Campbell and Secretary, Department of Family and Community Services

[2004] AATA 1201

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1201

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1126

GENERAL ADMINISTRATIVE DIVISION		)
Re		GRAHAM CAMPBELL

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms Robin Hunt

Date              11 November 2004

PlaceSydney

Decision The decision of the Social Security Appeals Tribunal under review in these proceedings is affirmed.

[SGD] Robin Hunt

Senior Member

DISABILITY SUPPORT PENSION – application made to Centrelink – rejected and affirmed by SSAT – whether applicant qualified at date of claim or within 13 weeks – whether injuries diagnosed  treated and stabilised – on waiting list for surgery – whether that condition can in those circumstances be regarded as permanent ‑ decision affirmed

Social Security Act 1991 (Cth) s94

REASONS FOR DECISION

11 November 2004

BACKGROUND

Ms Robin Hunt, Senior Member

1.      On 9 June 2004, the Social Security Appeals Tribunal (“SSAT”) affirmed a decision previously made by an officer of Centrelink to reject a claim made by the Applicant, Mr Campbell, for disability support pension. Mr Campbell applied to the present Tribunal to review the SSAT decision.

2. The Respondent did not dispute that Mr Campbell suffered from a “severe tear to supraspinatus tendon of right shoulder, posterior disc protrusions with canal stenosis at C5/6 and C6/7 and from lower back pain” and that he met the section 94(1)(a) of the Social Security Act 1991 (the Act). The issues in dispute, so far as the Respondent was concerned, were whether Mr Campbell’s impairment rating was 20 points or more under the Impairment Tables in Schedule 1B of the Act and whether he had a continuing inability to work at the time he lodged his claim on 3 September 2003.

THE HEARING & DISCUSSION OF EVIDENCE

3.      Mr Campbell, who was unrepresented, told the Tribunal that he had not worked since he sustained the damage complained of and that he continued to suffer from severe problems with both shoulders as well as his back.  He said that he had developed the problem with his left shoulder since he made the application to Centrelink on 3 September 2003. He tendered a copy of a letter dated 29 July 2004 from Mid North Coast Health Service at Coffs Harbour confirming that his name was placed on the elective surgery waiting list that day on the Coffs Harbour Health Campus for an operation with Dr Jovanovic. The letter set out that the approximate waiting time for the procedure was 12 months plus.

4.      Mr Campbell made it plain that he felt very aggrieved and took exception to what he thought was a suggestion that he had already undergone surgery. The offending sentence was in paragraph 11 of the Respondent’s Statement of Facts and Contentions. The actual sentence in this document aimed to point out that, once he had surgery, he could apply again for the disability allowance he was seeking. Mr Campbell declined to take any further part in the proceedings after the Respondent’s representative explained their position that they would not be able to consider Mr Campbell’s claim until his condition had been “investigated, treated and stabilised”.  

5.      The Respondent relied on the Statement of Facts and Contentions lodged prior to the commencement of the hearing and said that Mr Campbell did not qualify under section 94 of the Act, firstly, because his impairment had not been rated and, secondly, because there was no evidence that he could not do light work. The second point was relevant to section 94(1)(c) of the Act.

the legislation

6.      Section 94 of the Act provides, in part:

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; 

….

94(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 from 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

FINDINGS OF FACT

7. For the purposes of section 94(1)(a), I am satisfied that Mr Campbell does have a physical, intellectual or psychiatric impairment. The principal issues in this application are:

·      whether Mr Campbell, at 3 September 2003, had an impairment of 20 points or more under the Impairment Tables; and

·     if he did, whether he had a continuing inability to work.

reasons for decision

8.      For reasons which will follow, I am not satisfied that, at 3 September 2003, Mr Campbell did have an impairment of 20 points or more under the Impairment Tables.  Because of this circumstance, I am not required to consider whether there was any continuing inability to work as defined, although I accept Mr Campbell’s evidence that he has not worked and has continuing physical problems that make work difficult.

9.      Section 94(1)(c), in its reference to an impairment of 20 points or more does not refer to an injury or illness being permanent.  It refers only to impairment.  However, the introductory chapter to the Impairment Tables at Schedule 1B of the Act (paragraph 5) states that a condition “must be considered to be permanent”.  Permanence shall be found only when a condition “has been diagnosed, treated and stabilised” and then “it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years”.

10.     This means the focus of this review must be to first decide whether at the date of the claim, that is, 3 September 2003, Mr Campbell had an impairment of 20 points or more according to the assessment criteria of the Tables including the introductory comments in the introduction to Schedule 1B of the Act. From the new medical evidence Mr Campbell provided and other events he mentioned to the Tribunal, it may be that Mr Campbell could now show that some of his afflictions may be regarded as “permanent”. Certainly, some of his problems appear to have lasted for more than two years. However, this does not assist Mr Campbell in the claim that is before the Tribunal, which can only be decided on the evidence in support of his claim on 3 September 2003 or furnished within the 13 weeks following.

11.     Before the Tribunal is the report of Dr J Cummins, a cervical spine MRI carried out on 30 August 2003, and an ultrasound of the right shoulder carried out on 9 March 2004. Dr Cummins on 1 November 2003 confirmed that Mr Campbell was suffering the conditions claimed to the neck and right shoulder but did not mention the lower back pain since reported. Dr Cummins expected Mr Campbell to improve over the next two years with treatment including physiotherapy, analgesics, and decompression surgery. In a second report dated 16 January 2004, too late for consideration of the 3 September 2003 claim, Dr Cummins described Mr Campbell’s chronic lower back pain, which was being treated by analgesics and rest. On 4 November 2003, Dr Arad of Health Services Australia noted Mr Campbell’s right shoulder injury and back pain and noted he was waiting for surgery. He expected an improvement within 2 years and his condition was temporary. At no time has the Tribunal seen any report that stated Mr Campbell had or has an impairment rating of 20 points or more.

12.     As it has turned out over the intervening time, Mr Campbell has been unable to have the surgery he needs and has sustained a further deterioration with problems to his other shoulder. This also no doubt affects his capacity to work. In other respects, the situation has not changed since the SSAT made its decision to affirm the finding of the Respondent’s delegate that Mr Campbell was not entitled to a disability pension on 3 September 2003.

13.     I am satisfied that at 3 September 2003 Mr Campbell could not demonstrate satisfaction of the criterion that he had permanent conditions or injuries warranting an impairment rating of 20 points under the Tables.  It follows that he cannot satisfy section 94(1)(b). He cannot satisfy this requirement until his condition has been fully investigated, treated and stabilised. As he is awaiting surgery, the injury or injuries requiring surgery have not been stabilised and, it follows, cannot be found to be permanent.  As Mr Campbell does not meet section 94(1)(b), there is no need for the Tribunal to make a finding about whether he had a continuing inability to work as this is an additional criterion and does not replace the need for the 20 point impairment rating. Although Mr Campbell has not, in fact worked for two years, this is irrelevant for the disability support pension claim made in September 2003. The problem remains that at the date of claim and 13 weeks afterward it could not then be said his condition was permanent.

14.     The effect of this decision is that the rejection of the claim for a disability pension in 2003 should be affirmed.  As Mr Campbell has been unable to work for a lengthy period, he may be entitled to another form of assistance but this possibility is outside the realm of the matter before the Tribunal for its decision.

15.     The decision of the Social Security Appeals Tribunal under review in these proceedings is affirmed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Robin Hunt, Senior Member

Signed:         .....................................................................................
  Associate: Reuben Mansour

Date of hearing  19 October 2004
Date of decision      11 November 2004
Applicant self represented        
Advocate for the Respondent        Susan Mantaring