described how she had gone overseas with her mother but had only minimally participated in sightseeing in order to avoid too much excitement.

15.     She is comforted by living only five minutes from Royal North Shore Hospital (RNSH).

16.     In cross-examination Ms A agreed with the description of her condition by Dr Lau, in his report dated 12 April 2005, that “overall, she has been well except overall infrequent episodes of brief palpitations.” (T26, p94).  

17.     In a later report dated 26 April 2005, Dr Lau noted that Ms A had “not experienced palpitations over the last 3 weeks” (T27, p95).  In a further medical report dated 19 August 2005 Dr Keen wrote that whilst Ms A was prone to palpitations, they were relieved by medication in most cases (T32, p132).  In the previous 12 months she had 14 episodes of palpitations generally lasting about 5 minutes and occasionally needing hospital treatment (T32, p139).  When Dr Keen completed a file review on 16 September 2005, he did not change his previous finding that Ms A continued to have periodic palpitations which normally lasted less than 30 minutes (T36, p151).  In reference to medical evidence provided by Ms A, Dr Keen noted that only some eight emergency presentations for palpitations since 2001, and notes these to be of generally short duration (T36, p160).

18.     In her report of 27 June 2006 Dr Brener, Ms A’s GP, found an impairment rating of 5 points.  In her treating doctor’s report dated 27 June 2006, Dr Brener wrote that Ms A’s palpitations were intermittent and she has continuing medical treatment (T29, p98-99).

19.     Ms Shipton who provided the work capacity assessment report dated 1 August 2006, found the severity of the condition in the category of five with prolonged frequency being five to ten days per year.  This attracted a rating of five points under Table 21.

20.     I consider that it is appropriate to allocate five points in respect of supraventicular tachycardia under Table 21, the requisite table for this condition. Table 21 is for intermittent conditions in which the ratings are allocated by an average calculation of the severity, length and frequency of attacks. Ms A requires hospital treatment for around 50% of her attacks and is severely restricted on the remaining 50% episodes, to which the Tribunal accorded five points for the level of severity. The average period of attacks were held to be more than four hours, which the Tribunal termed as “prolonged” as in Table 21.2. Further Ms A is on average affected five out of ten days. Thus, I came to the conclusion that five points for this condition is the appropriate rating.

Left Arm Lymphoedema

21.     Ms A gave evidence of suffering problems with the drainage in her left arm following her surgery for breast cancer.  She wears a full arm ‘glove’ and uses her right arm wherever possible (to the point where she thinks she is over-using her right arm).  The ‘glove’ causes her some embarrassment and she rarely wears short sleeves.  She also avoids exposing her arm to sunlight as heat causes it to swell.  She takes no medication for the condition.  Although she can dress herself using both arms, she mostly uses her right arm for tasks such as washing her hair, vacuuming and bathing, and chopping. She only carries small parcels, and then mainly in her right hand and she drives an automatic car.

22.     Table 3 provides:

TABLE 3. UPPER LIMB FUNCTION

All upper limb problems are assessed under the upper limb Table (Table 3). Each arm is assessed separately. Determination of upper limb impairments must be based on a demonstrable loss of function.

Rating Criteria

NIL Can use dominant limb effectively and/or

Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.

FIVE Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function or manual handling.

TEN Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.

FIFTEEN Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes significant interference with hand function or manual handling.

TWENTY Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes significant interference with hand function or manual handling or

Unable to use non-dominant upper limb at all.

THIRTY         Unable to use dominant upper limb at all.

23.     In Dr Lovett-Iskandar’s medical report dated 16 January 2001 (T11) had written that Ms A had mild to moderate interference in the left upper limb function.  At that time the condition attracted a rating of five points under Table 3 (T11, p35).  In a further medical report dated 25 February 2003 (T19) Dr Lovett-Iskandar wrote that Ms A had moderate interference in manual handling with her non dominant hand and again rated the condition at five points under Table 3 (T19, p68).

24.     In her Treating Doctor’s Report dated 27 June 2005, Dr Brener, wrote that Ms A’s condition required specific garments to prevent pain and swelling (T29, p100) and that the condition required ongoing monitoring (T29, p101).  In her report of 27 April 2006, Dr Brener agreed with a rating of five points.

25.     At the time Ms A lodged the claim on 15 July 2005 her only treatment was having massages (T30, p113). 

26.     In a medical report dated 19 August 2005 Dr Keen, found a moderate effect on Ms A’s non dominant arm function and attributed a rating of five points under Table 3 (T32, p131).  Dr Keen remained of that view when he completed a file review on 16 September 2005. (T36, p152).

27.     Ms A told the SSAT that her arm was massaged daily, and that her self care was unaffected.  There was moderate interference with her ability to use her left arm but this was compensated by using her right arm (T2, p6).  

28.     In a work capacity assessment report by Ms Shipton, dated 1 August 2006, Ms Shipton found demonstrable loss of strength, mobility coordination, dexterity or sensation of non dominant upper limb, causing moderate functional impairment.  The appropriate rating was five points under Table 3 (Annexure 1).

29.     I consider that it is appropriate to allocate five points in respect of the left arm lymphoedema under Table 3.

Multinodal Goitre (thyroid condition)  

30.     Ms A said that even though the condition makes her tired she welcomes this because it has the effect of reducing the risk of over-exertion and thereby reducing the possibility of causing damage to her heart.  This condition causes a feeling – like something pushing on her throat.  She eats fresh vegetables and food with plenty of iodine. 

