D'Ambrosio and Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2000] AATA 393

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1330

GENERAL ADMINISTRATIVE DIVISION )

Re SILVANA D'AMBROSIO
Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent

DECISION

Tribunal Ms S M Bullock, Member

Date18 May 2000
PlaceSydney

Decision      The decision under review is affirmed.
   (Sgd) Ms S M Bullock
  ..............................................
  Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – commencement date – backdate

Social Security Act – ss 94, 100(2)

Calderaro v Secretary, Department of Social Security (1991) 33 FCR 244
Re Calderaro v Secretary, Department of Social Security No 2 (1992) 27 ALD 393

REASONS FOR DECISION

Ms S M Bullock

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") of a decision of the Social Security Appeals Tribunal ("SSAT") made on 5 August 1999 that Ms Silvana D'Ambrosio ("the Applicant") could not be paid arrears of Disability Support Pension (T2). The SSAT's decision affirmed a decision of an Authorised Review Officer ("ARO") of the Department of Family and Community Services made on 17 May 1999 (T67) that Ms D'Ambrosio could not be paid Disability Support Pension before the date of claim of 16 June 1998. The ARO's decision affirmed a decision of a delegate of the Department of Family and Community Services to commence Disability Support Pension from the date of claim of 16 June 1998.
Ms D'Ambrosio represented herself before the Tribunal in Sydney and provided oral evidence. The Respondent, the Secretary, Department of Family and Community Services ("the Department") was represented by Mr George Lozynsky. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T documents T1-T69) and the following exhibits:
Exhibit No Description Date
A1 A2 A3 A4 R1 Ms D'Ambrosio's list of counsellors since 14 April 1974, including printout of consultations with Mr T Jones, Clinical Psychologist Report from Dr P A Musgrove, General Practitioner CES/DEET Medical Certificate Disclaimer in relation to Ms Silvana D'Ambrosio Report by Dr J G Bodel, Orthopaedic Surgeon Respondent's Statement of Facts and Contentions Received at hearing on 5 January 2000 18 July 1995 28 July 1995 17 March 1996 30 December 1999

ISSUES

The issues to be determined in this matter are:
1)whether or not Ms D'Ambrosio qualifies for Disability Support Pension on 1 August 1995; and if so
2)whether Ms D'Ambrosio's initial claim for Jobsearch Allowance on 1 August 1995 should be treated as a claim for Disability Support Pension pursuant to section 94 of the Social Security Act 1991; and if so
3)whether or not Ms D'Ambrosio's initial claim for Jobsearch Allowance should be treated as a claim for a Disability Support Pension under the provisions of subsection 100(2) of the Social Security Act 1991.

LEGISLATION

A determination of this matter requires consideration of the provisions of the Social Security Act 1991 ("the Act").
The relevant provisions in relation to Disability Support Pension are contained within section 94 of the Act and as relevant state:
"94 Qualification for disability support pension
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 of 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 am Australian resident.
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 person to do any work within the next 2 years.
94(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.
94(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.
94(5) In this section:
educational or vocation 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.
…"

Subsection 100(2) of the Act provides for the substitution of an initial claim by Disability Support Pension if on the day the initial claim was made, the person qualifies for Disability Support Pension. As relevant, subsection 100(2) provides:
"Initial incorrect or inappropriate claim followed by a claim for disability support pension
100(2) If:
(a) a person makes a claim (in this subsection called the initial claim) for:
(i)a social security or service pension, a social security benefit or a parenting payment; or
(ii)a pension, allowance, benefit or other payment under another Act or under a program administered by the Commonwealth, that is similar in character to a disability support pension; and
(b)on the day on which the person makes the initial claim, the person is qualified for a disability support pension; and
(c)the person subsequently makes a claim for a disability support pension; and
(d)the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the person's provisional commencement day is the day on which the person made the initial claim."

BACKGROUND

Ms D'Ambrosio was born on 10 November 1960, she is 39 years old.
Ms D'Ambrosio gained her professional qualifications in 1978 in design and pattern making.
Ms D'Ambrosio has had a number of motor vehicle accidents. On 1 February 1992, she was injured in a motor vehicle accident (T5) and was in receipt of sickness allowance.
On 29 March 1993, Dr M Marabani reported that following a motor vehicle accident in 1992, Ms D'Ambrosio appeared to have soft tissue injury to her neck and back. This condition "evolved into a chronic pain/fibromyalgia state". Dr Marabani suggested a trial of anti-depressants but suspected that Ms D'Ambrosio would continue to be troubled by long-term pain (T7).
On 4 August 1994, Dr P A Musgrove, General Practitioner, reported in a Sickness Benefit Medical Certificate that Ms D'Ambrosio suffered from a soft tissue injury to the spine following an accident. She was also reported by Dr Musgrove to be suffering from "nervous stress reaction; abdominal discomfort" and would be unfit for work from 3 August 1994 to 3 November 1994 (T9).
On 14 November 1994, in a Sickness Allowance review Treating Doctor's Report, Dr Musgrove further reported that Ms D'Ambrosio was suffering from chronic pain and a fibromyalgia state of the neck and back muscles and that she was receiving treatment of acupuncture and physiotherapy. Dr Musgrove reported that Ms D'Ambrosio would have a slow gradual improvement although it was impossible to estimate the time of recovery. Dr Musgrove reported that he had been Ms D'Ambrosio's treating doctor for seven years at that point (T11).
On 14 April 1994, Ms D'Ambrosio was involved in a second motor vehicle accident (T12). Dr Musgrove, reported on 22 November 1994 that Ms D'Ambrosio had consulted him on 15 April 1994 following a motor vehicle accident. Following this accident, Ms D'Ambrosio had persistent back and neck pain and saw an Orthopaedic Surgeon, Dr G Kirsh and had physiotherapy and x-rays and CT scans confirming soft tissue injury to her spine. Dr Musgrove concluded that Ms D'Ambrosio was unlikely to be able to return to her pre-accident work in the short term. He noted that the pain, discomfort and the restricted function of her neck and spine adversely affected Ms D'Ambrosio's quality of life including her social life and sporting and recreational pursuits (T12).
On 1 June 1995, Dr Musgrove reported in a further Treating Doctor's Report as part of a Sickness Allowance review, that Ms D'Ambrosio's condition of chronic pain and fybromyalgia of the neck and back was still likely to have a slow gradual improvement and that she was suffering from chronic pain aggravated by bending, standing, lifting, carrying or prolonged sitting. Ms D'Ambrosio was considered to be at that time indefinitely unfit for work (T13).
On 9 June 1995, Dr N Cheetham, Medical Officer with the Australian Government Health Service, reported as part of a review that Ms D'Ambrosio had last worked in August 1994 as a designer/pattern-maker and that she was suffering from headaches, dizziness and back and neck problems. Dr Cheetham reported that Ms D'Ambrosio had become anxious and depressed and had attended three counselling sessions to help her deal with this problem. At that time, Ms D'Ambrosio was not using any anti-depressant medication and Dr Cheetham considered that any anxiety/depression was a temporary condition. Dr Cheetham thought that Ms D'Ambrosio's total impairment was ten per cent and that she was unfit to work for another eight weeks only. This time was considered to be adequate to determine if there was any improvement following Ms D'Ambrosio's counselling sessions. Dr Cheetham opined that Ms D'Ambrosio would be fit for light duty work but in a different job from her previous occupation which was quite physical (T14).
On 18 July 1995, Dr Musgrove noted that Ms D'Ambrosio had severe chronic neck pain and upper and lower back pain due to soft tissue injuries from 1994. Dr Musgrove further reported that Ms D'Ambrosio suffered stress and anxiety as a result of her injuries and chronic pain. She had been attending stress counselling and was unfit for work for three months (Exhibit A2).
On 28 July 1995, Ms D'Ambrosio signed a Medical Certificate Disclaimer indicating that she had recently been assessed by the Department of Social Security as being able to work for eight hours per week but that she had also presented the Commonwealth Employment services ("CES") with a medical certificate stating that she was unfit for work. In these circumstances, Ms D'Ambrosio signed the declaration indicating that:
"…
I understand that if the CES refers me for a job, the CES will need to advise the prospective employer that, although DSS [Department of Social Security] has decided that I can do some work, I have a current medical certificate stating that I am unfit for work.
I agree to the CES providing information relating to my medical condition to prospective employers and training providers
…" (Exhibit A3)

