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

[2017] AATA 1544

Baxter and Secretary, Department of Social Services (Social services second review) [2017] AATA 1544 (11 August 2017)

Division:GENERAL DIVISION

File Number(s):2016/6144      

Re:Wayne Baxter  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:11 August 2017

Date of written reasons:        18 September 2017

Place:Canberra

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

................................................................

Bill Stefaniak AM RFD

, Senior Member

CATCHWORDS

SOCIAL SECURITY - disability support pension – whether qualified – whether impairments attract 20 points or more on Impairment Tables – whether there is a continuing inability to work – Table 1 Functions requiring Physical Exertion and Stamina – Table 2 Upper Limb Function – whether impairments fully diagnosed, fully treated and fully stabilised – decision under review affirmed

LEGISLATION

Social Security Act 1991, s 94

SECONDARY MATERIALS

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

WRITTEN REASONS FOR ORAL DECISION

Bill Stefaniak AM RFD, Senior Member

18 September 2017

1. On 3 February 2016, the Applicant, Mr Baxter, lodged a claim for the Disability Support Pension (DSP). That claim was rejected by Centrelink on 30 March 2016 on the basis that the Applicant did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act), as he did not have an impairment rating of at least 20 points, namely because his medical conditions were deemed not to be fully diagnosed, treated and stabilised.

2. In a decision later on that year, on 12 October 2016, the Social Services and Child Support Division (AAT1) found that the Applicant did not satisfy the Act and did not qualify for the DSP.

3. On 14 November 2016, the Applicant applied to the General Division for a review of the decision of the AAT1. The appeal was heard on Friday, 11 August 2017 in Canberra and the Applicant attended the hearing in person, together with his wife, both of whom gave evidence.

4. The related legislation and the issues are as follows. Section 94(1) of the Act provides that a person qualifies for the DSP 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…

5. A ‘continuing inability to work’ is defined in s 94(2) of the Act.

6. In accordance with the requirements of the Act, to qualify for the DSP, an Applicant 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. In this instance, between 3 February 2016 and 4 May 2016 (the claim period).

7. The Respondent and the Applicant have provided a fair amount of evidence which can be found in the T documents in terms of job capacity reports and also reports from various doctors. I will refer to the relevant reports in my decision.

8. The Applicant suffered from a number of conditions and there is a fair amount of consensus in relation to this particular issue. There are a number of conditions that the Applicant suffers from, which have not been properly assessed or are fundamentally, reasonably well managed. The decisions which are problematic are the lung condition and the left, upper limb and right, upper limb conditions and those are the ones the Tribunal considered at the hearing.

9. The other conditions either have not got to a stage where they are problematic, or they are conditions that the Applicant has learned to live with and is managing quite well and accordingly, would not qualify for any points under the Impairment Tables (the Tables), which is under the Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension) Determination 2011 (the Determination). There are some 15 categories.

10. The ones the Tribunal dealt with were the lung conditions and the left and right, upper limb conditions.

11. The Respondent conceded that the Applicant suffered and continues to suffer from a physical impairment for a number of conditions and therefore satisfies s 94(1)(a) of the Act as at the claim period in relation to qualifying for a DSP. So, that is one tick in the box for the Applicant.

12. Accordingly, the issues that this Tribunal has to determine, are whether during the claim period, the Applicant had firstly, an impairment rating of 20 points or more, under the Tables found in the Determination and secondly, a continuing inability to work, as defined by s 94(2) of the Act.

13. So, does the Applicant have medical conditions that can be rated at 20 points or more under the Tables?

14. The Determination requires that an impairment rating can only be assigned if the condition causing that impairment is permanent.

15. As set out in para 6(4) of the Determination, a condition is permanent if it firstly, ‘has been fully diagnosed by an appropriately qualified medical practitioner’. That certainly is the case in relation to the conditions here. Secondly, a condition is permanent if it ‘has been fully treated’; and thirdly, ‘fully stabilised’ and ‘is more likely than not… to persist for more than 2 years’.

