Brightwell and Secretary, Department of Family and Community Serv Ices

[2004] AATA 261

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 261

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2003/148

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MIRIAM BRIGHTWELL

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date12 March 2004

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security - claim - disability support pension - impairment rating - both legs - inability to work - Malta - Australia - SSAT.

Social Security Act 1991 – s94

Social Security (Administration) Act 1999

Social Security (International Agreements) Act 1999 – (Schedule 6 – Malta)

Guide to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension

REASONS FOR DECISION

12 March 2004	Associate Professor B W Davis AM (Part-time Member)
Decision Under Review

1.      The applicant, Miriam Brightwell seeks review of a decision made by a Centrelink officer on 25 February 2003, subsequently affirmed by the Social Security Appeals Tribunal on 25 August 2003, to reject the applicant’s claim for disability support pension.

Decision on the Papers

2.      This is an international matter, to be decided on the papers (consent by the applicant dated 24 July 2003, prior to the SSAT hearing).

Issues

(a)(a) Does the applicant satisfy s94(1(b) of the Social Security Act 1991 (“the Act”), in terms of an impairment rating 20 points or more under the Impairment Tables?

(b)Does the applicant satisfy s94(1)(c) of the Act i.e. does the applicant have a continuing inability to work?

Standard of Proof

3.      The standard of proof is on the probabilities and to the reasonable satisfaction of the Tribunal.

Legislation

4.      The relevant legislation is the Social Security Act 1991, s94 and Schedule 6 of the Social Security (International Agreements) Act 1999, dealing with arrangements between Malta and Australia.

5.      Reference is also required to the “Guide to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension”, commonly known as the Impairment Tables.

Background

6.      The applicant, Miriam Brightwell, was injured in a car accident in Australia in 1964 and subsequently has claimed she never worked again.   The applicant resided in Australia between 1962 and 1966 and now resides in Malta.

7.      On 26 September 2002 the applicant lodged a claim for Australian disability support pension (DSP) and in accordance with requirements attended a Health Services Australia medical assessment of 30 September 2002 in relation to her claim.   The Medical Adviser assigned a total rating of 10 points under the Impairment Tables.   On 30 September 2002 Centrelink rejected the applicant’s claim for DSP, on grounds she did not have the physical, intellectual or psychiatric impairment of 20 points or more required under the Impairment Tables.

8.      This decision was later affirmed by an ARO (Authorised Review Officer) on 6 May 2003, the reasons for decision being as follows:

(a)The applicant was 62 years of age, suffers disability in both legs and cannot stand for long periods;         

(b)her disabilities cause moderate interference with walking, climbing, squatting and kneeling, but she is rated capable of light sedentary or factory work;

(c)one of the qualifications for DSP is that the person must be unable to work for 30 hours per week;

(d)her total impairment rating on the tables used by Centerlink was 10 points, while an impairment rating of 20 points or more is needed to qualify for DSP.

9.      On 10 September the applicant lodged a request for review of her claim by the SSAT which affirmed the original decision on 12 August 2003.   On 19 September 2003 the applicant sought review by the Administrative Appeals Tribunal.

Facts and Contentions

10.     Mrs Brightwell has not filed any formal statement of facts and contentions with the AAT, but in September 2002 submitted a number of documents about her disability and has subsequently claimed she is entitled to DSP, having suffered a car injury in Australia in 1964 which caused her to lose 39 years of work.

11. The primary contention of the respondent is that rejection of the claim for DSP was lawfully made by Centrelink, as the applicant did not satisfy provisions of ss94(1)(b) and 94(1)(c) of the Act. Further, that the applicant has an impairment rating of 10 points, rather than the 20 points or more specified in the Impairment Tables. A time scale is also involved, in that eligibility for DSP is to be assessed as at the date of claim or within 13 weeks of that date (Part 2, Clause 4 of the Social Security (Administration) Act 1999.

Analysis

12.     The Tribunal is required to stand in the shoes of the original decision-maker, considering all evidence anew, noting relevant statutory provisions and prior case determinations.

13.     There is no dispute Mrs Brightwell was injured in a vehicle accident in 1964, which caused the current disability in her knees.   From the evidence available it appears the applicant did not return to employment after a period of prolonged hospital treatment and rehabilitation.   In 1966 she left Australia to return to Malta with her husband and family, where she has since resided.   She is now 63 years of age.

