Sorbello and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1346

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1346

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q200600892

GENERAL ADMINISTRATIVE DIVISION		)
Re		SARINA SORBELLO

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT and WORKPLACE RELATIONS

Respondent

DECISION

Tribunal  Mr P McDermott, RFD, Senior Member

Date 21 May 2007

Place Brisbane

Decision  The Tribunal affirms the decision under review.

.................[Sgd].............................

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY - disability support pension –physical, intellectual or psychiatric impairment – depression; diabetes; fibromyalgia; Hashimoto’s Disease; gastro-reflux and back condition – Tribunal not satisfied of impairment rating of 20 points or more – decision affirmed

Social Security Act 1991 ss 94(1), 94(2), 94(5); schedule 1B
Social Security (Administration) Act 1999 Schedule 2 cl 4(1)

Secretary, Department of Social Security v Murphy (1998) 52 ALD 268
Stojchevski v Secretary, Department of Employment and Workplace Relations [2005] FCA 58

REASONS FOR DECISION

21 May 2007   Senior Member P McDermott RFD

INTRODUCTION

1.      I have to decide whether Mrs Sarina Sorbello is entitled to a disability support pension. My decision will largely turn on whether there is medical evidence that at, and soon after, the time that she lodged her claim, she had medical conditions which had become permanent and which affected her ability to work.

PRIOR DECISIONS

2.      On 27 April 2006 Mrs Sorbello lodged her claim for disability support pension. On 15 May 2006 her claim was rejected on the ground that her condition was likely to improve. On 22 June 2006 Mrs Sorbello requested that the decision to reject her claim be reviewed. On 22 June 2006 the original decision maker confirmed the decision that Mrs Sorbello did not qualify for a disability support pension. On 13 September 2006 the authorised review officer of Centrelink affirmed that decision.

3.      On 15 November 2006 the Social Security Appeals Tribunal affirmed the decision of Centrelink.

4.      Mrs Sorbello has made an application to this Tribunal to review the decision of the Social Security Appeals Tribunal.

ELIGIBITY CRITERIA

5. The entitlement to a disability support pension is conferred by s 94 of the Social Security Act1991 (“the Act”).

6.      A person is qualified for a disability support pension if the person has a physical, intellectual or psychiatric impairment (s 94(1)(a)); and the person’s impairment is of 20 points or more under the Impairment Tables (s 94(1)(b)); and the person has a continuing inability to work (s 94(1)(c)). All of these requirements must be satisfied before a person is entitled to a disability support pension.

7. In considering whether Mrs Sorbello had a “continuing inability to work”, I must have regard to how that expression is defined by s 94(2) of the Act. That definition requires her to have an impairment which is, of itself, sufficient to prevent a person from doing any work within the next 2 years. The term “work” was at the relevant time defined to be work of at least 30 hours per week that exists in Australia, even if that work is not locally accessible by the person (s 94(5)).

8. I mention that there are other provisions in s 94 that Mrs Sorbello satisfies. She is over the age of 16 years (s 94(1)(d)) and is an Australian resident (s 94(1)(e)(i)).

IMPAIRMENT TABLES

9. The Impairment Tables which I must consider are contained in Schedule 1B of the Act.

10.     During the hearing I outlined to Mrs Sorbello some important aspects of the Introduction to the Impairment Tables which I have to consider in the determination of her application.

11.     Paragraph 4 of the Introduction to the Impairment Tables provides that a rating is only to be “assigned after a comprehensive history and examination”. The paragraph states that for “a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”.

12.     Paragraph 5 of the Introduction to the Impairment Tables states that a condition must be considered to be permanent. That paragraph states that once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. The paragraph concludes with a statement that a condition will be considered to be “fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years.”

13.     Paragraph 6 of the Introduction to the Impairment Tables states that in order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider what treatment or rehabilitation has occurred and whether any treatment is still continuing or is planned in the near future.

TIME PERIOD FOR DETERMINING ELIBILITY

14.     During the hearing of his application I explained to Mrs Sorbello that for her to qualify for disability support pension, she must meet the eligibility criteria on the date of her claim or within 13 weeks of that date.