16. The Tables describe functional activities, abilities, symptoms and limitations.  They are designed to assign ratings to determine the level of functional impact of the impairment. They perhaps are not as descriptive as one might hope, that is understandable, but they are the ratings that we have to apply and medical practitioners have to apply to Applicants in this situation.

17. The introduction to each relevant Table requires that self-reporting of symptoms alone is not sufficient. There has to be corroborating evidence of the person’s impairment. That invariably should come from a medical practitioner. Usually, for most of these, the general practitioner, if they have known the Applicant for a number of years, is sufficient, unless it is a mental impairment under Table 5 (and that does not apply here), and that means that it has to be diagnosed by a psychiatrist, or a clinical psychologist. A diagnosis by a general practitioner, unless he or she is a psychiatrist, or a clinical psychologist, is not good enough in that situation.

18. For the other Tables a diagnosis by a general practitioner is fine and often specialists will have done diagnoses as well.

19. Relying on the evidence before me and taking into account what the parties have said, I consider that the Applicant’s medical conditions for the purposes of his claim are firstly, the lung condition and secondly, the upper limb conditions. I think it is effectively common ground in this case, that the other conditions are not relevant for the purposes of the claim, in that they are well managed or indeed, they are just developing and there is a lot more work in progress in relation to them.

20. I will now consider each of the medical conditions and their relevant rating under the Impairment Tables. I will first look at the upper limb conditions. 

21. The Applicant and his wife gave evidence. Basically, she backed up what he was saying and indicated that there were some significant problems he has had in relation to these conditions.

22. The Applicant was a carpenter and worked for a number of decades, indeed the evidence indicates that some 38 years before he had some real issues and these issues resulted in a right frozen shoulder and some other significant issues from 2008 onwards. He has suffered significant issues in relation to that. He has had problems with his right shoulder, his right elbow, (he has developed some freezing of that as well) and problems with his right hand. He has not had his right hand operated on. He still has a reasonable use of that, as opposed to his left hand. But the right shoulder certainly has caused him a number of problems.

23. It is not contested by the Respondent that the right shoulder is actually a condition that is permanent, fully diagnosed and treated. The Respondent contends however, that anything in relation to the elbow, the wrist and the hand has not been fully diagnosed, treated and stabilised and indeed, any of the conditions with the left arm, from the shoulder down to the hand, certainly has not been as at the relevant time.

24. The relevant time here is 3 February 2016 until 4 May 2016, and if something has happened after that, it is after the claim period and I cannot have regard to it for the purposes of this appeal.

25. I should say, at this stage, that the law in relation to DSPs was altered and the current law came into effect on 1 January 2012, making it a lot harder for people to qualify for the DSP, and the Tables and various descriptors there are indicative of that. It is very hard these days to actually qualify for a DSP. A lot of boxes have to be ticked before one can do so. So, I do make that point and as I said during the hearing, there are reasons why the legislature has done that. 

26. Conversely of course, a person can qualify at any stage for a DSP if they can provide the necessary documentation and proof. One can apply every six months or twelve months, for a pension such as this if they wish, and that seems to be the quid pro quo to the law being tightened up.

27. But, the period I am restricted to is that period from early February 2016 to early May 2016.

28. As at the relevant date, the evidence only clearly indicates a frozen shoulder as being a condition that was fully diagnosed, treated and stabilized. All that could be done medically from hereon in is what is called, ‘pain management’. There is further evidence in relation to the elbow freezing up and evidence too that the right hand and wrist, may well need an operation. I note that the Applicant is reluctant to have that done, as a result of what happened to his left hand and that is quite understandable. But certainly, I am able to allocate points in relation to anything flowing from the right shoulder – the frozen shoulder, the tear and the problems that initiated there. That I find, was the initial catalyst for a whole series of problems which the Applicant has had since that time.  

