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Administrative Appeals Tribunal of Australia |
Last Updated: 31 January 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION |
) | |
|
|
Re |
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES |
|
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And |
MONIKA MILKA |
Tribunal |
Senior Member WJF Purcell |
Decision
(Signed)
(Senior Member)
CATCHWORDS
SOCIAL SECURITY - pensions, benefits and allowances - Disability Support Pension - whether applicant has continuing inability to work - impairment rating
Social Security Act 1991 section 94
20 January 2003 |
Senior Member WJF Purcell |
|
1. This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 29 May 2002, which set aside the decision of a delegate of 4 February 2002, as affirmed by an Authorised Review Officer, to cancel the respondent's Disability Support Pension (DSP), on the basis that she did not have an impairment rating of at least 20 points and did not have a continuing inability to work. The SSAT substituted a decision assigning an impairment rating of 20 points, and finding that the applicant could not work in the open employment market in the next 2 years.
2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with an exhibit tendered by the applicant (the Department). Ms Odgers represented the Department. The respondent, who had earlier indicated her intention not to attend the Hearing, did not attend, and the matter proceeded in her absence.
3. The respondent, who is 42 years of age, has been in receipt of DSP since 1993. Her medical condition is fibrositis syndrome/fibromyalgia causing chronic neck, back and leg pain. The Department initiated review of her entitlement in 2001. The respondent completed the review form and provided an incomplete report from her treating General Practitioner, Dr Borg, dated 26 September 2001. Dr Borg has treated her since 1999.
4. On 1 November 2001, Dr Borg provided a completed report and stated that the respondent would be able to return to work within 6 to 12 months. Health Services Australia Medical Officer, Dr Ducrou, in his report of 25 January 2002, assigned an impairment rating of 10 points, under Impairment Table 20, and considered that the respondent could return to work immediately, and undertake graded light work such as teaching, or light shop assistant work.
5. The criteria for 10 points is as follows:
"Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.
Hypertension that is difficult to control despite intensive therapy but without end-organ damage.
Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis.
Heart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms."
6. On 4 February 2002 a delegate decided to cancel DSP on the basis that the respondent did not have an impairment rating of at least 20 points and a continuing inability to work. An Authorised Review Officer affirmed this decision on 14 March 2002. In her notes of interview with the respondent on 14 March 2002, the Authorised Review Officer stated, in part:
"...
She told me that she has been treating herself with homeopathic treatments and has had `brilliant' results. She used to have back spasms which would put her out of action for 3 days. She uses a combination of stretches, her own medicines and vitamins for treatment. She does not walk. She was heavily dependent on traditional medications - narcotics and benzodiazepines but self detoxified. She is a qualified homeopath having completed a Bachelor degree in Applied Science/Homeopathy/ Western Botanic Medicine and also has a Diploma of Massage. She completed her degree in 4 years when course normally takes 6 years. She did most of the work at home although did go to some lectures.
I asked her about her study methods while studying for her degree and she said she worked at a desk with a computer every day from about midday to some times 2 to 3 in the morning. She would need to get up every hour but mostly she was able to work solidly at that desk for that period with breaks. She achieved credits and distinctions in her degree and hopes to start her own practice as a Homeopath. She is working towards starting the business in 6 to 12 months but is a bit apprehensive about starting out. She is attempting to build up the business now in a minor way by treating friends and relatives and `street kids' for free. She has done a business course and knows about Business Plans etc. The accountant who could assist her with this is away at present so she can't start on her own business plan just yet. Paul at Gawler has told her about NEIS and she is to investigate if she could qualify.
She considers she is not ready to go off DSP just yet for while she feels that she is much improved with her own treatments she will go backwards if she is forced onto Newstart Allowance and to look for work. She needs more time both to administer her treatments to keep her on an even keel and to do the ground work to establish her own business. She is also wanting to do one pharmacology subject this year which will assist with her self employment. She is finding that since she has been told her DSP is to be cancelled she is developing anxiety and stress and her physical conditions are going a bit backwards - more pain and spasms. She does not think she could be relied upon to go to work everyday at the moment. I advised that I would assess that she has a capacity to do sedentary work eg office work for 30 hours a week or more and she did not necessarily disagree that she could given rest breaks. But she had no training. I explained that she could be trained on the job so that should not prevent her doing that. She did not think she was employable and I advised that her attractiveness to an employer is not at issue for DSP only her capacity to do such work.
