Direen and Secretary, Department of Employment and Workplace Relations

[2006] AATA 935

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 935

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2005/184

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANGELA KATHERINE DIREEN

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT  AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date 2 November 2006

PlaceHobart

Decision The decision under review is affirmed.

..............................................

Senior Member

CATCHWORDS

Social Security - disability support pension - impairment rating of 20 points - decision under review affirmed

Social Security Act 1991

Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902

Freeman v Secretary, Department of Social Security (1998) 15 ALD 671 at p673-674

REASONS FOR DECISION

2 November 2006 Ms A F Cunningham (Senior Member)   

1.      The applicant, Angela Katherine Direen has sought the review of a decision made by a Centrelink officer on 7 June 2005, to cancel her disability support pension (DSP) because she no longer qualified.  Ms Direen had been in receipt of a disability support pension since 1994 for back pain and headaches.  The original decision was affirmed by an Authorised Review Officer.   On 2 December 2005 the Social Security Appeals Tribunal decided to affirm the decision under review. 

2.      Ms Direen’s DSP was cancelled on 7 June 2005 and accordingly her qualification for the payment must be determined as at that date (see Muir and Secretary,  Department of Employment and Workplace Relations [2005] AATA 902).

3. The provisions of section 94 of the Social Security Act 1991 (the Act) set out the qualifying factors for DSP:

“94(1) A person is qualified for disability support pension if:

(a)       the person has a physical, intellectual or psychiatric impairment; and

(b)       the person's impairment is of 20 points or more under the Impairment                  Tables; and

(c)       One of the following applies:

(i)        the person has a continuing inability to work;

(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”..

4.      It is accepted that Ms Direen has a physical impairment, namely low back pain and thus satisfies the provisions of sub-paragraph (a).  There is no dispute that Ms Direen also meets the provisions of sub-paragraphs (d) and (e) of sub-section (1).  What remains in issue is (i) whether her permanent impairment rating is of 20 points or more under the impairment tables and (ii) whether Ms Direen has a continuing inability to work. 

Impairment Rating

5.      Paragraph 4 of the Introduction to the Impairment Tables in Schedule 1B of the Act states:

“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:

“A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years”.

6.      The Impairment Tables are contained in Schedule 1B of the Act.  The table relevant to the applicant’s lower back condition is Table 5.2 which states:

“As  spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segment”.

7. For a rating of 20 points which is required pursuant to s94(1)(b) there must be:

“Loss of half of normal range of movement as well as back pain or referred pain;

. with most physical activities

. with standing for about 15 minutes and

. with sitting or driving for about 30 minutes.

OR

Loss of three-quarters of movement”.

8.        In its reconsideration of the decision under review and a determination as to whether the decision to cancel Ms Direen’s DSP at that time was the correct or preferable decision, the Tribunal must consider Ms Direen’s level of impairment as at the date of the decision made on 7 June 2005.  In its review, the Tribunal is not restricted to the evidence that was available to the primary decision-maker and may take account of additional material now presented.  The Tribunal’s function is to determine whether the decision made on 7 June 2005 was the correct or preferable decision taking into account Ms Direen’s circumstances as they then were, not to determine whether she is presently entitled to DSP (see

Freeman v Secretary, Department of Social Security (

1998) 15 ALD 671 at p673-674).

9.        The reviewable decision was made following an assessment undertaken by Dr Tabart on 3 June 2005.  She opined that Ms Direen had near normal range of movement and stated “on best observed movement some discrepancy between direct and observed”.  The impairment assessment under Table 5.2 was accordingly nil. 

10.      On 7 October 2005, Ms Direen’s treating doctor, Dr Hebblewhite stated:

“Angela Direen’s impairment rates 20 points and she has lost half of her normal range of movements (bending and twisting) and she has back pain or referred pain with most physical activities, with standing more than 15 minutes and with driving for about 30 minutes.

The impairment is permanent.  It has been present for the last 16 years and is likely to persist for the rest of Angela’s life.

The impairment prevents Angela from doing any work over the next two years – and longer.

