Dunn and Secretary, Department of Employment of Employment and Workplace Relations

[2005] AATA 896

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 896

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2005/730

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LORRAINE DUNN

Applicant

And SECRETRARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date12 September 2005

PlaceMelbourne

Decision For the reasons given orally on 12 September 2005 and by these written reasons, the application to extend time to lodge these proceedings is denied.

(Sgd)  John Handley

Senior Member

PRACTICE – application to extend time – applicant sought review of decision of SSAT – DSP refused – no evidence of 20 impairment points or relevant injury being permanent – application without merit – extension of time refused

Administrative Appeals Tribunal Act 1975 (Cth) s 29 (7)

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1998 (Cth) Sch 2

Hunter Valley Developments Pty Ltd and Ors v The Minister for Home Affairs and Environment (1985) 58 ALR 305

REASONS FOR DECISION

12 September 2005 Mr John Handley, Senior Member           

1.      Applications to review decisions of the Social Security Appeals Tribunal (SSAT), must be lodged in this Tribunal within 28 days of the SSAT’s decision.  In the present application, the SSAT made a decision on 11 May 2005 and “despatched” it on 18 May 2005.  Mrs Dunn said at the hearing of this application on 12 September 2005, that the decision was received on 23 May 2005.  The application to this Tribunal was lodged on 15 August 2005.  It was therefore lodged beyond the time permitted by the Administrative Appeals Tribunal Act 1975 (the AAT Act) and the Social Security Act 1991 (the Social Security Act). Provisions exist under the AAT Act (s 29 (7)) to extend the time to make an application. On 12 September 2005 Mrs Dunn made such an application.

2.      On that occasion Mrs Dunn appeared unrepresented.  Mr Meehan appeared on behalf of Centrelink.

3.      Mrs Dunn sought an extension of time in order to review the decision made by the SSAT which affirmed a decision previously made by Centrelink to reject a claim she had made for disability support pension (DSP).  Mr Meehan on behalf of Centrelink opposed the application, for reasons expressed in a letter of 19 August 2005 which Mrs Dunn said she had received.

4.      A decision by the Tribunal to extend the time to make an application is discretionary.  The principles to be followed are found within the Federal Court decision of Hunter Valley Developments Pty Ltd and Ors v The Minister for Home Affairs and Environment (1985) 58 ALR 305 and I adopt these principles for the purposes of this application. They may be briefly summarised as:

(a)The party making the application to extend time must demonstrate an acceptable explanation for delay and that it would be fair and equitable in the circumstances to extend the time.

(b)Whether any action has been taken by that party to make the decision‑maker aware that a decision is being contested.

(c)Whether a respondent to such an application will suffer prejudice in the event that time is extended.

(d)Whether accepted practices and other persons will be unsettled by the extending of time.

(e)Whether the application – if time is extended – has merit.

(f)Consideration of fairness as between other applicants in similar positions.

5.      For reasons which I will discuss later, the only issue from the above which I regard as being significant in the circumstances of this application, is the factor of whether the proposed application – if time is extended – has merit.

6.      So far as may be gleaned from the reasons of decision from the SSAT, Mrs Dunn suffers from back, neck and leg pain together with a thyroid illness.  The SSAT had access to extensive medical documentation which was summarised in its reasons for decision.  Significantly, it adopted a report completed by a doctor with Health Services Australia who found 10 impairment points referrable to the lumbar back injury.  There was apparently no medical information ascribing an impairment with respect to the neck injury, nor was there any impairment ascribed with respect to the thyroid illness.  The SSAT found that Mrs Dunn did have a significant leg injury but the treatment of it had not concluded, that it could not be regarded as stabilised and it could not therefore be regarded as a permanent injury.  It did not ascribe any impairment points with respect to that injury.

7. Entitlement to DSP is to be found within the provisions of s 94 of the Social Security Act. The predominant qualifying provisions concern having an impairment of 20 points under the Impairment Tables and having a continuing inability to work. Both of those provisions must be satisfied. The SSAT was satisfied that only 10 impairment points could be found. It did not make any findings with respect to a continuing inability to work. In the circumstances it was not required to do so. Accordingly it decided to affirm the decision previously made by a Centrelink officer to reject the claim for DSP.

