Bennetts and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 66 (4 February 2009)

Last Updated: 5 February 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 66

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/3616

GENERAL ADMINISTRATIVE DIVISION		)
	Re		MELANIE BENNETTS

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Mr S. Webb, Member

Date 4 February 2009

Place Canberra

Decision

The decision under review is affirmed.

............[Signed]..................................
Mr S. Webb, Member

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension - deteriorating back condition - pain - continuing inability to work - job capacity assessments - impairment not sufficient to prevent the Applicant from doing any work within two years - decision affirmed

Social Security Act 1991 ss 94, Schedule 1B

Social Security(Administration) Act 1999, ss 41, 42, Schedule 2

REASONS FOR DECISION

4 February 2009

Mr S. Webb, Member

1. Melanie Bennetts has a lower back condition. She claimed a Disability Support Pension. Job capacity assessments were conducted and her claim was rejected. Subsequently, a further job capacity assessment was conducted. She lodged a fresh claim and DSP was granted.
2. The issue for determination is whether Ms Bennetts’ first claim for a DSP was made out: was Ms Bennetts qualified for a DSP on the day she lodged her claim or within 13 weeks thereafter? The qualification criteria for DSP are set out at s 94 of the Social Security Act 1991. The period in which a person must qualify for DSP to be payable is determined in accordance with ss 41, 42 and Schedule 2 of the Social Security (Administration) Act 1999.
3. I was informed at the outset of the hearing that the Secretary does not dispute that Ms Bennetts had an impairment that warranted a rating of 20 impairment points and that she satisfied all of the qualification criteria set out at s 94 of the Social Security Act with the exception of subs 94(1)(c) concerning a continuing inability to work. Having carefully considered all of the materials before me I am satisfied that it is appropriate to accept the Secretary’s concessions, and to proceed on that basis. Thus, I find that Ms Bennetts has impairments in the form of a lower back condition, with associated pain radiating into her legs and psychological sequellae in the form of depression and anxiety. She also suffers from morbid obesity. I accept that on 10 December 2007 Ms Bennetts’ back condition was permanent, being fully diagnosed, treated and stabilised, and that impairment warranted a rating of 20 impairment points under table 5.2 (based on loss of range of movement). I note that the evidence supports an alternative finding that the impairment warranted a rating of 20 impairment points under Table 20 (based on chronic pain). I am reasonably satisfied that Ms Bennetts’ depression, anxiety and morbid obesity were not permanent impairments as of 10 December 2007, or within the period of 13 weeks thereafter. This is because these conditions had not been fully documented, diagnosed, treated or stabilised at that time.
4. Ms Bennetts asserts that she had a continuing inability to work during all relevant periods and that she was entitled to a DSP from the date on which she lodged her first claim: 10 December 2007. In her submission her back condition caused her to experience severe pain radiating down both legs for most of the time, with numbness and tingling in her legs all of the time. Her evidence is that she was prescribed Panadeine Forte by Dr Forster and she took six to eight per day in December 2007. The medication, however, caused drowsiness and difficulties concentrating. She experienced depression and anxiety. In her submission all of these factors adversely affected her capacity to perform daily activities, rendering her effectively dependent on carer support, and they severely impacted upon her continuing ability to work. Ms Bennetts asserts that the job capacity assessments are simply wrong and she is entitled to DSP payments from 10 december 2007.
5. For reasons that will appear I do not agree.
6. The criteria concerning a ‘continuing inability to work’[1] are amplified by sub-sections 94(2), (3), (4) and (5) of the Social Security Act. The word ‘work’ is defined to mean work that is for at least 15 hours per week. In order to be satisfied that a person has a continuing inability to work at least 15 hours per week, the Secretary, and in those shoes this Tribunal, must be satisfied that the impairment is sufficient to prevent the person from working at least 15 hours per week independently of a support program during the following two years and either, during that two year period, the impairment prevents the person from undertaking a training activity, or because of the impairment such training is unlikely to enable the person to do any work.
7. In the period following Ms Bennetts’ claim, two job capacity assessments were completed by different assessors. On 18 December 2007 Ms Erin Pearce, Health Services Australia, concluded that Ms Bennetts’ current and future capacity for work without intervention was 8-14 hours per week.[2] Ms Pearce formed the view that with interventions listed at T9 folio 65 Ms Bennetts’ work capacity could be improved within 2 years to 15-22 hours per week.[3] On 17 March 2008 Ms Hannah Shea, an occupational therapist employed by CRS Australia, concluded that Ms Bennetts’ current and future work capacity without interventions was 8-14 hours per week,[4] and that her future work capacity could be improved with interventions[5] to 15-22 hours per week within 2 years.[6]
8. The oral evidence given by Ms Bennetts and Mr Fulton is that her back condition deteriorated in the period from December 2007 to October 2008: her pain and movement restrictions increased; she increased the daily dosage of Panadeine Forte and experienced greater drowsiness and difficulty concentrating; she suffered more intense depression and anxiety. The reports of Dr Forster indicate the presence of these symptoms but he does not report any worsening.[7] The Doctor’s reports are very brief, however, and invite Centrelink officers to contact him for more detailed information. It appears that this was not done, although I note that Ms Shea discussed Ms Bennetts’ symptoms and capacity to work with Dr Forster on the telephone on 18 March 2008 for the purposes of the job capacity assessment.[8] Dr Forster was not called to give evidence.
