Cimini and Secretary, Department of Family and Community Services

[2004] AATA 453

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 453

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/734

GENERAL ADMINISTRATIVE DIVISION		)
Re		EMILIA CIMINI

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr O Rinaudo, Member

Date11 May 2004  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

.......(Sgd) O Rinaudo......

Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – disability support pension – applicant suffering from spinal degeneration and bilateral feet spurs which are permanent conditions – applicant only has an impairment rating of 10 points under the relevant Impairment Tables – applicant does not qualify for disability support pension – decision affirmed

Social Security Act 1991 s 94

REASONS FOR DECISION

11 May 2004   Mr O Rinaudo, Member     

Decision under Review

1.      The applicant seeks review of a decision made by Centrelink on 19 May 2003 which determined that Mrs Cimini was not entitled to disability support pension.  An Authorised Review Officer affirmed the decision on 23 June 2003 and the Social Security Appeals Tribunal affirmed the decision on 23 July 2003 

Issues

2.      The issues for the Tribunal to determine in this application are whether, as at the date of claim (19 May 2003) or within thirteen weeks thereafter:

§Ms Cimini had a physical, intellectual or psychiatric impairment, and if so;

§Ms Cimini had an impairment rating of 20 points or more under the Impairment Tables; and

§whether Ms Cimini had a continuing inability to work.

Evidence

3.      At the hearing Ms Cimini gave evidence and the following documents were tendered. 

§Exhibit 1 the T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975

§Exhibit 2   bundle of letters attached to letter dated 8 December 2003

§Exhibit 3   treating doctor’s report dated 29 November 2003

4.      Ms Cimini told the Tribunal that since her accident she has not been able to work full time.

5.      She said that she had met a “horrid” person at Centrelink who had “steered me wrong”.  This person at Centrelink told her that “if she was capable of working the hours she should have been out looking for a full time job”. 

6.      Ms Cimini said she had always worked. She said that after getting compensation she had gone back to work.

7.      Ms Cimini said she had a number of complaints against Centrelink.  She said that she did not want a full pension but rather she wanted help.  She said that she did not want a handout as such. 

8.      Ms Cimini said that she takes valium, panadene forte and endove.  She said that if she could not work full time, then Centrelink would not help. 

9.      Ms Cimini said she has been receiving a pension and putting in forms.  She said that currently she is doing extra work from 10.30am to 5.00pm, five days per week.  She said that one of the other women at work was off sick but when this lady came back her hours would be cut back, possibly to three days. 

10.     She said that it was likely that this lady would return to work within a month and she would be put back to two or three days per week. 

11.     She said that if the lady does not return to work then the roster of five days that Ms Cimini is working will continue.  Ms Cimini said that if she is cut back in her work then she would have to go back to Centrelink, receive payments with reporting.

12.     She said she is working at the Legend’s Hotel on the Gold Coast answering phones, ironing, sewing and doing housekeeping/room service work.  She said that she had never been one for taking time off. 

Submissions

13.     Ms Wallis-Dunn appeared for the respondent.  She submitted that the Tribunal was required to consider the application as at the application date which was 19 May 2003 or evidence within thirteen weeks of that date.

14.     Ms Wallis-Dunn referred to the report of Nicole Doolan (at T25 page 96) where the following conditions were noted:

§Lumbar spine degeneration with sciatica

§Bilateral feet spurs and OA

§Cervical spine degeneration

§Thoracic spine degeneration

These conditions were noted as being permanent.  A “nil” impairment rating was attributed to these conditions under Tables 5.2, 4, 5.1 and 5.2 respectively. 

15.     Ms Wallis-Dunn noted that in Exhibit 3, Ms Cimini’s treating doctor had referred to a diagnosis of anxiety state/depression.  As this report had been prepared by Dr McCarthy on 18 November 2003, it was not evidence that the Tribunal was able to take into account.  Ms Wallis-Dunn noted that the applicant was working and has always worked.  The applicant says she is too young to give up work now.  The hotel at which she is working has increased her hours.  Ms Wallis-Dunn noted that Ms Cimini had said in evidence that she did not have time off work.  Ms Wallis-Dunn noted that to her credit, Ms Cimini had ceased receipt of payments from Centrelink.  In submissions Ms Cimini said she was not enjoying work and that she preferred to work rather than go back to Centrelink.  She said she had to work. 

