Blandford and Secretary, Department of Social Services (Social services second review)
[2015] AATA 545
•28 July 2015
Blandford and Secretary, Department of Social Services (Social services second review) [2015] AATA 545 (28 July 2015)
Division GENERAL DIVISION File Number(s)
2014/5087
Re
Allan Blandford
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Ion Alexander
Date 28 July 2015 Place Sydney The decision under review is affirmed.
........................[sgd]................................................
Dr Ion Alexander, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Ion Alexander, Member
28 July 2015
BACKGROUND
On 7 August 2013 Mr Blandford lodged a claim for Disability Support Pension (“DSP”) on the basis that he suffered medical conditions which were having an impact on his ability to function.
Mr Blandford’s claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (“SSAT”) on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular he did not satisfy s 94(1)(b) of the Act, in that his impairment rating was not 20 points or more under the Impairment Tables.
In these proceedings Mr Blandford seeks review of the decision of the SSAT dated 2 September 2014.
At the hearing Mr Blandford was self-represented and able to give oral evidence.
ISSUES
In order to qualify for DSP, Mr Blandford 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 accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 7 August 2013 and 6 November 2013 (the claim period).
Section 94(1) of the Act provides that 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;
…
The Respondent concedes and the Tribunal accepts that Mr Blandford suffers medical conditions that cause impairment and therefore satisfied s 94(1)(a) of the Act.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).
For the purposes of paragraph 6(3)(a) a condition is permanent if the condition is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)), and
·fully treated (paragraph 6(4)(b)), and
·fully stabilised (paragraph 6(4)(c)), and
·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).
The Introduction to each Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.
Also the Introduction to Table 5 of the Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made a psychiatrist)”.
In a Centrelink Medical Report dated 13 August 2013 Dr Javaheri, GP, lists “Adjustment disorder after redundancy” and “Neuropathy (multifocal motor)” as conditions with most functional impact.
The Respondent submits that during the claim period the “adjustment disorder after redundancy” was not fully diagnosed in accordance with the requirements of Impairment Table 5 in that the diagnosis had not been made by a psychiatrist or supported by evidence of clinical psychologist.
At the hearing Mr Blandford conceded that he not been assessed by either a psychiatrist or clinical psychologist either before or during the claim period.
This means that during the claim period Mr Blandford’s claimed mental health condition was not permanent within the meaning of the Impairment Determination so that a rating under the Impairment Tables cannot be assigned.
The Respondent concedes, and the Tribunal accepts, that during the claim period Mr Blandford’s condition of “multifocal motor neuropathy” (neuropathy) was permanent within the meaning of the Impairment Determination.
The Respondent submits that Mr Blandford’s neuropathy warrants a rating of five points under Table 1.
Therefore, in order for Mr Blandford to succeed in his application the Tribunal must consider whether during the claim period the impairment caused by the neuropathy warranted a rating 20 points or more under the Impairment Tables.
WHAT WAS MR BLANDFORD’S IMPAIRMENT RATING DURING THE CLAIM PERIOD?
Mr Blandford told the Tribunal that the neuropathy was diagnosed after Easter in 2010. He was immediately treated with five daily immunoglobulin infusions which have been continued monthly until the present time. The condition caused “spasms and cramps” and resulted in weakness and muscle wasting in both arms and the left lower leg.
At the hearing Mr Blandford was not able to provide the Tribunal with a clear understanding of his impairment during the claim period and it was difficult to distinguish past and present symptoms. He implied that his condition has become worse over time and that he is now unsteady on his feet and during late 2014 had fallen over on two occasions. He claims difficulty with the use of his arms and hands as well as difficulty with walking. He did, however, indicate that his left hand had recently improved.
Mr Blandford stated that despite the physical difficulties caused by his neuropathy he continued to work fulltime as a machine operator until his voluntary redundancy on 26 July 2013, two weeks prior to the date of claim. He indicated that he continued to work with some difficulty, was stressed and anxious but only took sick leave on the days he had his infusions.
Mr Blandford told the Tribunal he had contemplated stopping work much sooner but “pushed” himself because he was aware of an opportunity for voluntary redundancy.
