Pistone; Secretary, Department of Family and Community Services a Nd
[2003] AATA 375
•14 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 375
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/1421
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES Applicant
And
SHARYNE PISTONE
Respondent
DECISION
Tribunal Mr J. Handley, Senior Member Date14 April 2003
PlaceMelbourne
Decision The decision of the Social Security Appeals Tribunal under review in these proceedings is set aside and in substitution IT IS DECIDED-
i) at the date of claim and
ii) within 13 weeks of the date of claim the respondent was not qualified for payment of disability support pension.
...........Sgd. Mr J. Handley...............
Senior Member
CATCHWORDS
Social Security - respondent suffered severe injuries - claimed Disability Support Pension - SSAT found in her favour - Department appeal - whether respondent qualified at, or within 13 weeks of date of claim.
Practice & Procedure - discussion of responsibilities & duties of advocates of Commonwealth Departments and Agencies.
REASONS FOR DECISION
14 April 2003 Mr J. Handley, Senior Member 1. The applicant applies to review a decision made by the Social Security Appeals Tribunal (“SSAT”) on 13 November 2002. The SSAT then reviewed a decision made by a Centrelink officer on 13 November 2001 to reject an application for Disability Support Pension (“DSP”).
2. The SSAT decided to set aside that decision and remitted the application to Centrelink with directions that Mrs Pistone did satisfy s.94(1)(a)(b)&(c) of the Social Security Act.
3. Mr Huttner appeared on behalf of the applicant. Ms Pistone appeared without representation.
4. The facts may be briefly summarised as follows-
5. On 4 April 2001, Ms Pistone suffered horrific injuries in a freak accident whilst washing a motor cycle. In the course of pushing the motor cycle Ms Pistone accidentally activated the throttle causing the motor cycle to accelerate. When she attempted to arrest it she was propelled into a wall. She suffered extensive and gross facial fractures together with neck, back and shoulder injuries. It would appear also from the medical reports lodged with the T-documents that whilst Ms Pistone had previously suffered from depression which was treated, she suffered an aggravation of that depression or another depressive disorder reactive to the traumatic injuries.
6. The treatment for the facial injuries has required extensive inpatient surgery at a number of hospitals requiring the insertion and subsequent replacement of a number of plates which have been fixed and pinned. It is believed that a number of the plates will be permanently retained. Ms Pistone currently has a fracture of her jaw (related to the initial accident) which may require further surgery to replace and reposition one or more of the existing facial plates.
7. Presently Ms Pistone has limited use of her right arm and hand and describes a continuing sensation of pins and needles. She is right hand dominant. She suffers severe pain on a daily basis and presently consumes eight panadene forte tablets per day. Ms Pistone said that there had been occasions where she has attempted to reduce or cease consumption of pain killing medication, but she described the pain on those occasions as being “unbearable”.
8. Ms Pistone was previously employed by K-Mart where she was engaged in work lifting items from a conveyor belt, packing goods onto pallets and using a computer. She said work of that type would be presently beyond her because of the absence of dexterity and strength in her right arm. She is presently unable to sit or stand without pain or discomfort and suffers headaches on a regular basis. At the present time Ms Pistone receives New Start Allowance but has recently been exempted by the applicant from actively seeking employment because - apparently - the applicant is of the view that her injuries and treatment preclude her from being able to engage in employment.
9. The SSAT decided that Ms Pistone achieved 20 impairment points by a combination of Impairment ratings under tables 6 and 20 of the Impairment Tables found within Schedule 1B of the Social Security Act. It also found that Mrs Pistone would be unable to perform any work or undertake educational, vocational or on the job training within two years. It concluded therefore that she had a “continuing inability to work”. Having made those findings, the SSAT determined that there was an eligibility for Disability Support Pension.
The Legislation
10. Section 94 of the Social Security Act 1991 relevantly provides as follows-
“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) …..
(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) …..
(iii) …..
94(2) 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 educational 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.
Note: For work see subsection (5).
94(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of educational or vocational training or on-the-job training; or
(b) if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.
94(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.
94(5) In this section:
‘educational or vocational training’ does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
‘on-the-job training’ does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
‘work’ means work:
(a) that is for at least 30 hours per week at award wages or above; and
(b) that exists in Australia, even if not within the person's locally accessible labour market.
11. Clause 4(1)(a)-(d) & (2)(a) of Schedule 2 of the Social Security (Administration) Act 1999 relevantly provides as follows-
“4 Start day—early claim
(1) If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
(2) For the purposes of subclause (1), the following provisions have effect:
(a) subject to paragraph (b), any social security payment, other than newstart allowance or special benefit, is a relevant social security payment;”
The Applicant’s Contentions
12. On the day prior to the hearing, the applicant lodged a Statement of Facts and Contentions. The Statement recorded that the applicant “does not dispute” paragraphs 1 to 31 inclusive of the reasons of the SSAT. However it was the submission on the part of the applicant that the findings made by the SSAT with respect to the “continuing inability to work” were not “supported by the totality of the evidence” and the decision therefore by the SSAT was incorrect.
