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

[2015] AATA 707

Butler; Secretary, Department of Social Services and (Social services second review) [2015] AATA 707 (14 September 2015)

Division	GENERAL DIVISION
File Number(s)	2015/0630
Re	Secretary, Department of Social Services
APPLICANT
And	Anthony Butler
RESPONDENT

DECISION

Tribunal	Professor R McCallum AO, Member
Date	14 September 2015
Place	Sydney

The decision of the Social Security Appeals Tribunal dated 14 January 2015 is set aside and in substitution the Tribunal decides that Mr Butler did not satisfy s 94(1)(b) of the SS Act at the date of the claim and was not qualified to receive DSP.

........................................................................

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether respondent’s conditions were fully diagnosed, treated and stabilised – whether respondent’s impairment is rated 20 points or more under the Impairment Tables – whether respondent had a severe impairment - decision set aside and substituted

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

CASES

Re Butler and Secretary, Department of Social Services [2014] AATA 875

Re 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

14 September 2015

INTRODUCTION

1. Mr Anthony Butler, the Respondent, is in his mid-fifties. He lodged a claim for Disability Support Pension (DSP) on 14 August 2014. I shall call this application the current claim.

2. To comprehend the complex narrative of facts, it is essential to appreciate that Mr Butler had lodged a claim for DSP on 21 June 2013, and I shall call this application the 2013 claim. While the current claim was being processed through Centrelink, the 2013 claim was working its way through the appeal process.

   BACKGROUND

   Mr Butler's background

3. In his report dated 14 April 2015, Dr Andrew Frean neatly summarised Mr Butler's background and I gratefully adopt this summary. Dr Frean wrote as follows:

   Mr Butler completed his schooling in Year 10 in Sydney. His first job was as a machine operator in an engineering factory where he worked for six months. He then worked as a wool presser in a shearing shed for 2 years, in the offseason he worked as a market gardener.

   He continued to work as a gardener and he completed a certificate in horticulture. He worked as head gardener at the Air force base in Regents Park for eleven years and at St Joseph's Hospital for two years.

   He then worked as a storeman and forklift operator at various locations for two years.

   During the 1980's and 90's, he worked as a builder's labourer assisting all trades on various construction sites. From 2003, he worked fulltime as a glazier. He described this as heavy work, with some panes of glass weighing 100-150 kg, requiring seven people to lift into position. He last worked as a sub-contractor. When his last contract was completed around October/November 2012, he became unemployed. He has not worked since.

   He reported that over the years he accumulated a number of certifications including forklift operator, horticulture, working at heights, rescue, asbestos removal supervision, crane and gantry ticket and order picking ticket.

   The current claim

4. In his current claim application Mr Butler listed his medical conditions as “heart problem, problems with my neck, back, right shoulder, arm and hand”.

5. Mr Butler lodged a Report from his general practitioner Dr Guirguis dated 6 August 2014. Dr Guirguis listed Mr Butler's condition with the most impact as “cervical and lumbosacral disc lesions/osteoarthritis”, confirmed by Dr Darweesh Ai- Khawaja, which was likely to persist for more than 24 months and deteriorate. The next condition causing the most impact was “atrial fibrillation and pulmonary embolism” diagnosed in February 2013 that was stabilised on the Mr Butler's present medication. Dr Guirguis also noted a right- shoulder injury. On 1 September 2014, a Job Capacity Assessment was conducted by an accredited registered psychologist and a rehabilitation counsellor. The assessors held that Mr Butler's heart condition, right shoulder condition and spinal condition were fully diagnosed, treated and stabilised. 

6. The assessors recommended that Mr Butler's heart condition warranted an assessment of 5 points under Table 1 of 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 Determination). Table 1 is titled "Functions requiring Physical Exertion and Stamina".

7. The assessors recommended that Mr Butler's right shoulder impairment warranted 5 points under table 2 of the impairment tables which is titled "Upper limb function".

