Beekman and Secretary to the Department of Family and Community Services

[2002] AATA 1215

DECISION AND REASONS FOR DECISION [2002] AATA 1215

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/590
GENERAL ADMINISTRATIVE DIVISION
  Re:         GERRIT BEEKMAN
  Applicant
  And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             26 November 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review. 

(sgd) G.D. Friedman
  Member
SOCIAL SECURITY - disability support pension - anxiety/depression, lymphoma, shoulder and back pain - whether impairment is of 20 points
Social Security Act 1991 s94(1)

REASONS FOR DECISION

26 November 2002  G.D. Friedman, Member

1. This is an application by Gerrit Beekman (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 15 May 2002. The SSAT affirmed a decision of Centrelink dated 16 April 2002.  In the Centrelink decision an authorised review officer affirmed a decision to refuse the applicant's claim for disability support pension because the impairment rating for his conditions was insufficient to meet the criteria.

2. At the hearing of this matter on 21 November 2002 the applicant represented himself and Ms C. McInnes, an Advocate with Centrelink, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T30), together with one exhibit (Exhibit A1) tendered by the applicant.   
   BACKGROUND

4. In July 1999 the applicant ceased work because of anxiety associated with his employment and his wife's illness.  He has been receiving Newstart (incapacitated) Allowance since then.  On 19 December 2001 the applicant applied for Disability Support Pension based on anxiety/depression, lymphoma, right shoulder pain and lumbar and lower back pain.  On 1 March 2002 Centrelink refused the claim, following a medical assessment by Health Services Australia (HSA), because his impairment rating was below 20 points.  After the authorised review officer affirmed the decision, the applicant sought review by the SSAT on 22 April 2002.  Following the decision of the SSAT, the applicant lodged an application with the Tribunal on 7 June 2002.
   EVIDENCE

5. The applicant gave oral evidence that, following an incident of anxiety/depression at work in June 1999, he was placed on medication, and his condition has remained stable since.  He is being monitored by his general practitioner (Dr O. Koniuszko) and has not sought or been referred for psychiatric treatment.  He stated that he experiences episodes of stress and tries to stay away from stressful situations wherever possible.  He explained that he has had low back pain for many years and initially required physiotherapy.  The applicant said that he has had shoulder and neck pain for some time.

6. The applicant told the Tribunal that he is undergoing chemotherapy for his condition of stage 3 lymphoma, and the long-term effects and prognosis are unclear.  He stated that this condition is becoming worse, and that the medical reports do not give an accurate reflection of his true situation.  He said that there is no possibility of a return to work.

7. Mrs P. Beekman, the applicant's wife, told the Tribunal that the applicant has suffered from back, shoulder and neck pain for many years.  She said that his lymphoma is serious and progressive, and requires a bone marrow transplant.  She confirmed that the applicant's anxiety/depressive condition, together with the other conditions, prevents him from employment.

8. Mr P. Beekman, son of the applicant, told the Tribunal that the applicant's lymphoma is particularly serious, and that this has not been addressed adequately in the medical reports.  He stated that, in his opinion, the conditions are becoming worse, and that independent medical assessment, including psychiatric evaluation, would be desirable.

9. In a report dated 17 January 2002, Dr J. Hilal of HSA found that anxiety/depression was temporary and improving, and therefore not stabilised.  He assessed the condition as a nil impairment rating.  Dr Hilal also gave a nil impairment rating for lymphoma, as the condition was temporary because it was not fully treated or stabilised.  He considered bilateral shoulder pain and thoraco lumbar spine to be permanent, and gave a nil impairment because of minor symptoms.

10. In a report dated 10 January 2000, Dr Koniuszko assessed the anxiety/depression condition as temporary and improving, with a good prognosis.  In a report dated 12 January 2001, Dr Koniuszko stated that pain and restriction of movement were temporary, and the applicant would be able to return to work in 6-12 months.  In a report dated 14 December 2001, Dr Koniuszko assessed the conditions of lymphoma, right shoulder pain lower back pain to be long-term and fluctuating.
    CONSIDERATION OF THE ISSUES

11. Section 94 of the Social Security Act 1991 (the Act) provides:

    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

    (d)       the person has turned 16; and

    (e)the person either:

    (i)is an Australian resident at the time when the person first satisfies paragraph (c); or

    (ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

    (iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

    (A)is not an Australian resident; and

    (B)is a dependent child of an Australian resident;

    and the person becomes an Australian resident while a dependent child of an Australian resident.

12. In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. The Tribunal accepts that the applicant suffers from anxiety/depression, lymphoma, degenerative lower back and neck pain and shoulder pain, and finds that the applicant satisfies s94(1)(a) of the Act. The Tribunal notes that an impairment rating may be given for any permanent medical condition that has been fully diagnosed, investigated treated and stabilised.

13. With respect to s94(1)(b) of the Act, the Tribunal notes the medical evidence that the condition of anxiety/depression is temporary and improving, and therefore is not stabilised. The Tribunal accepts that the condition was caused by work-related stress and the medical condition of the applicant's wife, and notes that no psychiatric treatment has been considered by the treating general practitioner to be necessary. Dr Koniuszko is monitoring the situation and has prescribed medication.

14. The Tribunal takes into account that Table 6 of the Impairment Tables regarding permanent psychiatric impairment refers to the desirability of obtaining a current or recent specialist report in the absence of sufficient clinical information for permanent psychiatric disorders.  In view of the medical evidence that at the time of application for DSP the condition was temporary and not stabilised, and because of a lack of clinical information or a report from a psychiatrist, the Tribunal is not in a position to conclude that a rating above nil is appropriate.

15. After taking into account the oral and medical evidence, the Tribunal finds that the condition of lymphoma is serious and is being treated by chemotherapy.  The Tribunal notes that Table 20 may be used for miscellaneous conditions. In view of the medical evidence that, at the time of application for DSP, the condition was not fully treated or stabilised, and because of a lack of clinical information or a report from the applicant's oncologist, the Tribunal is not in a position to conclude that a rating above nil is appropriate.

16. There is no demonstrable loss of functionality in the applicant's shoulders, (Table 3) and the condition affecting the thoraco lumbar spine has minor symptoms (Table 5.2).  Therefore, on the available material, the Tribunal finds that, for these conditions, an impairment rating of nil is appropriate.

17. For these reasons, the Tribunal finds that the applicant's impairment is not of 20 points or more under the Impairment Tables, and he does not satisfy s94(1)(b) of the Act and therefore cannot satisfy s94(1). Accordingly, there is no necessity for the Tribunal to determine whether the applicant has a continuing inability to work under s94(1)(c) of the Act.
    DECISION

18. The Tribunal affirms the decision under review.

    I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision of:
    G.D.Friedman, Member

    (sgd)       Catherine Thomas
                  Clerk

    Date of hearing:  21 November 2002

    Date of decision:  26 November 2002
    Advocate for applicant:               Self-represented
    Advocate for respondent:            Ms C. McInnes, Centrelink