Bishop and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 632

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 632

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/1356

GENERAL ADMINISTRATIVE DIVISION		)
Re		STEPHEN BISHOP

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date8 September 2011

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

.................[Sgd].................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Benefits and entitlements – Disability support pension – Physical impairment from spine, lower limb and upper limb conditions – Pending orthopaedic review for treatment – Orthopaedic conditions not fully treated and stabilised – No allocation of impairment rating under Table 3, 4 or 5 of Schedule 1B – Nil impairment rating under Table 17 of Schedule 1B for renal condition – Capacity to work for at least 15 hours per week in light duties – Relevant time-frame – Applicant not qualified for disability support pension – Decision under review affirmed

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

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

REASONS FOR DECISION

8 September 2011 Mr R G Kenny, Senior Member    

BACKGROUND

1.      On 18 June 2010, Stephen Bishop lodged a claim with Centrelink for disability support pension, which is payable under the Social Security Act 1991 (Cth) (the Act). His claim was rejected on 31 July 2010. On 24 December 2010, an authorised review officer affirmed the decision, as did the Social Security Appeals Tribunal (SSAT) on 11 March 2011.

LEGISLATION AND ISSUES

2.      The qualification criteria for the receipt of disability support pension are set out in s 94 of the Act. It is common ground that Mr Bishop meets the age and residency requirements of that provision. The remaining requirements are:

·Whether Mr Bishop has a physical, intellectual or psychiatric impairment under s 94(1)(a); and

·If so, whether he has an impairment rating of 20 points or more, calculated under the Impairment Tables in Schedule 1B of the Act as required by s 94(1)(b); and

·If so, whether he has a continuing inability to work as required by s 94(1)(c)(i).

3.      To qualify for a disability support pension, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the initial claim or within the period of 13 weeks after the date of the claim.[1] This is from 18 June 2010 until 18 September 2010 (the relevant period). In the initial decision, it was determined that, during the relevant period, Mr Bishop’s impairment rating totalled 20 points under the Tables but that he did not have a continuing inability to work. In the decision of the authorised review officer, it was determined that the impairment rating under the Tables was less than 20 and that Mr Bishop did not have a continuing inability to work. The SSAT determined that the relevant impairment rating was less than 20 points. 

[1] See Schedule 2, cl 3 and cl 4 of the Social Security (Administration) Act 1999 (Cth).

4.      Mr Bishop suffers from impairment in respect of his neck, knee, left upper arm and kidney conditions. The issues for the Tribunal are whether Mr Bishop has an impairment rating of at least 20 points under the Tables and, if so, whether he has a continuing inability to work during the relevant period. In relation to the requirement for a continuing inability to work, the relevant parts of s 94 of the Act read:

“94(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 training 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.            

94(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.

94(4)    A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:

(a)       is unlikely to need a program of support that:

(i)is designed to assist the person to prepare for, find or maintain work; and

(ii)       is funded (wholly or partly) by the Commonwealth or is of a type that the Secretary considers is similar to a program of support that is funded (wholly or partly) by the Commonwealth; or

(b)       is likely to need such a program of support provided occasionally; or

(c)       is likely to need such a program of support that is not ongoing.

(4A)     The Secretary must comply with the guidelines (if any) determined and in force under subsection (4B) in deciding the following:

(a)       whether paragraph (1)(b) applies to a person;

(b)whether the Secretary is satisfied as mentioned in subsection (2) or (4).

(4B)     ....

94(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.

SUBMISSIONS

5.      Mr Bishop was represented by his mother, Sylvia Bishop, who submitted that Mr Bishop was in significant pain from his neck and knee conditions and that he also suffered from sleep apnoea and depression which, when properly assessed, would attract an impairment rating of at least 20 points under the Tables. She also submitted that it would be impossible for him to undertake any employment.

6.      For the respondent, Donna Smith submitted that the conditions for consideration were those nominated by Mr Bishop in his claim, as identified by his then treating doctor, Dr Rohan Swaris, in the report dated 5 May 2010, which accompanied the claim. These were ‘osteoarthritis right knee, right renal mass, left shoulder and cervical stenosis’. In the decision under review, these were described as “osteoarthritis knees, renal carcinoma and left shoulder and arm pain and paraesthesia related to a degenerative spinal condition”. Ms Smith submitted that appropriate ratings for the relevant period were: 5 under Table 4 for the osteoarthritis of the knees; 5 under Table of 5.1 for the left shoulder pain and nil for the other conditions. Ms Smith also submitted that the evidence established that, in the relevant period, Mr Bishop had a capacity to work for 15 to 22 hours per week in light semi-skilled work. Ms Smith also submitted that consideration should not be given to sleep apnoea or depression as neither of those conditions was raised by Mr Bishop or Dr Swaris at the time of the claim. Accordingly, Ms Smith submitted that Mr Bishop did not satisfy the requirements of s 94 of the Act and he was not qualified for the disability support pension.

