Baylis and Secretary, Department of Family and Community Services [2003] AATA 115 (7 February 2003)

Last Updated: 7 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 115

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/196

GENERAL ADMINISTRATIVE DIVISION	)
	Re	GILLIAN MARY BAYLIS

Applicant

And

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal

Mr R G Kenny, Member

Date 7 February 2003

Place Brisbane

Decision

The Tribunal affirms the decision under review.

(Sgd) R G Kenny

Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether applicant has physical, intellectual or psychiatric impairment - whether applicant has impairment rating of 20 points or more - relevant time-frame - whether applicant has continuing inability to work

Social Security Act 1991 - section 94, Schedule 1B

Social Security (Administration) Act 1999 - clause 4, Part 2, Schedule 2

REASONS FOR DECISION

7 February 2003

Mr R G Kenny, Member

BACKGROUND

1. On 16 August 2001, Gillian Baylis (the applicant) lodged a claim with Centrelink for payment of disability support pension in respect of the effects upon her of health problems associated with a motor vehicle accident in 1997.

2. On 2 October 2001, a delegate of Centrelink rejected the applicant's claim. That decision was affirmed by an authorised review officer on 26 October 2001 and, in turn, by the Social Security Appeals Tribunal on 25 January 2002. On 27 February 2002, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).

APPEARANCES

3. The applicant attended the hearing but was not represented. Mr T Ffrench, of the Advocacy and Administrative Law Team with Centrelink, appeared on behalf of the Secretary, Department of Family and Community Services (the respondent).

4. At the hearing, the following material was taken into evidence:

Exhibit 1 - documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents: T1-54);

Exhibit 2 - a medical report, dated 14 August 2001, from Dr G McGrath, the applicant's treating doctor;

Exhibit 3 - a medical report, dated 3 April 2002, from Dr N Sawyer, from the Beenleigh Medical Centre;

Exhibit 4 - an X-ray report, dated 5 April 2002, from Dr D Gribbin;

Exhibit 5 - a statement, dated 25 April 2002, from the applicant;

Exhibit 6 - an affidavit, dated 25 April 2002, from the applicant;

Exhibit 7- a medical certificate, dated 16 July 2002, from Dr S Kanagarajah from the Beenleigh Medical Centre;

Exhibit 8 - a medical report, dated 8 May 2002, from orthopaedic surgeon, Dr P Duke;

Exhibit 9 - an undated statement from the applicant;

Exhibit 10 - a medical report, dated 2 September 2002, from Dr I Lee;

Exhibit 11- a medical report, dated 8 November 2002, from Dr P Jackson, specialist in musculoskeletal medicine;

Exhibit 12 - a further medical report, dated 19 January 2003, from Dr P Jackson; and

Exhibit 13 - a submission from the applicant.

ISSUES AND LEGISLATION

5. The issues in this matter relate to whether or not the applicant is qualified to receive a disability support pension which is payable in accordance with the terms of section 94 of the Social Security Act 1991 (the Act) which, in so far as relevant, reads:

"(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; ...

(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 form 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.

Note: For work see subsection (5).

(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.

(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do the work, have regard to the likely availability to the person of work in the person's locally accessible labour market.

(5) In this section:

`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

(b) that exists in Australia, even if not within the person's locally accessible labour market."

6. In accordance with that provision, the Tribunal must determine:

§ whether the applicant has a physical, intellectual or psychiatric impairment; and, if so

§ whether she has an impairment rating of 20 points or more which is calculated under the Impairment Tables in Schedule 1B of the Act as required by paragraph 94(1)(b) thereof; and, if so

§ whether she has a continuing inability to work as required by subparagraph 94(1)(c)(i) of the Act.

7. To qualify for a disability support pension all three of the requirements must be met by the applicant. Further, they must be met at the time of the initial claim or in the period of thirteen weeks starting immediately after the day on which her claim was lodged as provided for in clause 4, Part 2, Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) which reads:

"4 Start day--early claim

(1)If:

(a) a person (other than a detained person) makes a claim for a relevant social security payment; and

(b) the person is not, on the day on which the claim is made, qualified for the payment; and

(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

(d) the person becomes so qualified within that period;

the claim is taken to be made on the first day on which the person is qualified for the social security payment."

8. The Tables in Schedule 1B of the Act with potential relevance in this matter read:

"TABLE 3: UPPER LIMB FUNCTION

All upper limb problems are assessed under the upper limb Table (Table 3). Each arm is assessed separately. Determination of upper limb impairments must be based on a demonstrable loss of function.

