Tranter; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 2004

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2004

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1381

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And JUSTINE TRANTER

Respondent

DECISION

Tribunal Ms Naida Isenberg, Senior Member

Date30 November 2007

PlaceNewcastle

Decision The Tribunal varies the decision under review in that the Respondent attracts 20 points under the relevant impairment tables during the relevant period. The decision to grant the application for the disability support pension is otherwise affirmed. 

....................[sgd].........................

Ms Naida Isenberg
  Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – physical impairment – entitlement to disability support pension – whether the Respondent had an impairment rating of 20 points or more under the impairment tables – reasonableness of Respondent’s refusal to adopt recommended treatment - whether the Respondent had a continuing inability to work – decision under review varied and affirmed

Social Security Act 1991 – sections 94 and Schedule 1B

Social Security (Administration) Act 1999 – section 13 and Schedule 2

Freeman v Secretary, Department of Social Security (1988) 15 ALD 671

Re Stojanovic and Secretary, Department of Employment and Workplace Relations (2007)

94 ALD 507

Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467

Re Rudder and Secretary, Department of Employment and Workplace Relations [2006]

AATA 249

Re Newman and Secretary, Department of Family and Community Services (2002) 71 ALD

222

Jansen v Secretary, Department of Employment and Workplace Relations [2007] FCA 1358

Re Watts and Secretary, Department of Family and Community Services [2003] AATA 632

Re Crossland and Secretary, Department of Family and Community Services [2004] AATA

864

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Sargeant and Secretary, Department of Family and Community Services [2005] AATA

1076

Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517

Re Secretary, Department of Family and Community Services and Bell (1998) 52 ALD 472

Re Triantafillou and Secretary, Department of Family and Community Services (2003) 73

ALD 568

REASONS FOR DECISION

30 November 2007 Ms Naida Isenberg, Senior Member        

DECISION UNDER REVIEW

1. This is an application by the Secretary, Department of Employment and Workplace Relations (“the Applicant”) for review of a decision made by the Social Security Appeals Tribunal (“SSAT”) on 1 September 2006. The SSAT decided to set aside a decision made by Centrelink on 25 March 2006, and affirmed by an Authorised Review Officer (“ARO”) on 11 July 2006, to reject the Respondent’s (“Ms Tranter”) claim for disability support pension (“DSP”). In substitution of that decision, the SSAT found that Ms Tranter satisfied sections 94(1)(a), (b) and (c) of the Social Security Act 1991 (“the Act”) and had done so since the date of her claim.

BACKGROUND

2. Ms Tranter lodged her claim forms for DSP with Centrelink on 14 February 2006. However, pursuant to subsection 13(1) of the Social Security (Administration) Act 1999, Ms Tranter’s claim was deemed to have been made on 31 January 2006, being the date that she first indicated her intention to claim DSP. In support of her claim, Ms Tranter provided a Treating Doctor’s Report (“TDR”), dated 10 February 2005, from her General Practitioner (“GP”) Dr Beaufils (T8). The TDR stated that Ms Tranter had hepatitis C, chronic liver inflammation causing symptoms such as chronic fatigue and depression, and mechanical lower back pain due to L4/5 disc prolapse and left sciatica. Ms Tranter’s claim was also supported by reports from Professor Batey (a gastroenterologist/hepatologist), Dr Diwan (an orthopaedic surgeon) and Dr Masters (a radiologist).

3.      On 14 March 2006, Ms Tranter was assessed by Dr Cook, a medical adviser employed by Health Services Australia (“HSA”). Dr Cook found that Ms Tranter’s conditions (back pain, hepatitis C and depression) were temporary, and therefore did not award any points for permanent impairment. In relation to her work capacity, Dr Cook reported that Ms Tranter’s current work capacity was zero to seven hours per week, but that her work capacity over a six to 24 month period would increase to at least 30 hours per week. In making this finding, Dr Cook stated that “her [Ms Tranter’s] future work ability is unpredictable but it is likely she will be able to RTW [return to work] in less than two years.” On this basis, Ms Tranter’s claim for DSP was rejected by a Centrelink delegate on 25 March 2006 (T22).

4.      On 11 July 2006, an ARO affirmed the decision to reject Ms Tranter’s claim for DSP. In making this decision, the ARO decided that Ms Tranter’s back condition should be regarded as permanent because of a new report that had been received from Dr Diwan, and assigned the condition an impairment rating of 10 points. However, the ARO agreed that the conditions of hepatitis C and depression should be regarded as temporary, and therefore did not assign them impairment ratings. The decision was made on the basis that neither condition had been fully treated.

