Adams and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1789
•21 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1789
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0650
GENERAL ADMINISTRATIVE DIVISION ) Re SIMON ADAMS Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Miss E.A. Shanahan, Member Date21 September 2007
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) E.A. Shanahan
Member
SOCIAL SECURITY – disability support pension – claim denied November 2005 – second claim accepted December 2006 – applicant seeking arrears to date of first application – effect of s 152 of Social Security (Administration) Act 1999.
Social Security Act 1991 s 94, Schedule 1B
Social Security (Administration) Act 1999 s 152
REASONS FOR DECISION
21 September 2007 Miss E.A. Shanahan, Member 1. Mr S. Adams applied for review of the decision of the Secretary, Department of Employment and Workplace Relations (the Secretary) dated 14 June 2006 as affirmed by the Social Security Appeals Tribunal (SSAT) on 23 February 2007, denying his eligibility for the Disability Support Pension (DSP). Following the job capacity assessment on 19 December 2006, a Centrelink delegate made the decision that Mr Adams was qualified for the DSP as of 22 December 2006. Mr Adams applied to the SSAT for review of its decision on 8 January 2007.
2. Mr Adams was self-represented and Miss A. Bramley, a Centrelink advocate appeared for the Department of Employment and Workplace Relations (the Department). Centrelink is a service provider for the Department. Mr Adams gave evidence before the Tribunal.
BACKGROUND TO THE APPLICATION
3. Mr Adams, now aged 36, commenced receiving Newstart Allowance (NSA) on 8 November 2004 having been in receipt of unemployment benefits from 20 February 2004. On that date he had suffered a fall at work resulting in injuries to his back and neck. His attempts to resume employment in 2004 failed due to his persistent spinal pain. He had worked for 10 years with Australia Post but this employment was terminated because of his violent behaviour (T5). His last employment was as a Logistic Officer for a period of 18 month. This employment was also terminated (T5).
4. As a result of his chronic pain, Mr Adams developed depression diagnosed as an adjustment disorder and anti-depressant medication was instituted in September of 2004. Mr Adams ceased this medication after three months. Mr Adams has a pending Workcover claim, has been separated from his de facto wife since 2000 and is seeking custody of his son. He has experienced major difficulties with obtaining stable accommodation. These issues have compounded his depression.
5. Mr Adams has not received any treatment or an assessment by a psychiatrist or psychologist, although he was referred to a psychologist with whom he had no rapport and abandoned the interview during the first consultation.
6. Mr Adams’s application for DSP was accompanied by the treating doctor’s report of Dr Huyen Le (T4) and the assessment of Dr Naumoski of Health Services Australia Ltd (T5). Dr Le described Mr Adams’s symptoms and the conservative treatment of Mr Adams back and neck pain as well as his depression. No examination findings were provided. Plain x-rays and a CT scan of the neck on 20 February 2004 were normal and a subsequent plain x-ray and CT scan of the lumbosacral spine showed minor degenerative changes with minor disc bulges at L4/5 and L5/S1. Dr Le diagnosed chronic neck and back pain, and an adjustment disorder and noted a fluctuating functional ability likely to persist for three to twenty‑four months. Dr Naumoski confirmed the above diagnosis assessing Mr Adams as temporarily unfit to work for a period of six months. Examination revealed a full range of movement of the cervical and lumbosacral spines. The adjustment disorder had not been confirmed by a psychiatrist and had not been fully treated. A vocational assessment was also advised. While Mr Adams also suffers from asthma this is well controlled and neither doctor regarded it as impacting on his functional capacity.
7. On 19 December 2006 a Mr Scott Kay, of no declared professional discipline, performed a job capacity assessment based on Mr Adams’s Centrelink file. Mr Kay did not interview Mr Adams and thus did not assess, if Mr Kay was appropriately qualified to do so, the range of movement of the cervical and lumbosacral spine. Mr Kay relied on the treating doctor’s report. The latter was provided by a Dr Pathak dated 28 November 2006. Dr Pathak does not address the range of movement of the neck and spine. The Tribunal cannot find any treating doctor’s report in Mr Adams’s file wherein his range of movement of the cervical spine was assessed as 50 per cent of normal or where the back range of movement was assessed as 25 per cent of normal but does note that Mr Kay telephoned and discussed Mr Adams’ conditions with Dr Pathak (T17, p85). The memo relating to this telephone conversation makes no mention of Dr Pathak’s assessment of the range of movement of the cervical or lumbosacral spines.
8. Mr Adams has suffered several bouts of haematuria (blood in the urine) and blood staining of the semen. This has exacerbated his anxiety and he believes this bleeding relates to his lumbosacral spinal condition; as according to a chiropractic spinal chart he has accessed, the prostate and sex organs are innovated by the L1 nerve root. The Tribunal pointed out to Mr Adams that this is incorrect and referred him to Gray’s Textbook of Anatomy.
EVIDENCE BEFORE THE TRIBUNAL
9. Mr Adams’s evidence is included under paragraph Background to the Application. In addition, he outlined his difficulty in obtaining stable accommodation, his inability to establish rapport with the psychologist Mr Thomas, to whom he was referred and his animosity toward Dr Le who he was considering taking to court.