29. The right should injury occurred in 2008. The Applicant has had physiotherapy, cortisone treatment and an operation in mid-2013, desperately trying to get back to work. The evidence is very clear to me that this is a man who has enjoyed working and quite sensibly appreciating, were he able to continue as a carpenter, he would get between $2000 and $3000 a week. He wants to work. He has done everything in his power to work.

30. He also has qualified for 18 months out of 36 months in the last three years for a Program of Support (POS), which is another criterion that has to be satisfied to qualify for a DSP, and he gets a tick in that box as well. A lot of people actually do not participate in those programs of support. The Applicant has, and has actively done so, and has sought all relevant assistance that he possibly can. If he qualifies for 20 points, he does not have to worry about doing the 18 months out of three years because he has already done so (and in fact, as the Respondent concedes, has about a month to spare as a credit).

31. Unfortunately, however, he has not been able to work in recent times. The operation did not effectively get him back to work. He has engaged in a POS since 2012. The operation resulted in no improvement and indeed, shortly afterwards, he got a frozen right elbow, which basically relieved itself. He was able to lift his arm and he can lift that at the relevant time up to about eye height. That is still the case today. He had a medical episode during surgery. His right elbow in fact, locks up. That locks up at about 90 degrees and he demonstrated with his right arm across his body at 90 degrees from the shoulder during the hearing.

32. He has done nothing with his right wrist. In fact, he is very worried in relation to that. He does not want to do anything, because he is right-handed and he can use it at present, much more than he can use his left which he had an operation on. The representative for the Respondent is quite correct in saying there is no medical evidence to back up the fact that he has not done anything and the dangers of an operation to his right wrist, or the fact that that ultimately is a decision for him, and I do accept that. However, I do note, in terms of the right, upper limb, we are dealing with the right shoulder that has been operated on, fully diagnosed, treated and stabilised and that is something that I intend to go on in terms of allocating points.

33. He used, as a result of the problems with his right upper limb, his left upper limb a lot more to compensate and in 2015 he had pain in his left wrist and mild carpal tunnel nerve problems. He had an operation (on his left wrist) in August 2016. It was fused. It had three pins put in temporarily and whilst the pain decreased by some 60% and that is good, the operation has done absolutely nothing in terms of increasing his movement. In fact, it has probably restricted his movement and that is why he is somewhat reluctant to risk something similar for his right hand and right wrist.

34. I fully understand that. This happens quite frequently in cases like this and I would imagine it probably would not be terribly difficult for a doctor to say something similar and point out the positives and negatives of such an operation and indicate that that is probably, a very reasonable option. Not doing anything might well be the best option.

35. He has chronic arthritis in all joints and had had it at the relevant time and for a number of years prior, although apparently his knees are not affected. He said his left hand is worse than his right hand and the left hand has had an operation.

36. The Tribunal considered what tasks he could perform as at the claim period. He could carry a shopping bag, if someone gave it to him, he could carry it. He could pick up a two-litre bottle of milk but would need both hands to pick it up. As at the relevant time, he could not do the buttons on his shirt. But, with a lot of perseverance, it seems he now can.  But, as I am dealing with the relevant time, I accept that he could not do the buttons on his shirt for the purpose of allocating points.

37. He does not have a problem with small objects like coins. He will slide them across the Table and pick them up. He can write. He does the crosswords. He does not exactly sit down and write lengthy letters to people, but he can do the crosswords. So, he can use a pen and manage that.

38. He was quite open and frank in terms of telling the Tribunal that he had in 1985, a spine operation and that it went well. He has done his physiotherapy. His back does play up. It is painful from time to time, he has to kneel to pick things up off the floor, but he can manage that.

39. He said he started having problems with his left arm and wrist, probably because of the overcompensation to overcome his right upper limb problems sometime in 2015 and because of these new problems, he had surgery in August 2016, after the relevant period.

