McKenzie and Department of Family and Community Services

[2002] AATA 406

DECISION AND REASONS FOR DECISION [2002] AATA 406

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/1048
GENERAL ADMINISTRATIVE  DIVISION
  Re:         BRUCE WILLIAM McKENZIE
  Applicant
  And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             22 May 2002
Place:            Melbourne

Decision:For the reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) G.D. Friedman
  Member

1. SOCIAL SECURITY - Disability Support Pension - eligibility - whether impairment 20 points or more - continuing ability to work
   Safety, Rehabilitation and Compensation Act 1988
   Social Security Act 1991 s94(1)(a), 94(1)(b), 94(1)(c), Schedule 1B

REASONS FOR DECISION

22 May 2002  G.D. Friedman, Member

1. This is an application for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 26 July 2001, which affirmed decisions of Centrelink dated 14 June 2001 and 26 June 2001. In those decisions Centrelink refused the applicant's claim for Disability Support Pension (DSP) because the applicant's impairment was not 20 points or more under the Impairment Tables set out in Schedule 1B of the Social Security Act 1991 (the Act).

2. At the hearing of this matter on 22 May 2002 the applicant represented himself and Ms P. D'Cunha, advocate with Centrelink, represented the respondent.
   BACKGROUND

3. The facts are not generally in dispute.  On 1 October 1998 the applicant applied for DSP after receiving Newstart Allowance from July 1997 until February 1999, and AUSTUDY from February 1999 until February 2000.  On 13 November 1998 the examining medical officer from Health Services Australia (HSA) assigned an impairment rating of nil points for gout, and stated that the applicant could return to work after three months.

4. In a report that accompanied the applicant's claim for DSP, dated 1 June 2001, Dr B. Teperman, the applicant's treating doctor, diagnosed gout and an injury to the left knee. Dr Teperman stated that the gout was temporary and that the applicant could resume work in six months.  In a further report dated 14 June 2001, Dr Teperman stated that the applicant would be unable to return to full-time work.  In its decision the SSAT assigned 5 impairment points for the 2001 gout claim, and a nil rating for the other claims.  On 29 November 2001 Dr Teperman assessed the left knee at 10 impairment points using Table 4, and stated that the applicant could possibly cope with part-time work, up to half of the working week.
   EVIDENCE

5. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T36).   

6. The applicant gave oral evidence to the Tribunal that although his impairment had not been assessed at 20 or more points under the Impairment Tables, his condition has deteriorated and he has a continuing inability to work as defined in the Act.  He produced a letter from the Department of Defence written in 1998, in which the Department accepted liability for injuries sustained whilst the applicant was undertaking military service.  He said that the letter referred to possible entitlements under the Safety, Rehabilitation and Compensation Act 1988.  The applicant also stated that Centrelink had refused to provide an updated medical assessment, and that he did not have the financial resources to meet the cost of such an assessment. 

7. The applicant stated further that Centrelink has treated him unfairly by refusing to accept a medical certificate from his treating doctor in relation to Newstart Allowance.  He stated that Centrelink had withheld documents from him and had otherwise been uncooperative and unhelpful because of his persistent inquiries.
   CONSIDERATION OF THE ISSUES

8. Section 94(1) of the Act sets out the criteria for DSP. Section 94(1)(a) provides that a person must have a physical, intellectual or psychiatric impairment. The Tribunal accepts the medical evidence that the applicant suffers from gout and an injury to his left knee. Therefore the Tribunal finds that he satisfies s94(1)(a).

9. Section 94(1)(b) provides that the person must have an impairment of 20 points or more under the Impairment Tables. To be given a rating under the Impairment Tables a condition must have been investigated, treated and stabilised and be likely to last for more than the next two years. In relation to the claim lodged on 1 October 1998 the Tribunal takes into account the medical reports and the oral evidence given by the applicant. There is no evidence that at 1 October 1998 the applicant was being treated for gout such that an impairment rating could be assigned. For the left knee, taking into account the report dated 13 November 1998 from Dr J. Lane, HSA, and the mild interference to the applicant's ability to walk, the Tribunal finds that the applicant's impairment at 1 October 1998 was not 20 points or more.

10. In relation to the claim made on 1 June 2001, the Tribunal notes that the applicant was taking medication for gout.  In view of the medical reports the Tribunal finds that there is no evidence that at the relevant date there was an impairment rating of 20 points or more.  For the left knee, the Tribunal notes that in his report dated 14 June 2001 Dr Teperman stated that the applicant would be unable to walk at times.  In his report dated 29 November 2001 Dr Teperman assessed the impairment as 10 impairment points.  In view of the medical and oral evidence the Tribunal finds that the applicant's impairment at 1 June 2001 was not 20 points or more.

11. For these reasons the applicant is unable to satisfy s94(1)(b) for either application. So there is no necessity for the Tribunal to make a decision on whether the applicant has a continuing inability to work as set out in s94(1)(c).
    DECISION

12. The Tribunal affirms the decision under review.

I certify that the twelve [12] preceding paragraphs are a true copy of the reasons for the decision of:
G.D.Friedman, Member

(sgd)       Olympia Sarrinikolaou
              Clerk

Date of hearing:  22 May 2002
Date of decision:  22 May 2002
Advocate for applicant:               Nil - Self-represented
Advocate for respondent:            Ms P. D'Cunha, Centrelink