Wareing and Secretary, Department of Employment and Workplace Relations
[2006] AATA 862
•9 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 862
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/275
GENERAL ADMINISTRATIVE DIVISION ) Re BARRY WAREING Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Dr. John Campbell, Member Date9 October 2006
PlaceSydney
Decision The decision under review is affirmed. ....................[sgd]........................
Dr J. Campbell
Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Consideration of nominated impairments – assessment of impairments – continuing inability to work – consideration of the evidence – consideration of the applicable legislation – decision under review is affirmed
Social Security Act 1991 Section 94, Schedule 1B
Social Security (Administration) Act 1999, Schedule 2
REASONS FOR DECISION
9 October 2006 Dr John Campbell, Member
1. Mr Wareing was born on 13 November 1945. He lives alone in his own home at Woy Woy. Mr Wareing retired from his job as a cleaner on 12 August 2005, his retirement occurring as a result of the increasing problems with his asthma from dust, and discussion with Dr Caska, his treating general practitioner.
2. Mr Wareing lodged a claim for disability support pension on 16 August 2005 nominating the following list of disabilities, illnesses and injuries:
(a)poorly controlled diabetes mellitus
(b)anxiety
(c)depression
(d)labile hypertension
(e)chronic gout
(f)chronic asthma
3. Mr Wareing further indicated that such conditions often caused him difficulties with standing, sitting, lifting, carrying, concentrating, remembering, interaction with others, ability to attend work or other appointments, understanding or following instructions, sleeping, breathing or managing his personal affairs. Mr Wareing also noted that the various conditions sometimes caused him difficulty with sitting, driving a car, using public transport, bending and hearing.
4. A treating doctor’s report by Dr Caska, dated 10 August 2005 (T5), was lodged with the claim. Dr Caska nominated the following conditions and their associated clinical features, which he believed impacted on Mr Wareing’s ability to function:
(a)Severe hypertension - evident since 2003, very labile and difficult to control. Headaches and poor concentration.
(b)Depression/anxiety - onset in 2004, with severe insomnia, depression, agitation, hypervigilence and irritability – causing irritability and poor concentration.
5. Dr Caska considered the effect of these conditions on Mr Wareing’s ability to function would persist for more than two years and that Mr Wareing was unfit to work. In an accompanying medical certificate, dated 13 August 2005 (T7), Dr Caska nominated two further conditions, namely:
(a)non-insulin dependent diabetes mellities
(b)asthma
6. In a medical assessment report dated 19 September 2005 (T11), Dr Bonnert, a medical adviser at Health Services Australia nominated Mr Wareing’s conditions as:
(a)chronic bilateral feet pain, with moderate impairment to walking, climbing and squatting
(b)Depression – recent onset with moderate psychiatric symptoms
(c)High blood pressure/diabetes – hypertension difficult to control
7. Dr Bonnert assessed the various conditions as either temporary and/or requiring further investigation and/or requiring stabilisation.
8. On 14 October 2005 Mr Wareing’s claim was rejected. On 25 December 2005, an Authorised Review Officer, while noting evidence of investigation of a renal condition, affirmed the earlier decision. On 20 February 2006 the Social Security Appeals Tribunal affirmed the decision of the Authorised Review Officer. In this matter Mr Wareing seeks a review of his lodged claim.
Issues
9. The relevant issues in this matter are:
(a)Does Mr Wareing suffer from any physical, intellectual or psychiatric impairments?
(b)If Mr Wareing does suffer from such impairments, does an assessment of each impairment, when combined, provide an impairment rating of 20 or more points pursuant to the Schedule 1B impairment tables?
(c)In the event that Mr Wareing’s combined impairment rating is found to be 20 or more points, does Mr Wareing have a continuing inability to work?
Determination
10. For the reasons stated later in this decision, I conclude that Mr Wareing:
(a)Does suffer from particular physical impairments, and thereby satisfies section 94(1)(a) of the Social Security Act 1991 (“the Act”).
(b)An assessment of each individual impairment, when combined, result in a combined impairment assessment of 10 points. With such a finding Mr Wareing fails to satisfy section 94(1)(b) of the Act and his claim must fail.