40. He has also had some issues now, with diabetes. Again, that is not something I can consider, because further diagnoses are needed and that was accepted and conceded by him.

41. He does have trouble he indicated, after surgery, in picking up a glass with his hands and he has to approach a glass at a certain angle to do so.

42. The other issues he has in terms of medical problems are his lungs. This problem surfaced in September 2015. Before then, he was a pretty active man. He played grade cricket. He played golf. He had a handicap of nine. He surfed. He participated in target shooting. Unfortunately, whilst the lungs do not affect his ability to engage in target shooting, the problems with his upper limbs do and he cannot shoot anymore.

43. He conceded he probably was not exactly the world’s best housekeeper. He would tend to leave that to his wife, but there are certain things he once could do but he has now not been able to do for the last two years, such as vacuuming. He can sit on a ride on mower and mow the lawn, but only for about a period of 30 or 40 minutes.

44. He has a good, stable marriage and three children. His wife and he have been married since 1976. They have their routine. He has not had to do things like cook a lot of meals.  So, some of the normal descriptors in the Tables are a little bit difficult to gauge, apart from the ones that I have said above.

45. However, since September 2015, he has found himself to be out of breath, not sleeping at night, and sleeping often during the day. He will be able to sometimes sleep between two to six hours at night. In diagnosing his lung condition, a lot of things have been ruled out.  It is not asbestosis. He has worked with asbestos, but it is not that. He is on his sixth lot of medications. He is seeing Dr Whelan again on 13 September 2017.

46. He said his lung condition has not worsened since 2015 but it is not getting any better. Nothing has happened. He certainly has some issues there.

47. He can drive, but his wife drives. He does not have a need to drive. She drives about 90 per cent of the time. She does the shopping. He is just a hindrance because he has got to stop all the time if he walks around with her. He said he stops every 30 or 40 metres. He does not sit down. But, he stops and has a bit of breather. He does feel, on occasions, light-headed and dizzy when he has to stop.

48. The doctors still do not seem to know what is happening with his lungs. He was accepting of what the doctors said. He is not a doctor himself. He said one of the doctors got the right and the left limbs mixed up. But, apart from that misdiagnosis, he indicated that if a doctor tells him he should try something, he will have to do it. For example, he was asked by the representative for the Respondent: ‘would you accept a seventh trial if Dr Whelan on the 13th of September says, ‘Why don’t we try this?’’ and he said, ‘I would have to…’

49. I think he has been very pragmatic. I found him to be a witness of truth and I have no reason to disbelieve what he said. Clearly, he needs to be corroborated by medical practitioners as appropriate, but I certainly had absolutely no trouble believing what he said. I found him very straight forward. A good, hard working person who has contributed significantly as a carpenter to his local community and unfortunately, now cannot work.

50. His wife also gave evidence and fundamentally, backed up what he had to say and apart from a few little comments in relation to the housework issues and how she would do most of the driving, just agreed with what he had said in evidence and did not have a huge amount to add as he had covered it pretty effectively.

51. There were also a number of medical reports tendered in evidence. The AAT1 asked for a number of additional reports and answers to specific questions it caused to be sent to several medical professionals. This process and the answers generated were certainly helpful to this Tribunal. The relevant reports that I will quote from are as follows.

52. In a report dated 15 September 2016, from Dr Wisam Ihsheish, orthopaedic surgeon, to GP Dr Chathurika Karunaratne (T32 of the T documents), the surgeon said:

    Thank you for your note regarding Wayne. A couple of weeks ago, he underwent fusion of his left STT joint in the left hand with bone graft obtained from the left olecranon. 

    The arthrodesis was held together with some K-wires and the wounds were reviewed today. He also underwent a carpal tunnel decompression and injection at the base of the thumb with some Celestone to help manage his arthritic pain.

    The wounds were clean and dry today.  I have re-dressed them and applied a new plaster which will be on for another 4 weeks or so and I will see him again in 4 weeks time with a new x-ray. 

