Padovan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 1096

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1096

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/6048

GENERAL ADMINISTRATIVE DIVISION		)
Re		NADA PADOVAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member M D Allen

Date27 November 2008

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing in this matter, the Decision under review is AFFIRMED

....................[sgd]........................

M D Allen

Senior Member

CATCHWORDS

SOCIAL SECURITY – whether Applicant qualified for Disability Support Pension – assessment of degree of incapacity occasioned by Applicant’s asthma – decision under review affirmed.

LEGISLATION

Social Security Act 1991 – s 94, Schedule 1B

Social Security (Administration) Act 1999 – Schedule 2

REASONS FOR DECISION

27 November 2008 Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and the Respondent of a copy of the decision that was in fact made, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish to them a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3.      The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reason for the Tribunal’s decision.

MR ALLEN: By Application made on the 11^th day of December 2007, the Applicant sought review of a decision of the Social Security Appeals Tribunal, affirming a prior determination that the Applicant was not entitled to the grant of the Disability Support Pension. The criteria for the grant of the DSP are set out in subsection 94(1) of the Social Security Act 1991. Namely, a person is qualified for a Disability Support Pension if they have a physical, intellectual or psychiatric impairment, which amounts to 20 points or more under the Impairment Tables and has a continuing inability to work. The Impairment Tables referred to above are found at Schedule 1B of the Social Security Act 1991.

Schedule 2 to the Social Security (Administration) Act 1999, provides inter alia that this Tribunal can only consider a person’s entitlement to a DSP for the period of 13 weeks, commencing on the date the claim is made. In this case, the period under review is from 5 March 2007 to 5 June 2007.

The Applicant suffers from various incapacities. In these proceedings, the Respondent did not challenge the impairment points, allocated by the Social Security Appeals Tribunal, to the Applicant’s lumbar condition; 10 points, and her carpal tunnel syndrome; 5 points. The Applicant has been diagnosed as suffering from a psychiatric disorder, namely, dysthymia. In a report dated 19 February 2007 the Psychiatrist Dr Kecmanovic states inter alia:

“ She has not seen a psychiatrist, nor has she taken psychotropic medication. The patient presents with the symptoms of dysthymia. I provided counselling to her and initiated her on Nortriptyline; 50 to 75. I will be seeing her in five weeks time.”

Paragraph 4 of the Introduction to the Impairment Tables, at Schedule 1B to the Social Security Act , reads inter alia;

For a rating to be assigned, the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.

What is clear from the report of Dr. Kecmanovic is that during the assessment period, the Applicant’s psychiatric condition could not be regarded as treated and stabilised. Consequently, no impairment points could be allocated.

The real issue between the parties is, however, the assessment of the degree of incapacity, occasioned by the Applicant’s asthma. It is not in dispute that the Applicant’s asthma is a permanent condition, which has been diagnosed, treated and stabilised, in the context that it may fluctuate. It is unlikely that there will be any significant functional improvement, with or without reasonable treatment within the next two years. In his report of 18 June 2008, Associate Professor Thomas refers to tests conducted by a Respiratory Physician Dr. Anthony Johnson; see Exhibit A2. Of that test and later test of 19 May 2008, Professor Thomas says:

“A lung function test was performed on 7 February 2008 in Dr. Anthony Johnson’s rooms and includes all the relevant data relating to pre and post bronchodilator measurements ad was being performed by a recognised respiratory technician. The FEV1 for bronchodilator was 2 litres, 82 percent of predicted normal. While her vital capacity was 120 percent of predicted, ie, that is more than that predicted for a normal person. There was a modest response to bronchodilator increasing the FEV1 to 2.28 litres. The large FVC makes the value of the FEV1 over FVC. FEV1, FVC, expressed as a percentage, which we use to assess the degree of airway obstruction, rather more noticeable that it would otherwise be.