5.      This decision was reviewed by the SSAT, and on 1 September 2006, the SSAT set aside the decision and substituted a new decision that Ms Tranter was eligible for the DSP. The SSAT assigned a rating of 20 points for hepatitis C under Table 11.1, and 10 points for depression under Table 6. Given that Ms Tranter had recently undergone back surgery, the SSAT found Ms Tranter’s back condition to be temporary, and therefore did not assign it an impairment rating. The SSAT also found that Ms Tranter had a continuing inability to work because the symptoms of chronic and severe fatigue associated with hepatitis C would prevent her from undertaking 30 hours per week of work or training, and that her depression would significantly interfere with her capacity to function on an everyday basis.

6.      On 11 October 2006, the Applicant applied to the Administrative Appeals Tribunal (“AAT”) for review of the SSAT decision. The application was made on the basis that the SSAT had erred in its decision to assign Ms Tranter 30 points under the impairment tables and in finding that she had a continuing inability to work.

LEGISLATION

7. Section 94 of the Act sets out the criteria for the DSP. To be eligible for DSP, a claimant must have a physical, intellectual or psychiatric impairment of 20 points or more and a continuing inability to work. At the time the decision was made to reject Ms Tranter’s application for the DSP, the requirements in section 94 were as follows:

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(5)    In this section:

…

work means work:

(a)       that is for at least 30 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.

…

CONSIDERATION PERIOD FOR ENTITLEMENT TO DSP

8. Schedule 2, clause 4 of the Social Security (Administration) Act 1999 (“the SSA Act”) provides that the relevant time to consider a person’s entitlement is during the 13 weeks after the claim. Therefore, I had to consider if Ms Tranter was entitled to the DSP on 31 January 2006, or within 13 weeks of that date.

ISSUES BEFORE THE TRIBUNAL

9.      The issues to be determined are:

a)Does Ms Tranter have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables in Schedule 1B of the Act; and, if so,

b)Does she have a continuing inability to work due to her impairment because:

·     the impairment of itself prevents her from doing any work for at least 30 hours per week at award wages within the next two years; and either

·     the impairment of itself is sufficient to prevent her from undertaking educational or vocational training or on the job training during the next two years; or

·     such training is unlikely (because of the impairment) to enable her to do any work for at least 30 hours per week at award wages within the next two years.

EVIDENCE

10.     In addition to the documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975, the following further documents were tendered by the Applicant:

·A1:     Statement of facts and contentions dated 15 October 2007;

·A2:     Dr Stevenson’s medical report dated 10 April 2007;

·A3:     Dr Vickery’s medical report dated 5 September 2007; and

·A4:     A Job Capacity Assessment (“JCA”), completed by Ms Sueanne Trindall, dated 11 October 2007.

11.     Ms Tranter also tendered a number of documents, including:

·R1:     A letter, dated 11 December 2006, from the Department of Medical and Molecular Bioscience at the University of Technology Sydney (“UTS”) confirming Ms Tranter’s participation in a research project relating to hepatitis C;

·R2:     A letter and information from the Hepatitis C Council of Australia, dated 13 November 2006;

·R3:     A letter from Sutherland Community Mental Health Centre dated 18 December 2006;

·R4:     A letter from Karitane dated 19 October 2005;

·R5:     A discharge summary from Tresillian dated 12 April 2005;

·R6:     Information about hepatitis C from the HCV Advocate;

·R7:     Pathology reports for Ms Tranter;

·R8:     Clinical notes from the Sutherland Hospital Division of Mental Health;

·R9:     Supporting statement from Ms Tranter dated 26 March 2007;

·R10:    Letter from Ms Tranter to the Applicant’s representative dated 12 May 2007;

·R11:    Submission from Ms Tranter in response to the Applicant’s statement of facts and contentions dated 17 October 2007.

12.     Ms Tranter gave evidence and was cross-examined on behalf of the Applicant. I also asked her questions. Additional evidence was given by Ms Sueanne Trindall, a JCA Consultant.

