BELA LANTOS and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2012] AATA 200

[2012] AATA 200

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/4023
Re	BELA LANTOS
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Dr P McDermott, RFD, Senior Member
Date	5 April 2012
Place	Brisbane

The Tribunal affirms the decision under review.

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Dr P McDermott, RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Impairment tables – Nil Impairment rating – Decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94, sch 1B

Social Security (Administration) Act 1999 (Cth) sch 2

CASES

Annas v Director-General of Social Security (1985) 8 FCR 49

Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
Li and Secretary, Department of Employment and Workplace Relations (2007) 96 ALD 769
Re Hamal and Secretary, Department of Social Service (1993) 30 ALD 517
Secretary, Department of Family and Community Services and Bell (1998) 52 ALD 472

Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444

SECONDARY MATERIALS

A Guide to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension

REASONS FOR DECISION

Dr P McDermott, RFD, Senior Member

5 April 2012

INTRODUCTION

1. I have to review a decision by Centrelink to reject a claim made by Mr Bela Lantos (the applicant) for disability support pension under the Social Security Act 1991 (Cth) (the Act).History of the matter

2. On 7 June 2010, the applicant was made redundant at his previous employment. Since 30 September 2010 he has been in receipt of newstart allowance.

3. On 18 October 2010, the applicant was assessed by Mr Rod Bear, a registered psychologist, who completed a job capacity assessment report. In that report, consideration was given to the following conditions of the applicant: neck disorder; spinal disorder; lower limb deficiencies; and respiratory disorder. It was then assessed that the conditions of the applicant were not fully treated and stabilised. It was also considered that the applicant had a current and future work capacity of 30 hours or more per week.

4. On 24 December 2010, the applicant made a claim for disability support pension. On 5 January 2011 he lodged his claim form. In that form he listed a number of disabilities: significantly narrowed disc space in spine; two compressed discs in neck; bone fragment in right big toe; detachment of cortical fragment in right wrist; a piece of cartilage broken off in knee; reflux damaging throat; floppy heart valve; allergies to dust, pollens, chemicals; blocked nose; lack of sleep; and cognitive problem. The applicant provided an x-ray report of his right wrist and right ankle and a CT scan of his right wrist.

5. The applicant also provided a medical report from Dr Lola Power, dated 21 December 2010. In that report Dr Power listed a number of the applicant’s conditions: right wrist with segment of chipped bone; L5/S1 intervertebral disc lesion; and severe chronic rhinitis. Dr Power noted the date of onset of the right wrist and back conditions as being 30 October 2010 but that the date of diagnosis for the back condition was 10 April 2006. The date of onset and diagnosis for the rhinitis condition was noted as “1989”. Future treatment for the right wrist and back conditions was noted as “anti-inflammatory drugs” and in relation to the rhinitis condition the applicant had to maintain the current becconaise treatment.

6. On 19 January 2011, the applicant was assessed by Ms Ann-Maree Bennett, a registered psychologist. In her report, Ms Bennett considered the following conditions: shoulder and upper arm disorder; spinal disorder; and respiratory disorder. Ms Bennett considered the shoulder and upper arm condition and spinal disorder had not been fully treated and stabilised. The respiratory disorder was assessed as attracting 10 points under the Tables for the Assessment of Work-related Impairment for Disability Support Pension in Schedule 1B of the Act (the Impairment Tables). Ms Bennett assessed that the applicant had a current and future work capacity, without intervention, of 23-29 hours per week.

7. On 3 February 2011, a decision was made by Centrelink to reject the Applicant’s claim for disability support pension.

8. The applicant provided a further report by Dr Power dated 24 February 2011. In that report, Dr Power referred to the following conditions: right hand – sequelae of fall; left hand – Palmar Fascia; and degenerative disc lesion L5/S1. Dr Power also noted the conditions of severe chronic rhinitis and right gait toe but considered that these conditions caused minimal or limited impact.

9. On 28 March 2011, Ms Courtney Powter, a registered occupational therapist, completed another job capacity assessment on the applicant. Her report contains a consideration of the following conditions: spinal disorder; respiratory disorder; neck disorder; and shoulder and upper arm disorder. Ms Powter considered only the respiratory disorder was fully treated and stabilised: however it was considered that this disorder attracted a rating of 0 points under the Impairment Tables as the condition was easily tolerated with no appreciable effect on ability to work. Ms Powter considered that the applicant had an ability to work at least 15 hours per week with or without intervention.

