Steel and Secretary Department of Family and Community Services

[2005] AATA 695

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 695

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/159

GENERAL ADMINISTRATIVE DIVISION		)
Re		CRAIG STEEL

Applicant

And SECRETARY DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal  Ms M J Carstairs, Member

Date 5 July 2005

Place Brisbane

Decision  For reasons given orally, the Tribunal affirms the decision under review

.................[Sgd]..........................
   M J Carstairs

Member          

CATCHWORDS

SOCIAL SECURITY- Disability Support Pension – condition “diagnosed” “treated” “ stabilised”  - ongoing treatment

Social Security Act 1991 ss 94

Chhit and Secretary, Department of Family and Community Services [2004] AATA 744
McDonald and Secretary, Department of Social Security (1984) 1 FCR 354

WRITTEN REASONS FOR ORAL DECISION

22 July 2005   Ms M J Carstairs, Member

1.      This is an application by Craig Steel (the applicant) for review of a decision made by a Centrelink delegate of the Department of Family and Community Services (the respondent), as affirmed by the Social Security Appeals Tribunal (the SSAT) that the applicant is not qualified for disability support pension.  

2.      At the hearing the applicant represented himself.  The respondent was represented by its advocate Mr J Howard.  After the hearing on 5 July 2005 the Tribunal gave oral reasons for decision.  On 8 July 2005 the applicant requested written reasons and these reasons answer that request.

3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 as well as exhibits marked A1-A4 for the applicant and R1 for the respondent.

BACKGROUND

4.      The applicant is now aged 52 and receives newstart allowance, though this allowance is paid on a basis that he is incapacitated by his medical conditions and cannot look for work at the present time.  

5.      The medical conditions from which the applicant suffers are:

(a)      a left leg and hip condition; and

(b)      cancer of the bladder.

6.      The applicant’s bladder cancer was diagnosed in 2004.  There is only a general description in the medical reports concerning the applicant’s left leg and hip condition.  It is said to be a hereditary condition involving an irregular formation of the veins.  His father suffered from the same condition

7.      In his claim form seeking disability support pension dated 3 November 2004 (T4) the applicant referred to his disabilities as legs, veins and bladder tumours, and he stated that the leg condition(s) dated from 1995.

MEDICAL EVIDENCE

8.      In a report dated 3 November 2004 (T5), Dr N Casey, specialist surgeon at the Gold Coast Hospital, stated that the applicant had a bladder tumour that was surgically resected in October 2004 and a further resection was anticipated.  He said that this medical condition would impact on the applicant’s ability to function for 3 - 24 months but also stated that the effects of the condition on his ability to function were uncertain (p36).

9.      The Tribunal had a number of medical certificates completed by the applicant’s general practitioner, Dr A Belthikiotis, some of which predate the claim for disability support pension.  These are summarised as follows from Dr Belthikiotis’ certificates at T25 and exhibits A1 and A2:

§   5. 4. 03              chronic pain left hip            temporary      likely to persist

§  25. 6.03               chronic pain left hip  likely to persist

§  22. 12. 03           chronic pain L hip/leg         exacerbation likely to improve

§  22.3.04                chronic pain L hip/leg  likely to improve

§  22.6.04                chronic pain L hip/leg         temporary     likely to improve

§  27.9.04                chronic pain L hip/leg         temporary     likely to improve

§  21.12.04              chronic pain L hip/leg         temporary

bladder cancer  permanent

§  18.3.05                chronic pain L hip/leg         permanent     likely to persist

bladder carcinoma              permanent     uncertain

§  17.6.05                chronic pain L hip/leg         permanent     likely to persist

bladder carcinoma               permanent     uncertain

10.     In a report dated 9 December 2004 (T9) Dr J Gurr, medical advisor with Health Services Australia, noted that the applicant was in too much pain to work at that time and he also was having ongoing treatment for bladder cancer.  She referred to an ultrasound in September 2004 revealing a primary neoplasm after which the bladder was resected in October 2004 and was requiring further surgery in February 2005 with the possibility of radiotherapy or chemotherapy.  Dr Gurr said the applicant experienced severe daily pain.  In her view the bladder cancer, if assessable at all, should be rated under Table 20 for moderate to severe pain.  She said, however that the condition was not assessable as its prognosis was unknown and the applicant required ongoing treatment.  In these circumstances she said the condition of bladder cancer should be considered not stabilised which meant it could not be assessed under the Tables.  She recommended the situation should be reviewed in a year.