    I will keep you informed in 4 weeks as to his progress.  

1. There was a medical certificate at T33 of the T documents after that, and T34 of the T documents consists of a notice that the Registrar sent to Dr Karunaratne requiring him to give the AAT1 further information, produce documents specified there, and answer some further questions.

2. Dr Karunaratne replied in T34 of the T documents, pages 147 and 148:

   Dear Ms Bakas…

   …In reply to your questions in correspondence dated 21 September 2016.

   A.    In relation to his mild restrictive Lung disease:

   1)    Is there an further treatment available to Mr Baxter to improve the functional impact of his condition? Mr Baxter has indicated that he cannot walk more than 100m without having to stop. These reported symptoms have been investigated by me and no significant pathology found. Currently, I have categorised this condition as mild and requested further investigations by a Physician- Dr Whelan. He is expected to provide me a report on his disability.

3. Apparently, that still has not occurred. But, as stated earlier the Applicant is seeing Dr Whelan on the 13 September 2017. Continuing on:

   2)    In your medical certificate dated 1 March 2016 you stated that planned treatment included probable review by Dr Whelan.  Was this expected to result in improved function? Situation is still premature to answer this question because he is still under investigation. Review has occurred with Dr Whelan on 27.9.16 where an Echocardiogram was booked for 17.10.16 and we are waiting a report with Dr Whelan’s findings.

   3)    I have attached Table 1 from the Impairment Tables that would be relevant to this condition.  Iam only able to consider an allocation of impairment points if the relevant condition is considered fully diagnosed, treated and stabilised.  Could you please comment on the functional impact on activities requiring physical exertion and stamina as a result of this condition? As the symptoms are only subjective and no sufficient evidence for the symptoms so far, I am unable to answer without further report from Dr Whelan. The condition is not fully diagnosed or treated.

   B. In relation to the Arthritis and the resulting impact on the upper limbs:
   1) I note that Mr Baxter recently underwent surgery on his left wrist. Was this surgery expected to improve Mr Baxter’s upper limb function? Yes (sic)

4. I digress here by adding the evidence before me also indicated that whilst it might have been expected to improve it, it did not, in reality. But, that obviously is a reasonable expectation. Mr Baxter also made the very sensible comment that no one could be 100 per cent sure what surgery will achieve, whether it works or not and that is very true and any doctor will tell you that. It went on

   2)Is there any further treatment available to Mr Baxter to improve the upper limb functional impact of his condition? I have attached a copy of the Orthopaedic surgeons report, which states he is waiting to review healing 4 weeks from 15/9/16. He will report to me on his findings after this appointment which should be held during the week 10/10/16.

   3)I have attached Table 3 from the Impairment Tables and that would be relevant to upper limb function. Can you please comment on Mr Baxter’s upper limb functional impact at the time of his claim excluding his left wrist given he recently underwent surgery on the left wrist? Table 3 received is the Lower Limb function, If you could kindly supply the discussed Upper limb Table.  But as question 2 states that condition is not stabilised till review (sic)

5. In other words, wrong Table, but the answer mentions one of the issues, which does apply to this case and that is, the condition was not stabilised until the review. Continuing:

   C. In relation to the Arthritis and the resulting impact on spinal function:

   1)    Is there any further treatment available to Mr Baxter to improve his spinal function? This condition has previously been a minor concern and the other two conditions were to be addressed. He has reported of a lower limb numbness. For this I have advised patient to represent for further investigations including nerve conduction studies. Therefore, I would like a nerve conduction test by a Neurologist as there is no completed diagnosis and I have enclosed a report from Podiatrist for your reference. (sic)

6. This is a very old condition, obviously affected now by arthritis and as indicated, is something that is being managed at present. That is not to say though, that it might not get worse in future. Continuing:

   2)I have attached Table 4 from the Impairment Tables that would be relevant to spinal function. Can you please comment on Mr Baxter’s spinal functional impact at the time of his claim? I am unable to answer, as a diagnosis has not been confirmed under my care. Historically, Mr Baxter’s notes reflect a Lumbar Discectomy in 1985.

