SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS and GRAZIA MARTINO

[2009] AATA 491

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 491

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/6054

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And GRAZIA MARTINO

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date2 July 2009

PlaceAdelaide

Decision The Tribunal sets aside the decision under review and substitutes a decision that Mrs Martino did not satisfy the requirements for Disability Support Pension either at the date that she applied for that entitlement or within 13 weeks of that date.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Disability Support Pension –whether condition of obesity permanent – whether condition of left sided weakness permanent – treatment options considered – multiple other medical conditions – realistic availability of treatments considered given limited financial means – left sided weakness not fully explored at time of application – not yet diagnosed treated and stabilised – decision set aside

Social Security Act 1991 s 94

Social Security (Administration) Act 1999 s 42

REASONS FOR DECISION

2 July 2009   Senior Member L Hastwell   

1.      The respondent, Mrs Grazia Martino, applied to Centrelink for a Disability Support Pension (DSP) on 18 May 2007.

2.      The disabilities, illnesses and injuries that she referred to in that application were obesity, asthma, diabetes, neck disc bulge, joint irritation, sleep apnoea, depression, panic attacks, left side numbness and pain.

3.      Her application was rejected and a letter to that effect was sent to her by Centrelink on 28 June 2007.  She sought review of that decision and after consideration of further medical evidence and a further Job Capacity Assessment, an Authorised Review Officer affirmed the original decision on 25 September 2007.

4.      Upon review, the Social Security Appeals Tribunal (the SSAT) found that Mrs Martino satisfied the disability criteria set out in the relevant legislation and on 7 November 2007 set aside the decision of the Authorised Review Officer and substituted a decision that, subject to her satisfying the other requirements under the legislation, she was eligible for DSP and had been since the date of her claim.

5.      The applicant (the Department) seeks review of that decision to this Tribunal.

relevant legislation

6. The relevant legislation is contained in s 94 of the Social Security Act 1991 (the Act).  The qualifications for DSP are set out in the following terms:

“94       Qualification for disability support pension

(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 points or more under the Impairment Tables; and

(c)      one of the following applies:

(i)        the person has a continuing inability to work;

(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

(d)      the person has turned 16; and

(e)      the person either:

(i)is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A)       is not an Australian resident; and

(B)       is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident; and

(f)the person is not qualified for disability support pension under section 94A.

Note 1:For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

Note 2:  For Impairment Tables see section 23(1) and Schedule 1B.

(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 independently of a program of support within the next 2 years; and

(b)      either:

(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

Note:   For work see subsection (5).

(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a)      the availability to the person of a training activity; or

(b)the availability to the person of work in the person’s locally accessible labour market.

(4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:

(a)      is unlikely to need a program of support that:

(i)is designed to assist the person to prepare for, find or maintain work; and

(ii)is funded (wholly or partly) by the Commonwealth or is of a type that the Secretary considers is similar to a program of support that is funded (wholly or partly) by the Commonwealth; or

(b)is likely to need such a program of support provided occasionally; or

(c)      is likely to need such a program of support that is not ongoing.

(5)      In this section:

training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

(a)      education;

(b)      pre-vocational training;

(c)      vocational training;

(d)      vocational rehabilitation;

(e)      work-related training (including on-the-job training).

work means work:

(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

(b)that exists in Australia, even if not within the person’s locally accessible labour market.

the impairment tables

7.      The Impairment Tables under which an impairment point rating is assigned to a condition for the purposes of the Act are contained in Schedule 1B of the Act.  The preamble to those Tables provides that a rating can only be assigned to a fully documented, diagnosed condition which has been investigated, treated and stabilised.  In addition, the condition must be considered to be permanent.  Permanence is defined as the condition being more likely than not to persist for the foreseeable future and this is taken as lasting for more than two years.

8.      The Social Security (Administration) Act 1999 (the Administration Act) provides the rules for working out the start day of an entitlement to a Social Security benefit.

9. Section 42 of the Administration Act provides as follows:

“For the purposes of the social security law, a person’s start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.”

