Brian Harvey and Secretary, Department of Social Services
[2014] AATA 364
•10 June 2014
[2014] AATA 364
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5511
Re
Brian Harvey
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Member I Thompson
Date 10 June 2014 Place Adelaide The Tribunal affirms the decision under review.
.....................[Sgd].......................................
Member I Thompson
CATCHWORDS
SOCIAL SECURITY - pensions and benefits and allowances - entitlement to Disability Support Pension - physical, intellectual or psychiatric impairment - whether impairment rating of 20 points or more existed under the Impairment Tables - whether conditions were fully diagnosed, treated and stabilised - conditions not fully treated at the date of claim or the 13 weeks following - decision affirmed
LEGISLATION
Social Security Act 1991 (Cth), ss 94
Social Security (Administration) Act 1999 (Cth) Schedule 2 cl 4
CASES
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Re Livermore and Secretary, Department of Social Services [2013] AATA 747
Re Toma and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 379Re Campbell and Secretary, Department of Family and Community Services [2004] AATA 1201
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Member I Thompson
10 June 2014
INTRODUCTION
Mr Harvey lodged a claim for a Disability Support Pension (DSP) with Centrelink on 2 March 2012. The basis of the claim is that he suffers from bilateral knee conditions and problems with his left shoulder.
Mr Harvey underwent a Job Capacity Assessment (JCA) on 29 March 2012. Centrelink rejected the DSP claim. Mr Harvey sought a review of that decision. An Authorised Review Officer (ARO) affirmed the original decision and found that the bilateral knee conditions were not fully treated and fully stabilised pending two total knee replacements, while the condition of tendonitis in the left shoulder did not attract an impairment rating as it had limited impact on Mr Harvey’s ability to function.
Mr Harvey applied to the Social Security Appeals Tribunal (SSAT) for a review of the decision of the ARO. The SSAT delivered its decision on 9 November 2012 and affirmed the decision under review. The SSAT found that Mr Harvey’s knee conditions were not fully diagnosed, fully treated and fully stabilised in the period 2 March 2012 to 2 June 2012 and did not attract impairment points. The SSAT found that the left shoulder condition was fully diagnosed, treated and stabilised, however it did not attract any impairment points. Accordingly, the SSAT concluded that Mr Harvey’s total impairment rating was zero points, that he did not satisfy s 94(1)(b) of the Social Security Act 1991 (the Act) and did not qualify for a DSP.
By application dated 4 December 2012, Mr Harvey applied to this Tribunal for review of the decision of the SSAT. In his application, Mr Harvey referred to chronic pain in the knees, a bad left shoulder and pinched nerve in the right hip. He stated that he had been unable to work since June 2011.
LEGISLATION AND ISSUES
The Act sets out the qualification criteria for DSP. Section 94 of the Act provides that an applicant must have:
·A physical, intellectual or psychiatric impairment;
·An impairment of 20 points or more under the Social Security (Tables for the Assessment of Work related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
·A continuing inability to work.
Under s 94 of the Act, a person is regarded as having a ‘continuing inability to work’ if:
·They have an inability to work due to their accepted impairments for 15 hours or more a week; and
·They have actively participated in a ‘program of support’.
This second requirement is not necessary, however, if a person has a severe impairment of 20 points or more under a single Impairment Table.
Under Schedule 2 clause 4(1) of the Social Security (Administration) Act 1999 (Cth) , an applicant must qualify for a social security payment on the day on which the claim was made or within 13 weeks of that date (the “assessment period”). For Mr Harvey’s claim for DSP, the assessment period is from 2 March 2012 to 1 June 2012.
The respondent accepted that s 94(1) (a) of the Act regarding physical impairment is satisfied, as Mr Harvey suffered from “lower limb deficiencies” during the assessment period. However the respondent contended that Mr Harvey’s lower limb condition was not fully treated and not fully stabilised at the date of the claim or within 13 weeks of that date, that is during the assessment period. Having lodged the DSP claim on the 2 March 2012, Mr Harvey subsequently underwent arthroscopies on both knees on 13 April 2012 and thereafter was awaiting surgery for bilateral knee replacements. The respondent contended that as Mr Harvey was still awaiting surgery, his lower limb condition was not fully treated and fully stabilised during the assessment period and could not be given a rating on the Impairment Tables.
The Hearing took place on 1 April 2014.
At the hearing Mr Harvey represented himself and gave oral evidence by telephone. Mr C Visser represented the respondent.
CONSIDERATION
Lower limbs
In his evidence Mr Harvey referred to significant problems that he has endured with his knees since he was a teenager. Initially he injured his left knee when he was at school. He had problems with his right knee and ankle since he was a teenager. He had problems with his left shoulder over many years. He worked in a number of different jobs until June 2011 when he ceased work because of his medical difficulties. His work mainly involved labouring.
