MATTHEW DUFFY and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2012] AATA 88
•8 February 2012
[2012] AATA 88
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/0251
Re
MATTHEW DUFFY
APPLICANT
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
RESPONDENT
DECISION
Tribunal Mr Conrad Ermert, Member
Date of Decision
Date of Written Reasons
8 February 2012
16 February 2012
Place
Melbourne
The Tribunal affirms the decision under review.
..........[sgd]..............................................................
Conrad Ermert
CATCHWORDS
DISABILITY SUPPORT PENSION – date of claim - start day - qualification period of 13 weeks - physical impairment - Impairment Tables - impairment not stabilised - impairment not permanent - decision affirmed
LEGISLATION
Social Security (Administration Act) 1999 s 13
Social Security Act 1991 s 94, Schedule 1B
REASONS FOR DECISION
Mr Conrad Ermert
INTRODUCTION
In 2006 Mr Duffy, the applicant in this case, was working sporadically as a shearer. He was also receiving newstart allowance (NA). Centrelink, the service provider for the Department of Education, Employment and Workplace Relations, required Mr Duffy to do Work for the Dole. While helping to unload a truck he suffered an injury to his left shoulder. In February 2010, as a result of fatigue from his shoulder injury, Mr Duffy injured his knee while jumping on his trampoline.
On 7 June 2010 Mr Duffy contacted Centrelink about making a claim for disability support pension. He lodged a claim form on 8 June 2010. A Centrelink officer made a decision to reject Mr Duffy’s claim on the grounds that he could not be allocated an impairment rating for his conditions under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act). On 1 November 2010 an authorised review officer (ARO) of Centrelink affirmed that decision. On 14 December 2010 the Social Security Appeals Tribunal (SSAT) affirmed the decision of the ARO. This matter is an application for review of the SSAT decision.
THE HEARING
Mr Duffy represented himself at the hearing and participated by telephone. Mr Andrew Carson from the Department of Human Services, Legal Division, represented the respondent. I had before me the documents provided by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). I also had before me the respondent’s Statement of Facts and Contentions, dated 1 February 2012. I also had a report from Dr David McConville, dated 24 May 2011, submitted on behalf of Mr Duffy and taken in as Exhibit A1.
THE ISSUE
The issue to be determined is whether Mr Duffy was qualified for disability support pension on the date of claim or within 13 weeks of that date.
THE EVIDENCE
Mr Duffy gave evidence that he was a shearer, but the work became sporadic and he applied for and received NA. He stated that he was required to do some Work for the Dole. He described an incident while unloading a vanity unit from a truck. A heavy mirror fell off the unit and in the act of catching the mirror Mr Duffy severely injured his shoulder. Mr Duffy testified that he has been in agony from his shoulder since that time.
Mr Duffy stated also that the pain from his shoulder disrupts his sleep to such an extent that he is very tired. He said that about two years ago, while jumping on his trampoline, and as a result of his tiredness, he landed badly, and his left knee went sideways and was severely damaged. Mr Duffy stated that his shoulder and knee injuries are ongoing, with his shoulder and his knee frequently dislocating.
In his answers to questions from Mr Carson, Mr Duffy said that his main doctor was Dr McConville but as Dr McConville was very busy Mr Duffy sometimes saw other doctors at the same clinic. Mr Duffy said that he was referred to Mr Rehfish, an orthopaedic surgeon and was last seen by him about six months ago for a review of his situation and to see what else could be done. Mr Duffy said that Mr Rehfish told him that nothing could be done for his injuries and that surgery was too dangerous. Mr Duffy stated that he had received reports from Mr Rehfish, but he had not provided them to the SSAT or to this tribunal.
Mr Duffy said that when he injured his knee he went straight to the clinic and was seen by Dr Otuonye. He saw Dr Otuonye every three weeks at first. Mr Duffy said that, as far as he knew, the doctor was still reviewing the condition of his knee.
Mr Duffy was asked about his gastro-oesophageal reflux disease (GORD) and asthma, conditions which were included in Dr Otuonye’s report of 14 July 2010. He said that they are random and he has to manage them with Somac. Mr Duffy was asked about the diagnosis of depression contained in Dr McConville’s report of 14 September 2010. Mr Duffy said that he did not know what the doctor was referring to. He said that he had not been referred for counselling; nor had he been prescribed anti-depressant medication.
Mr Carson referred Mr Duffy to the reports of Drs Otuonye and McConville in which his shoulder and knee conditions were reported as being expected to persist for 3-24 months, with a fluctuating impact on function. Mr Duffy’s response was that these opinions were just speculation.
