Ursino and Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2001] AATA 672

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1772

VETERANS' APPEALS DIVISION          )
           Re      ANTONIO URSINO
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date26 July 2001
PlaceSydney

Decision The decision under review is affirmed

. [sgd] A R Horton AO
Member

CATCHWORDS

SOCIAL SECURITY – claim for disability support pension – Applicant ceased work as barber 1986/87 due effects asthma – last worked 1992 - whether Applicant has physical, intellectual or psychiatric impairment – whether impairment is 20 points or more vide Schedule 1B - ability to undertake work – ability to undertake educational or vocational training

Social Security Act 1991 – ss 94(1), (2), (3), 100(3)
Social Security Legislation Amendment Act No1 (1995)

Re Pirie and Repatriation Commission (AAT 11505, 20 December 1996)

REASONS FOR DECISION

Rear Admiral AR Horton AO, Member

This is an application for review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 7 November 2000, On 5 June 2000, a delegate of the Secretary, Department of Family and Community Services ("the Respondent") decided that Antonio Ursino ("the Applicant") was not eligible for a disability support pension. That decision was affirmed by an Authorised Review Officer of the Respondent on 10 August 2000, then further affirmed by the SSAT on 7 November 2000. The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 27 November 2000.

A hearing before the Tribunal was scheduled for 12 April 2001, but was vacated due to the unavailability of the Applicant. The hearing subsequently took place on 25 May 2001. The Applicant was self-represented. Mr Bernard Slattery, advocate, appeared for the Respondent.
The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence the following:

Medical Certificate from Dr D Martino dated 14 December 2000     Exhibit A1
Medical Certificate from Dr D Martino dated 9 February 2001 Exhibit A2
Medical Certificate from Dr J Lombardo dated 1 May 2001     Exhibit A3
Report by Dr D Keen, Health Services Australia dated 20 March 2001       Exhibit R1
Letter from the Respondent to the Applicant dated 6 April 2001        Exhibit R2

ISSUES BEFORE THE TRIBUNAL AND LEGISLATION
The issue before the Tribunal is whether the Applicant, Mr Antonio Ursino, has a physical, intellectual or psychiatric impairment that is assessed at 20 points or more under the Impairment Tables in schedule 1B of the Social Security Act 1991 ("the Act"), and if so, whether he has a continuing inability to work because of that impairment pursuant to the conditions in subsections 94(2), (3), (5) and (6) of the Act.

Section 94 of the Act states, relevantly:
"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 two 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 educational 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)educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
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
(c)that exists in Australia, even if not within the person's locally accessible labour market.
Sub section 100(3) of the Act is also relevant, and states:
"If:
a)a person lodges a claim for a disability support pension; and
b)the person is not, on the day on which the claim was lodged, qualified for a disability support pension; and
c)the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;
the person's provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia."
Following Re Pirie and Repatriation Commission (AAT 11505, 20 December 1996), the period of assessment in this matter, pursuant to subsection 100(3) of the Act, is from 9 May 2000, when the claim was lodged, to 9 August 2000.
As the SSAT noted, in the past the Applicant has presented with evidence of impairments other than that to which this claim relates – namely an anxiety/depressive illness. The Applicant confirmed that this claim relates only to the condition of asthma, but in the course of the hearing he referred to the condition leading to anxiety, stress and a speech impediment. The Tribunal takes account of those conditions as described, in the context of any medical evidence and as relevant.
Impairment is assessed against the work-related Impairment Tables at Schedule 1B of the Act. The introduction to the Tables states, relevantly:
1.        "These Tables represent an empirically agreed set of criteria for assessing the severity of functional limitations for work related tasks and do not take into account the broader impact of a functional impairment in a societal sense.   For this reason, no specific adjustments are made for age and gender. ..."
2.        These tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. These Tables are function based rather than diagnosis based. …
3. These tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. …    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.
4.The condition must be considered to be permanent. ...
8.        In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. ..."