11.     In regard to what she identified as lower limb disability, Dr Gurr referred to the applicant’s symptoms of pain in the left hip attributed to vascular malformation in the left hip and left leg, and noted that the applicant was to have an ultrasound of the arteries of the leg in January 2005.  She said for twelve months the applicant had needed to use a walking stick and was able to walk less than 500 metres.  She assessed the lower limb disability under Table 4 at 10 points, noting that the condition was permanent and the applicant had a moderate impairment of walking/squatting/kneeling and climbing stairs.

12.     Dr Gurr considered the applicant would be able to undertake light work 30 or more hours per week (with or without disability specific intervention) within 6 to 24 months, however her answers on these questions were provided by ticking boxes on the standard form and were not elaborated upon in the text of her report.  Whilst it is not necessary for the Tribunal to decide this point for the reasons given below, Dr Gurr’s views on the applicant’s ability to undertake work 30 hours per week in the short term are questionable.

13.     In a report dated 1 June 2005 (exhibit R1), Dr C Mitchell, medical adviser with Health Services Australia, reviewed the documents and medical reports, without examining the applicant, and concluded that both medical conditions should be considered temporary (a conclusion reached also by the SSAT when reviewing the matter).  Dr Mitchell stated that the applicant required further investigation for both medical conditions and it could not be stated with certainty that he would not be offered surgical treatment for his lower limb condition within the next 24 months.  In regard to the bladder carcinoma he agreed with Dr Gurr that the condition was not fully treated and stabilised.

APPLICANT’S EVIDENCE

14.     The applicant’s evidence concerning the two medical conditions can be summarised as follows:

§Left leg and hip - that it has worsened with age though he was aware of the condition in his twenties.  He said that by the early 1990’s the leg and hip condition caused him to abandon his work as a landscape gardener as he could not lift and bear weights.  The symptoms of the condition include constant pain; occasionally the leg gives way without warning; he cannot put weight down upon that leg; and he must use a walking stick.The applicant said that he has been told that no surgery can be undertaken while he has the cancer treatment.

§Cancer - that the surgical resection of bladder in October 2004 was an onerous procedure lasting 22 hours and his recovery time was slow.  He endured high levels of pain in the recovery phase and said that it was not until April 2005 that he felt that he was on the road to recovery.  He now has reduced the dosage of endone (a narcotic analgesic) to a quarter tablet daily.   His next cancer treatment by specialists at the Gold Coast Hospital is scheduled for August 2005 and he expects that the procedure will be less onerous than the last.

CONSIDERATION OF THE ISSUES

15. Section 94 of the Social Security Act 1991 (the Act) relevantly provides:

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;

…

16.     The Introduction to the Tables for the assessment of work-related impairment in Schedule 1B to the Act (the Tables) provides, in part:

…

4.        A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised …

5.        The condition must be considered to be permanent.  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.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

6.        In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

§  what treatment or rehabilitation has occurred;

§  whether treatment is still continuing or is planned in the near future;

§  whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

17.     Mr Howard submitted that qualification for disability support pension requires that a person’s impairment be at least 20 points under the Tables provided in Schedule 1B of the Act.  He referred to the Introduction to the Tables and the requirement that for an impairment rating to be assigned at all, a condition must be one that is fully documented and diagnosed, treated and stabilised, and likely to persist for at least two years.  He submitted that the date at which this must be satisfied is at the date of the claim or within thirteen weeks of it. 

18.     The applicant submitted that

§  the rating of 10 assigned by Dr Gurr and accepted by the authorised review officer should not be taken away; and

§  the test as set out in paragraph 5 of the Introduction to the Tables is whether the condition will persist for the foreseeable future.  Mr Steel submitted that Dr Belthikiotis’ reports show that it is clear that his conditions are permanent, that is, that they will persist.

