Ferrabetta and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 685

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 685

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1334

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANTONIO FERRABETTA

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date6 August 2008

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

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

J G SHORT
  (Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Disability Support Pension – impairment not permanent at time of original decision – could not be assessed according to the Impairment Tables – decision affirmed

Social Security Act 1991 s 94(1)

Re Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938

REASONS FOR DECISION

6 August 2008   Mr J G Short (Member)      

introduction

1.      Mr Antonio Ferrabetta appealed a decision made by a Centrelink officer on 4 November 2006 to reject his claim for Disability Support Pension (DSP).  The decision was affirmed by an Authorised Review Officer on 3 January 2007 and by the Social Security Appeals Tribunal (the SSAT) on 7 March 2007.

2.      Mr Ferrabetta lodged a fresh claim on 24 September 2007 and has been in receipt of DSP since that date.  During the period from the date of the claim, the subject of this appeal, that is from 29 August 2006 until 24 September 2007, Mr Ferrabetta was in receipt of one of the unemployment benefits.  DSP however is paid at a higher rate and if Mr Ferrabetta had been successful in this appeal, then he would have been entitled to receive the difference between the quantum of his unemployment benefit and that of DSP.  This is likely to approximate $2,500.

legislation

3. Section 94(1) of the Social Security Act 1991 (the Act) relevantly provides:

“(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

…”

4.      The introduction to the Impairment Tables explains that they are “designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work”.  Further passages from the introduction to the Impairment Tables provide as follows:

“…

4.  … For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.  …

5.  The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  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 2 years.

…”

5. The respondent (the Department) conceded that if the Tribunal was satisfied that Mr Ferrabetta’s conditions of cervical spondylosis and a chronic right shoulder injury had been diagnosed, treated and stabilised and considered permanent, at any time within 13 weeks of the lodgement of his claim, that is, prior to 13 November 2006, then the Department would accept that Mr Ferrabetta satisfied s 94(1)(a) of the Act, that is he had a physical, intellectual or psychiatric impairment; and s 94(1)(b) of the Act, that is that he had at least 20 impairment points according to the Impairment Tables set out in Schedule 1B of the Act. The Department said that in these circumstances it would also consider that Mr Ferrabetta had a continuing inability to work.

issue

6.      The issue therefore for me to consider is whether Mr Ferrabetta’s conditions of cervical spondylosis and right shoulder injury were able to be ascribed impairment points at any time prior to 12 November 2006.

mr ferrabetta

7.      Mr Ferrabetta impressed the Tribunal by the frank and forthright way in which he provided his evidence.  He adopted as accurate the information recorded at paragraph 6 of the SSAT’s reasons for decision dated 7 March 2007.  This paragraph reads as follows:

“ …

·Mr Ferrabetta has had neck and right arm and shoulder problems for a long time.  He had a motorbike accident in 1984 where he landed heavily on this shoulder and it has not been the same since.

·He learnt that he also had neck problems when he got increasing pain in his shoulders about five years ago.  X-rays demonstrated problems in his neck.  He does not know how he got the neck problems.

·In the past his pains were less intense but about six months ago they became more intense, as if his shoulder was on fire, and his general practitioner referred him to a specialist, Dr Munyard.

·He has had cortisone injections in his shoulder which have helped for a few weeks only.  He feels that he is too old for surgery.  His doctor has told him to rest his arm, but he lives alone and has to do the household chores.  He uses analgesics which help a little, particularly with sleep.  He has had a course of physiotherapy about 5-6 years ago, fortnightly over a couple of months, but his shoulder only got worse.

·Mr Ferrabetta describes his neck problem as a numbness that starts in the back of his neck and radiates up to his skull and down to his shoulder.  Occasionally it will travel down around his elbow to his right hand and he will get tingling in his fingers.  This is particularly apparent if he looks up or down for more that [sic] a few minutes.  He can only read for about 5 minutes because of this.

·Mr Ferrabetta can have trouble holding objects and opening jars is particularly difficult.  He has some difficulty writing.  He cannot put his hands behind his back to do things such as tucking in his pants.  Pulling and pushing objects is difficult, and he can only lift them for about 5 minutes.  His right arm strength is less than his left.  His upper arm is also sore to the touch.

