Re Hudson and Secretary, Department of Family and Community Services - [2000] AATA 502

DECISION AND REASONS FOR DECISION [2000] AATA 502

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/718

GENERAL ADMINISTRATIVE DIVISION          )
           Re      DOREEN ALICE HUDSON
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Dr J D Campbell

Date22 June 2000
PlaceSydney

Decision The Tribunal sets aside the decision under review and is substitution therefore finds that the Applicant was qualified for disability support pension from the date of receipt of her claim (31 October 1997).

(Sgd) Dr J D Campbell ….…..…………………………
Member
CATCHWORDS

Social Security – Disability Support Pension – Impairments – Intermittent Impairments – Impairment Assessment – Claim Assessment.
Social Security Act 1991, sections 94, 100(3), schedule 1B

REASONS FOR DECISION

John D. Campbell
Member

Ms Doreen Hudson ("the Applicant") in this matter seeks a review of the decision dated 25 April 1999 of the Social Security Appeals Tribunal which affirmed the decision, dated 30 March 1998 of an authorised review officer of Centrelink. This latter decision affirmed the decision, dated 29 January 1998 made by a delegate of the Secretary, Department of Family and Community Services ("the Respondent") to reject the Applicant's claim for disability support pension.
A hearing was held before the Tribunal at Armidale on 15 February 2000 at which the self represented Applicant presented oral evidence to the Tribunal. The Respondent was represented by Ms Schuster, an advocate from the Administrative Law section of Centrelink.
The following written material was placed in evidence before the Tribunal:
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1 – 33 Pp1 – 97
Medical report Dr Montanari dated 15 October 1999              Exhibit A1
Medical report Dr Hagan dated 28 January 2000                   Exhibit A2
Various medical and hospital records of the Applicant           Exhibit A3
Medical report Dr Montanari dated 18 January 2000              Exhibit A4
Medical report Dr Kennedy dated 25 May 1998           Exhibit A5
Medical report Dr Fisher dated 9 December 1996                  Exhibit A6
Hospital notes Re Applicant's hospital admission dated 28 April 1998                   Exhibit A7
Radiology reports dated 7 August 1996, 22 November 1996, 12 May 1998           Exhibit A8
Emergency Department Tamworth Base Hospital report dated 25 February 1996           Exhibit A9
Medical report Dr Loder dated 29 June 1999               Exhibit A10
Respondent's statement of facts and contentions dated 11 February 2000           Exhibit R1
Medical Report Dr Rogers dated 4 November 1997               Exhibit R2
issues
The issues nominated in this matter are:
(a) whether, for the purposes of subsection 94(1) of the Social Security Act 1991, the applicant has a physical, intellectual or psychiatric impairment and whether that impairment is 20% or more under the tables for the assessment of work-related impairment for disability support pension ("the Impairment Tables") in schedule 1B; and
(b) If so, whether the impairment is of itself sufficient to prevent the applicant:

From doing any work within the next 2 years; and
From undertaking educational or vocational training or on-the-job training during the next two years; or
Whether such training is unlikely (because of the impairment) to enable the applicant to do any work within the next two years.

