Aryeh Jacob and Secretary, Department of Social Services
[2014] AATA 248
[2014] AATA 248
Division General Administrative Division File Number
2013/1197
Re
Aryeh Jacob
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Dr J Chaney, MemberDate 28 April 2014 Place Perth The decision under review is affirmed.
......(Sgd) S Hotop......................
S D Hotop
Deputy President
CATCHWORDS
SOCIAL SECURITY – disability support pension – applicant has impairment – applicant’s impairment is of 5 points under Impairment Tables – applicant does not have severe impairment – Tribunal not satisfied that applicant has continuing inability to work – applicant not qualified for disability support pension – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth), s 94
Social Security (Administration) Act 1999 (Cth), s 41(1), s 42 and Sched 2, cl 4(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Deputy President S D Hotop
Dr J Chaney, Member28 April 2014
Introduction
Aryeh Jacob (“the applicant”) has applied to the Tribunal for review of a decision of the Social Security Appeals Tribunal (“SSAT”), dated 4 February 2013, which affirmed a decision of a Centrelink Authorised Review Officer (“ARO”), dated 17 December 2012, rejecting the applicant’s claim for disability support pension (“DSP”) under the Social Security Act 1991 (Cth).
The Evidence
The evidence before the Tribunal comprised the “T Documents” (T1–T59, pp 1–211) lodged by the Secretary, Department of Social Services (“the respondent”) in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), and:
·a bundle of documents tendered by the applicant (Exhibit A1); and
·the oral evidence of the applicant.
Background
The following relevant background appears from the T Documents.
On 18 September 2012 the applicant (who was born in September 1958) lodged with Centrelink a completed claim for DSP signed by him, listing his disabilities as “depression” and “sleep disorder”. (T33)
A DSP Medical Report, dated 18 September 2012, completed by Dr Sak Punyanitya referred to 2 conditions having a “significant impact on the [applicant’s] ability to function”, namely, “depression” and “severe obstructive sleep apnoea”, and 2 conditions that were “generally well managed” and caused “minimal or limited impact on [the applicant’s] ability to function”, namely, “back pain” and “hypertension”. As regards the condition of “depression”, Dr Punyanitya indicated that:
·the diagnosis was “confirmed”;
·the applicant’s history was that he was depressed, secondary to his “life situation”;
·the applicant’s symptoms were that he was depressed and “feels down” and his “mood is bad”;
·the applicant’s current and future treatment comprised “Pristiq” medication (100 mg per day) and “psychological counselling”;
·the current effects of the condition on the applicant’s ability to function were that he was “unable to concentrate” and had “problems with daily activities of living”;
·the current impact of the condition on the applicant’s ability to function was expected to persist for “more than 24 months”;
·within the next 2 years the effect of the condition on the applicant’s ability to function was expected to “fluctuate”.
As regards the condition of “severe obstructive sleep apnoea”, Dr Punyanitya indicated that:
·the diagnosis was “confirmed”;
·the applicant’s history and current symptoms were that he was “unable to concentrate during the day – severe lethargy”;
·as regards treatment, the applicant “will try CPAP”;
·the current effects of the condition on the applicant’s ability to function were that he was “unable to concentrate” and “tend(ed) to be drowsy most of the day”;
·the current impact of the condition on the applicant’s ability to function was expected to persist for “more than 24 months”;
·within the next 2 years the effect of the condition on the applicant’s ability to function was expected to “fluctuate”. (T32)
A Job Capacity Assessment Report, dated 2 October 2012, which was prepared on the basis of a “file assessment” undertaken by a registered occupational therapist and a registered psychologist on that date, referred to various conditions suffered by the applicant as follows:
·depression – although “verified by medical evidence” and a “permanent” condition, there is “insufficient evidence to determine if there is psychiatrist or clinical psychologist interventions” and, accordingly, it is deemed not to have been “fully diagnosed, treated and stabilised”;
·hypertension – although “verified by medical evidence”, “fully diagnosed”, and a “permanent” condition, there is “insufficient medical evidence … to determine if condition is fully treated and stabilised”;
·osteoarthritis – the applicant has been diagnosed with “bilateral knee osteoarthritis” according to a treating doctor’s report dated 6 July 2011, and current treatments comprise anti-inflammatory painkillers, GP management, and referral to a pain clinic on 24 August 2012;
·“eye anomaly – unspecified” – the applicant has been diagnosed with “diplopia” according to a medical certificate dated 5 May 2011 but the condition is not currently being treated;
·“respiratory disorder – other” – the applicant was diagnosed with “sleep apnoea” on 30 July 2012 and the condition is “fully diagnosed” and “permanent” but it is not “fully treated and stabilised” as the applicant is awaiting further treatment, namely, the trialling of a CPAP device:
·“spinal disorder – other” – “back pain” is deemed to be a “temporary” condition in the absence of “adequate medical evidence”;
·“post traumatic stress disorder” – although “verified by medical evidence” and a “permanent” condition, there is “insufficient medical evidence to determine if there has [sic] been interventions by psychiatrist or clinical psychologist” and, accordingly, it is deemed not to have been “fully diagnosed, treated and stabilised”.
