Schwede and Department of Family and Community Services
[2002] AATA 377
•22 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 377
ADMINISTRATIVE APPEALS TRIBUNAL No Q2002/124
GENERAL ADMINISTRATIVE DIVISION
Re ROSEMARIE SCHWEDE
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr R G Kenny, Member
Date22 May 2002
PlaceBrisbane
Decision The Tribunal affirms the decision under review
.................(Sgnd).................
R G Kenny
Member
CATCHWORDS
SOCIAL SECURITY - disability support pension - whether applicant has physical, intellectual or psychiatric impairment – whether applicant has impairment rating of 20 points or more - relevant time-frame - whether applicant has continuing inability to work
Social Security Act 1991 - section 94, Schedule 1B
REASONS FOR DECISION
22 May 2002 Mr R G Kenny, Member
Background
On 2 April 2001, Rosemarie Schwede (the applicant) lodged a claim with Centrelink for payment of disability support pension in respect of the effects upon her of a back and neck problem associated with an injury in the workplace in 1998.
On 31 May 2001, a delegate of Centrelink rejected the applicant's claim. That decision was affirmed by an authorised review officer on 23 November 2001 and, in turn, by the Social Security Appeals Tribunal on 9 January 2002. On 5 February 2002, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Since the making of the decision under review, the applicant lodged a further claim for payment of the disability support pension which was granted from and including 22 March 2002. Also, there was an unsuccessful claim lodged for disability support pension in 2000.
Appearances
The applicant attended the hearing but was not represented. Mr Z McEwan of the advocacy and administrative law team with Centrelink appeared on behalf of the Secretary, Department of Family and Community Services (the respondent).
At the hearing, the following material was taken into evidence from
the respondent:
Exhibit 1 – documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act1975 (the T documents: T1–T22);
Exhibit 2 – a set of supplementary documents (S1–S7); and
Exhibit 3 – a statement of facts and contentions dated 24 April 2002.
the applicant:
Exhibit A 1- a medical report, undated but prepared after 20 March 2002, from Dr J Devane, the applicant's treating doctor.
Issues and Legislation
The issues in this matter relate to whether or not the applicant is qualified to receive a disability support pension which is payable in accordance with the terms of section 94 of the Social Security Act 1991 (the Act) which relevantly reads:
"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;
(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 form 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).
(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.
(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 the work, have regard to the likely availability to the person of work in the person's locally accessible labour market.
(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."
In accordance with that provision, the Tribunal must determine:
whether the applicant has a physical, intellectual or psychiatric impairment; and, if so
whether she has an impairment rating of 20 points or more which is calculated under the Impairment Tables in Schedule 1B of the Act as required by paragraph 94(1)(b) thereof; and, if so
whether she has a continuing inability to work as required by subparagraph 94(1)(c)(i) of the Act.
To qualify for a disability support pension all three of the requirements must be met by the applicant. Further, they must be met at the time of the initial claim or in the period of three months starting immediately after the day on which her claim was lodged as provided for in section 100 of the Act which relevantly reads:
"100. Early claim
(3) If:(a) a person lodges a claim for a disability support pension; and
(b) the person is not, on the day on which the claim is lodged, qualified for a disability support pension; and
(c) the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;
the person's provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia."
The Table in Schedule 1B with potential relevance in this matter is Table 5 which reads:
"TABLE 5. SPINAL FUNCTION
Determination of spinal impairments must be based on a demonstrable loss of function.TABLE 5.1 Cervical spine
Rating CriteriaNILNormal or nearly normal range of movement.
FIVELoss of quarter of normal range of movement.
TENLoss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain.
TWENTYLoss of three-quarters of normal range of movement and constant neck pain.
THIRTYLoss of almost all movement, or complete ankylosis in position of function.
FORTYAnkylosis in an unfavourable position, or unstable joint.
TABLE 5.2 Thoraco—lumbar-sacral spine
As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.
Rating CriteriaNILNormal or nearly normal range of movement.
FIVELoss of one-quarter of normal range of movement.
TENLoss of one-quarter of normal range of movement as well as back pain or referred pain:
with many physical activities and
with standing for about 30 minutes and
with sitting or driving for about 60 minutes.
or
Loss of half of normal range of movement.
TWENTYLoss of half of normal range of movement as well as back pain or referred pain:
with most physical activities and
with standing for about 15 minutes and
with sitting or driving for about 30 minutes.
or
Loss of three-quarters of normal range of movement.
FORTY Ankylosis in an unfavourable position, or unstable joint."
Applicant's evidence
10. The applicant, who was born on 24 August 1956, gave oral evidence to the Tribunal including the following history of her back problems. She was a machine operator and experienced a fall at her work in 1998 and injured her back. She was off work for some weeks and was unable to continue with her previous employment. Since then, she worked on a part-time basis as a cleaner and cook in motel establishments. She always felt pain in her back and eventually ceased working in about mid 2000. She said that her back was deteriorating in its effects upon her with greater amounts of pain and limitations of movement. She said that this included a worsening of symptoms in the last 12 months. For some years, she has taken medication to help her sleep and now takes that same medication, prothiaden and valium, for depression. She said that her feelings of depression have also worsened over the last 12 months or so.