31.     She was reminded in cross-examination that unlike her heart condition and the effects of her breast cancer she had not considered this condition worthy of comment in her claim form.  In response, she said she had forgotten to mention the condition and she did not think she had to mention everything.  Furthermore she may have forgotten because she tires so easily.

32.     In his medical report of 19 August 2005 Dr Keen assigned a rating of nil points, the reason being that the condition was stable (T32, p130).  In his file review of 16 September 2005, Dr Keen did not alter his previous finding.  The condition was considered not to significantly affect Ms A’s ability to function and she was no longer on replacement therapy (T36, p150).

33.     Ms Shipton, in the work capacity assessment report dated 1 August 2006, considered the condition to have minimal impact on her ability to function and rated nil points. 

34.     In her report dated 27 April 2006, Dr Brener rated the condition at 10 points.  She noted that the condition is reviewed annually by an endocrinologist.  Although Ms A has been prescribed medication, that medication has aggravated Ms A’s heart condition and has been discontinued after consultation with her cardiologist.  The goitre causes discomfort, difficulty swallowing and sometimes a choking sensation.  This is in contrast to Dr Brener’s Treating Doctor’s Report dated 27 June 2005 wherein she described the condition as being generally well managed and causing minimal or limited impact upon Ms A’s ability to function.

35.     Table 19 sets out the rating criteria:

TABLE 19. ENDOCRINE DISORDERS

The effects of endocrine disorders eg. diabetes mellitus on other body systems eg. the vascular and visual systems should be assessed from the appropriate tables and added together with values from this table.

Rating Criteria

NIL Thyroid disease, Acromegaly, Cushing's disease, Prolactinoma, Diabetes Mellitus, Diabetes Insipidus, Parathyroid Disease, Paget's disease, Osteoporosis, Addison's Disease adequately controlled with hormone replacement and/or surgery and/or radiotherapy and/or therapeutic agents.

TEN Thyroid disease, Acromegaly, Cushing's disease, Prolactinoma, Diabetes Insipidus, Parathyroid Disease, Paget's disease or Osteoporosis which is incompletely controlled or treated eg. symptomatic Paget's disease, osteoporosis or other bone disease with pain not completely controlled by continuous therapy.

TWENTY Diabetes mellitus or Addison's Disease not satisfactorily controlled despite vigorous therapy as indicated by for example frequent hospital admissions, recurrent hypoglycaemic or hypotensive episodes and/or progressive end organ damage. 

The introduction to the Tables notes that functional impairment is to be assessed in the context of work abiilty.

36.     I have come to the view, on balance, that Ms A’s condition does not attract a rating of 10 impairment points, but, more appropriately, 0 points.  From the evidence it appears the condition is adequately controlled even without medication.  Although she is tired, this assists in her self-imposed restricition of limiting her exertion, which has been addressed in relation to her heart condition.  Furthermore, the condition, on the balance of the medical evidence, would not affect her work ability.

Depression

37.      In her claim form lodged on 15 July 2005 Ms A made no reference to suffering from depression or receiving medication for this condition (T30, p113). 

38.     Dr Keen made no reference to this condition in his medical report dated 19 August 2005 (T32, p133), nor did he do so in the file review of 16 September 2005 (T36, p153).  Ms A said that (notwithstanding her evidence that the condition can be ‘the main issue of the day’) she probably forgot to mention it to Dr Keen.

39.     In the work capacity assessment report by Ms Shipton, dated 1 August 2006 the condition was not rated because it had not been mentioned at the time of the original claim.

40.     In her Treating Doctor’s Reports of 30 January 2003 and 27 June 2005 Dr Brener made no mention of depression. Simlary, there was no mention of this condition in her medical certificates dated 23 September and 28 November 2005.  Ms A said she thought that a possible reason could be that Dr Brener was probably too busy to have recorded it.  In her report prepared in April 2006, however, Dr Brener rated the condition at 10 points, noting that Ms A requires regular weekly visits for counselling.  Anti-depressents have not been commenced.  She said the condition made Ms A tired and weepy and that she had presented with suicidal ideas on a number of occasions. 

41.     Ms A told me that her depression has become deeper and she is depressed by many things and sometimes she has not got out of bed until early afternoon.  She does however go out regularly for a cup of tea and a chat with her friends, who she describes as very caring.  She goes to her place of worship and pushes herself to face her fears.  She said she had seen a psychiatrist, but no report was provided.  She said he had recommended anti-depressants but she was worried about the effect this would have on her heart.

42.     It was unclear to me just when Ms A’s depression became as debilitating as she and Dr Brener, in her report of 27 April 2006 now describe.  As noted above the relevant period that I must consider is the 13 weeks following Ms A’s application, between 21 July  and 20 October 2005.  There is no mention whatever of the condition until Dr Brener’s report of 27 April 2006, notwithstanding several medical examinations, with several doctors, between the date of claim and that time. 

43.     Therefore I consider that by the relevant date the condition had not been fully diagnosed, treated and stabilised.  Only those conditions which fall into this category can be rated.  (per Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467 and Kitanovski and Secretary, Department of Family & Community Services (2004) AATA 301).  

Combined impairment

44.     Ms A’s overall impairment rating is therefore 10 points.  This falls short of the 20 points or more required under section 9(4) of the Act for eligibility to receive DSP. Failure to meet just one of the requirements results in a failure to qualify for that pension. It is therefore not necessary for me to consider whether she has a continuing inability to work.

DECISION

45.     The decision under review is affirmed. 

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed: L. Coady                 Associate

Dates of Hearing  10 August 2006
Date of Decision  25 August 2006
Applicant  Ms. A (self represented)
Advocate for the Respondent   Centrelink, Legal Services