The applicant was assessed as having a “temporary work capacity” of “0–7 hours per week” and a “baseline work capacity” of “15–22 hours per week”. As regards “fully diagnosed, treated and stabilised” medical conditions, the applicant’s work capacity was assessed as “30+ hours per week” on the basis that he did not have any such conditions. (T35)
By letter dated 6 October 2012 a Centrelink officer notified the applicant that it had been decided that he was “not eligible for Disability Support Pension” on the ground that he had been “assessed as not having an impairment rating of 20 points or more”. (T36)
On 17 December 2012 a Centrelink ARO affirmed the abovementioned decision of 6 October 2012 to reject the applicant’s claim for DSP. (T43)
On 4 February 2013 the SSAT affirmed the ARO’s decision of 17 December 2012. (T2)
The Applicant’s Evidence
The applicant tendered in evidence a bundle of documents comprising various medical reports and other documents relating to medical conditions. These documents include the following:
·a report of Dr Richard Magtengaard, Consultant Psychiatrist, dated 3 July 2013, regarding the applicant’s current psychiatric status;
·a medical certificate issued by Dr Punyanitya on 5 July 2013 certifying the applicant’s unfitness for work/study from 5 July 2013 to 5 October 2013 by reason of severe obstructive sleep apnoea and chronic severe depression and anxiety;
·documents relating to the applicant’s use of a CPAP device for his severe obstructive apnoea condition from May 2013;
·documents relating to the applicant’s heart condition in the period from September 2013 including a CT Coronary Angiogram report, dated 12 December 2013;
·various radiology reports regarding the applicant’s left forearm, left foot and cervical spine issued in the period from 28 May 2013 to 30 October 2013;
·an EMG report of Dr Peter Silbert, Neurologist, dated 8 October 2013, regarding the applicant’s wrists, and four reports of Dr Silbert, dated 21 October 2013, 6 November 2013, 20 November 2013 and 24 December 2013, regarding the applicant’s right arm pain, neck pain, anxiety, and chest pain;
·a Discharge Summary issued by Sir Charles Gairdner Hospital, Department of Emergency Medicine, on 14 January 2009 regarding the applicant’s admission on 13 January 2009 at 1.31 pm, following a collapse because of a loss of consciousness, and his discharge on 13 January 2009 at 6.00 pm.
At the hearing the applicant spoke at length about his present state of health generally, including, in particular, his concern about his heart condition resulting from calcification of his coronary arteries and his fear of suffering a future heart attack, and he also referred to his concern about his financial security and his inability to afford appropriate medical treatment for his health problems. It is unnecessary to set out the applicant’s oral evidence in detail in these reasons.
The Relevant Legislation
Social Security Act 1991 (Cth)
Section 94 of the Social Security Act 1991 (Cth) (“SS Act”), which prescribes the qualification requirements for DSP, relevantly provides as follows:
“ (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;
…
Continuing inability to work
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) – the person has actively participated in a program of support within the meaning of subsection (3C); and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases – either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support 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 a training activity; or
(b)the availability to the person of work in the person’s locally accessible labour market.