On 31 July 1995, Dr D Roebuck, Orthopaedic Surgeon, reported that Ms D'Ambrosio had occipital neuralgia caused by two motor vehicle accidents in 1992 and 1994. She had a musculo ligamentous injury of the neck from the principal lesion following the 1992 accident and occipital neuralgia was the principal lesion following the 1994 accident. Dr Roebuck considered Ms D'Ambrosio had an 18 per cent permanent impairment of her neck and a 14 per cent permanent impairment of her back. Dr Roebuck opined that Ms D'Ambrosio had a permanent alteration to her employability from both her back and neck conditions and was unable to perform her pre-injury occupation or indeed, any other occupation involving heavy or repetitive back or neck movements and that she was fit only for light sedentary duties (T21).
On 30 August 1995, a departmental officer spoke with Dr Musgrove who stated that Ms D'Ambrosio was unfit for any work because of a combination of depression/stress and orthopaedic problems (T22, p58). The departmental officer considered more persuasive however Dr Roebuck's opinion and the assessment of Dr Cheetham, Commonwealth Medical Officer, that Ms D'Ambrosio's depression/anxiety was a temporary condition in addition to Ms D'Ambrosio's willingness to enter a Commonwealth Rehabilitation Service ("CRS") program. The officer decided that Ms D'Ambrosio was fit for at least eight hours work per week and that payment of her Sickness Allowance beyond 52 weeks was not warranted (T22).
Ms D'Ambrosio disagreed with the departmental delegate's decision to cancel her Sickness Allowance (13 July 1995) and accordingly requested a review of this decision. On 15 September 1995, an ARO decided to affirm the decision to cancel Ms D'Ambrosio's Sickness Allowance and subsequently Ms D'Ambrosio lodged an appeal with the SSAT on 22 September 1995. On 16 November 1995 the SSAT decided to affirm the decision as it determined that her conditions of neck and back pain and headaches were permanent and constant. Ms D'Ambrosio gave evidence to the SSAT that she expected to return to full time work within the next year. The SSAT further noted Ms D'Ambrosio's evidence that headaches and pain were the main factors that prevented her working at that time and that stress induced skin and stomach problems were of lesser importance (T27, p71).
On 18 October 1995, Ms D'Ambrosio entered into an Activity Plan in relation to her attending the CRS ("CRS") at Rockdale for the purpose of exploring her vocational options, her rehabilitation needs and to improve her skills and capacity to return to work. This would involve vocational assessment, supportive counselling and liasing with relevant parties including job canvassing and placement assistance (T24).
On 3 November 1995, Ms E Birch, Consultant Clinical Psychologist, reported of Ms D'Ambrosio that she previously had counselling from a Women's Clinic in September 1995 for the purpose of relaxation techniques. Ms Birch opined that Ms D'Ambrosio's life was controlled by her pain which limited her activities and isolated her. It was recommended that Ms D'Ambrosio have four to six counselling sessions to help her shift the focus of her life from pain, to help her become less isolated and support her in an effective rehabilitation program with the CRS (T25).
Following further counselling sessions during November and December 1995, Ms Birch reported that Ms D'Ambrosio was not ready to return to work as she was highly pain focused, depressed and had a significant level of anxiety. Ms Birch reported that Ms D'Ambrosio was to take anti-depressant medication as an analgesic and hopefully a mood elevator with the purpose of assisting her to gain benefit from a highly structured rehabilitation, work assessment and training program (T26). Ms Birch reported that the decision which transferred Ms D'Ambrosio from Sickness Allowance to Jobsearch Allowance, which had occurred on 1 August 1995, had upset her significantly. Ms D'Ambrosio felt pressured and asked to undertake employment which she was incapable of undertaking, Ms Birch reported.
On 17 March 1996, Dr J G Bodel, Orthopaedic Surgeon, reported that:
"…
The patient's [Ms D'Ambrosio] long term prognosis is a little uncertain in regard to her neck, but I find no objective evidence of ongoing disability in the back
…
The patient should settle with conservative care.
The patient is not fit for her pre-injury work because of the posture that she has to adopt to work as a Pattern Maker. She may be fit for alternative duties, particularly if she improves her physical fitness levels.
The patient overall has a reasonable prognosis." (Exhibit A4)
On 10 April 1996, Ms Birch reported that Ms D'Ambrosio was taking Aurorix anti-depressant medication but that this had been of no assistance to her. Ms Birch reported further that Ms D'Ambrosio had "probably unreal expectations of her recovery from injuries sustained during 2 motor vehicle accidents." Ms Birch further opined that Ms D'Ambrosio lacked effective strategies to take responsibility for and manage her pain and that until she understood that she was ultimately responsible for her own health she would not respond to specific pain management. Ms Birch recommended that Ms D'Ambrosio undertake pain management sessions along with work training (T28).
On 30 September 1996, Ms D'Ambrosio ceased her CRS program indicating that she wished "to pursue job seeking on her own without CRS assistance…" (T29).
During March/July 1997, Ms D'Ambrosio worked for a number of employers in part-time positions including the Colour Studio, Park Lane, St George TAFE and Jesse (T35).
On 16 June 1998, Ms D'Ambrosio lodged a claim for Disability Support Pension for the conditions of neck pain; lower back pain; headaches; dizziness and fainting spells; depression; stomach and digestion problems; acne (stress related) and thalassaemia minor (T35).
In a Treating Doctor's Report accompanying Ms D'Ambrosio's claim for Disability Support Pension, Dr Musgrove noted that Ms D'Ambrosio suffered from severe fibro myalgia, neck pain, low back pain, severe depression and thalassaemia minor. The neck pain commenced in 1992, the back and neck aggravation in 1994 and depression also had a date of onset in April 1994 (T36, p110). Dr Musgrove indicated that all the conditions were long term and the neck, back and depression were deteriorating.
On 17 July 1998, Dr I Weingarten, Medical Adviser with Health Services Australia, opined that Ms D'Ambrosio had chronic pain syndrome with headaches, neck pain, lower back pain, abdominal pain and depression in addition to thalassaemia minor. On presentation, Dr Weingarten considered that Ms D'Ambrosio was not clinically depressed or in obvious pain or discomfort. She concluded that Ms D'Ambrosio was temporarily unfit to work 30 hours per week but should be able to work eight hours per week or retrain and that she should be reviewed in three months (T59, p131).
On 30 July 1998, Dr Musgrove provided a medical certificate indicating that Ms D'Ambrosio was unfit to work from 30 July 1998 to 31 October 1998, that she was suffering from severe depression, severe acne and chronic back pain and that when she eventually was to return to work, she should have no bending or lifting of weights, no heavy work, no work with chemicals or working in a hot environment (T41).
On 14 August 1998, Dr R Harvey, Medical Adviser with Health Services Australia, provided a report in which it was noted that Ms D'Ambrosio was difficult to assess. She had chronic pain with which she had yet to come to terms and associated depression, Dr Harvey reported. This condition interfered with Ms D'Ambrosio's daily activities but in Dr Harvey's opinion, would not necessarily preclude her from full time employment in a clerical position that did not involve any bending, lifting or carrying. Ms D'Ambrosio was attending physiotherapy once per week which provided her with temporary relief and she also took analgesics. Dr Harvey reported that Ms D'Ambrosio felt her immune system was compromised because she suffered from multiple viral infections. Dr Harvey reported that Ms D'Ambrosio resented that "the system" had not recognised the seriousness nor permanence of her medical conditions and that she had been forced to associate with "unemployed losers" on seminars and at departmental meetings. Dr Harvey assessed Ms D'Ambrosio's cervical problem at five per cent using Table 5 of Schedule 1B to the Act, a ten per cent rating for low back pain and no rating from Table 20 for thalassaemia minor. This provided a combined impairment rating of 15 per cent. Dr Harvey considered that Ms D'Ambrosio's depression was a temporary condition from which she was likely to recover within 12 months and that the depression was caused by back pain and chronic pain syndrome (T44).