   Kind regards,

   Dr Chathurika Karunaratne.

7. The Respondent also highlighted a medical certificate from the GP Dr Karunaratne in March 2017 (Exhibit 3) which says:

   To Whom it May Concern…

   …Wayne Baxter had surgery to his left wrist on 29/8/2016 done by Dr Wisam Ihsheish (Goulburn), followed by 5 months of physiotherapy. Mr Baxter has been discharged from physiotherapy. He seems to have permanent restrictions of the left wrist ( Please refer to the physiotherapy report attached). Additionally, his lung functions and cardiac testing is under investigation (Dr Whelan) and further report is expected from the specialist.

   Furhter to this, Mr Wayne has had chronic disease management plans in this practice since 2011 for diabetes. This letter is issues as per the request by Mr Wayne for submission to Administrative Appeals Tribunal and should be used only for this purpose. (sic)

8. The Applicant has also included Exhibit 1, the list of medication he takes and Exhibit 2, a care plan for Mr Wayne Gregory Baxter dated 2 March 2017, signed by Dr Karunaratne and the Applicant. It indicates the problems, the goals and the proposed treatments:
    

Problems list	Goals	Treatments	Arrangements
Type 2 Diabetic	Manage	continue current medications – Diabex BD	review
Hyperlipidaemia	Manage	continue current medications	review needed very elevated Triglycerides added fibrate therapy
Hypertension	Manage	continue current medications	review as needed
COPD – Early restrictive Lung disease	manage	Await reports and follow up	review with Dr Whelan stress test attended lung capacity test in Canberra await Dr Welan’s report
Carpel Tunnel and Scaphotrapeziotrapezoid arthritis	manage	had surgery in August	has been back for review-pain is reduced – but now limited movement continue with physio exercises at home likely permanent loss of ROM
Mental well being	Manage	Discussed options of counselling	Mental health access number. Discussed options for counselling if needed.
Foot Care Neuropathy pain in Left foot plantar	manage	refer to podiatry decreased sensation in 2nd, 4th and 5th toe – pt describes as last 2-3 weeks	EPC for podiatry Goulbourn Podiatry Clinic has been for assessment updated referral today
Eye care	Manage	may need repeat eye test – pt will check	Last eye test 12 months ago

1. This document was prepared in March 2017, effectively almost 12 months after the claim period and the relevant points relate to the lung condition. I would have to say and even the Applicant does effectively, as a result of cross-examination, concede this, that if he has to have a seventh try at medication, he will do what the Doctor orders.

2. I certainly accept that the condition has not got any better or worse since September 2015. I have no reason to disbelieve him. But, looking at the law, it is hard to get away from the fact that emerges from all the evidence that the next relevant date is going to be 13 September 2017, which is about 16 months after the claim period, and it is possible that something better might happen then as a result of that consultation.

3. So, clearly the lung condition was not fully diagnosed, treated and stabilised at the time of the claim period. It still has not been as at the date of this hearing.

4. I will however, just to be of assistance, if nothing else, indicate that if that were not so, and given what the Applicant has said, and accepting that there is not a huge amount of other evidence from doctors who have taken him through what he can and cannot do, (apart from the fact that he cannot walk 100 metres and things like that) but in terms of what I have before me indicate what sort of assessment he would get under the Tables.

5. The Respondent I think does not concede anything there, but the Respondent does indicate that if all his conditions were assessable he would get 15 points all up.

6. So for the lungs, if I actually was able to assess it (which unfortunately for the Applicant I cannot as indicated), what would he get? These Tables are interesting, I must say, in that sometimes it is easier it seems to get 10 points than 5. Be that as it may, the rules are if someone clearly gets 5 points, they get 5 points, but if they fall somewhere short of 10 points, somewhere in between 10 and 5 points, then they must be awarded the lesser, namely 5 points.