13.     I asked Ms Tranter to specifically comment on her conditions as at the date of her deemed claim for DSP, and in the 13 weeks thereafter, rather than her current symptoms.  This approach is consistent with that in Freeman v Secretary, Department of Social Security (1988) 15 ALD 671.

CONSIDERATION OF THE EVIDENCE AND FINDINGS

14.     In coming to the correct and preferable decision, I took into account all of the evidence, submissions, case law and relevant legislation.

15.     I will address the first issue, her impairment rating, by examining each of Ms Tranter’s conditions in the context of the Impairment Tables.

Did Ms Tranter have a physical, intellectual or psychiatric impairment of 20 points or more as at 31 January 2006, or within 13 weeks of that date?

16. Pursuant to section 94(1)(b) of the Act, a DSP claimant’s functional impairment point rating must be determined “under the Impairment Tables.” The Introduction to the Impairment Tables (“Introduction”), in Schedule 1B of the Act, governs the way the Tables are to be applied. Paragraphs 4, 5 and 6 of the Introduction explain the extent to which adequacy of treatment, and the stability of a claimant’s condition, are particularly relevant considerations in the application of the Impairment Tables. According to paragraphs 4 and 6 of the Introduction, for an impairment rating to be assigned, “the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.” Assessment that a condition has been fully treated involves consideration of past, continuing, planned and “further reasonable medical treatment”: paragraph 6.

17.     The Introduction also requires that the claimant’s condition must be “permanent” - in the sense of being more likely than not to persist for the foreseeable future – before it can be assigned a rating: paragraph 5. But a diagnosed “permanent” condition must also be “stabilised” in relation to any associated functional impairment before an impairment rating can be assigned: paragraphs 4 and 6.  A condition is to be treated as “fully stabilised” if “significant functional improvement” is unlikely to occur within two years: paragraph 5.  A consequence of this stability requirement is that a diagnosed condition may be permanent, in the sense that it is “more likely than not that it will persist”, and yet not be “stabilised”.  This will be the case where the impairment related to the condition may be such that significant functional improvement within two years is not regarded as unlikely.

18.     It was contended by Centrelink that none of Ms Tranter’s conditions is permanent.  “Permanency” was therefore a preliminary issue in respect of each of her conditions.

Hepatitis C: Is the condition permanent?

19.     Although the Australian Red Cross Blood Service had apparently noted her condition as early as 1990, Ms Tranter gave evidence of not being diagnosed with hepatitis C until about 1997. At the same time, she was diagnosed with hepatitis B. In response to the diagnosis, she was referred to Professor Batey, who advised Ms Tranter not to return to Japan, and take time to recuperate in Australia.  However, because of work commitments, Ms Tranter returned to Japan, and within a week was hospitalised suffering from jaundice. Whilst the hepatitis B cleared during the six weeks that she was in hospital, the hepatitis C remained. Since that time, Ms Tranter’s liver function tests have never been normal, and she has also experienced severe debilitating fatigue, negative thinking and feelings of being overwhelmed.

20.     After her release from hospital, Ms Tranter was offered a course of interferon treatment, and within a week of commencing the treatment, she suffered a severe reaction to the medication. The severity of the “flu-like” symptoms experienced by Ms Tranter required her mother to travel from Australia to care for her, and prevented Ms Tranter from working. By the third week of treatment, Ms Tranter was experiencing a bizarre symptom - biting herself - and other self-destructive behaviour. She was immediately re-hospitalised for approximately two weeks, and ceased the treatment during that time. However, on medical advice, Ms Tranter resumed the treatment for approximately five months, during which time she experienced intense depression and agoraphobia, “massive” weight loss, tenderness of the liver region, hair loss, skin rashes, vomiting and nausea.  During this time, Ms Tranter said that she began to doubt her own sanity and was suicidal. She ceased treatment. However, having persevered with the treatment for five months, Ms Tranter was disappointed to learn, on her return to Australia to see Professor Batey, that her liver function was still abnormal. 

21.     Ms Tranter returned to Japan in 2002, where she continued to work as an English teacher. During this time, she continued to experience depression, and needed sleeping medication.  She saw a psychiatrist for about a year. 

22.     Ms Tranter decided to return to Australia when she found out that she was pregnant, and her daughter was born in August 2004. After the birth, she experienced severe depression and things “spiralled out of control”.  Dr Beaufils recommended anti-depressants, and Ms Tranter attended Tresillian, where she saw a psychiatrist. She was also prescribed Epilim, which she took for a few months, but discontinued after becoming concerned about its possible effects on her breast milk.