legislation

The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular ss 94(1),(2),(3),(4),(5) and 100(3) and the Schedule 1B Impairment Tables.
background
The Applicant was injured in a motor vehicle accident on 24 September 1994 (T2 p9). The Applicant was granted disability support pension from 18 May 1995. The Applicant was granted compensation of $140,000.00 on 19 May 1997 (T4 p17), with a subsequent preclusion period being imposed for the period from 25 September 1994 until 24 January 1998 (T5 p20). The Applicant's disability support pension was cancelled during this preclusion period (T5 p19). The Applicant reapplied for disability support pension on 31 October 1997 (T7). Following medical assessment, a decision was made by the Respondent on 29 January 1998 to reject the Applicant's claim on the ground that the Applicant's combined impairment rating was less than 20 per cent (T16). Following the receipt by the Respondent of further medical information the Respondent affirmed the original decision on 18 February 1998 (T21), which was further affirmed by an authorised review officer on 30 March 1998 (T24) and by the Social Security Appeals Tribunal on 25 February 1999 (T2).
applicant's evidence
The Applicant told the Tribunal that she was born on 25 November 1951, and left school after second year high school to look after her mother. Later, in response to an advertisement in the Daily Telegraph she undertook a nurses aid course for three years at Waverley War Memorial Hospital and then returned to Tamworth, where she worked at the Base Hospital for nine years. The Applicant stated that she was married for 25 years, with four children, the youngest of whom still resided in the family home. Further the Applicant stated that she last worked as a part-time cleaner in government schools for a three and a half year period ending in 1992. She stated that she had a serious motor cycle accident in September 1994, and since then has never worked.
The Applicant described the injuries resulting from the accident as severe concussion (unconscious 23 hours), head injuries, a ruptured spleen, fractured eighth and ninth ribs on the left side, a left sided pleural effusion and haemothorax. The Applicant stated that she underwent a splenectomy one week after the accident, that she was in hospital for three weeks, and that some eight days after leaving hospital she was readmitted and treated by Dr Kennedy for a pelvic abscess. The treatment, she stated, involved intravenous antibiotics for a prolonged period.
The Applicant described a further history of repeated episodes of fever and abdominal pain in July, August and September 1995 requiring many visits to the general practitioner and hospitalisation, where she was treated again with intravenous antibiotics for diverticulitis. The Applicant described further episodes of abdominal pain and distension with fever in 1996, with several episodes of hospital admission in 1996 for pelvic abscess and subacute bowel obstruction, with an operation being performed early in 1997, after which the Applicant stated she suffered a pulmonary embolism in February 1997.
The Applicant stated that her periodic abdominal pain and distension has continued with periods of hospitalisation and that she continues to see a number of specialists. She stated that she is currently being treated with Pressin tablets 5 mgs, one half tablet twice a day; Dapatabs 2.5mgs, one each morning; Gopten capsules 2mgs, one each morning; Noten tablets 50mgs, one each morning; Respalyte sachets; and Panamax tablets for pain, two tablets as required.
The Applicant also detailed that she suffered from the following conditions:

(a)Hypertension: eight year history, significant and unstable hypertension;
and

(b) Immune System: compromised because of spleen removal,
requires intravenous antibiotics periodically; and

(c)Rheumatic Fever: episode as a child, with a resulting heart murmur associated with mild valve disease.
(d)Left Great Toe: inflamed and infected some years ago,
treated with antibiotics, no problems these days; and

(e)Vaginal Prolapse: to be surgically repaired at some stage.

In describing the effects of her various impairments on her general functioning, the Applicant stated that she no longer mows the lawns or does the garden and can only vacuum for five to seven minutes because of shortness of breath and tiredness. While she has a lot of friends, she does not go out very much, with her children doing the shopping. The Applicant stated that she was a non smoker and non drinker, that she has experienced increasing shortness of breath over the last three years and she experiences an episode of significant abdominal distension once a week. The Applicant stated that she visited her doctor once a week, and would like to work, but the abdominal pain prevents her. She has difficulty in walking for long distances and bending.
medical evidence
On the 13 February 1997, Dr Montanari, the Applicant's treating general practitioner, provided a report, and in a summary opinion of the Applicant's clinical experiences stated:
"…It now seems that Mrs Hudsons' abdominal pain and symptoms were never due to diverticular disease (as initially proposed by Dr Fisher) or a pelvic abscess (as I had thought); the recent episodes of bloating without any rise in white cell count or C-Reactive Protein and her excellent response to her latest surgery suggest strongly that for the past few years, Mrs Hudson had in retrospect been suffering recurrent, partial bowel obstructions secondary to intra-abdominal adhesions which resulted from multiple operations viz: Hysterectomy, Cholecystectomy; Appendicectomy; Splenectomy and perhaps also due to her subphrenic abscess. It is worth noting that the risk of significant adhesions increases with the number of operations and that nearly all of her symptoms date back to after her motor vehicle accident and the surgery which followed it…" (T13, p16)
On her application for disability support pension on 28 October 1997, the Applicant detailed her medical conditions and what difficulties these conditions create for the Applicant in the workplace.
(a) unstable high blood pressure – shortness of breath; and
(b) great left toe arthritis – cannot wear shoes; and
(c) no immune system; and
(d) acute bowel obstruction; and
(e) heart murmur. (T8, p31)
Dr Montanari, in the treating practitioners report dated 5 November 1997, nominated the Applicant's medical conditions and described how each condition effects the Applicant's ability to work, in the following manner:
        (1) Left great toe arthritis     – walking is painful and sometimes cannot wear
a shoe; and
(2)Genital prolapse              – unable to stand for prolonged periods due to
pain; and
(3) Bowel adhesions        – recurrent abdominal pain and swelling. Cannot
      stand or walk when this occurs.   (T9, p40)
As a result of his appreciation of the Applicant's medical conditions, Dr Montanari concluded that the Applicant was not currently fit for any form of work, either full-time or part-time, but would be able to undertake full time work in six to 12 months. (T9, p42)

