Lakay and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1788

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1788

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1774

GENERAL ADMINISTRATIVE DIVISION		)
Re		BERNICE LAKAY

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member P McDermott, RFD

Date21 September 2007

PlaceBrisbane  

Decision The Tribunal affirms the decision under review.

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

SENIOR MEMBER  

CATCHWORDS

SOCIAL SECURITY – Pensions, Allowances and Benefits – disability support pension – whether applicant has physical, intellectual or psychiatric impairment – whether applicant has impairment rating of 20 points or more – decision affirmed

Social Security Act 1991 (Cth) ss 94, Schedule 1B

Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444

REASONS FOR DECISION

21 September 2007     Senior Member P McDermott, RFD  

Introduction

1.      I have to decide whether Mrs Bernice Lakay is entitled, under social security law, to a disability support pension. I have to consider whether at the time that her disability support pension was cancelled she had medical conditions that had stabilised and which had affected her ability to work.

Background

2.      In 2002 Mrs Lakay was granted a disability support pension. In 2004 she was granted a pensioner education supplement in respect of her full-time diploma studies. On 16 September 2005 her disability support pension was suspended when she commenced employment for 38 hours a week. Her disability support pension was restored in April 2006 after she suffered a shoulder injury on 17 March 2006.

3.      On 14 December 2006 Centrelink made a decision that Mrs Lakay was no longer qualified to receive disability support pension.  On 23 February 2007 the authorised review officer of Centrelink affirmed the cancellation decision. On 10 April 2007 the Social Security Appeals Tribunal also affirmed the cancellation decision. Mrs Lakay has made an application to this Tribunal to review that decision.

Eligibility criteria

4. The entitlement to a disability support pension is conferred by s 94 of the Social Security Act1991 (“the Act”).

5.      A person is qualified for a disability support pension if the person has a physical, intellectual or psychiatric impairment (s 94(1)(a)); and the person’s impairment is of 20 points or more under the Impairment Tables (s 94(1)(b)); and the person has a continuing inability to work (s 94(1)(c)). All of these requirements must be satisfied before a person is entitled to a disability support pension.

6. In considering whether Mrs Lakay had a “continuing inability to work” at the time of the cancellation of the disability support pension, I must have regard to the definition in s 94(2) of the Act. That definition requires a claimant to have an impairment which is of itself, sufficient to prevent a person from doing any work or training within the next 2 years. In considering whether a claimant has a continuing inability to work the Secretary cannot have regard to the factors in s 94(3) of the Act. The term “work” is defined to be work of at least 15 hours per week that exists in Australia even if that work is not locally accessible (s 94(5)).

7. I mention that there are other provisions in s 94 that Mrs Lakey satisfies. She is over the age of 16 years (s 94(1)(d)) and she is an Australian resident (s 94(1)(e)(i)).

Impairment tables

8. The Impairment Tables that I am bound to apply are found in Schedule 1B of the Act.

9.      Paragraph 4 of the Introduction to the Impairment Tables provides that a rating is only to be “assigned after a comprehensive history or examination”. The paragraph states that for “a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”.

10.     Paragraph 5 of the Introduction to the Impairment Tables states that a condition must be considered to be permanent. That paragraph states that once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if, in the light of available evidence, it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. The paragraph concludes with a statement that a condition will be considered to be fully stabilised if it is unlikely there will be any significant functional improvement, with or without reasonable treatment, within the next two years.

11.     Paragraph 6 of the Introduction to the Impairment Tables states that in order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider what treatment or rehabilitation has occurred and whether any treatment is still continuing or is planned in the near future.

Time for determining Eligibility

12.     For Mrs Lakay to be qualified to receive the disability support pension, she must meet the eligibility criteria on 14 December 2006 when her pension was cancelled.

Evidence of Applicant

13.     Mrs Lakay gave evidence before me. I must say that she impressed me as a person who was prepared to undertake her diploma studies in community studies and welfare in order to obtain suitable employment. She completed those studies at an accelerated rate. She has also obtained employment when she was able to do so. Her latest employment was interrupted by her right shoulder condition which was caused by the repetitive opening of a heavy safe door. She advised me that her shoulder and lumbar conditions prevent her from working. She outlined the medication she takes for pain relief and also to control the inflammation of her conditions.

Treating doctor’s reports

14.     Centrelink was provided with a Treating Doctor’s Report dated 6 November 2006 from Dr H Colquhoun [T36]. Dr Colquhoun confirmed a diagnosis of Mrs Lakay having a right rotator cuff condition as well as lumbar sacral spine disc disease and degeneration.

15.     Dr Colquhoun reported that the right rotator cuff condition would be expected to persist for the next 3-24 months. In her report she stated that she considered that this condition would “significantly improve” over the next two years.

16.     Dr Colquhoun also reported upon the lumbar sacral spine disc condition. She reported that this lumbar condition was expected to persist for the next 3-24 months. Dr Colquhoun also reported that this condition “hopefully will improve with rehab”.

17.     A recent Treating Doctor’s Report dated 21 June 2007 from Dr Arnold was tendered before me [ex. B]. That report deals with the recent condition of Mrs Lakay and will be considered by Centrelink in the consideration of her recent application for disability support pension.

