QX2006/20; Secretary, Department of Employment and Workplace Relations and
[2007] AATA 1531
•10 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1531
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600799
GENERAL ADMINISTRATIVE DIVISION ) Re Secretary, Department of Employment and Workplace Relations Applicant
And
QX2006/20
Respondent
DECISION
Tribunal Deputy President P E Hack SC and Dr J B Morley RFD, Member Date10 July 2007
PlaceBrisbane
Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal made 21 September 2006.
.................Signed...............
Deputy President
CATCHWORDS
SOCIAL SECURITY – disability support pension – hepatitis C, depression, dysmenorrhoea – whether conditions were fully treated and stabilised – whether respondent had continuing inability to work – respondent has impairment rating of at least 20 points and has continuing inability to work – decision under review affirmed
Social Security Act 1991 – ss94(1),(2),(5)
Social Security (Administration) Act 1999 – s4(4)
Department of Social Security v Pusnjak (1999) 56 ALD 444
REASONS FOR DECISION
10 July 2007 Deputy President P E Hack SC and Dr J B Morley RFD, Member Introduction
1.This is an application by the Secretary of the Department of Employment and Workplace Relations. The Secretary seeks a review of a decision of the Social Security Appeals Tribunal made on 21 September 2006. That decision set aside an earlier decision of Centrelink that the respondent did not qualify for a disability support pension and substituted a decision that the respondent was qualified at the time of her original claim in January 2005.
2.The hearing was conducted in private and orders made to ensure anonymity for the respondent in order to protect her from publication of matters in her childhood. On 17 November 2006, on the application of the Secretary, implementation of the decision of the Social Security Appeals Tribunal was stayed until the hearing and determination of this application.
Legislation
3.By virtue of s 94(1) of the Social Security Act 1991[1] (the Act) a person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the impairment attracts a rating of 20 points or more under the Impairment Tables that comprise Schedule 1B to the Act (the Tables); and
(c)the person has a continuing inability to work (or is participating in a supported wage system); and
(d)the person is aged 16 years or more; and
(e)the person satisfies residency requirements.
[1]The effect of the transitional provisions in the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 is that the amendments made by that Act are not relevant in the present case.
4.These requirements must be satisfied on the day of lodgement of the claim, in this case 21 January 2005, or within 13 weeks thereafter[2]. In the present case the matters in paragraphs (a), (d) and (e) are not in issue. What is in issue is the extent of the respondent’s impairment, by reference to the Tables, and the question of her continuing inability to work.
[2] See s 4(4) of Schedule 2 to the Social Security (Administration) Act 1999.
5.It is necessary, as well, to have regard to certain provisions in the Tables. The opening paragraph of the Introduction to the Tables (the Introduction) explains that they:
“…are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work.”
This purpose is sought to be achieved by assigning ratings in proportion to the severity of the impact of the medical condition on normal function.
6.The Introduction includes the following:
“4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5. The condition must be considered to be permanent. 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. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
· what treatment or rehabilitation has occurred;
· whether treatment is still continuing or is planned in the near future;
· whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
· treatment that is feasible and accessible i.e., available locally at a reasonable cost;
· where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.”
7.The other matter in issue here is that of a continuing inability to work. That expression is given meaning by s 94(2) of the Act which is in these terms:
“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.”
8.Work in this context means work that is for at least 30 hours per week at award rates or above and that exists within Australia[3].
[3] See s 94(5) of the Act.
9.Subsection 94(2) is still in the form that it was when it was considered by Drummond J in Secretary, Department of Social Security v Pusnjak[4]. In the circumstances of the present case it is useful to set out a lengthy extract from his Honour’s judgement[5]:
“Effect will be given to the intention of legislation if the secretary asks the following questions as he works his way through the various paragraphs of s 94(2):
As to s 94(2)(a): Does the impairment of itself, i.e. 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 him from doing work available anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skill and experience, capable of performing, without the need for retraining?
If so: As to s 94(2)(b)(i): Is the impairment of itself sufficient to prevent the particular pension claimant undertaking, i.e. commencing, during the next 2 years, retraining of a kind that is available to him and which would fit him for a class of work available in Australia that he currently lacks the skills or experience to perform, even if unimpaired?