APPLICANT'S EVIDENCE AND FACTS

Mr Ursino is a single man, 40 years of age. He gave evidence that he has suffered from asthma since childhood. The Respondent concedes that he has a physical, intellectual or psychiatric impairment of chronic asthma and thus meets the qualification criteria as defined in subsection 94 (1)(a) of the Act; the Respondent contends that the sole rateable impairment is asthma.
Following an apprenticeship, the Applicant was self employed as a barber until about 1986/87, when he concluded that the adverse effects of hair sprays and dust on his asthma – which had led to him having to take time off for one or two days each week – made further work in that industry impracticable. When further questioned by the Respondent as to the frequency of having to stop work as a barber, he stated that his asthma affected his activities almost every day.
He subsequently sought an alternate vocation, buying into a tavern with his brother, a business that in time went bankrupt. He gave evidence that he has been on job search allowance or equivalent since 1992. He understood, and the Respondent confirmed, that should he not be successful in this appeal, then he would be required to undertake activity tests, presently in abeyance due to current medical certificates (T60 is relevant).
The Applicant described his medical condition, and the aggravation of his asthma, as being 'controlled by medication'. He considered that Dr Martino, his General Practitioner, looks after him and keeps his asthma under control; he indicated that he visits him about every three months for 'certificates'. He is on a variety of medications, which are modified as circumstances require and as new products become available. He has cut down on a previous heavy smoking habit.
If not controlled, in the absence of medication, he described his asthma attacks as being severe, sometimes leading to four attacks in a day. He described symptoms of tight chest and breathing difficulties, which in his view lead to stress and affect his speech. He told the Tribunal of his concerns at other health problems that might arise as a result of his asthma. He has admitted himself to hospital on two or three occasions, in the absence of medication, the last being some 15 years ago.
The Applicant stated that he used to jog which he believed had a positive effect on his asthma, but had not done so since suffering the more severe effects when working as a barber. He described his daily occupation as remaining at home and watching television, and walking to the shops. He does not own a car, but can drive short distances. Traffic conditions initiate depression and exacerbate asthma.
He considered he could not work until fully recovered, and this may take over ten years. He stated that he could undertake clerical duties, but not at present, as he would need to complete his recovery and 'get fit'. His ability to undertake vocational training would also require him to be fully recovered. His preference is to re-establish a barber-shop wherein he would employ a second barber, enabling him to take time off if necessary; however, he could not do it at present as his 'health is not good enough'.
MEDICAL
The T37 documents contain numerous medical reports on the Applicant by various general practitioners and specialists over a period of some eight years. Dr Martino, or another doctor in the practice in the formers absence, has been his treating general practitioner since 1983.