8.      A finding that an injury being permanent is critical having regard to the introductory paragraphs to the Impairment Tables found at Schedule 1B of the Act.  The introductory paragraphs dictate that the claimed condition must be permanent and will be “permanent” only if an illness or injury has been diagnosed, treated and stabilised and then, whether it is more likely that it would persist for the foreseeable future.  Additionally – or in the alternative – the introductory paragraphs also provide that an illness or injury may be regarded as stabilised if it is found that it would be unlikely that there would be any significant functional improvement with or without reasonable treatment within the next two years.

9.      The SSAT heard evidence from Mrs Dunn that at the date of making her claim – 7 October 2004 – she suffered significant right leg pain.  Additionally, evidence was heard by the SSAT that on 1 February 2005 she underwent arthroscopic surgery to repair cartilage damage in her right knee.

10.     Those dates in my view are critical because at the date of claim it could not be found that the injury had been treated and stabilised.  It could not then be regarded as being permanent.

11.     Additionally Schedule 2 of the Social Security (Administration) Act 1998 (the Administration Act) provides that if a person does not qualify for a benefit or pension at the date of claim but does qualify within 13 weeks of that date, the entitlement commences at the date of claim.  Accordingly if the right knee injury had been treated and stabilised within 13 weeks of 7 October 2004 the condition may have been regarded as permanent and impairment points may have been ascribed.  However, the date 1 February 2005 – being the date of the knee surgery – was beyond 13 weeks of 7 October 2004.  The surgery constitutes continuing treatment, which in turn points to the injury not having stabilised.  Accordingly the right leg injury could not be regarded as being permanent either at the date of claim or within 13 weeks of that date.

12.     Mrs Dunn said at the hearing on 12 September 2005 that the arthroscopic surgery was unsuccessful to the extent that she continued to have severe pain, locking and instability.  Indeed it would appear on her evidence that the knee injury is now worse than it was prior to surgery, as the instability she experiences has recently resulted in a stress fracture to her right tibia.

13.     In these circumstances I was of the view, (which I expressed at the hearing), that the application to extend time could not in the circumstances be regarded as having “merit” because upon the information contained within the reasons for decision of the SSAT, Mrs Dunn would be unable to establish at the date of claim, or within 13 weeks of that date, that she should be assessed as having 20 impairment points for the purposes of s 94 of the Social Security Act. In my view, her right leg injury was incapable of attracting any impairment points at the date of claim or within 13 weeks of it. Within this period, treatment was being undertaken. The quantum of impairment points, if any, would have been impossible to determine. Additionally it could not be found that the injury should be regarded as stabilised because there would be no significant functional improvement within two years (refer Impairment Tables). Having regard to the findings of the SSAT and upon the medical data available to it, the neck injury and thyroid injury did not attract any impairment points. The back injury was assessed at 10 impairment points. There was no other evidence which suggested this assessment was inappropriate. Mrs Dunn needs to have impairment points found with respect to the right knee in order to get to the first threshold provision of 20 impairment points. On the evidence available at the date of claim and within 13 weeks of that date, no such evidence was available. She could not qualify in those circumstances. Any decision therefore to extend time to permit these proceedings to proceed would be without merit because on the evidence presently available, the application would be bound to fail.

14.     There was considerable discussion with Mrs Dunn – both by me and by Mr Meehan who appeared on behalf of Centrelink ‑ that it may be in her interest to consider making a fresh application for DSP.  Whilst no finding is presently being made that the right leg injury is now “permanent”, it is more likely – having regard to the passage of time, the treatment and the ongoing symptoms ‑ that a doctor may more readily make a finding as to whether the condition is permanent than was capable of being made at 7 October 2004.

15.     It was for the above reasons that I decided that the application to extend time should be denied.

16.     I should also add by way of conclusion that it was learnt at the hearing on 12 September 2005 that the delay in the lodging of an application was by reason of Mrs Dunn being in a state of disbelief that the appeal to the SSAT had been refused, and subsequent depression.  She also said that she had been unable to cope by reason of ongoing pain.  I accept without qualification these explanations and also note that the delay in the lodging of these proceedings was – compared to some other applications – relatively short.  Nonetheless, it is my view that the application is without merit and for that reason, the application to extend time must be refused.  I would in the circumstances recommend that Mrs Dunn give consideration to making a fresh application to Centrelink for DSP.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed: Grace A Carney

Personal Assistant

Date of Hearing  12 September 2005
Date of Decision  12 September 2005
Solicitor for the Applicant          Self Represented
Departmental Advocate            Mr S Meehan