8. Finally, the assessors recommended that Mr Butler's spinal condition warranted 10 points under table 4 of the impairment tables which is titled "Spinal function". Mr Butler's baseline work capacity was assessed at 8-14 hours per week with his capacity to work with intervention increasing to 15-22 hours per week within two years.

9. On 8 September 2014 Mr Butlers claim for DSP was rejected on the basis that he had not completed a program of support.

10. Mr Butler sought review from an Authorised Review Officer (ARO), however, on 8 October 2014, the ARO affirmed Centrelink's decision. The ARO assessed Mr Butler's heart condition as warranting 5 points under table 1 of the impairment tables, and that his spinal condition warranted 10 points under table 4 of the impairment tables. The ARO held that as Mr Butler's right shoulder impairment was well managed it was not assessed under the impairment tables.

11. Mr Butler sought review from the Social Security Appeals Tribunal (SSAT). Before examining the decision of the SSAT, it is necessary to examine what happened to Mr Butler's 2013 claim.

    The 2013 claim

12. As I noted above, Mr Butler lodged his 2013 claim for DSP on 21 June 2013. On 13 November 2014, Mr Butler's appeal to the Administrative Appeals Tribunal (AAT) was turned down. See Re Butler and Secretary, Department of Social Services [2014] AATA 875. The AAT held that Mr Butler's spinal condition was not fully treated and stabilised because his restrictions on spinal movement may improve if he participated in a recommended pain management program. In relation to Mr Butler's inability to work, the AAT found that Mr Butler had not completed a program of support for 18 months in the previous three years prior to his 2013 claim for DSP.

    The 14 January 2015 decision of the SSAT

13. On 14 January 2015, the SSAT handed down its decision on Mr Butler's current claim. The SSAT held that the correct rating for the impairment arising from Mr Butler's heart condition was 10 points under table 1 of the impairment tables. The SSAT further held that Mr Butler's right shoulder, arm and hand conditions were not fully treated and diagnosed so they were not rated under the impairment tables. Finally, the SSAT held that Mr Butler's spinal impairment warranted an assessment of 20 points under Table 4 of the impairment tables. This gave Mr Butler a total impairment rating of 30 points under the impairment tables. As Mr Butler had a severe impairment, the SSAT found that he was not required to participate in a program of support.

14. The SSAT was also satisfied that the Respondent had a continuing inability to work and therefore qualified for DSP.

15. In relation to Mr Butler's spinal condition, the SSAT set out its reasons for assessing this impairment at 20 points under table 4 of the impairment tables in paragraphs 18-24 of its decision as follows:

    18.      In the 6 August 2014 report Dr Guirguis stated that the condition had commenced in 2004. Mr Butler had severe deteriorating osteoarthritis, multi-level disc lesions and hypertrophied facet joints. The condition was treated with medication, rest and physiotherapy. It was planned that Mr Butler would be referred to a pain management program. The condition caused severe pain in the neck and back with very restricted head movements. He is unable to turn or twist his head without severe pain. Elevation of hands above the shoulder causes severe pain. The condition was expected to continue for more than 24 months and the impact of the condition would deteriorate, in a report dated 30 May 2014 Dr Guirguis stated that he considered that Mr Butler's condition caused severe functional incapacity involving the cervical and lumbosacral region. In his letter dated 19 September 2013 Mr Butler's Neurological and Spinal Surgeon, Dr Ai Khawaja, stated

    "The MRI of his lumbar spine showed extensive degeneration affecting multiple levels with multilevel disc bulges and facet hypertrophy. The MRI of his cervical spine showed extensive disc degeneration and facet hypertrophy affecting multiple level. The Bone Scan confirmed multilevel severe arthritis mainly in the cervical spine.

    Plan and Recommendation

    I think Mr Butler is suffering from significant injury in his cervical and lumbar spine. My recommendation to him is that he go through extensive pain management program. He may need pain killers and blocks in his cervical and lumbar spine. The pain physician is the best person to look after him from this point of view. I highly recommend physiotherapy and hydrotherapy. I believe that Mr Butler is significantly disabled from this extensive injury. I cannot help him with any surgical interventions at this stage but he may need it in the future."