19.     In coming to a decision, the Tribunal took into account the oral evidence, medical reports and submissions from both parties.  The Tribunal was mindful that the Federal Court in McDonald and Secretary, Department of Social Security (1984) 1 FCR 354 at 357 pointed out that there is no onus in administrative proceedings. Nevertheless where a person is making a claim, good sense dictates that the person produce the material which will support the claim. The applicant was critical of Dr Gurr not contacting his specialists as he had provided phone numbers to do so. However the Tribunal noted that he has had to opportunity to provide that information during the course of the review processes and has not done so.

20.     The medical evidence here confirms that the applicant suffers from the conditions claimed.  The identification of the left hip and leg condition is less specific than the diagnosis in regard to the cancer of the bladder but that does not stand in the way of acceptance of chronic pain left hip/leg (Dr Belthikiotis) or lower limb disorder (Dr Gurr) as sufficient identification of the relevant impairment referred to in s94. The medical certificates from Dr Belthikiotis are far from clear or consistent concerning the status of the applicant’s left leg and hip pain. The Tribunal notes that Dr Belthikiotis consistently referred to this condition as temporary until the certificates completed in March and June 2005, well outside 13 weeks from the time of the claim. These certificates are brief and of minimal content. Their probative value is not akin to that provided by the specialists who are treating the applicant.

21.     In the end the issue is whether the applicant has an impairment rating of 20 points, or more particularly, whether the conditions at the time of, or within 13 weeks of, the claim, could be said to be treated and stabilised.  The Tribunal does not accept the applicant’s submission that this question is addressed only by considering whether a condition will persist for the foreseeable future.  Plainly, the words in the Introduction to the Tables present a two stage test.  The first requires a determination of whether a condition is diagnosed treated and stabilised.  The second considers permanence addressed through evidence that allows a view to be formed concerning whether the condition will persist.

22.      The evidence from Dr Gurr’s report is that the applicant’s bladder cancer must be treated as temporary given the way permanent is required to be considered in the Introduction to the Tables.  The evidence in this case is that bladder cancer has been diagnosed but not treated and stabilised.  The applicant’s evidence that he had a long road to recovery after the bladder resection in October 2004 does not detract from his other evidence that he was improving after the treatment in October 2004.  In Chhit and Secretary, Department of Family and Community Services [2004] AATA 744 the Tribunal noted the importance of distinguishing between the condition itself and the symptoms of it when deciding whether a condition is stabilized.

23.     The Tribunal accepts the evidence of Dr Gurr that the applicant’s bladder cancer cannot be regarded as treated and stabilised.  Given the ongoing nature of the treatment it cannot be said that the applicant’s condition was fully treated or stabilised at the time of the claim or within 13 weeks of it.

24.     There is little evidence in regard to the left leg and hip condition.  The Tribunal accepts the applicant’s evidence that he has been aware of the condition for a long time and forced him to abandon heavier forms of work.  The Tribunal also accepts his evidence that his specialist says that nothing will be done in regard to the condition while he is undergoing cancer treatment.  The evidence from Dr Belthikiotis is equivocal about prognosis.  However Dr Gurr had the opportunity to examine the applicant and prepare a comprehensive report in which she reached the conclusion that this condition should be rated under the Tables.  The Tribunal prefers her evidence to that of Dr Mitchell on this point as he was merely conducting a review on the papers and did not have the opportunity to examine the applicant.

DECISION

25.     The Tribunal affirms the decision under review.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member

Signed:         Jeff Mills
  Legal Research Officer

Date/s of Hearing  5 July 2005 [Southport]
Date of Written Reasons          22 July 2005 [Brisbane]
For the Applicant  Unrepresented

          For the Respondent                 Mr J Howard, Departmental Advocate

26.      Looking at the evidence as a whole, the Tribunal is reasonably satisfied that, at the time of the claim, in December 2004, or within three months of that time, it could not be said that the applicant’s bladder cancer was treated or stabilised within the meaning of the introductory words to the Tables for assessment under the Act. The Tribunal was satisfied that the applicant’s left leg and hip condition rates 10 points under Table 4 which provides for moderate interference with walking and other leg functions. Because the applicant has a total rating under the Tables of 10 points the applicant cannot satisfy s94(1)(b) of the Act, which requires a rating of 20 points as part of the qualification requirements for disability support pension.