A report from the Tamworth Base Hospital at T10, p43 details the number of admissions and the various reasons for admissions to hospital by the Applicant for the period 25 September 1994 until 30 September 1997. Amplification by the Applicant indicated that by April 1998, the Applicant had been admitted on some 22 occasions. Further amplification by Dr Montanari increased the number of admissions to 29 by September 1999 (Exhibit A4).
An approved medical practitioner report by Dr Manners was received by the Respondent on 16 November 1997. In his report of 9 January 1998, Dr Manners stated:
"Doreen Hudson is a 46 year old lady who has previously worked as an Enrolled Nurse at Tamworth Base Hospital and as a Cleaner at the local Public Schools. She finished work in 1992. She was about to resume work in 1994 when she was injured in a motorbike accident which caused multiple, severe injuries, particularly abdominal injuries. She has required a number of operations for Pelvic Subphrenic Pericolic Abscess and for recurrent Bowel Obstruction due to adhesions. Her most recent operation for Bowel Obstruction was in November 1997. She continues to have fairly constant pain in the lower abdomen, probably due to sub-acute Bowel Obstruction due to adhesion formation. She uses up to 6 Capadex a day to control her pains. She is fairly anorexic and weak because of her continuing symptoms and her inability to exercise to any great degree. I feel Mrs Hudson is unlikely to return to work in any form in the near future. She is still in a post-operative state and unfortunately her operations have failed to cure her problems. Her symptoms are variable in intensity and frequency, but occur on a daily basis for several hours each day. This picture has remained unaltered over the last 12 months. I feel that cleaning will be an unlikely area of employment in the future. I feel possibly re-training in a sedentary area may be possible in the future but I guess that she be offered a benefit and re-assessed in 2-3 years time." (T12, p57)
In a radiological report of 16 January 1998, Dr Young, a consultant radiologist, reported that several CT scans of the pelvis demonstrated irregular fluid collection in the pelvis of non specific appearances. In his opinion there is no specific feature to suggest that this is an abscess – it may be simply fluid (T13, p59).

In a report dated 20 January 1998, Dr Lim, a Health Services Australia medical practitioner, stated that in his opinion the Applicant had recurrent bowel obstruction causing abdominal pain. With the last abdominal surgery being in November 1997, it was his opinion that the Applicant was still recuperating and a permanent impairment rating should not be given until full recovery from surgery. Dr Lim considered the left big toe arthritis to restrict the Applicant's ability to stand for prolonged periods, and that the genital prolapse, while recently suffered by the Applicant will be corrected by surgery, for which the Applicant is on a waiting list. It was Dr Lim's view that the Applicant was currently unfit for any form of work and that he should be reviewed in six months (T14, p66).

As a result of a phone call by the Respondent to Dr Montanari on 25 March 1998, the Respondent was advised that there had been further deterioration with recurrence of abdominal pain in January 1998 and that he was referring the Applicant to Dr Loder. Nevertheless it remained Dr Montanari's opinion that the Applicant was capable of undertaking work of a sedentary nature (T22, p79).

