Smits and Secretary, Department of Family and Community Services

[2005] AATA 520

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 520

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/312

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		Mr John Smits

Applicant

And Secretary, Department of Family and Community Services

Respondent

WRITTEN REASONS FOR ORAL DECISION

Tribunal Ms N Bell, Senior Member

Date5 May 2005

PlaceSydney Registry.

Decision The decision under review is affirmed

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

Ms N Bell
  Senior Member

SOCIAL SECURITY - Disability Support Pension - Applicant Accrued 15 Points Under Relevant Tables - No Entitlement.

WRITTEN REASONS FOR ORAL DECISION

6 June 2005 Ms N Bell, Senior Member

1.Mr Smits is a 57 year old man who was last employed in about December 2003.  Mr Smits has applied to this tribunal for review of the Social Security Appeals Tribunal’s decision that he is not entitled to a Disability Support Pension.

2.The matter was heard by the tribunal on 5 May 2005, at the Coffs Harbour Local Court House and an oral decision was delivered that day.  A formal request for written reasons was received by the tribunal on 23 May 2005.

3.In order for Mr Smits to satisfy section 94(1) of the Social Security Act 1991 (the Act), he must have an impairment or impairments that attract(s) at least 20 points under the Impairment Tables as set out in Schedule 1B to the Act and he must have a continuing inability to work as defined in section 94(2) of the Act, that is, he must be unable, because of his impairments, to work for at least 30 hours per week.

mr smits’ evidence to the tribunal

4.There is no dispute that Mr Smits suffers from the following conditions:

·     Atrial fibrillation;

·     Osteoarthritis and carpal tunnel syndrome of the hands, with symptoms being worse in Mr Smits’ left hand.

·     Hiatus hernia;

·     Colonic polyps.

5.Mr Smits also mentioned having a perforated ear drum, which he has had for a very long time but noted that it causes him minimal discomfort.  There is no formal diagnosis of Mr Smits’ ear condition.  There is also some suggestion in the medical evidence before the tribunal that Mr Smits may suffer from an anxiety type disorder, but no formal diagnosis has been made.  It follows that I cannot take either of these two conditions into account.

6.With regard to Mr Smits’ atrial fibrillation, he said that he “lives on medication”.  Symptoms described by him were excessive perspiration; feeling fatigued after 10-15 minutes of activity; nausea and shortness of breath.  Mr Smits stated that he is able to mow his relatively small lawn and does so every week or two.  He added that when he feels symptomatic, he needs to sit down and rest.  Mr Smits noted that this condition affects his sleep, that he often wakes up in the night with his heart pounding and that these palpitations can last for up to 15 minutes.  He suffers from reflux and has to sleep on his side, he also suffers pain across the top of his chest “from armpit to armpit” and sometimes down into his arm. 

7.The carpal tunnel syndrome that Mr Smits suffers from affects his left hand the worst.  To treat this condition Mr Smits takes ‘Panamax’ and can have up to six in a day, but usually takes two each day.  He said that he has taken other medications for this condition in the past but now relies on ‘Panamax’ alone.  Mr Smits said that he is right-handed and that he naturally uses his right hand more than his left.  He is able to pick up items with his left hand without difficulty, for example, a cup of coffee, but still favours his right.

8.For his hiatus hernia, Mr Smits takes ‘Zonac’.  The dominant symptom caused by this condition is reflux, so Mr Smits is careful not to eat dairy products and drink fizzy drinks and mostly sleeps on his left hand side on raised pillows. He described this condition as being “not too bad”.

9.Mr Smit’s colonic polyps give him stomach cramps.  He described this condition as one that gives him minimal discomfort as long as he does not lean on his stomach, although he does sometimes wake up during the night with stomach pain. 

10.Mr Smits said that if he did not have trouble with his hands or the atrial fibrillation condition he would probably be able to work. 