Overall, however, there is a modest response to the bronchodilator and the shape of the flow volume curve indicates mild airway obstruction. The carbon monoxide gas diffusion capacity is normal, although, when corrected, for the size of the lungs, there is a modest reduction. This may be compatible with combined chronic obstructive pulmonary disease, secondary to her smoking history together with a degree of mild asthma.

In conclusion, this test shows mild airway obstruction, suggestive of mild asthma. A lung function test was performed on 19 May 2008 at Liverpool Hospital Pulmonary Function Laboratory by a qualified respiratory scientist. Once again, the total vital capacity, the maximum breath that once can take and breathe out in one go, is above what we would predict for somebody of her age, gender and weight at 113 percent. While the amount that can be expired in the first second, the FEV1 is 2.03 litres, 63 percent of predicted. This indicates a degree of airway obstruction.

Again, the elevated FVC makes the obstruction a little more noticeable than it would be otherwise, if her FVC was normal. As in the previous lung function test, performed in 2008, there was a modest increase in the FEV1 from 2.03 to 2.29, but there is also an increase in the FVC, which is a little unusual in pure asthma. Such a pattern can be seen in subjects who do not cooperate to perform a full effort, prior on request for spirometry. The degree of airway obstruction, in this case, would be classified as mild. Once again, there are similar values in the vital capacity, as noted previously.”

Professor Thomas concludes his report by stating:

“In my opinion, Table 2 should be used as this is objective evidence and as her FEV1 and FVC are greater than 80 percent of predicted, the rating is 0 percent, as previously assessed by Centrelink. In summary, it would appear that Nada Padovan has a mild degree of asthma or chronic obstructive pulmonary disease, which, from the near normal lung function tests, should cause minimal disability. This assessor would expect that from the respiratory assessment, she should be able to undertake sedentary work or that which involved mild to moderate exertion.”

Neither Dr Johnson nor Professor Thomas was called in these proceedings. Dr Johnson concluded that the Applicant has quite significant asthma and that her FEV1, FVC ration was reduced to 60 percent. This would give the Applicant an impairment of 25 points under Table 2.1 of the Impairment Guide.

There is, therefore, apparently a difference between Professor Thomas and Dr Johnson as to the degree of impairment exhibited by the Applicant. Professor Thomas had access to Dr Johnson’s measurements. Professor Johnson refers to an FEV1, FVC ratio and Professor Johnson deals with this. I also note that it is not the FEV1, FVC ratio that is measured for the purposes of Table 2.1 of the Impairment Tables, but one or the other.

Compare the introduction to Table 2 of the guide, which reads inter alia;

The FEV1 is usually selectively reduced in chronic airflow limitation and the FVC in restrictive lung disorders. The FEV1 should be used on preference to the FVC, where there is a discrepancy between the two in chronic airflow limitation and, as stated under Table 2.1, it is between predicted FEV1 or FVC.

I am therefore satisfied in the absence of either medical practitioner being called, that any discrepancy between Dr Johnson and Professor Thomas is more apparent than real, and that Professor Thomas correctly applied the Impairment Tables, whereas Dr Johnson was not required to address Table 2, for the purposes of his report.

I therefore accept Professor Thomas’s report and find that the degree of impairment, occasioned by the Applicant’s asthma is nil. The result of that finding is that the Applicant’s degree of impairment does not equate to 20 points under the Impairment Tables in Schedule 1B to the Social Security Act 1991. Consequently, she does not qualify for a Disability Support Pension.

I would add that even if I had found the Applicant’s impairment did equate to 20 points in the absence of any evidence to the contrary, noting in particular the Applicant was not called, I would have accepted the job capacity assessor’s report of 21 May 2007, which stated that the Applicant had a capacity to work 15 to 22 hours a week.

The Decision under review is affirmed.

END OF EXTRACT  [12.55 pm]

I certify that the preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:         ................................[sgd]................................................
M. Corcoran             
Associate

Date/s of Hearing  27 November 2008
Date of Decision  27 November 2008        
Assisting the Applicant              Mr. A. Zivotic
Solicitor for the Respondent     Mr. J. Larcombe