EVIDENCE

7.      Mr Bishop’s treating doctor is now Dr Rashid Kassim who completed an undated report and a report dated 23 June 2011. In the first of those reports, Dr Kassim advised that Mr Bishop suffers from sleep apnoea. In the second report, he advised that he suffers from cervical spine stenosis, chronic back pain, left knee pain and depression. There was also Centrelink documentation before the Tribunal which indicated that Mr Bishop’s treating doctor in 2002, Dr Richard Thurlow, advised that Mr Bishop suffered from sleep apnoea. There was no medical evidence before the Tribunal that Mr Bishop suffered from depression or sleep apnoea during the relevant period.

8.      In his reports, Dr Kassim described the symptoms displayed by Mr Bishop and their impact on his ability to undertake employment as at mid-2011. Ms Jillian Weir, Occupational Therapist, saw Mr Bishop on 25 June 2010 and completed a Job Capacity Assessment Report.  She referred to the Treating Doctor’s Report of Dr Swaris which accompanied Mr Bishop’s disability support pension claim, and noted that Mr Bishop was awaiting further orthopaedic review or surgery for his neck, shoulder and knee conditions. Mr Bishop’s renal carcinoma of the kidney was asymptomatic and an incidental finding during investigations relating to other conditions.[2] Ms Weir noted that, as Mr Bishop was to undergo surgery for his kidney cancer within six weeks (which was within the relevant period), that condition was temporary rather than permanent. 

[2] See Royal Brisbane Hospital outpatient notes (at T-Document 24 of exhibit 1).

9.      Ms Weir recommended 5 points under Table 5.1 for Mr Bishop’s neck disorder; 10 points under Table 4 for lower limb deficiencies; and 5 points under Table 3 for shoulder and upper arm disorder. This totalled 20 impairment points. Ms Weir was unable to give evidence at the hearing because she is currently on leave. However, evidence was given by Peter Lehmann, an Occupational Therapist with Centrelink, and currently the manager of occupational therapy services in a Brisbane region. He read Ms Weir’s report and the medical evidence and concluded that Mr Bishop’s orthopaedic conditions and his kidney condition were not fully treated or stabilised in the relevant period. 

10.     Mr Bishop has a history of employment as a cabinet maker/shop fitter but has not worked since August 2009 because of his health problems. He believes that he will not be able to return to work because of these problems. He lives with his mother but spends some days each week on his own in a caravan. He is able to drive but only when he is not affected by his medication, in particular morphine, which he takes for pain relief. His daily practice is to complete any tasks involving the use of his car in the morning before returning to his home or caravan where he ingests his medication and watches television for the rest of the day. He is still awaiting referrals to specialists in relation to his neck, upper arm and knee conditions. In August 2010, he underwent surgery to his right kidney in which he had developed renal cell carcinoma. Apart from the need to exercise care with the scar left by the surgery, he has no impairment to his kidney function.

CONSIDERATION

11.     Schedule 1B of the Act has an Introduction which provides guidance in the application of the various Tables which it contains. Part of that Introduction reads:

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...

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...

12.     I am satisfied that the references by Dr Swaris and those of Ms Weir to the need for further orthopaedic review for Mr Bishop’s neck, upper limb and knee conditions supports Mr Lehmann’s opinion that those conditions had not been fully treated and stabilised during the relevant period. For that reason, no impairment ratings are applicable to those conditions during the relevant period. I am also satisfied that Mr Bishop’s renal carcinoma of the kidney was not symptomatic and that, as Mr Bishop underwent surgery for this, it was not a permanent condition. No rating is applicable under Table 17 of Schedule 1B, which relates to renal function.

13.     A necessary requirement in s 94(1)(b) of the Act is that Mr Bishop’s physical impairment, as a result of his neck and upper limb conditions, must equate to 20 or more points under the relevant Tables. The effect of allocating no impairment ratings under Table 3, 4, 5.1 or 17 means that s 94(1)(b) of the Act is not satisfied.

14.     In relation to work capacity, Dr Swaris, in his report of 5 May 2010, wrote that Mr Bishop was prevented from doing manual work. The opinions of Ms Weir and Mr Lehmann are that, during the relevant period, Mr Bishop was capable of working in light semi-skilled employment for 15 to 22 hours per week. Dr Swaris’ opinion is not inconsistent with their opinions, which are reasoned and based upon their experience in occupational therapy. I note that Dr Kassim’s contrary assessment is not related to the relevant period. I am satisfied that the assessment provided by Ms Weir and Mr Lehmann was applicable to Mr Bishop in the relevant period and that he would not satisfy s 94(1)(c)(i) of the Act.   

15.     I am satisfied that Mr Bishop does not meet the qualifying criteria for payment of the disability support pension under s 94 of the Act.

DECISION

16.The Tribunal affirms the decision under review.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

Signed: ..................[Sgd]............................................
  Research Associate

Date/s of Hearing  1 September 2011
Date of Decision  8 September 2011
The Applicant was assisted by his mother, Ms Sylvia Bishop
For the Respondent                  Donna Smith, departmental advocate