On 9 September 1998, a Departmental delegate rejected Ms D'Ambrosio's claim for Disability Support Pension (T45).
On 22 September 1998, Ms D'Ambrosio requested a review of the decision to reject her Disability Support Pension stating that all the medical information had not been considered. Ms D'Ambrosio noted:
"…
I have tried part-time positions but have been unsuccessful in these attempts to return to the workforce. My disabilities are such that I had set myself up for failure by taking on these positions as I even had unrealistic expectations of myself.
…" (T48)

On 8 October 1998, an ARO affirmed the decision to reject Ms D'Ambrosio's claim for Disability Support Pension (T49) and Ms D'Ambrosio then made an application for review to the SSAT on 1 December 1998 (T59).
On 30 November 1998, Dr Musgrove reported in a Treating Doctor's Report that Ms D'Ambrosio continued to suffer from chronic pain/fibromyalgia of the neck and back muscles, depression and acne. In relation to Ms D'Ambrosio's depression, Dr Musgrove indicated that she may improve but this would be over an indefinite time (T55). Dr Musgrove considered that Ms D'Ambrosio would not be fit to work for at least 30 hours per week for more than two years either full or part time.
On 14 December 1998, the SSAT set aside the ARO's decision concerning the Disability Support Pension and determined that Ms D'Ambrosio was qualified for a Disability Support Pension from 16 June 1998 (T59). The Tribunal decided that the appropriate impairment ratings for Ms D'Ambrosio's conditions were five points for neck pain under Table 5, ten points for back pain under Table 5 and nil points for thalassaemia minor. The SSAT rated Ms D'Ambrosio's depression at ten points under Table 6. This provided a combined impairment rating of 25 points and hence Ms D'Ambrosio satisfied subsection 94(1)(b) of the Act. The Tribunal found that Ms D'Ambrosio could not work for 30 hours per week because of chronic pain which limited her physically and this, combined with symptoms of anxiety and depression, precluded her from working or undertaking any training.
On 25 March 1999, Ms D'Ambrosio requested that the Disability Support Pension be backdated to 1 August 1995 (T63).
On 20 April 1999, a departmental delegate decided that Ms D'Ambrosio's Disability Support Pension could not be backdated to 1 August 1995 (T64).
On 17 May 1999, an ARO affirmed the departmental delegate's decision not to backdate Ms D'Ambrosio's Disability Support Pension (T66).
In July 1999, Ms D'Ambrosio lodged an application for review to the SSAT (T68).
On 5 August 1999, the SSAT decided to affirm the ARO's decision not to backdate the Disability Support Pension to 1 August 1995 (T2). The SSAT did not question the existence of Ms D'Ambrosio's symptoms of anxiety/depression since 1995 as indicated by the CRS officer, Ms Birch, but decided following Ms D'Ambrosio's evidence that the symptoms were either not always at the level they had reached by 1998 and they were not sufficient, before 1998, to prevent her from undertaking work. The SSAT further noted that there was nothing in Ms D'Ambrosio's evidence to suggest that she was unable either mentally or emotionally to cope with the work that she had obtained in 1997. The SSAT thought that it was significant that in 1998, sadly Ms D'Ambrosio's father died and that this, combined with her having contracted glandular fever, caused her particular stress. The SSAT concluded that it was not reasonable to apply subsection 100(2) of the Act and that Ms D'Ambrosio was not qualified for a Disability Pension as at 1 August 1995.
On 1 September 1999, Ms D'Ambrosio applied to the Tribunal for a review of the SSAT's decision. In a letter accompanying her application for review, Ms D'Ambrosio noted that she had been forced to transfer from Sickness Allowance to Jobsearch Allowance and believed that at that time she was qualified for a Disability Support Pension. Ms D'Ambrosio noted that she had been forced to do a job seeker workshop in June 1997 and it was this pressure that had pushed her to take work that she had not been medically cleared to undertake. The pressure of threats to cease her Social Security payments made her try to focus on a career, Ms D'Ambrosio wrote. Ms D'Ambrosio noted that she wanted to prove to herself what she could do and what she could no longer undertake. Ms D'Ambrosio noted of the SSAT that it had assumed the work she performed was to the satisfaction of her employers but this was not the case. In this regard, Ms D'Ambrosio noted that she was pressured to leave the Colour Studio and also to leave Jesse Apparel. Ms D'Ambrosio further noted that her symptoms were so exacerbated by the work, that in fact she had to "walk out" of the Colour Studio. Throughout the July to November 1997 period, Ms D'Ambrosio continued to undertake physiotherapy and she was also attending regular sessions with Mr T Jones, Clinical Psychologist. Ms D'Ambrosio complained that Centrelink and Health Service Australia's medical advisers never took her depression into account, relying only on her physical impairment and accordingly her impairment percentages were reduced. The SSAT had noted Ms D'Ambrosio's depression, but she maintained that this condition had been "steady and constant since 1994". Accordingly, Ms D'Ambrosio considered that she met all the requirements for a Disability Support Pension as at 1 August 1995 and that utilising the provisions of subsection 100(2) of the Act, Ms D'Ambrosio should have her original claim for Jobsearch Allowance considered as an application for Disability Support Pension (T1).