10. Clause 4 of Schedule 2 of the Administration Act provides:

“4         Start day—early claim

(1)      If:

(a)a person (other than a detained person) makes a claim for a relevant social security payment; and

(b)the person is not, on the day on which the claim is made, qualified for the payment; and

(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

(d)      the person becomes so qualified within that period;

the claim is taken to be made on the first day on which the person is qualified for the social security payment.”

11. The effect of this section is that the Tribunal must be satisfied that Mrs Martino satisfied the requirements of s 94 of the Act either on the date that she made the claim for DSP or within 13 weeks of that date.

issues

12.     It is conceded by the Department that Mrs Martino satisfies the residential requirements with respect to DSP (s 94(1)(e)) and  that she does have a physical impairment (s 94(1)(a)).

13.     The contentious issues to be determined by the Tribunal are as follows:

·Does she have an impairment that attracts 20 points or more under the Impairment Tables.

·In considering whether an impairment rating can be attached to a condition, the Tribunal must have regard to whether each condition has been diagnosed, treated and stabilised. ;

·If she does have an impairment or impairment that attracts the requisite points under the Tables, does she have a continuing inability to work?

the department’s contentions

14.     The Department does not dispute that Mrs Martino suffers from significant obesity and has done so for many years. 

15.     The Department does not dispute that Mrs Martino suffers from diabetes and that this is a permanent condition.  It is common ground that, at the time of the application and in the months immediately following the application, this condition was relatively stable and managed medically and did not attract an impairment rating.

16.     The Department contends that Mrs Martino’s condition of morbid obesity does not attract a rating under the Impairment Tables as that condition has not been fully diagnosed, treated and stabilised.

17.     They contend that the left upper limb weakness from which she suffers requires further investigation and treatment and has not been fully diagnosed, treated and stabilised.

18.     The Department does not accept that any of her other medical conditions as referred to in paragraph 2 (supra) attract a rating under the Impairment Tables.

19.     The Department's position, as set out in its statement of facts and contentions and as put to the Tribunal at the hearing, is that Mrs Martino does not have impairments that attract the requisite 20 points required under the Act to entitle her to DSP.  They consider her current work capacity, based on Job Capacity Assessments, to be 8 to 14 hours per week with a future capacity to work, with intervention, of between 15 to 22 hours per week. 

20.     The Department called Ms Adriana Gagliardi to give evidence.  She was an exercise physiologist who is now working as a job capacity assessor for Centrelink. 

21.     The Department also relied on two earlier Job Capacity Assessments which had been carried out in 2007 (T12 and T13).

22.     Ms Gagliardi carried out a Job Capacity Assessment with respect to Mrs Martino on 27 October 2008.  Her report was received as Exhibit A4 by the Tribunal.

23.     Ms Gagliardi’s evidence to the Tribunal was that although Mrs Martino's obesity was a condition from which she had suffered for 30 years, she considered that Mrs Martino had not actively explored all possible treatments including exercise, meal supplement programs and a referral to an obesity clinic.  She formed the view that the condition of obesity could not be deemed to be permanent within the meaning of the Act. 

24.     She expressed the view that Mrs Martino’s upper limb condition had not been properly explored and that, if indeed it was musculo-skeletal, there were other treatment options to be pursued.  She did not consider the condition to be permanent.

25.     Ms Gagliardi maintained the views expressed in her report which can be summarised as follows:

·Her obesity cannot be considered to be fully diagnosed, treated or stabilised. 

·Her asthma is well controlled.

·Her condition of depression and anxiety is temporary.

·Her neck disorder is permanent, but not yet fully diagnosed, treated or stabilised.

·Her lumber disorder is permanent, but not yet fully diagnosed, treated or stabilised.

·Her upper limb disorder requires further investigation and treatment and in the absence of clarifying medical information is considered to be temporary.

·A number of other medical conditions such as fibromyalgia, gynaecological problems and tennis elbow were not permanent conditions.

