Barry and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2011] AATA 741
•21 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 741
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/1216
GENERAL ADMINISTRATIVE DIVISION ) Re COLIN BARRY Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr K S Levy RFD, Senior Member Date21 October 2011
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..................[Sgd]...................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Disability support pension – Physical impairments of cerebral haemangioma, diabetes, rotator cuff injury and sciatica – No impairment rating of 20 points or more under Impairment Tables – No continuing inability to work – Decision under review affirmed
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) s 13, Schedule 2 cl 4
Esber v Commonwealth (1992) 106 CLR 577
REASONS FOR DECISION
21 October 2011 Dr K S Levy RFD, Senior Member INTRODUCTION
1. On 1 November 2010, Colin Barry effectively lodged a claim for Disability Support Pension (DSP) with Centrelink. It was rejected on 24 November 2010. That decision was reviewed by an Authorised Review Officer (ARO), but it was affirmed on 21 January 2011. There was a further review by Social Security Appeals Tribunal (SSAT) on 18 March 2011. That Tribunal affirmed the decision to reject the applicant’s claim for DSP. Mr Barry now appeals to this Tribunal.
ISSUES
2. The issues to be determined relate to s 94 of the Social Security Act 1991 (Cth) (the Act). These are:
1)Whether the applicant has a physical, intellectual or psychiatric impairment;
2)If so, whether the applicant has an impairment rating of 20 points or more under the Impairment Tables in Schedule 1B of the Act; and
3)Whether Mr Barry has a continuing inability to work.
EVIDENCE
3. Mr Barry worked in Hervey Bay constructing cement driveways until 2006. He then moved to Kingaroy, where he currently resides. He then did some farm maintenance work, which he ceased in 2009 as he said it was too heavy. He now lives on an acreage property there and is trying to convert a shed into a house. Mr Barry said he has essentially been “a cripple” since he was 32 (he is now 59 years of age). He lives there with his wife, who, he told the Tribunal, has social phobia. He said he was offered a carer’s pension for his wife but declined as it would affect his claim for DSP.
4. On 1 November 2010 the applicant contacted Centrelink to advise of his intention to claim DSP. On 3 November 2010 the applicant lodged a claim for DSP. The applicant also provided a statement with regard to his sciatica and a Medical Certificate. The certificate described conditions of cavernous haemangioma and sciatica as ‘temporary’, with the prognosis of the symptoms as being ‘uncertain’. It is apparent from the documentary evidence, and the evidence given to the SSAT, that reference has been made to the applicant being a non insulin-dependent diabetic, as well as him having a cerebral haemangioma, a rotator cuff injury and a back and spinal condition.
5. In relation to Mr Barry being a non insulin–dependent diabetic, the SSAT stated that this is a permanent condition but is well managed and imposed no functional restrictions on his life. With reference to the bilateral rotator cuff injury, Mr Barry’s evidence to the SSAT appears to be that he worked until 2009 and the injury was not an impediment to his work. He admitted at the SSAT that he had a full range of movement. In his evidence-in-chief before this Tribunal, he said a doctor told him the shoulder was worn out from use. He said his arm sometimes shakes if he boils the kettle, but went on to say it is “not a big issue a lot of the time”.
6. In describing his daily routine, Mr Barry said he never does anything before 9.00 or 10.00am but then he cuts firewood and takes a wheelbarrow of firewood across the road to an old lady who lives there. He is also building his own house. It has been a four-year project to date. He said that he got the frame up and the roof on at Easter time, but has not been able to advance that work much since. He also said he can now get up the ladder but can only do five or ten minutes work. He told the Tribunal he can successfully climb up and down a ladder but he cannot sit for long periods.
7. The condition of cerebral haemangioma was first assessed by CT scan on 8 January 2010. Dr Patricia Nugent reported that the imaging of the brain was carried out “without and then with intravenous contrast” and concluded there was a cavernous haemangioma with some calcification but there was no evidence of venous malformation and was otherwise normal.
8. There was a subsequent assessment on 25 June 2010 at the Department of Neurology, Royal Brisbane and Women’s Hospital. The assessment report shows a mention of headaches for 15 years and a clinical history of emotional stress as a child, which resulted in his collapsing from those episodes. His last episode was at the age of 17. The report concluded that the CT scan on 8 January 2010 was an incidental finding and the haemangioma was largely asymptomatic.
9. In relation to the back and spinal condition, there is a report from Knox Medical Centre of x-rays of the applicant’s back for the period 1982 to 1987, although his general practitioner Dr A Lawrence considered, having regard to those x-rays, he should never undertake truck driving or heavy lifting. The report also states that an x-ray report of 13 January 1987 showed the applicant’s back had improved at that date and he could do light work. There is a report by Dr David Van Der Walt, Orthopaedic Surgeon, dated 14 March 1988, which states that Mr Barry had a 15% partial permanent disablement, but that he could certainly do light work.