…
Severe impairment
(3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
…
Active participation in a program of support
(3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
(3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).
(3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).
Doing work independently of a program of support
(4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a)is unlikely to need a program of support; or
(b)is likely to need a program of support provided occasionally; or
(c)is likely to need a program of support that is not ongoing.
Other definitions
(5) In this section:
‘program of support’ means a program that:
(a) is designed to assist persons to prepare for, find or maintain work; and
(b) either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii)is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
‘training activity’ means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) pre-vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work-related training (including on-the-job training).
‘work’ means work:
(a)that is for at least 15 hours per week on wages that are at or above the
relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible
labour market.
…”
The phrase “Impairment Tables” is defined in s 23(1) of the SS Act to mean “the tables determined by an instrument under subsection 26(1)”.
Pursuant to s 26(1) of the SS Act the (former) Minister for Families, Housing, Community Services and Indigenous Affairs made the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”), dated 6 December 2011. The Determination commenced to operate on 1 January 2012. The relevant Impairment Tables and other relevant provisions in the Determination will be referred to later in these reasons.
Social Security (Administration) Act 1999 (Cth)
Pursuant to s 41(1) of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”) a “social security payment” (defined in s 23(1) of the SS Act to include DSP) generally “becomes payable to a person on the person’s start day in relation to the social security payment”. Section 42 of the Administration Act provides:
“ … a person’s start day in relation to a social security payment … is the day worked out in accordance with Schedule 2.”
Clause 3(1) of Schedule 2 to the Administration Act provides:
“ If:
(a) a person makes a claim for a social security payment; and
(b) the person is qualified for the payment on the day on which the claim is made;
the person’s start day in relation to the payment is the day on which the claim is made.”
Clause 4(1) of Schedule 2 to the Administration Act provides:
“ If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.”
Pursuant to clause 4(2), a “relevant social security payment” includes DSP.
The Issue
The issue for the Tribunal’s determination is whether the applicant is qualified for DSP under s 94 of the SS Act. Pursuant to ss 41(1) and 42 of the Administration Act, and clauses 3(1) and 4(1) in Schedule 2 to that Act, the period within which the applicant’s qualification for DSP is to be assessed, for the purposes of this proceeding, is the period commencing on 18 September 2012 (being the date on which the applicant’s claim for DSP was made) and ending 13 weeks thereafter, namely, on 18 December 2012 (“the relevant period”).
Analysis
There is no evidence before the Tribunal that the applicant has, at any material time, “actively participated in a program of support within the meaning of subsection (3C)” of the SS Act, and, accordingly, the Tribunal cannot be satisfied that he has done so. Pursuant to s 94(2)(aa) of the SS Act, therefore, the Tribunal must be satisfied that the applicant has a “severe impairment”, within the meaning of subs (3B) of s 94 of the SS Act, before it can be satisfied that he has a “continuing inability to work” as (relevantly) required by s 94 (1)(c)(i) of the SS Act for qualification for DSP.
Did the applicant have a “severe impairment”, within the meaning of s 94 (3B) of the SS Act, in the relevant period?
The respondent concedes that the applicant had an impairment resulting from the following medical conditions, for the purposes of s 94(1)(a) of the SS Act, in the relevant period, namely:
·depression;
·sleep apnoea;
·hypertension;
·diplopia; and
·bilateral knee osteoarthritis.
Having regard to the medical evidence before it, the Tribunal accepts the respondent’s concession and finds that the applicant had an impairment resulting from each of the abovementioned medical conditions in the relevant period. Furthermore, the Tribunal accepts, on the basis of the DSP Medical Report of Dr Punyanitya, dated 18 September 2012 (see paragraph 5 above), that the applicant was also suffering from “back pain” resulting in impairment in the relevant period.
