Andrews and Secretary, Department of Social Services (Social services second review)

[2017] AATA 570

Andrews and Secretary, Department of Social Services (Social services second review) [2017] AATA 570 (21 March 2017)

Division:GENERAL DIVISION

File Number:           2016/4139

Re:Ian Andrews

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member Britten-Jones

Date:21 March 2017

Date of written reasons:        28 April 2017

Place:Adelaide

For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review.

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Senior Member Britten-Jones

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether medical conditions fully diagnosed, fully treated and fully stabilised during the relevant period - whether applicant has a severe impairment - whether continuing inability to work - application for review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999

CASES

Re Coates And Secretary, Department of Employment and Workplace Relations [2006] AATA 938

Re Fanning and Secretary, Department of Social Services [2014] AATA 447

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member Britten-Jones

28 April 2017

1. At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish him with a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for decision have been transcribed by DTI Corporation Australia Pty Ltd.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3. The said transcript is annexed hereunto and furnished to the applicant and to the respondent as it is the reason for the Tribunal’s decision.

I certify that the following  paragraphs are a true copy of the reasons for the decision herein of Senior Member Britten-Jones

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Administrative Assistant

Dated: 28 April 2017

Date(s) of hearing:	21 March 2017
Applicant:	In person
Advocate for the Respondent:	Ms L Wells
Solicitors for the Respondent:	Sparke Helmore Lawyers

EXTRACT OF TRANSCRIPT PROCEEDINGS

1. SENIOR MEMBER:  I will proceed to read out my reasons and then to give you my decision at the end of the reasons that I have given, so if you will just bear with me for a little while.

2. Whilst overseas in Bali, Mr Andrew tripped over and hurt his left foot which then swelled up, causing him to delay his trip home.  When he did return he immediately went to his local medical clinic in Tanunda and saw a general practitioner by the name of Dr Kate Ton, T-o-n.  That was on 29 September 2015.  She immediately referred him to a radiologist, Dr Mahendra who prepared a report dated 30 September 2015.

3. The scan taken was “quite highly suggestive of Charcot foot”.  Dr Ton considered the radiologist’s report and provided Mr Andrews with a medical certificate on 20 October 2015 which described a primary condition of Charcot joint and a secondary condition of osteoarthritis.  The Charcot joint condition was described by Dr Ton as temporary.  The symptoms were, “severe foot pain with weight bearing activities due to non-healing fracture”.  It recorded pas treatment as “nil” current treatment as “complete non‑weight bearing through left foot, on crutches currently.”  Planned treatment was a review with an orthopaedic specialist.

4. Three days later on 23 October 2015,  Mr Andrews completed a disability support pension application form which was then lodged on 27 October 2015.  In his claim Mr Andrews identified the following conditions of “Arthritis, Type 2 diabetes and Charcot foot and chronic ulcerative colitis”.

5. By letter dated 29 November 2015, Mr Andrews was notified of Centrelink’s decision that he was not eligible for the disability support pension as he was assessed as having an impairment rating of less than 20 points.  There was an internal review on 9 February 2016 which affirmed the earlier decision.

6. By application lodged on 12 April 2016 Mr Andrews asked the Administrative Appeals Tribunal at tier 1 to review the decision of the review officer. 

7. On 1 July 2016 the AAT tier 1 affirmed the decision and made findings in relation to Mr Andrews’ condition including that the Charcot foot was not fully diagnosed, treated and stabilised at the time of the claim and therefore did not attract any impairment points.  So too with the osteoarthritis and with respect to the diabetes and ulcerative colitis there was insufficient evidence.

8. Mr Andrews was assisted at the hearing by Mr Paul Barbaro from the Disability Rights Advocacy Service at Mile End.  It was accepted by Mr Andrews that in order to qualify for a disability support pension he needed to attract 20 points under table 3 of the impairment tables and have a continuing inability to work.

9. Consequently the issues in dispute were first, was the Charcot foot fully treated and stabilised, noting that the fact that it was fully diagnosed has been conceded by the respondent.  Second, if the Charcot foot was fully diagnosed, treated and stabilised, was Mr Andrews entitled to 20 points under table 3 with respect to his impairments arising from that condition and thirdly, did Mr Andrews have a continuing inability to work.