As a consequence of an initial consultation, significant investigation and further review, Dr Loder reported on 23 June 1998:
"…
I do not think that there is any simply answer to Mrs Hudson's problem….
I would be reluctant to proceed directly to interval laporotomy, as I suspect this has a high chance of being difficult and a reasonably low chance that this will be helpful…"
(T31, p95)

In a further report dated 16 November 1998, Dr Loder stated:
"…
I do understand your frustration with the local hospital and certainly one does not expect to see fever associated with a purely psychological problem…" (T31, p95)
In a report dated 18 January 2000, Dr Montanari made the following comments:
"…
When assessing for pension eligibility, it may be important to have evidence for or against a person's level of disability. In Mrs Hudson's case the problem has been trying to link her supposed disability with an organic diagnosis. This has been impossible. There is certainly good evidence of pathology but no specific diagnosis to help quantify just how unwell we should expect her to be. We cannot be sure whether her problem continues to cause her much pain between 'attacks' or if it has finally settled
..." (Exhibit A4).
Nevertheless despite her ongoing difficulty with the failure to appropriately diagnose Mrs Hudson's condition, Dr Montanari summarised his opinion in the following manner,
"This lady has had proven pelvic abscesses and peritonitis without a certain ongoing diagnosis to explain her continuing pain. The possibility of a combination of small bowel adhesions together with a pelvic collection (still infected or not) would be a reasonable diagnosis in my opinion. I think it would be near to impossible to disprove these two." (Exhibit A4).
In a report dated 25 May 1998, Dr Kennedy, a consultant surgeon, confirms that the Applicant's recent admissions to hospital have never clearly been to is satisfaction diagnostic, despite her acute symptoms of fever, Leucocytosis and abdominal pain settling after treatment with antibiotics (Exhibit A5).

In a report dated 9 December 1996, Dr Fisher, a consultant urologist, confirmed the continuance of the Applicant's symptoms of abdominal pain coupled with marked tenderness over the left lower abdomen and concluded that "I feel that here is very little alternative but to advise Laparotomy" (Exhibit A6).
In a report dated 28 January 2000, Dr Hagan, a consultant surgeon, after detailing the Applicant's clinical history and examination concluded that the Applicant had the following conditions:
"Adhesive intestinal sub-acute obstruction. Peritoneal fluid forming as a result of low grade chronic infection in the peritoneal cavity Vaginal prolapse. Hypertension." (Exhibit A2)

In a further report dated 15 October 1999, Dr Montanari states that the Applicant was admitted to hospital six times for a total of nine weeks in 1998, and that between admissions in 1998 she had almost constant abdominal pain, distension and bloating. In 1999, Dr Montanari reports that the Applicant's acute exacerbations reduced, but continued to suffer frequent bloating and pelvic discomfort (Exhibit A1).
In a report dated 4 November 1999, Dr Rogers, a Health Services Australia medical practitioner stated that she still considered the abdominal condition of the Applicant to be incompletely investigated and diagnosed and hence the condition therefore not fully treated and stabilised, and that because of this condition she remains temporarily unfit for work.
submissions:
The Applicant submitted that she had a number of permanent impairments, and that despite the absence of a confirmed diagnostic label, her clinical abdominal condition has been fully investigated, stabilised and treated and therefore, despite the lack of aconfirmed diagnostic label, is a permanent condition. Further in her submission, the combined impairment rating for her permanent medical conditions is 20 per cent or greater.
The Applicant contends that while she may have a capacity to do some sedentary work for a period of time on her good days, any capacity she may have ceases when her abdominal condition exacerbates. It is the Applicant's contention that she qualifies for disability support pension.
The Respondent argues essentially that no impairment rating can be given to the Applicant's abdominal condition as it has not been fully investigated, diagnosed, treated and stabilised and as such does not have the status of a permanent impairment. The Respondent contends as a consequence that the Applicant has a combined impairment rating of much less than the 20 per cent required and further that she does not have a continuing inability to work, albeit in sedentary work categories. It is the Respondent's contention that the Applicant does not satisfy the criteria to receive a disability support pension.
consideration and findings:
The Tribunal, in commenting that issues of psychological attribution have been considered in this matter, observes that there has been no suggestion that the Applicant's clinical story has been in anyway contrived or exaggerated. The Tribunal finds the Applicant to be an honest and reliable witness that has suffered much following the accident in 1994 and that injuries and further complications have and do continue to plague the Applicant's physical and mental well being.
The Tribunal, as it must in these matters, deals particularly with the Applicant's medical conditions and their consequences including the capacity to work at the date of application and for a period of three months thereafter, (section 100A of the Act). Material pertinent to a better understanding of the state of affairs during this period of time ("the operative period") can be used by the Tribunal to assist in better defining the nature and consequences of the medical conditions that have been defined to exist, while new conditions and conditions becoming permanent outside the operative period cannot be considered for the purpose of this Application.