23.     By October 2005, Ms Tranter was exhausted and depressed.  She was prescribed Zoloft whilst at Karitane, and continued taking this until February 2006 when her medication was changed to Efexor. Although the dosage has varied, she is currently still taking 150 mg of Efexor.  She said that she continues to have “dark moods” and negativity.  Notwithstanding the medication, she still experiences times of panic and negative thinking that exist “like a cloud” over her. The clinical notes from the Sutherland Hospital Division of Mental Health (Exhibit R8) refer to bulimia, comfort eating, poor concentration and obsessive cleaning.  They also refer to irritability, chronic low mood, lack of hope and mild insomnia.

24.     Ms Tranter said her major ongoing symptom is fatigue, which occurs almost daily. She describes the fatigue as an “extremely physical” symptom that affects her appetite, causes cramping, bloating and her body to “ache all over.” She falls asleep during the day, cannot play with her daughter and does not feel like moving at all.  On a “good day” she can prepare meals, do some housework and possibly some shopping.   On a “bad day” – about one day in three - she does nothing, and relies on frozen, pre-prepared meals.  She takes her daughter to a family day care centre. 

25.     In her evidence, Ms Tranter said that she would not contemplate taking interferon again.  A 12 month course had been foreshadowed. However, Professor Batey estimated that she only had a 30% chance of the treatment being successful, and that there would be no guarantee that the hepatitis C would not return. In addition, Ms Tranter said that she was not prepared to risk the severe reaction that she had experienced previously, particularly when she is solely responsible for her daughter.

26.     Instead, she has tried alternative treatments, including a balanced diet, liver herbs and abstinence. Ms Tranter also said that she has participated in a twice-weekly, 24 week acupuncture trial, which alleviated symptoms, but only in the short term.

27.     In support of her claim, Ms Tranter provided a TDR, dated 10 February 2005, from Dr Beaufils (T8).  Her symptoms of fatigue and depression were noted in the TDR, as was Ms Tranter’s difficulty in coping with her daughter and other everyday tasks.  Ms Tranter also provided extracts from the HCV Advocate (Exhibit R6) which referred to chronic fatigue as being the most common symptom of hepatitis C. 

28.     Dr Cook, from HSA, conducted a medical assessment of Ms Tranter (T19) and confirmed that she had hepatitis C, with the main symptom being fatigue.

29.      Professor Batey, a gastroenterologist/hepatologist, reported that Ms Tranter was suffering from “exhaustion, depression, (and) lack of appetite”. According to his report, these symptoms “fit(s) with active hepatitis C” (T10).

30.     A letter from the Hepatitis C Council of NSW, dated 13 November 2006, (Exhibit R2) identified the symptoms of hepatitis C as “extreme fatigue, upper right quadrant pain, cognitive impairment, nausea, malaise, depression, anxiety, sleep disturbances and muscle and joint aches.” These are the symptoms Ms Tranter has complained of experiencing. The letter also noted that:

These symptoms can severely affect a person’s lifestyle and ability to perform some work duties or studies…The only way to clear the virus is to undergo [a] combination of drug therapy, which can be an arduous treatment course of either 6 or 12 months…with approximately 50% chance of sustained viral response.

31.     Dr Beaufils referred to Ms Tranter’s previous interferon treatment in the first TDR (T8), and in a later TDR (T26), dated 21 April 2006, reported that Ms Tranter was to see another specialist for “ongoing assessment and perhaps further interferon therapy.”  Dr Beaufils reported in both TDRs that the current impact of the condition was likely to persist for more than 24 months, but also reported that within the next two years, the effect of the condition on Ms Tranter’s ability to function was expected to significantly improve. This opinion was given on the basis that Ms Tranter undertook the interferon treatment.

32.     On 14 March 2006, Dr Cook reported that Ms Tranter was “having no treatment currently”, but was to “see a specialist soon re possible interferon treatment.” He also noted that she had previously had a “good response” to interferon, and regarded the functional impact of the condition as temporary because it was not stabilised.  Ms Tranter objected to Dr Cook’s opinion. This objection was made on the basis that Dr Cook had overlooked the reasons for Ms Tranter ceasing the interferon treatment, which included the severe side effects that she had experienced, and the fact that she had twice been hospitalised for psychotic disturbances during the period that she took the medication.