13. At the hearing Mr Huttner indicated that the applicant would resile from its Statement of Facts and Contentions and also submit that the finding made by the SSAT concerning the achievement by Ms Pistone of the requisite number of impairment points was also incorrect.
14. Of some substance however was a submission made by Mr Huttner at the hearing which was not contained in his Statement of Facts and Contentions that Ms Pistone did not suffer injuries at the date of claim or within 13 weeks of the date of claim which were ‘permanent” within the meaning of the introductory clauses to the Impairment Tables found at Schedule 1B of the Social Security Act. It followed, he said, that by reason of the respondent’s injuries not being permanent at or within 13 weeks of the date of claim, Ms Pistone had no entitlement, by reason of that claim, to Disability Support Pension. It followed therefore in his submissions that the decision of the SSAT should be set aside.
Medical Evidence
15. To comprehend the submission of Mr Huttner, the crucial dates are 30 November 2001, when the claim was made and 2 February 2002, being thirteen weeks later.
16. The notes of the St. Vincent’s Hospital reveal that Ms Pistone on admission on 7 June 2001, presented with extensive facial fractures together with depression and asthma. Surgery was to be undertaken on 8 June 2001.
17. Doctor Borromeo reported on 21 January 2002 that Ms Pistone suffered severe temporomandibular pain and dysfunction with associated bilateral facial pain, which he considered to be long term and deteriorating. He recorded that he was “unsure” as to when Ms Pistone would return to work.
18. Doctor Keating, the respondent’s treating general practitioner reported on 8 April 2002 that Ms Pistone was suffering post operative neck pain and headaches and had undergone fixation of some of her facial fractures. He recorded that her condition then was temporary but fluctuating and found that she also suffered from depression, which he had been treating since 2000.
19. Doctor Loewy reported on behalf of Health Services Australia to Centrelink on 26 April 2002 that Ms Pistone suffered from facial injuries, cervical spine injuries together with restricted right shoulder movement and reduced power in her right arm, all of which he regarded as being temporary. He found that she also suffered from depression being secondary to chronic pain, which he also considered to be temporary. He thought Ms Pistone would be fit to return to full-time work within 12 to 24 months but acknowledged that prognosis beyond 6 to 12 months was difficult to predict.
20. Mr Jenner a physiotherapist reported on 9 May 2002 that Ms Pistone was suffering from cervical and spinal injuries together with right neck, right shoulder and right arm pain and limitation of movement together with headaches. He thought her condition was long term and was fluctuating.
21. It would appear from the medical evidence that Ms Pistone did have extensive facial surgery including the insertion and fixation of metal plates. At mid 2002 further surgery was contemplated. Nonetheless, her facial and dental specialists considered that she would have long term repercussions from the facial injuries.
22. Additionally, Ms Pistone was being treated for asthma, which was apparently associated with nasal or sinus obstruction, which had an association with the facial fractures.
23. With respect to the applicant’s neck injury, it would appear that a CT scan of 30 January 2002 revealed disc bulging at C4/5 and C5/6.
The Impairment Tables
24. The introductory notes to the Impairment tables found at Schedule 1B record that the purpose of assessing impairment is to consider the capacity of a person to undertake work (refer paragraphs 1, 2 & 3).
25. Paragraphs 5 & 6 of the introduction record that when assessing impairment the condition “must be considered to be permanent”.. It is recorded that permanence is accepted after a condition has been diagnosed, treated and stabilised and then “in the light of available medical evidence is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than 2 years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement with or without reasonable treatment within the next 2 years”.
Reasons For Decision
26. Having regard to the introductory paragraphs to the Impairment Tables, I am unable to find that within the period 30 November 2001 to 2 February 2002, that Ms Pistone suffered from conditions which could - within that period - be considered to be permanent. The totality of the medical evidence referred to above and found within the T-documents indicate that at April 2002 Ms Pistone was still undergoing treatment and further surgery was contemplated. It could not be said by 2 February 2002, that the conditions were then “permanent”, or were then “stabilised”.
27. Additionally it could not be said at 2 February 2002 that Ms Pistone had a “continuing inability to work” because at that date a finding could not be made of the impairment being “sufficient to prevent the person from doing any work within the next two years” (refer s.94(2).
28. It follows therefore that the decision under review must be set aside and the initial decision of the Centrelink review officer be reinstated.
Recommendation
29. I cannot recall an application in this Tribunal where there has been such an obvious imbalance in the power of parties to a review.
30. Ms Pistone appeared without legal representation as the respondent to an appeal initiated by a very large and prominent bureaucracy. She has no legal skills or qualifications and has not ever been involved in proceedings of this type. Despite having succeeded in her appeal to the Social Security Appeals Tribunal, she had no choice but to respond to the appeal lodged by the applicant. The advocate for the applicant Department is legally qualified and has more than 20 years experience in administrative appeals. Despite the Practice Direction of this Tribunal, the applicant lodged its Facts & Contentions on the afternoon prior to the day of hearing but resiled from some concessions that it made in that document at the commencement of the hearing. The advocate also argued there was no entitlement at the date of claim, yet he failed to record this in his Statement of Facts and Contentions, thereby denying Ms Pistone the prior opportunity to meet this argument.