26.     Ms Gagliardi acknowledged that prior to the hearing she was not aware that Mrs Martino had previously seen a specialist with respect to her obesity, but she said that did not change her overall opinion.  She expressed the view that there was more that could be done to treat her obesity and other options should be pursued.  She acknowledged that any support for Mrs Martino would need to be ongoing and multidisciplinary.  At the hearing, she expressed the view that Mrs Martino’s current capacity to work was for 8 to 14 hours per week.

27.     The Department also relied on two reports of Dr Graham Long, Occupational Physician, dated 14 April 2008 (Exhibit A2) and 4 August 2008 (Exhibit A3).

mrs martino’s evidence about her medical problems and her reasons for believing that she is eligible for dsp

28.     Mrs Martino represented herself and gave evidence on her behalf.

29.     She told the Tribunal that she cannot see that there is any work that she could do.  She has been out of the workforce for 16 years and has multiple health problems that she believes preclude her from participating in the workforce.  Her only employment since leaving school in year 10 has been in a shoe factory and as a cleaner.  She has never performed administrative or computing work.  She has no computer literacy.

30.     Mrs Martino lives with her husband, who has not worked for many years, and has three children who are aged 26, 22 and 14.

31.     She told the Tribunal that she has always had a weight problem and that she has consulted with doctors, specialists and dieticians over the years in an attempt to deal with this problem.  The best result that she ever achieved was to lose approximately 10-15 kilograms some years ago, but the weight soon returned.  She has talked to a diabetes educator about her weight.  She has consulted an exercise physiologist.  In more recent times, her doctor has discussed gastric banding with her, but she is unable to afford such an operation which is not available on the public health system.  Her doctor has also expressed concern to her about the risk of anaesthetic given her significant health problems.

32.     Recently, her doctor has suggested that her excessive weight may be hormonally related as she has siblings and parents who do not have this problem.  She has had thyroid tests and took Thyroxin for a period, but that did not alter her weight.

33.     She has tried replacement powders, but they did not work.

34.     When she saw an exercise physiologist, he recommended that she join a gym.  She was unable to afford to do so. 

35.     Her doctor has discussed with her the possibility that she suffers from a syndrome known as Syndrome X, which is a hormone condition that could be causing her obesity.  Current advice from the Diabetic Clinic is to eat small meals regularly and to be aware of what she is eating.

36.     She suffers from diabetes, which is treated with medication.  Her diabetes has recently become more unstable and she is currently attending the Diabetes Clinic at the Royal Adelaide Hospital, where a specialist is managing her diabetes.  Her dosage of diabetes medication has been increased and there has been consideration as to whether she should be commenced on insulin.

37.     She said that she suffers from depression.  She told the Tribunal that she is often tearful, lacking in motivation and she suffers from regular sleep disturbance.  She has taken anti-depressant medication for periods of time, but this tended to make her very drowsy and, as she has a child who sleepwalks, she cannot afford to be unable to wake at night.  She has seen a psychologist for counselling with respect to her depression.  Her doctor recently suggested that she return to see the same psychologist for help.

38.     She suffers from aches, pains and arthritis in her joints.  She has arthritic hands and her children do the cleaning around the house.  She can no longer hang clothes on the line.

39.     She has left side weakness and a left shoulder problem.  She has difficulty elevating her left arm.  She suffers headaches arising from a neck problem.  She sleeps on a recliner that provides support to her left arm and shoulder.  When her neck and shoulder become particularly painful she uses Voltaren cream or a hot wheat bag or hot water to relieve the symptoms.

40.     In 2006, she suffered what she understood at the time could have been a stroke.  She believes that her ongoing left side weakness arose as a direct result of this incident.  She consulted a neurologist with respect to that particular issue, but a stroke was not confirmed.

41.     She has had chiropractic treatment for her neck.  She had Bowen therapy for the left shoulder and neck problem for around 12 months with some benefit.  She has also tried anti-inflammatory medication (NSAIDS).  However, it reacted with her diabetic medication and so she cannot use NSAIDS.