10. The next radiological evidence is in October 2008 where there was a CT scan of the lumbar spine. That report shows some disc height loss at L5/S1. There is also an annular disc bulge at L4/5 although there is no neural compression. There is also mention of an annular disc bulge at L3/4. Subsequent to that report there was a CT scan of the thoracic spine on 21 January 2009. The radiological report of that scan states:
·Apart from minimal disc protrusion at T5/6, there is no other soft tissue abnormality;
·There is low grade end plate degenerative changes but no compression fracture, and no bone destruction or erosion; and
·There is minimal and non-compressive disc protrusion at T5/6 and that there is no other significant lesion.
11. There were two Job Capacity Assessment reports in evidence. The first report is dated 11 October 2010, by an intern psychologist. That assessor noted Mr Barry:
(a)had a temporary reduced capacity for work and within six months there should be additional medical (orthopaedic) information to determine his future work capacity;
(b)had physical limitations restricting his ability to do certain types of work, as well as reduced concentration and confidence; and
(c)had a “mistrust of authority figures”, and this may have an impact on his relationships with supervisors and potential employers.
12. The conclusions reached by the Job Capacity Assessor about each of the four conditions were:
·Cerebral haemangioma – permanent condition and fully diagnosed, but not fully treated and not fully stabilised;
·Sciatica – permanent condition and fully diagnosed, but not fully treated and not fully stabilised;
·Diabetes – permanent condition and fully diagnosed, treated and stabilised (but with minimal impact on functioning); and
·Rotator cuff injury – condition described as ‘other’, not fully diagnosed, not fully treated and not fully stabilised.
13. That assessor concluded in her report that Mr Barry appeared to have some difficulties coping with job related activities, but thought he had a current baseline work capacity of 8 – 14 hours per week, taking account of his permanent conditions of sciatica, cerebral haemangioma and diabetes. She also thought that, with intervention and optimal medical management, Mr Barry would have a future work capacity within 2 years of 15 – 22 hours per week. Suitable work was regarded as “light less skilled”.
14. The second Job Capacity Assessment report is dated 18 November 2010. That assessor also provided oral evidence. She was a physiotherapist with 41 years’ experience. She took account of the report by Dr Connor, the previous Job Capacity Assessment report and past x-ray reports and other evidence. She told the Tribunal that Mr Barry said he had ongoing lumbar pain and could walk five kilometres on a good day and three kilometres on a bad day. Mr Barry told her that he did all the housework and shopping. The Job Capacity Assessor also told the Tribunal that the Centrelink reporting criteria tend to constrain reporting in a broader sense. She stated, however, that her assessment was based on Mr Barry’s statement to her that he was building his home personally and waiting to see the doctor. She noted that he was doing light maintenance work around the home.
15. The second Job Capacity Assessor’s conclusions on the conditions were:
·Cerebral haemangioma – permanent condition and fully diagnosed, but not fully treated or fully stabilised;
·Spinal disorder – permanent condition and fully diagnosed, but not fully treated and not fully stabilised; and
·Diabetes – permanent condition and fully diagnosed, treated and stabilised (but controlled with medication).
·The rotator cuff injury was not mentioned.
16. Her conclusion was that Mr Barry had a baseline work capacity of 15 – 22 hours per week. Without intervention his future work capacity within 2 years would also be 15 – 22 hours per week, but that it could rise, with intervention, to 23 –29 hours per week.
CONSIDERATION
17. I have considered all of the applicant’s evidence and the expert evidence in coming to a determination.
18. The claimed conditions must be assessed in accordance with s 94 of the Act. This section relevantly provided as follows:
SOCIAL SECURITY ACT 1991 – SECTION 94
Qualification for disability support pension
(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;
…
Note 2: for Impairment Tables see section 23(1) and Schedule 1B.
Continuing inability to work
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)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) 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.
"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.
19. The Social Security (Administration) Act 1999 (Cth) (Administration Act) is also relevant:
SOCIAL SECURITY (ADMINISTRATION) ACT 1999 – SECTION 13
Deemed claim - person contacting Department about a claim for a social security payment
(1) For the purposes of the social security law, if:
(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d)the person lodges a claim for the social security payment within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
…
SCHEDULE 2
4 Start day - early claim
(1) 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.
