Luke; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and

[2008] AATA 1117

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1117

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S 200600278

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And MONICA JANE LUKE

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date16 December 2008

PlaceAdelaide

Decision The Tribunal affirms the decision under review.  

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Disability Support Pension – 20 points under impairment table for right upper limb condition – continuing inability to work – combined effect of limb impairment and pain and depression considered – able to study but unlikely to successfully retrain to be in a position to work within two years – decision affirmed

Social Security Act 1991 ss 94(1), 94(2), 94(5)

Re Secretary, Department of Social Security and Busstra (1998) 3 SSR 14

Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864

REASONS FOR DECISION

16 December 2008   Senior Member L Hastwell   

1.      The Tribunal conducted this hearing on the papers with the consent of both parties. 

2.      Monica Luke applied for Disability Support Pension (DSP) on 1 February 2006.  Her application was unsuccessful.  She sought review from an Authorized Review Officer who affirmed the original decision.  She then sought review of that decision to the Social Security Appeals Tribunal (the SSAT).  On 26 July 2006, the SSAT set aside the decision of the Authorised Review Officer and found that Ms Luke did qualify for DSP.

3.      The applicant (the Department) has applied to this Tribunal to review the SSAT decision.

material considered by the tribunal

4.      The Tribunal considered the following documents for the purposes of the hearing on the papers:

·the documents filed under s 37 of the Administrative Appeals Tribunal Act 1975;

·the applicant’s statement of facts and contentions and the attachments to that document;

·a statutory declaration of Ms Luke sworn on 31 October 2006;

·a Job Capacity Assessment report of 24 September 2007 and attachments;

·a Job Capacity Assessment report of 16 February 2008;

·reports of Dr G George, consultant psychiatrist, dated 15 January 2007 and 16 February 2008;

·a report from Dr G Fon, Radiology Department, Memorial Hospital, of 4 October 2006; and

·a letter from the Legal Services Commission to Centrelink dated 14 December 2006 with attached report from Dr T Kimber dated 30 November 2006.

issue before the tribunal

5.      The issue to be determined in this case is whether Ms Luke was qualified for DSP at the date of her claim, being 1 February 2006 or within 13 weeks of that date.

legislation

6. Section 94 of the Social Security Act 1991 (the Act) sets out the requirements that must be satisfied for qualification for DSP.

7. Section 94(1) of the Act provides as follows:

“94       Qualification for disability support pension

(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

…”

8.      The Department concedes that Ms Luke suffers from a permanent physical condition within the meaning of the legislation, namely a right upper arm condition, and they accept that this particular impairment attracts a rating of 20 points under the relevant impairment tables.  They have made this concession since the hearing before the SSAT.

9. Ms Luke therefore satisfies s 94(1)(a) and (b) of the Act.

10. The issue that remains to be determined is whether, as a result of that impairment, Ms Luke has a continuing inability to work as required by s 94(1)(c) of the Act.

11. The concept of continuing inability to work is defined in s 94(2) of the Act in the following terms:

“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 within the next 2 years; and

(b)      either:

(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on‑the‑job training during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on‑the‑job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.”

discussion of the evidence

12.     The material available to the Tribunal included numerous medical reports and it is clear from that evidence that Ms Luke suffers from a series of disabilities. 

13.     She suffers from diabetes and a hearing loss.  However, it is not contended that they are the conditions that prevent her from participating in the workforce or from undergoing training that would enable her to participate in the workforce.  Neither of those conditions attracts an impairment rating under the relevant impairment tables.

14.     Ms Luke’s evidence, as contained in her statutory declaration, is that the right arm condition, chronic pain and depression affect her ability to participate in the work force.

15.     She was involved in a motor vehicle accident in 2002 which has had a significant effect on her life.  The motor vehicle in which she was travelling was struck on the right hand side by another vehicle and as a result of that accident she has been left with a permanent impairment of her right upper limb.  There has been extensive investigation of this condition.  Dr Kimber, a neurologist, confirms that given that the symptoms in her right upper limb have not changed significantly since the accident, he considers the condition permanent.

16.     She has also suffered from chronic pain and depression since the accident.

17.     Ms Luke gave evidence before the SSAT.  Their summary of her evidence with respect to the symptoms that she suffers as a result of the right side injury is contained in their decision (T2/4) as follows:

“…

·The symptoms Miss Luke reports … are constant and chronic pain on her right side.  This pain consists of ‘pins and needles’ and quite sharp spasms.  Stress makes them worse and the pain interferes with her sleeping.  Standing or sitting for more than 20 minutes is difficult without moving.  She has difficulty driving for more than 20 minutes and can walk for 2 kilometres before getting pain.  She ‘can’t lie down’.

·Miss Luke gets sharp pains in her right wrist and thumb and has difficulty grasping things.  She can do little typing and writing, and so uses voice recognition software and can use a mouse in her left hand.

