Huskinson and Secretary, Department of Family and Community Services

[2005] AATA 570

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 570

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2004/117

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DAVID OLIVER HUSKINSON

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member Mary Imlach

Date10 June 2005  

PlaceHobart

Decision The Tribunal affirms the decision under review.

[Sgd Mary Imlach)

Senior Member

SOCIAL SECURITY – disability support pension – whether applicant had physical, intellectual or psychiatric impairment – whether applicant had impairment rating of 20 points or more – relevant time frame – whether applicant had a continuing inability to work – decision affirmed

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

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

REASONS FOR DECISION

10 June 2005 Senior Member Mary Imlach         

background

1.      On 27 November 2003 David Oliver Huskinson (“the applicant”) lodged a claim with Centrelink for payment of disability support pension (“DSP”) in respect of the effects upon him of disabilities nominated as “back and neck” problems.  On 8 January 2004 a delegate of Centrelink rejected the applicant’s claim.  The decision to reject DSP was affirmed by an Authorised Review Officer (“ARO”) on 9 June 2004 and in turn by the Social Security Appeals Tribunal (“SSAT”) on 17 August 2004.  On 14 September 2004, the applicant sought review of that decision by the Administrative Appeals Tribunal (“the Tribunal”).

appearances

2.      The applicant attended the hearing and was represented by Mr John Crooks and Mr Brian Sparkes appeared on behalf of the Secretary, Department of Family and Community Services (“the Respondent”).

3.      At the hearing the following material was taken into evidence:

Exhibit 1 – documents prepared in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (“the T‑documents: T1 to T19).

issues and legislation

4.      The issues in this matter relate to whether or not –

(i)the applicant satisfied s 94 (1) (b) of the Social Security Act 1999 (“the Act”) at the date of his claim or within 13 weeks?  That is, did his impairment attract a rating of 20 points or more under the Impairment Tables at this time?

(ii)Did the applicant satisfy s 94 (1) (c) of the Act at the date of his claim or within 13 weeks?  That is, did the applicant have a continuing inability to work at this time?

5.      Section 94(1) of the Act reads:

(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

the applicant’s case

6.      The applicant, who was born on 1 December 1958 told the Tribunal in evidence that he was now in receipt of DSP and had been since a subsequent claim had been accepted by the Respondent on 18 February 2005. 

7.      The applicant said that he had finished full time work as a fisherman in the 1990’s because it was no longer feasible due to quotas which had been imposed.  He had been in receipt of a Newstart Allowance since 1998.  In October 2003 he had suffered an injury to his neck and back whilst lifting an engine block.  He had claimed DSP a month after the injury on 27 November 2003.

8.      The applicant stated that during the period 27 November 2003 to 18 February 2005, when he was finally granted DSP, he had paid medical expenses of $1000 or more for reports and examinations by doctors and specialists which had been requested and arranged by Centrelink.  He had paid this money out of his Newstart Allowance.

respondent’s contentions

9.      The Respondent contended that the applicant did not qualify for DSP at the time of his claim on 27 November 2003 or within 13 weeks of that date.  The effect of the Secretary’s submission was that the applicant was not entitled to arrears of DSP in the order of $2900.

10.     The Respondent argued that the medical evidence supported his contention that at the date of the applicant’s claim on 23 November 2003, his physical impairment was not permanent.  It was incumbent upon the applicant that at 23 November 2003 or within 13 weeks of that date, to show a physical impairment of 20 per cent or more under the Impairment Tables and that he had a continuing inability to work because of his physical impairment.  The 13 weeks rule as the Respondent described it was critical in this case.

discussion of evidence and findings on material facts

11.     It is not in dispute that the applicant suffers physical impairment as a result of his lumbar and cervical spondylosis.  Section 94 of the Act requires the Tables in Schedule 1B of the Act to be used in calculating impairment ratings.  The Schedule provides that the condition must be “a fully documented, diagnosed condition which has been investigated, treated and stabilised” for a rating to be assigned.  The Schedule provides further that the condition must be considered to be “permanent”.

