Balfour and Secretary, Department of Social Services (Social services second review)
[2016] AATA 904
•14 November 2016
Balfour and Secretary, Department of Social Services (Social services second review) [2016] AATA 904 (14 November 2016)
| Division | GENERAL DIVISION |
| File Number | 2016/1861 |
| Re | Donald Balfour |
| APPLICANT | |
| And | Secretary, Department of Social Services |
| RESPONDENT |
DECISION
| Tribunal | Senior Member T. Tavoularis |
| Date | 14 November 2016 |
| Place | Brisbane |
The decision under review is affirmed.
...........................[sgd]............................
Senior Member T. Tavoularis
Catchwords
SOCIAL SECURITY – DISABILITY SUPPORT PENSION – CANCELLATION of Applicant’s pension – whether Applicant’s conditions were fully diagnosed, treated and stabilised – whether Applicant’s impairments could be rated 20 points or more under the Impairment Tables – spinal disorder – depression – hip and knee pain – Applicant did not meet criteria under s 94 – decision under review affirmed
Legislation
Social Security Act 1991 (Cth), s 23, 94
Social Security (Administration) Act 1999 (Cth), s 80
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Cases
Freeman and Secretary, Department of Social Security [1988] FCA 294
Shi v Migration Agents Registration Authority [2008] HCA 31
REASONS FOR DECISION
Senior Member T. Tavoularis
14 November 2016
INTRODUCTION
On 27 March 2006, Mr Donald Balfour (“the Applicant”) was granted Disability Support Pension (“DSP”). He is presently aged 49 years of age. His original grant of DSP was for conditions in respect of his leg, back and for depression.
On 30 June 2015, the Secretary of the Department of Social Services (“the Respondent”) wrote to the Applicant notifying him of its decision to cancel his DSP payments. Prior to this cancellation, the Applicant provided a medical report from his local medical officer, Dr Amelia Tong,[1] who diagnosed the Applicant’s primary conditions as depression;[2] lower back pain; left hip and knee pain and degenerative spinal disease.[3]
[1] Exhibit 2: T Documents: T19, pp 87 – 96.
[2] Ibid: T19: p 89.
[3] Ibid: T19: p 92.
Dr Tong also diagnosed (1) a reduction in hearing capacity in the right ear and (2) memory loss but thought these two conditions were well managed and caused minimal or limited impact on the Applicant’s ability to function. Both of the conditions are apparently attributable to the Applicant being the victim of an assault in 2014.
The balance of the medical (and other expert) evidence attributable to the Applicant’s primary conditions comprise a number of letters and medical certificates ranging from April 2015 to November 2015.[4]
[4] Exhibit 2: T Documents: T11, T20, T21, T22, T23, T25, T27;
See also summary in Exhibit 1: Respondent’s Statement of Facts and Contentions dated 29 July 2016 (“SFIC”) p 3, paragraphs 6 – 19 (inclusive).
HISTORY OF THE MATTER
The matter has evolved thus:
On 15 April 2015, a Job Capacity Assessor (“JCA”) interviewed the Applicant and then prepared a report.[5] The JCA looked at each of the Applicant’s stated conditions and, for each condition, concluded:
[5] Exhibit 2: T Documents: T23: pp 105 – 115.
·Spinal disorder: was considered fully diagnosed, treated and stabilised. This condition warranted an allocation of 5 impairment points when assessed against Impairment Table 4 (Spinal Function) on the basis of some mild functional impact on activities involving spinal function;
·Lower limb deficiencies: was considered fully diagnosed, treated and stabilised. No impairments were allocated to the condition because the functional impact from the condition was “nil” when assessed against Impairment Table 3 - Lower Limb Function;
·Hearing loss – partial: although found to be generally well managed it was not considered fully diagnosed, treated and stabilised, because he had not yet been to see an Audiologist. Therefore, no impairment points were allocated to it;
·Psychological/Psychiatric disorder: was considered fully diagnosed, treated and stabilised. This condition warranted an allocation of 10 impairment points due to the moderate functional impact from this condition when assessed against Table 5 - Mental Health Function;
·Morbid Obesity: this condition was assessed as being fully diagnosed and treated but not stabilised, because there was insufficient information to ascertain if the Applicant was still morbidly obese and as such, the condition was not assessed as stabilised. Therefore, no impairment rating could be allocated to it;
·Left hip and knee pain: this condition was considered permanent – fully diagnosed, treated and stabilised. Although the condition was confirmed, no impairment points were allocated to it because the Applicant did not meet the criteria for a mild/other functional impairment under the relevant Impairment Table 3 - Lower Limb Function. The Applicant reported no issues with standing and he did not require the use of a walking aid;
Under cover of its letter dated 30 June 2015[6], the Applicant was notified of the Respondent’s rejection of the claim for DSP. This rejection was based on the JCA’s assessment that the asserted conditions did not attract at least 20 impairment points;
[6] Ibid: T24: pp 116 – 117.
