Allan Lambie and Secretary, Department of Social Services

[2014] AATA 907

[2014] AATA 907  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/5432
Re	Allan Lambie
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr M Denovan, Member
Date	8 December 2014
Place	Brisbane

The Tribunal affirms the decision under review.

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Dr M Denovan, Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – DSP – 20 points or more under the Impairment Tables – Decision affirmed.

LEGISLATION

Social Security Act 1991 (Cth), ss 23, 26, 94
Social Security (Administration) Act 1999 (Cth), s 13, Schedule 2

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 6

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr M Denovan, Member

8 December 2014

INTRODUCTION

1. Mr Allan Lambie is the applicant in these proceedings. He applied for

   
   

   disability support pension (“DSP”) on 13 May 2013. On 10 July 2013 the respondent decided to reject his claim. An Authorised Review Officer (“ARO”) affirmed that decision on 21 August 2013 as did the Social Security Appeals Tribunal (“SSAT”) on

   
   

   1 October 2013. The applicant applied to the Administrative Appeals Tribunal (“AAT”) on 20 October 2013.

2. It is not in dispute that the applicant suffers from a number of medical conditions. The respondent contends that the applicant can only be allocated a total of 10 points from the Impairment Tables, and therefore does not meet all of the legislative requirements necessary to qualify for DSP.

   ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION

3. The Social Security Act 1991 (Cth) (“the Act”) sets out the qualification criteria for DSP. To the extent that it is relevant for present purposes, s 94 of the Act provides that the applicant must:

   ·have a physical, intellectual or psychiatric impairment; and

   ·have an  impairment of 20 points or more under the Impairment Tables;[1] and

   ·have a continuing inability to work.

   [1] See s 23 of the Act, whereby “Impairment Tables” means the tables determined by an instrument made under s 26(1) of the Act.

4. Under Sch 2 cl 4(1) of the Social Security (Administration) Act 1999 (Cth)

   
   

   (“the Administration Act”), an applicant must qualify for a social security payment, in this case DSP, on the day on which the person made the claim or within 13 weeks of that date (“the relevant period”). In this case the relevant period is from 13 May 2013 and

   
   

   12 August 2013.

5. There are rules for applying the Impairment Tables, contained in those

   
   

   Impairment Tables, in deciding if a person qualifies for DSP. The Impairment Tables are functional based, not based on the diagnosis. Ratings are assigned to reflect the level of functional impact from impairment of conditions that have been accepted to be permanent, and fully diagnosed, fully treated and fully stabilised.

6. A person’s functional capacity rated under the Impairment Tables concerns their capacity to work. The presence of a diagnosed condition does not necessarily mean that there will be a functional impact to which an impairment rating can be assigned from the Impairment Tables.

7. A person is regarded as having a continuing inability to work under s 94 of the Act if the Secretary is satisfied that:

   ·they have an inability to work for 15 hours or more a week due to their accepted impairments; and

   ·they have actively participated in a program of support.

   This second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.

8. Before an impairment rating can be assigned under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Determination”),[2] it is necessary to determine whether Mr Lambie’s conditions can be regarded as being permanent and the impairment resulting from those conditions is likely to persist for more than two years.[3] A condition will be considered permanent where it has been fully diagnosed, fully treated and fully stabilised.[4]

   [2] The Determination was made by the Minister pursuant to s 26(1) of the Act.

   [3] Subsection 6(3) of the Determination.

   [4] Subsection 6(4) of the Determination.

9. Ms Forsyth, for the respondent, accepts that Mr Lambie suffers from the following condition, and therefore satisfies section 94(1)(a) of the Act:

   ·C6-7 with neuroforaminal stenosis/ neck condition.

10. The issues that I must determine are:

    ·Which, if any of Mr Lambie’s conditions can be allocated an impairment rating; and

    ·If any can be rated, whether he has 20 impairment points or more; and if so whether he has a continuing inability to work.

    CONSIDERATION

    Does Mr Lambie have any conditions that can be allocated a rating from the Impairment Tables?

11. Mr Lambie gave evidence by telephone at the hearing. The information provided in this decision pertaining to his account of his medical conditions is that which he gave in oral evidence, unless otherwise specified.

    Neck problem, C6-7 neuroforaminal stenosis

12. Mr Lambie told me that as a result of his neck condition he has trouble standing or sitting for more than 30 minutes at a time. He also has difficulty standing up after using the toilet, and at times needs the assistance of his wife. He said that he also has difficulty raising his arms above shoulder height due to pain in his neck. Were he to sit in a car for more than 30 minutes, the muscles in his neck would freeze up, and he would require three days to recover. The pain across the back of his neck is a burning sensation.

13. Mr Lambie claims a general practitioner has told him that he runs the risk of losing feeling in both arms if he continues to exert himself in spite of the pain. Mr Lambie does not deny being able to use his neck, he claims he can do anything, but he will pay the price with pain and incapacity if he pushes his neck beyond what he knows he is capable of.

14. He does not take any pain relieving medication, however he does take valium to relieve the muscle tightness. He has tried physiotherapy and chiropractor without much benefit, and currently performs some stretches at home, for temporary relief, when necessary.