10. The relevant legislation is contained in the Social Security Act, the Social Security Administration Act, the Social Security Tables for Assessment of work related impairment for disability support pension determination - known as the Impairment Tables and also the Social Security Active Participation for Disability Support Pension Determination, known as the POS Determination.

11. Section 94 of the Social Security Act sets out the qualification criteria for disability support pension. It provides that a person is qualified if they have a physical, intellectual or psychiatric impairment and that impairment attracts an impairment rating of 20 points or more from the impairment tables and the person has a continuing inability to work.

12. Part 2 of the impairment tables contain rules for the application of the impairment tables.  The tables are function based rather than diagnosis based. 

13. “Impairment” is defined to mean a loss of functional capacity affecting a person’s ability to work that result from the person’s condition.  A person’s impairment it to be assessed on the basis of what the person can or could do, not on the basis of what the person chooses to do or what others do for the person, subsection (6)(1) of the Rules.  The impairment tables may only be applied after the person’s medical history has been considered.  An impairment rating can only be assigned if the condition causing the impairment is permanent and the impairment is likely to persist for more than two years.  See subsections (6)(2) and (3) of the Rules.

14. A condition is permanent if it is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years.  See sections 6(4) to 6(7) of the Rules.

15. Subsection (6)(5) of the Rules states that in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following is to be considered;  first, whether there is corroborating evidence of the condition and second, what treatment or rehabilitation has occurred in relation to the condition, and third, whether treatment is continuing or is planned in the next two years.

16. Subsection (6)(6) states that a condition is fully stabilised if the person has undertaken reasonable treatment for the condition or the person has not undertaken reasonable medical treatment for the condition and certain other criteria apply.

17. In the Administrative Appeals Tribunal decision of Re Coates [2006] AATA 938, Hack SC DP, said at paragraph 21,

    It is, I think, important to realize that “temporary” is used by Centrelink in this context in a special sense. It is a shorthand way of describing a condition which is not, at that time, capable of being regarded as being permanent. That judgment is to be made on the basis of the material capable of throwing light on the issue of whether the conditions were, at the relevant time, fully documented and diagnosed conditions which had been investigated, treated and stabilised.

18. In a further decision of the Administrative Appeals Tribunal of Re Fanning [2014] AATA 447, Handley DP noted at 33

    The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years”. While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.

19. It is also noted that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned, see Rule 6(8).

20. These Rules, together with those authorities are particularly relevant in this matter, as the issue relates to whether the condition was fully treated and stabilised.

21. The relevant qualification period, it was not in dispute, is the period from 27 October 2015 until 26 January 2016. Further, it is not in dispute and it is accepted by the department that during that relevant period Mr Andrews had an impairment and therefore satisfied section 94(1)(a) of the Act.

22. Mr Andrews gave evidence at the hearing before, in particular he gave evidence about the accident that occurred in Bali when he slipped and landed heavily on his foot.  He said that on his return home he made an appointment to see a general practitioner at the Tanunda medical clinic, Dr Ton and he was referred for x-rays with Benson’s Radiology in Salisbury and Angaston. 

23. Dr Ton then listed the condition as a temporary condition which Mr Andrews considered was incorrect based on information that he received thereafter.

24. Having been to the radiologist and been to see Dr Ton it was suggested that he attend the Lyle McEwin Hospital, given a delay with respect to seeing a specialist.  The Lyle McEwin Hospital was able to provide him with a moon boot.

25. When he was finally seen at the Royal Adelaide Hospital later in 2015 or early 2016, it is not clear exactly what date, the Royal Adelaide Hospital made him a SROW boot.  SROW stands for Charcot Restraint Orthotic Walker.  However after about four weeks, Mr Andrews was unable to use the boot due to severe swelling and discomfort.  Thereafter he was provided with an orthotic shoe which similarly caused problems including soreness and swelling due to pressure and limited support and so later Mr Andrews was provided with an Air walker by the Royal Adelaide Hospital, which is a type of moon boot with a greater support.

26. In the relevant period in 2015 and 2016 Mr Andrews was in considerable pain.  He described the impact that the Charcot foot had on his life as severe.  He had to kneel on a chair to do the dishes, for example, because he could not stand.

27. During this relevant period Mr Andrews lived by himself and he said that he had no help and in particular no family to assist him.  He had broken up with his wife and his wife’s family lived in Bali.  He did have some friends who helped him and took him shopping.  He said that he was able to walk with assistance but when he went into the shopping centre for example, he would lean on a trolley to support himself.  He did his shopping when required and when he was able to obtain assistance from a friend.  He went shopping he said, about once a fortnight or once a week.  He was able to drive to the shopping centre because he has an automatic vehicle which means that he does not have to use his left foot.