EVIDENCE OF MS D'AMBROSIO

Ms D'Ambrosio explained to the Tribunal that her second motor vehicle accident in 1994 had caused her main injuries and difficulties with continued employment. Prior to 1994, Ms D'Ambrosio had been a successful career woman earning approximately $50,000 per annum and she was in a managerial position. Ms D'Ambrosio informed the Tribunal that her future was bright and she was headed for greater success, "I was good at what I chose to do", she stated. After the motor vehicle accident in 1994, Ms D'Ambrosio was working on and off, trying to cope but not really being successful.
Ms D'Ambrosio described her suffering from severe and constant neck and back pain, dizziness, depression, skin rashes and headaches. The stress associated with all of her physical symptoms and grieving over the loss of her career and other aspects of her life, was severe and great, Ms D'Ambrosio told the Tribunal. She was using the medications Panadeine, Panamax, creams for her rashes and later, anti-depressants to treat her depression. In addition, Ms D'Ambrosio was frequently undertaking physiotherapy and on occasions acupuncture. Ms D'Ambrosio told the Tribunal that she could not sleep, had lost confidence, had reduced her social contact and was isolated.
Ms D'Ambrosio stated that she found it hard to accept that she could not work. It had always been her plan to continue work. Ms D'Ambrosio had attended the CRS and had, at the time, been optimistic that this would assist her back to employment. The assistance was provided through counselling with clinical psychologist Ms E Birch, in addition to vocational training and "tips" as to how practically to cope with everyday life while still managing her disabilities.
Prior to attending counselling with Ms Birch at the CRS, Ms D'Ambrosio had attended counselling during 1994 and 1995 at a Women's Health Centre at Arncliffe, where she was counselled by Louisa Lawson.
While at CRS, Ms D'Ambrosio had five counselling sessions with Ms Birch from 3 November 1995 to 22 March 1996 (T26, T28 and Exhibit A1) during which time Ms D'Ambrosio was placed on Aurorix, an anti-depressant. Ms Birch concluded towards the end of the counselling sessions that Ms D'Ambrosio's pain was worse, she had unreal expectations of her recovery from her injuries and that she needed to develop strategies to take responsibility for and management of her pain (T28). CRS has also suggested other employment options for Ms D'Ambrosio such as computer or telephone work and teaching.
Ms D'Ambrosio told the Tribunal that the medical advisers with Health Services Australia had overlooked her ongoing and prominent depression. Dr Musgrove, her treating doctor for some 13 years, had on occasions also overlooked reporting her depression. Ms D'Ambrosio urged the Tribunal to look at Dr Musgrove's various reports where he might not have used the word "depression" but for example, used the words "nervous stress reaction" such as in his medical certificate of 4 August 1994 (T9). Dr Musgrove had also reported on 18 July 1995 that Ms D'Ambrosio was suffering great stress and anxiety directly as a result of her chronic pain from her injuries (Exhibit A2). Thus, although Dr Musgrove did not on occasion use the word "depression", it was clear from his reports that Ms D'Ambrosio was suffering a psychiatric/psychological condition.
In her claim for Disability Support Pension, Dr Musgrove had certainly reported severe depression as one of Ms D'Ambrosio's conditions which was present since 1994 (T36). Ms D'Ambrosio noted from a file note by a departmental officer on 30 August 1995 that the officer, having phoned Dr Musgrove, was told by him that Ms D'Ambrosio was unable to work because of a combination of depression/stress and orthopaedic problems (T22). Ms D'Ambrosio postulated that perhaps Dr Musgrove on occasions only wrote about the physical things in his report because he was a "physical" doctor.
Ms D'Ambrosio stated that she could not understand why, if all the symptoms of her condition were present on 1 August 1995, that is physical and depression/anxiety symptoms, and the documentation was available to support this, that she was then not considered for a Disability Support Pension, instead of Jobsearch Allowance.
Such documentation concerning her emotional/psychological condition was not only available through reports provided by Ms E Birch of the CRS, but also in the reports provided by Dr Musgrove. Ms D'Ambrosio told the Tribunal that she had ongoing counselling following Ms Birch, also with Mr T Jones, Clinical Psychologist. She had undertaken some 15 visits between 31 October 1996 to 9 January 1998 (Exhibit A1). Ms D'Ambrosio explained to the Tribunal that she spoke with Mr Jones about her life in general and that she cried every session. She did not speak about work with him but generally about her life and coping with pain. Because Ms D'Ambrosio could not continue to afford the counselling sessions with Mr Jones, she then attended counselling with another counsellor at a health centre, totalling some 18 visits between 6 November 1998 and 23 July 1999. Ms D'Ambrosio continued counselling throughout 1999 and at the time of hearing, was on a waiting list for counselling with a women's centre support group.
Ms D'Ambrosio expressed her dissatisfaction with "the system" which had put her on the wrong benefit of Jobsearch Allowance. Ms D'Ambrosio told the Tribunal that she was forced to work when she was in fact too ill. No-one explained to her the existence of a Disability Support Pension. She had been a career woman, earning high wages and had nothing to do with the social security system. Ms D'Ambrosio explained that she did not think to inquire of the Department or other health or counselling professionals as to other more suitable departmental benefits. It was the Department's responsibility, Ms D'Ambrosio stated, to inform her of her eligibility for departmental assistance.
In relation to other doctor's reports, Ms D'Ambrosio stated that the Commonwealth medical advisers had made mistakes about her physical condition, reporting and rating her back as worse than her neck when in fact the reverse was true. Further, Ms D'Ambrosio stated that Dr Cheetham was making his findings based on no reports at all. Dr Roebuck, Orthopaedic Surgeon, correctly reported her conditions rating her neck as being worse than her back as had Dr Bodel, also an Orthopaedic Surgeon. (Exhibit A4).
Ms D'Ambrosio described her various work placements after the 1994 motor vehicle accident. She had attempted to work at Sports Fashion as part of a six months' rehabilitation/graduated return to work program but this was not successful. Ms D'Ambrosio was in receipt of Sickness Allowance but she was forced from this allowance to Jobsearch Allowance when she was not well enough, she stated. Ms D'Ambrosio was forced to look for employment at a time when she was on anti-depressants. She had been on anti-depressants in fact when she was in receipt of Sickness Allowance.
Ms D'Ambrosio explained to the Tribunal that if she had not looked for work, she would have lost her income support. Ms D'Ambrosio further explained that initially she was happy to work as she had unreal expectations of her capabilities. Ms D'Ambrosio worked at Park Lane Clothing in a part-time position in mid 1995 but she was not able to work in this position more than a few weeks. At that time, she was working three days per week from 8:00am until 4:00pm with a lunch break. Next, Ms D'Ambrosio undertook employment at the Colour Studio as a pattern maker, working 8:00am to 4:00pm for three or four days per week. Ms D'Ambrosio left this position because she could not lift heavy fabric. She was always in pain, but only had two days off work because of sickness during her time there. Ms D'Ambrosio could not recall whether or not during this period of employment in 1997, she had talked to Dr Musgrove about her work difficulties, her pain and her feeling that she was not suitable for employment. In any event, Ms D'Ambrosio told the Tribunal that eventually it all got too much for her at the Colour Studio and she walked out of the job. She could no longer cope with the pain and trying to fit her disabilities within the requirements of the position. In this regard, Ms D'Ambrosio was questioned about her reports to doctors and to the SSAT in terms of length of time that she could sit without pain. Ms D'Ambrosio clarified that she could sit without experiencing pain for approximately ten minutes but after this time she could tolerate sitting only for 30 minutes.
In September or October 1997, Ms D'Ambrosio accepted a part-time position at Jesse Apparel as a pattern maker. Ms D'Ambrosio described having to walk up three flights of stairs and use ladders to retrieve patterns, in addition to the other requirements of pattern making. The work was from 8:00am until 4:00pm, for three days per week. She also worked at the Colour Studio at the same time she was working in a teaching position at St George TAFE (T33). Ms D'Ambrosio explained to the Tribunal that she had undergone a rigorous selection process for the TAFE position as it was a highly sought after job. Ms D'Ambrosio thought she might have applied for the position in late 1996 or early 1997. The duties of the teaching position required approximately two hours of face-to-face teaching on Monday and about six hours preparation time. Ms D'Ambrosio usually worked on Sundays to prepare for her Monday lectures. During the six months or so of working with St George TAFE, Ms D'Ambrosio acknowledged that she had only two days off with illness, however, when questioned about her evidence to the SSAT that she had only had one day off from St George TAFE with illness, Ms D'Ambrosio indicated that if that was what she had told the SSAT, then it was correct.
During 1997, Ms D'Ambrosio's medication continued to be Panamax or Panadeine and she was also taking anti-depressants. Ms D'Ambrosio stated that she had expected to continue teaching at TAFE during 1998. After experiencing glandular fever at the end of 1997 or early 1998 she declined to take up the position again when a TAFE recruitment officer contacted her to offer a contract for 1998.
While Ms D'Ambrosio acknowledged that she had worked in a number of positions during 1997 and at least on one occasion was working in two positions, she wished the Tribunal to understand that she was not coping with any of these positions. Ms D'Ambrosio stated that she was always in pain, she lacked concentration, she was having to continue treatment, counselling and physiotherapy. Ms D'Ambrosio rejected the suggestion by Mr Lozynsky that she was in fact coping on medication and concluded that as early as 1995, she had come to the conclusion that Jobsearch Allowance was not appropriate for her.
Ms D'Ambrosio was questioned as to why she had not considered nor actively sought employment outside her profession, as had been suggested by CRS and a number of Orthopaedic Surgeons and Medical Advisers with Health Services Australia. Ms D'Ambrosio stated that she just did not get to the point where she undertook either computer or telephone work or other clerical work as suggested by the CRS and various doctors. Ms D'Ambrosio stated that she had undertaken a teaching position but acknowledged this was still in the field of her professional training.
Ms D'Ambrosio stated that she has her own home for which she makes regular mortgage repayments. The CRS provided her with helpful suggestions in a practical sense as to how to manage her day to day life. To this end, Ms D'Ambrosio has particular strategies for managing her housework. She does her house cleaning, clothes washing and vacuuming less often than previously and does it in stages. Ms D'Ambrosio's mother helps her with the garden.
In recent times, Ms D'Ambrosio has attended group therapy sessions and has been planning her long term future. She explained that she wants to undertake a project/business to take her off the Disability Support Pension and "out of the system". The Tribunal noted that Ms D'Ambrosio had recently inquired of the Department concerning the amount of money she would be able to earn before her Disability Support Pension was reduced (T68).
SUBMISSIONS
Ms D'Ambrosio submitted that the Disability Support Pension should have been granted effective 1 August 1995. At that time she was not eligible for Jobsearch Allowance, but entitled and eligible for a Disability Support Pension because of her combined physical and psychological disabilities which made it difficult for her to work, Ms D'Ambrosio submitted.
In August 1995, Ms D'Ambrosio contended that she was suffering from depression and this is well documented. Ms D'Ambrosio's long standing General Practitioner, has reported consistently in various reports and medical certificates that she has suffered stress/anxiety/depression since 1994. Further, there is also documented evidence that Ms D'Ambrosio was attending counselling with clinical psychologist Ms Birch from the CRS and that Ms Birch had prescribed anti-depressant medication for Ms D'Ambrosio in late 1995 which she continued to take.
While Ms D'Ambrosio had worked in 1997, she had been forced to do so, otherwise she would not have been able to receive income support. Even when she had worked, it had been part-time and Ms D'Ambrosio submitted that she was only able to keep up employment for a few weeks at a time because of the negative impact of her disabilities of neck and back pain and depression. Ms D'Ambrosio submitted that not only had she the physical and psychological disabilities but she was requiring medication and treatment to keep her going. She was not coping with work at all and was in great pain.
Ms D'Ambrosio reiterated that she initially had wanted to work because it had been very difficult for her to accept the reality of her situation. She had unreal expectations of her capabilities, she submitted. It was very difficult for her to face her reduced capacities and the loss not only of her physical well being, but having to face the reality that her future successful career may not be realised. Her life plan prior to 1994 had been clear in that she saw herself as being an even more successful career woman as time went by. Ms D'Ambrosio asked the Tribunal to consider that she had tried her best to work but had failed. The Tribunal should not, Ms D'Ambrosio submitted, punish her for her efforts to continue working but consider the reality of her situation.

