Cortis and Department of Family and Community Services

[2000] AATA 620

DECISION AND REASONS FOR DECISION [2000] AATA 620

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2000/08

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      JOSEPH CORTIS  
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Ms A F Cunningham (Part-time Member)          

Date28 July 2000

PlaceHobart

Decision      The decision under review is affirmed. 
   [Sgd A F Cunningham]
  Part-Time Member
CATCHWORDS
 Social security – disability support pension – impairment rating, medical evidence.
Social Security Act 1991 – s.94(1)

REASONS FOR DECISION

28 July 2000            Ms A F Cunningham (Part-time Member)   

1. The applicant has sought the review of a decision made by an a Centrelink officer on 14 December 1998 rejecting his claim for disability support pension.    The decision was affirmed by an authorised review officer on 3 March 1999 and by the Social Security Appeals Tribunal (SSAT) on 19 July 1999.

1. The hearing was conducted in the absence of the parties with their consent as Mr. Cortis lives in  Malta and was unable to attend.   

1. Mr. Cortis has appealed the decision of the SSAT on the basis as stated in his letter to the Tribunal dated 29 February 2000, that he has not worked since 3 February 1998 due to his medical condition and considers himself "invalid for any duties".   He pointed out that the "invalidity report"  prepared in Malta was in his favour.

1. The Tribunal had before it the T documents submitted pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 and correspondence from the applicant.  No further medical evidence other than that before the SSAT was presented to this Tribunal for the appeal hearing.

1. Mr. Cortis' original application for a disability support pension was made in February 1998.   Together with the application he submitted a note from Dr. Robert Galea, dated 3 February 1998 who certified that Mr. Cortis is presently suffering from an acute reactive depression and in his opinion is unfit for gainful employment.   On 9 March, a report was prepared by an overseas medical practitioner following a medical examination of Mr. Cortis.

1. On 10 September 1998, a Dr. Michael Farrugia, certified that the applicant was suffering from chronic depression, hypertension and lumbar spine problems, as well as back/shoulder joints and that his "chronic depression has been there for nearly  two years, just before he was advised to quit his job".

1. The applicant  completed a disability support questionnaire on 20 September 1998 and listed his health problems in order of seriousness as, chronic depression, anxiety, agitation, frontal headaches, pain back, slight limitation of movement, inability to work, hypertension.

1. A health services Australia medical report attachment was prepared on 9 December 1998.

1. Mr. Cortis' eligibility for a disability support pension was assessed in accordance with the provisions of s.94(1) of the Social Security Act 1991  ("the Act") sub-sections (a), (b) and (c) of which states:

   "(1) [Qualification – continuing inability to work]   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, starting the period for which the person is to participate in the system."

2. Whilst there has never appeared to be any dispute that the applicant meets the requirements of sub-section (a), his claim for a pension was rejected on the basis that his impairment rating is less than 20 points under the relevant Tables.

1. The report prepared by the examining medical adviser (T10) Dr. J. G. Churchman ascribed a zero rating for hypertension under the Tables and no ratings in respect of Mr. Cortis' other medical conditions. It was on this basis that his application for a pension was rejected as he failed to satisfy sub-section (b) of s.94 of the Act.

1. A comprehensive review of the medical evidence was undertaken in accordance with the Impairment Tables by a medical member of the SSAT in its decision of 8 December 1999.   This Tribunal agrees with the SSAT's assessment of the permanency of Mr. Cortis' psychiatric impairment and has no reason to differ from the conclusion of  that Tribunal that the correct rating for Mr. Cortis' depression under the impairment Tables is 15%.   There was no further medical evidence presented to this Tribunal to justify a higher rating.

1. Whilst the evidence of the applicant's medical practitioners is that the applicant is unfit for gainful employment because of his medical conditions, and this Tribunal has no reason to doubt such evidence,  the applicant has failed to present the medical evidence required under the relevant legislative provisions and in particular the requirement for an impairment rating of 20% under the relevant Tables.   The Tribunal accepts the evidence of a combined impairment rating of 15%.

2. This figure being less than the 20% required under paragraph 94(1)(b) of the Act the applicant fails to satisfy the requirements and is therefore not entitled to receive a disability support pension.

1. Accordingly the Tribunal must dismiss  the appeal and affirm the decision under review.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

Signed:         .....................................................................................
  Personal Assistant

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

Date of Decision  28 July 2000