If so, the applicant will satisfy the secretary that he has the requisite continuing inability to work. If not, the secretary must proceed to consider s 94(2)(b)(ii) and ask: 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 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 that 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?”
[4] (1999) 56 ALD 444.
[5] Note 4 above, at 452, para [32].
The Issues
10.The Secretary accepts that the respondent suffered from three conditions that need be considered – hepatitis C, depression and dysmenorrhoea. The case that the Secretary now advances[6] is that in January 2005, and in the period of 13 weeks thereafter, these conditions were temporary. The conditions answered that description, it is said, because they had not been fully treated and stabilised. In addition, the Secretary puts in issue the ratings assigned to these conditions by the Social Security Appeals Tribunal if this Tribunal does not accept his primary submission.
[6] The case for the Secretary at hearing seemingly withdrew a concession made in the Secretary’s Statement of Facts and Contentions (Exhibit 8) that it had been open to the Social Security Appeals Tribunal to assign an impairment rating of 10 points to the respondent’s depression.
11.Moreover, says the Secretary, the respondent did not have a continuing inability to work.
The Medical Evidence
Hepatitis C
12.The respondent’s early personal circumstances were most unfortunate. She was abused by a close family member. As seems to be common in such
cases she was unable to obtain family support. She became depressed and withdrawn and was eventually admitted to the Child and Family Therapy Unit at the Royal Children’s Hospital where she remained an inpatient for significant times over a period of 12 months. Eventually the fact of the abuse became known but it caused her to become estranged from other members of her family. As a consequence of the abuse the respondent adopted a “street” lifestyle that exposed her to considerable personal risk and further trauma. She commenced using illicit drugs and abusing alcohol. She was assaulted in circumstances that lead to her contracting hepatitis C in 1998.
13.In about 1998 the respondent commenced living with her grandparents with whom she continues to reside.
14.It will aid understanding of the particular issues that arise in this case if we observe at the outset that patients with a history of depression present particular difficulties for hepatitis C treatment because a significant side effect of the treatment is exacerbation of any existing anxiety/depressive disorder. For this reason, a formal psychiatric evaluation of the patient (and treatment if required) was sought before commencing drug treatment. These matters have significance in the respondent’s case because she had a significant history of anxiety/depression disorder.
15.The respondent was first seen at the Liver Clinic of the Royal Brisbane & Women’s Hospital (RBWH) in 2001. The medical opinion at that time was that she was in the very early stages of the condition and that no treatment was warranted as she would not qualify for the drug therapy.
16.In January 2005, when the respondent made her application for disability support pension, her general medical practitioner was Dr Wruck. The views of Dr Wruck on the respondent’s conditions are set out in three documents before us – a treating doctor’s report dated 28 January 2005 and two reports prepared for the purposes of the hearing dated 6 February 2007 and 21 February 2007.
17.We should also make mention that the later of the February 2007 reports is a revision of the earlier report; the revisions reflect amendments made by Dr Wruck after what she describes as “more detailed review of the ‘Explanatory Notes’ for the Tables”. It was, we consider, quite proper for Dr Wruck to undertake a revision in these circumstances given that the terms used in the Tables have a meaning affected by the context in which they are used in the Guide. Dr Wruck was not available for cross-examination at the hearing for reasons connected with her own health. It is unfortunate that that was so, however significant notice was given to the Secretary of her likely unavailability and the Secretary had the opportunity of asking Dr Wruck, in advance of the hearing, any question that he regarded as necessary or appropriate.
18.In the report dated 28 January 2005 Dr Wruck made mention of the respondent’s earlier consultation with the Liver Clinic and indicated that she intended to refer the respondent to that Clinic again for the purpose, we infer, of ascertaining whether any treatment was desirable and available. Dr Wruck’s report made it plain that the question of future treatment was dependant upon the specialist opinion of the Liver Clinic. In her February 2007 reports Dr Wruck comments upon the question of whether, as at January 2005, the respondent’s hepatitis C condition had been fully treated or stabilised. The Secretary places particular reliance upon the opinion, expressed in the earlier of the two reports, that the hepatitis C had not been fully treated or stabilised at that time. We consider, however, that that opinion had not been fully informed about the context in which that expression is used in the Introduction[7].