In her written Application for Review, Ms D'Ambrosio had noted that she had been "pressured and threatened" by the bureaucracy to take on work outside medical advice by Dr Musgrove who had indicated that she was not fit for work. Ms D'Ambrosio submitted that she was made to sign a Commonwealth Employment Service (CES) / Department of Employment, Education and Training (DEET) disclaimer in terms of her working when her doctor had advised against it, because the CES and DEET did not wish to have any repercussions.
Ms D'Ambrosio also submitted that it was irrelevant that there had been considerable time elapse from the date of Jobsearch Allowance on 1 August 1995 to the SSAT's decision that Disability Support Pension was payable from 16 June 1998. Ms D'Ambrosio submitted that her second car accident was in 1994 and she had not returned to full time employment since. While Ms D'Ambrosio accepted that the pension would not be payable during the period June to December 1997 when she earned approximately $12,000, the Tribunal should note that she was not undertaking full-time work and was not coping with the small amount of work she had. Ms D'Ambrosio concluded that she had not improved since 1994 and this had been foreshadowed by Dr Marabani who had concluded as early as 29 March 1993 that Ms D'Ambrosio would continue to be troubled by long term pain and that she had a chronic pain/fibromyalgia state (T7).
Ms D'Ambrosio rejected the proposition that her depression had really only become very limiting following the death of her father and that it was when this occurred during 1998 that the combination of her psychological and physical disabilities made her eligible for a Disability Support Pension. Ms D'Ambrosio submitted that she had not been close to her father at all and that her father's death, while sad, was not significant in her depressive condition because depression had always been present since 1994.
Accordingly, Ms D'Ambrosio contended that she satisfied all the requirements of section 94 of the Act on 1 August 1995 and, being qualified for a Disability Support Pension at that time, subsection 100(2) of the Act should be utilised to allow for a Disability Support Pension application to be substituted for the Jobsearch Allowance claim.
Mr Lozynsky, for the Respondent, contended that the Department's decision not to backdate Ms D'Ambrosio's Disability Support Pension claim lodged on 15 June 1998 to the date she claimed Jobsearch Allowance, being 1 August 1995, was the correct decision. Mr Lozynsky submitted that Ms D'Ambrosio was not qualified for Disability Support Pension at the time she was granted a Jobsearch Allowance because she did not satisfy the requirements of section 94 of the Act, particularly subsection 94(1)(b) which relates to having a 20 per cent or more impairment under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension ("the Impairment Tables") and subsection 94(1)(c) as it related to Ms D'Ambrosio having a continuing inability to work back in August 1985. Further, Mr Lozynsky submitted that subsection 100(2) of the Act does not apply because Ms D'Ambrosio was not qualified for a Disability Support Pension on the day she claimed Jobsearch Allowance. While Ms D'Ambrosio may have had certain impairments which date back to 1995 or before, this did not mean that on 1 August 1995 Ms D'Ambrosio's impairment rating was 20 per cent or more, Mr Lozynsky contended.
Mr Lozynsky referred to a number of reports in the documentary material. Referring to a report by Dr McGuigan of 10 December 1992, Mr Lozynsky noted that Dr McGuigan had reported:
"…She should not, however, have any permanent disability I feel. She has not had any particularly painful procedures apart from physiotherapy…It is unlikely that, apart from pain and restriction in the range of movement and her difficulties at work, there will be any future complications or deterioration…" (T3)

Mr Lozynsky referred to the report by Dr Marabani of 29 March 1993 and Dr Marabani's conclusion that Ms D'Ambrosio appeared to have a soft tissue injury (T7).