By telephone communication with the Respondent on 1 July 2015[7], the Applicant discussed a review of this decision;
[7] Ibid: T32: p 155.
To support this review, the Applicant produced a report[8] from a specialist audiologist, Ms Kelly Stroud, who opined:
[8] Ibid: T25: pp 118 – 120.
·Hearing in the left ear was essentially within normal limits;
·In the right area, there was a mild to moderate sensorineural hearing loss;
·The Applicant’s hearing loss is causing the Applicant distress and affecting his quality of life;
In the meantime, the Respondent (1) recommenced payments of the DSP to the Applicant and (2) forwarded the matter to an Authorized Review Officer;[9]
[9] Ibid: T32: p 154.
A second JCA interviewed the Applicant on 7 September 2015 and produced a report.[10] This second JCA Report reached the same conclusion – both in terms of impairment ratings and work capacity – for each of the stated conditions;[11]
[10] Ibid: T27: pp 122 – 134.
[11] Stated conditions: Spinal disorder; Lower limb deficiencies; Hearing loss – partial; Psychological/Psychiatric Disorder; Morbid Obesity. Note: the second JCA Report added the condition of Depression.
An Authorized Review Officer, via a decision dated 20 November 2015[12] affirmed the findings of both preceding JCA Reports and himself made the following findings of fact:[13]
[12] Exhibit 2: T Documents: T28: pp 135 – 143.
[13] Ibid: T28: pp 136 - 137.
Findings of Fact
After careful consideration of the evidence, I have made these key findings:·You have been receiving Disability Support Pension since 27 March 2006 for the following permanent conditions: chronic pain, depression and a musculo-skeletal disorder;
·Following your medical review, a decision was made on 29 June 2015 that you were no longer qualified for Disability Support Pension;
·Your payment has been cancelled on 29 June 2015 as there has been a change in the assessment of your level of impairment;
·Your Disability Support Pension to be paid for a period of grace till the 10 August 2015;
·According to the latest medical evidence you have the following permanent conditions: depression, lower back pain (degenerative spine disease) and left hip/knee pain;
·Your conditions of hearing loss, insomnia, morbid obesity and memory loss are not accepted as being permanent as they have not been fully treated and stabilised;
·Your impairment rating is 10 points under Table 5, 5 points under Table 4 and 0 points under Table 3 for a total of 15 (10+5+0) points;
·You do not have a severe impairment;
·You do not have an impairment rating of 20 points or more;
·You do not have a continuing inability to work 15 hours per week or more because of your impairment;
Under cover of its letter dated 20 November 2015[14], the Applicant was notified of the Respondent’s cancellation of DSP payments;
The Applicant then applied to the first tier of this Tribunal for review (“AAT1”). By decision dated 17 March 2016[15], AAT1 affirmed the decision to cancel the DSP primarily on the basis of a failure to reach 20 impairment points. The AAT1 review differed from both earlier JCA reports and the findings of the ARO on allocation impairment points, both as to identified conditions and quantum.[16]
The present application for second review by this Tribunal was filed on
6 April 2016.[14] Ibid: T30: pp 144 – 145.
[15] Ibid: T2: pp 3 – 11.
[16] AAT1 allocated a total of 10 impairment points as follows:
·5 impairment points under Table 4 for the spinal condition (identical to both JCA reports and the ARO’s findings);
·5 impairment points under Table 3 for loss of lower limb function (differentiating from both JCA reports and ARO’s findings);
·Nil impairment points for the Psychological/Psychiatric condition on the basis that it was not fully treated and stabilised.