42.     Her shoulder problem was investigated and she said that surgery was considered, but she has been advised that an operation is not recommended for her.  She suffers from pain in that shoulder and movement is restricted.

43.     She suffers bronchial and asthmatic problems in winter and seeks treatment from her doctor for those problems.

44.     She has limited funds available to her and so she cannot pursue treatments that are not covered by the health system. 

other evidence with respect to mrs martino’s conditions

45.     The Tribunal received the T documents into evidence (Exhibit A1) which contained some prior medical history, including some treating doctor’s reports and other information which will be referred to where relevant.

46.     The Tribunal also received the following medical evidence:

·reports dated 14 April 2008 (Exhibit A2) and 4 August 2008 (Exhibit A3) from Occupational Physician, Dr Graham Long;

·the Job Capacity Assessment report of Ms Gagliardi dated 27 October 2008 (Exhibit A4); and

·Mrs Martino’s medical notes from the Seaton Medical and Specialist Centre for the period 2004 to 2009 (Exhibit A5).

47.     Her medical notes from the Seaton Medical and Specialist Centre contained some medical reports and provided additional detail as to her ongoing medical problems.

dr long's reports

48.     Dr Long provided an assessment of Mrs Martino at the request of the Department.  He saw her on two separate occasions, the first being in April 2008 and the second in August 2008.

49.     He noted that she reported a 30 year history of obesity and that she had tried a diet suggested by an immunologist.  She had also previously attended a dietician and a Weight Watcher’s programme.  He noted that she had been doing some exercise at the time that he saw her, but that she had a limited exercise tolerance and at that time her weight was 122 kg which put her in the super-obesity range.  He recorded that she had not tried meal supplement programmes, medication, obesity clinic programmes or surgery.

50.     With respect to her left shoulder/arm condition, he formed the view that left shoulder rotator cuff tendinitis and/or bursitis are her main complaints.  He did not have access to any investigation results.  She had not pursued physiotherapy or exercise for her shoulder and she had not had any nerve conduction studies to further investigate her left arm/hand symptoms.  He considered it was not  possible to confirm a diagnosis with respect to her left upper limb problems without seeing investigation results.  He expressed the following view:

“… there would appear to be sufficient uncertainty regarding the permanency of her left shoulder and arm condition(s) to warrant caution in deeming this permanent for the purposes of DSP assessment.”

51.     When he saw her on a second occasion in August 2008, he noted that she was now reporting bilateral neck, shoulder, elbow and wrist pain and had been referred by her general practitioner for investigation into her lower back pain.  He noted that she had been commenced on anti-depressant medication.

52.     He summarised that, in his view, her upper limb symptoms, which were showing bilateral signs when he saw her on a second occasion, had not yet been fully investigated and treated and he considered more tests were appropriate.  Mrs Martino told him that she would not be willing to consider surgery even if it were recommended to assist her with her condition.

53.     He expressed the view that her left upper limb impairment remained minor and that she retained satisfactory hand coordination and dexterity.  He thought that her level of upper limb impairment when he saw her in 2008 would equate to a nil impairment rating or at the most a 5 percent impairment rating under the Impairment Tables if those conditions satisfied the criteria of being fully diagnosed, treated and stabilised. 

54.     He considered that there was a possibility that she was suffering from mild carpal tunnel syndrome or C6 radiculopathy.  He thought a left wrist ultrasound scan was appropriate as were nerve conduction studies and a MRI scan of the cervical spine.

55.     Mrs Martino had reported to him on the first occasion that she saw him in April 2008 that her obesity did not prevent her working, but that her left side problems from what she believed was a CVA was the factor that was impacting on her ability to work.

the treating doctors’ reports

56.     Reports of Dr Vinci and Dr Singh were contained in the T documents.  Neither of those reports was particularly helpful as they were extremely brief and provided little detail.  In his report dated 10 May 2007, Dr Vinci attached a progress note from Mrs Martino's medical records stating that a CT scan of the neck showed disc bulge and facet joint irritation and he referred to the numerous other medical problems from which she was suffering.

