Oxley and Secretary to the Department of Family and Community Services

[2002] AATA 1265

DECISION AND REASONS FOR DECISION [2002] AATA 1265

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/943
GENERAL ADMINISTRATIVE DIVISION
  Re:         PETER OXLEY
  Applicant
  And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             6 December 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review. 

(sgd) G.D. Friedman
  Member
SOCIAL SECURITY - application for disability support pension - tinnitus, anxiety, shoulder and arm pain - whether impairment is of 20 points
Social Security Act 1991 s94(1), Schedule 1B

REASONS FOR DECISION

6 December 2002  G.D. Friedman, Member

1. This is an application by Peter Oxley (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 6 August 2002.  The SSAT affirmed a decision of an authorised review officer at Centrelink made on 24 June 2002.  The authorised review officer had affirmed a decision dated 7 June 2002 to refuse the applicant's claim for disability support pension (DSP) because the applicant's impairment rating was insufficient to meet the criteria.

2. At the hearing of this matter on 2 December 2002 the applicant represented himself and Ms P. D'Cunha, a Centrelink advocate, represented the Secretary to the Department of Family and Community Services (the respondent).  At the commencement of the hearing the applicant told the Tribunal that he had been unsuccessful in obtaining legal representation and was not prepared to give written or oral evidence in the absence of such representation.  He then left the hearing and the matter proceeded in his absence.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T13) and a written Statement of Facts and Contentions dated 22 November 2002 submitted on behalf of the respondent.   
   BACKGROUND

4. The applicant applied for DSP on 7 May 2002 on the basis that he was unable to work as a result of tinnitus, anxiety, and left shoulder and arm pain.  On 7 June 2002 Centrelink refused the claim because his impairment rating was below 20 points, according to a medical assessment by Health Services Australia (HSA).  After the authorised review officer affirmed the decision, the applicant sought review by the SSAT on 8 July 2002.  Following the decision of the SSAT, the applicant lodged an application with the Tribunal on 3 September 2002.
   EVIDENCE

5. In evidence to the SSAT the applicant said that he had worked as a toolmaker for more than 20 years, and in about 1996 his employer moved to new premises.  He stated that he found the new workplace extremely noisy and he developed tinnitus, stress and anxiety.  He told the SSAT that he was unable to concentrate and took considerable sick leave, after which he was retrenched in 1999.

6. The applicant stated that, in addition to the continuous ringing sound in his ears, he suffers pain in his left shoulder, elbow and hand, and has difficulty sleeping.  He said that, because of his poor concentration, headaches and stress, he is unable to work.  The applicant explained to the SSAT that he is not receiving treatment as he is reluctant to seek medical advice.

7. In a report dated 9 May 2002, Dr D. Ross, the applicant's treating doctor, concluded that the applicant suffered from tinnitus and anxiety, and indicated that the applicant felt unable to work.

8. In a report dated 6 June 2002, Dr D. Panagiotopoulos of HSA found that the applicant suffered from tinnitus, mild anxiety, and left shoulder and arm pain.  She stated that the applicant has received no treatment and has not consulted a specialist regarding tinnitus.  Dr Panagiotopoulos provided an opinion that the applicant did not appear anxious and was not significantly depressed.  She concluded that the applicant requires re-training but is fit for full-time light work in a quiet environment.  She described the symptoms of tinnitus as mild to moderate and assigned a rating of 10 points (Table 20).  The anxiety condition was described as mild with described symptoms of nausea, chest pain and intermittent vomiting and was given a nil impairment rating (Table 6).  Dr Panagiotopoulos did not assign a rating to the shoulder and upper arm disorder because the condition was considered temporary.
   CONSIDERATION OF THE ISSUES

9. Section 94 of the Social Security Act 1991 (the Act) provides:

   94.(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

   (d)       the person has turned 16; and

   (e)the person either:

   (i)is an Australian resident at the time when the person first satisfies paragraph (c); or

   (ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

   (iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

   (A)is not an Australian resident; and

   (B)is a dependent child of an Australian resident;

   and the person becomes an Australian resident while a dependent child of an Australian resident.

Schedule 1B of the Act provides:

…

4.A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.

1. In reaching its decision, the Tribunal takes into account the written material and submissions made by the respondent at the hearing. The Tribunal accepts that the applicant suffers from tinnitus, anxiety, and left shoulder and arm pain, and finds that the applicant satisfies s94(1)(a) of the Act.

2. With respect to s94(1)(b) of the Act, the Tribunal notes the medical evidence and accepts that tinnitus suffered by the applicant is a permanent condition. The Tribunal concludes that the assessment of 10 points by Dr Panagiotopoulos is appropriate. The Tribunal takes into account that Dr Panagiotopoulos found the anxiety condition to be permanent. However, the Tribunal finds that the condition has not been investigated, treated and stabilised, so it is not a permanent condition and an impairment rating cannot be assigned. The Tribunal notes the assessment by Dr Panagiotopoulos that left upper limb pain is poorly defined and is intermittent, and the Tribunal finds that this condition is not permanent, and therefore an impairment rating cannot be assigned.

3. For these reasons, the Tribunal finds that the applicant's impairment is not of 20 points or more under the Impairment Tables, and he does not satisfy s94(1)(b) of the Act and therefore cannot satisfy s94(1). Accordingly, there is no necessity for the Tribunal to determine whether the applicant has a continuing inability to work under s94(1)(c) of the Act.
   DECISION

4. The Tribunal affirms the decision under review.

   I certify that the eleven [11] preceding paragraphs are a true copy of the reasons for the decision of:
   G.D.Friedman, Member

   (sgd)       Olympia Sarrinikolaou
                 Clerk

   Date of hearing:  2 December 2002

   Date of decision:  6 December 2002
   Advocate for applicant:               Self-represented
   Advocate for respondent:            Ms P. D'Cunha, Centrelink