MBRF and Secretary, Department of Social Services
[2014] AATA 749
•15 October 2014
[2014] AATA 749
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/3270
Re
MBRF
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh
Date 15 October 2014 Place Perth
The Tribunal affirms the decision under review.
......(Sgd) CR Walsh ..........................................
Senior Member CR Walsh
CATCHWORDS
Social security – disability support pension – the applicant’s impairments (being generalised musculoskeletal pain and depression) were not fully diagnosed, treated and stabilised on the date he claimed DSP, or within 13 weeks thereafter – applicant’s impairments did not attract 20 points or more under the “Impairment Tables” – decision under review affirmed
LEGISLATION
Social Security Act 1991 – s 94(1)(a) – s 94(1)(b) – s 94(1)(c)
Social Security (Administration) Act 1999 – clauses 3 & 4 of Part 2 of Schedule 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – s 6(3) – s 6(4) – s 6(5) – s 6(6) – s 6(7) – Table 2 – Table 3 – Table 4 – Table 5
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606
REASONS FOR DECISION
Senior Member CR Walsh
15 October 2014
INTRODUCTION
MBRF seeks a review of a decision of the Social Security Appeals Tribunal (SSAT), dated 5 June 2014, affirming the decision of a Centrelink Authorised Review Officer (ARO), dated 24 April 2014, to reject MBRF’s claim for Disability Support Pension (DSP) on the basis that he did not satisfy all of the requirements for qualification for DSP, in s 94 of the Social Security Act 1991 (SSA), on the date he claimed DSP or within 13 weeks thereafter.[1]
[1] The ARO’s decision affirmed an earlier decision of a Centrelink officer, dated 25 September 2013.
Specifically, the SSAT decided that MBRF had “impairments” arising from generalised musculoskeletal pain (due to degenerative changes and injury following a car accident) and depression (and, therefore, he satisfied s 94(1)(a) of the SSA) but that those impairments did not attract 20 points or more under the “Tables for Assessment of Work Related Impairment” (Impairment Tables) in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Determination) on the date he claimed DSP or within 13 weeks thereafter, as required by s 94(1)(b) of the SSA, as the impairments were not fully diagnosed, treated and stabilised at that time.
BACKGROUND
On 12 November 2011, MBRF was involved in a motor vehicle accident in which he sustained bodily injuries (Car Accident).
On 11 October 2012, MBRF settled with the Insurance Commission of Western Australia (ICWA), and the other party to the Car Accident, in respect of his claim for damages for bodily injuries resulting from the Car Accident (Settlement Agreement). The Settlement Agreement provided that the ICWA would pay MBRF $70,000 in damages, all reasonable medical and pharmaceutical expenses incurred by him before settlement as a result of the Car Accident and costs of $10,000. The Settlement Agreement also stated:
4.I acknowledge that I will receive the settlement money after the Insurance Commission of Western Australia has complied with its obligations under the Health and Other Services (Compensation) Act 1995 (Medicare Australia) or the Social Security Act 1991 (Centrelink). Consequently I understand that:
4.1I may be liable to repay money to Medicare Australia and/or Centrelink from the settlement money.
4.2The Insurance Commission of Western Australia must deduct this money from the settlement and pay it to Medicare Australia and/or Centrelink.
A letter from Centrelink to MBRF, dated 16 October 2012, states that MBRF was entitled to a lump sum compensation payment totalling $80,536.75 under the Settlement Agreement. However, Centrelink asked the ICWA to pay it $11,502.83 from the lump sum amount for social security payment made to MBRF in a preclusion period (from 12 November 2011 to 5 October 2012) before paying MBRF the balance.
On 27 May 2013, MBRF contacted Centrelink regarding his intention to claim DSP and attended an “Employment Services Assessment” (ESA) at Centrelink. In their “Employment Services Assessment Report” the ESA assessors (a Registered Psychologist and a Physiotherapist) stated that MBRF suffered from “temporary” medical conditions of chronic pain and depression and that these conditions were verified by medical evidence (ESA Report). The ESA Report is discussed in further detail below under the heading “Medical evidence”.
By “Claim for Disability Support Pension or Sickness Allowance” form, dated 5 June 2013 (and lodged with Centrelink on 6 June 2013), MBRF claimed DSP from Centrelink (DSP Claim).
