Sharpe and Department of Family and Community Services

[2000] AATA 415

DECISION AND REASONS FOR DECISION [2000] AATA 415

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1999/302

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      MICHAEL SHARPE          
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Dr J D Campbell, Member            

Date29 May 2000 

PlaceSydney

Decision      The Tribunal affirms the decision under review.          

(Sgd) Dr J D Campbell
  ……………………………….     
  Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – impairments – hepatitis B – hepatitis C – substance abuse – depression – assessment – ability to work
Social Security Act 1991, section 94, Schedule 1B

REASONS FOR DECISION

Dr J D Campbell, Member   

1. Mr Michael Sharpe ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal, dated 20 January 1999 which affirmed a decision of an authorised review officer of Centrelink dated 20 November 1998. This decision affirmed an earlier review decision dated 21 October 1998 of a delegate of the Secretary, Department of Family and Community Services ("the Respondent"), which found that the decision of a delegate of the Respondent on 30 July 1998 to reject the Applicant's claim for a disability support pension was correct.

2. A hearing was held before the Tribunal on 12 January 2000 at which the Applicant was assisted in his representation by Mr Naranja, his brother-in-law. The Respondent was represented by Ms Alex, an advocate from the Administrative Law section of Centrelink.

3. The following written material was placed in evidence before the Tribunal:
   Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 Medical Report of Dr Galea dated 22 September 1999 Clinical Notes of Dr Galea dated 17 August 1999 Medical Report of Dr White dated 12 May 1999 Medical Report of Dr Liddle dated 15 November 1996 Clinical Report East-West Traditional Medical Centre (Mr R Rilley) dated 27 April 1999 Respondent's statement of facts and contentions dated 6 January 2000 T1-T20 p1-p100 Exhibit A1 Exhibit A2 Exhibit A3 Exhibit A4 Exhibit A5 Exhibit R1

1. Oral evidence was heard from:

   ·Mr Michael Sharpe – the Applicant

   ·Mr Greg Naranja – the Applicant's brother-in-law

   ·Dr Cook – by telephone

ISSUES

1. The relevant issues in this matter were whether the Applicant, at the relevant time, had:

   (a) a physical, intellectual or psychiatric impairment; and
   (b) a combined impairment rating of 20 points or more; and
   (c) a continuing inability to work in that because of his impairments he was:

   (i) unable to work for 30 hours per week within the next two years at award rates or above; and either

   (ii) unable to undertake educational or vocational or on-the-job training during the next two years; or

   (iii) such training was unlikely (because of his impairments) to enable the Applicant to do any work within the next two years.

LEGISLATION

1. The relevant legislation in this matter is the Social Security Act 1991 ("the Act"), in particular subsections 94(1), (2), (3), (4) and (5) and the post April 1998 Schedule 1B tables, for the assessment of work-related impairment for disability support pension ("the impairment Tables").
   BACKGROUND

2. The Applicant completed and submitted a claim for Disability Support Pension on 21 July 1998 (T7). A medical examination, assessment and opinion was completed on 28 July 1998 (T9). A decision to reject the claim was taken on 30 July 1998 by the Respondent (T11). A further review confirmed the earlier decision (T13), as did a reconsideration by an authorised review officer on 20 November 1998 (T17) and the Social Security Appeals Tribunal on 20 January 1999 (T2).
   EVIDENCE
   THE APPLICANT

3. The Applicant told the Tribunal that he was born on 29 September 1957, left school at age 15-16, having not completed fourth form.  From age 16 and for the next 20 years he was a substance abuser involving alcohol, heroin and other drugs. During this period the Applicant said he supported his habit by continuing to work as a labourer in the building and steel fixing industries. In 1988, he commenced work as an operating theatre wardsman at a private hospital in Liverpool where he worked for six years before transferring to wardsman duties at the Liverpool public hospital.  He worked there full time for three years until 1997, when he became part time, working 30 hours per week until he ceased on 8 August 1998 on account of his health problems.

4. The Applicant informed the Tribunal that he formed a relationship in 1993 and that this relationship terminated in September 1999 because of his moods, with the two children living with their mother, and the Applicant currently residing with his brother-in-law.

5. The Applicant told the Tribunal that he had had some drink and drug offences in the past; that he started on methadone therapy in 1982 and continued until he detoxed in Wisteria House in 1993. The Applicant further stated that he remained free of abuse until he started using again in 1999 and that he is currently on 60 mgs of methadone per day, as part of a three day takeaway program. He is currently using heroin once per month and is under the care of Dr Cook, who has prescribed Zoloft for the Applicant's depression.