11. The applicant said that she recalled seeing various doctors about her back problem and that these included Dr G Rolls of Health Services Australia, whom she has seen on three occasions, and orthopaedic specialist, Dr G Day. The applicant said that in her consultations with these doctors she had been subjected to various tests in relation to the use of her spine.
Medical evidence
12. In evidence before the Tribunal were several reports, dated 3 February 2000, 19 April 2001, 1 August 2001 and the most recent at exhibit A 1, from Dr Devane. He has diagnosed Scheuermann's disease in the applicant's spine. In the first report, a rating of 10 points is given for loss of ¼ range of movement in the thoraco-lumbar spine under Table 5.2 of Schedule 1B but no rating is allocated under Table 5.1. In the other reports, no ratings are allocated under either Table.
13. Dr Rolls provided three reports, one in relation to each of the three claims that the applicant has made. They are dated 22 March 2000, 29 May 2001 and 22 April 2002, respectively. In each report, he describes a loss of ¼ range of movement in the thoraco-lumbar spine along with limitations to many physical activities including standing and sitting and allocates a rating of 10 points under Table 5.2 of Schedule 1B. In the latest report, he a loss of ½ range of movement in the cervical spine and allocated a rating of 10 points under Table 5.1. However, in his earlier reports, he described a ¼ loss of range of movement in the cervical spine and the highest rating he gave under Table 5.1 was 5 points.
14. In his most recent report, Dr Rolls also noted that the applicant was suffering from depression and he allocated a rating of 10 points for that condition under Table 6 of Schedule 1B. In his undated report, Dr Devane stated that the applicant had been prescribed prothiaden in April 2001 but that this was not for depression. Rather, it was to assist the applicant with sleeping difficulties.
15. The report, dated 14 September 2001, of Dr Day described the applicant as having a "normal range of movement in her lumbar spine" but as "having lost the extremes of normal range of movement" in her cervical spine. He expressed the opinion that she had "up to 5% permanent partial disability of her entire body as a result of her cervical spine condition and up to 5% permanent partial disability of her entire body as a result of her lumbar spine condition".
Applicant's submissions
16. The applicant submitted that the decision under review was wrong. She accepted that she needed to meet the requirements for the disability support pension as at the date of the claim and within a short period thereafter. However, she submitted that she met those requirements although she also conceded that she did not fully understand the way in which the assessment process operated.
Respondent's case
17. Mr McEwan submitted that the relevant time-frame within which the requirements for disability support pension had to be met was the three months from the date of the claim on 2 April 2001. He conceded that the applicant now meets those requirements but submitted that this was not the case in 2001. He submitted that the applicant's back condition was deteriorating and that this was revealed by the progressively higher ratings allocated by Dr Rolls over a three year period and also by the applicant in her evidence.
18. Mr McEwan also submitted that the ratings allocated by Dr Rolls in 2001 should be adopted. He described these as being consistent with the summary provided by Dr Day and noted that there were no higher ratings allocated by Dr Devane. The ratings of Dr Rolls in 2001 combined to a total of 15 points.
19. Reference was made by Mr McEwan to the condition of depression. However, whilst conceding that it attracted a rating currently, he submitted that this was not the case in 2001. He submitted that Dr Devane, in his recent report, had denied the presence of depression in April 2001. He referred to the Introduction to the Impairment Tables as requiring that a condition not be taken into account unless and until it was fully documented, and diagnosed and had been investigated, treated and stabilised.
20. In summary, Mr McEwan submitted that the applicant did not meet the second part of the test in section 94 of the Act relating to impairment. He also submitted that the applicant did not meet the work capacity requirement.
Discussion of Evidence and Findings on Material Facts
21. It is not in dispute that the applicant suffers physical impairment from the back condition of Scheuermann's disease. The Tribunal accepts the respondent's submission that this is the only condition which it is able to take into account in applying section 94 of the Act to the applicant's circumstances. In that regard, the terms of section 100 of the Act define the time-frame for when the applicant must meet the qualifying criteria. This is within the three months from the initial claim. At that time, depression was not diagnosed or being treated. The instructions in the Introduction are clear in relation to the need for that to be the case. Paragraph 4 of the Introduction reads:
"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. "
22. In the relevant time-frame, the only medical evidence is that the applicant experienced a ¼ loss of normal range of movement in the cervical spine and the same range of loss in the thoraco-lumbar spine along with limitations to many physical activities including standing and sitting. The Tribunal is reasonably satisfied that those respective descriptions equate to impairment ratings of 5 and 10 under Tables 5.1 and 5.2, respectively, of Schedule 1B.
23. For the applicant to qualify for the disability support pension, all of the requirements of section 94 of the Act must be satisfied. The level of the applicant's impairment, at the relevant time, was less than the threshold of 20 points required by paragraph 94(1)(b) of the Act. It follows that an essential component of the provision is not met and that, therefore, the applicant was not qualified for disability support pension at the time of her claim or at any time in the three month period thereafter.
Decision
The Tribunal affirms the decision under review.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: ......................................................................... Associate
Date of Decision 22 May 2002
Date of Hearing 21 May 2002The Applicant Appeared in Person
Solicitor for the Respondent Mr Z McEwan, Departmental Advocate
0
0
0