In the DSP Claim, MBRF stated that he suffered from the following “disabilities, illnesses or injuries” – depression, back, neck, right wrist, both knees, chest and headache, and that the medication prescribed by his doctor to treat these disabilities, illnesses or injuries affected his ability to work by making it hard for him to “think clearly”.
On 16 August 2013, MBRF attended a “Job Capacity Assessment” (JCA) with a Registered Psychologist, a JCA Assessor, and an Accredited Exercise Physiologist at Centrelink. In the “Job Capacity Assessment Report”, dated 12 September 2013 (JCA Report), the JCA Assessor found that MBRF suffered from the permanent condition of chronic pain and that the condition was verified by medical evidence and fully diagnosed by an appropriately qualified medical professional but that the condition was not fully treated or fully stabilised. The JCA Report is discussed in further detail below, under the heading “Medical evidence”.
On 25 September 2013, a Centrelink officer rejected the DSP Claim on the basis that MBRF did not have an impairment which attracted a rating of 20 points or more under the Impairment Tables (Original Decision).
MBRF subsequently requested an internal review of the Original Decision by a Centrelink ARO and, on 24 April 2014, the ARO affirmed the Original Decision (ARO Decision). In the ARO Decision, the ARO found that MBRF had the following conditions – generalised body aches and pain, gastro oesophageal reflux disease, depression, asthma, hypercholesterolaemia and hypertension. However, the ARO found that as none of these conditions had been fully diagnosed, fully treated and fully stabilised at the time of the DSP Claim, or within 13 weeks thereafter, no impairment rating could be assigned to any of the conditions under the Impairment Tables. Consequently, the ARO found that MBRF did not have an impairment rating of 20 points or more under the Impairment Tables as required by s 94(1)(b) of the SSA.
On 1 May 2014, MBRF applied to the SSAT for a review of the ARO Decision.
On 5 June 2014, the SSAT affirmed the ARO Decision (SSAT Decision). The SSAT Decision stated that, on the date of the DSP Claim, MBRF suffered from impairments due to pain in his back, neck, right upper limb and both knees due to degenerative changes and injury and from depression, such that he satisfied s 94(1)(a) of the SSA. The SSAT found that as none of the impairments had been fully diagnosed, fully treated and fully stabilised they were not “permanent” impairments which attracted any ratings under the Impairment Tables.
On 25 July 2014, MBRF applied to this Tribunal for a review of the SSAT Decision.
ANALYSIS
Relevant period
A person’s qualification for DSP is required to be assessed based on his or her relevant impairment as at the date that the person claims DSP, or within 13 weeks of that date: see clause 4 of Part 2 of Schedule 2 to the Social Security (Administration) Act 1999. [2]
[2] Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 at [7] to [8] and Fanning and Secretary, Department of Social Services [2014] AATA 447 at [33], which was cited with approval in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Consequently, MBRF’s qualification for DSP is to be assessed based on his impairments in the period from 6 June 2013 (being the date the DSP Claim was lodged at Centrelink) to 5 September 2013 (being 13 weeks after the date the DSP Claim was made) (Relevant Period).
Medical evidence
The following medical evidence is relevant to the DSP Claim as it relates to MBRF’s impairments in the Relevant Period. Any medical evidence provided by MBRF concerning his impairments after the Relevant Period, is irrelevant to this application and cannot be considered by the Tribunal: see paragraphs 15 and 16 above.
Dr Krieser Report
In a report on an MRI of MBRF’s whole spine, undertaken on 17 March 2012, Dr Michael Krieser noted disc degeneration at several levels in the cervical and lumbar spine and stated:
C6/7: …There is a small broadbased posterior disc protrusion superimposed on a shallow circumferential disc/osteophyte ridge complex. There is mild to moderate narrowing of the spinal canal and mild narrowing of both foramina.
…
L3/4: Desiccation and mild disc narrowing is present. There is a shallow circumferential disc bulge with mild right foraminal prominence and a posterior annular fissure noted. The right foramen is mildly narrowed without evidence of right L3 nerve root impingement. The spinal canal and left foramen are capacious.