6. The Applicant further stated that during his time at Wisteria House, he was found to be Hepatitis C positive as well as having abnormal liver function tests. Subsequently he was to have Cirrhosis and Hepatitis B. The Applicant spoke of his main symptoms currently being weight loss, aches, nausea, lack of energy, stays in bed for days, tosses and turns when sleeping at night and tends to be aggressive towards people. The Applicant stated that he smokes 25 cigarettes per day, drinks two bottles of Foster's light per day, last used heroin before Christmas, arises at variable times, does a few chores, does not watch television or read books and goes to the club about once per month. Finally the Applicant stated he would like to go back to work, "but his nerves keep on getting him down."
   MR NARANJA

7. Mr Naranja told the Tribunal that he was a registered nurse until five years ago, when he decided to become a winemaker full time at Lochinvar. Mr Naranja confirmed that the Applicant often spent one to two days in bed at a time, and suffered from fluctuating mood swings, while becoming aggressive at times.
   MEDICAL EVIDENCE

8. In his claim for disability support pension dated 21 July 1998, the Applicant described his clinical symptomology as aches, pains, light headedness, headaches, pins and needles, back and leg pains, loss of strength and muscular use, low self esteem and depression (T7, p51).

9. Dr Chan, the Applicant's treating general practitioner, in his report dated 21 July 1998 (T8) detailed the diagnosis of the Applicant's current conditions as Hepatitis C, with clinical features of malaise, lethargy, tires easily and poor appetite with date of onset being 1996. Dr Chan considered the Applicant's condition to be long term and fluctuating and that the Applicant is unlikely to return to any form of work for more than two years, with the Applicant's work ability being affected because of endurance problems, inability to lift, carry or move objects and inability to alternate between tasks. In a report dated 27 September 1999 Dr Chan stated that he had been treating the Applicant for depression for twenty years.

10. In his report dated 28 July 1998, Dr Thomas, an employed medical practitioner from Health Services Australia, noted the Applicant's medical history and found at examination the Applicant to be "alert and orientated, slightly frail looking, good mobility and dexterity, no signs of chronic liver disease" and nothing abnormal in other clinical systems. Dr Thomas concluded that the Applicant had an impairment, namely Hepatitis C, with clinical features of tiredness, fatigue, lethargy, essentially normal liver function tests, good concentration and good mobility, and noted that he was currently working 30 hours per week but was thinking of resigning, because of both his tiredness and the possibility that his Hepatitis status could become known. Further Dr Thomas concluded that the Applicant was coping reasonably well with his daily activities and assessed the Applicant's impairment rating at ten points under table 11.1 of the Schedule 1B Impairment Tables. As a result of his consultation, Dr Thomas concluded that the Applicant currently had the capacity to work for 30 hours per week in a range of light, skilled, semi-skilled or lesser skilled jobs (T9).

11. In his report dated 9 August 1996 (T3), Dr Liddle, a consultant physician, confirmed that the Applicant's symptoms were mainly fatigue and myalgia; that the hepatitis C was of long standing; that his liver biopsy showed established Currhosis (T4) and that he was to be treated with Interferon for 12 months.

12. In a report dated 29 May 1999, Dr White, a general practitioner at Maitland reported that the Applicant was suffering from a major depressive illness associated with further substance abuse (Exhibit A3). Further pathology reports at that time indicated that the Applicant had a low level of thyroid stimulating hormone and that he also may have Hepatitis B (Exhibit A2).

13. Dr Galea, as a result of further pathology testing, reported on 22 September 1999 that the Applicant's liver function tests were normal; that there was no evidence of continuing liver cell damage; and that the Applicant had Hepatitis C, resolving hepatitis B and major depression with Dr Galea opining that the Applicant was not in a fit state to work, with chances of recovering being slim (Exhibit A1).

14. Dr Cook, a consultant psychiatrist, told the Tribunal that he had been treating the Applicant since October 1999 and had seen him on six to seven occasions, Dr Cook was treating for substance abuse disorder and counselling the Applicant for a chronic depressive disorder (dysthymia), which needed to be ongoing and supportive over the next 12 months. Dr Cook stated that he accepted the Applicant's complaints as valid, that some of the problems were associated with the failure of the relationship; that there may be present low grade symptoms of post-traumatic stress disorder arising from traumatic events as a hospital wardsman and that the prognosis is for a long term counselling and therapy process, including anti-depressive medication. The outcome will, in his opinion, depend on the Applicant's level of motivation, and in that regard a vocational assessment may be of assistance.
    SUBMISSIONS

15. The Applicant contended that he is unable and unfit to work because of the clinical symptomology associated with his Hepatitis B, Hepatitis C, substance abuse and depression. As such he submitted that he qualifies for disability support pension.

16. The Respondent submitted that at the operative period the evidence from both the Applicant and the doctors in the matter, support the contention that the Applicant did not meet the qualification requirements for disability support pension, in that his combined impairment rating was only ten points and that he had an ability to work as demonstrated by the fact that he was working 30 hours per week when examined by Dr Thomas.
    CONSIDERATION AND FINDINGS

17. The Tribunal in considering this matter notes the following relevant legislation, namely subsections 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 points 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 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.

    94(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 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 purposes 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 impairment.

    on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.

    work means work:

    (a) that is for at least 30 hours per week at award wages or above; and

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

1. Further the Tribunal notes that subsection 100(3) of the Act is specific in stating that for any application for disability support pension, the decision maker can only consider impairments present at the time of claim submission or within three months of that date. Other evidentiary material obtained after expiration of the three month period can be used to assist in understanding the nature, scale and scope of the defined impairments existing at the relative time as well as allowing a hindsight perspective of what work restrictions are truly impairment related.