[7] See paragraph 6 above.
19.In her subsequent report, having had her attention drawn to that context, Dr Wruck said this:
“It is not unreasonable to predict that [as at 21 January 2005] 2 years would have been insufficient time for [the respondent’s] depression to be assessed (due to great difficulties in accessing affordable psychiatric review) and then considered sufficiently stabilised so that Hep C treatment could be both approved and commenced AND for this treatment to have reached the stage whereby it could have led to ‘significant functional improvement’ within that 2 years.”
20.The respondent was seen by Dr Mark McCullen at the Liver Clinic on 4 July 2005. Dr McCullen is a specialist hepatologist with vast experience in the treatment of viral hepatitis. We have two reports from Dr McCullen – one dated 30 November 2005 and the other dated 25 January 2007. The earlier report was addressed to the respondent’s general practitioner and makes reference to “further monitoring” by way of a CT scan in six months. The report continues:
“Again I had a discussion with [the respondent] about the possible treatment for her hepatitis C. I explained that previously the PBS required a pre-treatment liver biopsy but it looks as though they will be removing this requirement. We will have a formal decision from them in April next year.
I do, however, have concerns about treating [the respondent] because of her ongoing depression. She is currently on Efexor. I explained … that we would require a formal psychiatric opinion and further treatment if necessary. I would be very grateful if you could refer her to a psychiatrist of your choice to obtain a formal opinion as to whether [the respondent] would be a candidate for combination therapy with PEGylated Interferon and Ribavirin because one of the possible side effects is significant exacerbation of depression.”
21.Eventually in 2006 the requirement of a pre-treatment liver biopsy was removed and the respondent was able to be assessed by a psychiatrist. The respondent started drug treatment for hepatitis C on 3 October 2006. The treatment was completed in April 2007 and, according to the respondent, the prognosis looks good. Dr McCullen commented on the question of “permanent” impairment in this way in his 25 January 2007 report:
“The definition of permanent is very difficult in this situation given that [the respondent’s] hepatitis C had not been treated and stabilised and we did not know what the decision from the PBS would be with regard their review of treatment requirements in 2006. In my professional opinion her condition clearly was not being fully treated on 21st January 2005 because of the reasons listed above.”
22.We have, as well, the benefit of the opinion of Dr Gregory Rolls, a medical practitioner with vast experience in considering the medical issues that arise in cases such as the present. Dr Rolls is employed by Health Services Australia, an organization contracted by Centrelink to undertake medical assessments on persons in the position of the respondent. He has been undertaking this type of work since about 1992. Dr Rolls saw the respondent, at the request of Centrelink, in July 2005. Whilst he was of the view that the respondent’s hepatitis C condition had not then stabilised he was of the view that “by the time she has treatment and recovers it will be almost 2 years”. He said, as well:
“The functional impact of this condition is unlikely to change in the next two years. In this case I regard it as permanent.”
23.The Secretary relies, as well, upon a job capacity assessment report prepared in March 2007 by Mr Philip Andrews, a psychologist employed by Centrelink. Mr Andrews did not see the respondent but he reviewed the variety of medical reports and opinions contained within the Centrelink file. Mr Andrews expressed the opinion that the respondent’s hepatitis C condition was temporary and had an expected duration of 12 months from January 2005 to January 2006.
24.We have some considerable difficulties with the opinions expressed by Mr Andrews. We accept that Mr Andrews may be in a position to comment, from the perspective of his professional discipline, on issues regarding capacity and limitations to work. But the report by Mr Andrews purports to express opinions on matters of medical expertise, for example the likely duration of medical conditions. As the medical member of the Tribunal observed in the course of the hearing that task is fraught with difficulties for those with medical training and clinical experience. It is perplexing to us how Mr Andrews, who has neither medical training nor clinical experience, could be put forward by the Secretary as someone with the qualifications or capacity to express the opinions in this area that he did. It is notable that the policy Guide issued to assist decision-makers in interpreting the contents of the Tables says in relation to the question of determining permanent impairment that
“medical judgement is usually required to evaluate the available medical evidence and determine if the permanence criteria have been satisfied” [our emphasis].
25.Our view of the worth of his evidence was not improved with his concession, on questioning by the Tribunal, that he had no basis in either professional training or experience, on which to express an opinion of the “expected duration” of the respondent’s medical conditions.