33.     Dr Stevenson, a Consultant Physician, conducted an assessment of Ms Tranter in relation to hepatitis C, and provided a report dated 10 April 2007 (Exhibit A2).  In his report, Dr Stevenson expressed the view that the condition is “probably permanent”, and that it is “fully diagnosed”.  However, he considered that the condition is not necessarily fully treated, and reported that the appropriate treatment would be interferon combined with antiretrovirals.  He noted that the treatment is feasible and accessible. 

34.     At the request of the Applicant, a JCA report, dated 11 October 2007, was undertaken by Ms Sueanne Trindall, a registered psychologist.  She considered Ms Tranter’s hepatitis C to be a permanent condition in the sense that it will last for longer than two years.  However, because she anticipated a resumption of interferon treatment, Ms Trindall did not consider the condition to be fully treated and stabilised. 

35.     The test for whether a condition is treated and stabilised depends primarily on whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.  In the Applicant’s submission, “likely” means a “reliable expectation” of significant functional improvement (see Re Stojanovic and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 507 at 513 to 515). The Applicant contended that the medical evidence demonstrates a reliable expectation that interferon treatment, with retrovirals, would result in significant functional improvement of Ms Tranter’s hepatitis C within two years of her claim. In making this submission, the Applicant relied on the opinions of Professor Batey, Dr Beaufils, Dr Stevenson and Ms Trindall who all referred to the desirability of further interferon treatment and Dr Beaufils’ anticipation of significant improvement in functional capacity.

36.     However, the more fundamental question in my view is the reasonableness of the medical treatment. Previous decisions of the Tribunal have held that a claimant’s failure to follow treatment recommendations made by their treating medical advisers can preclude a finding that their condition has been "fully treated": Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467 (failure to take migraine medication); Re Rudder and Secretary, Department of Employment and Workplace Relations [2006] AATA 249 (failure to use contact lenses to correct vision); Re Newman and Secretary, Department of Family and Community Services (2002) 71 ALD 222 (failure to attend recommended pain management treatment).

37.     In Jansen v Secretary, Department of Employment and Workplace Relations [2007] FCA 1358, the Federal Court stated at paragraph 23 that:

… “generally” persons will wish to pursue reasonable treatment but, exceptionally, there may be circumstance when such persons do not, ie where (i) significant functional improvement is not expected, (ii) there is a medical reason for the person not undergoing further treatment, or (iii) there is “other compelling reason” for the person not undergoing medical treatment.

38.     Heerey J continued at paragraph 24 that it is not necessary for a person to show “some reason or fact external to his or her decision not to undergo the treatment in question” but that the “emphasis is on subjective good faith…in the person’s decision, however irrational it may seem.”

39.     The Applicant contended that the weight of medical evidence supported the desirability of further interferon treatment.  Ms Tranter’s evidence before me, and to the SSAT, was that she was unwilling to undertake a further course of interferon because of the extreme and debilitating side effects she had experienced with previous treatment.  The SSAT spoke to Dr Beaufils, who reportedly told the SSAT that she believed the only treatment option for Ms Tranter was a course of treatment which included interferon.  The SSAT concluded that Ms Tranter had a compelling reason for not undertaking interferon therapy, and that consequently the medical evidence was that there would not be any significant functional improvement within the next two years.  Dr Stevenson also noted that “refusal to have interferon treatment is not unreasonable.” I agree with this view.  Given the debilitating and extreme side effects that Ms Tranter has described experiencing whilst undertaking interferon, I believe that Ms Tranter has compelling reasons for making the decision to forgo further interferon treatment, and that to require her to resume that treatment would be unreasonable.

40.     I therefore find that her decision is reasonable on the basis of the evidence before me. Accordingly, as the condition is permanent, fully diagnosed and fully treated, I find that the condition is permanent, and should be assigned a rating under Table 11.1.

Hepatitis C: what is the appropriate rating?

41.     In addition to chronic fatigue, Ms Trindall, Professor Batey and Dr Beaufils all referred to depression as a symptom of hepatitis C. Dr Cook reported that there was a relationship between Ms Tranter’s medical problems and her depression. Dr Beaufils also reported to the SSAT that, in her opinion, the hepatitis C needed to be treated if the depression was to resolve. 