The Tribunal in considering this matter notes the following relevant legislation, namely subsection 94(1) in part, (2), (3), (4) and 5.
"94 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 per cent or more under the
        Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
…
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 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
  education 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.
94(3) In deciding whether or not a person has a continuing inability to work
               because often impairment, the Secretary is not to have regard to:
              (a) the availability to the person of education or vocational training or on-
  the- job training; or
              (b) if subsection (4) does not apply to the person- the availability to the
                   person of work in the person's locally accessible labour market.

94(4) For the purpose of subparagraph (2)(b)(ii), if a person has turned 55, the
Secretary may, in considering whether educational or vocational training is
likely to enable the person to do work, have regard to the likely availability
to the person of work in the person's locally accessible labour market.

94(5) in this section:
  educational or vocational training does not include a program designed
  specifically for people with physical, intellectual or psychiatric impairments.
  on-the-job training does not include a program designed specifically for
  people with physical, intellectual or psychiatric impairments.
  work means work:
(i)   that is for at least 30 hours per week at award wages or above;
  and
  (ii) that exists in Australia, even if not within the person's locally
  accessible labour market.

The Tribunal, in considering all the medical reports of the various medical conditions suffered by the Applicant and the Applicant's description of her various medical conditions and their consequences makes the following findings of fact.
(a)the Applicant was involved in a motor vehicle accident in September 1994 in which she received serious injuries involving head, neck, chest and abdomen; and
(b)that by the time of application for disability support pension in October 1997 the Applicant had suffered and continued to suffer from complications arising from the particular injuries received at the time of the accident; and
(c)that by the time of application for disability support pension during the operative period and thereafter the Applicant has continued to suffer from an abdominal condition characterised by abdominal pain, and distension, fever and Ieucocytosis; and
(d)that the symptomatology nominated and the signs exhibited are and were at the operative time chronic in nature, with acute exacerbations requiring hospitalisation before, during and after the operative period; and
(e)that the chronic abdominal condition had at the operative period been extensively investigated treated and stabilised, although a definite diagnosis has not been agreed upon by the many specialists that have been involved in her case and who have tendered many opinions. Continued but apparently diminishing acute exacerbations have been recorded, with this not diminishing the permanancy of the underlying pathology, which to this time continues to elude an agreed diagnostic label; and
(f)that the signs and symptoms of the underlying condition are variable in nature and this is not in dispute. It is evident that during the operative period that these included abdominal pain and distension and abdominal tenderness as well as a period in which an acute exacerbation occurred; and
(g)that during the operative period the severity of the symptoms was variable during the course of the day and medication was required for pain at varying times during the day; and
(h)that because of the abdominal condition, and its variability of symptomology, the Applicant had a varying capacity for work during the operative period, with obviously any period of hospitalisation resulting in an absence of capacity to work; and
(i)other medical conditions to exist during the operative period were:
(i) hypertension; and
(ii) mitral valve murmur; and
(iii) arthritis left great toe; and
(iv) vaginal prolapse; and
(j)         the four listed medical conditions in paragraph (i) have little effect on
            the Applicant's work ability, with difficulties being encountered by the
            Applicant with prolonged standing or walking, shortness of breath and
            difficulty with shoes.
Consequent to the Tribunal's findings of fact, the Tribunal further finds that the Applicant had the following impairments during the operative period
(a) chronic abdominal condition; and
(b) hypertension; and
(c) mitral valve murmur; and
(d) arthritis left great toe; and
(e) vaginal prolapse.
The Tribunal, while noting that the issue of a diminished immune system has been raised, finds that there is an absence of concrete immuno pathology documentation to support such a contention, and therefore excludes it from further consideration.
