Yousif; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 1458

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1458

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/736

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

Applicant

And TAMAM YOUSIF

Respondent

DECISION

Tribunal Mr M Griffin, Member

Date12 June 2007

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing, the Tribunal sets aside the decision under review. In substitution thereof, the Tribunal decides that the decision to reject the application for disability support pension made by Mrs Yousif is the correct and preferable decision.

.................(Sgd).............

Mr M Griffin   Member

CATCHWORDS

DISABILITY SUPPORT PENSION - eligibility - impairment rating of 20 points - continuing inability to work during relevant period -  applicant not entitled to disability support pension - decision under review set aside.

REASONS FOR DECISION

12 June 2007   Mr M Griffin, Member

1. At the conclusion of the hearing of this matter the terms of the decision and the reasons of the decision were stated orally. The Applicant pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.

3.      The transcript is annexed and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.

I certify that the preceding pages are a true copy of the reasons for the decision herein of Mr M Griffin, Member

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

Date/s of Hearing   12 June 2007
Date of Decision   12 June 2007
Representative for the Applicant        Mr Gary Richardson
Representative for the Respondent    Self-represented

JUDGMENT  
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2006/736
By MR M.A. GRIFFIN, Member
SECRETARY, DEPARTMENT OF EMPLOYMENT
AND WORKPLACE RELATIONS and YOUSIF
SYDNEY, 12 JUNE 2007

Mr GRIFFIN:
This matter relates to a disability support pension application by Mrs Yousif.  The legislation requires that any applicant for the disability support pension must have impairments of 20 points or more under the impairment tables and a continuing inability to work.

The medical conditions under consideration here are thyrotoxicosis, also called hyperthyroidism; atrial fibrillation; cardiomyopathy and mitral valve disease; and, what Mrs Yousif has called “arthritis” and what the Secretary has referred to as “pain in the legs and in the back”.

Now, Mrs Yousif has told the Tribunal that she is very limited in her ability to do anything, let alone to do work or paid employment.  Her evidence is that she suffers from dizziness which makes it very difficult for her to do anything involving bending up or down.  She takes medication which makes her sleepy.  On occasions she experiences weak, fast breathing and her heart beats fast.  She takes the medication to make these symptoms stop, but she feels sleepy and has to rest when she does that.  These symptoms are not triggered by anything, they just happen by themselves.  Mrs Yousif says that she wishes she could return to work and have her busy, old life back, but she cannot.  She cannot do anything.  Her children have to do the housework and shopping and she spends most of the day in bed.

Now, the applicant Secretary relies on expert medical evidence from a number of medical practitioners.  In respect of the thyroid condition, Mrs Yousif’s general practitioner, Dr Sella, gave evidence in May 2006 that the condition was under control.  Dr Obaid, who is an endocrinologist, originally identified the condition in May 2005 having been looking after her since November 2004.  He treated the condition with medication and in May 2005 described it as “improved and stable”.  Dr Obaid most recently saw Mrs Yousif in April of this year, that is 2007, and as Mrs Yousif just said, the treatment regime continues unchanged, that is, that she continues with the medication.  Dr Gibson, an occupational physician, has given a report in which she says that the thyroid condition should be amenable to pharmacological intervention; that is, that medication should be able to be used to treat the condition.  Dr Gibson questioned whether or not the condition was adequately stabilised and speculated on the requirement for a further series of tests and report from Dr Obaid.  I do not have a report such as that from Dr Obaid.  However, I do have the evidence that Mrs Yousif has recently seen Dr Obaid and that the treatment regime continues unchanged.

In the circumstances, given the evidence of Dr Sella that the condition is under control and the evidence of Dr Obaid that the treatment regime continues unchanged, and the expert opinion of the occupational physician that once stabilised a rating of nil points was appropriate I find, therefore, that the correct rating for the condition of thyrotoxicosis, also known as hypothyroidism, is nil points based on table 19 Endocrine Disorders.

As to the pain condition in the legs and back, Dr Gibson has given a report in respect of the thoraco lumbar and sacral spine which reads as follows:

Mrs Yousif declined to perform any significant spinal movements.  However, at times during the examination at least three quarters normal spinal movement was demonstrated.  There were no neurological findings in the lower limbs to suggest radiculopathy.

Having discussed both the back and the knees and also the doctor’s observations of Mrs Yousif walking and sitting, Dr Gibson assigned nil points for the condition relating to the back, knees and lower limbs.  On the basis of that evidence, I find that nil points is the appropriate rating in respect of knees, back and lower limbs.

I turn now to the conditions relating to the heart.  There are three conditions that I have been able to identify in the medical reports, being: atrial fibrillation, cardiomyopathy and mitral valve disease.

Evidence in respect of these conditions comes from a number of sources.  Dr Sella, the general practitioner, informed the SSAT that as well as the thyrotoxicosis the atrial fibrillation was now stabilised.  Dr Sella also told the Tribunal that the mitral valve disease and cardiomyopathy still caused problems, but no further treatment was planned.  Dr Dunn, the cardiologist, saw Mrs Yousif on 13 February 2006, that is, three weeks after the application for the pension was lodged.  He said subsequently that at that time the cardiac function was normal following the July 2005 cardioversion treatment.  In August 2006, Dr Dunn said that Mrs Yousif had recovered from the cardiomyopathy, that she had a normal ventricular function with no significant mitral regurgitation.  Dr Gibson, the occupational physician, conducted a clinical examination in October 2006 and found nothing to suggest mitral regurgitation.  I am satisfied from those expert opinions that Mrs Yousif’s heart conditions have resolved.  That is, she has recovered from the cardiomyopathy, there is no evidence of atrial fibrillation, and no significant mitral valve disease.

That leaves the objective evidence of six METs.  That is, the test results from the exercise stress test.  Whatever the cause of this reduced function, it appears to be producing that reduced cardiovascular result.  Dr Dunn expressed the view that this level of exercise tolerance was related to her physical fitness and not to any cardiac conditions.  It is not at all clear to me what Dr Gibson’s opinion is on this point, that is, what is the cause of the six METs?  The table is concerned, as I understand it, with cardiovascular disease, but I am not satisfied that that is a matter proven on the evidence.  Dr Dunn says there is no permanent damage to the heart.  He says the six METs, that is, the exercise tolerance, is related to physical fitness and not to cardiac disorders.

In the circumstances I am of the view that there is no diagnosed treated and stabilised condition giving rise to the six METs.  I am not satisfied that there is any diagnosed treated and stabilised condition, and I find that nil points is the correct rating for the cardiovascular condition.  As to the continuing inability to work, I accept the evidence of the expert occupational physician, Dr Gibson, that there is no continuing inability to work or to undertake training that would lead to work, for Mrs Yousif.

My decision is to set aside the decision of the Social Security Appeals Tribunal.  In substitution, therefore, I decide that the decision to reject Mrs Yousif’s claim for disability support pension is the correct and preferable decision.