Mr Harvey has been a patient of the Angaston Medical Centre and he has been treated by various doctors from that facility over several years. Medical evidence available to the Tribunal included a number of written reports and correspondence from doctors working in that practice. In addition, the Tribunal took oral evidence by telephone from a general medical practitioner, Dr T Ryan, of the Angaston Medical Centre. Written reports from Mr Harvey’s orthopaedic surgeon, Mr P Lewis, were received in evidence
Mr Harvey also called other witnesses. They were his mother, his carer, and an advocate. Each of them provided helpful, oral evidence by telephone. In short, their evidence collectively provided an overview of their knowledge and observations of the impact of Mr Harvey’s medical conditions and the support that he receives, and in the case of the carer, the support that she provides.
In a report dated 13 December 2012 Mr Harvey’s general medical practitioner Dr Z Setlhong [Angaston Medical Centre] reported that Mr Harvey had osteoarthritis in both knees. It was severe in the right hip and right ankle. There was an unstable patella on the left side. Dr Setlhong also stated that Mr Harvey had left shoulder sub acromial bursitis, tendinitis and AC joint arthritis. Dr Setlhong wrote that Mr Harvey had undergone a left knee reconstruction in 1989, a left knee arthroscopy in 1998, treatment for a fractured skull and depressed cheekbone in 1999, a left knee arthroscopy in 2007, a right knee arthroscopy and right ankle arthroscopy in 2009, and bilateral knee arthroscopies in 2012, with right total knee replacement forecast for February 2013.
The orthopaedic surgeon, Mr P L Lewis wrote a report dated 9 September 2011, in which he noted that Mr Harvey was having trouble with his knees. Mr Lewis thought it was reasonable to consider bilateral arthroscopies. Arrangements were made for the arthroscopies to take place at the Angaston Hospital. Mr Lewis performed the bilateral knee arthroscopies on 13 April 2012 and commented in a report, dated 13 April 2012, that Mr Harvey:
“… certainly does have degenerative changes in the patellofemoral region and on the left side there was a loose body but on the right side there was quite significant lateral compartment degeneration as well.
I hope what I have done today will bring his knees up to scale a little and help make them more comfortable.”[1]
[1] Exhibit A9.
Unfortunately, the problems continued. On further consideration of the result of the bilateral arthroscopies in a report dated 20 July 2012 , Mr Lewis stated that Mr Harvey:
“… wears his knee brace all the time. He cannot sleep at night. He has a real struggle to get moving in the mornings and of course he also has a struggle looking for work that is suitable.
I think with his amount of patellofemoral degeneration and some widespread deterioration elsewhere in the knee it is probably best now to think about a knee replacement for him.
I will see if I can get his name on the waiting list for this surgery at the Queen Elizabeth Hospital. …”[2]
[2] Exhibit A5.
A general medical practitioner, Dr Whillas [Angaston Medical Centre], had also confirmed in a report dated 15 June 2012 that Mr Harvey:
“… has osteoarthritis in both knee’s which is demonstrable on xray and seen at recent arthroscopy affecting the patellofemoral regions of the knees, causes significant pain which has been unchanged following his recent arthroscopies. He will eventually need to go on to have knee replacements but given his age this will need to be put off as long as possible.
Brian is unable to squat with his knees, he cannot kneel on them, his left knee is quite unstable, and he has loss of strength in both knees. He uses a walking stick at times.
…”[3]
[3] Exhibit A11.
In summary, at the time that Mr Harvey made a claim for DSP, on 2 March 2012, he had not undergone arthroscopies on both knees. The arthroscopies were carried out on 13 April 2012. By the end of the assessment period, 1 June 2012, Mr Harvey’s condition regarding both knees had not improved. The issue for this Tribunal is whether or not the condition regarding the knees was fully diagnosed, fully treated and fully stabilised during the assessment period.
The respondent accepted that Mr Harvey suffered a medical condition of lower limb deficiencies during the assessment period and that s 94(1)(a) of the Act is satisfied. The next question for the Tribunal to consider is whether the Impairment Tables may be applied and a rating assigned to the medical condition. Paragraph 6(4) of the Impairment Tables provides that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised and is likely to persist for more than two years.
The Tribunal must consider Mr Harvey’s DSP qualification within the assessment period. In Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, the Tribunal stated at [34]:
“In the Tribunal’s consideration as to whether a condition has been stabilised 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.”
The respondent contended that the Mr Harvey’s medical condition was not fully treated and fully stabilised because medical investigations into the condition were still being scheduled during the assessment period and significant surgery was still to be performed, namely total knee replacements.
The Tribunal notes other cases in which DSP applicants were still waiting for surgery during the assessment period. For example, in Re Livermore and Secretary, Department of Social Services [2013] AATA 747 at [20] the Tribunal found that the DSP applicant was still awaiting surgery during the assessment period, his back condition was not fully treated and stabilised during that time, and it could be given a rating on the Impairment Tables.
Similarly in Re Toma and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 379 the Tribunal found that the DSP applicant underwent surgery after the DSP qualifying period and therefore at the time of the DSP claim it could not be concluded that the condition had been fully treated.