THE LEGISLATIVE FRAMEWORK
Section 80 of the Social Security (Administration) Act 1999 (“the Administration Act”) gives the Secretary power to cancel a person’s social security payment if it is satisfied that the recipient no longer qualifies to receive it. Section 23 of the Social Security Act 1991 (Cth) (“the Act”) includes DSP as a social security payment.
Section 94 of the Act prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”), a legislative instrument made under the Act.[17] The Tables are function, rather than diagnostic, based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[18] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[19]
[17] See s 26(1) of the Act.
[18] See s 5(2) of the Determination.
[19] See s 6(1) of the Determination.
Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[20] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[21]
[20] See s 6(3) of the Determination.
[21] See s 6(4) of the Determination.
10. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following facts are to be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[22]
[22] See s 6(5) of the Determination.
11. 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.[23]
[23] See s 6(6) of the Determination.
12. “Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[24]
[24] See s 6(7) of the Determination.
13. An impairment rating can only be assigned in accordance with the rating points in each Table. A rating cannot be assigned between two consecutive impairment ratings. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. A rating cannot be assigned in excess of the maximum rating specified in each Table.[25]
[25] See s 11(1) of the Determination.
14. In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in s 94(2) of the Act need to be satisfied.
15. The Tribunal has to assess the Applicant’s impairment and incapacity for work as at the date the decision to cancel his DSP was made, that is on 30 June 2015 (“the date of cancellation”). That finding accords with the decision in Freeman and Secretary, Department of Social Security [1988] FCA 294, which was referred to with approval in Shi v Migration Agents Registration Authority [2008] HCA 31. It is necessary for the Tribunal:
“…. to limit its consideration to the circumstances existing at the time the decision to cancel was made. The Tribunal [is] entitled to take into account all the facts placed before it, but the issue [is] whether the decision it [is] reviewing, to cancel the pension, was the correct or preferable decision when it was made.” [26]
[26] Shi v Migration Agents Registration Authority [2008] HCA 31at [144] (Kiefel J).
16. The Tribunal may have regard to evidence that came into existence after the cancellation date, to the extent that such evidence may be relevant to the application before the Tribunal.
ISSUES FOR THE TRIBUNAL
17. Based on the significant amount of medical evidence that has been provided during the life of the claim there is no doubt that the Applicant suffers from a number of medical conditions. The Respondent conceded that the Applicant has physical, intellectual or psychiatric impairments[27] and thus the requirement under
s 94(1)(a) of the Act is satisfied.
[27] Exhibit 1: Respondent’s Statement of Facts and Contentions dated 29 July 2016: [44].
18. The remaining issues for me to consider are therefore:
a) Whether, at the relevant time, the Applicant’s impairments attracted 20 impairment points or more under the relevant Impairment Tables; and
b) If so, whether the Applicant had a continuing inability to work.
CONSIDERATION
Did Mr Balfour’s impairment attract 20 points under the Impairment Tables?
19. I propose to deal with this issue by reference to the Applicant’s various medical conditions.
Spinal Disorder
20. The Respondent accepts that at the date of cancellation, the Applicant had an impairment for the purpose of s 94(1)(a) of the Act. The Respondent also accepts that the Applicant’s spinal disorder is fully diagnosed, treated and stabilised and that it is unlikely to be improved by further treatment.
21. The parties agree that the appropriate Impairment Table to be applied to an assessment of impairment points for this injury is Table 4 – Spinal Function.
22. The Respondent contended that the Applicant’s spinal symptoms constitute a mild functional impact on his activities involving spinal function. On that basis, an impairment rating of 5 points is warranted.
23. The Applicant contends for a more significant level of functional impact on his activities involving spinal function. Any finding of a severe impairment (and thus 20 impairment points) is very important for present purposes because it would relieve the Applicant of the requirement to meet the provisions of s 94(1)(c) of the Act, specifically, that he has a continuing inability to work. This contention of a greater than mild impairment seems primarily based on:
a) the report of Dr Jayawardena dated 17 August 2008;
b) the report of Dr Tong dated 20 March 2015;
c) oral evidence he provided at the hearing on 30 August 2016.
24. To my mind, there are two fundamental difficulties with the stated basis of this contention. First, my assessment of the Applicant’s condition(s) must be undertaken at the date of cancellation. Second, the question as to the level of evidentiary weight that can be given to the informal and unscientific evidence of the Applicant.
