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

[2015] AATA 783

Boff and Secretary, Department of Social Services (Social services second review) [2015] AATA 783 (9 October 2015)

Division	GENERAL DIVISION
File Number(s)	2014/3430
Re	Jean-Luc Boff
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Professor R McCallum AO, Member
Date	9 October 2015
Place	Sydney

The decision under review is affirmed.

......................[sgd]..................................................

Professor R McCallum AO, 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)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Re Fanning and Secretary, Department of Social Services [2014] AATA 447
Re Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

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

REASONS FOR DECISION

Professor R McCallum AO, Member

9 October 2015

INTRODUCTION

1. The Applicant, Mr Jean-Luc Boff was born in Mauritius and immigrated to Australia in 1988 and he became an Australian citizen in 1991. Mr Boff was employed by Australia Post from 1990 to 1997, and then he was employed by RailCorp for 11 and a half years. Mr Boff has not worked since April 2012.

2. On 24 January 2012, Dr Kuan issued a medical report for Mr Boff. In September 2012, Dr Allen Turnbull issued a medical report for Mr Boff. On 5 February 2013, Dr Sarfraz issued a medical report for Mr Boff.

3. On 2 May 2013, Mr Boff lodged a claim for Disability Support Pension (DSP) which was registered on the following day.

4. On 20 August 2013, a Job Capacity Assessment was carried out by a registered psychologist and registered occupational therapist. They concluded that Mr Boff's spinal disorder and lower limb deficiency were not fully treated and fully stabilised and that the shoulder condition was temporary. Therefore, no impairment ratings could be assigned under the Impairment Tables which are to be found in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables). The assessors stated that Mr Boff had a baseline work capacity of 15-22 hours per week, and that his capacity for work within two years, with intervention, would increase to 22-39 hours per week.

5. The Department of Human Services rejected Mr Boff's claim for DSP. Mr Boff sought review from an Authorised Review Officer and then from the former Social Security Appeals Tribunal (SSAT), but to no avail.

6. Mr Boff gave evidence to the SSAT by telephone. In its decision dated 3 June 2014, the SSAT summarised Mr Boff's evidence in paragraph 16 which is as follows.

   Mr Boff told the tribunal that the pain in his hips and knees goes down to his ankles. He has a limp and has to be careful when he walks. He is able to walk to the nearby bus stop but does not walk around shopping malls because this would increase his pain. Mr Boff can stand for an hour. His knee pain makes him reluctant to use stairs but if he does have to go up or down stairs he does so in a slow manner. Mr Boff is able to kneel and squat but the manoeuvres are painful for him. Mr Boff drives a car. He meets his wife at the shopping centre where she does the shopping "one by one" and "little by little". Twice a week Mr Boff walks to the nearby park (150 metres) to sit for a while and then return home.

7. The SSAT held that Mr Boff's lower limb deficiency warranted a rating of nil points under Table 3 of the Impairment Tables titled "Lower limb function". The SSAT also held that Mr Boff's spinal and neck conditions warranted a rating of nil points under Table 4 of the Impairment Tables which is titled "Spinal function".

8. Mr Boff appeals to this Tribunal.

   THE LEGISLATION

9. The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

10. The criteria for DSP are set forth in section 94 of the SS Act. In Mr Boff's circumstances subsection 94(1) relevantly provides:

    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;

    ...

11. Put simply, I must be satisfied, first, that Mr Boff has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the Impairment Tables. Finally, I must be satisfied that Mr Boff has a continuing inability to work.

    The 13 week qualifying period

12. Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. It is not necessary to set out this clause, suffice to write the following. Clause 4(1) is worded in a complex manner, however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine Mr Boff's eligibility for DSP in the 13 week period commencing on the day on which Mr Boff applied for DSP, and concluding 13 weeks after that day. Therefore, I must determine whether Mr Boff qualified for DSP between 3 May 2013 and 3 August 2013.

13. In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen said at 34:

    In the Tribunal's consideration as to whether a condition has been stabilized and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues).

