Pillidge and Secretary, Department of Family and Community Services
[2004] AATA 698
•30 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 698
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1486
GENERAL ADMINISTRATIVE DIVISION ) Re Susan Pillidge Applicant
And
Secretary, Department of Family and Community Services
Respondent
DECISION
Tribunal Ms N Isenberg, Member Date30 June 2004
PlaceSydney
Decision The Tribunal affirms the decision under review.
…………………………..
Ms N Isenberg, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – asthma – hypertension – lumbosacral pain – impairment – 13 week consideration period – no finding of treatment and stabilisation – decision affirmed
Social Security Act 1991, sections 94(1), (2), (3), (4), (5), (6), Schedule 1B
Social Security (Administration) Act 1999, Schedule 2
REASONS FOR DECISION
30 June 2004
Ms N Isenberg, Member
DECISION UNDER REVIEW
1. The decision under review before the Administrative Appeals Tribunal (“the Tribunal") was the decision of the Secretary, Department of Family and Community Services (”Centrelink”) dated 11 November 2002 as affirmed by Centrelink’s review on 3 April 2003 and by the Authorised Review Officer (“ARO”) on 20 May 2003. The Social Security Appeals Tribunal (“the SSAT") also affirmed the decision on 13 August 2003, to reject the Applicant’s claim for disability support pension (“DSP”). .
BACKGROUND
2. On 19 May 1997 Mrs Pillidge first lodged a claim for a disability support pension. At that time she claimed in respect of asthma and hypertension, which were controlled by medication, as well as hiatus hernia and gastritis, which were of a temporary nature. The impairment rating was zero and she was considered fit for light work within 24 months. The claim was rejected.
3. On 9 October 2002 Mrs Pillidge lodged a second claim for a disability support pension, claiming chronic lumbosacral pain, asthma and hypertension.
4. On 11 November 2002 Centrelink rejected her claim. As further investigation was required as to the source of her back pain the condition could not be said to be fully diagnosed, investigated, treated and stabilised, and was found to be temporary. Asthma and hypertension were rated at zero.
5. On 7 February 2003 Mrs Pillidge requested a review of the decision, rejecting the description of her back condition as temporary. On 3 April 2003 Centrelink affirmed its decision. On 11 April 2003 Mrs Pillidge requested review by an ARO and on 20 May 2003 the original decision was affirmed. On 17 June 2003 she lodged an appeal with the SSAT, which, on 13 August 2003 affirmed the decision.
ISSUES BEFORE THE TRIBUNAL
6. The main issues to be determined in relation to this matter are:
a)Does Mrs Pillidge have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables in Schedule 1B of the Social Security Act 1991 (“the Act”); and, if so,
b)Does she have a continuing inability to work as a result of the impairment because;
· the impairment of itself prevents her from doing any work for at least 30 hours per week at award wages within the next two years; and either
· the impairment of itself is sufficient to prevent her from undertaking educational or vocational training or on the job training during the next two years; or
· such training is unlikely (because of the impairment) to enable her to do any work for at least 30 hours per week at award wages within the next two years.
CONSIDERATION PERIOD FOR ENTITLEMENT TO DSP
7. Schedule 2, clause 4 of the Social Security (Administration) Act1999 (“the SSA Act”) provides that the relevant time to consider a person’s entitlement is during the 13 weeks after the claim. Therefore, I have to consider whether Mrs Pillidge was entitled to the DSP by 7 January 2003.
THE HEARING
8. At the hearing on 4 June 2004., Mrs Pillidge was self represented and Centrelink was represented by Andrew Zhang, an advocate from the Advocacy and Administrative Law Team at Centrelink.
9. Documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents") were tendered.
CONSIDERATION OF THE EVIDENCE AND FINDINGS
10. In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.
11. DSP Qualification is set out in section 94(1) of the Act which, so far as is relevant, provides:
“Qualification for disability support pension
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”
Did Mrs Pillidge have a physical, intellectual or psychiatric impairment of 20 points or more by 7 January 2003?
12. It was conceded by Centrelink that at the time of claim Mrs Pillidge had a physical impairment in that she suffered from back pain and had disc degeneration at the L5/S1 level. Hence, she met subsection 94(1)(a). Mrs Pillidge also met other qualifying factors in relation to age and Australian residence.
13. I then turned to determine whether her condition attracted a rating of 20 impairment points. Before doing so it was necessary to consider the Introduction to Schedule 1B which states (in part) at Paragraph 4 that:
[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. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. [Tribunal’s emphasis]
14. Mrs Pillidge told me that she had been under the care of Dr De Lyall, her general practitioner, since about 1999. For most of that time she had complained about her back and in 2000 or 2001 the doctor prescribed panamax for her, which she understood to be stronger than panadol. Dr De Lyall told her he could not prescribe anything stronger “until the condition had been diagnosed”.