28. He gave evidence that he was able to walk around the shopping centre and that he would park about 10 metres away in the handicapped zone from the supermarket and if on his own he could handle one or two aisles but nothing more than that.  He said that he liked to get his own vegetables and meat from the supermarket.  When he did do this it caused his foot to swell.

29. He said that he used the door frames to get up when sitting on the toilet and that he has difficulty getting up from his dining room chair but he is able to do it but it does take some time.  Getting out of bed is difficult and involves a rolling over manoeuvre.

30. He has far of showering himself so he only does that once or twice a week.  He does not stand to shave but rather sits down in front of the mirror.  One of his friends mows his lawn.  He is not in a position to carry boxes and as a result there are many boxes in his house which remain unpacked.

31. He said that he prefers to be up at night because during the day his foot swells up whereas in the evening he can sit outside in the cold.  As a result he often sleeps during the day.

32. He described having two friends in the Barossa Valley and that he has only seen his daughter four times in 18 months.  He does not socialise much except once a week when he drives to his friend in Greenock. 

33. His other friend he sees once every couple of months, who is from Nuriootpa.  He referred to one of those friends as the one who mows the lawn and that he comes around about once every three months before he has a rental inspection.  He said that he cannot hang out the washing and so he often puts it in the dryer and that his friends help him with the washing.

34. Under cross-examination Mr Andrews said that he has been living alone for the past three years and was living alone when he lodged his claim for the disability support pension.  He referred to having a disabled parking permit and said that he could drive to the shop alone but he was not a frequent shopper.  He said that he could get in and out of the car and go inside the shop alone but only did so when he needed to and friends were not able to assist.  Even when alone he was aided by crutches but he described the exercise of going shopping alone and moving through the aisles shopping in the supermarket as being a high risk exercise and something that he only does if he has to.

35. He said that he would make perhaps one out of five trips to the supermarket on his own and that on the other occasions he would be accompanied by his friends.

36. With respect to general living, he said that he does do shopping when he does not have his friends to help him.  He also said that he is able to drive to doctors’ appointments and that he is able to get himself out of the car and into see the doctor but he always is able to park nearby.

37. Dr Geyer, G-e-y-e-r also gave evidence orally over the telephone at the hearing.  He is a general practitioner also based at Tanunda.  Dr Geyer referred to the initial diagnosis made by his colleague, Dr Ton, and described it as a full diagnosis with no chance of improvement.  He said that the main impact on Mr Andrews was pain and loss of mobility and referred to the arthritic destruction of bones in the foot which is characteristic of Charcot foot.  He said that there is a natural tendency for that condition to get worse and not to improve.

38. He said that Mr Andrews was referred to an orthopaedic surgeon at the Royal Adelaide Hospital and the effect of that referral was that they could not treat him or do anything to treat or improve the Charcot foot condition.

39. He said that this had an impact on his ability to perform work as a massage therapist and provided the added problem of not being able to re-train.  He said that the loss of mobility impacts upon the daily life of Mr Andrews.

40. Under cross-examination by Ms Wells he accepted Dr Geyer accepted that he did not consult - or it was most possible that he did not consult with Mr Andrews during the relevant period in late 2015 and early 2016.  As to whether or not Mr Andrews was capable of sedentary work, Dr Geyer agreed that he would be but qualified his answer by saying that he had other conditions besides the Charcot foot which prevented him from carrying out sedentary work using his hands and therefore he considered it was not an appropriate question.  Nevertheless, upon being requested to consider the Charcot foot condition on its own, Dr Geyer accepted that he could perform sedentary tasks.

41. Dr Geyer also accepted with respect to a condition such as Charcot foot, a general practitioner would normally rely on a specialist for a final diagnosis.

42. Next I will consider the further medical reports which are relied upon in support of the claim for the disability support pension.  I have already referred to the radiologist’s report of 30 September 2015 and the medical certificate from Dr Ton dated 20 October 2015.