10. On 9 May 2011, the applicant requested a review of the Centrelink decision.  On 16 May 2011, the applicant provided a letter dated 14 May 2011 from Dr Power which contained the following discussion of the spine and rhinitis conditions:

    (1)Severe degenerative and intervertebral disc narrowing OC L 4/5 and C5/6 which cause chronic pain and disability – in addition there if (sic) disability in the use and function to right hand due to a chip fracture of the distal ulna and cyst in the triquetrum bone (carpal bones). This contributes to the disability making Mr Lantos unable to function in employment.

    (2)Severe chronic rhinitis which Mr Lantos has had all life – this is a severely handicapping infection with little successful management available certainly not contributing to his good health and ability to function. What is more serious is the development of memory loss – which he feels is due to his chronic disability to breathe (constant blocking of nose – for most of his life) – he has been tested and positive for multiple allergens.

11. On 16 May 2011, Centrelink was provided with a medical certificate completed by Dr Power in relation to the spine and rhinitis conditions.

12. On 31 May 2011, the claim of the applicant for disability support pension was reviewed by an Authorised Review Officer who affirmed the decision to reject the claim for disability support pension.

13. The applicant made an application to the Social Security Appeals Tribunal (SSAT) for further review of the decision to reject his claim for disability support pension. That Tribunal reviewed and, on 11 August 2011, affirmed the decision under review.

14. On 21 September 2011, the applicant made an application to this Tribunal for review of the decision to reject his claim for disability support pension. Subsequent to the decision of the SSAT, the applicant obtained an x-ray report of his spine and an x-ray report of his left knee which are in evidence before me (T-document 22, pp. 97-98). The applicant has also filed a further letter, dated 28 November 2011, from Dr Power. In that letter Dr Power provided her opinion of the appropriate rating under the Impairment Tables of the following conditions: spinal function lumbosacral spine (20 points); cervical spine (10 points); and chronic rhinitis (15 points).

15. On 3 January 2012, a further job capacity assessment was conducted by Mr Tristan Smith, an accredited exercise physiologist. In his report, Mr Smith made an assessment of the following conditions: lower limb deficiencies (fully diagnosed); fractures and crush injuries (fully diagnosed, fully treated, fully stabilised); shoulder and upper arm disorder (fully diagnosed, fully treated); neck disorder (fully diagnosed); respiratory disorder (fully diagnosed, fully treated, fully stabilised); spinal disorder (fully diagnosed); asthma (other – nil investigation); coronary artery disease (other – no recent medical evidence); and gastroenterological condition (other – no recent medical evidence). Mr Smith considered that only the fractures and crush injury and respiratory disorder could be rated and allocated a rating of 0 points under the Impairment Tables to each condition. Mr Smith considered that the applicant had a baseline work capacity of at least 15 hours per week.

    ISSUES

16. I have to determine whether the applicant has permanent medical conditions which attract a rating of 20 points or more under the Impairment Tables; and if so, whether he has a continuing inability to work.

    LEGISLATION

17. The legislation that I am required to consider is the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

    ASSESSMENT PERIOD

18. At the hearing the applicant agreed that the qualification of the applicant for disability support pension is to be determined during the period from 24 December 2010 to 25 March 2011 (the relevant period). The applicant made a claim for disability support pension by telephone on 24 December 2010. He lodged his claim for that benefit on 5 January 2011. Under Schedule 2, subclause 4(1) of the Administration Act, the applicant would be eligible for the benefit if he became qualified for the payment within the period of 13 weeks after the day on which the claim was made. I am accordingly assessing the condition of the applicant within the relevant period.

    QUALIFICATION FOR DISABILITY SUPPORT PENSION

19. The applicant is qualified to receive disability support pension if he satisfies the requirements of s 94 of the Act which provides as follows:

    (1) A person is qualified for disability support pension if:

    (a) the person has a physical, intellectual or psychiatric impairment; and

    (b) the person's impairment is of 20 points or more under the Impairment Tables; and

    (c) one of the following applies:

    (i) the person has a continuing inability to work;

    …

    (2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    …

    (a) in all cases -- the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b) in all cases -- either:

    (i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii) if the impairment does not prevent the person from undertaking a training activity–such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

    (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.