25. Dr Jayawardena’s evidence (by way of his 2008 report) on the spinal condition, at its highest, is expressed in an observational style. There is no commentary, analysis or finding of how this condition affects this Applicant’s functional capacity.
Dr Jayawardena notes:[28]
[28] Exhibit 2: T Documents: T16: p 70.
“A Diagnosis: Condition – chronic low back pain;
BHistory: MVA [motor vehicle accident] 4/4/03, Injury to
lower back, Hospital admission – CT / Xray – done MRI. Disc Compression Identified.
CCurrent symptoms: low ……. back pain; Paraesthesia of leg L; pain radiating L leg.”
26. Similarly, Dr Tong opines[29] the Applicant had:
[29] Ibid: T19: p 92.
“A Diagnosis: lower back and left hip pain and knee pain since MVA [motor vehicle accident] 2003 (in Sydney); Degenerative spine disease; Date of onset (if known) ____/_____/2003.”
BCurrent Treatment: Panadol / Nurofen; Bed rest when worse pain;
CPast Treatment: Physiotherapy; Orthopaedic review in past.
……….
GCurrent symptoms: Pains in back (lower); L hip and knees; Reduction in range of movement.
IImpact on ability to function: Affects endurance, movement – when walking, bending, prolonged sitting, standing, lifting;
JThe impact of this condition on the patient’s ability to function is expected persist for more than 24 months.
KWithin the next 2 years the effect of this condition on the patient’s ability to function is expected to remain unchanged.”
27. To my mind, the totality of finding of both JCA reports confirms the moderate level of impairment of the Applicant’s spinal disorder.
28. He reported as follows to the first JCA reporter: [30]
[30] Ibid: T23: pp 101 & 110 (of the first JCA report).
· “the occurrence of “flare ups” which usually occur close to monthly”;
· “at work he pushed a client in a wheel chair;
· “he uses a hoist for lifting his clients [although] if he does that too much his back pain definitely escalates”;
· he does his household cleaning chores via “…. a robot vacuum cleaner and he is able to manage sweeping and mopping …..”;
· “he sits on the ground to garden; can be painful at times moving from a sitting to a standing position if he has been sitting for a long time”;
· [He] “can bend to knee level but pain escalates when straightening up again”;
· The second JCA reporter adopted the above observations and noted “…. client observed to be able to sit for the duration of the interview which lasted about an hour”. [31]
[31] Ibid: T27: pp 123 & 129 (of the second JCA report).
29. Both JCA reporters[32] opined that the Applicant met descriptor (1)(b) of the 5 point mild functional descriptors and thus allocated 5 impairment points to this spinal condition. I endorse the findings of the both JCA reporters.
[32] Ibid: T23: p 110 (of the first JCA report), and T27: p. 129 (of the second JCA report).
30. Although it does not alter my opinion of the impairment rating to be allocated to his spinal condition, the Applicant (to his credit) disclosed to the first JCA reporter that he was working at the time of that report “…. nine hours [per week] with the Cerebral Palsy League and another two to three hours per week as a DJ”.[33] He also told the first JCA reporter that he “….works within a supportive working environment which enhances his ability to sustain this employment”.
[33] Ibid: T23: p 114.
Hip and Knee pain
31. The parties agree that the appropriate Impairment Table to be applied for an assessment of impairment points for this condition is Table 3 - Lower Limb Function.
32. The Respondent accepts this condition is fully diagnosed, treated and stabilised at the relevant date but that it attracts nil impairment points pursuant to Table 3.
33. For the Applicant, Dr Tong opined:[34]
· the Applicant’s diagnosis (for this condition) was “lower back pain and left hip pain and knee pains since MVA [motor vehicle accident] 2003 (in Sydney);
· the impact of this condition on the Applicant’s ability to function was that it ”…. affects endurance, movement – when walking, prolonged sitting, standing, lifting”.
[34] Ibid: T19: pp 92 and 94.
34. Both JCA reporters recorded:
“His hip and knee pain is episodic, depending on his activities. He reports that he negotiates stairs by hanging on to the railing. The client reported that he went to Vietnam last year with a social group; however his back, left hip and knee pain increased dramatically when walking on a trail and he had to turn back after walking for less than an hour. He is able to walk around a shopping centre for a reasonable period of time before resting. “Static standing is fine”, but his back can become sore.”[35]
[35] Ibid: T23: p 107, and T27: p 124.
