Corradini and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 801

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 801

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1168

GENERAL ADMINISTRATIVE DIVISION		)
Re		Sergio Corradini

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date11 October 2010

PlaceSydney

Decision The decision under review is affirmed.

.....................[sgd]....................

Mr R P Handley

Deputy President

CATCHWORDS

SOCIAL SECURITY - disability support pension - continuing inability to work - impairment rating - whether conditions fully diagnosed, treated and stabilised

RELEVANT LEGISLATION

Social Security Act 1991 (Cth): s 94, Sch 1B

Social Security (Administration) Act 1999 (Cth): Sch 2, Pt 2

REASONS FOR DECISION

19 October 2010 Mr R P Handley, Deputy President

1.      Mr Corradini has applied to the Tribunal for a review of a decision of the Social Security Appeals Tribunal (the SSAT) affirming the decision made by a Centrelink authorised review officer to reject Mr Corradini’s claim for disability support pension (DSP).

2. Mr Corradini, who is aged 51, last worked approximately two years ago as a boilermaker. He is currently receiving newstart allowance. On 20 October 2009, he lodged a claim for DSP on the basis of seizures and anxiety problems related to hypertension. On 8 December 2009, Centrelink rejected this claim on the ground that Mr Corradini was not medically qualified for a DSP because his impairment had been assessed as not being of 20 points or more under the Impairment Tables set out in Schedule 1B of the Social Security Act 1991 (Cth) (the Act). This decision was affirmed by an authorised review officer on 15 January 2010 and by the SSAT on 25 February 2010.

relevant legislation

3. Section 94 of the Act sets out the qualifications for the grant of a DSP and provides relevantly:

94.Qualification for disability support pension

(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;

…; and

(f)    the person is not qualified for disability support pension under section 94A.

(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 independently of a program of support within the next 2 years; and

(b)   either:

(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

4. ‘Work’ is defined in s 94(5):

(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

(b)that exists in Australia, even if not within the person’s locally accessible labour market.

5. The Impairment Tables are set out in Schedule 1B of the Act. Paragraph 4 of the Introduction to the Tables provides:

For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.

Paragraph 5 states that the condition must be considered permanent, meaning that once a condition has been diagnosed, treated and stabilised, there must be evidence to support a finding that the condition will more likely than not persist for the foreseeable future, which is taken to be for more than two years.

6. Subclause 3(1) of Part 2 of Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) provides that a person is qualified for payment of DSP on the day on which the claim is made. However, subclause 4(1) states:

4.Start day – early claim

(1)If:

(a)   a person (other than a detained person) makes a claim for a relevant social security payment; and

(b)   the person is not, on the day on which the claim is made, qualified for the payment; and

(c)   assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

(d)   the person becomes so qualified within that period;

the claim is taken to be made on the first day on which the person is qualified for the social security payment.

7.      Thus, since Mr Corradini lodged his claim for DSP on 20 October 2009, he must be qualified for DSP at the time of lodging his claim or within 13 weeks of doing so, that is, by 19 January 2010.

8. The issues to be determined are whether Mr Corradini has an impairment which should be assigned 20 or more points under the Impairment Tables, thereby satisfying s 94(1)(b) of the Act, and if so, whether he has a continuing inability to work in accordance with s 94(1)(c). There is no dispute that Mr Corradini suffers from physical impairments and therefore satisfies s 94(1)(a) of the Act.

medical evidence

9.      Mr Corradini’s treating doctor, Dr YC Kwok, completed a Medical Report form dated 14 October 2009 in association with Mr Corradini’s claim for DSP.  Mr Corradini has been a patient of Dr Kwok’s since 21 February 1978.  Dr Kwok stated that the medical condition with most impact on Mr Corradini is the recurrent seizures he has suffered since May 2006.  Dr Kwok noted that Mr Corradini has been hospitalised on several occasions and has been “diagnosed with alcohol related seizures”.  Mr Corradini has been seen by neurologists Dr Serisier and Dr Pryor in the past and has been advised to see a neurologist for review.  Dr Kwok said this condition is expected to persist for more than 24 months and is of uncertain effect in terms of Mr Corradini’s ability to function.

10.     Dr Kwok also listed hypertension, asthma and gastro-oesophageal reflux as other generally well-managed medical conditions that are not expected to improve significantly but have minimal impact on Mr Corradini’s ability to function.  Dr Kwok has provided a more recent Medical Report dated 26 July 2010 in which he confirmed what he said in his earlier report of 14 October 2009.

11.     Mr Corradini’s evidence is that his last seizure was in August 2009 when he was on holiday in Thailand with his girlfriend.  It happened around breakfast time and he woke up late afternoon in hospital.  He was discharged later that day.  Prior to that, he had had four other seizures since 2007, including one in which he was canoeing on the Shoalhaven River, fell out of the canoe as a result of the seizure and nearly drowned.  He was saved by his 12-year-old son.

12.     Mr Corradini said that as a result of his having these seizures, he gets very anxious – it is the anxiety that appears to give him hypertension and affects him with gastro-oesophageal reflux.  If he becomes very anxious, he is physically sick.  He is worried that if he works for more than about two hours a day, he will become so anxious that he will vomit.

