Peeters and Secretary, Department of Family and Community Services

[2000] AATA 280

DECISION AND REASONS FOR DECISION [2000] AATA 280

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1999/1119

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      BRUCE PEETERS
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Dr E K Christie, Member   

Date10 April 2000

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.  Mr. Peeters was not entitled to disability support pension at the time his application was made.       
  .

(Signed)       
  DR E K CHRISTIE
  MEMBER

CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – whether medical conditions fully investigated, treated and stabilised
Social Security Act 1991: s94(1)(2)

REASONS FOR DECISION

10 April 2000           Dr E K Christie, Member               

1. This is an application by Bruce Peeters for a review of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 14 September 1999 which affirmed a decision of an Authorised Review Officer made on 29 June 1999 to reject Mr. Peeters' claim for Disability Support Pension ("DSP").  In reaching its decision the SSAT concluded that Mr. Peeters "has a total impairment of 10 points and hence, fails to meet the criteria of Section 94(1)(b)".

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 ("the T documents"). Mr. Peeters represented himself at the hearing. Mr. N. Foster, a Departmental Advocate, represented the respondent.
   ISSUES TO BE DECIDED

3. Mr. Peeters applied for DSP on 30 March 1999 (T4 Folio p26).  The issues to be decided by the Tribunal were whether Mr. Peeters had an impairment rating equal to, or greater than, 20 points;  and if this was the case, whether Mr. Peeters had an ability to work, or to be retrained within the next two years.  There was no dispute that Mr. Peeters' L5 spondylosis was a long standing physical condition that had been investigated, treated and stabilised.

CONTENTIONS AND SUBMISSIONS OF THE PARTIES

1. Mr. Peeters said that he had no private doctor for 20 years.  Although he had seen Dr. Toft, who had prepared the Treating Doctor's Report, there had only been one consultation.

2. Mr. Peeters was referred by the Tribunal to other medical conditions raised at the SSAT hearing, that is:  knee, ankle, neck and hand conditions (T2, Folio p8).  Mr. Peeters said that he had not seen a doctor – general practitioner or specialist about any of these conditions.

3. The Tribunal was referred to a further Treating Doctor's Report – Dr. Hearnden, who had identified a further condition of "Personality Disorder", in addition to spondylothesis (20 January 2000).  Mr. Peeters said that there had been no follow-up consultations as to the treatment and stabilisation of the "Personality Disorder" condition.

4. In response to a Tribunal question, Mr. Peeters said that he had not seen a rehabilitation consultant, as noted by Dr. Toft, in order to determine some issues related to his work ability (see T5 Folio p70).

5. Mr. Peeters agreed with Mr. Foster's proposition that it was possible for him to do lighter work provided that he had some input into the nature of the work.

6. Mr. Foster referred to the medical report of  Dr. Lunz which assessed Mr. Peeters as having a total impairment rating of 10 points because of a loss of one-quarter range of movement and some associated pain (T10 Folio p94).  Mr. Foster said that there were no other medical reports to further evaluate Mr. Peeters' overall medical conditions in terms of making a total impairment rating.  The conditions relating to his knee, ankle, neck and hand had not been fully investigated, treated and stabilised.  In addition, Mr. Peeters' psychiatric condition of "personality disorder" identified in Dr. Hearnden's report (19 January 2000) had not been fully investigated, treated and stabilised.  Accordingly, Mr. Foster contended that the impairment assessment of 10 points was correct.

7. In terms of Mr. Peeters' continuing ability to work, Mr. Foster contended that the weight of medical opinion confirmed that Mr. Peeters had an ability to work.  Mr. Foster referred to the following reports to support this contention:

• Dr. Toft (T5, Folio p69 Question 8)

• Dr. Lunz (T10, Folio p100 last paragraph)

• Dr. Hearnden (Treating Doctor's Report, 19 January 2000 Question 8)

As a consequence of these medical reports, Mr. Foster submitted that Mr. Peeters had a continuing ability to work.

1. Mr. Foster concluded that, based on the medical evidence at the relevant time of Mr. Peeters application for DSP, ie 30 March 1999 to 30 June 1999, Mr. Peeters did not meet the 20 points impairment requirement;  also, Mr. Peeters had a continuing ability to work.  Therefore, the SSAT decision to not grant Mr. Peeters DSP was correct.
   THE LAW

2. The relevant legislation is the Social Security Act1991 ("the Act").

3. Section 94 of the Act has provisions for Qualification for Disability Support Pension – Continuing Inability to Work.

   "94(1) [Qualification – continuing inability to work]  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% or more under the Impairment Tables;  and

   (c)because of the impairment the person has a continuing inability to work;  and…."

   "94(2) [Meaning of 'continuing inability to work']  A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years;  and

   (b)either:

   (i)the impairment is of itself sufficient to prevent the person from undertaking education or vocational training or on-the-job training during the next 2 years;  or

   (ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training – such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years."

CONSIDERATION OF THE ISSUES

1. The objective of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times.

2. In terms of assessment of impairment, Schedule 1B of the Act provides:

   "4.  A rating [impairment points] 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.  The first step is thus to establish a working diagnosis based on the best available evidence."

1. In Mr. Peeters' case, the only medical condition which had been investigated, treated and stabilised was his L5 spondylosis.  This condition had been assessed by Dr. Lunz at an impairment rating of 10 points.  None of the other medical conditions of Mr. Peeters (see paragraph 9) have been investigated, treated and stabilised at this stage and so cannot be assigned an impairment rating.  As a consequence, the only impairment rating which can be assigned for Mr. Peeters is 10 points.  As a result, Mr. Peeters does not meet the 20 point threshold to be granted a DSP.  This means Mr. Peeters' application for a DSP is unsuccessful.

2. Given this finding, the Tribunal has no need to consider whether Mr. Peeters has a continuing inability to work.

3. However, Mr. Peeters may well be eligible for a DSP in the future.  That is, when the medical conditions related to his ankle, knee, hand and neck – as well as his psychiatric condition of personality disorder, have been fully investigated, treated and stabilised in order for an impairment rating to be assigned.  This will require him to undertake medical consultations over a period of time.  At some future stage and assuming these medical conditions can be fully investigated, treating and stabilised to allow an impairment rating to be made, Mr. Peeters could consider making a new application for DSP as his total impairment points may exceed the threshold of 20 points.

4. Based on the above reasons, the Tribunal affirms the decision under review.  Mr.  Peeters was not entitled to Disability Support Pension at the date his claim was made or within three months of this date.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member

Signed:         .....................................................................................
           R. Hayes, Associate

Date/s of Hearing  10 April 2000
Date of Decision  10 April 2000
Applicant  Mr. Peeters, himself
Counsel for the Respondent    Mr. N. Foster, Departmental Advocate