Fernandez and Department of Family and Community Services

[2000] AATA 762

DECISION AND REASONS FOR DECISION [2000] AATA 762

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2000/31

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      ENRIQUE ROMERO FERNANDEZ       
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Ms A F Cunningham (Part-time Member)          

Date31 August 2000

PlaceHobart

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

REASONS FOR DECISION

31 August 2000      Ms A F Cunningham (Part-time Member)   

1. The applicant has sought the review of a decision of a Centrelink officer dated 27 May 1999 which rejected his claim for a disability support pension on the basis that his impairment rating was less than that required under the Act. This decision was affirmed by an authorised review officer on 28 June 1999 and subsequently by a decision of the Social Security Appeals Tribunal (SSAT) on 27 January 2000.

2. Both parties to the appeal agreed to the Tribunal determining the application on the basis of the written material before it without the necessity for either party to appear as the applicant currently resides in Italy. This material consisted of the 'T' documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975.   

3. The basis of the applicant's appeal as stated in his letter to this Tribunal of 7 March 2000 was that "the Spanish medical authorities think that I am permanently   totally (100%) incapacitated to work with my hands, also 33% of the incapacity is due to a high degree of cervical rheumatoid arthritis which makes me unable me to move as I would have to most of the time (like bending or walking up the steps).    So if I can't hardly move or  use my hands, rarely will I be able to do any jobs".    It was the applicant's contention that if the Spanish medical authorities had assessed him as being 100% incapacitated how could he fail to achieve a 20% incapacity rate under Australian legislation.

4. The applicant's application for a disability support pension was made on 18 April 1997.   He was assessed by Dr. Winzenberg, a medical adviser for Health Services Australia on 29 April 1999 when an impairment rating of 5% was allocated for the applicant's medical condition of cervical and lumbar arthritis on the basis of a quarter loss of normal range of movement.   Dr. Winzenberg ascribed a zero rating for his medical condition of chronic obstructive airways disease, giving a total impairment rating of 5% for the applicant's medical conditions.

5. In an attachment to the report it was stated that the applicant was assessed as being "fit for work which does not require very heavy lifting or fixed neck posture for prolonged periods. This would include welding without manhandling heavy objects, bench height repair work, stores work &C."  

6. As a result of this impairment rating being less than the required 20% under the relevant legislation, the applicant's application for a disability support pension was rejected on 27 May 1999.

7. The applicant had submitted various medical reports for  the consideration of the SSAT which are listed in their decision.   No further medical evidence has been tendered by the applicant in support of his appeal to this Tribunal.   All of the medical evidence was carefully considered by the SSAT in accordance with the applicable impairment tables.

8. The applicant's application must be assessed in accordance with the qualifying provisions of s.94 of the Social Security Act 1991 ("the Act") which reads as follows:-

   "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% or more under the Impairment Tables; and

   (c)       the person has a continuing inability to work; 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."

9. There appears to be no dispute that the applicant has a number of physical impairments and thus meets the qualifying provisions of subparagraph (a).   The issue for this Tribunal is whether the medical evidence provided satisfies the requirement that the applicant has an impairment of 20% or more under the impairment tables.

10. This Tribunal has considered all of the relevant medical documentation contained in the 'T' documents.    The only impairment rating assessed in respect of the applicant's various medical conditions is that of 5% by a medical adviser under Table 5 for the applicant's cervical spine condition.   All of the other medical evidence was carefully considered by the SSAT.   Whilst that Tribunal found that the applicant's bilateral carpal tunnel syndrome could be regarded as permanent as defined under the impairment tables and could therefore be allocated a rating,  the Tribunal determined that the evidence corresponded to a rating of zero percent under Table 3.

11. The only other permanent medical conditions within the meaning of the impairment tables which requires that the condition be fully documented, diagnosed, investigated, treated and stabilised and likely to persist for more than two years is that of the applicant's chronic obstructive airways disease which had been ascribed a rating of zero percent under Table 2, and the applicant's arthritis of the cervical and lumbar spine previously referred to.  

12. The applicant's claim for a disability support pension can only be determined in accordance with the relevant legislative provisions and an impairment rating must be determined in accordance with the relevant impairment tables which are contained in Schedule 1B of the Act. The assessment of the applicant's medical disabilities was performed by the medical adviser for Health Services Australia in accordance with the applicable tables. Whilst this Tribunal can consider any other medical reports and documentation submitted in support of the application, in this case there is insufficient material to enable the Tribunal to vary any previous determinations. There is no evidence that the determination referred to in the applicant's letter of appeal by the Spanish medical authorities of 100% incapacity to work with his hands and 33% due to cervical rheumatoid arthritis was made in accordance with the Impairment Tables. The provisions of s.94 of the Act require that the impairment rating be determined under the Impairment Tables and therefore the Tribunal cannot take account of these assessments.

13. As the only impairment rating assessed for the applicant's medical condition under the Impairment Tables is 5%, the applicant fails to satisfy the requirement in s.94 that he have an impairment rating of 20% or more.

14. The applicant having failed to meet the requirements of the qualifying legislation, the Tribunal accordingly dismisses the appeal and affirms the decision under review.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

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

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

Date of Decision      31 August 2000