(2) For the purposes of subclause (1), the following provisions have effect:
(a)subject to paragraph (b), any social security payment, other than newstart allowance or special benefit, is a relevant social security payment;
(b)parenting payment is not a relevant social security payment in the case of a person who becomes qualified for the payment because of the birth of a child.
20. It is noted also that s 94(2) of the Act has been amended since the SSAT decision and since the hearing of the matter in this Tribunal. I note that amendment essentially includes in s 94(2)(aa) to provide that where a person does not have a ‘severe impairment’ as defined in subsection (3B) then an applicant should have participated in a program of support as prescribed. That goes to the assessment of whether a person has a continuing inability to work and is in addition to the other requirements of s 94(2). Section 8 of the Acts Interpretation Act 1901 (Cth) does not revive the repealed provision unless a contrary intention appears in the Act. There is no such intention apparent although the applicant’s substantive right of review is protected by s 8 (see Esber v Commonwealth (1992) 106 CLR 577). Despite the new law being relevant at present, Mr Barry did not attend a program of support and does not have a rating of 20 points or more as referred to in the new subsection (2)(aa). The effect of the existing law as it applies to the applicant is therefore virtually the same under the former s 94(2) and under the new s 94(2).
21. Mr Barry lodged his application for DSP on 3 November 2010. Section 13(1) and Schedule 2 of the Administration Act are relevant to determining the qualification period of to his application. Applying these provisions, the qualification period is 1 November 2010 to 31 January 2011.
22. An applicant must first have a physical, intellectual or psychiatric impairment (s 94(1)(a)). Section 94(1)(b) specifies that to be eligible for DSP an applicant must also have at least 20 points under the Impairment Tables. Schedule 1B of the Act details the Impairment Tables and conditions of their use. They are intended to give practical effect to a person’s degree of loss of functional capacity. Paragraph 4 of the Introduction to the Impairment Tables provides a rating can only be assigned where there is:
· a comprehensive history and examination; and
· a fully documented, diagnosed condition which has been investigated, treated and stabilised.
23.Paragraph 5 of the Introduction to the Impairment Tables states that:
The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting more than two years.
24.Paragraph 6 of the Introduction to the Impairment Tables states:
In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
• what treatment or rehabilitation has occurred;
• whether treatment is still continuing or is planned in the near future;•whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
•treatment that is feasible and accessible ie, available locally at a reasonable cost;
•where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
25. This essentially elaborates the position in s 94(2)(c) regarding a “continuing inability to work”. “Work” is defined in s 94(5).
26. Mr Barry alleged the SSAT “lied” in their report and in particular, took issue with the following evidence in paragraph 6 of the SSAT report:
· (iv) - The SSAT reported that Mr Barry “closed his business down in 2006 due to a lack of business”. Mr Barry told this Tribunal that he closed his business because of his health, not because of lack of business.
· (vii) - The SSAT reported that Mr Barry told that Tribunal that he told the ARO the condition of cerebral haemangioma was not relevant as a factor in his DSP assessment. He told this Tribunal that he cannot do a job “unless it is doing nothing”.
· (xv) - The SSAT reported Mr Barry “had a right shoulder rotator cuff injury in 2006 which was treated successfully with a steroid injection. He has been having some more recent trouble of the same kind with his left shoulder. He has no restriction in his range of movement in either shoulder. He said the condition does not restrict him a lot”.
He told this Tribunal that both shoulders are troublesome. He indicated the right shoulder had been x-rayed but not the left. When asked in cross‑examination why he had not raised this condition with his general medical practitioner, he merely answered that there was no need to do that.
· (xvi) - The SSAT evidence is said to be that about three years ago Mr Barry attended the Commonwealth Rehabilitation Service in Hervey Bay and was offered retraining to become a real estate agent. He said he thought he could do the job, but could not afford the course.
He told this Tribunal that after he had been to Brisbane for the SSAT hearing, he could not do chores at home for two weeks.
27. I make the following findings of fact:
(a)Mr Barry is a diabetic but is not dependent on insulin;
(b)He has a bilateral rotator cuff injury which causes some limitations on doing physical activity other than light work. I found Mr Barry’s evidence of this condition to be cavalier and unconvincing;
(c)He has a cerebral haemangioma, but this is asymptomatic; and
(d)He has a back and spinal condition which causes some restrictions to his activities. The thoracic spine is not particularly problematic but the radiological evidence of the lumbar spine suggests some issues exist. That condition awaits assessment by a specialist from the Royal Brisbane and Women’s Hospital, which, it seems, can take up to two years to get an appointment.