57.     His report of July 2007 was more legible than his earlier report and stated that she suffered chronic pain in her back and neck, shoulders, osteoarthritis of the hands, diabetes, loss of balance, left shoulder pain, weakness of the left side since the possible CVA.  He considered that one or more of her medical conditions had a significant impact on her ability to function.

58.     In a report dated 20 June 2005, Dr Singh commented that she had been obese since she was young, that she could not do up her shoelaces and that she had tried multiple systems to lose weight and had failed.

the seaton medical and specialist centre records

59.     The notes available to the Tribunal covered the period from 2004 until 2008.

60.       It was evident that Mrs Martino’s diabetes was treated throughout that period.

61.     Her obesity appears in the notes as a regular topic of discussion with her medical advisors.  Mrs Martino is 159 cm in height.  Her weight fluctuated throughout the period covered by the medical records, but at all times remained in the obese category.

62.     In March 2005, she was on a diet that had been advised by Dr Gow.  At that time she weighed 113 kg. 

63.     In August 2006, she was seen by a neurologist to investigate a possible left hemiplegic migraine and her shoulder pathology.  A MRI scan of the brain was normal and no significant lesion was detected.  The neurological opinion was that she may have suffered a migraine with a hemiplegic component or she may have had a right sided ischemic event.

64.     An ultrasound done at the time of her left shoulder indicated bursal thickening with tendon and bursal impingement on abduction in the left shoulder.  The neurologist considered that this explained her left shoulder pathology.

65.     In November 2006, the notes record that her left shoulder “is still a problem”.

66.     In January 2007, her weight had gone back to 120 kg and her doctor referred her to an exercise physiologist, Mr Roy Papalia.

67.     In January 2007, anti-inflammatory medication was prescribed as she complained of right sided pains on the body.

68.     In April 2007, her shoulder was still troubling her. 

69.     In July 2007, she again complained of pain in her left knee, left arm left shoulder and neck.  Dr Vinci noted that she was suffering from weight problems, depression, anxiety, stress and panic attacks.

70.     In January 2008, she saw a diabetic educator, Pam Grierson.  Once more, her weight was discussed.

71.     It would appear that she has a history of intermittent depression and in the notes that were available she complained of lethargy and headaches.  She was first diagnosed as suffering from depression in September 2005. 

72.     She was prescribed anti-depressant medication in 2006 and she was referred to a psychologist, Dr Elizabeth Banitsiotis in 2008.  A mental health care plan was prepared in late 2007 by her doctor as her depression had become persistent.

the job capacity assessments

73.     Two other Job Capacity Assessments had been carried out in June 2007 (T13) and August 2007 (T12).

74.     The first assessment found Mrs Martino's obesity condition to be permanent, but commented that there was no evidence of involvement of dieticians or other professionals with her weight problem.  That assessor found that her shoulder and upper arm disorder were temporary with an expected duration of two years.

75.     The second assessor formed the view that Mrs Martino’s obesity and neck disorder were permanent, but had not been fully diagnosed, treated and stabilised.  Physiotherapy and treatment at a pain clinic was suggested for the neck disorder.  Similarly her lower back pain was considered to be permanent, but not yet fully treated and stabilised.

76.     All of the assessors acknowledged that Mrs Martino suffered other medical problems such as asthma and depression, but those conditions were not assigned an impairment rating.

consideration of the evidence

77.     The Department instructed a number of assessments with respect to Mrs Martino, but appears to have not provided evidence of prior investigations of her neck and shoulder to the individuals who were asked to assess the permanency or otherwise of her conditions.  The Department did not have access to medical notes from the Seaton Medical and Specialist Centre.  These would have provided some assistance to Dr Long in preparing his report.

78.     Mrs Martino’s lack of means limits her ability to pursue some of the possible treatments for her obesity that were being suggested by the Department's witnesses.  She had pursued what she considered to be the options available to her, but with no success. 