11.In an average day Mr Smits will wake up between 5:00am and 6:00am but not get out of bed until 7:00am.  He eats a small breakfast and watches some television then will help clean up the breakfast items.  He might wash his car or mop (noting that about half of the floor area in his house is covered in tiles); do some housework; read the paper; watch television or listen to the radio; help his wife with the shopping at the local plaza.  He said he is able to help load the groceries into the car and occasionally wheel the trolley.  Mr Smits stated that by late morning he usually feels tired and by about 2:00pm may have a short nap.  Mr Smits said he does not go out much socially.  He will see his grandchildren every weekend as they live just four houses down on the same street and may accompany his wife when she takes her mother out to lunch once a week.  Mr Smits said that his mother-in-law lives with him and his wife.  His mother-in-law is blind but does not need physical assistance.

12.Mr Smits drives an automatic car but his wife will not let him drive unaccompanied.  Although Mr Smits lives close to the beach he does not swim.  He did like to go fishing but does not do that anymore.  Mr Smits told the tribunal that he can walk about 200 yards before needing to sit down and rest.  He said that by this stage he is usually short of breath, feeling tired in his legs and sometimes feels pain in his chest.

13.When asked to think about the kind of employment he may be capable of, Mr Smits expressed that he is anxious about his health, part of that reason being his brother dying from a heart related illness.  He said that he may be able to do light work but only for 10 to 15 minutes before feeling nauseated or fatigued.  Mr Smits said that he would be willing to “have a go” but was not sure how long he could persist. 

impairment tables for assessment of mr smits’ conditions

14.Schedule 1B to the Social Security Act 1991, provides a range of tables to be used when attributing impairment ratings to conditions that are diagnosed, treated and stabilised.  In Mr Smits’ circumstances Tables 3, 11.1 and 1.2 are relevant.

15.Table 3 is relevant to Mr Smits’ osteoarthritis of the hands and carpal tunnel syndrome, it provides the following:

Rating Criteria	Upper Limb Function.
NIL	Can use dominant limb effectively and/or Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.
FIVE	Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function or manual handling.
TEN	Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function or manual handling.
FIFTEEN	Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes significant interference with hand function or manual handling.
TWENTY	Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes significant interference with hand function or manual handling or Unable to use non-dominant upper limb at all.
THIRTY	Unable to use non dominant upper limb at all.

16.Table 11.1 is relevant to Mr Smits’ hiatus hernia and colonic polyps and provides as follows:

Rating Criteria	Gastrointestinal:  Stomach, Duodendum, Liver and Biliary Tract
NIL	Peptic ulcer/oesophagitis/liver disease:  mild symptoms despite optimal treatment.
TEN	Nausea and vomiting:  moderate symptoms despite optimal treatment.  Peptic ulcer/oesophagitis:  continuing frequent symptoms despite optimal treatment.  Past gastric surgery with moderate dyspepsia and dumping syndrome.  Established chronic liver disease.  Symptons (eg fatigue, nausea) may cause minor loss of efficiency in daily activities but rarely prevent completion of any activity.
TWENTY	Constant dysphagia requiring regular dilatation.  Vomiting:  severe, not controlled despite optimal medication, and causing significant weight loss.  Peptic ulcer refractory to all treatment including surgery or with complications eg bleeding or outlet obstruction.  Established chronic liver disease.  Symptoms (eg, more persistent fatigue, nausea, abdominal pain) may prevent symptoms of fatigue.  Most daily activities can be completed but only with some difficulty.
THIRTY	Diet limited to liquid or to pureed food or long term total parenteral nutrition Gastrostomy.  Established chronic liver disease.  Symptoms (eg, ascites, bleeding disorders, hepatic encephalopathy, more severe fatigue, nausea, vomiting) may cause substantial difficulty with most daily tasks.

17.Table 1.2 relates to the level of energy Mr Smits can steadily expend.  This table relates to Mr Smits’ artrial fibrillation condition and relevantly provides as follows:

TABLE 1. LOSS OF CARDIOVASCULAR AND/OR RESPIRATORY FUNCTION:

EXERCISE TOLERANCE

Cardiovascular and Respiratory function is measured by reference to exercise tolerance. A rating is obtained from Table 1 by determining the lowest MET band which causes restriction in activity from a cardiac or respiratory condition. 1 MET is defined as average oxygen consumption at rest which is 3.5mLO₂/kg/min.