The impairment prevents Angela from undertaking educational and vocational training or on the job training during the next two years – and longer:

11.      However in response to a question by the Tribunal as to whether Dr Hebblewhite had actually assessed Ms Direen’s range of movement she replied “no, I didn’t”.  Further, Dr Hebblewhite had not asked Ms Direen to perform any particular movements or exercises but based her conclusion on what she had observed on seeing Ms Direen walk and sit.  When the impairment tables were shown to Dr Hebblewhite she said that she would assess her rating as 20 as far as her activities are concerned but that there may be times when she has got a better range of movement.  She confirmed that this rating would apply to Ms Direen’s current situation and with respect to June 2005 she responded “look it may at times fluctuate to 10.  But it wouldn’t take it much to push it to 20”.   Dr Hebblewhite said that when she saw Ms Direen in June after she had seen the Centrelink doctor, her impairment rating would definitely have been 20. 

12.      In light of Dr Hebblewhite’s oral evidence before the Tribunal, and in particular the fact that she based her impairment rating on general observations rather than an assessment of what movements Ms Direen was unable to perform, the Tribunal places little weight on her assessment of 20 points as contained in her report of 7 October 2005.

13.      Also tendered in evidence was a report from Dr Hilton Francis, Rheumatologist, addressed to Dr Hebblewhite and dated 24 October 2005.  He opined, “she achieves about 50% of range on forward flexion, the limiting factor being pain”.  However, this assessment seems to have been undertaken some four months after the date of the reviewable decision and is not evidence of Ms Direen’s range of movement at the relevant time.  Other requirements for an impairment rating of 20 are that Ms Direen be limited to standing for about 15 minutes and sitting or driving for about 30 minutes because of back or referred pain.  It was Ms Direen’s evidence that she is able to sit for 30 minutes and in fact sat for over an hour  during the course of giving evidence at the hearing.  Ms Direen said that she is able to stand for 30 minutes which is 15 minutes in excess of the rating requirement. 

14.      In Dr Tabart’s report of 3 June 2005 she stated that Ms Direen drives a ford laser and is able to sit in a car for 40 minutes and in fact drives to Hobart from her home which takes about 40 minutes.

15.      The medical notes of Ms Direen’s consultations with Dr Hebblewhite around the relevant time were tendered in evidence.  On 18 May 2005 Dr Hebblewhite’s notes reveal that Ms Direen had consulted her in relation to headaches caused by back/neck tension.  The next consultation was on 27 May 2005, when she reported being distressed with right shoulder pain all week.  On 14 June 2005, Dr Hebblewhite noted that Ms Direen had gone to a Centrelink doctor on 4 June, who made her jump on one leg which aggravated her pain, that she was in agony that day, that she had received a letter from Centrelink, that her pain was escalating and that valium was not helpful. 

16.      Whilst Ms Direen contends that the exacerbation in her pain level was immediate following the appointment with Dr Tabart on 4 June and that she had consulted Dr Hebblewhite either that day or the following day, the medical notes reveal that her consultation was some ten days later.  This is not consistent with her evidence that the pain was immediate.

17.      There is simply a lack of evidence before the Tribunal to persuade it that Ms Direen’s impairment rating for her low back pain should have been assessed at 20 points or more under the Impairment Tables as at 7 June 2005.  Accordingly the Tribunal is unable to conclude that the decision under review was not the correct or preferable decision at the time it was made. 

18. For these reasons Ms Direen fails to meet the first of the qualifying provisions for DSP that she have an impairment rating of 20 points or more pursuant to s94(1)(b) of the Act. The evidence before the decision-maker was in fact to the contrary in the form of Dr Tabart’s report of 3 June 2005.

19.      The Tribunal has no reason to doubt Ms Direen’s evidence of the pain that she now suffers and suffered following the decision under review.  However as pointed out above, the Tribunal’s function is to review the decision of 7 June 2005 and not to make an assessment of Ms Direen’s current level of impairment.

20. It is not necessary for the Tribunal to consider whether Ms Direen has “a continuing inability to work” as she has failed to meet the qualifying provisions of section 94(1)(b) of the Act.

21.      For the above reasons the Tribunal affirms the decision under review.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Cunningham

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  23 August 2006
Date of Decision  2 November 2006
Counsel for the Applicant              Ms G Munday
Solicitor for the Applicant               Hobart Community Legal Service
Counsel for the Respondent          Ms M Baulch
Solicitor for the Respondent          Centrelink Legal Services