Parker and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1828

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1828

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600567

GENERAL ADMINISTRATIVE DIVISION		)
Re		SHARON PARKER

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member P McDermott, RFD

Date3 October 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..............[Sgd]................................

Senior Member  

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant has physical, intellectual or psychiatric impairment – whether applicant has impairment rating of 20 points or more – decision under review affirmed

Social Security Act 1991 (Cth) s 94, Schedule 1B

Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444

REASONS FOR DECISION

3 October 2007                Senior Member P McDermott, RFD

Introduction

1.      I have to determine whether Ms Sharon Parker was entitled to a disability support pension at the time when she lodged a claim for that benefit. My decision will be based on the evidence of medical practitioners who have considered the medical conditions of Ms Parker affect her ability to work.

Prior Decisions

2.      On 13 March 2006 Ms Parker lodged a claim for a disability support pension. On 11 April 2006 the respondent made a decision that she was not qualified to receive the disability support pension.  The reason for this decision was that her impairment was not of 20 points or more under the Impairment Tables. On 30 May 2006 the authorised review officer of Centrelink affirmed the original decision. On 19 July 2006 the Social Security Appeals Tribunal decided to affirm the decision of the authorised review officer. Ms Parker has now made an application to this Tribunal to review the decision of the Social Security Appeals Tribunal.

Eligibility Criteria

3. The entitlement to a disability support pension is conferred by s 94 of the Social Security Act1991 (“the Act”).

4.      A person is qualified for a disability support pension if the person has a physical, intellectual or psychiatric impairment (s 94(1)(a)); and the person’s impairment is of 20 points or more under the Impairment Tables (s 94(1)(b)); and the person has a continuing inability to work (s 94(1)(c)). All of these requirements must be satisfied before a person is entitled to a disability support pension.

5. In considering whether, at the time of her application for a disability support pension, Ms Parker had a “continuing inability to work”, I am required to have regard to the definition in s 94(2) of the Act. That definition requires a claimant to have an impairment which is, of itself, sufficient to prevent a person from doing any work or training within the next 2 years. In considering whether a claimant has a continuing inability to work the Secretary cannot have regard to the factors in s 94(3) of the Act. The term “work” is defined to be work of at least 30 hours per week that exists in Australia even if that work is not locally accessible (s 94(5)).

6. I mention that there are other provisions in s 94 that Ms Parker satisfies. She is over the age of 16 years (s 94(1)(d)) and she is an Australian resident (s 94(1)(e)(i)).

Impairment Tables

7. The Impairment Tables which I must consider are in Schedule 1B of the Act.

8.      Paragraph 4 of the Introduction to the Impairment Tables provides that a rating is only to be assigned “after a comprehensive history or examination”. The paragraph states that for “a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”.

9.      Paragraph 5 of the Introduction to the Impairment Tables states that a condition must be considered permanent. That paragraph states that once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. The paragraph concludes with a statement that a condition will be considered to be fully stabilised if it is unlikely there will be any significant functional improvement, with or without reasonable treatment, within the next two years.

10.     Paragraph 6 of the Introduction to the Impairment Tables states that in order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider what treatment or rehabilitation has occurred and whether any treatment is still continuing or is planned in the near future.

Evidence of Applicant

11.     Ms Parker gave evidence in support of her application. I must say that she impressed by her sincerity. She sold her house in order to finance her college studies in aged care. These studies were completed in 2003 when she obtained employment. This employment ceased after a restructure of the employer organisation. This restructure was of some concern to her.

12.     Ms Parker is a person who strongly desires to obtain suitable employment and currently has some part-time employment. However, she however stated that her current symptoms include a lack of concentration and panic attacks. She outlined the medication she was taking.

13.     Ms Parker explained the reason she lodged the application for disability support pension was so she had a “safety-net”. She is a person who lives by herself and needs the assurance of having support.

Treating Doctor’s Reports

14.     Centrelink was provided with a Treating Doctor’s Report dated 13 March 2006 from Dr Payyapilly [T5]. Dr Payyapilly confirmed a diagnosis of Ms Parker having depression, insulin dependent diabetes and hypertension.

15.     Dr Payyapilly reported that the depression condition, for which she is prescribed medication, would be expected to persist for more than 24 months. Dr Payyapilly commented that the effect of that condition on the ability of the patient to function within the next 2 years was uncertain. The symptoms of this condition were reported to be “tiredness, constant anxiety and panics, difficulty to concentrate, sleep disturbance”. Dr Payyapilly noted that litigation was contributing to this condition.

