Petrella and Secretary, Department of Social Services (Social services second review)

[2016] AATA 267

Petrella and Secretary, Department of Social Services (Social services second review) [2016] AATA 267 (15 March 2016)

Division	GENERAL DIVISION
File Number(s)	2015/4187
Re	Ross Petrella
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Professor R McCallum AO, Member
Date	15 March 2016
Date of written reasons	22 April 2016
Place	Sydney

The decision under review is affirmed.

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Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension –– whether condition fully diagnosed, treated and stabilised – impairment ratings – continuing inability to work – whether spinal condition 20 points under the Impairment Tables – spinal condition awarded 10 points under the Impairment Tables – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Professor R McCallum AO, Member

22 April 2016

INTRODUCTION

1. A decision in these proceedings was delivered orally, together with reasons at the conclusion of the hearing. Written reasons have been prepared at the request of the Applicant. These written reasons were distilled from the transcript of the hearing.

2. The Applicant, Mr Ross Petrella, is in his mid-40s.  He was born in Italy and immigrated to Australia with his family when he was about one year old.  He attended school up until the end of Year 10, and took various jobs after that.  In 1995, he commenced employment with the Western Sydney Area Health Authority.  On about 3 April 2000, when he was working at the Blacktown Hospital, he suffered an injury to his back. 

3. In 2012, Mr Petrella was placed upon light duties.  On or about 28 July 2014, Mr Petrella suffered a panic attack at work.  On or about 3 December 2014, Mr Petrella was terminated in his employment.  On 16 January 2015, Mr Petrella claimed a Disability Support Pension, which I will refer to as “DSP”.  On his claim form he said that his primary impairment was L5-S1 disc degeneration, that is an impairment to the lower back which causes pain, and he has been on painkillers, on and off, ever since that injury, and is currently on painkillers.

4. Accompanying his claim form was a report from his general practitioner, Dr Rizk, dated 15 January 2015.  Dr Rizk also mentions the L5-S1 disc degeneration, but makes no other comments about Mr Petrella’s impairments.  On or about 16 February 2015, Mr Petrella attended a face-to-face job assessment.  The assessor held that Mr Petrella’s spinal condition was fully diagnosed, treated and stabilised and had a moderate effect upon Mr Petrella’s activities, and therefore assessed the spinal condition at 10 points under Table 4 of the Impairment Tables.  Table 4 is titled “Spinal Function”.  The assessor further held that there was insufficient evidence concerning Mr Petrella’s skin condition and mental health condition for the assessor to determine whether these impairments had been fully diagnosed, treated and stabilised at that time. 

5. On or about 19 February 2015, the Department of Human Services, which I will refer to as “the Department”, rejected Mr Petrella’s claim for DSP.  Mr Petrella sought review from an authorised review officer, which I shall call an “ARO”, but the ARO affirmed the decision under review.  Mr Petrella then sought review from the Social Services and Child Support Division of the Administrative Appeals Tribunal, which I shall call the “First Review”. 

6. In the First Review the Tribunal held that Mr Petrella’s spinal condition was fully diagnosed, treated and stabilised, and warranted an assessment of 10 points under Table 4 of the Impairment Tables.  The Tribunal agreed with the ARO, in holding that there was insufficient evidence of Mr Petrella’s skin and mental conditions to determine whether they had been fully diagnosed, treated and stabilised during the claim period. 

7. At paragraphs 18 and 19 of the First Review decision, details are set out about what Mr Petrella said he could and could not do because of his back condition.  Paragraphs 18 and 19 are as follows.

   18.Mr Petrella told the tribunal he moved from Mt Druitt to Bomaderry in March 2015 and lives alone in a unit. There is no yard work to be undertaken and he said he is able to undertake his self-care unaided and such household tasks as cooking, washing and cleaning, but must pace himself. He said he knows how to manage his back condition without exacerbating it.

   19.His oral evidence at hearing about his daily activities generally accords with information he had given to the job capacity assessor in February 2015. The tribunal notes the job capacity assessor reports (at folio 100) that Mr Petrella had said he could not bend to touch his toes but could (with difficulty): bend to knee level to pick up an object (depending on what the object was); undertake overhead activities. He had also said he could bend to pick up a light object from desk height and could drive for up to an hour at most.

8. Mr Petrella now appeals to this Tribunal. 

   THE LEGISLATION

9. The relevant legislation governing DSP is the Social Security Act 1991 (Cth) which I shall call the “SS Act”, and the Social Security (Administration) Act 1999 (Cth), which I shall call the “Administration Act”. The qualifications for DSP are set out in subsection 94(1). Subsection 94(1) relevantly provides as follows.

   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

   …

10. In brief, under section 94(1) of the SS Act I must be satisfied that Mr Petrella has impairments.

11. Then I must be satisfied that one or more of these impairments has been fully diagnosed, treated and stabilised. If I find that any of Mr Petrella’s impairments have been fully diagnosed, treated and stabilised, I am required to assess them under the Impairment Tables. If I find that Mr Petrella’s impairments warrant a total assessment of 20 points under the Impairment Tables, then I must go on to determine whether Mr Petrella has a continuing inability to work. And here I look at section 94(1) paragraph (c) subparagraph (i) and subsection 2 of the SS Act.