Legislation

16.     The legislation relevant to this application is contained in the Social Security Act 1991 (“the Act”) and, in particular, section 94 is relevant. Section 94 provides as follows:

“(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.

(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 person to do any work within the next 2 years.

(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 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)  A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person's incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment.”

Discussion

17.     The applicant, Ms Cimini, is suffering from the following conditions which are diagnosed, treated and stabilised:

§Lumbar spine degeneration

§Cervical spine degeneration

§Thoracic spine degeneration

§Bilateral feet spurs.

18.     In order to be entitled to the disability support pension Ms Cimini must achieve 20 points under the appropriate Tables with respect to these impairments.

19.     The evidence of the rehabilitation consultant Ms Doolan is that Ms Cimini does not rate any points under the Tables.  In this regard it should be noted that Ms Doolan states (at page 97 of the T documents) that:

“The customer reports experiencing numbness in her leg with sudden twisting.  She demonstrated having full ROM in spine.  She reported being able to sit and stand for more than 60 mins at a time.  She reported pain after 40 mins of sitting in the assessment.  The customer describes sharp foot pain and difficulty climbing stairs and inclines.  She reported being able to walk 1 km.  The customer reported pain in thumb MCP of left hand and demonstrated ‘trigger finger’ index finger of right hand.  She also demonstrated decreased strength in right hand.  Able to close fist.  The customer reported pain on neck flexion but had full ROM.  On palpation she reported tenderness near site of degeneration.”

And further (at page 98), Ms Doolan reported:

“The customer failed to receive a total impairment rating, however her conditions combined are quite limiting.  A review may be required with additional supporting documentation.  The customer’s current job seems appropriate as the employer allows her to perform tasks within her limits.  They apparently attempted to retrain her to perform lighter duties but she was unable to learn the job demands.  This is an indication of future retraining attempts, justifying recommendation for customer to remain at place of employment.”

20.     The Social Security Appeals Tribunal determined that under Table 20 the applicant rated 10 points.  That Table says describes a 10 point rating as:

“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 her attendance.”

21.     The Tribunal considers that this is an appropriate Table under which to rate the applicant Ms Cimini.  The Tribunal finds that the appropriate points applicable to Ms Cimini’s impairment is 10 points under Table 20.

22.     As Ms Cimini’s total impairment is 10 points and not 20 points, as required to satisfy an entitlement to disability support pension, Ms Cimini does not qualify for disability support pension.  It is not necessary in the circumstances for the Tribunal to consider whether Ms Cimini has a continuing inability to work.  In any event, the Tribunal notes that the applicant is currently in full time employment. 

23.     The Tribunal notes that in the most recent report of the applicant’s treating doctor reference is made to anxiety state/depression. There is no evidence presently before the Tribunal which would show that this condition is diagnosed, treated and stabilised.  However, it might well be that such evidence becomes available.  The Tribunal is only entitled to look at evidence relating to the applicant’s claim as at the date of application or within thirteen weeks.  The most recent report of the treating doctor is well outside of that time (29 November 2003). 

24.     Accordingly, the Tribunal suggests that the applicant seek further medical intervention and evidence relating to her current state of health and subject to that assessment she may or may not be entitled to make a further application for disability support pension. 

25.     In any event, as determined by the Tribunal, in the relevant period, the applicant was not entitled to disability support pension.  Accordingly 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 Mr O Rinaudo, Member

Signed:   S Oliver

Associate

Date of Hearing  30 March 2004
Date of Decision  11 May 2004

The Applicant appeared in person
For the Respondent                  Ms H Wallis- Dunn, Departmental Advocate