16.     Dr Payyapilly reported that the diabetes condition was being treated by insulin and that Ms Parker was being reviewed by an endocrinologist. Dr Payyapilly reported Ms Parker suffered from diabetes related tiredness and that the current impact was expected to persist for 24 months and would fluctuate.

17.     Dr Payyapilly reported that significant improvement was expected of the hypertension condition. The impact of this condition on the ability of Ms Parker to function was reported as “equivocal”. Dr Payyapilly reported Ms Parker had recently lost her job and that litigation was affecting the hypertension condition.

Medical Assessment Reports

18.     On 28 March 2006 Ms Parker was assessed by Dr J Gurr; a medical adviser for Health Services Australia.

19.     Dr Gurr considered that a rating of 10 points was warranted for the diabetes condition. He noted that since 2004 this condition has been controlled by insulin. He also had regard to the fact that the blood sugar levels vary and that Ms Parker’s treating doctor was not happy with the stabilisation of this condition. Dr Gurr considered that Ms Parker had symptoms of “mild to moderate fatigue” as a result of the diabetes condition. He also noted that Ms Parker requires rest of 2 hours during the day and that she works on a computer and cannot stand for a prolonged period.

20.     Dr Gurr considered that a nil rating was warranted for the depression condition. He considered the depression condition to be “mild and regular symptoms”. He noted that Ms Parker can distract herself and attends a meditation and self-help group, visits friends, can attend to household chores, paints for enjoyment, rides a bike and walks on beaches.

21.     Dr Gurr considered that a nil rating was warranted for the hypertension condition. He considered that this condition was under good control through medication.

22.     Dr Gurr also considered that Ms Parker’s then work capacity to do work without any intervention was below 30 hours a week. Dr Gurr was of the view that Ms Parker could reach that capacity after 6 months. Dr Gurr thought that the type of work that would be available for Ms Parker was light, less skilled work such as retail sales, an office cleaner or a pharmacy assistant.

23.     Ms Parker in her evidence stated that she was unhappy with the assessment of Dr Gurr. Centrelink accordingly arranged for another Medical Assessment Report to be done by another practitioner.

24.     On 28 April 2006 Dr J Black completed the medical assessment report into the conditions of Ms Parker. Dr J Black conducted a face to face assessment of Ms Parker. In conducting this assessment it is evident that Dr Black was briefed with the treating doctor’s report as well as the report of Dr Gurr.

25.     Dr Black agreed with Dr Gurr’s assessment of the diabetes condition and assigned 10 points for that condition. Dr Black, however, differed from Dr Gurr in also assigning 10 points for Ms Parker’s depression condition.

26.     Dr Black gave the pancreatitis condition a nil rating as there was verification of subsequent or current attacks. Dr Black also reported that with intervention and counselling, Ms Parker may begin a graduated return to full-time work within 2 years.

Findings of Tribunal

27. I have considered the documented conditions of Ms Parker including her depression, insulin dependent diabetes and hypertension. I consider that these conditions each constitute an “impairment” for the purposes of the Act (s 94(1)(a)).

28.     I next have to consider whether Ms Parker’s impairment is of 20 points or more under the Impairment Tables (s 94(1)(b)).

29.     I have to consider the appropriate rating for the diabetic condition. Dr Black and Dr Gurr have concurred in their assessment of the diabetic condition and have each assigned 10 points for that condition.

30.     However, the diabetes condition has been reported on by Dr Daveron who is the Clinical Director of the Department of Diabetes & Endocrinology at the Gold Coast Hospital. His report of 21 November 2006, which was commissioned by Legal Aid Queensland, was admitted into evidence [ex. A2].

31.     Dr Davoren has comprehensively assessed Ms Parker’s diabetes condition. He is of the opinion that the condition warrants a rating of nil (0) points under Table 19. Dr Davoren remarked: “Her circumstances are stable, although there is room for improvement in her control”. I have relied on that rating assessment and assigned a nil rating under Table 19. I prefer the assessment of Dr Davoren who has expertise in the field of endocrinology and has been treating Ms Parker as a patient.

32.     I have considered what would be the appropriate rating for the depression condition. The depression condition of Ms Parker has been examined by Dr M Katz, a consultant psychiatrist. His report of 29 November 2006, which was commissioned by Legal Aid Queensland, was admitted into evidence [ex. A3].