    19.      The report from the physiotherapist dated 12 August 2014 noted that Mr Butler had 40% of range of motion in the cervical joint flexion; 20% in extension and 30% bilaterally in side flexion and rotation. This confirms Mr Butler's limited range of movement in the cervical spine. Mr Butler reported that he has to turn his trunk to turn his head. He is able to put a hat on but cannot sustain any other overhead activities.

    20.      The Tribunal noted the decision of Butler v Secretary, Department of Social Services [2014] AATA 875. Senior Member McCabe considered that Mr Butler's level of functioning in July 2013 could attract a rating of 20 points under Table 4, Spinal Function. However, based on the verbal evidence of Dr Guirguis, Senior Member McCabe considered that the primary reason for a rating of 20 rather than 10 was due to the impact of pain on Mr Butler. Senior Member Butler considered a rating of 10 was appropriate at that time and that a rating of 20 could only be considered after the planned referral for a pain management program had been undertaken.

    21.      Mr Butler told the Tribunal that he has pain all the time and so he is unable to sleep. As a result, he has poor concentration. Mr Butler has been waiting to attend the pain management program at Westmead Hospital for six months. He hopes to begin attending there in February 2015. He explained that Dr Guirguis had not hurried to refer him as the doctor did not think that it would make any difference to the underlying structural problems.

    22.      In Dr Guirguis' latest report dated 22 December 2014, he stated that

    "I believe that the pain management program will help Mr Butler on how to deal with the pain, also might or might not reduce his level of pains (sic), but it will not improve his physical original cause of the pain disabling him from work."

    23.    After almost ten years of treatment involving appropriate specialists who confirm a deteriorating outcome, the Tribunal accepts that the condition is fully diagnosed, treated and stabilised. The lack of range of movement in the neck is confirmed by a physiotherapist report. Mr Butler is unable to turn his neck without moving his trunk. The Tribunal accepts the evidence of Dr Guirguis that attendance at the pain clinic is primarily to attempt to help Mr Butler cope with his ongoing pain rather than increase his range of movement. Dr Al Khawaja suggested that Mr Butler may need pain killers and blocks in the future, which is best provided by a pain physician. Based on the letter from Dr Al Khawaja, the Tribunal considers that such treatment is unlikely improve Mr Butler's range of movement. Rather Mr Butler's already extensive degeneration will deteriorate and he may then need further operations at some time in the future.

    24.     The Tribunal therefore considers that the condition is fully diagnosed, treated and stabilised should attract a rating of 20 points under Table 4, Spinal Function.

    Review before this Tribunal

16. On 25 March 2015 the Department of Social Services, whom I am shall refer to as the Secretary, lodged an application for review of the SSAT’s decision at the AAT.

17. The Secretary has furnished this Tribunal with the following medical reports from Dr Andrew Frean; a report dated 14 April 2015, a supplementary report dated 20 May 2015 and a further supplementary report dated 1 June 2015.

18. Dr Frean's report dated 14 April 2015 is more than six thousand words in length. He examined Mr Butler on 2 April 2015. Dr Frean summed up his findings in the report as follows.

    At the relevant period, Mr Butler presented as a ... year-old man with an 18-month history of symptoms and reduced functional capacity. This was initially attributed to a heart and right shoulder condition in the DSP claim dated 21 June 2013. He later attributed his incapacity to a chronic neck and back, heart, right shoulder and right hand condition in the subsequent DSP claim dated 14 August 2014. He ceased employment around October/November 2012 at the end of his contract and he became unemployed. Prior to this he had been working full time in heavy manual work as a glazier.

