Auelua and Secretary, Department of Social Services (Social services second review)
[2016] AATA 585
•10 August 2016
Auelua and Secretary, Department of Social Services (Social services second review) [2016] AATA 585 (10 August 2016)
Division
GENERAL DIVISION
File Number(s)
2015/6145
Re
Joseph Auelua
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr L Bygrave, Member
Date 10 August 2016 Place Sydney The decision under review is affirmed.
.................................[sgd].......................................
Dr L Bygrave, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – impairment tables – whether applicant had impairment rating of 20 points – whether conditions fully diagnosed, treated and stabilised – 5 points awarded for lower back condition – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94(1)(b)
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr L Bygrave, Member
10 August 2016
INTRODUCTION
On 23 March 2015, Mr Joseph Auelua lodged a claim for the disability support pension.
The claim was rejected by Centrelink, both initially and on review, on the basis that Mr Auelua did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act).
In a decision dated 2 November 2015, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal found that Mr Auelua did not satisfy sub 94(1)(b) of the Act and so he did not qualify for the disability support pension.
On 26 November 2015, Mr Auelua applied to the General Division of the Tribunal for a second review of the decision.
The matter was heard in Sydney on 8 July 2016. Mr Auelua attended the hearing in person and was unrepresented.
RELEVANT LEGISLATION AND ISSUES
Section 94(1) of the Act provides that a person qualifies for the 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)the person has a continuing inability to work as defined in sub 94(2) of the Act.
In accordance with the requirements of the Social Security (Administration) Act 1999 (Cth) (Administration Act), to qualify for the disability support pension, Mr Auelua must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, that is between 23 March 2015 and 22 June 2015 (the claim period).
The Respondent concedes and the Tribunal agrees that Mr Auelua suffers medical conditions that cause impairment and therefore, he satisfies sub 94(1)(a) of the Act at the time of his claim for disability support pension.
It follows that the determinative issues in this matter are whether, during the claim period, Mr Auelua had an impairment rating of 20 points or more under the Impairment Tables; and a continuing inability to work as defined in sub 94(2) of the Act.
Does Mr Auelua have medical conditions that can be rated at 20 points or more under the Impairment Tables?
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. As set out in para 6(4) of the Impairment Tables, a condition is permanent if it:
·has been fully diagnosed by an appropriately qualified medical practitioner; and
·has been fully treated; and
·has been fully stabilised; and
·is more likely than not to persist for more than two years.
The Introduction to each relevant Table requires that ‘self-report of symptoms alone is insufficient’ and ‘there must be corroborating evidence of the person’s impairment’.
The medical conditions of Mr Auelua set out in the claim form dated 23 March 2015 include:
·lower back condition;
·lower limb condition; and
·calculus – cholecystectomy.
I now consider each of these medical conditions and their relevant rating under the Impairment Tables.
Lower back condition
Mr Auelua has a spinal injury due to being stabbed in his lower back in 1985. A medical report by Dr Todorovic (general practitioner) dated 23 March 2015 diagnosed a ‘right foot drop secondary to a stabbing injury to his lower back 1985’. I note that Dr Todorovic has been Mr Auelua’s treating doctor since 11 March 2013.
During the Tribunal hearing, Mr Auelua described being in constant pain in his lower back. Since 1985, he has regularly exercised (going to the gym, swimming and walking) as a form of rehabilitation. He prefers not to take any medication to alleviate the pain. He said that the pain increases when he bends down and he cannot pick up objects from the ground. He does not require assistance to get up out of a chair.
Based on the evidence before me, I am satisfied that Mr Auelua’s lower back condition was fully diagnosed, fully treated and fully stabilised during the claim period. In accordance with the information at Table 4 – Spinal Function, Mr Auelua’s lower back condition has a mild functional impact on activities involving spinal function and I assign an impairment rating of 5 points for Mr Auelua’s lower back condition.
Lower limb condition
Mr Auelua has a ‘right foot drop’ which causes difficulty with his right foot catching on the ground. Medical reports by Dr Rosen (Neurologist) dated 30 July 2015 and 13 August 2015 described Mr Auelua having a ‘right foot drop…attributed to a spinal injury’, which presents as ‘progressive right lower limb weakness, inability to run, balance problems, several falls and urinary frequency’.
Mr Auelua told the Tribunal that he can walk but his right foot drop causes him to be unbalanced and he can fall over. He walks long distances and can stand for more than 10 minutes. He has difficulty going down stairs and needs to hold onto a railing so that he does not fall. He does not use a walking stick.
Based on the evidence before me, I am satisfied that Mr Auelua’s lower limb condition was fully diagnosed, fully treated and fully stabilised during the claim period. In accordance with the information at Table 3 – Lower Limb Function, Mr Auelua’s lower limb condition has no functional impact on activities requiring use of the lower limbs and I assign an impairment rating of 0 points for Mr Auelua’s lower limb condition.
Calculus – cholecystectomy
Dr Todorovic reported on 23 March 2015 that Mr Auelua has ‘right upper quadrant abdominal discomfort / swelling / pain’ and ‘a calculus adjacent to the stump of the cholecystectomy site’.
A report by Dr David Joseph (Surgeon) dated 30 January 2015 described Mr Auelua experiencing ‘chronic pain in the right side of the abdomen’. A laparoscopic cholecystectomy was performed on Mr Auelua in February 2014 and the ‘histopathology of the gallbladder demonstrates chronic cholecystitus’.
A medical certificate by Dr James Gallagher (Surgeon) dated 20 April 2015 stated that ‘[Mr Auelua] will undergo surgery on the 5th May 2015’ for ‘a retained gallstone in his cystic duct and will require further surgery’.
Although Mr Auelua told the Tribunal hearing that he does not want any further operations, based on the medical evidence before me I am not satisfied that Mr Auelua’s condition was fully treated and fully stabilised during the claim period. As this condition was not considered to be permanent during the claim period, I cannot assign a rating for functional impact in accordance with the Impairment Tables.
Other conditions
A medical report by Dr Todorovic dated 9 May 2014 set out other medical conditions for Mr Auelua including ‘varicose veins – left leg’. In the SSCSD hearing, Mr Auelua said that his varicose veins ‘are okay’. Mr Auelua did not report any issues with varicose veins during the Tribunal hearing.
As there is no further medical evidence before me, I am satisfied that this condition has no functional impairment and therefore cannot be assigned an impairment rating.
CONCLUSION
For the reasons set out above, I am satisfied that Mr Auelua did not meet the requirements of sub 94(1)(b) of the Act during the claim period as his impairments were not 20 points or more under the Impairment Tables.
As I find that Mr Auelua did not qualify for the disability support pension during the claim period, it is not necessary for me to consider whether he had a continuing inability to work.
If Mr Auelua’s medical conditions change, he is entitled to submit a new application for disability support pension at any time.
DECISION
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 L Bygrave, Member ...................................[sgd].....................................
Associate
Dated 10 August 2016
Date(s) of hearing 8 July 2016 Applicant In person Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Remedies
0
0
2