The clinical judgement of medical officers based on history and examination is to be used but in cases where a reliable history is difficult to obtain despite discussions with the treating doctor or the history of exercise tolerance is inconsistent with clinical findings on examination, the results of an Exercise ECG or Respiratory Function Test may be obtained.

The appropriate MET level is calculated using the lists in Table 1.2.

Peripheral Vascular Disease is assessed under the lower limb Table 4. Varicose veins are assessed under either the Lower Limb or Skin Table. Hypertension is assessed under Table 20. Where exercise intolerance is caused by a combination of cardiac and respiratory conditions, Table 1 is to be used and used only once. Episodic conditions such as cardiac arrhythmias and episodic asthma should be assessed under Table 21 unless they are exercise induced.

Assignment of rating

Rating Symptomatic Activity Level (METs)

NIL  7-8 or higher

FIVE 6-7

FIFTEEN 5-6

TWENTY 4-5

THIRTY 3-4

FORTY 2-3 or less

TABLE 1.2 Metabolic cost of activities

INSTRUCTIONS

Listed below is a more comprehensive set of activities, with their corresponding MET level. One MET represents the energy level expenditure associated with the consumption of 3.5ml O₂/kg body weight/minute. Please use this list to assist you in determining an appropriate symptomatic MET level for the claimant.

In determining the symptomatic activity level, greater reliance is placed on activities which involve a steady expenditure of energy (eg. walking steadily for 10 minutes) as opposed to a sporadic expenditure of energy (eg. playing one hole of golf). The former activities are more reliable indicators of exercise tolerance. Less reliance is placed on activities which can be completed in less than a few minutes, as symptoms may take longer than this to occur.

Metabolic cost of activities

3-4 METs	Energy required for walking at average pace
Walking 5km/hr (average walking pace)	Vacuuming	Machine assembly
Sedate cycling (10km/hr)	Minor car repairs	Shifting chairs
Light gardening (weed/water)	Light carpentry (chiselling, hammering, sawing and planing with hand tools)	Hanging out the washing
Tidying house (includes carrying heavy objects)	Playing golf (with power buggy)	welding
4-5 METs	Moderate activities:  encompasses  more active daily activities with the exclusion of manual labour and vigorous exercise.
Mopping floors	Gentle swimming	Stocking shelves with light objects
Golf (pulling buggy, carrying bags)	Ballroom dancing	Painting outside of house
Stacking firewood	Beating carpets	Cleaning windows
Wallpapering	Polishing furniture	Pushing light power mower over flat suburban lawn at slow, steady pace
Hoeing (soft soil)	Showering	Walking 6.5 km/hr (sustained brisk walk, discomfort talking at the same time)
Cleaning car (excludes vigorous polishing)
5-6 METs	Heavy exercise:  manual labour or vigorous sports
Shovelling dirt (12 throws/min)	Digging in garden	Walking slowly but steadily up stairs
Tennis doubles (social non-competitive)	Scrubbing floors	Pushing a full wheelbarrow (20kg)

consideration

18.Turning first to Mr Smits’ osteoarthritis, carpal tunnel syndrome, hiatus hernia and colonic polyps, I accept that he has some symptoms from those, but they are not sufficiently incapacitating to attract a rating under the relevant Table.

19.Mr Smits best fits METs level 5 to 6, which attracts 15 points given his evidence that he can mow his lawn, clean his car, vacuum, mop the floor and walk 200 yards.  This is also consistent with the opinion of Dr Greacen of Health Services Australia and Dr Tung Vu who found Mr Smits to have a negative exercise ECG.  It follows then that Mr Smits does not meet the 20 points requirement, which is the first limb of determining whether a person is entitled to a Disability Support Pension under the Act.

20.I note, however, that Mr Smits has reason to be anxious about his heart condition in particular.  It might be worthwhile for Mr Smits to raise these concerns with Dr More and see if it something can be done to assist.  

decision

21. The decision under review is affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         ...........[Linda Blue]...............................
  Associate

Date of Hearing  5 May 2005
Date of Oral Decision                5 May 2005
Date of Publication of Reasons 6 June 2005
Solicitor for the Applicant          Ms S Mantaring, Centrelink Legal Services