15. I am required to have regard to that time period by clause 4(1) of Schedule 2 of the Social Security (Administration) Act 1999. This provision allows a person who does not qualify for disability support pension at the date of the application to do so within a further 13 weeks.

16.     The time period for which I must determine the eligibility of Mrs Sorbello is the 13 week period commencing on 27 April 2006, which is the date of her claim.  I will in these reasons refer to that time period as the “relevant time period”.

HISTORY OF THE MATTER

17.     Mrs Sorbello gave evidence in support of her application. Mrs Sorbello mentioned that she has a number of conditions which prevent her from being employed. She remarked that her symptoms include headache, depression, anxiety, back pain, shakes, neck pain, tiredness, joint pains, burning pain under the skin and blurry eyes. She is under medication for a number of her conditions.

18.     Mrs Sorbello also discussed her employment history. She worked in a legal office and the public service before her marriage. She also has experience as a doctor’s receptionist; a receptionist in a hairdressing salon; and an office cleaner. Her last employment was with Myers. That employment concluded in 1989.  In 2005 she was employed as a café assistant for less than two months.

TREATING DOCTOR’S REPORT

19.     Centrelink was provided with a Treating Doctor’s Report dated 28 April 2006 from Dr Hwang (T10). Dr Hwang stated that Mrs Sorbello has a number of conditions: depression, fibromyalgia, NIDDM (Type II diabetes – non-insulin dependent diabetes mellitus) and Hashimoto’s Disease. Dr Hwang also stated that Mrs Sorbello experienced tiredness, depression and isolation.

20.     Dr Hwang reported that the condition of depression was a confirmed diagnosis, and he considered that the current impact of the depression on the ability of Mrs Sorbello to function was expected to persist for less than 3 months. Dr Hwang gave the opinion that within the next 2 years her condition was likely to somewhat improve.

21.     Dr Hwang stated that his diagnosis of the condition of fibromyalgia was “presumptive” only, and required further investigation and tests to confirm the diagnosis.

22.     Dr Hwang also stated that the conditions of NIDDM and Hashimoto’s Disease were generally well managed and cause minimal or limited impact on “ability to function”. Dr Hwang also stated that “significant improvement” of these conditions was expected. 

WORK CAPACITY REPORT

23.     On 19 July 2005 a Work Capacity/Participation Assessment Report (T30) was completed by Ms Case, a rehabilitation consultant and a graduate in occupational medicine. This report was completed following a personal interview with Mrs Sorbello. Ms Case was unable to contact Mrs Sorbello’s treating doctor, Dr Hwang, to discuss the conditions. Ms Case considered that further medical management of hypothyroidism and psychological counselling should improve Mrs Sorbello’s functioning. Ms Case considered that Mrs Sorbello would have a work capacity of more than 30 hours a week in 6-24 months.

FINDINGS OF TRIBUNAL

24.     In determining this application I have considered the claimed conditions that are the subject of Mrs Sorbello’s claim (T7, fol 47). I consider that the conditions of depression, fibromyalgia, NIDDM and Hashimoto’s Disease constitutes an impairment (s 94(1)(a)).

25.     I next am required to consider whether her impairment is of 20 points or more under the Impairment Tables (s 94(1)(b)); and whether she has a continuing inability to work (s 94(1)(c)).

26.     In Secretary, Department of Social Security v Murphy (1998) 52 ALD 268 Drummond J explained, at 271, that the documented condition “must also be the condition of disability that the applicant is in after that person has received appropriate treatment for the condition.”

27.     I have concluded that during the relevant time period the conditions of Mrs Sorbello were not “considered to be permanent” in accordance with paragraph 4 of the Introduction to the Impairment Tables. I have already mentioned that paragraph 4 of the Introduction to the Impairment Tables provides that for “a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”.

28.     I have relied upon medical evidence which is before me to find that during the relevant time period the conditions of Mrs Sorbello were not permanent. Dr Hwang also stated that the current impact of Mrs Sorbello’s conditions was expected to persist for less than 3 months.  Dr Hwang also stated that within the next two years he expected her conditions to “somewhat improve”.

29.     Having regard to the evidence of Dr Hwang, I find that during the relevant time period the conditions of Mrs Sorbello had not stabilised.