(c)In light of the finding in (b), I have considered it unnecessary to consider the issue of whether Mr Wareing has a continuing inability to work pursuant to section 94(1)(c) of the Act.
Background
11. In evidence before the Tribunal Mr Wareing detailed the following relevant information:
(a)He has lived on the Central Coast for forty years and until retirement in August 2005, has worked continuously since leaving school as a wood machinist, taxi driver (10 years) and cleaner for the past 18 years.
(b)He lives alone in his own home and tends to all his household activities, including housework, washing, ironing, cooking, cleaning, vacuuming and shopping. He drives a car and averages 14,000 kilometres per year. He enjoys gardening and spends a few hours each day tending to such activities, but since returning from hospitalisation a few months ago, he has engaged someone to mow his lawn because of the shortness of breath on exertion.
(c)He visits his non-dependent children in Tamworth and Bowral two or three times a year and attends the Club on Saturday evenings, during which he may consume four or five schooners of beer.
(d)Described an average day as arising at 0800, has breakfast, feed animals, read the paper, potter around, time in garden, occasionally shopping, a little television in the evening while retiring to bed at about 2100 hours. Mr Wareing stated that he does not smoke, and his sleep is “not too bad”, with the symptoms associated with his anxiety/depression no longer causing him much difficulty. Mr Wareing stated that such symptoms arose prior to and around the time of his retirement, and at a time when his desire to work on to age 65 was thwarted by the dust at work causing him increasing problems with his asthma and he became down a little because he missed his work.
Consideration and Findings
12. The matter in issue is whether Mr Wareing satisfied the criteria for qualification for disability support pension at the time of lodgement of his claim (16 August 2005) or within a period of 13 weeks thereof in (the operative period) as defined by Schedule 2 of the Social Security (Administration) Act 1999.
13. The next issue of consequence is that Mr Wareing suffers from chronic renal disease (chronic nephritis). I have already noted mention of such a circumstance in the Authorised Review Officer’s decision. More pertinent however was a series of reports by Dr Ibels, a consultant nephrologist. In these reports commencing 10 March 2006, Dr Ibels details the chronology of Mr Wareing’s kidney conditions, the condition of his related and difficult to control hypertension and his admission to Gosford Hospital on 14 August 2006 with acute cellulitis of the lower limbs, long standing diabetes, hypertension, atrial fibrillation, left ventricular failure and known proteinuria and marked peripheral oedema.
14. While noting the presence of the chronic nephritis and difficult to control hypertension, I am satisfied on the evidence before me that investigation, necessary treatment and stabilisation of these two conditions was not effectively established until May 2006 (Professor Ibels report of 29 May 2006 – Exhibit A6).
15. I also note the report for Dr Rogers, Consultant Cardiologist of 20 July 2006 (Exhibit A10). This report clearly defines Mr Wareing’s cardiac problems to include some degenerative change to the heart valves, atrial fibrillation, severe pulmonary hypertension and some left ventricular dysfunction. While such investigative findings are well outside the operative period, they predate Mr Wareing’s admission to Gosford Hospital in August 2006 with a number of serious conditions in existence. Again I find that such cardiac conditions were not fully investigated, and treated and stabilised until well after the operative period, with an earlier report from Dr Rogers dated 30 November 2000 (Exhibit A7) detailing some evolving cardiac pathology.
16. In addressing the issue of whether Mr Wareing suffers from any physical and/or psychiatric impairment, it is evident that at the time of lodgement of his claim and during the operative period, Mr Wareing suffered from the following impairments:
(a)chronic renal disease, namely chronic nephritis
(b)difficult to control hypertension
(c)evolving cardiac pathology, namely degenerative changes in valves, ventricular hypertrophy and pulmonary hypertension
(d)chronic asthma
(e)non insulin dependent diabetes mellities
(f)chronic gout
(g)depression/anxiety
(h)chronic pain and soreness in lower limbs
17. In noting the list of impairments as I have done, I recognise that the impairments relating to the heart and kidneys have been defined essentially during 2006, as a consequence of further investigation. However, I do consider that the chronicity of such impairments as defined by the nature of each condition allows me to conclude that each was in existence at the operative period, albeit the severity, investigation and stabilisation having not been affected by that time.