    From the information available, and the clinical presentation, I consider Mr Butler's diagnosis at the relevant period to be that of:

    -          Cervical spondylosis with degenerative disc disease, facet joint arthritis and neural foraminal stenosis most marked at the C5/6 and C6/7 levels - moderate severity

    -          Lumbar spondylosis with degenerative disc disease, facet joint arthritis and neural foraminal stenosis most marked at the L4/5 and L5/S1 levels - moderate severity

    -          Osteoarthritis right acromioclavicular (AC) joint - mild to moderate severity

    -          Osteoarthritis of the first carpo-metacarpal joint (CMC) and other finger joints of the right hand - mild to moderate severity

    -          Rotator cuff tendinopathy right shoulder - mild severity

    -          Atrial fibrillation since 2013-failed electrical cardioversion and controlled on medication with no evidence of haemodynamic compromise

    -          Acute pulmonary embolus in 2013 - treated with anticoagulants without any ongoing functional incapacity

19. Dr Frean stated that Mr Butler's spinal condition was fully diagnosed, treated and stabilised during the claim period. He assessed this condition at 10 points under table 4 of the impairment tables as it had a moderate effect on Mr Butler's activities.

20. Dr Frean stated that Mr Butler's right shoulder condition was fully diagnosed, treated and stabilised during the claim period. He said that it did not warrant assessment under table 2 of the impairment tables as there was no functional impact on using his arms or hands.

21. Dr Frean stated that Mr Butler's heart condition was fully diagnosed, treated and stabilised during the claim period. He assessed it at 5 points under table 1 of the impairment tables as it had a mild effect upon Mr Butler's activities.

    THE LEGISLATION

22. 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).

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

    (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;

    …

24. Put simply, I must be satisfied, first, that Mr Butler has one or more physical, intellectual or psychiatric impairments and second, that these impairments are rated at least 20 points under the impairment tables. Finally, I must be satisfied that Mr Butler has a continuing inability to work.

25. In Mr Butler's circumstances, s 94(2) of the SS Act is applicable. as it details the concept of continuing inability to work. Section 94(2) relevantly provides:

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

    (aa)     in a case where the person’s impairment is not a severe impairment within      the meaning of subsection (3B) ...the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (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.

26. Section 94(2) (AA) makes it clear that unless Mr Butler has a severe impairment, he must have participated in a program of support. Section 94(3B) explains when an impairment will be a severe impairment. It provides:

    A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

27. Therefore if any of Mr Butler's impairments are assessed at 20 points under any of the impairment tables, in determining whether he has a continuing inability to work, it will not be necessary for Mr Butler to show that he has participated in a program of support.

    Finally, "work" is defined in s 94(5) as follows:

    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 13 week qualifying period

28. 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 Butler's eligibility for DSP in the 13 week period commencing on the day on which Mr Butler applied for DSP, and concluding 13 weeks after that day. Therefore, I must determine whether Mr Butler qualified for DSP between 14 August 2014 and 14 November 2014.

29. In Re 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.

1. In Re Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said:

   [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.

2. Therefore, in determining the eligibility of Mr Butler to receive DSP I am confined to examining Mr Butler's impairments during the thirteen week claim period.

   THE CONCESSIONS OF THE SECRETARY

3. At the hearing through Special Counsel, the Secretary conceded that Mr Butler's heart and spinal conditions were fully diagnosed, treated and stabilised during the claim period.

   THE ISSUES BEFORE THE TRIBUNAL

4. Given the Secretary's concession, Mr Butler complies with s 94(1)(a) of the SS Act as he has physical impairments.

5. Therefore, the first issue which I am required to decide is the rating to be given to Mr Butler's impairments under the impairment tables. In assessing impairments under the impairment tables, I am required to determine whether any impairment is a severe impairment.

6. The second issue which I am required to decide is whether Mr Butler has a continuing inability to work pursuant to s 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 Butler's impairments do not attain an assessment of 20 points under the impairment tables.

   The Impairment Tables

7. Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of Mr Butler are worth twenty points under the impairment tables. This requires a few words of explanation.

8. 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.

9. 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.

10. 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.

11. 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, subsection 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”.