The applicant contended that he was also suffering from a heart condition in the relevant period and, in support of that contention, he relied on the result of an echocardiograph test conducted by Dr Keith Woollard on 8 June 2012 (T24). Dr Woollard reported as follows:
“REPORT:
The left ventricle was not dilated and systolic function was good. Wall thickness was increased and the left atrium was dilated. The aortic valve cusps showed minor thickening but no significant flow disturbance. The other cardiac valves and chambers appeared normal.
CONCLUSION: Hypertensive changes.”
The Tribunal notes that Dr Woollard’s report does not give a diagnosis of a heart condition but merely concludes that there have been “hypertensive changes”. In the Tribunal’s opinion it is appropriate to have regard to Dr Woollard’s report, together with the medical evidence regarding the applicant’s hypertension in the relevant period, for the purpose of determining the appropriate impairment rating under Table 1 in the Impairment Tables. The Tribunal also notes, however, that the CT Coronary Angiogram report, dated 12 December 2013, which the applicant tendered in evidence (part of Exhibit A1), which refers to “coronary atherosclerosis” and, “given the symptoms of chest pain”, advises “urgent cardiology review”, is not evidence of the applicant’s heart condition in the relevant period.
The Impairment Tables
Part 2 of the Determination prescribes rules for applying the Impairment Tables set out in Part 3 of the Determination. Those rules include the following:
“6 Applying the Tables
Assessing functional capacity
(1) The impairment of a person must 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.Applying the Tables
(2) The Tables may only be applied to a person’s impairment after the person’s
medical history, in relation to the condition causing the impairment, has been
considered.Note: For additional information that must be taken into account in applying the Tables see section 7.
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
a. the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4)
b. the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition my last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraph 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Impairment has no functional impact
(8) The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9) There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).”
The relevant tables in the Impairment Tables, having regard to the applicant’s abovementioned medical conditions, are as follows:
·depression – Table 5;
·sleep apnoea – Table 1;
·hypertension (including heart condition) – Table 1;
·back pain – Table 4;
·bilateral knee osteoarthritis – Table 3;
·diplopia – Table 12.
Depression: Table 5 – Mental Health Function
The Introduction to Table 5 states (inter alia) as follows:
“· Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
o a report from the person’s treating doctor;
osupporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
o interviews with the person and those providing care or support to
the person.
…”
Although the applicant, as at the relevant period, had not been diagnosed with depression by a psychiatrist, he had then been so diagnosed by general practitioners (including Dr Punyanitya) and psychologists, namely, Mr Graneri (T21) and Dr Lishman (T46). The Tribunal is prepared to accept that Dr Lishman is a clinical psychologist and, on that basis, it finds that the applicant’s depression was “fully diagnosed” in the relevant period, for the purpose of assigning an impairment rating in respect of that condition.
The applicant’s depression, however, must also have been “fully treated” and “fully stabilised” before an impairment rating can be assigned to an impairment resulting from that condition. The Tribunal notes the DSP Medical Report of Dr Punyanitya, dated 18 September 2012 (see paragraph 5 above), in which the current and future treatment for the applicant’s depression was described as “Pristiq” medication and “psychological counselling”. The Tribunal also notes a letter, dated 20 January 2013, from Dr Lishman, Psychologist, which states that the applicant is “currently seeing [her] for therapy on a regular basis for stress, depression and anxiety” (T46). Having regard to that evidence, the Tribunal is not satisfied that the applicant’s depression was “fully treated” and “fully stabilised” in the relevant period.
In accordance with subsections 6(3) and 6(4) of the Determination, therefore, the Tribunal concludes that the applicant’s depression was not a “permanent” condition in the relevant period, and, accordingly, an impairment rating cannot be assigned to any impairment resulting from that condition in respect of that period.
Sleep apnoea, hypertension (including heart condition): Table 1 – Functions requiring Physical Exertion and Stamina
The Introduction to Table 1 states as follows:
“· Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
o a report from the person’s treating doctor;
o a report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (eg cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);
o a report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (eg end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);
o results of exercise, cardiac stress or treadmill testing.”