    This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

14. In Re Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said at [31]-[33]:

    [31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or within] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the claim period may still be relevant, but only in so far as they are referable to the applicant's condition during the claim period.

    [32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant's entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.

    [33] … The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the claim period is not directly relevant to the Tribunal's decision.

15. Therefore, in determining the eligibility of Mr Boff to receive DSP I am confined to examining Mr Boff's impairments during the thirteen week  claim period which is from 3 May 2013 to 3 August 2013.

16. The date of this hearing is 9 September 2015 which is just over two years and one month since the conclusion of the claim period.

    THE CONCESSIONS OF THE RESPONDENT

17. Paragraphs 34 and 35 of the Respondent's Statement of Facts and Contentions provide as follows.

    34. The Respondent accepts that within the claim period, the Applicant suffered from neck and back pain and knee pain.

    35.Therefore the Respondent accepts that subsection 94(1)(a) of the Act is satisfied.

    THE ISSUES BEFORE THE TRIBUNAL

18. Given the Respondent's concession, Mr Boff complies with subsection 94(1)(a) of the SS Act as he has physical impairments. Therefore, the first issue which I am required to decide is the rating to be given to Mr Boff's impairments under the Impairment Tables.

19. The second issue which I am required to decide is whether Mr Boff has a continuing inability to work pursuant to subsection 94(1)(c)(i) and attendant provisions of the SS Act. It will not be necessary to decide this issue if I find that Mr Boff's impairments do not attain an assessment of 20 points under the Impairment Tables.

    The Impairment Tables

20. Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of Mr Boff are worth 20 points under the Impairment Tables. This requires a few words of explanation.

21. In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the Impairment Tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:

    [5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.

    [6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

22. Importantly, impairments can only be assigned ratings under the impairment tables when the medical condition is permanent within the meaning of the term in the Determination and the impairment resulting from the condition is likely to persist for more than two years. The Determination provides at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and be likely to persist for more than two years.

23. Subsection 6(5) of the Determination provides that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years. Subsection 6(6) provides, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years.

24. It is also important to appreciate that under subsection 10(5), if two or more conditions cause a common or combined impairment, then a single rating should be assigned in relation to that common or combined impairment under a single Table. However, sub-section 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.

    THE EVIDENCE OF MR BOFF

25. Mr Boff gave sworn evidence at the hearing. I found him to be a truthful witness.

26. In relation to his knee and hip condition, Mr Boff said that he can walk for 15 minutes, and that the SSAT was in error in saying that he could walk for one hour. He said that his conditions have deteriorated since the SSAT hearing.

27. In relation to his spinal condition, Mr Boff said that he can normally bend, but that he cannot bend today.

28. Mr Boff said that he can dress himself with a little difficulty and that he can shower himself without assistance. Mr Boff said that he can hang washing on the line.

29. Mr Boff said that he was in pain and that he takes Panadol every day. He tries to limit his intake because he takes an anti-inflammatory tablet each day and he also takes blood pressure medication. Mr Boff said that his blood pressure is well managed. Mr Boff said that he had pain in his right shoulder which extends along his back. He said that he goes swimming and that he saw a specialist in 2007.

30. Mr Boff said that his MRI indicated that he has a bone problem with his vertebrae, and a problem with the connection to his muscles.  He said that he had been told that he has a temporary bursitis in his shoulder.

31. In cross examination, Mr Boff agreed that he carried a backpack to the hearing which contained his documents. He said he could retrieve his documents when the backpack was on a chair. Mr Boff said that he came on the train to the hearing and got out at St James railway station and walked to the hearing. Mr Boff said that he climbed up the stairs at St James station and that he did not need assistance, but held onto the rail. Mr Boff said that he would be able to descend these stairs after leaving the hearing, but that descending is more painful than is ascending stairs.

32. Mr Boff was asked about his claim form where he mentioned that he visited his father in a nursing home and drove his mother. Mr Boff said that he drove then and he still drives a car. He said that he cannot drive for longer than 40 minutes.