Dr Martino

Dr Martino provided a Treating Doctor's Report dated 15 June 2000 (T62), relating to this claim for disability support pension. He reports that he saw the Applicant 15 times in the previous 12 months. He diagnoses the Applicant's condition as asthma with chronic clinical features. He assessed that there are no social, cultural or economic factors likely to affect the ability of the Applicant to work. He considered the Applicant likely to be able to return to full-time work (section 94(5) of the Act is relevant) within six months and noted 'patient not mot', which from remarks elsewhere in the T37 documents would seem to mean 'patient not motivated'. He further suggests vocational training would be appropriate.
On 20 June 2000 (T66), Dr Martino wrote to Centrelink stating 'I saw Mr Ursino today and he requested I write to you stating he cannot work for the next two years. …' A subsequent Centrelink file note (T72) by Mr Ken Bullock dated 22 November 2000 refers to a telephone conversation between the author and Dr Martino on 9 August 2000. It states:
"…I spoke to him about the customer. I asked Dr Martino about the certificate for 2 years (as had been advised by the Applicant) and he said there was no such thing. Dr Martino said the customer does have asthma, but it is controlled and there is no reason why Mr Ursino cannot work. Dr Martino referred me to his treating doctor's report of 15 June 2000"
In a note of 27 October 2000 to Centrelink (T76), Dr Martino states 'He (Mr Ursino) continues to state that he is unfit for work. I have referred him to Dr J Mann, Respiratory Physician…' In the medical certificates tendered by the Applicant (exhibits A1 and A2) dated 14 December 2000 and 9 February 2001, both outside the assessment period, Dr Martino contends that the Applicant will be able to work (for at least eight hours a week) within three months and within six to 12 months respectively.
Medical Assessment Report
Dr P Cook of Health Services Australia examined the Applicant on 9 May 2000, and completed a Medical Assessment Report. He considered the Applicant likely to be able to return to full time work within six months, but summarised his condition as 'This man is currently suffering an exacerbation of his lifelong asthma. He is temporarily unfit for work. He is likely to improve with treatment. He should be reviewed in three months.' This assessment lead to a continuation of exemption of the activity test (Centrelink letter of 20 May 2000 (T60) as referred to at paragraph 12). In accordance with paragraph 5 of the introductory notes to the impairment tables, Dr Cook did not assess impairment for this temporary condition. There is no evidence available to the Tribunal to suggest that a 'review in three months', by way of a further examination, was undertaken by the Respondent's doctor.
Dr J Mann
The report by Dr Mann of 15 September 2000 (T75) states, relevantly:
"He is single and unemployed. He started smoking at the age of 15 and smokes about 50 cigarettes a day.
He uses Ventolin and Becotide 100 each three puffs twice a day. On examination he had a slight wheeze on the right, but generally air entry was good. The FEV1/VC was 3.7/4.8 improving to 4.0/5.0 after bronchodilator (normal predicted 3.9/5.0). A chest X-ray on 15 September was clear.
I cannot find any evidence of irreversible airflow obstruction in this man.
Certainly there is no reason why his asthma should prevent him from participating in the work force."
In his evidence, the Applicant cited the referral to Dr J Mann for further examination because 'his asthma was deteriorating', but he believed the subsequent report was 'too simple' and did not explore the wider issues.
Impairment Assessments
The decision of the SSAT on 7 November 2000 assessed a nil impairment rating; it did not consider whether the Applicant had a continuing inability to work.
The decision of 5 June 2000 by a Centrelink delegate did not assess an impairment rating, but found the Applicant could not meet the continuing inability to work clause of section 94 of the Act. The decision by the Authorised Review Officer on 10 August 2000 was to the effect that the Applicant did not have the required 20 points nor a continuing inability to work.
At the request of the Respondent, Dr D Keen, Senior Medical Advisor Health Services Australia, undertook a review of the medical information on file. He did not examine the Applicant. His report of 20 March 2001 (exhibit R1) addresses both the impairment rating and the Applicant's ability to work.
Dr Keen noted that from the file, the Applicant historically and clinically has evidence of obstructive airways disease. He postulated that for irreversible airflow obstruction (chronic airflow limitation) an impairment rating could be given under Table 1 (exercise tolerance) or Table 2 (spirometry). For reversible obstruction (true asthma) Table 21 (episodic conditions) would be appropriate. He agrees with the conclusions of Dr Mann, based on post bronchodilator readings, that there is no evidence of an irreversible component and hence Tables 1 and 2 are not appropriate.
Based on the lack of detail in the documentation as to severity and duration of attacks, limited specialist treatment, no hospitalisation (in fact, the Applicants evidence to the Tribunal was that he had attended hospital on two or three occasions, but not in the last fifteen years), and adequate daily medication, he assessed the condition as mild asthma. He further observed no evidence of any current psychiatric condition. He opined that a total impairment rating (under Table 21) of no more than 10 - as an upper estimate – was appropriate, and that the Applicant 'would be considered for a wide range of full time employment, avoiding dusty environments and his previous hairdressing.'
The SSAT was of the view that Table 2, Loss of Respiratory Function: Physiological Measurements (spirometry), was the appropriate table for assessing impairment in this matter, and based on the readings taken by Dr Mann, found the impairment rating to be NIL.
SUBMISSIONS
The Applicant expressed his concern that decisions as to whether he was eligible for the disability support pension placed undue emphasis on the opinions of medical practitioners rather than the evidence that he, the Applicant, was giving as regards the effect of his chronic asthma, and conditions that resulted from it, on his lifestyle and ability to work. He considered access to the disability support pension was essential to his return to good health. He submitted that Centrelink must bear responsibility for the deterioration in his health.
The Respondent submitted that Table 21, addressing Intermittent Conditions, is the appropriate table in this matter, a view proffered by Dr Keen. This table takes account of discrete episodes relating to a diagnosed condition, and addresses severity, duration and frequency of attacks. The Respondent submitted that an impairment rating of 10 points was appropriate under the criteria incorporated in the various tables forming Table 21. The Respondent further submitted that the Applicant overstated the incidents of 'attack', inferring that these were of some severity when from the evidence of both the Applicant and the treating doctor, they were well controlled by medication. He opined that the evidence was such as to indicate that the Applicant could work for 30 hours per week, could undertake vocational training, and could not limit his consideration of work to barbering only.
The Respondent gave a breakdown of his assessments under Table 21, leading to the total impairment rating of 10. In response, the Applicant was invited to make a self-assessment against Table 21. He submitted that asthma attacks occurred daily, and that a total impairment rating of 30 points, which he established by consideration of each component of the table, was a realistic assessment.
ANALYSIS OF EVIDENCE AND FINDINGS
The Tribunal accords with the submission by the Respondent that Table 21 is the appropriate impairment table in this matter, noting that it is appropriate for the episodic condition of asthma as generally described by the Applicant, and observing the evidence that his medication generally keeps the condition under control.
The evidence of Dr Martino, the treating doctor, is reasonably consistent. On 15 June 2000, he assesses the Applicant as being likely to return to full time work in six months; in later medical certificates at exhibits A1 and A2 he indicates a return to work (at least eight hours per week as per the format on the certificate) in time scales of three months and six to 12 months respectively. His choice of words in his letter to Centrelink on 20 June 2000 may have some significance; in that it states that "he (Mr Ursino) requested I write to you stating he cannot work for the next two years"; a file note of a conversation with a Centrelink officer some months later, records that he denied that he had issued a certificate in respect of (inability to work for) two years. The Tribunal also notes the apparent comment that the Applicant has no motivation, in respect of returning to work.

