Gillett and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 187

Administrative Appeals Tribunal

DECISION AND WRITTEN REASONS FOR ORAL DECISION [2008] AATA 187

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3708

GENERAL ADMINISTRATIVE DIVISION		)
Re		TERRENCE GILLETT

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal   Senior Member, Mrs Josephine Kelly

Date of decision                19 February 2008

Date of written reasons    5 March 2008

Place  Newcastle

Decision The reviewable decision is affirmed. 

....................[sgd]..........................

Senior Member, Mrs Josephine Kelly

WRITTEN REASONS FOR ORAL DECISION

1. At the conclusion of the hearing of this matter in Newcastle, the terms of the decision made and the reasons for that decision were stated orally. The Respondent requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons.  The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and is furnished to the Applicant and to the Respondent. 

CATCHWORDS

SOCIAL SECURITY – disability support pension – physical impairment – diabetes – hypertension – bilateral shoulder condition - whether impairment rating of 20 points or more – condition not fully treated and stabilised within 13 week period after claim  - reviewable decision affirmed

Social Security Act 1991 s 94, Schedule 1B

WRITTEN REASONS FOR ORAL DECISION

19 February 2008 Senior Member, Mrs Josephine Kelly     

1.      I’ll just give some short reasons, Mr Gillett, as I’m obliged at law to give reasons for my decision.

2.      I can only say in this case again that it is most regrettable that it seems to be that Centrelink’s people tell welfare recipients to do X, Y and Z and then rather than looking at the circumstances and saying, well, look, you’re actually better off – well, I don’t know, subject to what Ms Galbraith says, perhaps it’s been suggested to you that you might lodge another one but it seems that you need some assistance given especially that you’ve got some challenges in terms of reading and writing to know exactly what it is that you need the doctor to be directing his report towards.

3. I’m sorry to sound very legalistic but I’m afraid that’s what I have to be because I’m having to look at the law and your factual situation and make a determination; but if I can just go to the legislation. Section 94 of the Social Security Act 1991 (“the Act”) provides as follows:

A person is qualified for a Disability Support Pension if:

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

4.      Just stopping there, Mr Gillett, quite clearly you have a number of impairments.  You have got your diabetes, you have got your hypertension and you have got your bilateral shoulder condition.  So you do satisfy that.  The next matter is that:

(b)      the person’s impairment is of 20 points or more under the Impairment        Tables.

5.      Now, when you go to those Impairment Tables.

6.      MR GILLETT:   “They told me it was 10 per shoulder.  That’s why they knocked me back before.  They said, “You need 20,” but it’s only been down here as in one shoulder.  That’s what they said, if you show it’s in the other shoulder, that’s 20.  That’s all I needed.”

7.      MS KELLY:   Well, that might be the case but it’s not as clear-cut as that either, but I’m not a person who makes that assessment, but certainly if you have got both shoulders you are clearly going to get more points but the difficulty you have – and we are talking about this window of basically 13 weeks from 28 September 2006.

8. So basically it is from 28 September 2006 to the end of December, beginning of January, at that end of that year, when you had to satisfy these criteria. So when you come to the impairment, is it 20 points or more under the Impairment Tables? Schedule 1B of the Act says:

A rating is only to be assigned assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.

9.      So that is the difficulty in this case, because clearly at the stage you were seeing Dr Choudhary in that 13 week period and he was only talking about one shoulder, not both.Then you go and you have seen Dr Incoll, I think, in January 2006.  I suspect on the evidence it seems to be either late December 2006 or early January 2007.  Then he said you have got a problem in your supraspinatus, in the muscles around the backs of your shoulders, and he is giving you injections into your shoulders.  Then that’s outside the period.  Then that hasn’t worked, and you have tried to do your physiotherapy and that hasn’t helped.  Then you have changed doctors and got to Dr Phadke and then Dr Potter in later 2007, and Dr Potter has given an injection in the joint before and after Christmas and one has improved, one hasn’t, and you have got to go back to him.  His diagnosis is now frozen shoulder.

10.     So in terms of the 13 week period I would have to say that your shoulder condition had not been fully documented, had not been diagnosed, and had not been investigated, treated and stabilised.  I mean, I still don’t think it has been stabilised, but in terms of a Disability Support Pension you require a permanent impairment for two years.  So basically what you need to get your doctor to do is address those criteria. 

11.     Unfortunately the way people who are applying for these benefits are advised, they don’t seem to appreciate what it is that they actually have to satisfy.  It’s not  just about getting the 20 points, but it has to be relevantly an impairment that is permanent in terms of the way that I’ve talked about - the treatment diagnosis and investigation.

12.     So I’m afraid that, as of the 13 week period, you didn’t satisfy the legislation, but I think with perhaps some assistance from Ms Galbraith you might be able to go back to Dr Potter and get a report that actually satisfies the criteria that are set out.  I can’t guarantee that.  All I can suggest to you is that you do try again for some further assistance. 

13.     So for those reasons I’m afraid I have to affirm the Social Security Appeals Tribunal’s decision and I really can’t say anything more. 

14.     I’m sorry that I haven’t been able to help you today in terms of getting this sorted out but perhaps with some assistance through Centrelink you might get some further assistance that gives you an answer that’s preferable to filling out more forms and getting more medical reports.

15.     So I think with that I wish you well and I’ll adjourn.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly.

Signed: Steven Mulipola
Associate

Date of hearing:  19 February 2008

Date of oral decision:  19 February 2008

Date of written reasons:                 5 March 2008

Representative for Applicant:       Self-represented

Solicitor for Respondent:               Centrelink Legal Services