    …

    (5) In this section:

    “training activity” means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

    (a) education;

    (b) pre vocational training;

    (c) vocational training;

    (d) vocational rehabilitation;

    (e) work related training (including on the job training).

    "work" means work:

    (a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

    (b) that exists in Australia, even if not within the person's locally accessible labour market.

    The Introduction to the Impairment Tables contained in Schedule 1B of the Act states as follows:

    4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

    5. 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 for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

    6. 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.

    It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person.  In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.

    …

    The Guide[1] to the Impairment Tables for Schedule 1B contained in the Act provides further clarification and states in part, on page 6, as follows:

    B)        DEFINITION OF WORK – (PARAGRAPH 1)

    What is considered “work” for disability support pension purposes.

    Work is defined in section 94(5) of the Social Security Act 1991. For these purposes, work should be for at least 15 hours per week at or above the relevant minimum wage and should exist in Australia, even if not within the person's locally accessible labour market.

    The 15 hour work test applies to people whose start date on DSP is after 30 June 2006 and those whose start date on DSP is between 11 May 2005 and 30 June 2006 and have been reviewed after 30 June 2006 under the 15 hour rule.

    …

    In considering a person’s capacity for “work” as defined, it would be reasonable to expect that they must be capable of reliably performing such work on a sustainable basis, that is, for a reasonable period of time without requiring excessive leave or work absences. A reasonable period of time is taken to be 26 weeks. Further, it would be expected that such work is in open, unsupported employment and that the person does not require excessive support (i.e. more than what is usually considered reasonable adjustments and/or normal supervision) to perform the work. It is considered that the Tables refer to work in this context with regard to the assessment of work-related impairment …

    [1] See A Guide to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension.

    IMPAIRMENT RATING

20. At the outset of the hearing the advocate for the applicant informed the Tribunal that the applicant was seeking an impairment rating in respect of three conditions: the neck condition; the back condition; and the rhinitis condition. The applicant did not seek an impairment rating for the other medical conditions that are mentioned in his claim form.

21. The neck condition of the applicant is not a fully documented, diagnosed condition which has been investigated, treated and stabilised before the end of the relevant period. The applicant, in his evidence, stated that he has sought physiotherapy treatment. It would appear that the condition may have become more severe after the end of the relevant period as he appears to have a more limited range of movement. During the relevant period the applicant would appear to have a quarter loss of range of movement and now the range of movement appears to have decreased beyond this loss. This indicated that the injury did not stabilise during the relevant period.

22. I am unable to assign a rating for the back condition of the applicant as this condition is not a fully documented, diagnosed condition which has been investigated, treated and stabilised before the end of the relevant period. The applicant stated that he was undergoing physiotherapy treatment in September/October 2011. It is probable that the fall of the applicant in October 2010 may have contributed to this condition and yet it took a year for physiotherapy treatment to be given to the applicant.

23. The treating doctor has certified that the applicant has a chronic rhinitis condition. This is a long-standing condition that the applicant has had to endure. In his evidence the applicant related how he experienced difficulties with his reaction to a weed in his native Hungary. Dr Power, in her report dated 24 February 2011, considered the rhinitis condition to have a minimal or limited impact. In a more recent report, dated 28 November 2011, Dr Power has opined that 15 points should be assigned to the chronic rhinitis condition. I accept the explanation of Dr Power that she had earlier, on 24 February 2011, listed the condition in a section of the medical report form dealing with conditions having limited impact as another section of the report which is intended for more severe conditions was unavailable.

24. I accept that the rhinitis condition may attract a rating of 15 points under Table 20 of the Impairment Tables, which concerns miscellaneous ear/nose/throat (ENT) conditions, but for the fact that there is a possibility of an operation which may alleviate the symptoms. I appreciate that Dr Power has stated that the operation may not be successful in some cases because there may be a recurrence of the condition after a few years. Until the possibility of such an operation has been investigated by an ENT surgeon I am not prepared to accept that the condition has been fully treated. I cannot therefore assign a rating to this condition. Whilst I appreciate that Ms Barwick, a nurse who assisted Mr Smith, does not have medical qualifications, in giving her evidence she stated that she does have experience in having success in this type of operation.

25. There are a number of conditions that have been the subject of the claim for disability support pension. The applicant, through his advocate, has not relied upon these conditions to support the claim of the applicant to disability support pension. I have reviewed the evidence before me and have come to the conclusion that the asthma, coronary artery disease, broken cartilage, the floppy heart valve, and the reflux and gastroenterological conditions cannot be assigned a rating as they are not fully diagnosed.

