Goss and Secretary, Department of Employment and Workplace Relations

[2006] AATA 374

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 374

ADMINISTRATIVE APPEALS TRIBUNAL          № V2005/818

GENERAL ADMINISTRATIVE  DIVISION

Re:            JUDY KAY GOSS

Applicant

And:       SECRETARY,

DEPARTMENT OF EMPLOYMENT

AND WORKPLACE RELATIONS

DECISION

Tribunal:       Dr P.D. Fricker, Member

Date:28 April 2006

Place:Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) Patricia D. Fricker

Member

SOCIAL SECURITY - disability support pension; whether condition assessed as meeting 20 point impairment threshold at date of claim or within 13 weeks

Social Security Act 1991 s 94(1), Schedule 1B

Social Security (Administration) Act 1999 Schedule 2 s 4

REASONS FOR DECISION

28 April 2006  Dr P.D. Fricker, Member

1.      This is an application by Judy Kay Goss (the applicant) for review of a decision made by the Social Security Appeals Tribunal (SSAT) on 18 August 2005.The SSAT affirmed a decision of an authorised review officer of Centrelink dated 6 June 2005 not to pay the applicant disability support pension (DSP).

2.      At the hearing on 30 March 2006 Ms Goss represented herself.  Mr M. Hester, a Centrelink advocate, appeared on behalf of the Secretary to the Department of Employment and Workplace Relations (the respondent).

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T14) together with a document tendered by the applicant (Exhibit A1) and a document tendered by the respondent (Exhibit R1).

BACKGROUND

4.      Ms Goss is 61 years old.  For 25 years she worked full time as a data entry clerk. In 1995 she was made redundant.  Thereafter she was unsuccessful in obtaining full‑time employment, working in a number of casual jobs instead.  In 2001 she was diagnosed with cancer of the right breast.  She underwent a mastectomy with dissection of the lymph nodes in her right axilla.  Following the surgery she received a course of chemotherapy, followed by radiotherapy.  She has not looked for work since 2001.  She continued to submit medical certificates until invited by Centrelink to test her eligibility for DSP.  Ms Goss lodged a claim for DSP on 21 December 2004.  Her claim was rejected by a delegate to the respondent on 7 February 2005 because her impairment was assessed at less than 20 points under the Tables For The Assessment Of Work-Related Impairment For Disability Support Pension (the Tables) in Schedule 1B of the Social Security Act 1991 (the Act).  Ms Goss lodged an application for review of the SSAT decision with the Tribunal on 14 September 2005.

5.      The issue before the Tribunal is whether Ms Goss was qualified to receive DSP at the time she lodged her claim or within 13 weeks of the date of claim.

EVIDENCE

6.      Ms Goss told the Tribunal that the treatment for her breast cancer had been completed about a year and a half after the initial surgery.  She described ongoing impairment relating to her right arm.  She said being able to move her arm was not the problem and demonstrated a near full range of shoulder movement to illustrate her point. She said if she picks up something really heavy she may experience pain under her right arm.  She estimated a carrying limit of approximately 2 large bottles or 4 kg on her right side.  She said she would not carry a full basket of wet washing.  She said that she would find it difficult to lift a ream of paper down from a high shelf.  She was unsure how she would manage such a task in the workplace.  At home she would get something to stand on to facilitate reaching.  She estimated that after typing continuously for 30 minutes she would start to feel discomfort under her right arm.  If this happened at home she could go and watch television for a couple of hours.  She could not say how long the discomfort persisted.  She avoids prolonged periods of vacuuming.  Pushing the vacuum cleaner back and forth forcefully may result in some discomfort.  She feels tired in the morning and does not get up too early.

