ELIZABETH BOURNE and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2012] AATA 723

[2012] AATA 723  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/2850
Re	ELIZABETH BOURNE
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	22 October 2012
Place	Brisbane

The Tribunal affirms the decision under review.

..................[Sgd].................................................

Mr R G Kenny, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Relevant time-frame for assessment – Physical impairment in neck, hands and lower back – Conditions not treated and stabilised in the relevant period – No impairment rating under the Impairment Tables – Applicant not qualified for disability support pension – Decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 34J

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

Social Security (Administration) Act 1999 (Cth) Sch 2

CASES

Bourne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 937

REASONS FOR DECISION

Mr R G Kenny, Senior Member

22 October 2012

BACKGROUND

1. On 29 November 2010, Elizabeth Bourne lodged a claim for disability support pension which is payable under the terms of the Social Security Act 1991 (Cth) (the Act). A medical report by her treating doctor, Dr Barrie Whelan, was attached to the claim.[1] Therein, he diagnosed the following conditions: “cervical spondylitis”, “osteoarthritis in both hands” and “degenerative L5/S1 intervertebral disc”. Ms Bourne’s claim was rejected by a Centrelink delegate on 11 January 2011. On 28 March 2012, an authorised review officer affirmed that decision as did the Social Security Appeals Tribunal (SSAT) on 6 June 2012.

   [1] The claim form and Dr Whelan’s report were dated 23 November 2010 but were received by Centrelink on 29 November 2010.

2. The matter noted above was Ms Bourne’s second claim for the disability support pension. An earlier claim, lodged on 8 September 2010, had also been rejected by the respondent on 26 October 2010, by the SSAT on 6 July 2011 and, on 23 December 2011, by the Administrative Appeals Tribunal (the Tribunal). A third claim for disability support pension, lodged by Ms Bourne on 14 June 2012, was rejected by a Centrelink delegate on 6 July 2012 but, on 14 August 2012, that decision was set aside by an authorised review officer who determined that Ms Bourne was qualified for the disability support pension with effect from 6 June 2012[2].

   [2] This was the date on which Ms Bourne spoke to Centrelink by telephone about disability support pension before lodging her third claim.

3. The matter is to be determined by the Tribunal in the absence of the parties without a formal hearing.[3]

   [3] In accordance with s 34J of the Administrative Appeals Tribunal Act 1975 (Cth).

   LEGISLATION, ISSUES AND SUBMISSIONS

4. The qualifications for a disability support pension are set out in s 94 of the Act. It is common ground that Ms Bourne has physical impairments, as diagnosed by Dr Whelan, and that she meets the age and residency requirements of that provision. The remaining requirements in s 94 of the Act are:

   ·that she have an impairment rating of 20 points or more as calculated under the Impairment Tables in Schedule 1B of the Act as required by s 94(1)(b) thereof; and, if she does

   ·that she also have a continuing inability to work as required by s 94(1)(c)(i) of the Act.

5. To qualify for a disability support pension, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the initial claim or in the period of 13 weeks from the day of the claim.[4] In Ms Bourne's case, this is from 29 November 2010 until 1 March 2011 (the relevant period). The Introduction to Schedule 1B of the Act provides guidance in the application of the various Tables which it contains. Part of that introduction requires that a rating is only to be assigned to a condition which is considered to be permanent in that it has been fully diagnosed, treated and stabilised and is likely to persist for more than two years.

   [4] See Schedule 2, clauses 3 and 4 of the Social Security (Administration) Act 1999 (Cth).

6. In written submissions, Ms Bourne acknowledged that she was now in receipt of the disability support pension as a result of Centrelink’s decision in relation to her third claim. She submitted that it was not correct for the disability support pension to have been paid to her only from 6 June 2012 as it should have been paid from the date of the initial claim in 2010. She was highly critical of several aspects of the processes involved in determining her disability support pension claims. These extended to the role played by job capacity assessors, the disregard of medical evidence and the conclusions reached in relation to her impairment and work capacity by the job capacity assessors, Centrelink delegates and the Tribunal in its December 2011 decision. Ms Bourne also cited several Tribunal decisions concerning the application of s 94 of the Act to the circumstances of other disability support pension applicants.