43. The next report I have considered is the report of Dr Kate Ton dated 15 January 2016.  In that report she refers to the two conditions being the osteoarthritis of the knees, together with the Charcot foot condition.  She says in that report that the second condition was a new diagnosis which was confirmed by a specialist orthopaedic surgeon as Charcot foot which since the report has been deteriorating and that Mr Andrews’ prognosis is worsening, looking like this condition too will now be permanent.  She referred to Mr Andrews having another appointment with a specialist orthopaedic surgeon on 27 February.  She referred to his condition as deteriorating and the prognosis is worsening, as set out in the first paragraph of the report.

44. The next report is from Dr Tom Gieroba, G-i-e-r-o-b-a from the Orthopaedic and Trauma Service at the Royal Adelaide Hospital.  Dr Gieroba confirmed that when he had previously seen Mr Andrews he was put into a CROW walker but he was unable to wear that for the past two months.  He said that his mid foot is now stable and his tendons are working.  He noted the x-ray shows a mod-foot  collapse and that Mr Andrews is now in Stage 3 Charcot.  He says that he will see him again in three months’ time for a repeat x-ray.  He said that Mr Andrews is unable to work in any meaningful capacity because of his painful left foot.  He says, I quote,

    As far as when he will be able to return to work it is very difficult to predict and could be any time between six weeks and one year.

45. However he said that he would keep Dr Ton advised regarding his progress.

46. The next report is another medical certificate from Dr Ton dated 10 March 2016.  This time Dr Ton records the condition of left Charcot foot as permanent and says that his symptoms include being unable to mobilise on the left foot due to a worsening of condition and the potential need for an amputation if he does so.  He refers to constant pain and swelling of the left foot.

47. With respect to treatment Dr Ton says that the current treatment is pain relief and crutches to prevent mobilisation and ongoing specialise review with respect to planned  treatment.  She says ongoing pain relief, prevention of mobilisation with walking aid and specialist review.

48. I note that that report postdates the relevant period which comes to an end in January 2016, also later than the relevant period is a report from the Royal Adelaide Hospital dated 20 June 2016 which describes severe mid-foot Charcot and describes this as a permanent condition that is very difficult to treat and requires long term follow up and multi-disciplinary review.  That report says that Mr Andrews needed a total contact casting but is having financial logistical issues.

1. In terms of making a decision with respect to qualification of the disability support pension, one must consider the table 3 of the impairment tables relating to lower limb function.  That of course requires it to be a permanent condition before any points can be allocated.  As was previously stated, in order for Mr Andrews to qualify for the disability support pension, he would need to establish 20 points under that table, namely that there is a severe functional impact on activities using lower limbs. 

2. With respect to the impairment tables and the rating of 20 points, in order to be considered to suffer from a severe functional impact, the person must be unable to do any of the following things; firstly, walk around a shopping centre or supermarket without assistance.   Secondly, walk from the car par into a shopping centre or supermarket without assistance and third, stand up from a sitting position without assistance.  The assistance which is referred to means assistance from another person, in other words Mr Andrews must be unable to walk around a shopping centre or supermarket without assistance from another person.  It is my finding that in fact Mr Andrews is able to walk around a shopping centre or a supermarket on his own which he has said that he does so, although he has made it clear that his strong preference is to have assistance from a friend.  It is also unclear from the evidence that Mr Andrews gave that Mr Andrews is able to walk from the car park into a shopping centre or the supermarket  on his own, namely without assistance from another person.

3. It is also clear from the evidence that Mr Andrews gave that he is able to stand up from a sitting position without assistance from another person.  In other words he is able to do that on his own although he may pull himself up when carrying out that manoeuvre.

4. It is my finding that Mr Andrews does not attract 20 points.  The Charcot foot does not have a severe functioning impact on his activities using his lower limbs.

5. I also consider that Mr Andrews has not established a continuing inability to work, which is a further requirement of section 94 of the Social Security Act. It was recorded in the job capacity assessment report that he has a base line work capacity of between 15 and 22 hours per week and that suitable work would be in the nature of sedentary tasks.

6. It therefore follows that section 94 of the Social Security Act has not been satisfied and it is the finding of the tribunal that the decision under review is affirmed.

7. Mr Andrews, that means you have been unsuccessful with respect to this application.  What I have said today does not impact upon your later application which I understand had already been determined at the Centrelink level but you are free to take whatever steps you are entitled to under that  process.

8. My findings today only relate to your application which was brought back in October of 2015 and my findings relate to the period from October through to January 2016 and unfortunately for you those findings are against you.

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