12.     The applicant’s treating doctor, Dr Duncan, provided a medical certificate on 14 January 2004 indicating cervical and lumbar spondylosis and that the applicant was unfit for work fro the period 14 January 2004 to 14 April 2004.

13.     There was also a report from Rehabilitation Consultant, Damien Moore dated 26 February 2004, indicating that the applicant’s cervical and lumbar spondylosis were temporary conditions.

14.     A report from Health Services Australia (“HSA”) (Registered Nurse) on 1 June 2004 indicated there was no specialist opinion as the applicant was not keen to explore the option of surgery.

15.     The medical assessment report dated 4 June 2004 from Dr Gormley  of HSA disclosed that the applicant was temporarily unfit for work and that the matter should be reviewed in six months time.

16.     A treating doctor’s report on 10 December 2003 indicated that the applicant’s ability to function was expected to persist for less than three months.  The report also said, that the applicant’s condition represented a temporary reduction in ability to function and that he was temporarily unfit for work from 15 December 2003 to 15 January 2004.

17.     On the basis of this medical evidence the Tribunal accepts the Respondent’s submission that at the date of the applicant’s claim for DSP on 27 November 2003 his medical impairments could not be considered to be permanent for the purposes of the Act and therefore could not be assessed in accordance with the Impairment Tables.

18.     The Tribunal also accepts the Respondent’s contention that the applicant did not have a continuing inability to work as the medical evidence discussed previously indicated clearly that he was only temporarily unfit for work at the relevant time.

decision

19.     This matter is a de novo review of the administrative decision of 8 June 2004, therefore, the Tribunal in deciding this matter is bound to apply the law.

20.     The applicant must satisfy all the requirements of s 94 of the Act to qualify for DSP.

21.     The qualification requirements for DSP are contained in s 94 of the Act as well as Schedule 1B Tables for the Assessment of Work Related Impairment for DSP including the Notes to the Schedules of the Act.

22.     Section 94 (1) (a) of the Act requires that a person has a physical, intellectual or psychiatric impairment.  The Respondent admitted that the applicant had satisfied this requirement.

23.     Section 94 (1) (b) requires that the applicant’s impairment has an Impairment Rating of 20 points or more under the Impairment Tables of the Act.  The condition must be a fully documented diagnosed condition which has been investigated, treated and stabilised before a rating is assigned to it.

24.     It was not until 9 December 2004 that is to say, some 12 months after the application for DSP that the applicant was referred by Dr Duncan to Dr Scott Fletcher, an orthopaedic surgeon for evaluation.  Whatever may be the current state of the applicant’s physical impairment the Tribunal is satisfied that as at 27 November 2003, the applicant’s physical impairment could not be described as treated and stabilised.

25.     The Introduction to the Impairment Tables stipulates that for a condition to be assigned a rating under the Tables, “The condition must be considered to be permanent”.  As the medical evidence discussed previously disclosed the applicant’s physical impairment could not be considered to be permanent.

26.     It follows from the medical evidence that an essential component of the provision in s 94 (1) (b) of the Act has not been met as no rating has been assigned to the applicant’s physical impairment.

27.     A further qualification criterion for DSP is the requirement of a continuing inability to work in accordance with s 94 (1) (c) of the Act, but as the applicant does not meet the requirements of s 94 (1) (b) of the Act, this makes it unnecessary to consider his capacity for work under s 94 (1) (c) of the Act.

28.     The Tribunal affirms the decision under review.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Mary Imlach

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  29 April 2005
Date of Decision  10 June 2005
Counsel for the Applicant         Mr John Crookes
Solicitor for the Applicant          Launceston Community Legal Centre
Counsel for the Respondent     Mr Brian Sparkes
Solicitor for the Respondent     Centrelink