7. For the respondent, it was submitted that Ms Bourne did not have a combined impairment rating of at least 20 points during the relevant period.

8. In their decisions in this matter, the authorised review officer and the SSAT accepted that Ms Bourne suffered from the conditions diagnosed by Dr Whelan (i.e. cervical spondylitis, osteoarthritis in both hands and degenerative L5/S1 intervertebral disc). They also made reference to osteoarthritis of Ms Bourne’s knees and ankles which was noted in a clinical note on 25 January 2011. The authorised review officer determined that no impairment rating could be allocated because Ms Bourne’s conditions were not fully treated or stabilised during the relevant period. As set out below, I have also determined that Ms Bourne did not satisfy the second of the requirements in s 94 of the Act during the relevant period and that, accordingly, the claim for disability support pension which I am considering is not successful.

   CONSIDERATION

9. I have noted Ms Bourne's submission that the Tribunal should backdate her disability support pension to her first claim in 2010 rather than 6 June 2012 as was determined as a result of her third claim. The decision under review at this hearing is that in relation to her second claim for her disability support pension which was rejected and, accordingly, the Tribunal does not have jurisdiction to vary the decision relating to her third claim. Of course, in the event that I were to set aside the decision under review, the effect would be that the disability support pension would be payable from a date earlier than 6 June 2012. However, in the event that I affirmed the decision under review, backdating of the disability support pension would only arise if Ms Bourne successfully challenged the Centrelink decision which determined the date of effect of her favourable disability support pension decision. 

10. A medical certificate completed by Dr Whelan on 25 January 2011 referred to Ms Bourne’s neck and hand condition but not her lower limbs even though a clinical note of the same date described osteoarthritis in the knees and ankles. Medical certificates completed by Dr Whelan on 19 April 2011, 18 July 2011 and 17 October 2011 refer to Ms Bourne’s neck, hand and lower back conditions and not her lower limbs. I am satisfied that there was no formal diagnosis of a lower limb condition in Ms Bourne during the relevant period.

11. In his treating doctor report, lodged on 8 September 2010, Dr Whelan referred to osteoarthritis affecting Ms Bourne’s hands and neck and described her treatment as comprising “Panadol” and future planned treatment with “probable anti-inflammatory medication”. He described as “uncertain” the effect of this on Ms Bourne over the following two years. In reliance on that report, a job capacity assessment (JCA) report was completed on 20 September 2010 by Mary Curnow, psychologist, with assistance from Wayne Moore, physiologist and rehabilitation counsellor. Ms Curnow noted that treatment with anti-inflammatory medication had not yet commenced and her opinion was that Ms Bourne’s conditions were not fully treated and stabilised. Ms Curnow was therefore unable to allocate an impairment rating under the Tables for these conditions. She also described the lower limb deficiencies which were not identified in Dr Whelan’s report and concluded that these were of minimal impact on Ms Bourne who was able to walk distances of more than 500 metres at varying speeds over a variety of different terrains. Ms Curnow allocated a nil rating for Ms Bourne’s lower limb problems.