15. She said she discussed her back with Dr De Lyall about every second visit, but she was usually attending for some other purpose. In all, she attended the doctor at least monthly. She would tell him if her back was getting a little more “tingey”.
16. When Dr De Lyall found that Mrs Pillidge was taking 3 panamax at a time, without relief, she said that he sent her for x-rays. As these were inconclusive, he said that to determine her condition she would need an MRI, but that that could only be arranged by a specialist. To that end Dr De Lyall referred her to Professor Ghabrial, who, Mrs Pillidge recalled, she first saw in February 2003. An MRI was arranged.
17. A bone scan dated 9 January 2003 (T25/131) and an MRI report dated 16 January 2003 (T26/132) were supplied in the Tribunal’s documents.
18. Professor Ghabrial provided a report dated 17 April 2003 (T44/179). That report suggests that Professor Ghabrial saw Mrs Pillidge first in April 2003. Professor Ghabrial observed that the MRI suggested L4/5 annular tear with degenerative disc disease as well as facet arthropathy and the L3/4, L4/5 and L5/S1 segments. In noting that Mrs Pillidge was “quite disabled” due to her pain he said:
“we should identify the source of pain before making any plans for treatment.”
He organized discography/CT scanning of the identified discs and he proposed to review her once these had been performed.
19. Professor Ghabrial reviewed Mrs Pillidge on 22 July 2003 in light of the results of the CT scan conducted on 1 July 2003 (T55/202). The scan showed extensive internal disc disruption with degeneration.
“That showed extensive internal disc disruption with degeneration. There was evidence of left posterolateral disc protrusion and fissuring extending to the disc margin at that side with typical pain reproduction in the lower back at that level. The L4/5 disc showed similar changes with radiation of the pain to the left leg.”
20. Professor Ghabrial considered that Mrs Pillidge’s clinical features were not severe enough for surgery in the form of excision of the discs and spinal fusion, but he suggested a caudal block, which Mrs Pillidge said was conducted without success in April 2004.
21. Mrs Pillidge told me that Professor Ghabrial had suggested physiotherapy and that she had gone onto the waiting list at Maitland hospital. (Mr Zhang in fairness, pointed out that in his report of 9 October 2002 Dr De Lyall had recorded that Mrs Pillidge was at that time on the waiting list (T9/49)) No exercises were suggested in the meantime. Mrs Pillidge said that she “came up” for the physiotherapy in late in 2003 but it was inconvenient to take it up at that time. She said she intends to re-apply but has not yet done so.
22. In the treating doctor’s report (T9/47) Dr de Lyall had described Mrs Pillidge’s condition as “chronic lumbosacral pain”. When examined by Dr Aus for Centrelink the doctor wrote on 1 November 2002 (T16/108) that “chronic lumbosacral pain is a symptom, not a diagnosis”.
23. In summary, on Mrs Pillidge’s own evidence Dr De Lyall had not diagnosed her back condition in 2002 and he would prescribe no stronger pain medication than panamax. She was not undergoing physiotherapy, although she was on a waiting list. She had not then undergone a bone scan, MRI or CT scan, all of which were relevant to diagnosis and the ensuing treatment. She did not see Professor Ghabrial, until, at the earliest, February 2003.
24. I therefore find that Mrs Pillidge’s back condition was still subject to investigation and treatment, at the time of claim and within 13 weeks.
25. As her back condition could not have been said to be fully documented, diagnosed, investigated, treated and stabilised, an impairment rating for it could not be assigned.
26. Having come to that view it is unnecessary for me to make findings in relation to whether Mrs Pillidge’s impairments rated 20 points or more under Impairment Tables in Schedule 1B. Further it was not necessary to decide if Mrs Pillidge had a continuing inability to work at the relevant time. For these reasons it is not necessary for me to reproduce the evidence given in relation to Mrs Pillidge’s TAFE attendance during 2002/3, her work skills, or the effect of her condition upon her domestic obligations.
27. Mrs Pillidge expressed concern at the hearing that she did not understand how she could be found to not be eligible for disability support pension in 1997 (at the time of her first application), or in 2002 (in the claim which gave rise to this application for review) but became eligible in November 2003. While outside my role, I observe that there appear to have been some ongoing communication issues between Mrs Pillidge and Centrelink.
DECISION
28. The Administrative Appeals Tribunal affirms the decision under review.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member
Signed: Neil Glaser
AssociateDate of Hearing 4 June 2004
Date of Decision 30 June 2004
Representative of the Applicant Self represented
Advocate for the Respondent Andrew Zhang
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