79.     She has suffered from the condition of obesity for 30 years. 

80.     It was evident from Mrs Martino’s evidence and from the notes obtained from the Seaton Medical and Specialist Centre that there have been some formal investigations into her neck and shoulder disorder and into her left side weakness.  There has not been a full investigation of her left hand dexterity weakness, nor does it seem that she has pursued any treatments for her left shoulder problem which the medical evidence suggests arises from a treatable condition and not from the 2006 suspected CVA incident.

81.     It was clear from her evidence that Mrs Martino was not willing to pursue surgical options for treatment if such options were available.

82.     The Tribunal also had regard to the evidence that Mrs Martino had given to the SSAT as reported in the SSAT decision.

findings of fact

83.     The Tribunal made the following findings based on all available evidence and on the balance of probabilities.

84.     Mrs Martino suffers from a range of medical problems as follows:

·obesity

·some left side weakness of uncertain origin

·bursitis and/or tendonitis of her left shoulder and left shoulder pain with some  limitation of movement

·a bulging disc in her neck that may be referring pain into her shoulder as well and which causes neck stiffness and pain

·diabetes

·asthma

·intermittent depression and anxiety

·gynaecological problems

·osteoarthritis of her hands

·lower lumbar pain

·possible carpal tunnel syndrome that has not been investigated

85.     She has suffered morbid obesity for over 30 years.  At the time that she applied for DSP, she had explored all possible treatments reasonably available to her to treat this condition.

86.     Because of her multiple health problems, surgical intervention is not recommended in her case for the condition of obesity.

87.     Given her history of unsuccessful attempts to lose any amount of weight over any sustained period, the Tribunal is satisfied that even if she were to explore other treatments, the likelihood of her resolving this long-standing medical condition within a two year time frame is very low. 

88.     The condition of obesity is likely to last for more than 24 months. 

89.     The morbid obesity limits her ability to walk for more than five minutes.  It leaves her breathless at times and she has moderate to severe symptoms of restricted movement.  It affects her ability to carry out household tasks.

90.     She suffered from an incident in 2006 which she believes was a CVA  Neurological investigations have not confirmed that to be the case.  It is possible that some of her left side symptoms arise form a cerebral event. .

91.     She continues to suffer left shoulder and arm pain and weakness.  She has consulted a neurologist and she had radiological investigations carried out with respect to the left arm and shoulder in 2006 and 2007.

92.     She has bursal thickening with impingement of the tendon on abduction in her left shoulder.  Surgery has been suggested as an option to resolve this problem.

93.     She has pursued conservative treatments such as massage, Bowen Therapy, chiropractic and the use of anti-inflammatory creams in an attempt to alleviate stiffness and pain in her neck and left shoulder and arm.

94.     Because of her left shoulder problems and what she describes as weakness in her left arm, Mrs Martino suffers a restricted mobility in her shoulder and arm.  Her capacity to lift and manipulate objects is also reduced.

95.     Surgery has been suggested to her as a possible way of resolving her shoulder problem.

96.     Her capacity to lift and manipulate objects with her left hand is reduced.  This loss of dexterity in her left hand has not been fully investigated and could be related to carpal tunnel syndrome.

97.     Her condition of anxiety and depression is capable of treatment and is not a permanent condition.

98.     The condition of diabetes, although permanent, is medically well managed, but with intermittent periods where it becomes unstable.

99.     Her condition of lower back pain has not yet been fully diagnosed, treated and stabilised.

100.   Her gynaecological condition is amenable to treatment and is not a permanent condition.

101.   Because of a combination of her various conditions, Mrs Martino is unable to undertake work or training for 15 or more hours per week.

the impairment rating to be allocated to mrs martino’s conditions

102.   The Tribunal is satisfied that the condition of morbid obesity is permanent within the meaning of the Impairment Tables.  In an ideal world, and if Mrs Martino had the funds available to do so, there may be other treatments available to her.  Nevertheless, the Tribunal accepts that she has pursued many treatments over decades without success. 