Job Capacity Assessment Report

18.     On 30 November 2006 a Job Capacity Assessment Report [T39] was completed by Ms K Arnot. Ms Arnot is a registered psychologist as well as being an employee of Centrelink. Ms Arnot reported that Mrs Lakay’s shoulder and spine conditions were both “temporary” [T39, fol 258]. Because of this, Ms Arnot did not assign any impairment ratings to the conditions of Mrs Lakay. Ms Arnot also considered the effect of the shoulder condition on her ability to work. Ms Arnot came to the conclusion that because of the shoulder condition, Mrs Lakay then had a temporary capacity for work of between 8 to 14 hours per week. The report contained the opinion that Mrs Lakay had a “baseline” work capacity of 30+ hours per week.

Findings of Tribunal

19.     In determining this application I have considered the documented conditions of Mrs Lakay including her right rotator cuff condition as well as the lumbar sacral spine disc disease and degeneration.

20. I consider that Mrs Lakay certainly has an “impairment” for the purposes of the Act (s 94(1)(a)). Her shoulder and spine conditions are each a physical impairment.

21.     I next have to consider whether the conditions of Mrs Lakay warrant her being assigned an impairment rating of 20 points or more under the Impairment Tables (s 94(1)(b)); and whether she has a continuing inability to work (s 94(1)(c)).

22.     I have decided to assign 10 points for the lumbar condition of Mrs Lakay. The descriptor for the 10 points rating is a “Loss of one-quarter of normal range of movement” (Schedule 1B, Table 5.2, Spinal Function). I acknowledge that there is a divergence of medical opinion on the extent of any disability from the spine condition.  I note that in one report there is an assessment that there is a “near normal range of movement of the lower spine” [T7, fol 88]. However, in a later report there is evidence of a L5/S1 disc protrusion with a loss of flexion [T17, fol 178].

23.     Ms Arnot has not assigned a rating for the lumbar condition as she did not regard it as permanent. She was justified in taking that approach having regard to the treating doctor’s report which indicated there could be some improvement in the spinal condition. However, in a later report Dr Steadman has reported that the lumbar condition is “settled” [ex. C, p.3]. Ms Arnot did not have the benefit of seeing this later report. In these circumstances I consider it appropriate to assign a rating for the spine condition of Mrs Lakay.

24.     In 2002 Dr Clelland assigned a 10 point rating for the spine condition. This rating was given under Table 5 in the Impairment Tables. I adopt that rating.

25.     I consider that I am unable to assign a rating for the shoulder condition of Mrs Lakay. I have already mentioned that Paragraph 4 of the Introduction to the Impairment Tables provides that for “a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”. The medical evidence before me is that this condition had not stabilised soon after the time of the cancellation of the pension. I have already mentioned that on 6 November 2006 Dr Colquhoun confirmed the right rotator cuff condition would “significantly improve” over the next two years [T36, fol 242].

26.     In considering the shoulder condition I must also have regard to Paragraph 6 of the Introduction to the Impairment Tables which provides that in order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider what treatment or rehabilitation has occurred and whether any treatment is still continuing or is planned in the near future. Dr Macgroarty has recommended that Mrs Lakay undertake a further procedure on the shoulder [T49, fol 310]. Mrs Lakay in her evidence adverted to this further procedure. Having regard to Paragraph 6 I am unable to assign a rating for the shoulder condition while treatment is still planned.

27. Having concluded that Mrs Lakay should be assigned an impairment rating of 10 points on the basis of her lumbar condition, she does not satisfy s 94(1)(b) of the Act, which requires that a person’s impairment is of 20 points or more under the Impairment Tables. I therefore come to the conclusion that at the time of the cancellation of her disability support pension she was not qualified to receive that benefit.

28. I have decided to make some observations on whether Mrs Lakay has a continuing inability to work in the terms of s 94(2) of the Act. In order for the Secretary to conclude that a person has an inability to work because of an impairment, it is necessary that the criteria in both paragraphs (a) and (b) of s 94(2) be met. This is indicated by the presence of the distributive word “and” in s 94(2).

29.     In Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444 Drummond J made reference to the explanatory memorandum of the amendment which is now s 94(2)(a) of the Act. His Honour, at 452, formulated the test that I must now consider:

“As to s 94(2)(a)  Does the impairment of itself, ie, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant’s capacity for work that it prevents her from working anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining?”  

30. In considering s 94(2)(a) I have placed some weight upon the assessment of Ms Arnot that Mrs Lakay is, within the next 24 months, capable of working for 30+ hours per week. Although the usual work of Ms Lakay has been that of a cleaner, her most recent employment was clerical office work. I think the assessment of Ms Arnot is realistic having regard to her recent employment and success with her diploma studies. This assessment of Ms Arnot is in accord with the specialist opinion of Dr Macgroarty; that it is critical for the well-being of Mrs Lakay that she return to some form of employment. Dr Macgroarty considered administrative work was appropriate in the circumstances [T49, fol 310].

Decision

31.     I affirm the decision under review.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott, RFD.

Signed:         .............[Sgd]................................................................... S O’Grady, Associate

Date of Hearing  6 August 2007
Date of Decision  21 September 2007
For the applicant  Self-represented
For the respondent  Mr R McQuinlan, a departmental advocate