Rating Criteria

NIL Can use dominant limb effectively and/or demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.

FIVE Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function or manual handling.

TEN Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.

FIFTEEN Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes significant interference with hand function or manual handling.

TWENTY Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes significant interference with hand function or manual handling or unable to use non-dominant upper limb at all.

THIRTY Unable to use dominant upper limb at all.

TABLE 4: FUNCTION OF THE LOWER LIMBS

Table 4 is used to assess lower limb not spinal function (see Table 5). Assess both limbs together. Determination of lower limb impairments must be based on a demonstrable loss of functions.

Rating Criteria

NIL Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.

TEN Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or

Pain or claudication restricts walking to 250-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.

TWENTY Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following:

Climbing, squatting, sitting or kneeling or

Pain or claudication restricts walking (4km/h) to 50-250m or less at a time. Can walk further after resting or

Unable to walk or stand but independently mobile using a self-propelled wheelchair.

THIRTY Pain or claudication restricts walking (4km/h) to 50m or less at a time. Can walk further after resting or restricted to walking in and around home and:

requires quad stick, crutches or similar walking aid, or

is unable to transfer without assistance.

FORTY Unable to walk or stand and mobile only in a motorised wheelchair or wheelchair with an attendant.

TABLE 5: SPINAL FUNCTION

Determination of spinal impairments must be based on a demonstrable loss of function.

TABLE 5.1 Cervical spine

Rating Criteria

NIL Normal or nearly normal range of movement.

FIVE Loss of quarter of normal range of movement.

TEN Loss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain.

TWENTY Loss of three-quarters of normal range of movement and constant neck pain.

THIRTY Loss of almost all movement, or complete ankylosis in position of function.

FORTY Ankylosis in an unfavourable position, or unstable joint.

TABLE 5.2: Thoraco--lumbar-sacral spine

As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.

Rating Criteria

NIL Normal or nearly normal range of movement.

FIVE Loss of one-quarter of normal range of movement.

TEN Loss of one-quarter of normal range of movement as well as back pain or referred pain:

with many physical activities and

with standing for about 30 minutes and

with sitting or driving for about 60 minutes; or

Loss of half of normal range of movement.

TWENTY Loss of half of normal range of movement as well as back pain or referred pain:

with most physical activities and

with standing for about 15 minutes and

with sitting or driving for about 30 minutes; or

Loss of three-quarters of normal range of movement.

FORTY Ankylosis in an unfavourable position, or unstable joint.

TABLE 11.2: GASTROINTESTINAL: PANCREAS, SMALL AND LARGE BOWEL, RECTUM AND ANUS

Rating Criteria

NIL Anal disorder: infrequent and minor symptoms, eg, haemorrhoids, anal fissures, controlled by medication

Bowel disorder, eg, irritable bowel, diverticulosis: infrequent and minor symptoms such as constipation, or bowel disorder which respond to dietary treatment alone.

TEN Bowel disorder: frequent moderate symptoms despite optimal treatment

Occasional faecal soiling despite optimal treatment

Anal disorder: marked symptoms despite regular treatment

Colostomy, ileostomy - well controlled

Established chronic pancreatic disease with moderate symptoms (pain/steatorrhoea)

Large abdominal hernia not easily reduced and resulting in persistent moderate symptoms.

TWENTY Faecal soiling necessitating frequent changes of underwear and an incontinence pad despite optimal treatment

Bowel disorder: marked symptoms, such as regular diarrhoea and frequent abdominal pain, only partially controlled by optimal treatment

Colostomy, ileostomy - poorly controlled

Large abdominal hernia and/or repeated unsatisfactory hernia repairs resulting in frequent and persistent severe symptoms

Established chronic pancreatic disease with severe symptoms (pain/steatorrhoea).

THIRTY Bowel disorder: diarrhoea and abdominal pain on most days, with poor response to treatment and considerable interference with daily routine Jejunostomy

Established chronic pancreatic disease with severe symptoms (pain/steatorrhoea) and with intractable complications.

FORTY Complete faecal incontinence.

TABLE 20: MISCELLANEOUS -MALIGNANCY, HYPERTENSION, HIV INFECTION, MORBID OBESITY (ie BMI >40), HEART/LIVER/KIDNEY TRANSPLANTS, MISCELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN

Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used. Double-counting of a particular loss of function, by the use of more than one Table, must be avoided.

Rating Criteria

NIL Controlled hypertension

Malignancy in remission with a good to fair prognosis

Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.