103.   It is all very well to hypothesise that new and better treatments may be available to a person for a certain condition.  However, the Tribunal is of the view that each person must be considered in the context of what treatments are reasonably  available to them given their particular socio-economic circumstances.

104.   Mrs Martino has spent years pursuing treatments for her obesity without success.  The Tribunal accepts her evidence as to the treatments pursued and finds that it is acceptable that she does not pursue the option of gastric banding which would involve major surgery.  Ms Gagliardi extolled the virtues of obesity programs, but there was no evidence provided by her or by the Department as to the availability, location or cost of such programs to someone in Mrs Martino’s position.

105.   The Tribunal finds that the condition of obesity is a permanent condition within the meaning of the Impairment Tables and was so at the time that Mrs Martino applied for her DSP.

106.   The Tribunal is satisfied that under the Impairment Tables an impairment rating of 15 points should be allocated to her morbid obesity.  The relevant Table provides as follows:

“FIFTEENModerate to severe symptoms which are more distressing but prevent few everyday activities.  Self-care is unaffected and independence is retained.  Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work.  Full-time work would still be possible.

Potentially life-threatening condition which is currently interfering with daily activities but self-care is unaffected.”

107.   The only other condition from which Mrs Martino suffers that needs to be carefully considered in the context of being a possible permanent impairment within the meaning of the Act, and which condition had been to some degree investigated at the time that she made her application for DSP, is the condition that affects her left side strength and mobility.

108.   A careful analysis of the medical evidence available leads the Tribunal to a finding that the general condition of left sided weakness from which Mrs Martino suffers has not been diagnosed, let alone treated and stabilised.

109.   She remains convinced that it is the result of a CVA in 2006.  However, that has not been confirmed and there appears to have been no further tests carried out to establish any cause for her claimed loss of left side strength since a MRI scan of her brain excluded the possibility of any brain lesion that may have been caused by a CVA.

110.   She has a left shoulder condition and she has not fully explored treatments for the condition of bursitis/tendonitis which appears to be the likely diagnosis.  She has elected to pursue a remedial complementary therapy (Bowen Therapy), but there is no evidence of a referral to an orthopaedic surgeon or a physiotherapist for treatment.  She attributes her left sided problems to the CVA, but Dr Long points out that there are a number of other investigations that should be carried out to try to ascertain the cause of her arm and hand problem.

111.   The Tribunal is satisfied that there should not yet be an impairment rating allocated to the left arm and shoulder problem as the physical difficulties that she complains of in that arm have not been fully investigated and treated at the time that she applied for DSP or within 13 weeks of that date.

112.   None of the other conditions from which she suffers attract an impairment rating for the reasons set out above.

113. In the circumstances, Mrs Martino does not satisfy the requirements of s 94(1)(b) of the Act in that she does not have an impairment or impairments that attract a rating of 20 points or more under the Impairment Tables.

114. The requirements of s 94 of the Act are cumulative. As Mrs Martino fails to satisfy the second requirement of the section, there is no need for the Tribunal to go on to consider whether she has a continuing inability to work as defined. In the circumstances, the Tribunal must set aside the decision under review and substitute the decision that Mrs Martino did not satisfy the requirements for DSP either at the date that she applied for that entitlement or within 13 week of that date.

115.   The Tribunal does not doubt that Mrs Martino has genuine health problems.  She is not prevented from making a fresh application for an entitlement if at any time any of her conditions can be deemed permanent within the meaning of the Act.  More precise identification of her left arm and shoulder problems and active pursuit of treatment by her for those problems is a prerequisite if she has any prospect of persuading the Department that her left sided condition is permanent.

I certify that the 115 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         .....................................................................................
  Associate

Dates of Hearing  9 February 2009 & 23 April 2009
Date of Decision  2 July 2009

Advocate for the Applicant       Mr A Parker

Centrelink Legal Services and Procurement Branch

Advocate for the Respondent   Self-represented