26.Moreover, to the extent that Mr Andrews purports to analyse the medical evidence in order to express an opinion on whether the respondent’s conditions were, as at January 2005, temporary or permanent, he is either expressing opinions beyond his expertise or seeking to swear the issue. We find his opinions on these matters to be of no assistance to the task we are required to perform. We propose to examine the temporary/permanent question by reference to the medical evidence available to us and having regard to the terms of the Introduction.
27.It is important to bear in mind that “permanent” is not used in the Introduction in its literal sense; it is used in the sense of an impairment that is likely to last for more than two years. Paragraph 6 of the Introduction seems to us to provide the key to the present case, at least so far as the hepatitis C condition is concerned. By reference to the matters that require consideration in paragraph 6 it is possible to say that as at January 2005,
·no treatment or rehabilitation had occurred;
·no treatment was planned in the near future except to the extent that referral to the Liver Clinic could be regarded as treatment; and
·the conventional drug therapy was not likely to lead to significant functional improvement within the next 2 years because of constraints on its availability that are described in the evidence of Dr Wruck and Dr Rolls.
28.It is proper to have regard to the likely delay in obtaining treatment for hepatitis C because reasonable treatment is treatment that is both feasible and accessible. Here, as we understand the medical evidence, it was not feasible to commence treatment prior to the time when it was in fact commenced in October 2006. We do not understand the Secretary to contend that the delay in the respondent obtaining treatment was, in any way, the fault of the respondent. Were it necessary to do so we would be satisfied that the respondent did all that she could to obtain the treatment promptly but it is to be remembered that she was seeking treatment in the public hospital system where there are notorious delays.
29.In the result we conclude that in January 2005 the respondent’s condition of hepatitis C was properly to be regarded as permanent because the medical treatment that was feasible and accessible was not likely to lead to significant functional improvement within the ensuing two years. That, as it happens, accords with both the view of Dr Rolls in July 2005 and the reality of the treatment regime when it was able to be undertaken. We do not regard Dr McCullen’s view to be at odds with this because his opinion on the question of “permanent” was not informed by the detail in paragraph 6 of the Introduction.
30.In light of that conclusion it becomes necessary to ascribe a rating to the hepatitis C condition. It seems to be accepted that Table 11.1[8] is the appropriate Table for assessing the degree of permanent impairment of the respondent. So far as is relevant, the 10 and 20 point descriptors in that Table are as follows:
“TENEstablished chronic liver disease. Symptoms (eg fatigue, nausea) may cause minor loss of efficiency in daily activities but rarely prevent completion of any activity.
TWENTYEstablished chronic liver disease. Symptoms (eg more persistent fatigue, nausea, abdominal pain) may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Most daily activities can be completed but only with some difficulty.”
[8] This Table refers to Gastrointestinal: Stomach, Duodenum, Liver and Biliary Tract.
31.In her report of 28 January 2005 Dr Wruck noted the respondent’s symptoms and the effect of them upon her as,
“nausea – most mornings and dry retching
fatigue
dizziness & occasional fainting
…
Ability to concentrate for prolonged periods is limited.
Fatigues easily.
Fainting if prolonged standing.”
32.Dr Rolls described the respondent’s symptoms in this way:
“She is nauseated all the time, and vomits every morning. She feels weak and sick all the time. She is on Maxolon”
Whilst it is for us to make our own assessment of the appropriate rating it seems to us to be proper to note that Dr Rolls, who has vast experience in the task of making assessments of this nature, took the view that a rating of 20 points was warranted for the condition of hepatitis C. That accords with our own view having regard to the descriptors in Table 11.1 that we have set out above.
Depression
33.The respondent has been a long-term sufferer of depression which has its origins in the events of her childhood. Seemingly it has been exacerbated by the hepatitis C. In the report of 28 January 2005 Dr Wruck said of the respondent’s symptoms of depression:
“currently feels hopeful about the future – has been very depressed in the past & is at risk of future bouts”
In a later section of the report dealing with “other medical conditions” Dr Wruck listed depression and described it as having “minimal” impacts on the respondent’s ability to function and commented that the respondent was “not depressed currently”. She indicated that no treatment was then being undertaken for depression. In her subsequent report Dr Wruck said that she felt that the respondent “could have benefited from regular Psychologist or Psychiatrist involvement, but this very difficult to obtain and prohibitively expensive in most cases.”