Dr Musgrove, Ms D'Ambrosio's treating General Practitioner in a report of 22 November 1994, noted that Ms D'Ambrosio's pain should resolve in time and that her remaining disability is pain in the neck and upper and lower back (T12).
Turning to the report of the Commonwealth Medical Officer, Dr Cheetham, of 9 June 1995, Mr Lozynsky noted that Dr Cheetham had assigned a rating of ten per cent under Table 6 for low back pain as Ms D'Ambrosio was able to work for 45 minutes and sit or stand for 30 minutes without feeling any discomfort. Ms D'Ambrosio was also at that time able to drive her manual car (T14). In relation to stress and anxiety, Dr Cheetham had diagnosed this as a temporary medical condition that was likely to improve after eight weeks with counselling (T14, p42).
Dr Roebuck, Orthopaedic Surgeon, reported on 31 July 1995 that Ms D'Ambrosio's lumbar spine revealed restrictions of movements in all directions while her cervical spine showed no change in her cervical spine musculo ligamentous tenderness (T21).
Dr Weingarten, Commonwealth Medical Officer, in a report of 17 July 1998, gave no ratings but noted that Ms D'Ambrosio presented no obvious signs of pain or discomfort. It should be noted however, that Dr Weingarten did not have Ms D'Ambrosio's file and accordingly her conclusions are based on incomplete information. Dr Weingarten had opined that Ms D'Ambrosio would be temporarily unable to cope with full-time employment for at least three months but her impairments would not prevent her from participating in a training program during the next two years (T39).
A further report of a Medical Adviser with Health Services Australia, Dr Harvey, dated 14 August 1998, assessed Ms D'Ambrosio as having a ten per cent impairment for low back pain and a five per cent impairment for the cervical spine. No rating was provided for thalassaemia minor and the total impairment rating was 15 per cent. While Dr Harvey found that Ms D'Ambrosio did suffer from depression, he opined that this condition was due to back pain and chronic pain syndrome and considered the condition to be temporary and likely to improve within 12 months (T44).
Mr Lozynsky submitted that Ms D'Ambrosio's General Practitioner, Dr Musgrove, made no reference to a depressive condition or anxiety or stress symptoms in a Sickness Allowance review prepared by Dr Musgrove on 1 June 1995 (T13). Accordingly, Mr Lozynsky submitted that Ms D'Ambrosio's depression was not rateable in 1995 as it had not been stabilised and there had been no treatment sought for this condition. While noting that the SSAT did not dispute the existence of anxiety and depression symptoms as noted by clinical psychologist Ms E Birch, the SSAT nevertheless determined in its decision that because of Ms D'Ambrosio's evidence at hearing, it was persuaded that the symptoms of depression/anxiety were either not always at the level reached by 1998 or they were not there before 1998 sufficient to prevent Ms D'Ambrosio from working. Further, Mr Lozynsky submitted that the loss of Ms D'Ambrosio's father in 1998 brought her to the point of a nervous breakdown as was found in the SSAT's decision (T2, p12). In such circumstances, Mr Lozynsky submitted that Ms D'Ambrosio was only stressed and highly anxious from the latter half of 1995 and onwards, as she was heavily focused on her pain and the fact that she had been transferred from Sickness Allowance to Jobsearch Allowance (T26, p65).
Mr Lozynsky disagreed with Ms D'Ambrosio's submission and Dr Musgrove's opinion that the date of onset of Ms D'Ambrosio's depression was 1994. In support of this contention, Mr Lozynsky referred to the module MD (medical and other information details) of 16 May 1994 and 4 August 1994 in which Ms D'Ambrosio made no reference to depression, but instead noted that she had lower back injury and neck injury as well as stomach complications (T8, T10).
Further medical evidence supported Mr Lozynsky's submission in the Sickness Allowance reviews of 14 November 1994 and 1 June 1995 in which Dr Musgrove referred to chronic pain and fibromyalgia but made no reference to Ms D'Ambrosio suffering from depression (T11, T13). A further report of Dr Musgrove dated 22 November 1994 again made no reference to any evidence of depression (T12).
Referring once more to Dr Cheetham's report of 9 June 1995, Mr Lozynsky noted that Dr Cheetham had stated that Ms D'Ambrosio was not using any anti-depressant medication and had not sought any specialist psychiatric treatment. While she had feelings of anxiety/depression these could only be classified as being temporary at that stage (T14).
In relation to the issue of whether or not Ms D'Ambrosio had a continuing inability to work, Mr Lozynsky referred the Tribunal to Dr McGuigan's report of 10 December 1992 in which Dr McGuigan had opined that Ms D'Ambrosio would be able to return to her work but this would be painful for several months and that she needed to be reassessed (T3). Further, Dr Musgrove's notation of 22 November 1994 indicated that Ms D'Ambrosio was unfit for her pre-accident work at least in the short term (T12). Dr Cheetham had also opined that Ms D'Ambrosio would be unfit for work for another eight weeks from 9 June 1995 but noted that after some counselling, she would be fit for light duty work (T14). Dr Cheetham further opined that a return to any type of work would reduce the risk for Ms D'Ambrosio of developing chronic pain syndrome as she herself had indicated that a lack of work was contributing to her psychiatric problems (T14).
On 31 July 1995, Dr Roebuck had opined that Ms D'Ambrosio had a permanent alteration to her employability from both her back and her neck conditions and was unable to perform her pre-injury occupation or any other occupation which would involve heavy or repetitive back or neck movements. Dr Roebuck concluded that Ms D'Ambrosio was fit for light sedentary duties.
In further support of Mr Lozynsky's contention that Ms D'Ambrosio was not unable to work from 1 August 1995, he referred to a medical certificate by Dr Musgrove of 30 July 1998 in which the doctor noted that Ms D'Ambrosio would be able to return to work at eight hours per week or to work or study within 12 to 24 months (T41). Dr Harvey had opined on 14 August 1998 that although Ms D'Ambrosio's chronic pain and depression interfered with aspects of her daily activities, these conditions would not necessarily preclude her from full time employment in a clerical position that did not involve any bending, lifting or carrying (T44). Further, Dr Harvey opined that Ms D'Ambrosio's impairments would not prevent her from participating in any training program during the next two years.
The SSAT in its decision of 5 August 1999 had concluded that there was nothing in Ms D'Ambrosio's evidence to suggest that she was unable, either mentally or emotionally, to cope with the work that she had actually obtained in 1997. It appeared to the SSAT that Ms D'Ambrosio may have continued with her work if more had been offered and if she had not fallen ill to glandular fever in early 1998.
Mr Lozynsky submitted that Ms D'Ambrosio had always sought to return to work and this was supported by the interim psychology report prepared by Ms Birch.
In an earlier SSAT decision of 16 November 1995, that tribunal had noted in Ms D'Ambrosio's evidence that she expected to return to full-time work and hoped to do so within the next year. She had also acknowledged to that SSAT that her inability to work was only temporary (T27, p69).
Mr Lozynsky submitted that the Tribunal should refer to the activity plans completed by the CRS in 1996 particularly as it related to Ms D'Ambrosio's wish to pursue job seeking on her own without the assistance of the CRS. Of relevance also is the fact that in her Disability Support Pension Claim of 15 June 1998, Ms D'Ambrosio stated that she would like help in finding a job in the future.
The evidence, both documentary and from Ms D'Ambrosio, is that she had been engaged in employment in various positions during 1997 and the full details of her employment was not, Mr Lozynsky submitted, brought to the SSAT's attention prior to it handing down its decision in December 1998. Mr Lozysnky asked the Tribunal to consider that given that Ms D'Ambrosio was working three to four full-time days per week on many occasions, particularly in the latter half of 1997, this demonstrated that her medical impairments did not preclude her from working full-time and therefore she failed to satisfy the issue of having a "continuing inability to work". Ms D'Ambrosio had three or four part-time positions over a six month period in 1997 which included employment with Park Lane fashion from June to August 1997, the Colour Studio from August to October 1997, Jesse Apparel in October and December of 1997 and St George TAFE from March to November 1997. Furthermore, Ms D'Ambrosio stated that during her employment with St George TAFE she missed only one teaching day due to health problems and her evidence to the Tribunal was that TAFE was keen to have her continue her work in 1998.
Mr Lozynsky disagreed with Ms D'Ambrosio's assertion that she was pressured into working. Referring to Calderaro v Secretary, Department of Social Security (1991) 33 FCR 244, the court did not disagree with a previous tribunal's considerations that:
"In order to obtain the payment of unemployment benefit she [Ms Caldero] must have filled in forms stating that she was at the relevant times capable of undertaking and willing to undertake paid work, and that she had taken reasonable steps to obtain such work. Once such assertions were made there would not have been any reason for an officer to think she may have been entitled to invalid pension."

