Portou and Secretary, Department of Employment and Workplace Relations

[2005] AATA 1164

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1164

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2005/427

GENERAL ADMINISTRATIVE DIVISION

Re:         DEMETRAKIS PORTOU

Applicant

And:       SECRETARY,

DEPARTMENT OF EMPLOYMENT   AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal:       Mr C. Ermert, Member

Date:             24 November 2005

Place:            Melbourne

Decision:      The decision under review is affirmed.

(sgd) C. Ermert

Member

SOCIAL SECURITY - claim for disability support pension – whether conditions are fully documented, diagnosed, investigated, treated and stabilised – whether there is a demonstrable loss of function

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

REASONS FOR DECISION

24 November 2005   Mr C. Ermert, Member

INTRODUCTION

1.      Mr Portou, the applicant, has a history of working long hours, doing heavy work for many years.  He also played football in the Essendon District League. At one stage he and his brother ran a business. His last job was as a console operator at a service station.  That business was sold in 2001/02 and Mr Portou was not employed by the new owner.  Since that time that Mr Portou has not worked and has stayed at home to care for his wife and children.  Mrs Portou works part-time.

2.      Mr Portou said that in the last four or five years everything was starting to catch up with him. Mr Portou said he suffers from the effects of arthritis, diabetes, gout and that his back is gone and his right knee and left ankle were starting to act up a bit . In 2004 Mr Portou’s physical conditions became severe.He now cannot work.  He cannot sleep.  His wife supports him and he feels useless.    He is under treatment by his doctor.  He has been seen by an orthopaedic surgeon who has said he cannot do anything for him.  Mr Portou is also undergoing physiotherapy treatment. 

3.      On 23^rd September 2004 Mr Portou lodged a claim for a disability support pension (DSP). This was rejected on the grounds that Mr Portou’s arthritis was not fully treated and stabilised and that his diabetes did not attract a 20 point impairment rating under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Tables) in Schedule 1B in the Social Security Act1991 (the Act).  Mr Portou appealed against that decision. On 15 March 2005 an Authorised Review Officer affirmed the decision. Mr Portou sought review of the decision  by the Social Security Appeals Tribunal (SSAT). On 28 April 2005.  the SSAT affirmed the previous decision. It found that Mr Portou’s conditions were not fully treated and stabilised and therefore they could not be assessed under the Tables.  This decision by the SSAT is the decision under review in this matter.

THE ISSUES

4. Qualification for disability support pension is contained in s 94(1) of the Act. The relevant issues in this matter are:

·   Does Mr Portou have a physical impairment?

·   Are his conditions diagnosed, treated and stabilised? if so

·   Do those conditions attract an impairment rating of 20 points or more under the Tables? and if so

·   Does he have a continuing inability to work as a result of those impairments?

5.      The standard of proof for the consideration of these issues is on the balance of probabilities.

Does Mr Portou have a physical impairment? (s.94(1)(a))

6. The first qualification for a disability support pension is contained in section 94(1)(a) of the Act. It requires that a person must have a physical, intellectual or psychiatric impairment. Mr Portou has claimed impairments resulting from the physical conditions of:

·     Osteoarthritis,

·     Diabetes,

·     High blood pressure,

·     High cholesterol and

·     Gout.

7.      Medical reports from his previous treating doctor, Dr Galtieri, and a Health Services Australia Ltd examining medical adviser, Dr Ching, confirm the diagnoses of these conditions and report on the impairment arising from the conditions.  There is no dispute from the respondent regarding the conditions.

8.      I accept that Mr Portou does have  physical impairments arising from the listed conditions and find accordingly.

Are Mr Portou’s conditions diagnosed, treated and stabilised? (Schedule 1B)

9. The second qualification is contained in s 94(1)(b) of the Act which requires that the person’s impairment be assessed at 20 points or more under the Tables. Before a condition can be assessed under the Tables, however, the Introduction to Schedule 1B provides that the conditions must be fully documented, diagnosed, investigated, treated and stabilised. A condition may be considered fully stabilised if it is unlikely that there will be any significant improvement, with or without reasonable treatment, within the next two years.

10.     These criteria are now applied to each of the conditions.

Osteoarthritis

11.     Extracts of medical reports relevant to the condition of osteoarthritis are:

·     Dr McCorkell, Mr Portou’s current treating doctor, in a report dated 19 July 2005 says (Exhibit A1) – He did have a physical impairment at 11 November 2004. This is a permanent physical condition and he is currently under specialist care in order to gain better control of his condition.

·     Dr Galtieri, his previous treating doctor, in a report dated 21 September 2005 (T4) says– Arthritis … Pain in neck, left shoulder lower back, right knee, left ankle with restriction in normal movements and pain with weight bearing. Confirmed on X Rays … (Current treatment) OTC analgesics when pain is intolerable … (Future/planned treatment) Same as above.