18. In so finding, I further conclude that Mr Wareing satisfies Section 94(1)(a) of the Act.
Assessment of Each Impairment
19. I make the following assessment for each impairment in accordance with the “Schedule 1B Impairment Tables” and for the reasons detailed:
(a)Chronic Nephritis – I am unable to detail an impairment rating for this impairment as, as stated earlier in this decision, the impairment had not been fully diagnosed, investigated, treated and stabilised (Introduction to Schedule 1B) at the time of lodgement or during the operative period.
(b)Cardiac Pathology – I am unable to detail an impairment rating for this impairment, for the same reasons as detailed for chronic nephritis.
(c)Hypertension – I am unable to detail an impairment rating for this impairment, for while in existence during the operative period, control and stabilisation has only been effected once diagnosis and investigation of the chronic renal disease has occurred. This control appears to have been effected in May 2006 (Professor Ibels report of 29 May 2006 – Exhibit A6).
(d)Chronic Asthma
(i)Mr Wareing detail that the dust at his last place of work caused him to have increasing difficulty with his asthma. His treating doctor added a preventive medication to his ventolin and Mr Wareing stated that his asthmatic condition has been well controlled.
(ii)In such circumstances I conclude that Mr Wareing has a nil points rating for this impairment pursuant to impairment table 20 as he had minor symptoms which are easily tolerated and have no appreciable effect on ability to work.
(e)Non-Insulin Dependent Diabetes Mellitus
(i)Condition is well controlled with oral medication.
(ii)Diet (alcohol) does cause some episodic raised sugar levels.
(iii)I conclude that the impairment rates nil points pursuant to Impairment Table 19.
(iv)Condition adequately controlled with therapeutic agents.
(f)Depression/Anxiety
(i)Mr Waring was particular in his evidence that the main symptoms of these conditions have ameliorated.
(ii)He is still prescribed talohexal tablets (20mgs) each evening, which he takes occasionally, with his ability to sleep no loner impaired and his social interactions unimpeded.
(iii)In such circumstances I consider that this impairment must be regarded as a temporary condition at the relevant operative period as the impairment at that time had not been investigated, treated and stabilised.
(g)Lower Limb Soreness
(i)Mr Wareing was particular in stating that for some two to three years before the operative period, he experienced pain in his feet and soreness on the soles of both feet, together with puffiness of both feet.
(ii)He stated that he was able to walk 300-400 metres, with his feet beginning to swell in 2004. Mr Wareing stated that this is in addition to the pain and swelling which arises in his feet when he has an occasional attack of gout (twice a year) and for which he receives medication.
(iii)I conclude that the appropriate assessment for this impairment is 10 points pursuant to Table 4 in that Mr Wareing has a demonstrable loss of mobility, stability and sensation which causes moderate interference with walking, climbing and squatting, there being pain and soreness present on walking 300-400 metres at a moderate pace, which can be repeated after rest.
(iv)In such circumstances it matters not whether the symptoms arise from a peripheral neuropathy associated with his diabetes, underlying vascular disease and/or his gout.
20. In summary, I conclude that Mr Wareing’s total combined impairment rating during the operative period was 10 points. In such circumstances, Mr Wareing did not satisfy section 94(1)(b) of the Act.
21. Finally, I would note that as a consequence of the later material in evidence pertaining to his chronic nephritic and cardiac impairments, all of which essentially relate to events, investigations and opinions in 2006, I would consider a further claim lodged and assessed may well indeed have a different outcome in terms of assessment of impairments currently existing.
Determination
22. The decision under review is affirmed.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J. Campbell.
Signed: [sgd] .....................................................................................
AssociateDate/s of Hearing 15 September 2006
Date of Decision 9 October 2006
Representative for the Applicant Self-represented
Advocate for the Respondent James Larcombe
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