DOCUMENTARY EVIDENCE
In the report a Job Capacity Assessment (JCA) performed on 6 December 2013 the assessor noted the following:
Client reported that he has lost power in hands and feet but mostly in his hands. His hands were observed to be shaking for the duration of the assessment. He has had this condition since 2011 and was working until July 2013 as a machine operator and only ceased working as he was made redundant… The client reported that he had no plans to stop work if he was not made redundant. He reported that he tries to still cut wood and mow lawns at home but only for 10 minutes at a time.
For reasons that are not entirely clear the assessor assigned an impairment rating of five points under Impairment Table 1.
In his report of 13 August 2013, Dr Javaheri notes Mr Blandford’s current symptoms as “easily getting tired, loss of power in muscles for any manual job”, describes impact on ability to function as “problem with endurance & power, can manage his normal personal care/ walking and bending” and notes that the effect of the condition on function within the next two years is “slow deterioration”.
In a Centrelink Medical Report dated 20 August 2013 Dr Park, neurologist, notes Mr Blandford’s current symptoms as “L arm / leg weakness- now much improved”, describes functional impact as “currently functions at high level without significant disability” and notes that the effect of the condition on function over the next two years will remain unchanged and confirms that the condition “has been stable for some time”.
In a supplementary report dated 29 April 2014 Dr Javaheri describes functional impact as “poor endurance & power, has got worse even has some problem with personal care walking/bending”.
In a letter dated 5 March 2015 Dr Park writes the following:
This is to confirm that I have been following up Allan Blandford since 2010 initial presentation is weakness and wasting of the left hand and left leg for which the diagnosis of multifocal neuropathy was made. He subsequently had regular immunoglobulin therapy through Hawkesbury hospital with good response to the point where much of the wasted muscles had improved and there was functional improvement. Unfortunately he developed other health issues especially minor dysphasia and also significant anxiety and depression for which he also sees a clinical psychologist. He has also been diagnosed with degenerative arthritis. Overall he is doing poorly. He gets breathless quickly, he cannot walk long distances and he gets fatigued fairly quickly and he is constantly feeling tired and dizzy, on exertion he feels he is going to faint.
I note that on 2 September 2014 Mr Blandford told the SSAT that the neuropathy affects his arms and legs and “interferes with his stamina and causes him to become short of breath”. He also told the Tribunal that he requires assistance from his wife with various self-care tasks and has significant limitations in walking.
The SSAT was satisfied that Mr Blandford suffered moderate impact on functions requiring physical exertion and stamina and assigned an impairment rating of ten points under Impairment Table 1.
CONSIDERATION
The evidence before the Tribunal clearly indicates that currently Mr Blandford suffers significant functional impairment. However, in my view the evidence does not provide a satisfactory explanation as to time of onset or the cause of the deterioration in Mr Blandford’s ability to function. In particular the evidence does not provide for a reasonable assessment of Mr Blandford’s functional impairment during the claim period.
I am not persuaded that Mr Blandford’s self-report of symptoms to this Tribunal and the SSAT represents an accurate description of his impairment during the claim period.
The evidence demonstrates that Mr Blandford was able to work full-time, albeit with some claimed difficulty, until about two weeks before the date of claim.
Also the contemporaneous documentary evidence, although very brief and somewhat inconsistent, does not support a conclusion that during the claim period Mr Blandford suffered significant impairment because of his multifocal motor neuropathy. In fact, on 20 August 2013, his treating specialist stated that Mr Blandford “currently functions at high level without significant disability”.
Furthermore, the medical evidence suggests that the impairment was in the left arm and left leg which would require an assessment under Impairment Tables 2 and 3. There is no satisfactory evidence before the Tribunal which would allow an assessment of functional impact during the claim period under these Tables.
For present purposes, even if I were to accept that during the claim period Mr Blandford did suffer functional impairment because of his neuropathy, I am satisfied there is insufficient evidence to support a conclusion that the impairment warranted a rating of more than 10 points under Table 1.
It follows that during the claim period Mr Blandford did not have a rating of 20 points or more under the Impairment Tables and, therefore, did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.
DECISION
The decision under review is affirmed.
I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member .........................[sgd]...............................................
Associate
Dated 28 July 2015
Date(s) of hearing 6 July 2015 Applicant In person Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
-
Social Security Law
Legal Concepts
-
Social Security – pensions
-
Impairment Rating
-
Disability Support Pension
0
0
2