7. The lung problem is covered by ‘Table 1 - Functions requiring Physical Exertion and Stamina’.

8. To get 5 points under Table 1 what there has to be is a mild functional impact on activities requiring physical exertion or stamina. The descriptors there are, firstly:

   (1)       The person:

   (a)       experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:

   (i)        walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or

   (ii)       performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and

   (b)       is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).

9. Clearly I would have to say that the Applicant has difficulty with vacuuming or those active tasks, and certainly he cannot go very far without having to rest; he says 30 or 40 metres; which he accurately described as somewhere between the 22 and the halfway line on a football field. I would certainly say that he qualified for five points.

10. Would he qualify, all things being equal, for 10 points? There is a ‘moderate functional impact on activities requiring physical exertion or stamina’ here, and the person:

    (1)       The person:

    (a)       experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

    (i)        is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

    (ii)       has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

    (b)       is able to:

    (i)        use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

    (ii)       perform work-related tasks of a clerical, sedentary or stationary nature (i.e. tasks not requiring a high level of physical exertion).

11. The jury is out on the second one because he does not do that, but as he was only able to walk 30 or 40 metres without stopping for a rest, I would have to say that he is unable to walk far outside the home.

12. Whilst the Applicant can walk around a shopping centre, he needs to stop every 30 to 40 metres for a rest. I would imagine that he could use public transport but does not do so.

13. Not that it was assessed at all, or we have any specific evidence in relation to it, but looking at all the evidence and making some assumptions from that, I would agree he could ‘perform work-related tasks of a clerical, sedentary or stationary nature (i.e. tasks not requiring a high level of physical exertion.’

14. Having  observed the Applicant, and looking at all the evidence, I would say that if his lung condition was fully diagnosed, treated and stabilised he may well get 10 points and I would award him 10 points. He would not get 20 points because that is a severe functional impact, and that is where someone usually experiences symptoms such as shortness of breath and is unable to walk around a shopping centre without assistance; or walk from a car park into a shopping centre without assistance; or use public transport without assistance; or perform light day-to-day household activities, light gardening, folding and putting away laundry.

15. Whilst he may have to stop and rest every so often, he certainly does not need assistance to use public transport, or walk into a shopping centre from the car park, or walk around the shopping centre. And whilst there is no evidence in relation to light gardening, he probably could do it and he can sit on a ride on mower for up to 40 minutes which some might say constitutes light gardening.

16. Finally, a person has or is likely to have difficulty sustaining ‘work-related tasks of a clerical, sedentary or stationary nature’ for a continuous shift of at least three hours. There is no real evidence in relation to this before the Tribunal, but those are clearly not difficult tasks but they are tasks which I would think he would have no real difficulty in doing.

17. Accordingly, I do not believe the problems with his lungs could be assessed as at the claim period as causing a severe functional impact on activities requiring physical exertion or stamina, so 10 points would be the most he could get under Table 1 if it was applicable.

18. None of the other descriptors are relevant except in terms of the upper limb function.

19. The Respondent submits that the only condition I can have regard to is the right frozen shoulder. However that injury has flow on effects and I do not think it is particularly material whether that is the only issue I can have regard to, or whether I can have regard to the others.

20. Clearly, if I can have regard to the upper shoulder condition, I then have to take the upper limb function together, left and right upper limbs, and look at it globally, and apart from the usual self‑reported symptoms, there has to be corroborating evidence. The upper limbs extend from the shoulder to the fingers and basically if someone, for example, has complete use of one arm and no use of the other, the Tribunal has to look at what a person can actually do, even if it is necessarily just that one good arm; perhaps holding the useless arm just to keep things steady and such like. That is how the criteria work.