26. One of the conditions that were listed by the applicant in his form concerned the bone fragment in his right big toe. The applicant states that he cannot move his right big toe unless he wears wide fitting comfortable shoes to prevent pain from affecting his ability to walk.  The applicant is able to walk barefoot or with wide shoes without any difficulty and there appears to be no mobility issues due to the impact associated with a fracture of his big toe. Dr Power, his treating doctor, has, in her report of 24 February 2011, stated that the condition would cause minimal impact on the applicant’s ability to function. In the circumstances I cannot assign a rating to this condition where there is no evidence of any functional impact

1. There was an x-ray of the left knee of the applicant in August 2011. However, the left knee of the applicant could not be regarded as a fully documented, diagnosed condition which has been investigated, treated and stabilised before the end of the relevant period. I cannot therefore assign a rating to the left knee condition.

   COMBINED IMPAIRMENT RATING

2. I have found that the applicant does not have a combined impairment rating of at least 20 points. Consequently, he does not satisfy s 94(1)(b) of the Act and he does not qualify for disability support pension.

3. In all strictness it is therefore not necessary for me to consider whether the applicant has a continuing inability to work: see s 94(1)(c) of the Act. However, in fairness to the applicant, I have thought that it is important that he is informed that this is a matter that he also has to satisfy before he qualifies for disability support pension.

   CONTINUING INABILITY TO WORK

4. I am not satisfied that the applicant has a “continuing inability to work” in terms of ss 94(1)(c) and 94(2) of the Act. The applicant did not present any evidence to satisfy me that he had a continuing inability to work during the relevant period. I regard one matter as significant and that is when the applicant ceased his last employment he did not do so because of any medical condition but because he was made redundant.

5. In making an assessment as to whether a person has a continuing inability to work, I must be satisfied that the continuing inability to work is directly caused by an impairment that has been assigned an impairment rating under s 94(1)(b) of the Act.[2] This provision cannot be satisfied as the applicant does not have an impairment that can be assigned an impairment rating.

   [2] Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444, 452 and Crossland and Secretary, Department of Family and Community Services [2004] AATA 864.

6. In determining whether a person has a continuing inability to work I am required to disregard a number of factors, including:

   •The availability to the person of a training activity (s 94(3)(a));

   •The availability of work in the person’s locally accessible labour market (s 94(3)(b));

   •The person’s motivation to work or train except when medical evidence indicates that the lack of motivation is directly attributable to the impairment (Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444, 451); and

   •The existence of a benign employer or sheltered or special employment; that is, only the normal workplace is considered (Li and Secretary, Department of Employment and Workplace Relations (2007) 96 ALD 769, 771-772; Re Hamal and Secretary, Department of Social Service (1993) 30 ALD 517, 525; Secretary, Department of Family and Community Services and Bell (1998) 52 ALD 472, 474; cf. Annas v Director-General of Social Security (1985) 8 FCR 49).

7. The Secretary relies on the reports of Ms Bennett, Ms Powter and Mr Smith to show that the applicant does not have a continuing inability to work. In all these unchallenged reports the applicant has been assessed as having a work capacity of at least 15 hours per week with or without intervention and that the assessment excludes any temporary impacts.

8. The Secretary contends that pursuant to s 94(1)(b), conditions that cannot be assigned an impairment rating cannot be considered in terms of whether the applicant has a continuing inability to work.

9. I have decided to rely on the assessment by Mr Smith. Not only is Mr Smith’s assessment the only available material on the applicant’s capacity to work (during the relevant period), but I accept the Secretary’s contention that Mr Smith has specialised knowledge and experience in identifying barriers to employment, interventions, available programmes, and suitable occupations to determine a person’s impairment rating and work capacity.

10. I am not satisfied that the applicant has a continuing inability to work in terms of s 94(1)(c) of the Act. He therefore, for this reason, does not also qualify for the payment of disability support pension.

    DECISION

11. I affirm the decision under review.

I certify that the preceding 37 (thirty seven) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member.

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Dated 5 April 2012

Date(s) of hearing	22 February 2012
Advocate for the Applicant	Mr Tony Sims
Advocate for the Respondent	Jasmine Forsyth

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