31. The applicant also lodged - at the commencement of the hearing - a proof of evidence of a disability officer in the employ of Centrelink which had not previously been exchanged. That person gave evidence in support of the applicant’s submissions that Ms Pistone had a capacity for employment in part based on an interview that he said that he had conducted but in fact had not ever occurred. He was also of the opinion that Ms Pistone was fit to engage in work as a bank teller yet she was educated to year 7 level only, is in constant pain by reason of sitting and standing, has limited use of her dominant right arm and by reason of the consumption of pain killing medication, Ms Pistone often lapses into a state of drowsiness. The officer later acknowledged that major banks have in recent years closed a number of bank branches, it therefore being implicit that work opportunities for bank tellers are reduced. It is also doubtful that work as a bank teller “exists” (refer s.94(5)(b)).
32. I consider that departmental advocates and representatives should be mindful of their duty to citizens who challenge adverse decisions or who respond to appeals initiated against them as per the Attorney General’s model litigant policy. It is their duty to ensure that benefits are paid if that material supports entitlement or to act in a manner which informs of entitlement. It does not extend, particularly in this Tribunal, to taking a position of adversary or treating Administrative Review as a contest. The submissions raised by the applicant’s advocate on the day of hearing, absent from the Statement of Facts and Contentions, clearly put Ms Pistone at a disadvantage, because she had no opportunity to prepare to meet them. She was adamant that the proceedings should be concluded and rejected an offer of adjournment. There was much discussion concerning these issues (refer earlier) because extensive discussions were initiated and comment and responses were invited. The Tribunal, adopting an inquisitorial approach, does offer some protection to parties such as Ms Pistone yet without the assistance from departmental advocates the disparity remains largely unredressed.
33. The advocate for the applicant submitted that in the event that the decision under review is set aside that Ms Pistone should immediately lodge an application for Disability Support Pension. Without conceding that she presently did have an entitlement it was acknowledged - on the material presented at the hearing-that Ms Pistone is probably now in a secure position to demonstrate her injuries being permanent. Now that almost two years has elapsed since the date of injury, it is likely that an assessment for future employment and the extent of impairment can be achieved with greater precision and confidence than was attempted at or about the date of claim or within 13 weeks of that date.
34. For reasons given earlier I am obliged as a matter of law to find that the decision under review be set aside. I have no power to make any decision or finding with respect to present entitlement to Disability Support Pension. That entitlement can only be determined after an application is made. I would however recommend that should Ms Pistone make a further application for Disability Support Pension that it be processed promptly with an eye to reality, the totality of her circumstances and have regard to the evidence at the hearing on 20 March.
35. Ms Pistone has had recent facial surgery and she is faced with the prospect of having it repeated. She presently has a fractured jaw and when the facial treatment eventually concludes, she will forever have plates inserted.
36. Ms Pistone continues to suffer depression and is treated by Dr Keating. She cannot afford the cost of a psychiatrist but is prescribed medication. She consumes enormous quantities of pain killing medication, which in turn cause drowsiness, however the extent of pain often causes her to be restless and have poor sleep. Ms Pistone acknowledged that there has been “some improvement” in the last 12 months to the extent that the pain that she suffers is less intense than it was, however whilst she is now able to eat soft food she cannot chew.
37. Ms Pistone continues to suffer neck and shoulder pain with limited use of her dominant right arm. She has persisting pins and needles in the whole of her right arm and her present physiotherapist has recently reported that her skeletal injuries are “long term - likely to persist for at least two years”.
38. The scheme of the legislation - as highlighted by these proceedings - would suggest that Disability Support Pension is payable to persons who suffer injuries which are permanent and which produce a continuing inability to work. It follows therefore that persons who suffer injuries of the severity of Ms Pistone will initially qualify for sickness allowance and later (perhaps) New Start Allowance, pending a finding that the conditions are permanent and that the claimant will suffer a continuing inability to work.
39. The types of benefits available to injured persons and the policy behind the qualification for those benefits might be presently of little comfort to Ms Pistone. However the fact remains that she has now suffered for two years and continues to suffer horrific injuries involving much pain which has and will continue to require surgery. I would hope that these reasons - whilst unlikely to give her comfort - explain the prevailing law which I am bound to apply. I would recommend, given that counsel for the applicant made the concession that Ms Pistone may now be entitled to Disability Support Pension that she make a fresh claim now. The officers administering New Start benefits presently exempt Ms Pistone from job seeking apparently in recognition of her incapacity. An examination of the criteria within the appropriate Impairment Tables readily suggest that she would achieve at least 20 impairment points and that her incapacity now may be regarded as being permanent.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.
Signed: .........C. Irons .........................................
SecretaryDate/s of Hearing 20 March 2003
Date of Decision 14 April 2003
Counsel for the Applicant Mr R. Huttner, Departmental Representative
Solicitor for the Applicant
Counsel for the Respondent self represented
Solicitor for the Respondent
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