42.     Dr Graham Vickery, a psychiatrist, conducted an assessment of Ms Tranter on 7 August 2007.  He reported that there was no evidence of “clinically significant anxiety, major depression, paranoid delusional ideation, formal thought disorder or gross cognitive impairment.” Instead, he found alcohol dependence and borderline personality disorder.

43.     I do not agree with the SSAT that Ms Tranter’s depression exists independently of the hepatitis C.  Dr Vickery, in the only available psychiatrist‘s report, did not diagnose depression as an independent condition.  Ms Tranter provided an extract from a study in relation to hepatitis C and fatigue (Exhibit R6) where the correlation between fatigue and depression, anxiety, somatization, interpersonal sensitivity and hostility were noted.  These are similar to the symptoms Ms Tranter describes. Depressive syndrome was also said to be a common symptom of interferon treatment.

44.     For these reasons, I have dealt with the depression suffered by Ms Tranter as a symptom of the hepatitis C. 

45.     As I have found above, it is unreasonable for Ms Tranter to undertake further interferon treatment for her hepatitis C.  On balance, I consider that it is appropriate to allocate 20 points in respect of hepatitis C under Table 11.1 of the Impairment Tables as follows:

TABLE 11.1    GASTROINTESTINAL: STOMACH, DUODENUM, LIVER AND BILIARY TRACT

Rating  Criteria

NILPeptic 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.  Symptoms (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 or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue.  Most daily activities can be completed but only with some difficulty.

…

Back condition

46.       In both her TDRs (T8 and T26), Dr Beaufils reported that Ms Tranter had mechanical lower back pain due to L4/5 disc prolapse and left sciatica which occurred after a fall in 2003. According to Dr Beaufils, at the time of her claim for DSP, Ms Tranter was unable to sit or stand for prolonged periods or excessively bend, stoop or engage in heavy lifting.  Dr Cook also referred to the back pain experienced by Ms Tranter, and a loss of a quarter range of movement (T19). 

47.     Dr Diwan, in a report dated 16 March 2006 (T20), stated that Ms Tranter had tried a “whole range of non-operative care” and that she continued to suffer back pain. As a final option, Ms Tranter underwent disc replacement surgery in May 2006 from which she appears to have made a reasonably good recovery. The SSAT considered, rightly in my view, that the back condition was temporary, at the time of its review, because her back had not stabilised following surgery.  

48.     Following Ms Trindall’s investigations, Ms Tranter’s condition may be presently rateable at 5 or 10 points; however, at the date of Ms Tranter’s claim and within 13 weeks thereafter, the condition was not fully treated and stabilised because the surgery that eventually resulted in an improvement to her condition had not yet been undertaken. Therefore, a rating should not be assigned to this condition.

Alcohol dependence

49.     This condition was not formally referred to in the medical evidence provided in support of Ms Tranter’s claim for DSP.  Professor Batey, in a report dated 23 September 1999 (T4), stated that he had asked Ms Tranter to see the clinical nurse specialist for advice on management of her excessive alcohol intake.  Ms Tranter‘s evidence was that she was abstinent during her pregnancy and until the death of her husband (which was later than the period in which Ms Tranter’s qualification for DSP is to be assessed).  However, there is no evidence at all about the condition of alcohol dependence in the relevant period, although, according to Dr Vickery (Exhibit A3) she currently drinks four to twelve units per day.   For these reasons, a rating should not be assigned for alcohol dependence.

Combined impairment

50.     Ms Tranter’s combined impairment is 20 impairment points. I now turn to the remaining question:

Does Ms Tranter have a continuing inability to work because of the impairment?

51.     Dr Cook reported that Ms Tranter’s current work capacity was zero to seven hours per week, but that her work capacity over a six to 24 month period would increase to at least 30 hours per week.  He noted that Ms Tranter was a high school teacher and that she was currently unfit for work.  He stated, “her future work ability is unpredictable but it is likely she will be able to RTW [return to work] in less than 2 years.”

52.     The concept of continuing inability to work is not confined to the claimant’s ability to undertake work for which they are trained and skilled, but rather their capacity to undertake any work.  It involves consideration of whether the claimant has an impairment which of itself prevents the person from undertaking any work: Re Watts and Secretary, Department of Family and Community Services [2003] AATA 632 and Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864.

53.     As the only condition I have taken into account is Ms Tranter’s hepatitis C, I do not need to consider the Applicant’s submission in relation to the non-rated conditions.