10. Mr Adams has undertaken several Occupational Health and Safety courses and has completed two-thirds of a real estate course. He intends returning to and completing the real estate course sometime in the near future.
11. Mr Adams informed the Tribunal that he had recently undergone an MRI scan of the spine at St Vincent’s Hospital but he was unaware of the result. In the past he had attended the Commonwealth Rehabilitation Service but at the time was not in the right frame of mind to proceed with rehabilitation. At his last Preliminary Conference at the Administrative Appeals Tribunal (the AAT) he said he became distressed and walked out after five minutes. Mr Adams said he had not received any legal advice with respect to either his SSAT or AAT applications for review.
DOCUMENTARY EVIDENCE
12. The relevant reports have been addressed under Background to the Application. The Tribunal did not have available to it the report of the recent MRI but notes that the cervical CT scan of 21 February 2004 was normal and the CT scan of the lumbar spine requested by Dr Pathak showed minor degenerative changes.
RELEVANT LEGISLATION
13. The requirements for DSP are contained in s 94 of the Social Security Act 1991 (the Act) which states:
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;
(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and …
14. As Mr Adams did not lodge his application to the SSAT for a review of the primary decision of 14 June 2006 until 8 January 2007, s 152 of the Social Security (Administration) Act 1999 (Administration Act) is attracted. Section 152 states:
(1)Subject to subsections (2) and (3), a decision of the SSAT comes into operation immediately on the giving of the decision.
(2)The SSAT may specify in a decision that the decision is not to come into operation until a later day specified in the decision and, if it does so, the decision comes into operation on that later day.
(3)Subject to subsections (4) and (5), if the SSAT:
(a)varies a decision under review; or
(b)sets aside a decision under review and substitutes a new decision;
the decision as varied or the new decision (as the case may be) has effect, or is to be taken to have had effect, on and from the day on which the decision under review has or had effect.
(4)If:
(a)a person is given written notice of a decision under the social security law; and
(b)the person applies to the SSAT more than 13 weeks after the notice was given for review of the decision; and
(c)the SSAT varies the decision or sets the decision aside and substitutes a new decision; and
(d)the effect of the decision of the SSAT is:
(i) to grant the person’s claim for a social security payment or a concession card; or
(ii) to direct the making of a payment of a social security payment to the person or the issue of a concession card to the person, as the case may be; or
(iii) to increase the rate of the person’s social security payment;
the social security law has effect as if the decision under review had taken effect on the day on which the application was made to the SSAT for review of that decision.
(5)The SSAT may declare:
(a)that subsection (3) does not apply to a decision by the SSAT on a review; and
(b)that subsections (1) and (2) apply instead.
(6)This section does not apply to:
(aa)a decision under section 501A of the 1991 Act to the extent to which it relates to the terms of a Parenting Payment Activity Agreement that is in force; or
(a)a decision under section 544B of that Act to the extent to which it relates to the terms of a Youth Allowance Activity Agreement that is in force; or
(b)a decision under section 606 of the 1991 Act to the extent to which the decision relates to the terms of a Newstart Activity Agreement that is in force; or
(c)a decision under section 731M of the 1991 Act to the extent to which the decision relates to the terms of a Special Benefit Activity Agreement that is in force.
15. Schedule 1B of the Act provides instruction as to the assessment of the impairment rating for Mr Adams’s diagnosed conditions under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension.
SUBMISSIONS
Mr Adams
16. Mr Adams relied on the evidence before the Tribunal. He stressed that his prime motivation for review of the decision was principle rather than the money involved. He believed he had been given wrong information throughout the period of his DSP claim and had not been given the appropriate assistance given his lack of knowledge of the law. He said he understood the Tribunal’s explanation of the latter and why his application could not succeed. The Tribunal recommended he seek Legal Aid assistance if contemplating further legal action.
The Respondent
17. Ms Bramley relied upon the Secretary’s Statement of Facts and Contentions which outlined the medical reports, Centrelink decisions, the relevant legislation and the SSAT review findings. The Secretary sought that the AAT affirm the decision under review.
TRIBUNAL’S DELIBERATIONS
18. Mr Adams satisfies s 94(1) of the Act in that he has two physical conditions namely lumbar spinal back pain and cervical spinal pain and the psychiatric condition of an adjustment disorder.
19. Based on the medical evidence, Mr Adams did not satisfy s 94(1)(b) of the Act at the time of his application for DSP on 16 November 2005 as none of these three conditions have been fully diagnosed or treated, although they were considered to be more likely than not, permanent.
20. While it may have been open to both the SSAT and this Tribunal to find Mr Adams did satisfy s 94(1)(b) and s 94(1)(c) of the Act, his delay of six months in lodging his appeal to the SSAT attracted the operation of s 152 of the Administration Act and should either Tribunal have found in his favour, any arrears payable would date from 8 January 2007 when the appeal was lodged. On 8 January 2007 Mr Adams was already receiving the DSP.
21. For the reasons given above the Tribunal affirms the decision under review.
I certify that the twenty ‑one [21] preceding paragraphs are a true copy of the reasons for the decision of:
Miss E.A. Shanahan, Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of hearing: 13 August 2007
Date of decision: 21 September 2007
Advocate for applicant: Self‑represented
Advocate for respondent: Ms A. Bramley, Centrelink Legal Services Branch
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