35. I cannot reasonably conclude on the evidence before me that this Applicant meets the requirements of the stated descriptors for a mild – and thus 5 point rated – impairment for the purposes of Table 3.
36. With reference to the 5 point (mild impairment) descriptors I do not consider that he:
firstly:
a) has some difficulty with walking to local facilities such as the local shops; or
b) has some difficulty walking around a shopping mall without a rest; or
c) has difficulty climbing stairs;
or secondly:
a) is unable to stand for more than 10 minutes; or
b) needs a lower limb prosthesis or a walking stick to mobilize effectively.
37. I agree with the findings of both JCA reporters, particularly the second of those reports[36] because, with specific reference to the nil descriptors in Table 3, this Applicant can:
a) walk without difficulty on a variety of different terrains and at varying speeds (example: his recreational trip to Vietnam);
b) walk without difficulty around the home and community (example: completion of his home cleaning chores and his work as a DJ and the Cerebral Palsy League and his stated capacity to walk around a shopping centre for a reasonable time);
c) kneel or squat and rise back to a standing position without difficulty (example: his home gardening activities);
d) stand unaided for at least 10 minutes (example: completion of his household chores, his trip to Vietnam, his work activities);
e) use stairs without difficulty (he can negotiate stairs by use of the railings. This does not, to my mind, constitute partial or total “difficulty” in the negotiation of stairs).
[36] Ibid: T27: p 129.
38. Therefore, I am of the opinion that this Applicant’s hip and knee symptoms warranted a nil impairment point rating pursuant to Table 3.
Depression
39. The parties agree that the appropriate Impairment Table to be applied for an assessment of impairment points for this condition is Table 5 - Mental Health Function.
40. The Respondent accepts this condition was fully diagnosed, treated and stabilised at the date of cancellation and that it attracts an impairment rating of 10 points under Table 5.
41. For the Applicant, Dr Tong opined:[37]
· “there was a diagnosis of depression;
· the [then] current symptoms [comprised] low mood, low concentration, difficulty communicating, thoughts of self-harm, grief (loss of partner)”;
· the [then] current impact on the Applicant’s ability to function [comprised] “affects mood and endurance, interpersonal relationships”.
[37] Ibid: T19: pp 89 – 92.
42. Also for the Applicant, Mr Nic Marcon, Psychologist, provided evidence. That evidence appears in the T Documents[38] and is concisely summarized at page 8 of the Respondent’s Statement of Facts, Issues and Contentions. The relevant portion appears below. Notably, Mr Marcon’s comments were made orally to a representative of the Respondent.
[38] Ibid: T22: pp 102 – 104.
“53. Furthermore, the Department contacted Mr Marcon, psychologist, who confirmed he had been treating the Applicant for the past seven to eight years and the client was receiving regular therapy (p104).
54. Relevantly, Mr Marcon stated:
that he does not believe the client has the capacity to cope totally on his own and he will never manage a full normal life, would never cope with working full time.
Therapy tends to occur in waves, depending on what is happening in the client’s life – he can be fine and then a drama will occur and the client is unable to cope.” [39]
[39] Exhibit 1: Respondent’s Statement of Facts, Issues and Contentions: p 8.
43. I do not consider this Applicant meets “most” (or any) of the 20 point descriptors under Table 5. I do not find a severe functional impact on the Applicant’s activities such as:
a) Self-care and independent living: it cannot be reasonably said he needs regular support to live independently requiring at least twice weekly visits from a family member, friend, health worker or support person;
b) Social/recreational activities and travel: he does not travel alone nor does he restrict his travel to familiar areas. He clearly enjoys the company of others and has recreationally travelled to Vietnam with his friends. Where he has reported he has travelled alone, he has done so for the purpose of meeting up with his friends at the other end, such as, for example, his trips to Sydney;
c) Interpersonal relationships: the Applicant says he does talk to people at work and that he sometimes flies to Sydney to visit friends and went to Vietnam with a social group in 2014.