34.In July 2005 Dr Rolls said of the respondent’s depression that she “has been symptomatic for a long period”. His view was that the impact of the condition was likely to persist for more than two years. He described the respondent as functioning with some difficulty due to moderate regular symptoms. Dr Rolls reported difficulty in coping with stress, the absence of a significant social life and mood swings. Dr Rolls assigned a rating of 10 points on Table 6 to the respondent’s depression.
35.Despite these opinions the Secretary’s case was founded upon the opinion of Mr Andrews. He said of the respondent’s condition of depression,
“The medical information indicates that at January 2005, [the respondent’s] condition of depression was ‘diagnosed’ but not fully treated, nor fully stabilised. Her treatment history was variable and she had not commenced other reasonable forms of therapeutic intervention such as regular sessions with a Psychiatrist or Psychologist (which had been recommended to her).”
36.We are unsure where Mr Andrews obtained the notion that regular sessions with a psychiatrist or psychologist had been recommended to the respondent. We can find no such suggestion in any of the medical reports. As high as the matter can be put is that, in February 2007, Dr Wruck felt that the respondent could have benefited from such treatment but added the caveat about the accessibility of the treatment.
37.The contemporaneous medical information does not suggest that the respondent was doing anything other than acting in accordance with the advice provided to her by her treating medical practitioner. Dr Wruck did not, at the time, suggest any additional treatment.
38.Again by reference to the questions posed in paragraph 6 of the Introduction:
· there had been earlier counselling in 2004;
· the respondent was not then being treated and her treating doctor was not planning any treatment in the immediate future;
· there is evidence that counselling sessions with a psychologist or psychiatrist might have been of benefit. However, the respondent’s treating practitioner was not suggesting such treatment at the time and the evidence stops short of demonstrating “significant functional improvement” and does not demonstrate that such treatment was accessible to the respondent; indeed the evidence is to the contrary. The evidence of the respondent that she acted in accordance with the advice and recommendations of her medical practitioner was unchallenged and we accept it.
39.We should deal with one aspect of the case for the Secretary. The argument was that “reasonable treatment” in the context of paragraph 6 of the Introduction was to be tested objectively, not on the basis of what the treating doctor regarded as being reasonable. Thus, the argument goes, it is not to the point that Dr Wruck was not suggesting treatment by way of counselling at the time; it is enough for the Secretary to call evidence from someone like Mr Andrews that demonstrated a view that some treatment might have assisted her.
40.We reject that contention. It is flawed for at least two reasons. First, paragraph 6 of the Introduction speaks of “significant functional improvement” not merely some benefit. But it seems to us in any event that in most cases treatment about which a patient is entirely unaware can never be regarded as being reasonable. That would fall to be considered as a “medical, or other compelling reason for a person not undertaking further medical treatment”. There seems to us to be no more compelling reason for not undertaking treatment than the fact that no medical practitioner is suggesting it.
41.We are then of the view that the respondent’s depression ought to have been regarded as being “permanent” in January 2005.
42.It is now necessary to consider the extent of the impairment by reference to Table 6 which deals with Psychiatric Impairment. The relevant descriptors are as follows:
“NILMild but regular symptoms which tend to cause subjective distress. On most occasions able to distract themselves from this distress. Minimal interference with function in everyday situations. Exacerbation of symptoms may cause occasional days off work. (e.g. There may be some loss of interest in activities previously enjoyed. There may be occasional friction with family, colleagues or friends) Medical therapy or some supportive treatment from treating doctor may be required.
TENModerate and regular symptoms and generally functioning with some difficulty. (e.g. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships). May have received psychiatric treatment which has stabilised the condition. Minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work. (e.g. short periods of absence from work)
43.Given the evidence regarding the respondent’s symptoms and, in particular, the duration of them it is our view that a rating of 10 points is warranted under Table 6 for the respondent’s condition of depression.