TEN Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.

Hypertension that is difficult to control despite intensive therapy but without end-organ damage

Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis

Heart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms.

FIFTEEN Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible. Potentially life-threatening condition which is currently interfering with daily activities but self-care is unaffected.

TWENTY More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work.

THIRTY Very severe symptoms which lead to substantial difficulty with most daily tasks. Assistance with elements of self-care may be required. Symptoms cause severe interference with ability to work or attend work (ie. minimal residual work capacity).

Heart/Liver/Kidney transplants - poorly controlled (poorly functioning) with fairly severe symptoms which lead to substantial difficulty with most daily tasks

Malignant hypertension - severe, uncontrolled

Inoperable, symptomatic and life-threatening aneurysm or malignancy. Very poor prognosis with only a very limited lifespan.

FORTY Major restrictions in many everyday activities. Capacity for self-care is restricted, leading to dependence on others. No residual work capacity."

CONSIDERATION

9. The applicant, who was born on 8 July 1942, has experienced health problems as a consequence of injuries that she sustained in a motor vehicle accident in 1997. At the time, she was employed by Telstra as a customer services provider but was forced to resign from her position in 1998 because of the effects of her health problems. These included pain in her cervical and thoraco-lumbar spine regions, bilateral carpal tunnel syndrome, diverticular disease and osteoarthrosis in the left 1^st toe. These conditions were referred to by her in her claim for disability support pension. In 2002, the applicant was seen by Dr Jackson who has diagnosed fibromyalgia syndrome.

10. The applicant is not able to sit for more than 20 to 30 minutes without taking relief by standing and she has difficulty with pain when walking. She is able to use a computer but her carpal tunnel syndrome causes wrist pain after about 20 minutes. She also experiences a frequency of bowel movements which she associates with her diverticular disease. She said that her main complaint is the muscle pain that she feels throughout her body and which is an element of her fibromyalgia syndrome.

11. Medical reports in evidence before the Tribunal which provide guidance on the appropriate ratings to apply from Schedule 1B of the Act were those of Dr T McGrath (see T40) and Dr Jackson (exhibit 11). Dr McGrath gave the following descriptions and recommended ratings:

condition	Description	rating
cervical spine	normal range of movement	Table 5.1 - nil
thoraco-lumbar spine	normal range of movement; sitting tolerance 1 hour; can walk 15-30 minutes; chronic back pain	Table 20 - 10
carpal tunnel syndrome	mild interference with function	Table 3 - nil
diverticular disease	gets diarrhoea at times; control with diet	Table 11.2 - nil
osteoarthrosis left 1st toe	minimal interference with walking	Table 4 - nil

12. Dr Jackson recommended a single rating of 20 points under Table 20 and referred to severe symptoms with decreased ability/efficiency to carry out many every day activities. Dr Jackson's report makes reference to the conditions noted above by Dr McGrath but is mainly concerned with fibromyalgia.

13. Section 4 of Schedule 1B of the Act requires that a rating may only be assigned to a condition which is diagnosed and which has been "investigated, treated and stabilised". Moreover, the effect of clause 4, Part 2, Schedule 2 of the Administration Act (see above) is that this requirement must be met at some time within the thirteen weeks of the initial claim. Whilst it may be the case that the applicant was suffering from the effects of fibromyalgia during that period, the condition was not diagnosed until much later by Dr Jackson. This means that the symptoms associated with that condition are not able to be taken into account as part of the applicant's claim.

14. I am reasonably satisfied that the applicant has a physical impairment as referred to in paragraph 94(1)(a) of the Act and, indeed, this was conceded by Mr Ffrench. However, the only evidence of the level of impairment for the conditions relevant to the applicant's claim is that provided by Dr McGrath. That evidence leaves me reasonably satisfied that the overall impairment under the Tables in Schedule 1B of the Act is 10. That is not sufficient to reach the threshold set by paragraph 94(1)(b) of the Act. This means that, as at the date of her claim or in the thirteen week period thereafter, the applicant does not meet one of the necessary criteria for payment of the disability support pension. In that situation, it is not necessary for me to consider the issue of the applicant's ability to work as provided for in paragraph 94(1)(c) of the Act.

DECISION

15. The Tribunal affirms the decision under review.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

Signed: Sarah Oliver

Associate

Date of Hearing 28 January 2003

Date of Decision 7 February 2003

The Applicant Represented Herself

Solicitor for the Respondent Mr T Ffrench, Departmental Advocate