33. Mr Boff was asked about the Job Capacity Assessment report. He said that he can only walk for about 20 minutes.

34. Mr Boff was asked about the report from Dr Broe dated 31 July 2015. Dr Broe stated that Mr Boff was overweight. Mr Boff was asked if he had begun a weight loss program. Mr Boff said that he had started swimming but that Dr Broe had not actually weighed him.

35. Mr Boff said that he can turn his neck and that it has improved. He drives every day, but he has to rest after driving.

36. Mr Boff also said that he can put on his own shoes.

    CONSIDERATION

37. The first issue which I am required to decide is the rating to be given to Mr Boff's impairments under the Impairment Tables during the claim period. I am confined to assessing Mr Boff's impairments as they existed from 3 May 2013 to 3 August 2013. From Mr Boff's evidence, it does appear that his impairments have deteriorated over the last two years.

    Lower limb deficiency

38. In relation to Mr Boff's knee and hip condition, I accept that Mr Boff does suffer pain.

39. From Mr Boff's oral evidence, he can walk for 20 minutes, can ascend and descend stairs without assistance, can drive a car for 40 minutes, and can self-care without assistance. I note the Medical report from  Dr Sarfraz dated 5 February 2013. This was a Centrelink medical report form for DSP. In answer to question 6 which asked about conditions which were well managed, Dr Sarfraz noted Mr Boff's knee and hip pain.

    The descriptors under Table 3 of the Impairment Tables for a nil functional impact on activities are as follows.

    1. The person can:

    (a)walk without difficulty on a variety of different terrains and at varying speeds; and

    (b)       walk without difficulty around the home and community; and

    (c)       kneel or squat and rise back to a standing position without difficulty; and

    (d)       stand unaided for at least 10 minutes; and

    (e)       use stairs without difficulty.

40. Having regard to Mr Boff's evidence and to the medical evidence, I find that Mr Boff's knee and hip condition to be assessed as nil points under Table 3 of the Impairment tables as they do not affect his activities.

    Spinal condition

41. I accept that Mr Boff has suffered from back pain since 2005 and that he has degenerative lumbar spine disease.

42. From Mr Boff's oral evidence, he can self-care, can hang washing on the line, can carry a backpack and can turn his neck when driving. In his evidence, Mr Boff said that he can normally bend, but that he could not bend today. I accept that his spinal condition may have deteriorated over the last two years.

43. The descriptors in Table 4 of the Impairment Tables for a nil affect on activities are as follows.

    The person can:

    (a)       bend down to pick a light object off the floor (e.g. a piece of paper); and

    (b)       turn their trunk from side to side; and

    (c)       turn their head to look to the sides or upwards.

44. Having regard to Mr Boff's evidence and to the medical evidence, I find that Mr Boff's spinal condition to be assessed at nil points under Table 4 of the Impairment Tables as this impairment does not affect his activities.

    Shoulder and upper arm deficiency

45. In relation to Mr Boff's shoulder and upper arm deficiency, I find there is insufficient medical evidence as to whether it was fully diagnosed, treated and stabilised during the claim period. Accordingly, I find that it was not fully diagnosed, treated and stabilised during the claim period.

    CONCLUSION

46. From the medical evidence and Mr Boff's oral evidence, I find that Mr Boff's lower limb deficiency and his spinal condition warrant assessments of nil points under the impairment tables. I further find on the evidence that Mr Boff's shoulder and upper arm deficiency was not fully diagnosed, treated and stabilised during the claim period. As Mr Boff's impairments are not assessable at 20 points under the Impairment Tables, Mr Boff does not qualify for DSP.

47. It is not necessary for me to determine whether Mr Boff has a continuing inability to work pursuant to subsection 94(1)(c)(i) and attendant provisions of the SS Act.

    DECISION

48. The decision of the former Social Security Appeals Tribunal dated 3 June 2014 is affirmed.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

.........................[sgd]...............................................

Associate

Dated 9 October 2015

Date(s) of hearing	9 September 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services