2. In this matter there is no argument that the Applicant had at the operative date, a physical impairment, namely hepatitis C and accordingly the Tribunal finds that the Applicant satisfies subsection 94(1)(a) of the Act.

3. In relation to the stated impairment it is agreed amongst the medical practitioners at the operative period, that the Applicant's clinical symptomology arising from the impairment were malaise, myalgia, tiredness, lethargy, poor appetite and lack of energy and depression. Further the clinical evidence at the operative period was that the impairment had existed for a long time and that Cirrhosis was established. The Tribunal, in accepting the agreed medical evidence at the operative period finds that the Applicant had the impairment of chronic liver disease (arising from Hepatitis C) and further finds that the Applicant's symptoms were consistent with such a diagnosis and that, while they were causing loss of efficiency for the Applicant in his daily activities, it was not really preventing him from completing a daily activity. Further the Tribunal, in noting the evidence of the Applicant that he did not cease work until 8 August 1998 (that being after his claim was initially rejected), finds that the impairment has a rating of ten points under table 11.1 of the Schedule 1B Impairment Tables. In coming to the finding the Tribunal has placed weight on the report of Dr Thomas, an understanding of the Applicant's symptomology at the time as described by the Applicant in his claim, and to both his treating doctor and Dr Thomas.

4. As regards the Applicant's symptom of depression in his claim form, the Tribunal notes the absence of any such symptomology described in the report of the treating doctors at the relevant time (T8), further the absence of any such symptomology in the report of Dr Thomas (T9) and finally any mention in either of the two reports of Dr Liddle. Further the Tribunal notes the apparent dual reason for his resignation on 8 August 1998, as notated by Dr Thomas, clinical symptoms of fatigue and his fear that his Hepatitis C status would be exposed.  As a result of considering these ennumeration circumstances, the Tribunal finds that there is insufficient clinical evidence to support a finding of an impairment of depression at the relevant period. This finding is made despite Dr Chan's medical certificate of 27 September 1999 stating that he had been treating the Applicant for depression for 20 years. The Tribunal could give little weight to Dr Chan's certificate as it lacked detail as to nature, seriousness and treatment of such a disability.

5. The Tribunal concludes that at the relevant period, the Applicant had a combined impairment rating of ten points and further finds that the Applicant has failed to satisfy section 94(1)(b) of the Act.

6. In relation to the Applicant's inability to work at the relevant period, the evidence of the Applicant at the time and the medical evidence as provided by the report of Dr Thomas clearly indicate to the Tribunal that the Applicant had at that time a capacity to work for 30 hours per week, for at the time of the claim and at the time Dr Chan made his report that the Applicant was unfit for work, the Applicant was working, and continued to work for another six weeks.

7. Further the Tribunal notes the minimal loss or restriction of abilities by the Applicant in his home and work activities at the time as reported by Dr Thomas, and further notes the dual reason as to why the Applicant ceased employment. As a result of considering these matters the Tribunal finds that the Applicant did not have a continuing inability to work at the operative period of time in that the Applicant's impairments were not of themselves sufficient to prevent the Applicant:

   i) from doing any work within the next two years; and

   ii) from undertaking educational, vocational or on-the-job training during the next two years; and

   iii) from doing any work within the next two years, after such training has been undertaken.

In arriving at such a finding the Tribunal has given significant weight to the opinion of Dr Thomas, and at the same time given little, if any, weight to the opinion of Dr Chan, an opinion the Tribunal finds scarce of fact, contradictory as to work ability and unduly anticipatory as regards clinical outcome.

1. The Tribunal is mindful that it has made little comment about the Applicant's obvious clinical deterioration during 1999. The clinical evidence is present in abundance that from about May 1999, the Applicant's clinical health has deteriorated and that this has been associated with the departure of his partner and their two children.  Further it is clear to the Tribunal that the Applicant has relapsed as regards substance abuse with heavy narcotics and that since October 1999 he has been under the care of a psychiatrist for his substance abuse and dysthymic disorder. The Tribunal is of a view that there has been a significant deterioration in both the physical impairments, the reappearance of a substance abuse impairment and the development of a psychiatric impairment in the last half of 1999. The Tribunal recognises that these have occurred after the operative period of time, but would suggest that the Applicant reapply for a disability support pension.

2. As a consequence of the Tribunal's earlier findings, the Tribunal concludes by finding that the Applicant does not at the operative period of time satisfy subsections 94(1)(b) and 94(1)(c)(i) in that the Applicant failed to satisfy subsections 94(2)(a) and (b)(i) or (ii). Accordingly the Applicant at the operative period does not qualify for disability support pension
   DETERMINATION

3. The Tribunal affirms the decision under review.

   I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

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

   Date/s of Hearing  12 January 2000
   Date of Decision  29 May 2000
   Representative for the Applicant              Self Represented
   Representative for the Respondent        Adele Alex