Palumbo and Secretary, Department of Employment and Workplace Relations

[2006] AATA 1042

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1042

ADMINISTRATIVE APPEALS TRIBUNAL          № V2006/284

GENERAL ADMINISTRATIVE  DIVISION

Re:           SANTA PALUMBO

Applicant

And:SECRETARY,

DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal:       Miss E.A. Shanahan, Member

Date:19 October 2006

Place:Melbourne

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

(sgd) E.A. Shanahan

Member

SOCIAL SECURITY – disability support pension – chronic back and left shoulder pain – degenerative lumbar and cervical spinal disease – impairment rating of 10 points – undertaking educational training – decision affirmed.

Social Security Act 1991 s 94

REASONS FOR DECISION

19 October 2006  Miss E.A. Shanahan, Member

1.      The Tribunal provided an oral decision on the day of the hearing.  As the Tribunal doubted that Mrs S. Palumbo fully understood the decision and what further steps she needed to take, the Tribunal determined to provide written reasons for the decision in simple English.  Mrs Palumbo does not read or write English; but her children and friends are able to assist her in interpreting these reasons.

2.      Mrs Palumbo applied to Centrelink for a Disability Support Pension (DSP) on 4 August 2004.  Centrelink is the service delivery agent for the Secretary to the Department of Employment and Workplace Relations (the respondent).  Following medical assessments by Health Services Australia (HSA) on behalf of Centrelink, Mrs Palumbo’s impairment rating was assessed at 10 points.  An applicant for DSP needs 20 impairment points to be able to get DSP.  Therefore, her claim was rejected on 27 September 2004.  This decision of the primary decision maker was affirmed by the Social Security Appeals Tribunal (SSAT) on 1 March 2006. 

3.      In her application of 4 August 2004 Mrs Palumbo stated she suffered from chronic lower back pain, pain in the right leg and the left shoulder.  She has since developed neck pain (July 2005) and is awaiting surgery for varicose veins in both lower limbs. 

4.      Mrs Palumbo advised the Tribunal that the severity of her back pain had increased and her spinal mobility had reduced making her unfit for any form of work.  Until 1999 Mrs Palumbo worked sorting clothes for the Smith Family charitable organisation and before that she was a process worker.  She injured her back at work in 1984/1985.  As previously stated, she does not read or write English.  She completed primary education in Italy and migrated to Australia at the age of 20. 

5.      Mrs Palumbo has provided numerous certificates and reports from her general practitioner Dr Ch’ng and the Monash Medical Centre Rheumatology Clinic.  These reports outline her symptoms, her treatment and progress, and the results of tests, particularly the radiological investigations of her lumbar and cervical spine.  Neither Dr Ch’ng nor the Monash Medical Centre Rheumatology Clinic was prepared to carry out an assessment of Mrs Palumbo’s medical incapacity.  Therefore, the Tribunal and Mrs Palumbo had to rely on the assessments performed by HSA at the respondent’s request.

6.      Mrs Palumbo told the Tribunal that her pain and the limitation of movement in her spine had increased in the more than two year interval between the date she lodged her claim and the date of the hearing.  In addition, she had developed neck and arm pain with arm numbness and been found to have degenerative disease in the discs of her cervical spine.  Mrs Palumbo is currently in receipt of a newstart allowance.  In September 2006 Mrs Palumbo started English language classes at Swinburne TAFE.  She attends three days per week for four hours per day and says her English has improved.  She has been asked to increase her English lessons to 15 hours per week; but she does not believe she could cope with these hours. 

7.      In order to qualify for the DSP (s 94 of the Social Security Act 1991 (the Act)) Mrs Palumbo must have a physical condition that impairs her ability to work.  This condition must have been investigated, diagnosed and stabilised; and been assessed as likely to continue for at least two years.

8.      Mrs Palumbo satisfies this requirement in relation to her back and right leg pain due to degenerative lumbar spinal disease particularly that affecting the L5-S1 disc.

9.      Ms Palumbo has been assessed by two HSA doctors and two rehabilitation consultants who have performed work capacity assessments.  None have rated her impairment above 10 points.  Mrs Palumbo’s treating doctors have provided several reports to the effect that she can’t work and that she will remain disabled for more than two years.  However, none of the treating doctors have been prepared to conduct a formal impairment assessment. 

10. In the absence of any impairment assessment from her doctors, the Tribunal must rely on the formal assessments of 10 points lodged by Centrelink. And as the law requires a DSP applicant to have at least 20 impairment points, Mrs Palumbo does not satisfy the DSP requirements set out in the Act (s 94 1(b)). As a result, it is not necessary to consider the additional requirements of s 94 1(c) or s94 2. The Tribunal affirms the decision under review.

11.     Given Mrs Palumbo’s evidence that her lower back condition had deteriorated since she lodged her claim for the DSP and that she had also developed symptoms attributed to cervical spinal pathology, the Tribunal suggested that she lodge another application for the DSP and be medically re-assessed.  The respondent was asked to assist in explaining the process to Mrs Palumbo.

12.     Following the hearing, Mrs Palumbo attended the Administrative Appeals Tribunal Registry seeking assistance.  The Tribunal Member was made aware of her queries.  It would appear that she had been given advice regarding a back repayment issue (presumably an overpayment of a Social Security Benefit) and was confused given that her DSP claim was for back pain.  As Mrs Palumbo’s English is limited she requires further assistance and clarification of the issues from Centrelink. 

I certify that the twelve [12] preceding paragraphs are a true copy of the reasons for the decision herein of

Miss E.A. Shanahan, Member

(sgd)     Olympia Sarrinikolaou
  Clerk

Dates of Hearing:  19 October 2006

Date of Decision:  19 October 2006
Advocate for the applicant:          Nil – Self‑represented

Advocate for the respondent:       Mr P. Mentor, Centrelink Legal Services Branch