    EVIDENCE

    Documentary evidence

12. The tribunal has before it the following documentary evidence:

    ·the Secretary's instructions to Dr Frean dated 26 March 2015;

    ·a report from Dr Frean dated 14 April 2015;

    ·a supplementary report from  Dr Frean dated 20 May 2015;

    ·a further supplementary report from Dr Frean dated 1 June 2015;

    ·supplementary documents which were presented by Mr Butler to the SSAT on 14 January 2015; and

    ·the documents compiled by the Secretary pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) which are known as the T documents.

13. At the hearing of this matter on Monday 17 August 2015, Mr Butler handed in two further documents; a letter from Max Employment dated 9 April 2015 and a report from the Department of Neurology of Bankstown Lidcombe Hospital dated 17 July 2015. Many of these documents are medical reports which describe Mr Butler's impairments in detail.

    Evidence at the hearing

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

15. Mr Butler explained that his spinal condition first manifested itself in about 2004, however, he was able to continue to work until November 2012. Mr Butler said that he came to the hearing by himself by train and that he walked from Town Hall Station to the hearing. He said that usually he doesn't have much trouble in walking and that he can sit for 30 to 60 minutes. Mr Butler said that he can turn his neck to left and to right, but that he cannot turn his head to look over his shoulder. Turning his head to the left is not so bad, but it is worse turning his neck to the right.       

16. After about 30 minutes into the hearing, Mr Butler stood up to stretch. He was able to get in and out of his chair by himself.

17. Mr Butler said that he can dress himself and can shower. However, he is currently having some difficulties as he has braces on his wrists. He said that about four weeks ago he was diagnosed as having carpel tunnel difficulties with his wrists. He is currently seeing a physiotherapist for his wrists. This problem has recently manifested itself and is outside the claim period.

18. Mr Butler said that a friend drives him to the shops, and he can walk around and push the trolley, but his friend puts the groceries into the car. His friend does most of the cooking, but he can take something out of the fridge and put it in the frying pan.

19. Mr Butler said that he has been attending a pain clinic for about 12 weeks.

20. In relation to his heart condition, Mr Butler said that it does affect his breathing. He does walk his dog daily for about one kilometre at a slow pace. He said that he hasn't had any trouble since November-December last year.

21. In relation to his right shoulder, Mr Butler said that he has had this impairment for years. He is currently having physiotherapy treatment. He cannot lift his right hand above his shoulder.

22. Dr Andrew Frean gave evidence by telephone. Dr Frean recited his medical qualifications. He said that he has been practising in the field of occupational medicine for about 30 years. In his evidence, Dr Frean confirmed the findings in his report dated 14 April 2015, extracts of which have been set out above. Dr Frean said that his examination took 1 hour and 15 minutes. He said that Mr Butler had no difficulty in undressing and dressing himself.

    CONSIDERATION

23. The first issue which I am required to decide is the rating to be given to Mr Butler's impairments under the impairment tables. In assessing impairments under the impairment tables, I am required to determine whether any impairment is a severe impairment.

    Heart condition

24. In Mr Butler's circumstances, the appropriate table to assess his heart condition is table 1 of the impairment tables. Having regard to Mr Butler's evidence and to the medical evidence, I find that his heart condition has a mild affect upon his activities. In his evidence, Mr Butler said that he has occasional shortness of breath. He also becomes tired. He does walk his dog daily for a kilometre at a slow pace. He can self-care and goes shopping with a friend. It is clear that Mr Butler's heart condition does not fit the descriptors for having a moderate affect under table 1 of the impairment tables. Accordingly, I assess Mr Butler's heart condition at 5 points under table 1 of the impairment tables.

    Spinal condition

25. I have found the assessment of Mr Butler's spinal condition under table 4 of the impairment tables to be a difficult issue. It is now common ground that this condition was fully diagnosed, treated and stabilised during the claim period without the need to attend a pain management program.

26. The SSAT held on 14 January 2015 that this condition warranted an assessment of 20 points under table 4 of the impairment tables. Having regard to the 13 November 2014 decision of the AAT on the 2013 claim, it does appear that without the need to deal with pain management, the AAT would most probably also have assessed Mr Butler's spinal condition at 20 points under table 4.