·     Dr Ching, Health Services Australia Ltd Examining Medical Adviser, in a report dated 18 October 2004, says – Generalised osteoarthritis & pains … not fully treated and stabilised … He is still receiving physiotherapy and seeking secondary specialist opinions.

12.     During her cross-examination of Mr Portou in regard to his osteoarthritis condition Ms K Paul, an advocate for the respondent, asked him whether his doctor proposed further treatment.  Mr Portou stated He told me to go to the Royal Melbourne Hospital, put my name down for treating, and that is a two year waiting list apparently (trans p.11).  When asked whether he had put his name down, Mr Portou said No.  I am trying to find a better way, a quicker way to have a look at it (trans p.11).

13.     From the evidence I note that Mr Portou is under specialist care to gain better control of this condition, that he is still trying to find a better way to treat the condition and that Dr Ching specifically stated that the condition was not fully treated and stabilised.  On that basis I find that Mr Portou’s condition of osteoarthritis is not fully treated and stabilised and therefore cannot be assessed for an impairment rating under the Tables.

Diabetes

14.     Extracts of medical reports relevant to the condition of diabetes are:

·     Dr Galtieri,   says – Diabetes … Dietary modification. Hypoglycaemic medications. … Continue current treatment.

·     Dr Ching,  says Diabetes Mellitus adequately controlled.

·     Dr McCorkell,  says His diabetes is unstable with consistently high blood sugar readings.  He experiences physical fatigue poor concentration and sleepiness.  His diabetic control is poor and the use of insulin may be considered in his management.

15.     Ms Paul asked Mr Portou a series of questions relating to his diabetes.  He stated that he had been put on stronger tablets, that his readings regularly checked at between 23, 26 and 29 on the scale of diabetes , and that the next step in medication is insulin.  He is trying to avoid insulin because once started he would be on it the rest of his life.  When asked if the doctor had told him that he would need insulin, Mr Portou replied He has told me. He has put me on another round of tablets.  I think I am taking about three different types of tablets for the diabetes … at the moment they are trying to treat me with tablets but it is not working.  Last time I was there, I was on 29 points, whatever – and the doctor said to me, why are you still walking, you should be in the grave (trans p.11).

16.     Mr Portou’s evidence is that his diabetes condition is not yet under control in that his blood sugar levels are fluctuating to severe levels.  The condition is not fully treated in that the further option of insulin has not yet been tried.  The evidence of Mr Portou is in contrast to the medical reports, but it was delivered clearly and emphatically and I have no reason to doubt its accuracy.  On the basis of Mr Portou’s own evidence and that of Dr McCorkell I find that his condition of diabetes is not fully treated and stabilised and therefore can not be assessed for an impairment rating under the  Tables.

High blood pressure and high cholesterol

17.     Mr Portou’s evidence in regard to his hypertension and high cholesterol was that he was taking the prescribed tablets but 99 per cent of the time he does not feel too good.  He becomes exhausted walking up and down the aisles at the supermarket.  He has not told his doctor that he does not feel good.

18.     The only notes regarding these conditions in any of the medical reports are contained in Dr McCorkell’s report; In regards to his hypertension weight condition osteoarthritis and patellar femoral syndrome he states he is breathless on minimal exertion eg walking 2-3 ailes (sic) of the Supermarket, unable to mow the lawn, garden.  It is not possible from this report to separate the effects of hypertension from those related to his weight condition, osteoarthritis and patellar femoral syndrome. 

19.     The form of the Treating Doctor’s report completed by Dr Galtieri (T4) contains the following instructions:

·     Instructions for the doctor … Completing this report … In this report you will be asked to provide clinical details of the patient’s medical conditions. Please complete all the required parts of the form.

·     Part A Clinical Details

-  Does the patient have one or more medical conditions which have a SIGNIFICANT impact on their ability to function …

-  Give details about the conditions which have a significant impact on the patient’s ability to function …

20.     Dr Galtieri went on to complete Part A in regard to the conditions of diabetes and arthritis / osteo and gouty but did not report on high blood pressure or high cholesterol. 

·   Part B of the same form (T4) asks the doctor Does the patient have any other medical conditions which are generally well managed and cause minimal or limited impact on ability to function?.  Dr Galtieri listed only the condition of hyperlipidaemia.

21.     Similarly the form completed by Dr Ching (T5) contains instructions that it be completed for all assessments, with each condition to be listed separately.  Dr Ching lists and considers only the conditions of generalised osteoarthritis and pains and diabetes mellitus and makes no mention of high blood pressure and high cholesterol; even though they are clearly shown in the conditions claimed by Mr Portou.

22.     Thus I have no medical evidence regarding Mr Portou’s claimed conditions of high blood pressure and high cholesterol from which I can draw any firm conclusions.  It would have been of assistance in this matter if the reports of the treating doctor and the examining medical adviser had been completed with regard to each condition claimed by the applicant.