As regards the applicant’s condition of severe obstructive sleep apnoea, the Tribunal notes:
·a Sleep Study Report of Dr Helen Bell, Respiratory and Sleep Disorders Physician, dated 30 July 2012, which concluded that the applicant had “severe obstructive sleep apnoea”, and recommended “weight loss and a trial of CPAP therapy” (T29);
·the DSP Medical Report of Dr Punyanitya, dated 18 September 2012 (see paragraph 5 above), which described the treatment of the applicant’s severe obstructive sleep apnoea condition as “will try CPAP”.
Although there is medical evidence before the Tribunal that the applicant has been using a CPAP device in the period from May 2013 (part of Exhibit A1), there is no medical evidence which indicates that he was using such a device in the relevant period.
In accordance with subsections 6(5) and 6(6) of the Determination, therefore, the Tribunal finds that, although the applicant’s “severe obstructive sleep apnoea” condition was “fully diagnosed” in the relevant period, that condition was not “fully treated” and “fully stabilised” in that period.
Accordingly, the Tribunal concludes, in accordance with subsections 6(3) and 6(4) of the Determination, that the applicant’s severe obstructive sleep apnoea was not a “permanent” condition in the relevant period and that an impairment rating cannot be assigned to any impairment resulting from that condition in respect of that period.
As regards the applicant’s hypertension, the Tribunal finds that, in the relevant period, that condition was “fully diagnosed”, “fully treated” and “fully stabilised”, and was a “permanent” condition, for the purposes of assigning an impairment rating to any impairment resulting from that condition. The Tribunal notes, however, the DSP Medical Report of Dr Punyanitya, dated 18 September 2012 (see paragraph 5 above), in which that condition was included as one which was “generally well managed” and caused “minimal or limited impact on ability to function”. The Tribunal also notes that in an earlier DSP Medical Report by Dr James Aniyi, dated 3 January 2012, the applicant’s hypertension was described as having “no significant impact on his ability to function” (T51, p 147).
Having regard to the abovementioned DSP Medical Reports, and to the echocardiograph test report of Dr Woollard referred to in paragraph 21 above, the Tribunal is satisfied, and finds, that, in the relevant period, having regard to the descriptors for the impairment ratings in Table 1, the applicant’s hypertension condition had, at most, a “mild functional impact on activities requiring physical exertion or stamina” under Table 1. The Tribunal, with some reservations, assigns an impairment rating of 5 to the impairment resulting from the applicant’s hypertension.
Back pain: Table 4 – Spinal Function
The Introduction to Table 4 states (inter alia) as follows:
“· Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
o a report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (eg spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
oa report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
…”
The Tribunal notes that Dr Punyanitya, in the DSP Medical Report of 18 September 2012 (see paragraph 5 above), included “back pain” as a condition which was “generally well managed” and caused “minimal or limited impact on ability to function” but provided no details regarding treatment for that condition. The Tribunal also notes, however, a report by Sam Abbaszadeh, Musculoskeletal Physiotherapist, dated 26 September 2012, addressed to Dr Punyanitya, in which reference was made to the applicant’s having received 5 physiotherapy treatments in respect of his thoracic spine since his referral on 11 August 2012 (T34). In the Tribunal’s opinion, there is insufficient medical evidence before it to enable it to be satisfied that, in the relevant period , the applicant’s back pain was “fully diagnosed”, “fully treated” and “fully stabilised” and was a “permanent” condition, within the meaning of subsections 6(4), 6(5) and 6(6) of the Determination. Pursuant to subsection 6(3) of the Determination, therefore, an impairment rating cannot be assigned to any impairment resulting from that condition.