33.     Dr Katz has reported that in his professional opinion, “Ms Parker did not have a permanent mental condition on the 13^th March 2006” [ex. A3, p. 7]. Ms Parker had lodged her claim for disability support pension on that date. Dr Katz also considered that “Ms Parker’s mental state was not fully stabilised on the 13^th March 2006 as she continued to be experiencing significant stressors in her life that were causing the reactive symptoms” [ex. A3, p.8].

34.     I have come to the conclusion that it is not possible to assign a rating to the depression condition of Ms Parker. Paragraph 5 of the Introduction to the Impairment Tables states that a condition must be considered to be permanent before a rating can be assigned to the condition.

35.     Another reason I cannot assign a rating to the depression condition is because of Paragraph 4 of the Introduction to the Impairment Tables, which provides that a rating can only be assigned for a condition which is ’stabilised’. Dr Katz has reported that the condition has “moderated with treatment” [ex. A3, p. 8].  Dr Katz also remarked that “her symptoms remain fluctuant and unstable but are expected to resolve without complication in the future” [ex. A3, p 6].

36.     Next I have to consider Ms Parker’s hypertension condition. This condition was reported on by Dr Gurr. Dr Gurr considered that a nil rating was warranted for the hypertension condition as it was under good control through medication. The hypertension condition was also considered by Dr Davoren who also gave the hypertension a nil rating. Dr Davoren did not consider that hypertension contributed to Ms Parker’s condition [ex. A2, p 2]. 

37.     Having regard to the inquisitorial function of this Tribunal, I have reviewed the material before me to ascertain whether there was any other impairment which should be assigned a rating. The only condition of Ms Parker that may warrant consideration is her eyesight condition. The material before me suggests that at the most she would be granted a rating of 5 points under Table 13 which relates to visual acuity [ex. A2, p. 2].

38. It is therefore my conclusion that Ms Parker’s conditions cannot be assigned a total impairment rating of 20 points or more under the Impairment Tables. This has the consequence that she does not satisfy s 94(1)(b) of the Act and so does not qualify for a disability support pension.

39. Another reason why I consider that Ms Parker does not qualify for a disability support pension is that she does not have a continuing inability to work in the terms of s 94(2) of the Act. In order for the Secretary to conclude that a person has an inability to work because of an impairment it is necessary that the criteria in both s 94(2)(a) and s 94(2)(b) be met. This is indicated by the presence of the distributive word “and” in s 94(2).

40.     In Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444 Drummond J made reference to the explanatory memorandum of the amendment which is now s 94(2)(a) of the Act. His Honour, at 452, formulated the test that I must now consider:

“As to s 94(2)(a)  Does the impairment of itself, ie, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant’s capacity for work that it prevents her from working anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining?”  

41.     There is evidence that Ms Parker can achieve a capacity to work for 30 hours a week within two years. Dr Gurr considered that Ms Parker could reach a capacity to do 30 hours a week work after 6 months. Dr Gurr thought that the type of work that would be available for Ms Parker was light, less skilled work such as retail sales, an office cleaner or a pharmacy assistant. Dr Black also reported that with intervention and counselling, Ms Parker may begin a graduated return to full-time work within 2 years. In November 2006 Dr Katz reported that Ms Parker could work for 30 hours a week [ex. A2, p. 8]. In fact, Ms Parker gave evidence before me that she was now undertaking part-time work.   

42. I have also considered the application of s 94(2)(b)(ii) of the Act. Drummond J in Pusnjak formulated the next test that I must consider (at 452):

“As to s 94(2)(b)(ii): If there is available training of a kind capable of fitting the claimant within a 2-year period for work which he cannot now perform, for want of the necessary skills or experience, but which he could perform with that retraining, is it likely, taking into account only the impediment his impairment may place on his ability to complete the training within that period, that he will acquire the skills or experience necessary to fit him for the new class of work within 2 years?” His Honour remarked, at [32], that an affirmative answer to this question would mean that “the applicant will not be eligible for the pension”.

43. Dr Katz has reported that Ms Parker had “the ability to undertake vocational on the job training which would be likely to enable her to work 30 hours per week at award wages within two years of 13 March 2006" [ex. A3, p. 9]. I therefore consider that with retraining, Ms Parker can acquire the skills or experience necessary to fit her for a new class of work within 2 years in terms of s 94(2)(b)(ii) of the Act and therefore she does not qualify for a disability support pension.

Decision

44.     I affirm the decision under review.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott, RFD.

Signed:         .....................................................................................
           S. O’Grady, Associate

Date of Hearing  7 August 2007
Date of Decision  3 October 2007
For the applicant  Self-represented
For the respondent                   Mr Amundsen, a departmental advocate