L4/5: Desiccation without disc narrowing is present. There is a shallow posterior disc bulge with small annular fissures. No significant narrowing of the spinal canal or foramina. (Dr Krieser Report)
Dr Noonan Report
In a report, dated 2 April 2012, on an MRI of MBRF’s right wrist, Dr Richard Noonan noted:
·minor radiocarpal joint effusion, possibly from synovitis;
·a reduction in bone marrow oedema involving the distal radius;
·that “the radial styloid process fracture has united without deformity”; and
·a “reduction in the extent of bone marrow oedema within the radial aspect of the lunate”. (Dr Noonan Report)
Dr Taiwo Report
In an undated Medical Report in support of MBRF’s claim for DSP, Dr Olufemi Taiwo reported MBRF’s main medical condition as being “generalized body aches and pain post MVA” (Dr Taiwo Report). Dr Taiwo stated that this diagnosis was supported by the specialist opinion of Dr Ben Kimberley, Orthopaedic Surgeon and that MBRF’s current treatment included Brufen, Panadeine Forte and Panadol Osteo and future or planned treatment included a suggested right shoulder acromioplasty.
Dr Taiwo listed MBRF’s current symptoms as “persistent generalized body aches and pains right shoulder, right elbow, right wrist bilateral knees, cervical and lumbar spine, chest pain”. However, Dr Taiwo did not provide any information in relation to the impact of this condition on MBRF’s ability to function, nor did he provide any information in relation to how long the condition was expected to last.
Dr Taiwo also recorded that MBRF suffered from additional medical conditions that are generally well-managed and cause minimal impact on function, being gastro oesophageal reflux disorder (GORD) and depression.
Dr Kimberley Letters
(i) First letter to Dr Taiwo
In a letter dated to Dr Taiwo, dated 21 May 2012, Dr Kimberley reported that a pre-existing radial fracture in MBRF’s right wrist had continued to heal adequately and that there was some fluid within the wrist joint, which may represent a sprain or minor cartilage damage. Dr Kimberley also noted that MBRF had been referred to, but had not yet seen, a neurosurgeon in relation to this condition.
(ii) Letter to Friedman Lurie Singh & D’Angelo
In a letter to personal injuries lawyers, Friedman Lurie Singh & D’Angelo, dated 25 June 2012, Dr Kimberley stated that MBRF had injured his right knee and right shoulder in his motor vehicle accident and would benefit from surgery. Dr Kimberley also identified “at least soft tissue and minor joint injuries” to MBRF’s cervical and lumbar spine, and stated that some of the degeneration within the lumbar spine may have resulted from the car accident. Dr Kimberley stated that the MRI of MBRF’s right wrist shows no new injury other than a joint effusion, and suggested that this indicated damage to the joint. Dr Kimberley further noted that he had referred MBRF to a neurosurgeon.
(iii) Letter to John Liddell
In a letter to Mr John Liddell, dated 28 June 2012, Dr Kimberley stated that his examination of MBRF’s spine had identified moderate stiffness with no localising neurological signs, and pain in the mid lumbar and cervical spine.
(iv) Second letter to Dr Taiwo
26.In a second letter to Dr Taiwo, dated 3 July 2012, Dr Kimberley identified that an ultrasound of MBRF’s right elbow shows a small tear in the tendon, and a CT scan of his left knee does not show any major pathology. Dr Kimberley also referred to possible surgery to MBRF’s right shoulder and right knee. Dr Kimberley stated that he was reviewing physio options for MBRF.
(v) Third letter to Dr Taiwo
In a third letter to Dr Taiwo, dated 5 July 2012, Dr Kimberley identified a possible bone chip within MBRF’s wrist. Dr Kimberley also confirmed an effusion in the wrist joint, and stated MBRF had continuing pain in the elbow, right shoulder, and both knees. Dr Kimberley expressed the need for MBRF to be reviewed by a spinal specialist and seek physio treatment in the near future.
(vi) Fourth letter to Dr Taiwo
In a fourth letter to Dr Taiwo, dated 6 August 2012, Dr Kimberley stated that he had reviewed MBRF and identified ongoing pain within the right shoulder, right elbow, right wrist as well as the knees, and cervical and lumbar spine. Dr Kimberley also noted that MBRF had decided not to undergo an assessment of his spine by a neurosurgeon, nor had he proceeded with recommendation physiotherapy. Dr Kimberley also noted that surgery on the shoulder and right knee may be beneficial as well as arthroscopy of the wrist to assess ongoing pain.