    THE 13 WEEK QUALIFYING PERIOD

12. There is a 13-week qualifying period which I must apply.  Schedule 2, clause 4(1) of the Administration Act sets out the 13-week period.

13. Briefly put, this clause says that I am required to assess Mr Petrella’s impairments in the 13-week period beginning on the day he applied for DSP.  Therefore I am required to determine Mr Petrella’s eligibility from 16 January 2015 to 17 April 2015, which I shall call the “claim period”.

    THE CONCESSIONS OF THE RESPONDENT

14. I now turn to the concessions of the Respondent. They are contained in paragraph 31 of the Respondent’s statement of facts and contentions. This paragraph is as follows.

    31.The Secretary accepts that during the relevant period the Applicant suffered from medical conditions. The Applicant, therefore satisfies paragraph 94 (1) (a) of the Act.

    THE EVIDENCE

15. Mr Petrella attended the hearing and gave sworn evidence.  I found Mr Petrella to be cooperative, and he answered all questions to the best of his ability.  Mr Petrella gave details about his life and his work, particularly at the Blacktown Hospital and beyond.  Mr Petrella said that he is able to lift an object from the height of the table, that he can undertake overhead activities, that he can turn his head side-to-side without moving his trunk.  Mr Petrella said that he can drive a car for an hour, although after an hour’s driving he has to stretch.

16. Mr Petrella said that he can dress himself, albeit slowly, but he does not need help.  He said that he can shower himself, and he can wash his hair.  He also said that he does not hang out his clothes outside because of birds, etc., but he hangs them on a clothes horse in his house.  Mr Petrella said that he came to the hearing today by train and that he took the escalators at Town Hall Station. He also said that he can manage stairs slowly, although perhaps he has to hang on to the banister. 

17. He was asked in cross-examination whether he could sit for more than 10 minutes, and he said that he could sit for about 40 minutes, albeit in some pain; that he does take painkillers continuously.  Mr Petrella also said that he has been seeing a clinical psychologist since about April last year, that is at the end of the claim period, and that treatment is ongoing, and he is hopeful of more success. 

    CONSIDERATION

18. I must determine whether Mr Petrella has impairments, whether they have been fully diagnosed, treated and stabilised, and then assess them under the Impairment Tables. 

    Mr Petrella’s spinal condition

19. I find, on examining all the evidence, and on the evidence of Mr Petrella, that Mr Petrella’s spinal condition was fully diagnosed, treated and stabilised during the claim period.  I note that that was also the view of the First Review.  It is now my job to assess that spinal condition under Table 4 of the Impairment Tables. 

20. Mr Petrella is a brave man.  He does live with some pain.  However, he can do most things himself, despite his back injury.  For him to show that he has a severe – that he reaches the level of severe under Table 4, that is 20 points, he must really show that he cannot sit for very long, cannot turn his head, and cannot undertake overhead activities.  It is clear to me, from the evidence that I have described in these reasons, that Mr Petrella can perform overhead activities, can turn his head, can dress himself, can wash his hair etc. 

21. I find that Mr Petrella’s spinal impairment has a moderate effect upon Mr Petrella’s activities and I assess it at 10 points under Table 4 of the Impairment Tables.

Mr Petrella’s Skin Condition

1. In relation to Mr Petrella’s skin condition, Mr Petrella gave evidence that a canister exploded when repairing a car and he suffered burns when he was a young man when he was about 20 or 21.  There is very little evidence about the burn scars on Mr Petrella’s torso before me. There is no real medical evidence.  I am therefore unable, honestly, to assess that it has been fully diagnosed, treated and stabilised, and therefore I cannot assess it under the Impairment Tables. 

   Mr Petrella’s mental function 

2. Mr Petrella gave evidence before me today that he only began seeing a clinical psychologist in April 2015, and I note that the claim period ended on 17 April 2015.  Table 5 of the Impairment Tables is titled “Mental Function”.  That table requires me not to assess the mental function unless there is evidence from a psychiatrist or a clinical psychologist.  There was no evidence of work of a clinical psychologist for most of the claim period.  Mr Petrella only began seeing a clinical psychologist in April 2015.  Mr Petrella’s treatment is ongoing.  My finding is that on the evidence before me, Mr Petrella’s mental condition was not fully diagnosed, treated and stabilised during the claim period. Therefore it is not assessable under Table 5 of the Impairment Tables.

   Conclusion

3. I have found that Mr Petrella only obtained 10 points under the Impairment Tables for his spinal condition.  This means that he does not comply with subsection 94 (1) paragraph (b) of the SS Act.  Therefore, Mr Petrella does not, on this occasion, qualify for DSP.  It is unnecessary for me to discuss the second issue, namely whether Mr Petrella has a continuing inability to work. 

4. I find Mr Petrella to be a brave man, and I wish him well in the future.  If Mr Petrella’s conditions worsen and if more evidence is available so that his impairments are fully diagnosed, treated and stabilised, it is open for Mr Petrella to apply at a future date for DSP. 

   DECISION 

5. The decision under review is affirmed.  In other words, the decision that Mr Petrella does not qualify for the Disability Support Pension is affirmed. 

I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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Associate

Dated 22 April 2016

Date(s) of hearing	15 March 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services