Mr Lozynsky submitted in order to receive the Jobsearch Allowance, it was a requirement that Ms D'Ambrosio seek employment in the hope that she might support herself rather that relying on income support from the Department.

Mr Lozynsky contended that Ms D'Ambrosio earned over $12,000 from June to December 1997 and this would have precluded her from receipt of a Disability Support Pension during this period. Ms D'Ambrosio had conceded that this is correct.
Mr Lozynsky further contended that it is unreasonable to apply subsection 100(2) of the Act due to the length of time involved in Ms D'Ambrosio's request for her payment of Disability Support Pension from August 1995. While Mr Lozynsky submitted that this may be a minor consideration, it is a relevant consideration as accepted by the Federal Court in Calderaro v Secretary, Department of Social Security (supra1991). In that case, the Federal Court held that a decision-maker can take into account all relevant facts made clear in hindsight. As a consequence, it had the matter remitted to the Tribunal with a direction that the matter be reconsidered in accordance with its reasons. Subsequently in the Tribunal, Re Calderaro and Secretary, Department of Social Security (1992) 27 ALD 393, that Tribunal found that the recipient was granted Sickness Benefit because of her physical problems. She was not permanently incapacitated for work as a result of her psychiatric condition or as a result of any other medical condition, physical or mental, or any combination of conditions after July 1977 and before 1982. That Tribunal viewed the matter with hindsight and concluded that Ms Calderaro's incapacity for work for the period in question was temporary and not permanent. That case is authority for the proposition, Mr Lozynsky submitted, that the Tribunal has no power to exercise the discretion in ordering payment of Disability Support Pension to the Applicant if she was not qualified for such a payment.
The SSAT found in favour of Ms D'Ambrosio that she was qualified for a Disability Support Pension from 16 June 1998. Mr Lozynsky submitted however that Ms D'Ambrosio's medical conditions were not severe enough to warrant the granting of a Disability Support Pension back to August 1995. Further, Mr Lozynsky reiterated that Ms D'Ambrosio was not eligible for a Disability Support Pension because her symptoms were either not always at the level reached by 1998 or they were not, before 1998, sufficient to prevent her from undertaking work. Further, the weight of medical evidence is not supportive of Ms D'Ambrosio being qualified for a Disability Support Pension as she fails to satisfy subsections 94(1)(b) and 94(2) of the Act.
In conclusion, Mr Lozynsky submitted that the Tribunal should affirm the decision under review in finding that the date of the provisional commencement of Ms D'Ambrosio's Disability Support Pension not be applied to the date she applied for Jobsearch Allowance being in August 1995.
FINDINGS
The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the legislation and the case law.
The Tribunal found Ms D'Ambrosio was cooperative in the provision of her evidence and considered her a witness of truth.
Ms D'Ambrosio contends that she was eligible for Disability Support Pension on 1 August 1995 when she first claimed Jobsearch Allowance. Ms D'Ambrosio considers that at that time she was more appropriately eligible for the Disability Support Pension taking into account not only her physical disabilities of fibromyalgia of the back, neck and thalassaemia minor but also her psychological condition, diagnosed as depression.
Under subsection 100(2) of the Act a claim for Jobsearch Allowance, in Ms D'Ambrosio's case, may be substituted for a claim for Disability Support Pension if on the date the initial or original claim was made, Ms D'Ambrosio qualified for Disability Support Pension.
Turning to consider section 94 of the Act which deals with the qualification for Disability Support Pension, it is clear that Ms D'Ambrosio satisfied subsection 94(1)(a) of the Act in that at the time she claimed Jobsearch Allowance she had a physical disability and the Tribunal accepts, that she also had present anxiety which later was diagnosed as depression.
Subsection 94(1)(b) of the Act, as it now provides, requires that a rating of 20 per cent or more under the Impairment Tables must be reached. By its decision of 14 December 1998 the SSAT determined that as at 16 June 1998, the date of Ms D'Ambrosio's claim for Disability Support Pension, she satisfied the requirements of subsection 94(1)(b) of the Act in that she had a rating of ten points for back pain from Table 5, five points for neck pain from Table 5 and no points for thalassaemia minor and ten points for depression from Table 6, thus totalling 25 points and satisfying subsection 94(1)(b) of the Act.
Ms D'Ambrosio contends that the ten points assigned to her condition of depression in June 1998 should in fact have been assigned to an assessment of her depression condition in August 1995 because she considers that the condition was rateable at that earlier time and was permanent and stable. On the Tribunal's assessment of the documentary and oral evidence provided to it, the Tribunal finds that Ms D'Ambrosio did have anxiety symptoms and later symptoms of depression as described by Ms D'Ambrosio's doctor, Dr Musgrove and also Ms Birch, Clinical Psychologist with the CRS. The difficulty is however that the condition of depression as later diagnosed, was considered to be at that time a temporary condition and one for which Ms D'Ambrosio was receiving treatment with the belief by various health care professionals that there could be some progress, if not slow progress. The Tribunal notes, in reaching this finding, that Dr Musgrove, who was the most frequently in contact with Ms D'Ambrosio, did not report the condition of depression on a constant basis. Ms D'Ambrosio contended that Dr Musgrove did not report her depression or anxiety on every occasion because he was dealing with her physical condition and not her psychological condition. The Tribunal does not accept this explanation, particularly in the face of other medical opinion that the condition of depression was temporary and likely to improve. Thus, even though the Tribunal accepts that depression may have been present from 1995, it does not accept that in terms of the legislative requirements for the rating of impairments, Ms D'Ambrosio's depression was at that time a permanent and stable condition.