A similar point arose in Re Campbell and Secretary, Department of Family and Community Services [2004] AATA 1201.The Tribunal stated at [13]:
“I am satisfied that at 3 September 2003 Mr Campbell could not demonstrate satisfaction of the criterion that he had permanent conditions or injuries warranting an impairment rating of 20 points under the Tables. It follows that he cannot satisfy section 94(1)(b). He cannot satisfy this requirement until his condition has been fully investigated, treated and stabilised. As he is awaiting surgery, the injury or injuries requiring surgery have not been stabilised and, it follows, cannot be found to be permanent …”.
Mr Harvey was awaiting surgery for the damage to his knees and therefore the knee conditions were not fully treated and stabilised during the assessment period. It follows that the injuries to the knees cannot be said to be permanent.
Left shoulder condition.
The ARO stated that Mr Harvey had tendonitis of the left shoulder and this was not fully treated and stabilised and does not attract impairment points. The SSAT stated:
“… there is a reasonable argument that this is fully diagnosed and fully treated and fully stabilised. However the Tribunal considers it would not meet the descriptor for 5 points.”[4]
[4] Exhibit R1, T2 p 22.
Table 2 has the following descriptor for 5 points:
5
There is mild functional impact on activities using hand or arms.
(1) The person can manage most daily activities requiring the use of the hands and arms, but has difficulty with most of the following:
(a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b) handling very small objects (e.g. coins);
(c) doing up some buttons;
(d) reaching up or out to pick up objects.
In the report dated 15 June 2012, Mr Harvey’s general medical practitioner, Dr Whillas, [Angaston Medical Centre] stated that: “He also has ongoing pain in the left shoulder with bursitis in the non dominant arm demonstrated on ultrasound and causing ongoing pain if using the arm repetitively or for overhead work.”[5]
[5] Exhibit A11.
Dr Setlhong [Angaston Medical Centre] stated in the report dated 13 December 2012:
“… Brian has had left shoulder subacromial bursitis, tendinosis and AC joint arthritis since 2010. He gets pain and limited abduction which would limit him working anywhere above shoulder height. He has previously had cortisone injections and analgesics and is planned to have more cortisone injections. Unfortunately due to cost and current inability to drive and distance to travel he has been unable to see a physiotherapist to aid with the shoulder pain. …”[6]
[6] Exhibit A12.
In evidence, Mr Harvey stated that he often takes anti-inflammatory medication to mitigate the pain that he suffers in his left shoulder. The left shoulder caused him problems on a daily basis especially with attempts to extend it.
The Job Capacity Assessment Report dated 29 March 2012 reported that Mr Harvey’s symptoms included left shoulder pain with reduced range of movement which required assistance at times with heavier activities around the home. He reported difficulties with activities at above shoulder height.
On consideration of all of the medical reports received in evidence, together with Mr Harvey’s evidence, in relation to the left shoulder condition, it is reasonable to conclude that the condition was fully diagnosed during the assessment period and that it was treated and stabilised. The Tribunal is satisfied on all the material that Mr Harvey’s left shoulder condition attracts a rating of 5 points during the relevant period.
SUMMARY
The Tribunal finds that s 94(1) (a) of the Act regarding physical impairment is satisfied.
As outlined above, the Tribunal finds that Mr Harvey’s left shoulder condition was fully diagnosed, fully treated and fully stabilised during the assessment period. The Tribunal finds that the applicable rating for that condition is 5 points.
As the Tribunal concludes that both knee conditions were not fully investigated, fully treated and fully stabilised during the assessment period, the Tribunal does not consider that an impairment rating can be given for the condition affecting the knees.
Accordingly the Tribunal finds that Mr Harvey does not have impairment or a combination of impairments that attract a rating of at least 20 points under the Impairment Tables during the assessment period.
As Mr Harvey did not have an impairment that attracted 20 or more points under the Impairment Tables at the time he lodged his claim or within 13 weeks of that date, he did not satisfy s 94(1) (b) of the Act and cannot qualify for DSP during that period. It follows that it is not necessary to consider whether or not Mr Harvey had a continuing inability to work within the meaning of s 94(1)(c) of the Act.
The result of this hearing is not in any way to diminish the severity of Mr Harvey’s conditions, the pain that he suffers and the interference to his daily activities. It is a finding that the necessary criteria for qualification for the DSP could not be met at the time that he lodged this claim dated 2 March 2012, and during the assessment period relevant to that claim. Both before and after that period Mr Harvey suffered from serious, medical conditions. Subsequent to the events that occurred during the assessment period that was relevant to this application, Mr Harvey succeeded in obtaining the DSP, following knee surgery for a total knee replacement on 25 February 2013.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 39 (thirty‑nine) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson ............................[Sgd]............................................
Administrative Assistant
Dated 10 June 2014
Date of hearing 1 April 2014 Applicant In person Advocate for the Respondent Mr C Visser Solicitors for the Respondent Dept of Human Services
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