Dr Cook of Health Services Australia, whilst recording an exacerbation of asthma and temporary unfitness, assesses that the Applicant could return to full time work within six months. Dr Mann sees no reason why his asthma 'should prevent him from participating in the work force'. On the file documentation, Dr Keen assesses impairment rating at 10 points, as an upper estimate, and contends that the Applicant 'could be considered for a wide range of full time employment'. The Tribunal acknowledges that the opinion of Dr Keen is based solely on the section 37 documentation.
The evidence of the Applicant did not persuade the Tribunal that the thrust of medical opinion was incorrect. Whilst he stated that attacks occurred daily, he also described his condition as under control by medication. He has admitted himself to hospital in the past, but not in the last 15 years. He gave no evidence of difficulties with daily tasks, other than driving longer distances. His self assessment under Table 21 of 30 points is structured on a severity level of Four, defined as 'Major restrictions in every day activities. Capacity for self-care is increasingly restricted, leading to partial dependence on others and a duration lasting from 30 minutes to four hours with a frequency of 100+ days per year. This is not supported by the medical evidence nor the Applicants evidence. Nor is a lesser impairment rating of 20 points supported by the evidence. An impairment rating of 10 points as submitted by the Respondent is considered a more realistic assessment, and the Tribunal finds accordingly. The Applicant accordingly does not satisfy the requirement for 20 points or more pursuant to section 94(1)(b) and is thus not eligible for the disability support pension.
A finding in this matter having been made, it is not necessary for the Tribunal to comment on the Applicant's inability to work as required under section 94(1)(c). However, this issue was addressed in the medical reports, and the Applicant provided comment as to his perceived ability to do so. Without exception, medical practitioners took the view that the Applicant could return to full time work within two years. Indeed, the common view was that he could return to work in a much shorter time scale. The Tribunal infers that in making those observations, there was an acceptance that in the event of an exacerbation not controlled by medication, the Applicant might be temporarily unfit for work.
Before the Tribunal, the Applicant showed no inclination to consider any other vocation than barbering, an activity that he conceded he had ceased some 14 years before because of his asthma. It seems unrealistic that he should suggest a return, even in the context of a two person shop to provide flexibility, to the same profession. He professed no interest in any other activity, yet sees the return to barbering as being many years off, when he returns to good health. The inference that the Tribunal must draw is that the Applicant has no real interest in alternative vocations or training, and this is reflected in the treating doctors view that he lacks motivation. Notwithstanding the above comments, the Tribunal makes no finding in respect of section 94(1)(c).
For the reasons given above, the Applicant is not eligible for the disability support pension. The decision under review is therefore affirmed.

I certify that the 39 preceding paragraphs are a true copy of
the reasons for the decision herein
Rear Admiral A R Horton AO, Member
Signed: R Quinn     .....................................................................................
  Associate
Dates of Hearing  25 May 2001
           Date of Decision  26 July 2001
           Solicitor for Applicant  Self represented
           Advocate for the Respondent      Mr B Slattery

[2001] AATA 672

26 July 2001

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Social Security Act 1991

Impairment Rating

Disability Support Pension