13.     Mr Corradini said he has cut down on his drinking, which started after his father died.  He now drinks about four to six schooners a day when he can afford this.  If not, he goes without.  Mr Corradini is not taking any medication currently.  In the past, he has taken Valium for his anxiety – this did help calm him but Dr Kwok is reluctant to prescribe Valium.  He is not taking any other medication for hypertension or reflux, and takes Ventolin if he has asthma.

14.     Mr Corradini is currently having psychological counselling with Centrelink.  Mr Corradini thinks that if his anxiety is addressed, this could help him work longer in the week, and for 15 hours or more.  He would like a non-trade job, preferably working from home.  Mr Corradini’s evidence is that his medical conditions do not otherwise affect his ability to look after himself – he lives alone – to walk his dog twice a day, to ride his bike, to do a bit of voluntary work for his neighbours such as lawn-mowing, or to go hunting, although he will only go with others and not on his own.  He can drive a car but worries about driving distances on his own in case he has a seizure.

15.     Mr Corradini last saw a neurologist about two years ago.  He said he cannot afford another appointment, which costs about $200.

16.     Mr Corradini is currently receiving job search allowance and, for the period until 11 December 2010, has been assessed by a Centrelink Job Capacity Assessor as having a capacity for work of 0-7 hours per week in order to assist with the psychological counselling he is having currently.  After 11 December 2010, the Assessor considers that his capacity for work should be 15-22 hours per week and, with further counselling and assistance, this should increase to 23-29 hours per week.

submissions

17. Ms Heggen, for the Secretary, contended that Mr Corradini does not meet either s 94(1)(b) or (c) of the Act. The condition relating to his seizures is appropriately assessed at 5 impairment points under Table 21, and his other conditions are, according to Dr Kwok’s evidence, of minimal impact and do not attract any impairment points. Ms Heggen contended that Mr Corradini also has a capacity to work for more than 15 hours per week.

18.     Mr Corradini said he disagrees with the impairment points assessed for his conditions.  There are many others who are receiving a DSP who are less sick than he is.

discussion

19. Having considered the evidence and submissions, I am not satisfied that Mr Corradini is qualified for a DSP because he does not satisfy s 94(1)(b) of the Act. I am satisfied that Mr Corradini does have a physical or psychiatric impairment but, on Mr Corradini’s evidence, applying the relevant Impairment Tables, his conditions do not attract 20 impairment points.

20. The relevant table for the assessment of seizures is Table 21 of Schedule 1B of the Act, which applies in respect of intermittent conditions. Such conditions are rated by reference to severity, duration and frequency of attacks. With regard to severity, because Mr Corradini’s evidence is that he becomes totally incapacitated at the time of an attack, the severity level is scored as 6. The duration of the attacks described by Mr Corradini accords with the ‘prolonged’ description in the Table because the attacks last more than four hours, and this therefore attracts a severity grading code of J because the severity level is 6. Mr Corradini’s evidence is that, on average, he has attacks about two days per year. Thus, with a severity grading code of J, an impairment rating of 5 must be attributed to the condition.

21.     With regard to the other conditions identified by Dr Kwok – hypertension, asthma and gastro-oesophageal reflux, which he said are of minimal impact - I agree with the Secretary that the hypertension and asthma can be appropriately assessed under Table 20 of the Impairment Tables which is used for the assessment of miscellaneous conditions.  Because the hypertension and asthma are of minimal impact, I agree that they should be accorded nil impairment points because they match the criteria “Minor symptoms which are easily tolerated and have no appreciable effect on ability to work”.  With regard to gastro-oesophageal reflux, I note that this was not identified by Mr Corradini in his DSP claim, and there is no evidence that this has been fully diagnosed, treated and stabilised, a requirement for attributing an impairment rating to a condition.  Even if this were not the case, assessment under Table 11.1, in respect of gastroenterological conditions, would attract a nil rating because, noting Dr Kwok’s report, the condition is of minimal impact and a nil rating is attributed to a condition that has “mild symptoms despite optimal treatment”.

22.     However, Mr Corradini’s evidence indicates that it his anxiety which is a major problem stopping him working.  While he is currently having psychological counselling for this, there is no medical evidence about this and, in my view, it is clear that this condition has not been properly diagnosed, treated and stabilised, nor is there medical evidence that the condition is permanent.  It cannot therefore be given an impairment rating under the Impairment Tables.

23. In conclusion, Mr Corradini’s conditions currently only attract an impairment rating of 5 – for his seizures – and thus he does not satisfy s 94(1)(b) of the Act and is not qualified for a DSP. It is therefore unnecessary for me to consider the other issue which might otherwise require consideration – that of his continuing inability to work.

24.     The decision of the SSAT that Mr Corradini is not qualified for a DSP is therefore affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

Signed:   ............[sgd]..............................................................
               A Veness, Associate

Date of Hearing:  11 October 2010
Date of Oral Decision:  11 October 2010
Date of Written Reasons                   19 October 2010
Applicant representative:                   Self-represented

Respondent representative:              Ms G Heggen, Centrelink Advocacy Branch