Itzstein and Secretary, Department of Family and Community Services

[2004] AATA 651

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 651

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/961

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LORETTA ITZSTEIN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member McCabe

Date25 June 2004  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

.................[Sgd].........................

Senior Member

CATCHWORDS

SOCIAL WELFARE – pensions – applicant applied for disability support payment – whether applicant had impairment rating of 20 points or more at time of application – decision affirmed.

Social Security Act 1991

Social Security (Administration) Act 1999.

REASONS FOR DECISION

Senior Member McCabe    

1.      This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 15 October 2003.  The SSAT decided to affirm an earlier decision of the respondent to reject Ms Itzstein’s claim for disability support pension (DSP).

2. The matter was heard on 10 June 2003. Ms Itzstein represented herself. She appeared by telephone, at her own request. The respondent was represented by Ms Dwyer. Before the Tribunal were documents lodged pursuant to s37 Administrative Appeals Tribunal Act 1975 (the T-documents).  Several medical reports were filed with the Tribunal but not formally tendered by either party. I have had regard to them in any event. They were:

• A medical certificate from Dr Eastwell, dated 20 January 2004;

• Two reports complied by Dr Conomos, dated 23 February 2004 and 13 April 2004.

3.      Having perused all the evidence before me I am satisfied the decision under review should be affirmed. 

The Law

4. Section 94 Social Security Act 1991 lays out the criteria an individual must fulfil to qualify for DSP.

94(1) A person is qualified for disability support pension if:

(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

Ms Itzstein relies on Section 94(1)(c). The section has some further criteria but both parties agree they have been met.

5.      The dispute lies in whether at the time of her application (or in the 13 weeks that followed) Ms Itzstein had an impairment rating of 20 points or more, and whether she had a continuing inability to work. Her condition now is not relevant to that question: see s 4, Part 2 of Schedule 2 of the Social Security (Administration) Act 1999.

The Facts

6.      In her application for DSP Ms Itzstein listed her medical conditions as “injury to neck, shoulder and arm area” (f35 T10 of the T-documents).  Later in the application document she also lists depression as a condition.

7.      It is appropriate to set out the medical evidence here. In a Treating Doctor’s Report (TDR) dated 16 April 2003, Dr Conomos listed her medical conditions as calcific tendonitis in right shoulder with associated neck pain, and depression (ff24-31 T8 of the T-documents).  The doctor said these conditions would impact on the applicant’s ability to function for 3-24 months – but less than two years.  On 12 May 2003 Dr Conomos completed another TDR indicating the impact of the conditions was likely to persist for at least 24 months (ff47-54 T13 of the T-documents). On 7 July 2003 Dr Lee completed a report that did not assign any impairment points for her conditions.

8.      On 15 October the SSAT affirmed the decision to refuse Ms Itzstein DSP.

9.      More evidence has come to light recently, but it mostly relates to the applicant’s present condition. On 20 January 2004, Dr Eastwell wrote a letter stating Ms Itzstein “is not capable of working” due to her depression.  On 23 February 2004, Dr Conomos wrote a letter in which he said “all efforts to rehabilitate Miss Itzstein would fail”.  On 13 April 2004 Dr Conomos wrote “I believe she is unfit to work as she has an impairment of 20 points or more under the Impairment Tables of the Social Security Act 1991”.

Consideration and Findings

10.     The weight of medical opinion at the time of the SSAT decision suggests the applicant’s depression was temporary in nature, and her neck/shoulder condition warranted no impairment points.  I have also examined that evidence and the evidence that has been provided subsequently.  I think the decision under review was correct.

11.     The fresh evidence about the applicant’s condition suggests her best course is to make a new application for DSP.  The respondent can make a new decision, having regard to all the medical evidence.

Conclusion

12.     The decision under review is affirmed.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe

Signed:         
  Associate: Thomas Ritchie

Date/s of Hearing: 10 June 2004
Date of Decision:   25 June 2004  
The applicant represented herself.
The respondent was represented by Ms Dwyer, a departmental advocate.