54.     The Guide to Social Security Law, at 3.6.2.112, sets out several factors that should not be taken into consideration when determining a claimant’s inability to work. These include:

·     the availability of the person’s usual work in the locally accessible labour market;

·     the availability to the person of a training activity that would assist in skilling the person to work;

·     the person’s motivation to work or train except when medical evidence indicates that the lack of motivation is directly attributable to the impairment;

·     the person’s preferences regarding the type of work or training;

·     the person’s potential attractiveness to an employer in a particular area of work; or

·     employer preferences and discriminatory practices that exist in the open labour market.

55.     The Tribunal is not bound to apply policy guidelines of the kind referred to in the Guide (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409). However, unless there are cogent reasons in a particular case for not doing so, the Tribunal may, and usually will, apply such guidelines: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645.

56.     Dr Beaufils and Dr Cook both indicated that Ms Tranter would be able to return to work in less than two years.  Their reports, however, proceeded on the basis that Ms Tranter would undergo further interferon treatment. 

57.     Dr Vickery referred to Ms Tranter’s “subjective difficulty in functioning at times”, but reported that this would not “prevent full time employment.” Ms Trindall went further in the JCA (Exhibit A4), concluding that during the relevant period, Ms Tranter did not have a continuing inability to work. Ms Trindall noted that, without considering the conditions of Ms Tranter that were not fully treated and stabilised, Ms Tranter’s “current” and “future” capacity for work was at least 30 hours per week.

58.     I was referred to Re Sargeant and Secretary, Department of Family and Community Services [2005] AATA 1076 at paragraphs 18 to 20, where the Tribunal recognised the different approaches taken by medical practitioners and work capacity assessors, and preferred the evidence of the work capacity assessor when determining the applicant’s capacity to work.

59.     However, I found Ms Trindall’s evidence to be wholly unconvincing.  Her written report was confusing and relied heavily on pro-formas and computer generated results.  Errors in the report were conceded. She also anticipated that treatment would alleviate symptoms.

60.     Ms Trindall acknowledged that the impact of Ms Tranter’s depressive symptoms on employment would be to limit her:

… capacity to participate in job seeking activities and capacity to identify and obtain suitable employment

… capacity to sustain employment

61.     Ms Trindall further reported that another impact of Ms Tranter’s depressive symptoms on employment would be “withdrawal and isolation from people and screening calls” which “limits capacity to obtain or sustain employment”, and stated that:

Ms Tranter is also suffering from Depression symptoms at present which reduce her endurance, limit her motivation, reliability and resulting in social isolation.

62.     The test to be applied in determining whether the claimant has a continuing inability to work is that of the normal workplace and not that of a benign employer: Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517; Re Secretary, Department of Family and Community Services and Bell (1998) 52 ALD 472. Relying on Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517, the Tribunal in Re Triantafillou and Secretary, Department of Family and Community Services (2003) 73 ALD 568 interpreted “work” to be work that is carried out in the "open workplace" and not work that is insulated from dynamic and unpredictable demands.

63.     Ms Tranter suffers from a constellation of debilitating symptoms. These symptoms are unlikely to be alleviated in the absence of treatment, which itself is likely to cause exacerbating and extreme symptoms.  Her ongoing chronic fatigue dictates that she could not commit to any work which would require any degree of rostering or regularity.  She simply could not be relied upon to attend, because, on her evidence, she can do nothing at all “one day in three”.  Even on her “good days”, her ability to perform any employment role at all would be extremely limited.

64.     I note that the Applicant did not press the re-training issue, and as Ms Tranter   possesses wide experience and a high skill level, it would be inappropriate to suggest she needs re-training.

65.     I therefore find that Ms Tranter was, at the relevant date, qualified for DSP because she has an impairment which is properly rated at at least 20 points under the Impairment Tables. I also find that because of the impairment, she has a continuing inability to undertake any work for at least 30 hours per week in the next two years. 

DECISION

66.     The Tribunal varies the decision under review in that the Respondent attracts 20 points under the relevant impairment tables during the relevant period. The decision to grant the application for the disability support pension is otherwise affirmed. 

I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Naida Isenberg, Senior Member

Signed:         ................[sgd]................................................................
  Associate      

Date/s of Hearing  19 October 2007
Date of Decision  30 November 2007
Advocate for the Applicant       Graham Richardson
Advocate for the Respondent   Self-represented