21. That said I now look at Table 2 which is the correct Table and deals with ‘Upper limb Function’. To attain 5 points under this Table a person’s condition must have a ‘mild functional impact on activities using hands or arms’. Namely:

    (1)The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following…

22. There are four descriptors, so a person needs to meet three out of four to qualify.

23. Firstly, does the Applicant have some difficulty with ‘picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag…?’ Yes, the Applicant does have some difficulty because whilst he can carry a bag, it must be given to him, and yes, he can pick up a two litre carton of liquid but he needs both hands for that.

24. He does not have a problem ‘handling very small objects’, for example, coins, although he has to slide them to the end of the Table to pick them up, which may actually count as a problem.

25. At the time of the claim period he could not do up his buttons. He has trained himself to do it now, but I am looking at the period from February 2016 to May 2016.

26. In respect of ‘reaching up or out to pick up objects’, the Applicant, with his left hand can do that up above head level. He can do it up to eye level with his right arm. In terms of picking up objects, if those objects are heavy there is an issue. So again, the Applicant does it with difficulty.

27. In my assessment the Applicant would get five points there. Does he get 10 points?

28. To qualify for 10 points, a person’s condition has to have a ‘moderate functional impact on activities using hands or arms’, and the person here has to have difficulty with most of the following. As there are six descriptors; a person must get at least four out of six:

    (a)       picking up a 1 litre carton full of liquid;

29. The Applicant has to use both hands for that, but he can do it.

    (b)picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

30. The Applicant can do that now and he could do that at the time of the claim period.

    (c)       holding and using a pen or pencil;

31. He can do the crosswords. He does not do it very often but again he does not have difficulty there.

    (d)       doing up buttons or tying shoelaces;

32. As at the relevant time, the Applicant had a problem.

    (e)       using a standard computer keyboard;

33. He does not use a computer, so that is not applicable, but again, that does not help him because that cannot be assessed.

    (f)        unscrewing a lid on a soft-drink bottle.

34. At the time, yes, he did have a problem, but he has got a device now that assists him in unscrewing tops.

35. So on two out of the six descriptors the Applicant does have difficulties. But for three out of the six he does not, and with a keyboard he just does not use it. Accordingly he does not qualify for 10 points.

36. I will award him five points as I find that it is uncontested that his right shoulder has a problem and there is no issue with that condition being fully diagnosed, treated and stabilised. Clearly he has some issues in relation to his hands, elbows and wrists as well but as a result of his right shoulder condition, he has trouble doing certain things. As I previously indicated, I found him to be a witness of truth, backed up by his wife who heard what he said and corroborated it. He was also supported in his evidence by the medical reports. Looking at all the evidence, I have no difficulty in awarding him five points.

37. Unfortunately, whilst I feel he might be eligible for 10 points for his lung condition, because the evidence is very clear from the medical practitioners that that condition cannot be regarded as fully treated and stabilised yet, I am unable to award him points there.

38. Were he to get 20 points, he clearly would not get 20 points for any one matter, but that would not matter in his case because if he got 20 points as a whole, he does not have to worry about doing a program of support as he has successfully completed one. He has done it over 560 days and he only needs about 540, so that is not a problem.

39. In terms of whether he has a continuing ability to do 15 hours a week in two years, that is not something I actually need to assess, and at any rate, there is not a huge amount of evidence before me to really comment further on that.

40. So I find the Applicant to be a witness of truth, who has made a very significant contribution to the Australian workforce, and for whom it is highly unfortunate that these conditions have laid him low. It is also, I am sure as far as he is concerned, highly unfortunate that the system is so rigorous in terms of qualifying for a DSP Pension that as at the relevant time of the claim period, despite his conditions he does not qualify for the reasons I have given above.

41. As indicated to the Applicant during the hearing, should his circumstances change and fresh evidence become available he is always able to make another claim in the future.

42. The decision of the AAT1, dated 12 October 2016, is affirmed.

I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

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Associate

Dated: 18 September 2017

Date(s) of hearing:	11 August 2017
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services