d) In terms of his capacity to concentrate and complete tasks, he can clearly concentrate on a task or conversation for more than 10 minutes. His work at both the Cerebral Palsy League and as a DJ confirms as much. Likewise, there was no evidence before me of any restrictions or slowing of this Applicant’s movements or reaction time due to psychiatric illness or treatment effects;
e) With reference to this behaviour, I do not consider this Applicant’s capacity is significantly or frequently disturbed by his mental health condition;
f) I similarly cannot safely find that the Applicant’s mental health condition actually renders him unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
44. Having regard to the identical findings of both JCA reporters[40] and bearing in mind that “most”[41] of the descriptors in the 10 point (moderate functional impact) category must be met, I agree with the Respondent’s contention that this Applicant’s mental health symptoms can be rated at 10 impairment points pursuant to Table 5 and no higher. In particular (and with regard the itemized descriptors) in Table 5, I find this Applicant has moderate difficulty with:
[40] Exhibit 2: T Documents: T23: p 111, and T27: p 130.
[41] “most” being the majority / more than half of the descriptors.
a) Self-care and independent living: the Applicant lives alone but benefits from occasional visits, particularly during periods of severely depressed moods;
b) As mentioned above I find the Applicant does not have difficulty with social/recreational activities and travel;
c) Interpersonal relationships: Dr Tong notes the Applicant’s difficulty with interpersonal relationships and communicating. Mr Marcon noted the Applicant has limited support networks and is quite isolated. The Applicant says he does talk to people at work and that he sometimes flies to Sydney to visit friends. I again note he travelled recreationally with a social group to Vietnam in 2014;
d) Concentration and task completion: Dr Tong makes a finding of “low concentration”. The Applicant reports a feeling of being overwhelmed in a work or group environment;
e) Behaviour, planning and decision making: Dr Tong generally notes the Applicant’s symptoms affect mood and endurance. Mr Marcon has observed a susceptibility to sudden difficulty in this Applicant to deal with apparently difficult or negative items or events when otherwise functioning normally. Mr Marcon also opines that this Applicant becomes easily stressed and that he benefits from therapy involving implementation of mechanisms to cope with that stress;
f) Work/training capacity: Mr Marcon commented that it required a number of years of therapy to encourage the Applicant to re-enter the workforce. The Applicant initially found work at a travel agency but it did not last long. He has nevertheless involved himself in the workforce for the last 5 years. He candidly reported he worked in a part-time capacity at the Cerebral Palsy League for 9 hours per week. He similarly reported that worked as a DJ on an irregular basis.
Other Conditions
45. I note the Applicant’s only agitated conditions at the hearing were those relating to his spinal disorder, his hip and knee pain, his depression and mental health condition. For the record, I will note my agreement with the findings of both JCA reports for the remaining asserted conditions comprising: partial hearing loss, insomnia and morbid obesity. Also for the record, I concur with the findings of the Authorized Review Officer[42] for the abovementioned conditions agitated during this hearing. In summary, none of these other conditions attracted any impairment points.
[42] Exhibit 2: T Documents: T28: pp 135 – 143.
Summary
46. Based upon the totality of the evidence, I consider the Applicant’s following conditions attract these impairment points:
Back pain: Table 4 (Spinal Function): 5 points;
Hip and knee pain: Table 3 (Lower Limb Function): nil points;
Depression: Table 5 (Mental Health Function): 10 points.
Total rating = 15 points
47. As the Applicant does not reach 20 points or more under the Impairment Tables, he does not satisfy the requirement in s 94(1)(b) of the Act. He therefore does not quality for DSP via this application.
Continuing Inability to Work?
48. Given that the Applicant did not have 20 points or more at the date of cancellation it is not necessary to consider this question.
An additional observation
49. This Applicant has failed to reach 20 points or more via this application. His condition(s) may well have worsened since the date of cancellation. I note from the material before me that a fresh application was lodged by the Applicant in April this year. [43]
[43] Ibid: T36: p 203 – 207.
CONCLUSION
50. Mr Balfour did not qualify for DSP at the date of cancellation because his impairments only attracted 15 impairment points.
51. I therefore find the Respondent made the correct decision to cancel the Applicant’s DSP on 30 June 2015.
52. Accordingly, the decision under review is affirmed.
| I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis |
...................[sgd]....................................
Associate
Dated 14 November 2016
| Date of hearing | 30 August 2016 |
| Applicant | By telephone |
| Solicitor for the Respondent | Mr Rick McQuinlan, Department of Human Services - FOI and Litigation Team |
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Standing
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Remedies
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