27. I have of course received further medical evidence since the handing down of these decisions.

28. The descriptors in table 4 of the impairment tables for a 20 point severe assessment are as follows.

    (1) The person is unable to:

    (a)       perform any overhead activities; or

    (b)       turn their head, or bend their neck, without moving their trunk; or

    (c)       bend forward to pick up a light object from a desk or table; or

    (d)       remain seated for at least 10 minutes.

29. From the medical evidence and from Mr Butler's evidence, he is able to sit for at least 30 minutes, he can turn his head from left to right with some difficulty, and he can pick up objects.

30. The descriptors for a 10 point moderate assessment are as follows.

    (1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

    (a)       the person is unable to sustain overhead activities (e.g. accessing items over head height); or

    (b)       the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

    (c)       the person is unable to bend forward to pick up a light object placed at knee height; or

    (d)       the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

31. I find that Mr Butler’s condition best fits the 10 point moderate descriptors. He does have difficulty with overhead activities and with turning his head in all directions. Accordingly I assess Mr Butler's spinal conditions at 10 points under table 4 of the impairment tables.

    Right arm condition

32. Having regard to the medical evidence, I find that Mr Butler's right arm condition was fully diagnosed, treated and stabilised during the claim period. I note from Mr Butler's evidence that he is still receiving physiotherapy treatment for his right arm condition.

33. I also note the recent diagnosis of Mr Butler's carpel tunnel impairment in his hands. This diagnosis is clearly outside the claim period. In relation to the medical evidence concerning Mr Butler's osteoarthritis of the right thumb impairment, I find that it was not fully diagnosed, treated and stabilised during the claim period.

34. From the medical evidence and from Mr Butler's evidence, I am of the view that his right arm condition may have deteriorated since the claim period.

35. The descriptors for a 5 point mild rating under table 2 are as follows.

    (1) The person can manage most daily activities requiring the use of the hands and arms, but has some 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 buttons;

    (d)       reaching up or out to pick up objects.

36. From Mr Butler's evidence and from the medical evidence, Mr Butler can perform most daily activities. He can self-care, can dress himself and do up buttons, though he is required to use his left hand. Mr Butler can pick up light objects though he has some difficulty with heavy objects.

37. Accordingly, I find that Mr Butler's upper arm condition warrants an assessment of nil points under table 2 of the impairment tables because it has only a slight functional impact on his activities.

    Conclusion

38. I find that Mr Butler's heart condition is assessable at 5 points under table 1, that Mr Butler's spinal condition is assessable at 10 points under table 4, and that Mr Butler's right arm condition is assessed at zero points under table 2 of the impairment tables. I further find that Mr Butler's total assessment under the impairment tables its 15 points. Therefore, Mr Butler does not qualify for DSP because he does not meet the criterion set out in subsection 94(1)(b) of the SS Act.

39. As none of Mr Butler's conditions are assessable at 20 points under a single impairment table, I find that none of Mr Butler's conditions are severe impairments under subsection 94(3B) of the SS Act.

40. As Mr Butler's impairments are not assessable at 20 points, it is not necessary for me to decide whether he has a continuing inability to work pursuant to subsection 94(1)(c)(i) and attendant provisions of the SS Act.

41. I appreciate that a consequence of my decision is that Mr Butler is not entitled to the DSP payments which he has been receiving for several months. This money is a debt to the Commonwealth. As I recounted above, I did not find the assessment of Mr Butler's spinal condition to be an easy one. In these circumstances, I hope that the Commonwealth will adopt as benevolent approach as is possible to the recovery of this debt.

    DECISION

42. The decision of the Social Security Appeals Tribunal dated 14 January 2015 is set aside and in substitution the Tribunal decides that Mr Butler did not satisfy s 94(1)(b) of the SS Act at the date of the claim and was not qualified to receive DSP.

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

........................................................................

Associate

Dated 14 September 2015

Date(s) of hearing	17 August 2015
Solicitors for the Applicant	Department of Human Services
Respondent	In person