28. In relation to the conditions submitted in evidence, I would assess them in accordance with the Impairment Tables as follows:
(a)Non insulin-dependent diabetes – Mr Barry told the Tribunal this was “not an issue”. However, he now has back trouble again as a consequence. The applicant conceded that the diabetes is not an issue, which I note was also conceded at the SSAT hearing as not resulting in any functional deficit. The Job Capacity Assessment reports also noted that the diabetes has minimal impact on Mr Barry’s functioning and is controlled with medication. This condition must be therefore allocated a nil rating under the Impairment Tables.
(b)Bilateral rotator cuff injury – I found the applicant’s evidence in respect of this condition to be intentionally contradictory. While he disputes the evidence of the SSAT, the evidence reported by the SSAT seems quite specific from a factual point of view. I found his evidence on this point to be evasive. He also said he wouldn’t tell Dr Connor very much because she would hospitalise him and take his driver’s licence away. The applicant has a full range of movement, although there is clearly some deficit for other than light work. It is mentioned by the first Job Capacity Assessment report and as at 11 October 2010 it was regarded as not fully diagnosed, fully treated or fully stabilised. That report also stated in relation to that condition, that it does not prevent Mr Barry from using public transport without substantial assistance. In addition, the Assessor noted that the shoulder conditions “were not severe enough at that time to warrant surgery. No further interventions are planned at this stage.” The second Job Capacity Assessment report dated 18 November 2010 does not make reference to this condition specifically. Based on the applicant’s evidence and the Job Capacity Assessment reports, this condition would have to be regarded as not fully diagnosed, treated and stabilised.
(c)Cerebral haemangioma – this condition is noted in the first and second Job Capacity Assessment reports as being fully diagnosed but not as being fully treated or fully stabilised. The report from the Department of Neurology, Royal Brisbane and Women’s Hospital, dated 25 June 2010, states that this lesion in the insular cortex is asymptomatic.
The medical evidence shows it does not affect his daily life and no treatment is planned. I think the evidence which exists should be regarded as indicating the condition is fully diagnosed and stabilised and no further treatment is required at the present time. Taking account of the assessment criteria in paragraph 6 of the Impairment Tables and the fact it has no functional effect on his daily life, I agree with the SSAT that the condition should be assessed as a nil rating.
(d)The back and spinal condition is the most serious condition claimed. He avoids activity which will aggravate it.
The evidence is longitudinal but with a large gap in between aspects of expert evidence. In 1987, Dr David Van Der Walt diagnosed a 15% partial permanent disability because of the lumbar spine, but noted that Mr Barry could do light work. Mr Barry then worked for almost twenty years until 2006 doing work on machinery without further reference to medical advice. In 2006, he did light work for three years then ceased work. He has since been trying to slowly build a house.
There is radiological evidence from 2008 which points to some damage at L5/S1. The radiological evidence in 2009 of the thoracic spine does not seem to raise any “significant” issue.
I find that the state of the expert evidence, together with the fact that he stated to a Job Capacity Assessor that he walks five kilometres on a good day and three kilometres on a bad day, and can cut firewood and wheel a wheelbarrow, is sufficient to conclude that he is not incapable of doing some work. The reports of both Job Capacity Assessors support that conclusion.
I would have expected that cutting firewood and pushing it in a wheelbarrow would aggravate his rotator cuff and his back condition. The applicant says he was not taking much for pain: in particular, two Panadol Osteo tablets morning, afternoon and night. The evidence of Mr Barry at this Tribunal was not consistent with his evidence to the SSAT or to a Job Capacity Assessor.
Having regard to all of the evidence, it is apparent that Mr Barry has some restriction in movement. The weight of evidence is lessened by the inconsistency in the applicant’s accounts as well as the radiological evidence and other evidence. He is also still awaiting an appointment with a specialist through the Queensland health system, but he has been given no priority for that appointment. The evidence in the reports of the Job Capacity Assessors is that Mr Barry has the capacity to work for at least 15 hours per week. In light of the medical and other professional evidence, together with some contradictory evidence given by the applicant at the hearing, I find this condition is not “a fully documented, diagnosed condition which has been investigated, treated and stabilised”.
29.As there are conditions that have not been fully diagnosed, treated and stabilised, it cannot be said his permanent conditions reveal a “continuing inability to work” under s 94(1)(c).
CONCLUSION
30. The assessment of these conditions shows there is not an impairment rating of 20 points or more within the 13-week qualification period. The current evidence also reveals that Mr Barry does not have a “continuing inability to work”.
DECISION
31. The Tribunal affirms the decision under review.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, RFD, Senior Member
Signed: ..............................[Sgd]........................................
Research AssociateDate/s of Hearing 11 August 2011
Date of Decision 21 October 2011
Applicant was self representedSolicitor for the Respondent Jasmine Forsyth, departmental advocate
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