(vii) Letter to Centrelink
In a letter to Centrelink, dated 7 August 2012, Dr Kimberley indicated that MBRF had problems with his right shoulder, both knees, lumbar and cervical spine. Dr Kimberley indicated that MBRF was not, at that point, fit to return to work duties and would not be fit to return to work in the foreseeable future as surgery was planned.
(viii) Letter to overseas specialist
In a letter to an overseas specialist, dated 6 November 2012, Dr Kimberley summarised MBRF’s injuries to date. In addition to summarising the symptoms previously identified, Dr Kimberley stated that MBRF had been complaining of neck pain and headaches (Dr Kimberley Letters).
Mr Somobwana letter
By letter dated 25 February 2013, Jamadari Somobwana, of the Somobwana Herbal Clinic in Mombasa, referred to medication provided to MBRF by the clinic.
Dr Wong letter
By letter dated 16 July 2012, Dr George Wong indicated that he was unable to see MBRF because of limitations that MBRF had marked on his Privacy Act Consent Form.
ESA Report
As stated above (in paragraph 6), on 27 May 2013, MBRF attended an ESA which was conducted by a registered psychologist with contribution from a physiotherapist. The ESA assessor stated that MBRF suffered from chronic pain and depression, both of which were verified by medical evidence and considered to be temporary. The ESA assessor assessed MBRF’s temporary work capacity, up to 27 August 2013, as 0-7 hours per week, and his baseline work capacity after that date as 30+ hours per week.
JCA Report
As stated above (in paragraph 9), on 16 August 2013 MBRF attended a JCA which was conducted by a registered psychologist (being the JCA Assessor) with contribution from an accredited exercise physiologist. In the JCA Report, the JCA Assessor stated that MBRF suffered from chronic pain which was verified by medical evidence and was fully diagnosed. The JCA Assessor noted that whilst this condition had previously been assessed as “temporary”, it was now assessed as “permanent” as it may have “developed into some sort of pain disorder given the time since initial injury”.
The JCA Assessor considered that MBRF’s condition of chronic pain was “fully diagnosed”, but not fully treated or fully stabilised, as MBRF had not received optimal treatment and may benefit from physio/exercise therapy, more suitable pharmacological management and/or a pain management program. The JCA Assessor also noted that a neurosurgeon consult was still pending and that MBRF was awaiting surgery. As MBRF had no condition that was “fully treated” and “fully stabilised”, no impairment rating could be recorded.
In the JCA Report, the JCA Assessor stated that MBRF’s temporary work capacity, up to 11 March 2014, was 0-7 hours per week and that his baseline work capacity, after that date, was 15-22 hours per week. The JCA Assessor further stated that MBRF’s baseline work capacity was reduced to the “generalised body aches and pains which adversely impacts his endurance, manual handling, mobility and capacity to bend, lift and carry” and that MBRF’s capacity for work within 2 years with intervention would increase to 30+ hours per week.
QUALIFICATION FOR DSP
The requirements for qualification for DSP are set out in s 94 of the SSA, which states:
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
…
Impairment – s 94(1)(a)
It is common ground that MBRF had “impairments” within the meaning and for the purposes of 94(1)(a) of the SSA in the Relevant Period, being generalised musculoskeletal pain (due to degenerative changes and injury from the Car Accident), being a physical impairment, and depression, being a psychiatric impairment.
What is in dispute, and what the Tribunal must consider, is whether in the Relevant Period MBRF’s impairments attracted 20 points or more under the Impairment Tables, as required by s 94(1)(b) of the SSA. If “yes”, the Tribunal must then consider whether MBRF had a “continuing inability to work” within the meaning and for the purposes of s 94(1)(c) of the SSA.
Impairment is of 20 points or more under the Impairment Tables – s 94(1)(b)
An impairment rating can only be allocated to an impairment, for the purposes of satisfying s 94(1)(b) of the SSA, if:
(i)the condition causing the impairment is “permanent”; and
(ii)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years: see s 6(3) of the Impairment Determination.