·Miss Luke’s right leg gives away sometimes for no apparent reason.  She has fallen over because of this.  She has difficulty mounting stairs and standing after squatting.

…”

18.     Ms Luke was a student at the time of the accident, but was forced to give up her studies shortly thereafter.

19.     She was granted DSP in 2003 and she continued to receive that payment until August 2005 when it was cancelled as she had remained overseas beyond the maximum portability allowance.  She then received Newstart Allowance for a period before applying once more for DSP on 1 February 2006.

20.     She had been suffering from the right upper limb impairment for a number of years and it is now accepted that it was at that time, and is still now, a permanent condition.  She was also suffering from depression at the time.  She was first diagnosed with depression in 2003 and it appears that she has struggled with that condition since.

21.     In Dr George’s report of 15 January 2007, he referred to the depression as being a sequellae to  the 2002 accident and he commented as follows:

“Over time, she has developed a depressive disorder.  It appears that this disorder has developed to the magnitude of a major depression.  Again, her symptoms of depression are variable, but this directly relates to her pain to some degree.  The depth of her depression appears to be beyond that of the norm, and in 2005 she had two suicide attempts. …”

22.     The SSAT reports Ms Luke’s evidence with respect to her depression in the following terms:

“…

·Miss Luke says she has experienced depression since her car accident in 2002 and saw a psychologist about every two weeks in 2003.

·Miss Luke says the depression leads to pseudo epileptic fits as when she gets upset or stressed she collapses and becomes unconscious for a couple of hours.  Her last episode was on 1 May 2006 when she attempted to swallow 8 Panadeine Forte  tablets and cut her wrists …”

23.     At the time of the SSAT decision, Ms Luke had been seeing a mental health assessment team who were keeping in touch with her.  She was attending counselling and she had commenced anti-depressant medication.

24.     Also at the time of the SSAT decision, she was studying tourism and hospitality and was doing so under a Disability Services Access Plan where she is able to take longer than usual to complete coursework because of her disability.

25.     She reported difficulties with some day-to-day tasks because of her right arm impairment.

26.     On 3 April 2006, she commenced work as a call centre operator, but resigned in less than three weeks as she was unable to cope with the stress of the work.

27.     When she swore her statutory declaration on 31 October 2006, she was still suffering from depression.  She was taking a high dose of anti-depressant medication and continued to suffer pain and discomfort as a result of the right side injury.  She had deferred her studies, it would appear, mainly because of her depressive illness.

28.     In a report of Dr George of 16 February 2008, and in response to some queries raised by Centrelink, he reported that she had told him that in 2006 she had completed some subjects in the degree of Tourism Management, but had dropped out of others.  In that report, Dr George provided some helpful commentary with respect to her abilities.  In summary he said that:

·her functional impairment varies daily depending on the level of pain that she is suffering;

·when her pain is severe she has difficulty with attention and concentration which would affect her ability to persist at tasks and to complete work according to deadlines;

·her depression affects her ability to relate to others from time to time;

·she is right hand dominant and when suffering exacerbations of pain or symptoms associated with her right hand or right arm she would be physically impaired which would also have an impact on her mood state;

·when experiencing pain she would have difficulty reading, writing, using a keyboard and focusing her attention which would impact on her employability at the time; and generally,

·her pain and depression combined, prevent her from engaging in life fully and reflect in different areas of her life including travel, mobility, social relationships, the ability to persist with any particular tasks and the ability to be employed.

29.     Although there was some evidence that Ms Luke has a personality type that results in her overstating her distress, at no stage has it been suggested that she is not genuine in her presentation. 

findings of fact

30.     Ms Luke was 37 years of age at the time of her application for DSP.

31.     She is dominant right handed.

32.     She suffers from right upper limb impairment as a result of injuries sustained in a motor vehicle accident in 2002.  It is agreed that this impairment attracts an impairment rating of 20 points under the impairment tables.

33.     The right upper limb impairment causes considerable pain and limitation in her use of that arm.  She takes painkillers for the pain which is chronic and regular.  She also suffers from numbness and tingling in her fingers from time to time and she has a weakened grip.

34.     She suffers from a significant depressive illness which was first diagnosed in 2003.  She has sought medical assistance for that condition, but it continues to disable her and she continues to need high doses of medication to manage that condition.  That condition is now clearly established and was already affecting her health significantly at the time of her application for DSP.

35.     Her disability has been recognised by the tertiary institution where she is studying and allowances are made for the fact that it takes longer for her to complete a course or subjects because of the nature of her disabilities.

36.     In 2004 she had two suicide attempts and another one is reported in the first-half of 2006.

37.     Her physical impairments have affected her self esteem, her mood, her confidence and her ability to relate to others.

38.     She attempted to take on work in April 2006, but her impairments prevented her maintaining that position for any period of time.  She has not worked since.