The Tribunal in finding that various impairments did exist at the operative period finds that the Applicant did satisfy subsection 94(1)(a) of the Act.
The Tribunal, in moving to an assessment of each of the impairments, notes the fourth paragraph of the introduction to schedule 1B of the Act and, in particular, that the condition must be a fully documented, diagnosed condition, which has been investigated, treated and stabilised. The Tribunal, after a careful consideration of the many specialist medical opinions, concludes that the best working diagnosis both during the operative period, before that period and after that period is "chronic abdominal condition." That it is permanent at the operative time is not in question for it has existed for both three years before and after the operative period. That it has been extensively documented, investigated, treated and stabilised is well documented, the only unsatisfactory feature being an inability by the many specialists involved to agree upon the exact nature of the underlying pathology. In so stating the Tribunal finds that this condition, namely chronic abdominal condition, should have been assessed as it existed at the time of claim or within three months thereof. Further the Tribunal draws little assistance from the comments of Dr Rogers (Exhibit R2) in that she appears to draw much inference from actual subsequent events, and her comments as to the possibility of further investigation by Dr Sorrel obstructing the reality of what has occurred over the five year period.
The Tribunal, having considered all the medical evidence, and the evidence of the Applicant, makes the following assessment of the impairment rating for each condition in accordance with the nominated pre 1 April 1998 Impairment Tables:
(a) Chronic Abdominal Condition.
During the operative period, Drs Montanari, Manner and Lim, as well as the Applicant all stated that the Applicant was in fairly constant pain (lower abdomen) with daily abdominal swelling, that she was fairly weak and anorexic and that she was using up to six capadex a day for pain relief. During the operative period the Applicant underwent laprotomy for suspected abdominal adhesions, which led Dr Lim to defer assessment. The Tribunal again notes that this surgical intervention was but another in a disease process, and accordingly cannot view it as other than symptomatic as opposed to definitive treatment.
The Tribunal in assessing this condition during the operative period under table 14, considers that the Applicant has a serious bowel disorder with abdominal pain and abdominal distension every day, with minimal response to medication and considerable interference with daily routine. The Tribunal concludes that the Applicant had a 30 per cent impairment for this chronic abdominal condition. The Tribunal further observes that the content of the Applicant's medical records both pre and post the operative period reinforce the Tribunal's findings, in so far as they continue to demonstrate the continuing symptomatology arising from an obvious diagnosis dilemma. The Tribunal also observes that a similar assessment of 30 per cent would be reached if assessment were to be made under table 26, for in the Tribunal's view there was a severity of three under table 26.1, a prolonged duration under table 26.2, giving a severity level of under table 26.3, with there being daily symptomology, the assessment under 26.4 correlates with 30 per cent.
The Tribunal, in acknowledging that at the time of the hearing, the clinical features of this condition did not appear to remain as severe, although still occurring on a daily basis, is mindful that the task at hand is concerned with assessment during the operative period.
(b) Hypertension
The Tribunal notes that little emphasis was placed on the issue of hypertension at the operative period, and in particular as to whether or not it was difficult to control. The Tribunal further notes that it is not mentioned in detail in any of the medical reports during the operative period (Drs Montanari, Manners and Lin) The Tribunal finds that under table 25 the Applicant has a zero per cent impairment for this condition.
(c) Mitral Valve Murmur.
The Tribunal finds that there is insufficient recorded material at the operative period for an assessment to be made for this condition.
(d) Arthritis left great Toe.
The Tribunal notes the finding of Dr Lim and concurs that on the material recorded at the operative period the Applicant had a five per cent assessment under table 4 for the left great toe condition as the Applicant did experience intermittent pain from weight bearing.
(e) Vaginal prolapse.
The Tribunal notes that this was diagnosed as being present during the operative period and that the condition was awaiting surgical repair. The Tribunal finds that no assessment should be given for this condition at the operative period, as treatment, was yet to be undertaken.
