Jurinec and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1098

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1098

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V200500801

GENERAL   ADMINISTRATIVE  DIVISION		)
Re		BRIGITTA JURINEC

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr Egon Fice, Member

Date5 March 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd)       Egon Fice

Member

SOCIAL SECURITY ‑ disability support pension – qualifications – allocation of impairment – rating – condition fully documented, diagnosed, investigated, treated and stabilised – qualified within 13 weeks of claim being made – work capacity

Social Security (Administration) Act 1999 s 39(3)

Social Security Act 1991 s 94

REASONS FOR DECISION

5 March 2007 Mr Egon Fice, Member       

1.      On 1 August 2004 Ms B. Jurinec lodged a claim for Disability Support Pension (DSP) with Centrelink, listing her disabilities as slip discs (x3), carpal tunnel syndrome in both hands and arthritis (rheumatoid) of the spine.  Centrelink is the service delivery agency for the Department of Employment and Workplace Relations.  Centrelink rejected Ms Jurinec’s claim and she sought an internal review.  An Authorised Review Officer (ARO) informed Ms Jurinec on 6 April 2005 that the review had been unsuccessful.  She then sought review by the Social Security Appeals Tribunal (SSAT).  On 3 August 2005 the SSAT affirmed the decision under review. 

2.      This matter was partially heard on 23 March 2006.  It was adjourned to enable Ms Jurinec to obtain further medical assessments to establish that she qualified for the DSP.  It has taken some 11 months for the hearing to be resumed.  In that time it appears Ms Jurinec has added anxiety and depression to the list of medical conditions for which she claims DSP.  The issues therefore before the Tribunal include:

(a)whether Ms Jurinec qualifies for the DSP; and

(b)whether her claim for anxiety and depression should be taken into consideration.

RELEVANT FACTS

3.      Prior to ceasing full‑time work, Ms Jurinec was employed by SCOPE (formerly the Spastic Society).  It was heavy work which involved lifting patients without the benefit of a hoist.  She injured her neck and back in January 2004 when she slipped in a bathroom at work.  Her back has caused her considerable problems.  In fact, a report produced by Radclin Medical Imaging on 14 May 1996 indicates evidence of advanced degenerative disc disease with disc space reduction and prominent osteophyte formation present at C5/6 and C6/7 disc spaces.  There was also degenerative narrowing of adjacent nerve root canals bilaterally.

4.      In 1996 Ms Jurinec was also diagnosed with median nerve compression in the carpal tunnel bilaterally.  The symptoms in her right hand were worse than in her left.

5.      On 7 January 2004 Ms Jurinec had a CT scan performed on her back which noted multiple broad based disc bulge with slight postero-lateral displacement of the L4 nerve root and soft tissue spinal canal stenosis at the L4-L5 level.  There was also multiple facet joint degeneration.

6.      Ms Jurinec lodged an application for the DSP on 15 August 2004.  She was examined by Dr D. Wong Shee from Health Services Australia Limited on behalf of the respondent.  Dr Wong Shee provided a report dated 27 August 2004.  He noted that according to Ms Jurinec’s treating doctor (Dr P.J. Brady), Ms Jurinec’s back pain was expected to persist for less than two years.  Dr Wong Shee therefore assessed Mr Jurinec’s impairment caused by her back problems as temporary.  As for her bilateral carpal tunnel syndrome, Dr Wong Shee noted that there was demonstrable evidence of loss of strength in both of Ms Jurinec’s upper limbs which caused moderate interference with dominant and non‑dominant hand functioning/manual handling.  However, Dr Wong Shee noted that Ms Jurinec was considering whether or not to have carpal tunnel release surgery.  He also reported that there would appear to be potential for significant functional improvement with surgical treatment and assessed the condition as temporary.

7.      Ms Jurinec had a further CT scan on her back on 1 September 2004.  The radiologist noted that there were degenerative changes in the lumbar spine and also generalised facet joint arthritis.

8.      Centrelink’s record of the decision made on 7 September 2004 states that Ms Jurinec did meet the residency requirements for the DSP.  However, no impairment rating points could be assigned to any of her conditions as they were considered temporary.  In a letter dated 28 September 2004 Ms Jurinec informed Centrelink that she was not prepared to undergo surgery to relieve the symptoms of her carpal tunnel syndrome.  She was concerned with the risks associated with undergoing surgery.