Section 6(4) of the Impairment Determination states that a condition is “permanent” if:
(a)the condition has been “fully diagnosed” by an appropriately qualified medical practitioner;
(b)the condition has been “fully treated”;
(c)the condition has been “fully stabilised”; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
The phrases “fully diagnosed” and “fully treated” are defined in s 6(5) of the Impairment Determination as follows:
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraph 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition, and
(b)what treatment or rehabilitation has occurred in relation to the condition, and
(c)whether treatment is continuing or is planned in the next 2 years. [Emphasis added]
The phrase “fully stabilised” is defined in s6(6) of the Impairment Determination as follows:
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment. [Emphasis added]
The phrase “reasonable impairment” is defined for the purposes of s 6(6) of the Impairment Determination in s 6(7) of the Impairment Determination as follows:
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person. [Emphasis added]
(i) Generalised musculoskeletal pain
MBRF’s generalised musculoskeletal pain, affecting his cervical and lumbar spine, right wrist, right elbow, right shoulder and both knees, has been fully diagnosed by Dr Taiwo in the Dr Taiwo Report (see paragraphs 20 - 21 above) and Dr Taiwo’s diagnosis has been confirmed by Dr Kimberley, who is an orthopaedic surgeon (see the Dr Kimberley Letters in paragraphs 23 - 30 above). Further, the Dr Krieser Report (discussed in paragraph 18 above) confirms that MBRF has conditions with his cervical and lumbar spine. Based on the medical evidence it is clear that MBRF’s generalised musculoskeletal pain was “fully diagnosed” in the Relevant Period.
In addition, the JCA Assessor stated in the JCA Report that according to the contributing assessor, MBRF “would most definitely benefit from physio/exercise therapy, more suitable pharmacological management and or a pain management program or at least clinic” (see paragraphs 34 - 36 above), which is consistent with Dr Kimberley’s advice that MBRF would benefit from treatment by a physiotherapist, chiropractor or exercise physiologist: see the Dr Kimberley Letters in paragraphs 23 - 30 above.
Further, in relation to his treatment for his generalised muscoskeletal pain, MBRF told the SSAT:
·he had some physiotherapy but it was too painful, so he did not continue with it;
·prior to the DSP Claim, he travelled to Africa where he had physiotherapy and other treatment “which was wonderful”;
·he had been on a range of medications for his back, taking different ones at different times; and
·he needed surgery on his right shoulder but could not have this done until someone from “home” could come to Australia to care for him.
Based on the medical evidence, although “fully diagnosed” MBRF’s generalised musculoskeletal pain cannot be considered to be “fully treated” and “fully stabilised” in the Relevant Period. If MBRF further explores physiotherapy or exercise therapy options, consults a neurosurgeon and has the recommended surgery, his condition may improve.[3] Since MBRF’s generalised musculoskeletal pain cannot be considered to be “fully treated” and “fully stabilised” in the Relevant Period (pursuant to sections 6(3) and (4) of the Impairment Tables) no impairment rating can be assigned for this impairment under the Impairment Tables in the Relevant Period.
[3] MBRF’s generalised pain involves pain in the arms, legs and spine. Table 2 of the Impairments Tables, titled “Upper Limb Function” is the appropriate Table to use where a person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms. Table 3 of the Impairment Tables, titled “lower Limb Function” is the appropriate Table to use where a person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet. Table 4 of the Impairment Tables, titled” Spinal Function”, is the appropriate Table to use where a person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck. Consequently, if assessed for an impairment rating, MBRF’s arm pain would be assessed under Table 2, his leg pain would be assessed under Table 3 and his spinal pain would be assessed under Table 4.
(ii) Depression
The Dr Taiwo Report indicates that MBRF suffered from depression but that this condition was generally well-management and caused limited or minimal impact on his ability to function: see paragraph 22 above. The ESA Report states that MBRF suffered from depression which was verified by medical evidence and assessed as “temporary”: see paragraph 33 above. Further, a number of Centrelink “Medical Certificates” relating to the Relevant Period document MBRF’s short term capacity to work and indicate that MBRF suffers from depression.
Table 5 of the Impairment Determination, titled “Mental Health Function”, is the Impairment Table used to assign an impairment rating to an impairment where a person has a permanent condition resulting in functional impairment due to a mental health condition.