15. Mr Lambie said he sold his truck about 18 months ago, and gave up his furniture removal business at the same time. He has not worked since. He spends his days stretching and lying around. He goes out rarely, and does very little in the house or garden by way of domestic duties. He can mow the lawn; it is a very small lawn and only takes three minutes. He requires someone else to start the lawn mower. He does help for

    
    

    30 to 45 minutes a week around the house. His wife performs most of the cooking and domestic tasks.

16. Mr Lambie enrolled in an online business course about four months ago. Assessment is every three months. He can only perform about 15 minutes work in relation to this course a day, because of his neck pain. He is not very computer literate, but even if he was, he would be prevented from spending much time on the computer due to his neck pain.

17. The respondent accepts Mr Lambie’s neck condition is fully diagnosed, fully treated and fully stabilised. The Respondent contends 10 impairment points from Table 4 of the Impairment Tables is the appropriate rating. Mr Lambie believes his neck condition has worsened since he lodged his application.

18. To be regarded as having a severe functional impairment, and be allocated 20 points, a person must be unable to:

    (a)perform any overhead activities, or

    (b)turn their head, or bend their neck, without moving their trunk; or

    (c)bend forward to pick up a light object from the desk or table; or

    (d)remain seated for at least 10 minutes.

19. Mr Lambie believes he should be allocated 20 impairment points for his neck condition. His contention is that the assessment of the Job Capacity Assessment (“JCA”) assessor should be preferred to that of Health Professional Advisory Unit assessor,

    
    

    Dr Mieka Tabart.

20. Mr Lambie was assessed by a JCA assessor on 20 May 2013, and allocated 20 points from Table 4 for what was then described as a ‘spinal condition’. The assessor was a psychologist, and it seems he made an allocation of points based on the history and examination of findings he made during the interview with the applicant, as he did not have access to the reports of Dr Matt Scott-Young or Dr Tabart.

21. Mr Lambie said that at the time of his JCA, he had just finished working. He said his neck was much better when assessed by Dr Matt Scott-Young because by the time of that assessment, he had been off work for a number of months, giving his neck time to relax. He believes that state of his neck as at the time of his JCA assessment is more realistic as it is that state he would be in if he had to work. Whilst that may be true, there is no medical evidence that supports the assessment contained in the JCA. It is a legal requirement that the allocation of points from the Impairment Tables be done so on the basis of corroborating medical evidence, and not solely on the history and capacity reported by the applicant. The findings of the assessor are inconsistent with that of

    
    

    Dr Scott-Young. The assessment of spinal function is not within the expertise of a psychologist, and I find the conclusions made by the JCA assessor to be unreliable.

22. Dr Scott-Young examined the applicant and reported that he has reasonable range of flexion in the neck, however there is reduced range of extension and rotation to the right and left. 

23. Mr Lambie claims to develop pain after performing overhead activities, however he admits to being able to perform such activities. Dr Scott-Young noted that if he does any lifting over his head he gets a severe burning pain, and he states that it is almost like his shoulders are on fire. In the report of Dr Mawe, it is stated that Mr Lambie is “unable to do any overhead lifting” and that pain in the cervical and thoracic back and across both shoulders is precipitated by heavy lifting/overhead lifting. By implication in both the reports of Dr Eoin Mawe and Dr Scott-Young, Mr Lambie is capable of performing overhead activities, even though to do so does cause him discomfort.

24. On the basis of reports of Dr Scott Young and Dr Mawe, I find that neither criteria

    
    

    (a) or (b) for 20 points are satisfied. There is no medical evidence to support a finding that criteria (c) is satisfied, and it is the applicant’s own evidence that he can sit for a period longer than the minimum set out in criteria (d). None of the criteria are satisfied, and Mr Lambie cannot be allocated 20 impairment points from Table 4 of the Impairment Tables.

25. To be assessed as having 10 impairment points (moderate impairment), one or more of the four criteria set out in the respective part of the table must be met. Dr Tabart considered it reasonable to allocate 10 impairment points, on the basis of the medical report of Dr Mawe dated 10 May 2013. I agree with the opinion of Dr Tabart, and find that on the basis of all the material before me, the appropriate rating from Table 4 of the Impairment Tables is five to 10 points. I accept it is reasonable to allocated

    
    

    10 impairment points.

    Hip problems

26. Mr Lambie also suffers from problems in his hips, however no medical evidence relating to his hips is before the Tribunal, and Mr Lambie acknowledges that at the time of his application, he did not perceive his hips were a permanent problem impacting on his capacity to work.

    Other conditions

27. Mr Lambie also has a number of other medical conditions, including reflux, hypercholesterolemia, hypertension and ischaemic heart disease, however he does not contend that any of these conditions impact on his capacity to work. The condition or conditions affecting Mr Lambie’s hips have not been fully diagnosed, fully treated and fully stabilised within the assessment period, and cannot be allocated a rating from the Impairment Tables.

    CONCLUSION

28. Mr Lambie cannot be allocated more than a total of 10 impairment points for any of the medical conditions he claims impair his functional capacity. As he does not have a combined impairment rating of 20 or more points, he does not satisfy

    
    

    s 94(1)(b) of the Act. I therefore do need to not consider whether he had a continuing inability to work.

    DECISION

29. The decision under review is affirmed.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member.

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Associate

Dated 8 December 2014

Date of hearing	18 November 2014
Applicant	In person
Solicitors for the Respondent	Jasmine Forsyth, Department of Human Services