23.     The only specifically relevant evidence I have is that from Mr Portou himself, where he says that although he takes his tablets he still does not feel good, but he has not told his doctor about this situation.  From this I conclude that these conditions are not yet fully investigated and treated and therefore I find that the conditions of high blood pressure and high cholesterol cannot be assessed for an impairment rating under the Tables.

Gout

24.     Dr Galtieri refers to gout in his medical report (T4) in which he combined gout in the condition of arthritis/osteo and gouty.  He did not differentiate the gout from the arthritis in the treatment sections of the report, but in the section on impact on the ability to function he stated attacks of gout can be disabling.

25.     Dr Ching did not make specific mention of gout in his report (T5) but may have included it in the condition he described as Generalised osteoarthritis and pains.

26.     At the hearing Mr Portou gave no evidence relating to his gout condition.  However, he apparently did so at the SSAT hearing.  The SSAT’s decision, in the section headed Information Provided at the Hearing, contains the following:  He has been taking medication since about 1996 and 1997 for gout.  The gout affects his left big toe, however since he has been on medication he has had no trouble at all, apart from minor pain.

27.     On the basis of the evidence given to the SSAT, I find that Mr Portou’s condition of gout can be considered as fully diagnosed, treated and stabilised.

Conclusion regarding the claimed conditions

28. From the above considerations I have found that the conditions of arthritis, diabetes, high blood pressure and high cholesterol are not fully investigated, treated and stabilised. These conditions are therefore not eligible to be assessed for an impairment rating under Schedule 1B of the Act.

29.     The condition of gout is found to be fully diagnosed, treated and stabilised and is therefore eligible to be assessed under the schedule.

Do Mr Portou’s conditions attract an impairment rating of 20 points or more? (s 94(1)(b))

30.     As Mr Portou’s arthritis, diabetes, high blood pressure and high cholesterol are not eligible to be assessed for an impairment rating, no rating can be attributed to those conditions.

31.     In regard to his gout Mr Portou’s evidence to the SSAT indicates that he is suffering no demonstrable loss of function as a result of this condition.  As a result, I find that Mr Portou’s condition of gout attracts a nil impairment rating.

32.     Therefore, I find that none of the claimed conditions can satisfy s 94(1)(b) of the Act as the impairment is not assessed at  20 points or more under the Tables.  This means that the second qualification for disability support pension is not met.

Does Mr Portou have a continuing inability to work? (s 94(1)(c))

33. Sub-sections (a), (b) and (c) of s 94(1) are connected with the word and. Therefore s 94(1) of the Act requires the provisions of each of the sub‑sections 1(a), (b) and (c) to be met in order for a person to qualify for a disability support pension. If the provisions of any one of the sub-sections are not met then it is not possible for a person to qualify for this pension. In this case I have already found that the provisions of sub-section (b) are not satisfied in that the claimed conditions do not have a rating of 20 points or more under the Tables. This means that the provisions of s 94(1) cannot be met regardless of any consideration of the third area of qualification relating to the person’s inability to work. On that basis I have no need to consider this element of the Act, I have not done so and I make no finding on it.

FINDINGS

34.     I find that Mr Portou suffers from the conditions of arthritis, diabetes, high blood pressure, high cholesterol and gout as claimed.

35. Mr Portou’s conditions of arthritis, diabetes, high blood pressure and high cholesterol cannot be described as fully investigated, treated and stabilised. The provisions of the Introduction to Schedule 1B make clear that impairment ratings for conditions that are not fully investigated, treated and stabilised cannot be assessed.

36.     Although Mr Portou’s condition of gout is found to be fully investigated, treated and stabilised he is suffering no demonstrable loss of function as a result of this condition.   Therefore, I have found that Mr Portou’s condition of gout attracts a nil impairment rating.

37.     None of the claimed conditions has an impairment rating of 20 points or more.  Accordingly, I have found that the provisions of s 94(1)(b) are not satisfied.

38. As all the qualifications of s 94(1) are not met, I find that Mr Portou does not qualify for the disability support pension.

39.     This finding in no way diminishes the recognised effects of Mr Portou’s conditions.  There is no disagreement by the respondent regarding Mr Portou’s physical condition.  The difficulty with this claim is that the most serious conditions have not yet been fully investigated, treated and stabilised.   Accordingly, Ms Paul advised Mr Portou that should he reach such a stage of treatment he would be eligible to reapply for a disability support pension.

DECISION

40.The reviewable decision of the SSAT dated 28^th April 2005 is affirmed.

I certify that the forty [40] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr C. Ermert, Member

(sgd)     Angela Dennis
            Clerk

Date of Hearing:  4 October 2005

Date of Decision:  24 November 2005
Advocate for applicant:                Mr D. Portou (self represented)

Advocate for the respondent:       Ms K. Paul, Centrelink