30.     In view of my finding that the conditions of Mrs Sorbello had not stabilised, I cannot assign a rating for her impairment having regard to paragraph 4 of the Introduction to the Impairment Tables, which states that a rating is only to be assigned after a comprehensive history and examination.

31.     Dr Hwang in the assessment of 2 February 2007 (exhibit R2) has given a rating of 5 points for the condition of fibromyalgia. In my view it is not possible to assign a rating to the condition of fibromyalgia. Paragraph 4 of the Introduction to the Impairment Tables provides that for “a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”. The fibromyalgia condition has not yet been investigated. Dr Hwang has only given a presumptive diagnosis of this condition. Dr Hwang in his report of 2 February 2007 stated that Mrs Sorbello has been advised to seek a specialist opinion on the condition of fibromyalgia and that she is “reluctant” to seek such an opinion (exhibit R2).

32.     I also consider that it is not possible to assign a rating for Mrs Sorbello’s condition of NIDDM. This is because she has been advised by the Royal Brisbane Hospital to attend the Diabetic Clinic. She has declined to attend the Diabetic Clinic - stating that she is able to read literature on her condition. However, during the hearing she indicated that she has had episodes which may be related to this condition. I note that Dr Hwang in his report of 2 February 2007 has stated that her diabetes condition is “well controlled”. In these circumstances even if it was permissible to assign a rating to this condition, the condition would be given a nil rating.

33.     Dr Hwang in the assessment of 2 February 2007 has given a rating of 10 points both for the anxiety condition and the depression condition. Having regard to A Guide to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension, I note that a combined functional loss due to the psychiatric conditions should be assessed, and a single rating should be assigned from Table 6 (Psychiatric Impairment). In Stojchevski v Secretary, Department of Employment and Workplace Relations [2005] FCA 58, Conti J, at [9], adverted to the submissions of the Secretary that a single functional loss should not be assessed more than once. In these circumstances I have assigned a single rating of 10 points for her psychiatric conditions.

34.     Dr Hwang in the assessment of 2 February 2007 has given Mrs Sorbello a rating of nil points for her Hashimoto’s Disease condition.

35.     Mrs Sorbello has complained of other conditions that were not mentioned in the Treating Doctor’s Report. One condition related to her back condition. An X-Ray of her lumbosacral spine was conducted on 13 June 2006 which is within the relevant time period (T17, fol 105). In view of the fact that there is material before me which reveals a normal range of movement of the back, I can only assign a rating of nil points for that condition. Another condition which is not in the Treating Doctor’s Report is the gastro reflux condition. This appears to be well-controlled on treatment and should only be assigned a rating of nil points.

36.     I find that Mrs Sorbello’s impairment is of 10 points under the Impairment Tables.

37.     A further reason why I consider that Mrs Sorbello is not entitled to the disability support pension relates to the fact that there is evidence that she was capable of working for 30 hours per week within the next 2 years. This was the conclusion of Ms Case who reported that Mrs Sorbello would be capable of undertaking more than 30 hours of work per week with disability specific intervention within 6 to 24 months (T30, fol 140).

38.     No medical evidence has been placed before me to suggest that Mrs Sorbello was not capable of working for 30 hours per week within the next two years.

39.     I accept the evidence of Ms Case and find that that during the relevant time period Mrs Sorbello was capable of undertaking more than 30 hours of work per week within 6 to 24 months.

40.     I have decided that during the relevant time period Mrs Sorbello was not entitled to a disability support pension.

41.     I note that Mrs Sorbello tendered a medical certificate during the hearing from Dr Moo. However I could not have regard to this as it fell outside the relevant period of assessment.

42.     My decision relates to the evidence of the condition of Mrs Sorbello during the relevant time period and would not have any bearing upon her entitlement to disability support pension under any subsequent claim that she may lodge in the future.  During the hearing of his application I advised Mrs Sorbello that she had the right to lodge a further application with Centrelink for a disability support pension.  I informed her of that right as she had stated that her conditions had worsened. Any such application would then have to be assessed in the light of more recent medical evidence.

DECISION

43.     I affirm the decision under review.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Mr P McDermott RFD Senior Member.

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

Date/s of Hearing  14 May 2007
Date of Decision   21 May 2007
Applicant represented herself    
Respondent  Mr B Avery, departmental advocate