9.      The ARO was satisfied that her neck disorder attracted 10 points under Table 5.2 in the Tables For The Assessment Of Work-Related Impairment For Disability Support Pension (the Impairment Tables) located in Schedule 1B of the Social Security Act 1991 (the Act).  However, because her other conditions had not been fully treated, they were considered temporary.  The ARO explained to Ms Jurinec that to be eligible for DSP, her permanent medical conditions had to attract at least 20 points under Table 5.2.

10.     Ms Jurinec underwent surgery for her carpal tunnel syndrome on 19 January 2006.  In a letter dated 9 February 2007 Dr Brady reported that she had a good result from that surgery.  At the resumed hearing on 14 February 2007, Ms Jurinec agreed that her carpal tunnel syndrome had improved, although she could not undertake any heavy work. 

11.     At the resumed hearing, Ms Jurinec also said that she had suffered severe anxiety and some depression since ceasing to work in 2004.  This is recorded in Dr Brady’s report dated 4 April 2006.

THE LEGISLATIVE SCHEME

12. A claimant only qualifies for the DSP if he or she meets the requirements set out in s 94(1) of the Act. Insofar as it is relevant, s 94(1) provides:

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 …

13.     The meaning of continuing inability to work is defined in s 94(2) of the Act which provides:

94(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a)the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

(b)either:

(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

Note:For work see subsection (5).

14.     The term work is defined in s 94(5) of the Act. It means work that is for at least 30 hours per week at award wages or above and that exists in Australia, even if not within the person’s locally accessible labour market.

15.     There is one further requirement which is set out in the Social Security (Administration) Act 1999 (the Administration Act). Section 39(3) of the Administration Act provides:

39(3)If:

(a)a person makes a claim for a social security payment that is a relevant social security payment for the purposes of subclause 4(1) of Schedule 2; and

(b)the person is not, on the day on which the claim is made, qualified for the payment; and

(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

(d)the person becomes so qualified within that period;

the claim is taken, for the purposes of subsection (1), to be made on the day on which the person becomes qualified.

QUALIFICATION FOR DISABILITY SUPPORT PENSION

16.     It is clear from the legislation that an applicant for a Social Security payment must be qualified to receive that payment at the time the claim is made or, alternatively, become qualified for the payment within a period of 13 weeks after the day on which the claim is made.  This is particularly significant because Ms Jurinec only raised the fact that she suffered from anxiety and depression in the course of the recommenced hearing.  Ms Jurinec did not mention that she suffered from anxiety and depression in her application for the DSP which was lodged on 15 August 2004.

17.     However, the position is somewhat complicated by the fact that in his report dated 4 April 2006, Dr Brady mentioned that when Ms Jurinec ceased working in August 2004, because she knew she was to be sacked or forced to resign, this caused severe anxiety and some depression.  Dr Brady then said:

The anxiety and depression have persisted since then [4 August 2004], varied in severity and been difficult to treat, as she does not believe in medication.  This is part of her underlying personality make up which makes it difficult for her to be treated and to have any insight into her problems.  She has been started on antidepressant medication in April 2005 and has been taking it regularly of late at least.

18.     Dr Brady then concluded that, in his estimate, Ms Jurinec should be allocated 10 points for psychiatric impairment, presumably as at 4 April 2006.  He also mentioned that it was not apparent in August 2004 that this condition would persist, although it had.

19. The problem for Ms Jurinec is that her anxiety and depression did not form a part of her claim for the DSP. Even if I were permitted to take that condition into account in assessing whether she now qualifies for the DSP, I am restricted by s 39(3)(c) of the Administration Act which requires Ms Jurinec to become qualified for the DSP within 13 weeks after the day of which the claim is made. Although Ms Jurinec was diagnosed as suffering from anxiety and depression in August 2004, Dr Brady’s report makes it clear that treatment only commenced in April 2005. In order for that condition to be considered permanent, which would then enable a points rating under the Impairment Tables to be assigned, the condition must be fully documented, diagnosed, investigated, treated and stabilised. Although there is a diagnosis by Dr Brady, there is no evidence before me which shows that the condition has been fully documented, investigated, treated and stabilised. In fact, the report by Dr Brady dated 4 April 2006 suggests that the condition may not have stabilised due to the fact that it does not appear to have been fully treated. As is set out in the Introduction to the Impairment Tables, a rating can only be assigned after a condition is considered to be permanent and that means the condition must be diagnosed, treated and stabilised. The evidence must also disclose that it is more likely than not that the condition will persist for the foreseeable future. This means that it is considered that the condition will last for more than two years. As the Introduction to the Impairment Tables states, in order to assess whether a condition is fully diagnosed, treated and stabilised, I am required to consider:

(a)what treatment or rehabilitation has occurred;

(b)whether treatment is still continuing or is planned in the near future; and

(c)whether any future reasonable medical treatment is likely to lead to a significant functional improvement within the next two years.

20.     Therefore, although Dr Brady is of the opinion Ms Jurinec is not fit to work due entirely to her state of anxiety and related depression, and that her depression has persisted for two years, treatment only commenced when Ms Jurinec started on antidepressant medication in April 2005.  There is no indication whether the treatment is continuing or is planned in the future; or whether any further reasonable medical treatment could result in significant functional improvement within the next two years.  Until such time as her condition has been fully treated and stabilised, it is not possible to allocate a points rating under the Impairment Tables for this condition.

21. It follows that although Dr Brady has estimated that Ms Jurinec rates 10 points for psychiatric impairment as at April 2006, that assessment does not fall within the requirements of Schedule 1B of the Act. Furthermore, it is also clear that Ms Jurinec’s anxiety and depression cannot be taken into account when considering her DSP claim, as without any rating points being assigned for that condition, she would not have qualified for payment of that pension within a period of 13 weeks after the date on which the claim was made. Of course if Ms Jurinec can now satisfy requirements under Schedule 1B for the anxiety and depression, there is no reason why she cannot make a new claim for the DSP. However, for that new claim to be successful, Ms Jurinec would be required to produce evidence that her anxiety and depression has been fully documented, diagnosed, investigated, treated and stabilised.

22. Even if Ms Jurinec were able to satisfy the requirement to attract at least 20 points under the Impairment Tables, there remains the problem of establishing that she has a continuing inability to work as is required under s 94(1)(c)(i) of the Act. Centrelink obtained a work capacity/participation assessment from a rehabilitation consultant, who assessed Ms Jurinec on 22 May 2006. The consultant assessed Ms Jurinec’s capacity to work to be less than 30 hours per week in the two year period where there is no intervention by way of vocational and or educational program. While that satisfies the requirement under s 94(2)(a) of the Act, she must also meet one of the requirements under s 94(2)(b)(i) or (ii). The consultant has assessed Mr Jurinec’s capacity with educational and or vocational training to be in excess of 30 hours per week within two years. Therefore, she cannot satisfy one of the requirements under s 94(2)(b). I should point out that in making that assessment, the consultant regarded anxiety and depression as being a temporary condition. If Ms Jurinec were able to have anxiety and depression accepted as a permanent condition on the basis that I have set out above, then it is possible that she may satisfy all the requirements under s 94(2) of the Act. However, it is clear that at the present time, she cannot meet those requirements.

CONCLUSION

23.     The evidence in this matter discloses that Ms Jurinec does not qualify for the DSP as she did not satisfy the requirement of attracting 20 points or more under the Impairment Tables at the time she made the claim, or within 13 weeks after that day.  In fact, at the final hearing of this matter, there was insufficient evidence before me to find that she attracted more than 10 points under the Impairment Tables.  There was also evidence before me disclosing that with further education and or vocational or on the job training, she would be able to work in excess of 30 hours per week after a period of two years.  Therefore, Ms Jurinec does not qualify for the DSP at this time.  The decision of the SSAT made on 3 August 2005 must be affirmed. 

I certify that the twenty‑three [23] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr Egon Fice, Member

Signed:      Dianne Eva

Clerk

Dates of Hearing  22 September 2006 and 14 February 2007
Date of Decision  5 March 2007
Advocate for the Applicant          Ms C. Place
Advocate for the Respondent       Mr A. Carson, Centrelink Legal Services Branch