12. In the treating doctor’s report lodged with Ms Bourne’s present claim on 29 November 2010, Dr Whelan advised that analgesia was required into the future for Ms Bourne’s neck condition and described her hand conditions as having worsened in the previous six months. He referred to treatment for those conditions and her back as comprising Panadol Osteo and indicated that he expected each of the conditions to deteriorate. That opinion was also expressed by Dr Whelan in a medical certificate completed on 2 November 2010 in relation to Ms Bourne’s hands and neck conditions. In processing Ms Bourne’s claim, Centrelink obtained a JCA report by physiotherapist Darren White, dated 13 December 2010. He referred to the reports of Dr Whelan in making his assessment which he completed under the diagnosis of “chronic pain”. In the Tribunal decision of 23 December 2011, Mr White is recorded as stating that this was done in error by him and the Tribunal, in that case, adopted the diagnoses provided by Dr Whelan which were specific to the neck, hands and lower back.[5] I accept the Tribunal’s analysis in that regard, on the basis that issues of diagnosis are for Ms Bourne’s medical practitioner rather than the JCA reporter. In his report, Mr White concluded that Ms Bourne had no conditions which were “permanent, fully diagnosed, treated and stabilised”. On that basis, Mr White’s opinion was that no impairment rating could be allocated.

    [5] Bourne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 937 at [20].

13. A further JCA report was completed on 29 June 2012 by occupational therapist, Anna‑Maree. Ms Anna-Maree concluded that Ms Bourne’s spinal disorders and osteoarthritis of hands and knees were not able to be allocated an impairment rating under the Schedule. Her opinion was, based on Dr Whelan’s reports, that they had not been fully stabilised and treated. She referred to physiotherapy and pain management interventions as recommended by Ms Bourne’s treating health professionals. 

14. A claim notification was completed by Ms Bourne on 27 July 2011 and an attached statement from Dr Whelan, dated 6 August 2011, referred to her cervical spine, lower back and hands. He noted that these had become “increasingly painful over the past 12 months”. Dr Whelan described these conditions as causing reduced movement and weakness in hands and legs. He identified the treatment as comprising Mobic, Panadol Osteo, heat massage and mobilization exercises. He expressed the opinion that “pain management consultation may be helpful”.

15. I have noted and taken account of the criticism by Ms Bourne in relation to aspects of her successive claims for disability support pension. The Tribunal cases Ms Bourne identified provide little, if any, guidance on the assessment of her diagnosed conditions because each applicant’s circumstances are unique and confined to the evidence adduced in the respective claims. What is relevant in this matter is the medical evidence which pertains directly to her. In that regard, I have accepted the diagnoses entered by Dr Whelan rather than those in the JCA report.

16. The JCA reports of Mr White and Ms Curnow relate specifically to Ms Bourne and were prepared in the relevant period. The JCA report of Ms Anna-Maree was completed some 15 months after the relevant period and, yet, it came to the same conclusion in relation to impairment as the earlier JCA reports. In the event that the analysis of Ms Bourne’s condition given in the JCA reports were adopted, Ms Bourne would not meet the terms of s 94 of the Act because there would not be an impairment rating that satisfies the 20 point threshold. I am satisfied that the opinions in those reports correctly assess the rateability of Ms Bourne’s spinal and osteoarthritic conditions. In so finding, I have relied on the assessment given by Dr Whelan rather than the specific opinions given by Mr White and Ms Curnow. In Dr Whelan’s first report, he described then currently treating her with Panadol and future planned treatment with probable anti-inflammatory medication. He described as “uncertain” the effect of this condition on Ms Bourne over the following two years. In his second report he referred to treatment for those conditions and her back as comprising Panadol Osteo and indicated that he expected each of the conditions to deteriorate. The unsettled nature of Ms Bourne’s conditions during the relevant period is confirmed by Dr Whelan’s reference to them in August 2011, some five months after the relevant period had ended. He noted that the conditions had become “increasingly painful over the past 12 months” and his opinion was that “pain management consultation may be helpful”. On that medical evidence, I am satisfied that Ms Bourne’s physical impairments were not fully treated and stabilised during the relevant period and that no impairment rating may be allocated to them. This means that Ms Bourne did not satisfy the impairment requirement in s 94 of the Act and that the disability support pension is not payable to her on the basis of her claim lodged on 29 November 2010.

    DECISION

17. The Tribunal affirms the decision under review.

18.       I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.

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Associate

Dated 22 October 2012

Date of hearing on the papers 15 October 2012