39.     Her pain and depression make it difficult for her to persist with particular tasks and at times her concentration is impaired.  This affects her ability to maintain a continuous pace with her studies.  She had deferred her studies in October 2006 because of her depression and lack of concentration.

40.     She also suffers from diabetes and hearing loss, but these conditions probably have little effect on her employability or on her ability to study at a sustained rate.

41.     Ms Luke is unsuitable for employment that requires any significant use of her right arm or hand.  This would include employment involving sustained keyboard work, manual employment including for instance work in the hospitality industry where she may be required to lift or carry objects.

42.     Ms Luke has limited skills at present that would attract an employer.

43.     Ms Luke is capable of studying, but at a slow pace which appears to be interrupted from time to time by health issues.  The Tribunal is satisfied that, on the balance of probabilities, any such training is unlikely to equip her to do any work as defined in the legislation within two years of the date of her claim.

contentions

44.     The Department contends that although Ms Luke has impairment with a rating of 20 points or more under the impairment tables, she does not satisfy the requirement of having a “continuing inability to work”  pursuant to the legislation.

45.     They argue that because she is able to study she can undertake educational or vocational training which should equip her to re-enter the work force within two years.

consideration and application of the law

46.     This hearing before the Tribunal is a hearing de novo and the Tribunal has considered all available evidence.

47.     The Tribunal notes that once a permanent impairment, or combined impairments, gives rise to a rating of 20 points or more under the impairment tables, then unrated symptoms can also be brought to account (Re Secretary, Department of Social Security and Busstra (1998) 3 SSR 14). 

48.     The sole issue for determination is whether Ms Luke has a continuing inability to work.

49.     The Tribunal is satisfied, and it appears to be conceded by Centrelink, that at the time that she made application for DSP, the impairment was of itself sufficient to prevent her from doing any work within the next two years.

50. “Work” at the time that she lodged her application was defined in s 94(5) of the Act as being work for at least 30 hours a week at award wages or above that exists in Australia, even if not within the person’s locally accessible labour market.

51.     The Department argues that the impairment did not prevent her from undertaking educational, vocational or on-the-job training such that she would be able to re-enter the workforce within two years.  They relied on the comments made by Dr George and Dr Kimber in putting forward that position.

52.     Neither Dr Kimber nor Dr George are occupational physicians. 

53.     Dr Kimber, who is a specialist in neurology, made the following comment in his letter to the Legal Services Commission of 30 November 2006:

“… Ms Luke described to me that she is currently studying tourism management.  I think it is possible that Ms Luke could potentially work in this field, with the use of electronic devices that obviate the need for right upper limb use (e.g. telephone headsets and voice dictation software).  In my opinion, it is not out of the question that Ms Luke could work in such a capacity for 30 hours per week during the next 2 years. …”

54.     Dr George, in his report of 15 January 2007, commented that her impairment did not necessarily prevent her from undertaking some educational vocational training. 

55.     He did not comment as to whether he believed that within two years she would be in a position to work for 30 hours per week or more as a result of educational and vocational training.  In a later report of 16 February 2008, he raised numerous reservations about her ability to function in a sustained way and he referred to the difficulty she suffers in terms of socialising, mobility, travel and focus on tasks.  He did not express the view that she could retrain and be in the workforce within two years.

56.     The Department has relied on the authority of Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864 in which this Tribunal found that a 22-year-old woman did not have a continuing inability to work. That case is distinguishable on the facts. The Tribunal noted in that case that at the material time, Ms Crossland had successfully completed some study. In addition, there was evidence that she was able to work full-time in a range of occupations and she also had computer and keyboard skills.

57.     In this particular case, Ms Luke has a number of disabilities which, in the Tribunal's view, disable her sufficiently to be eligible for DSP at the material time.

58.     Dr Kimber's comments were based purely on consideration of her physical impairment.  The psychiatric impairment arising from the motor vehicle accident is significant and has resulted in three suicide attempts, and need for psychiatric and psychological assistance.  She continues to require large amounts of medication and her ability to concentrate and focus on her studies is variable and is affected by pain and depression.

59.     There is no doubt that Ms Luke can study for periods of time, but her study is slowed or interrupted from time to time by the fluctuating severity of her health problems.  In many ways her mental health problems have been as significant as her upper arm and pain problems in limiting her capacity to sustain study or periods of work in the work force.

60.     The Tribunal would hope that over time Ms Luke obtains sufficient treatment of her depression and pain condition such that she can complete some studies and find a place in the workforce.  The Tribunal is satisfied, on the balance of probabilities, that at the time of the application she was unable to work as defined in the Act and further, that she could not have successfully retrained herself within two years such that she could have obtained work as defined.

61.     The Tribunal affirms the decision under review.

I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         ............J Coulthard...........................................
  Associate

Date of Hearing on papers       8 September 2008
Date of Decision  16 December 2008