The “Introduction” to Table 5 of the Impairment Tables contains the following mandatory requirement:
· The diagnosis of the condition [i.e. the mental health condition] must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
· Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
There is no evidence establishing that MBRF has consulted a psychiatrist or a clinical psychologist. In the absence of evidence of a diagnosis being made or confirmed by a psychiatrist or clinical psychologist, MBRF’s depression cannot be considered to be “fully diagnosed” for the purposes of s 6(3) and (4) of the Impairment Determination. Further, MBRF’s refusal to undergo counselling, or to consult a specialist for treatment also means that his depression cannot be considered to be “fully treated” and “fully stabilised” for the purposes of s 6(5) and (6) of the Impairment Determination. Since MBRF’s depression cannot be considered to be “fully diagnosed, treated and stabilised”, it cannot be assigned a rating under Table 5 of the Impairment Determination.
(iii) Conclusion on impairment ratings
For the above reasons, in the Relevant Period MBRF’s generalised musculoskeletal pain had been “fully diagnosed” but not “fully treated” and “fully stabilised” and his depression had not been “fully diagnosed”, “fully treated” and “fully stabilised”. As such, MBRF’s impairments could not be assigned any impairment rating under the Impairment Tables.
It follows that, in the Relevant Period, MBRF did not satisfy s 94(1)(b) of the SSA, which requires that a person’s impairment(s) be assigned an impairment rating of 20 points or more. Consequently, the DSP Claim must fail.
Continuing inability to work
Since the Tribunal finds that none of MBRF’s impairments could be assigned an impairment rating of 20 points or more under the Impairment Tables in respect of the Relevant Period, it is unnecessary for it to consider whether MBRF has a “continuing inability to work” within the meaning and for the purposes of s 94(1)(c) of the SSA or if he satisfies the other requirements for qualification for DSP, in s 94 of the SSA, during the Relevant Period.
MBRF’s concerns
In summary, MBRF told the Tribunal:
· He came to Australia in 2004 for a better life and future. After arriving in Australia, he did wonderful things for the Australian community (such as helping with bush fires, donating equipment and books to schools, charity work and the like) and that he dreamed of making further contributions to the Australian community and economy;
· In 2001, he was involved in a car crash with a drunk driver and he was lucky to be alive. At the time of the car crash, he was studying. However, as a consequence of the injuries he sustained in the car crash, he was no longer able to study or work in any gainful employment. He said that in such circumstances the Government had a “duty of care” to help him and pay him DSP. He said that the way he had been treated by the Government was “unacceptable” and “torturous” and that it made him “sick”;
· He said that whilst he did not want “apportion blame”, the government departments (including Centrelink) had been “playing political games” with him and lying to him. He also said that various Doctors that had treated him since the car crash had been “misbehaving” (for example, when he was admitted to the hospital in Joondalup, a Doctor there had tried to kill him and that some Doctors had refused to treat him because he refused to sign their consent forms without them first being amended to his satisfaction); and
· He stated that most of the settlement monies he received from the ICWA under the Settlement Agreement went to his lawyer and to Centrelink and that Centrelink should not have taken this money: refer to paragraphs 4 and 5 above. He asked the Tribunal to “save his life” and grant him DSP. He also asked that the money that was deducted from his settlement monies under the Settlement Agreement and paid to Centrelink (totalling $11,502.83) be reimburse to him.
The Tribunal is not the appropriate forum to address MBRF’s abovementioned concerns. Despite the broad power of the Tribunal to stand in the shoes of the Secretary, that power is exercisable only in relation to the decision under review. The Tribunal has no general review or decision-making power and does not substitute for the Secretary generally.[4] An avenue through which MBRF may pursue his concerns is the Commonwealth Ombudsman.
[4] See Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 175 per Brennan J.
DECISION
For the above reasons, the Tribunal affirms the SSAT Decision under review.
59. I certify that the preceding 58 (fifty eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh. …(Sgd) A Tran…………………….........
Dated 15 October 2014
Date of hearing 10 October 2014 Representative for the Applicant Self Representative for the Respondent Ms A Ladhams Solicitors for the Respondent Australian Government Solicitor
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