7.      Ms Goss said she expressed to Centrelink her concern about the qualifications of the assessor who carried out the Work Capacity Assessment that she attended.  She said she had been told by Centrelink that the assessor was very well qualified.  She said she assumed that the assessor was a physiotherapist and would be familiar with the after effects of a mastectomy.  The observations relating to the impairment of her right arm in the assessor's report (question 18 of the report (T6)) were read to her and she agreed that the assessor had correctly recorded what her impairments were.

8.      In answer to an enquiry from Mr Hester, Ms Goss said that she did not have pain in her legs or a problem with her toenails which she had referred to in the past.  With respect to depression, she said that immediately after her cancer treatment was completed in 2003 she had felt depressed.  The fact that she was unable to do her housework got her down.  She said she didn't feel like doing anything and was just sitting watching TV.  She had mentioned this to Dr Bennetts at the time and he reassured her that she would get over it. Ms Goss said that now she has nervous tension rather than depression.  She saw another doctor about this earlier in the week and was prescribed some medication, which she started the day before the hearing.  She has made arrangements to attend a counselling session through the Frankston Hospital in the future.

9.      Ms Goss said that she had a number of part-time jobs before her illness was diagnosed.  One was as a receptionist and involved answering the telephone and making appointments.  She did not know if she could work because she did not know if she could do what was required.  She confirmed that she attends the University of the Third Age.  She attends two one and a half hour sessions a week and travels there by bus. 

CONSIDERATION OF THE ISSUES

10. Section 94 of the Social Security Act 1991 (the Act) sets out the qualifications for disability support pension:

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 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

(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.

11. Section 94(1)(a) of the Act provides that in order to qualify for DSP a person must have a physical, intellectual or psychiatric impairment.

12. There is no dispute that Ms Goss has an impairment of her right arm following treatment for breast cancer. She therefore satisfies s 94(1)(a).

13. Section 94(1)(b) requires that a person’s impairment is of 20 points under the Table. 

14.     Mr Hester submitted that the respondent accepted Dr Bennetts' Treating doctor's report (TDR) dated 14 December 2004 and his opinion dated 2 November 2005. The respondent accepted that Ms Goss was unable to fully do her housework.  The respondent also accepted that Ms Goss has moderate interference with the function of her dominant right hand and that this was consistent with an impairment rating of 10 points under Table 3 of the Tables.  Mr Hester said the respondent did not accept that Ms Goss had any other conditions that had been fully documented, treated and stabilised.

15.     Dr Bennetts' TDR (T5) described pain, swelling and limited arm movement.  The report indicated that there were no other conditions that had an impact on her ability to function.  Dr Bennetts' report dated 2 November 2005 referred to, much discomfort, with pain, tiredness and weakness caused by her right arm.  Ms Goss has described her symptoms and limitations consistently, first to the rehabilitation consultant, Katrina Begic, who recorded them at page 11 of her report dated 12 January 2005 (T6, p37), then to the SSAT in August 2005 and finally at this hearing.  The SSAT found, and the respondent has accepted, that Ms Goss has a moderate interference with the function of her dominant right upper limb.  This level of impairment equates to 10 impairment points under the Tables.

16. In order to obtain a higher rating for her impairment under Table 3, Ms Goss would need to show major loss of strength, mobility, co-ordination, dexterity and/or sensation of her right upper limb causing significant interference of hand function or manual handling. Considering all the evidence this is clearly not the case. There is no evidence to support any other diagnosed condition. Accordingly, I find that Ms Goss does not have the 20 impairment points necessary to satisfy s 94(1)(b) of the Act. She is not qualified to receive DSP as she does not satisfy s 94(1)(b) of the Act. There is therefore no requirement to consider whether or not she satisfies the additional qualification criteria.

DECISION

17.     The Tribunal affirms the decision under review.

I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the decision of:

Dr P.D. Fricker, Member

(sgd)     Catherine Thomas

Clerk

Date of hearing:  30 March 2006

Date of decision:  28 April 2006
Advocate for the applicant:          Self‑represented
Advocate for the respondent:       Mr Mark Hester, Centrelink