Dysmenorrhoea
44.Whilst Dr Rolls regarded this condition as permanent we are unable to accept that that is so having regard to the evidence of Dr Wruck, in her reports of February 2007, that the condition was not fully diagnosed, treated or stabilised in January 2005. Her evidence suggests that she made a clinical decision to deal with more acute conditions at that time and that those matters were the focus of her attention as the respondent’s treating doctor. Dr Wruck’s evidence is that the type of investigation that would ordinarily be undertaken had not been undertaken. In these circumstances we regard the condition as being “temporary” as that expression is used in the Introduction, as at January 2005.
The rating of permanent impairment
45.It follows from our earlier conclusions that we regard the respondent as having impairments of hepatitis C and depression that together attract a rating of 30 points under the Tables.
A Continuing Inability to Work
46.Dr McCullen commented on this aspect of the matter as follows,
“With regards your request for information on Inability to Work I find this much more difficult because of the multifactorial nature of her symptoms including her depression and pain. From a liver point of view, however, when I saw her she had completely normal liver function tests and there was no evidence of any significant liver disease either on her blood tests or her imaging. From a liver point of view, therefore, there would not have been any contribution to her ability not to work at least 30 hours per week at award wages. Chronic hepatitis C, however, is commonly associated with depression in up to 30% of cases. It is unclear at this stage, however, whether the hepatitis C virus itself actually causes the depression. I therefore feel, with regards her inability to work rating, that the assessment of her other medical attendants including her GP and psychiatrist is required.”
47.We have already set out[9] the views of Dr Wruck in her original report from January 2005. In her subsequent reports Dr Wruck said:
“Since 21/1/05 and within 2 years since this date there is no time period I am aware of that [the respondent] would have been able to work for at least 30 hours per week. [She] has never worked and her capacity to find, apply for and successfully apply herself in a normal working situation is seriously limited by her lack of any work experience, lack of confidence and support structures, unstable living environment (as has been the case for … repeatedly over the past 2 years), fluctuating depression and fatigue associated with her Hep C. She would need considerable support both on the work environment and at home and I can not imagine that either of these would have been attainable.”
[9] Paragraph 29 above.
48.Dr Rolls said of the effect of depression on the respondent that she “functions with some difficulty due to moderate regular symptoms”. The hepatitis C, he said, would prevent most work. He said, by way of summary:
“The impact of the medical conditions on the capacity to work is permanent and debilitating. I find that the customer is unfit for any type of full time work on a permanent basis”:
49.For his part Mr Andrews regarded the respondent as having a work capacity of 7 or fewer hours per week for the 12 months after January 2005 with the capacity to work 30 hours or more thereafter. This view was, however, informed by Mr Andrews’ opinion, which we regard as erroneous, that the respondent’s impairments were temporary. He accepted that if we took the view that they were not temporary impairments that her work capacity was reduced to 7 or fewer hours per week, at least until the successful completion of treatment for hepatitis C.
50.We mention, as well, the view of another Centrelink psychologist, Ms Gordon who, in December 2005, undertook a “Capacity to Participate Assessment” for Centrelink in relation to the respondent. Ms Gordon’s view was that, even with educational training, vocational training or on-the-job training it would be more than 24 months before the respondent could work more than 30 hours per week.
51.On the basis of this evidence it seems to us to be quite clear that the first question posed by Drummond J in Pusnjak[10] must be answered by saying that the respondent’s impairments, of themselves, had such an impact upon her capacity to work as to prevent her from doing any work. And similarly, the matters arising from the impairments are such as would prevent the respondent undertaking the type of re-training of which s 94(2)(b) of the Act speaks.
[10] See paragraph 9 above.
Conclusions
52.It follows that in our view that as at 21 January 2005 the respondent satisfied the two issues that were in dispute – an impairment rating of at least 20 points in accordance with the Guide and a continuing inability to work. Whether that remains the position following the conclusion of her treatment is not am matter that we are required to consider.
53.We would accordingly affirm the decision of the Social Security Appeals Tribunal. The stay, earlier granted, will cease to have effect upon the publication of this decision.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Dr J B Morley RFD
Signed: ...............Signed......................................................
Eleanor O’Gorman, AssociateDate of Hearing 28 June 2007
Date of Decision 10 July 2007
Solicitor for the Applicant Departmental Advocate
Solicitor for the Respondent Legal Aid Queensland
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