I noted the detail with which Mr Duffy described the severity of his conditions in his evidence and asked if he had provided the doctors with the same detail. He said that he had given the doctors even more detail than he had to the Tribunal.
CONSIDERATION
The date of Mr Duffy’s claim is determined by the provisions the Social Security (Administration) Act 1991 (the Administration Act). Section 13 provides that a person is taken to have made a claim on the day on which the Department was contacted, provided the listed provisions are satisfied. In this case, there is no dispute that Mr Duffy contacted Centrelink on 7 June 2010 and that he satisfied the other provisions of section 13(1). Accordingly I find that Mr Duffy’s claim was made on 7 June 2010.
The provisions contained in Schedule 2 of the Administration Act determine the period during which Mr Duffy must qualify. Clause 3 provides the general rule that the start day is the day on which the claim is made. Clause 4(1) provides for a period of 13 weeks during which the person can qualify for the benefit. Again, there is no dispute that Mr Duffy satisfies the provisions of Clause 4. Accordingly, I find that the qualifying period for Mr Duffy’s claim starts on 7 June 2010 and ends on 6 September 2010.
Section 94(1) of the the Act sets out the relevant qualifications for disability support pension as follows:
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
...
Mr Carson confirmed the respondent’s concession that Mr Duffy satisfies section 94(1)(a) of the Act.
I then turned to the Impairment Tables called up in section 94(1) (b). Paragraph 4 of the Introduction to the Tables states For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised (my emphasis). Paragraph 5 requires the conditions to be considered permanent.
Mr Duffy contended that his shoulder condition is permanent because it has existed for six years and that his knee condition is also permanent as it has existed for about two years. He reiterated the severity of these conditions.
I then turned to the medical reports dated within the qualifying period as follows:
(a)Dr Jiang’s report, dated 17 June 2010, in which she recorded the condition of left knee injury, ligamental, but did not respond to the other questions on the form. As a result this report provides no assistance to the Tribunal.
(b)Dr Otuonye’s report, dated 9 July 2010, in which he recorded a diagnosis of left knee injury – ligamental and stated This condition is Temporary.
(c)Dr Otuonye’s report, dated 14 July 2010, in which he reported on the following conditions:
(i)Chronic left shoulder pains and left knee pains, impact expected to persist for 3-24 months, with the effect on function expected to be uncertain;
(ii)GORD with Nil impact on ability to function; and
(iii)Asthma with Nil impact on ability to function.
Dr McConville completed a report dated 14 September 2010. While it is outside the qualifying period, I gave consideration to it. The date is only just outside the qualifying period and I am satisfied that the reported conditions would not have changed materially in such a short time. Dr McConville’s report contained the following diagnoses:
(a)Chronic left knee and shoulder pain, impact expected to persist for 3-24 months and effect on function expected to fluctuate;
(b)Depression with some affect on personality related to injuries, with impact expected to persist for 3-24 months and effect on function expected to fluctuate.
I noted Mr Duffy’s evidence that he had clearly described the severity of his symptoms to the doctors. Notwithstanding such a history, none of the doctors have determined that the conditions are stable or permanent. Mr Duffy contended that the opinions of the doctors were just speculation. However, I must accept them as the considered opinions of qualified medical practitioners, particularly as Mr Duffy has been Dr McConville’s patient for a number of years.
The only assessments available to me of Mr Duffy’s conditions made by qualified medical practitioners are those of Drs Otuonye and McConville. The report of Dr Jiang does not contain an assessment and accordingly cannot assist in this consideration. These reports do not assess Mr Duffy’s conditions as stabilised and permanent. Accordingly I find that the conditions cannot be assessed under the Impairment Tables. As a consequence, Mr Duffy’s impairment cannot be assessed at 20 points or more, as required by section 94(1) (b) of the Act.
As Mr Duffy does not satisfy all the provisions of section 94 of the Act, I find that he does not qualify for a disability support pension during the qualifying period. Accordingly, Mr Duffy’s application is not successful. However, there is nothing to prevent Mr Duffy submitting a new application for disability support pension at any time, particularly if he obtains and submits medical reports that support his claim to meet the provisions of the Act.
I affirm the decision under review. I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member.
......................[sgd]..................................................
Associate
Date of hearing 8 February 2012 Advocate for the Applicant Self-represented Advocate for the Respondent Mr Andrew Carson, Legal Division, Department of Human Services
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