·Mr Ferrabetta manages to do most of his household chores unassisted.  Sweeping gives him some trouble.  He does not have need to vacuum and he has given up gardening.  He can hang out the washing if he does not have to hold it up for too long.”

8.      Mr Ferrabetta said that he did not blame Centrelink for its decision to reject his original claim for DSP.  He simply indicated a view that it was unfortunate that his original claim had been unsuccessful, particularly in the light of the success of the subsequent application.

9.      Other evidence before the Tribunal included medical reports of Mr Ferrabetta’s treating specialist, Mr Adrian Munyard.  Three of those reports were signed by Mr Munyard on 28 August 2006, 18 September 2006 and 8 December 2006.  A fourth report of Mr Munyard is dated 14 June 2007.  This last mentioned report suggests total impairment ratings for Mr Ferrabetta’s diagnosed conditions of 20 points.

10.     In the decision of Re Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938 at paragraphs 21 and 22, Deputy President Hack SC provided the following explanation of the term “temporary” as used in the relevant legislation. The Deputy President said:

“21. It is, I think, important to realize that ‘temporary’ is used by Centrelink in this context in a special sense. It is a shorthand way of describing a condition which is not, at that time, capable of being regarded as being permanent. That judgment is to be made on the basis of the material capable of throwing light on the issue of whether the conditions were, at the relevant time, fully documented and diagnosed conditions which had been investigated, treated and stabilised

22.  It is not to the point that they may have answered that description at a later time. Nor is it to the point, for present purposes, that the point at which the conditions could have been investigated, treated and stabilised at an earlier time had Centrelink acted in a different manner. The Parliament has determined that disability support pensions are to be paid when certain qualifying criteria are satisfied. The evident legislative intent is that disability support pensions be paid only when the disabling condition has reached the stage where it can be regarded as being permanent and having a permanent impact upon normal function as it relates to work performance.”

11.     Consideration of Mr Munyard’s reports indicate that it was not until 8 December 2006 that Mr Munyard reached the view that Mr Ferrabetta’s physical conditions were likely to persist for more than 24 months and consequently could be considered to be permanent. 

12.     Mr Munyard’s report of 28 August 2006 refers to one condition “painful right shoulder”.  It indicates that the condition was to be treated by injection and likely to last for less than 3 months.

13.     Mr Munyard’s report dated 18 September 2006 lists one condition, on this occasion, cervical spondylosis.  It suggested that it was to be treated with non-steroidal inflammatory drugs and was likely to last between 3 and 24 months.

14.     The report dated 8 December 2006 listed both conditions and indicated a view that the effects of those conditions were likely to last for more than 24 months.

15.     As mentioned, it is the state of Mr Ferrabetta’s conditions and the treatment for those conditions prior to 12 November 2006 which is determinative of the issue before me.  I have considered all of the evidence, particularly the reports of Mr Ferrabetta’s treating specialist.  Those reports paint a picture of a course of treatment being provided which eventually proved incapable of providing sufficient relief to allow Mr Ferrabetta to return to work.  It was not until sometime after 13 weeks had expired from the date of claim that Mr Munyard was able to express the view that the effects of Mr Ferrabetta’s claimed conditions were likely to last more than 24 months.

16.     As mentioned, it is only when the evidence points to a condition being permanent and also having been fully investigated, treated and stabilised, that conditions can be ascribed impairment points.

17.     Mr Ferrabetta said that he understood that Mr Munyard had been attempting to investigate and treat his conditions and that it was not until the report signed by Mr Munyard on 8 December 2006 that Mr Munyard was able to consider those conditions permanent.

18.     In the light of the above mentioned circumstances, I do not consider that Mr Ferrabetta’s conditions were rateable at any time prior to the expiry of 13 weeks after the date of his claim and consequently I consider that Mr Ferrabetta’s initial application for DSP to have been appropriately refused. 

decision

19.     The decision under review is affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

Signed:         .............J Coulthard.......................................
  Associate

Date of Hearing  10 July 2008
Date of Decision  6 August 2008
Advocate for the Applicant       In person

Advocate for the Respondent   Ms M Boylan

Centrelink Legal Services Branch