..." [T19/171]
7. The respondent attended the SSAT hearing. No further medical evidence was provided to the SSAT, but that Tribunal found that she had an impairment rating of at least 20 points, in accordance with Table 20:
"More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work."
8. The Department requested that the respondent attend a Functional Capacity Evaluation under the auspices of Health Services Australia. The appointment was set for 21 October 2002 at 1.00pm, but the respondent did not attend. Health Services Australia informed the Department in the following terms:
"As discussed by phone, I would like to advise you that Monika Milka did not attend the appointment at Health Services Australia with an Occupational Therapist today at 1:00pm.
Ms Denise Winter was to undertake the examination, but when it became late and Ms Milka had not attended, Ms Winter rang Ms Milka's number to see if she could find out any information.
Ms Milka answered the telephone and advised Ms Winter that she would not be attending HSA for the appointment and had told Gawler Centrelink that she would take no further part in any examinations.
..." [Exhibit A1]
9. Section 94 of the Social Security Act 1991 (the Act) sets out the qualification criteria for DSP, and as far as is relevant for the purposes of this review, provides:
"(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; and
...
(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).
(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.
...
(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.
..."
10. The Department contends that the respondent's impairment warrants a rating of 10 points, under Table 20 of the Impairment Tables. To be assigned 20 points under Table 20, there must be a significant level of disruption to the person's ability to undertake everyday tasks. The Health Services Australia Medical Officer, Dr Ducrou, indicated that the respondent is likely to miss at most one day per month due to her condition. That is, it would be a minimal disruption; and in addition, the Department argues that an impairment rating of 10 points is more appropriate as the respondent has been able to undertake and complete undergraduate and graduate studies, and is confident enough to have plans to work in her own business as a homoeopath, and to in fact have undertaken work in this field. There is no indication from the medical evidence that her condition has any more than a moderate impact upon her activities.
11. The Department submits that a continuing inability to work means that the person cannot work within the next 2 years or that they cannot be retrained or retraining is unlikely to enable them to work within 2 years. Work means work of at least 30 hours a week at award wages or above and that exists anywhere in Australia. The respondent does not have a continuing inability to work. Her treating doctor and the Health Services Australia Medical Officer both state that she can work within the next 2 years. Most notably, the Health Services Australia Medical Officer, Dr Ducrou, states that she can work at a sedentary/light level or could be trained to do such work. This includes work in the following occupations: teacher, homoeopath, clerk, and shop assistant.
12. No further medical evidence was provided at the Hearing, and I did not have the opportunity to hear evidence from the respondent. I had before me the same medical evidence as did the SSAT. In the course of the SSAT's Reasons for Decision it states:
"...
Ms Milka said she does no housework but pays someone to do her housework for her. Activities such as vacuuming or mopping cause her severe back spasms. She does some cooking but someone else does most of her cooking. Cooking also can aggravate pain and spasms.
She does some therapeutic massage work. She is studying for her course and is able to work in blocks of half an hour but needs regularly to get up and move around and do her stretching. She gets dizzy easily and then needs to eat. She has several (about six or seven) small meals a day partly because of the dizziness. Ms Milka said she probably gets in about four hours a day of focused work, divided into half hour blocks as she tolerates.
..." [T2/5]
13. Upon a perusal of the documentary evidence, it appears that the level of pain and disability the respondent described in evidence at the SSAT was higher than that she described to her treating General Practitioner, the Health Services Australia Medical Officer and the Authorised Review Officer. In any event, the SSAT chose to substitute its own assessment of the level of the respondent's impairment and concluded also that she had a continuing inability to work.
14. I consider, on the whole of the evidence, and in the absence of any additional medical evidence, Dr Ducrou's assessment of 10 impairment points must prevail. Although there is some difference of opinion between the applicant's treating General Practitioner, Dr Borg and Dr Ducrou, both are of the view that at the latest, the respondent would be fit for work within 6 to 12 months, that is, within 6 to 12 months of September 2001. In these circumstances, she does not satisfy section 94(1)(c) of the Act in my view.
15. I am satisfied, on the evidence, that the respondent does not satisfy section 94 of the Act, and was not qualified for Disability Support Pension.
16. For these reasons the Tribunal sets aside the decision under review, and affirms the decision of a delegate of the Department of 4 February 2002 that the respondent's Disability Support Pension should be cancelled.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .......................................................................................
Associate
Date of Hearing 20 January 2003
Date of Decision 20 January 2003
Counsel for the Applicant Ms L Odgers
Solicitor for the Applicant Admin Law Team
Counsel for the Respondent N/A
Solicitor for the Respondent -
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