Bilateral knee osteoarthritis: Table 3 – Lower Limb Function
The Introduction to Table 3 states (inter alia) as follows:
“· Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
o a report from the person’s treating doctor;
…”
The Tribunal notes that, although this condition was included in the DSP Medical Reports of Dr Aniyi, dated 7 June 2011 and 3 January 2012 (T50, T51), as a condition which was “generally well managed” and caused “minimal or limited impact on ability to function, it was not referred to in the DSP Medical Report of Dr Punyanitya, dated 18 September 2012 (see paragraph 5 above). The Tribunal also notes, however, that, in the Job Capacity Assessment Report, dated 2 October 2012, it is stated that current treatments comprise anti-inflammatory painkillers, GP management, and referral to a pain clinic on 24 August 2012 (see paragraph 6 above). In the Tribunal’s opinion, there is insufficient medical evidence before it to enable it to be satisfied that, in the relevant period, the applicant’s bilateral knee osteoarthritis was “fully treated” and “fully stabilised” and was a “permanent” condition, within the meaning of subsections 6(4), 6(5) and 6(6) of the Determination. Pursuant to subsection 6(3) of the Determination, therefore, an impairment rating cannot be assigned to any impairment resulting from that condition.
Diplopia: Table 12 – Visual Function
The Introduction to Table 12 states (inter alia) as follows:
“· Table 12 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving visual function.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner with supporting evidence from an ophthalmologist.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
o a report from the person’s treating doctor;
oa report from a medical specialist (eg ophthalmologist, ophthalmic surgeon) confirming diagnosis of conditions associated with vision impairment (diabetic retinopathy, glaucoma, retinitis pigmentosa, macular degeneration, cataracts, congenital blindness);
o results of vision assessments (eg from an optometrist).
…”
Although there is medical evidence before the Tribunal that the applicant suffered from diplopia in 2010 and 2011 (see T11, T12, T14, T16, T17), there is no medical evidence before the Tribunal on the basis of which the Tribunal could properly find that, in the relevant period, that, condition was “fully diagnosed”, “fully treated” and “fully stabilised” and was a “permanent” condition, within the meaning of subsections 6(4), 6(5) and 6(6) of the Determination. Pursuant to subsection 6(3) of the Determination, therefore, an impairment rating cannot be assigned to any impairment resulting from that condition.
Findings
Having regard to paragraphs 24–39 above, the Tribunal finds that none of the impairments referred to in those paragraphs, suffered by the applicant in the relevant period, was a “severe impairment” within the meaning of s 94(3B) of the SS Act. The Tribunal finds, therefore, that the applicant did not have a “severe impairment”, within the meaning of s 94(3B) of the SS Act, in the relevant period.
Conclusion
The Tribunal has found that, in respect of the relevant period:
·none of the applicant’s impairments was a “severe impairment” within the meaning of s 94(3B) of the SS Act;
·in accordance with the Impairment Tables, the total impairment rating assigned to the applicant’s impairments is 5 points.
The Tribunal, furthermore, is not satisfied that the applicant has “actively participated in a program of support” within the meaning of s 94(3C) of the SS Act.
The Tribunal concludes, therefore, that, in the relevant period, paras (b) and (c) of s 94 (1) of the SS Act were not satisfied in the applicant’s case and, accordingly, the applicant was not qualified for DSP.
Finally, the Tribunal notes the respondent’s submission that the period within which the applicant’s qualification for DSP should be assessed is the period of 13 weeks commencing on 12 September 2012 on the basis that, on 12 September 2012, the applicant apparently contacted Centrelink in relation to a claim for DSP (T53, p174) before lodging that claim on 18 September 2012. That submission was apparently based on s13(1) of the Administration Act. In the Tribunal’s opinion, however, that subsection is not relevant to, and has no application in, the circumstances of this case. That is because that subsection, which deems a claim for a social security payment to have been made on the day on which Centrelink was contacted in relation to such claim rather than on the day (being within 14 days after such contact was made) on which the claim is lodged, is only applicable if the person was qualified for the relevant social security payment on the day on which such contact with Centrelink was made (see s 13(1)(b)).
Decision
For the above reasons, the decision under review is affirmed.
I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr J Chaney, Member ...(Sgd) T Freeman.................
Associate
Dated 28 April 2014
Date of hearing 14 February 2014 Representative of the Applicant In person (unrepresented) Representative of the Respondent Ms L Gallagher
Solicitors for the Respondent Sparke Helmore
0
0
0