As a consequence of the Tribunal's individual assessment for each condition, the Tribunal finds that the Applicant had a combined impairment rating of 35 per cent, using the combined valves chart. As a consequence the Tribunal finds that the Applicant satisfies subsection 94(1)(b) of the Act.
In considering whether the Applicant had a continuing inability to work during the operative period of this matter, the Tribunal acknowledges the following medical statements:
(a) Dr Montanari – long term condition, able to work full and/or part time in
     six to twelve months (T9, p42); and
(b) Dr Manners – in his work capacity assessment during the operative
      period, Dr Manners stated that the Applicant would not be able to work
      either part or full time in any capacity for the next two years. (T12, p54);a nd
(c) Dr Lim – believed the Applicant not to be fit for any work for six months,
but with appropriate recuperation following surgery, would be fit for light sedentary work, and would be assisted in return to work by a vocational rehabilitation program.
In differentiating between the opinions, the Tribunal is much guided by the history of clinical events leading up to the operative period and in particular the obvious severity of the clinical condition during this period. This, in itself, permits the Tribunal to find the opinion of Dr Lim to be one which is unduly optimistic, and one which the Tribunal puts to one side. In fairness to Dr Lim, the Tribunal recognises the minimal amount of clinical exposure that he would have had to the Applicant's complicated medical history and conditions.
In considering Dr Montanari's finding, the Tribunal is of a view that by virtue of his finding that the condition is long term and not improving, there is again a lack of congruence, when the doctor reports of a possible return to work in six to twelve months ( in the light of the earlier experiences). The Tribunal expresses reservations about this opinion.
The Tribunal, in considering the longitudinal clinical history of the Applicant both prior to, and during the operative period, is drawn towards the clinical opinion of Dr Manners, in that it would appear to the Tribunal that he has weighed the various clinical issues at the time in a manner which gave the necessary weight to the nature of the significant clinical events that had occurred in the Applicant's abdominal condition prior to the operative period. That his clinical opinion was born out by subsequent events is a matter which the Tribunal is allowed to consider in so far as it assists the Tribunal in achieving a greater understanding of the clinical condition during the operative period.
As a consequence of the Tribunal's acceptance of Dr Manners' opinion in part and further because of the Tribunal's particular consideration of the Applicant's longitudinal clinical history of the abdominal condition prior to and during the operative period, and the clinical history after the operative period in so far as it permits a better understanding of the chronicity of the Applicant's abdominal condition during the operative period, the Tribunal finds that the Applicant was not fit to work in any capacity for two years from the time the claim was lodged in October 1997.
Similarly the Tribunal finds that the Applicant by virtue of her impairments would have been prevented from undertaking educational, or vocational or on-the-job training during the next two years, for the very reason that the Applicant was unable to undertake work. The Tribunal finds that the impairments would have interfered greatly with the Applicant's work capacity, including work attendance, concentration, ability to lift of bend, to alternate between tasks, to travel and to work any full days.
Further, the Tribunal finds that the Applicant's impairments, would have of themselves, even if the Applicant was considered able to undertake educational or vocational or on-the-job training, prevented the Applicant from working within the next two years.
As a result of the Tribunal's findings in this matter the Tribunal further finds that the Applicant had a continuing inability to work at the operative date in that the Applicant satisfied subsection 94(2)(a) and both 94(2)(b)(i) and (ii). The Tribunal finds that the Applicant satisfies subsections 94(1), (2) and (3) and therefore qualifies for disability support pension.
determination
The Tribunal sets aside the decision under review and is substitution therefore finds that the Applicant was qualified for disability support pension from the date of receipt of her claim (31 October 1997).

I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:         .....................................................................................
  Associate
Date of Hearing  21 February 2000
Date of Decision  22 June 2000
Solicitor for the Applicant         Self Represented
Solicitor for the Respondent    Ms Schuster