Thus the Tribunal finds that while depression was present from August 1995, that it was not stabilised nor a permanent condition at that time. The Tribunal notes that Dr Cheetham, a Commonwealth Medical Officer, reported that stress and anxiety was a temporary condition likely to last eight weeks (T14) and that Ms D'Ambrosio was able to undertake light work. Dr Roebuck in July 1995 also opined that Ms D'Ambrosio was able to undertake light work and there was no mention of depression. Further, in regard to Ms D'Ambrosio's major physical conditions of neck and back pains, the Tribunal notes that in June 1995, Dr Musgrove was reporting slow and gradual improvement in relation to both those conditions. The Tribunal accordingly does not consider that as at August 1995, Ms D'Ambrosio's depression was rateable in the legislative sense and further, her back and neck problems were changeable.
The Tribunal notes Ms D'Ambrosio's contention that the Department forced her to transfer from Sickness Allowance to Jobsearch Allowance against her medical advice and forced her to sign a Medical Certificate Disclaimer. The Tribunal does not consider that Ms D'Ambrosio was forced to sign anything. The Tribunal notes Ms D'Ambrosio's evidence that early after her accident she was wishing to work and all her efforts were focused towards this end. The Tribunal also notes that Ms D'Ambrosio had terminated her contact with the CRS because she wished to pursue her own job seeking activities. If Ms D'Ambrosio felt at that time that she was unable to work, then it was well within her power not to sign the Medical Certificate Disclaimer and to pursue invalidity actions. The Tribunal also notes Ms D'Ambrosio's evidence that when speaking with Dr Musgrove and clinical psychologist Mr Jones, she did not talk about her work difficulties. Such evidence does not suggest to the Tribunal a person who is of the view that her medical conditions are preventing her from undertaking work. While noting Ms D'Ambrosio's evidence that she had in late 1995/1996 an unreal expectation of her capabilities and that she should not be penalised for attempting to work, the Tribunal agrees that Ms D'Ambrosio should not be penalised for undertaking work-seeking activity. The issue is however that at that time, Ms D'Ambrosio wished to pursue work and she was being encouraged to do so by the psychologists and by other health care professionals. Such a finding supports the Tribunal's view that at that time in late 1995 and in 1996 Ms D'Ambrosio's conditions were not at a point where they could be considered to be stable and permanent. It was only later that the conditions could be so described.
The Tribunal has no medical reports or opinions for the period late 1996 and 1997. During 1997, while Ms D'Ambrosio reports continuing counselling, she was also working in at least four positions, one for almost the entire year at St George TAFE and the others for short periods of time. At one point during 1997, Ms D'Ambrosio was simultaneously employed in two part-time positions. Ms D'Ambrosio's attempts to maintain employment are commendable. If she had not attempted employment at that stage, she would not have known whether or not her capacities, both physical and psychological, would have allowed her to work. It was important for Ms D'Ambrosio to test herself and her conditions against employment. Ms D'Ambrosio did not seek employment in other types of work nor, it seems to the Tribunal, look at other light duty positions. The work she sought was in direct contravention of that proposed by health care professionals who indicated that she was capable of employment in light duties other than the type of work she had previously been experienced and that in particular, she should not be involved in employment which required her to sit, stand, bend or lift. Even though the Tribunal accepts that Ms D'Ambrosio's attempts at employment were fraught with difficulty and that she was in pain and not coping, the Tribunal does not consider that she tested any other employment at that time in terms of seeing whether light duty positions might have afforded her a better and more successful outcome in terms of maintaining employment. The Tribunal also does not accept that the depression Ms D'Ambrosio experienced at that time was also preventing her from employment.
Even if the Tribunal had found that Ms D'Ambrosio had depression which was permanent and stable and could be rated, providing her with a total combined impairment of more than 20 per cent, the Tribunal must still make some determination as to whether or not she satisfied subsection 94(1)(c) in relation to her having a continuing inability to work. On the evidence before the Tribunal, it is difficult for the Tribunal to accept that Ms D'Ambrosio at that time in 1995 and particularly 1996 and 1997, had a continuing inability to work. The Tribunal considers that Ms D'Ambrosio had not tested any of the other employment options suggested either by CRS or orthopaedic specialists. The Tribunal considers that Ms D'Ambrosio was quite probably able to undertake light duty positions which took into account her physical disabilities. Further, the Tribunal considers that Ms D'Ambrosio would have been able to undertake training for any such new positions. She is an intelligent, capable woman but did not explore other avenues of employment which might have afforded her a better outcome.
In late 1997, Ms D'Ambrosio had considered that she would be returning to St George TAFE the following year. Not only was this her intention, but Ms D'Ambrosio's evidence was that she had been contacted by St George TAFE to ascertain whether she would be available. She was thus accepted as a valuable employee during 1997. Further, the Tribunal notes that Ms D'Ambrosio, in relation to her employment at St George TAFE and her other employment, only had one or two sick days related to her physical disabilities.
The Tribunal believes that the situation for Ms D'Ambrosio changed in early 1998 because of a number of things. The Tribunal considers that Ms D'Ambrosio's contracting glandular fever, with a history of repeated viral infections as noted in the medical evidence, in combination with the death of her father, propelled her situation to one where she, in 1998, found that her physical and psychological health had deteriorated to the point where she could no longer work. The Tribunal accepts Ms D'Ambrosio's evidence that she was not close to her father, however based on other evidence to the SSAT, the Tribunal considers that the death of her father and the grief associated with that, in combination with all the other physical and psychological problems, came together to cause Ms D'Ambrosio to come to the realisation that she was at that time unable to work.
It was always available to Ms D'Ambrosio prior to June 1998 to apply for a Disability Support Pension. Ms D'Ambrosio states that because she was naïve in terms of matters to do with income support, she was not aware of the availability of a Disability Support Pension. This may be true, however, Ms D'Ambrosio was in contact with psychologists, counsellors and medical professionals who were all well-versed in income support issues including the availability of Disability Support Pensions for those who are unable to work. That this was not suggested to Ms D'Ambrosio indicates to the Tribunal that from 1995 to 1998 it was considered that Ms D'Ambrosio had the possibility of obtaining work, despite her disabilities, in employment which could cater to her particular needs.
Accordingly, the Tribunal finds that Ms D'Ambrosio's depression was not stable and permanent as at 1 August 1995 and as such could not be rated under the Impairment Tables as at that date. Further, the Tribunal finds that also as at 1 August 1995, Ms D'Ambrosio did not have a continuing inability to work because she had not tested any other light duties work as had been suggested to her by numerous health care professional and she had also not attempted any training to this end. Further, the fact that Ms D'Ambrosio worked in a number of positions during 1997, one of which encompassed almost the entire year, does not suggest to the Tribunal someone who has a continuing inability to work at that time.
Therefore, in all the circumstances and for the reasons set out above, the Tribunal finds that Ms D'Ambrosio did not satisfy section 94 of the Act as at 1 August 1995 and therefore does not have available to her the provisions contained in subsection 100(2) of the Act to allow her to have a Disability Support Pension claim substituted for a Jobsearch Allowance claim which was made on 1 August 1995. Having so found, under the provisions of section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock
Signed:         .....................................................................................
  Associate
Date/s of Hearing  5 January 2000
Date of Decision  18 May 2000
Representative for the Applicant              Self-Represented
Representative for the Respondent        Mr G Lozynsky, departmental advocate

[2000] AATA 393

18 May 2000

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Social Security Act

Disability Support Pension

Causation