14.     In a statement dated 26 November 2002, she claimed she could not stand for long and her disability prevented her doing housework properly.   She attended St Lukes Hospital (Malta) every three months as an outpatient.   She last worked in the period 1961-1964 as supervisor in a hosiery factory in Melbourne.

15.     The applicant claims the disability in her knees severely limits the activities she can perform.   She cannot squat or kneel, finds difficulty in walking downstairs and needs medication to alleviate pain from time to time.

16.     Mrs Brightwell claims it is the disability in her knees which has prevented working since return to Malta with her family, but no evidence has been provided that her disability alone has prevented her from undertaking any training or the rehabilitation needed for her to undertake employment, or that her impairment alone is the reason why she cannot now undertake paid work.

17.     There is considerable medical evidence supporting her contention of disability.

(a)There is a certificate dated 29 November 2002, from orthopaedic surgeon, Mr C J Sciberras, indicating that although the applicant could walk fairly well without support, she has bilateral loss of normal flexion in knees, which makes some activities painful and difficult, as well as causing her to tire easily.

(b)A medical assessment report dated 3 December 2002, prepared by Drs J Pace and L J German reported that although the applicant could walk on a variety of terrain and at varying speeds for distances greater than 500 metres, there was a significant disability of the kind identified by Mr Sciberras.

(c)There is a work ability report prepared by the applicant dated 5 November 2002, admitting no disability other than both knees, but noting she cannot drive a car, found it difficult to stand for sustained periods, could not carry substantial items and experienced problems in boarding public transport.   The applicant indicated she had left school at age 16 years and had not gained any further qualification or worked since the accident in 1964.  She remained financially independent upon her husband.

18.     A medical assessment report, dated 21 February 2003 by Dr M Tabart of Health Services Australia, rated the applicant’s knee disability as 10 points on the Impairment Tables.   There was moderate interference with walking, climbing, squatting and kneeling, nonetheless the doctor was of an opinion that the applicant had a capacity to undertake light sedentary or light factory work for 30 hours per week or more.

19. The Impairment Tables are set out in Schedule IB of the Act. Table 4 relates to impairment affecting the lower limbs. A rating of 10 points applies where there is:

“… 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.”

The Impairment Tables specifically provide that:

“… the higher rating level should not be assigned unless the entire impairment descriptor at that level as been fully satisfied.”

20.     It should be noted that Mrs Brightwell lodged a claim for disability support pension in Malta on 22 September 2002.   Under the Social Security (Administration) Act 1999, she needed to make such a claim before she reached pension age; she was 62 years old at the time. Although a resident of Malta at the time of her claim for DSP, the Social Security Agreement with Malta, identified in Schedule 6 of the Social Security (International Agreements) Act 1999, provides for Mrs Brightwell to be regarded as a resident of Australia at the time of making the claim.

21. Having examined the evidence before it, the SSAT concluded on 12 August 2003 that the applicant met s94(1)(b) of the Act, in that she had an impairment rating of 10 points under the Impairment Tables; but did not go to formally consider whether Mrs Brightwell had a continuing ability to work.

22. Section 94(1) of the Act provides that a person qualifies for disability support pension if:

“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;

…”..

23. It is clear Mrs Brightwell does not have a disability rating of 20 points or more, thus she fails to attain the threshold test for payment of disability support pension. There remains the question as to whether she also has an ongoing inability to work (section 94(2) of the Act).

24.     Medical evidence before the Tribunal, in particular the assessment of Dr M Tabart of Health Services Australia (21 February 2003), suggests that the applicant retains a capacity for light sedentary or light factory work for 30 hours a week or more.   The Tribunal cannot easily reject such a learned opinion, however given the age of the applicant, her incapacity to stand for extended periods or carry heavy loads, her inability to kneel or deal with stairways, as well as her decades outside the workforce do not inspire confidence she could attain or hold employment.   Perhaps there were prospects of training or rehabilitation after 1964, but these are long gone and the applicant herself admits she never attempted such action.    Considering all evidence de novo, in the view of the Tribunal there is an ongoing inability to work, other than perhaps on a part-time basis and in a very limited kind of task assignment, unlikely to be achieved in practice.

Decision

25.     The decision under review is affirmed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis A M (Part-time Member)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing     Overseas application – matter decided on the papers.

Date of Decision  12 March 2004