9. On 28 October 2008 Ms Shea conducted a further job capacity assessment for Ms Bennetts. In that assessment Ms Shea had regard to additional material from Dr Forster and Ms Bennetts’ complaint of worsening symptoms. Ms Shea’s oral evidence was that during the assessment she observed that Ms Bennetts appeared to experience greater discomfort while seated and greater difficulty moving around than in her previous assessment. Ms Shea accepted Ms Bennetts’ account and concluded that her current and future work capacity without interventions was 0-7 hours per week, increasing to 8-14 hours per week with the interventions listed at pages 8 and 9 of the Assessment Report.[9]
10. I accept that Ms Shea has relevant experience and qualifications to conduct the job capacity assessments in this case. Her evidence is that she applied the relevant guidelines and had regard to the medical reports of Dr Forster and Dr Chandran.[10] Ms Shea gave oral evidence that on both occasions she assessed Ms Bennetts’ chronic back pain and related cognitive and psychological symptoms were the most significant factors affecting her work capacity. I accept that Ms Shea carefully considered the information provided to her by Ms Bennetts on both occasions, noting in October 2008 that Ms Bennetts back condition had deteriorated. That is consistent with Ms Bennetts’ oral evidence and that of Mr Fulton, the veracity of which was not seriously challenged. That being so, I accept Ms Shea’s assessments of Ms Bennetts work capacity in March and October 2008.
11. Ms Shea explained the reasoning underlying her conclusion that Ms Bennetts’ ability to work or to undertake training was likely to improve with the listed interventions (in both assessments). It appears that Ms Shea drew on her professional expertise and experience working as an occupational therapist and rehabilitation consultant, referring to her previous rehabilitation experience concerning back injuries and chronic pain conditions. On Ms Shea’s evidence a pain management program was the most significant intervention that was likely to improve Ms Bennetts’ ability to work. Ms Shea gave evidence about her previous experience of such programs in a rehabilitation context and the likelihood of positive results in Ms Bennetts’ case. I accept this evidence.
12. On that evidence I am reasonably satisfied and find that, as of 10 December 2007 and within 13 weeks thereafter, Ms Bennetts’ lower back impairment, including her chronic pain, was not of itself sufficient to prevent her working at least 15 hours per week independently of a program of support in the following two years. That being so, I am satisfied that Ms Bennetts did not have a continuing inability to work at least 15 hours per week as a result of her lower back impairment and related pain during the relevant period.
13. Ms Bennetts’ lower back impairment and her chronic pain were not the only factors affecting her ability to work. There were other conditions, including depression, anxiety and morbid obesity (which had not been fully documented, diagnosed, treated and stabilised) and other factors, including her limited educational background, low motivation and long period of time out of the workforce (since 2004) that adversely impacted upon her ability to work in the period from December 2007. Considering these factors, I accept that it is unlikely Ms Bennetts would have been able to work independently of a program of support within the 2 years from December 2007. Unfortunately for Ms Bennetts, however, the test set out at paragraph 94(2)(a) of the Social Security Act is not generally inclusive in terms and refers only to the particular impairment. Ms Bennets’ lower back impairment did not render her unable to work 15 or more hours per week independently of a program of support with the relevant 2 year period. Thus, for these reasons, I am reasonably satisfied that Ms Bennetts was not within the terms of the subsection within 13 weeks of lodging her claim and she did not have a continuing inability to work at that time.
14. It follows that her claim is not made out and the decision under review must be affirmed.
15. There are two things to say in closing. First, even if Ms Bennetts was within the terms of sub-section 94(2)(a), she is not within the terms of 94(2)(b) – I am not persuaded that her lower back impairment and related pain prevented her from undertaking training activity within the relevant two years. As these are conjunctive requirements, it follows that Ms Bennetts did not satisfy the requirements of s 94 and did not, therefore, have a continuing inability to work. Second, at the time Centrelink rejected Ms Bennetts first claim for DSP there was only scant evidence available from Dr Forster and Dr Chandran. Centrelink relied upon Ms Pearce to conduct a job capacity assessment, which was determinative. It is not clear whether Ms Pearce is medically qualified, although that appears unlikely as she records her qualifications as ‘other’.[11] In such circumstances it would be reasonable to expect either that Ms Bennetts would be examined and assessed by a suitably qualified doctor for the purposes of properly assessing her claim or, at least, that additional and more detailed information concerning her impairments and her work capacity would be obtained from her treating doctor.
    

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member.

Signed: .............[Signed]....................................

Demelza-Rose Gale

Associate

Date of Hearing 29 January 2009

Date of Decision 4 February 2009

Representative for the Applicant: Unrepresented

Representative for the Respondent: Mr W. Lind

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[1] Social Security Act 1991 s 94(1)(c)(i).
[2] T9, folios 61-62.
[3] T9, folio 62.
[4] T9 folio 82.
[5] T19 folio 84.
[6] T19 folio 82.
[7] Exhibit A1.
[8] T19.
[9] Exhibit R1.
[10]T5.
[11] T9 folio 58.