BXWL and Secretary, Department of Social Services
[2015] AATA 381
•29 May 2015
[2015] AATA 381
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/4293
Re
BXWL
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 29 May 2015 Place Brisbane I affirm the decision under review.
........................[Sgd]................................................
Dr P McDermott RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – DSP – whether applicant had relevant impairment – whether impairment rating of at least 20 points – whether continuing inability to work
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) ss 13, 41, 42, sch 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 5, 6Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth) s 5
CASES
Reilly and Secretary, Department of Social Security [1987] AATA 291
Burgess v Secretary of the Department of Family and Community Services [2004] FCA 136
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
29 May 2015
I have to determine whether the applicant is entitled to disability support pension (“DSP”). I sympathise with the applicant who has been severely disabled for some time because of the need to have a bilateral hip replacement procedure. However, under social security law her application for DSP cannot succeed.
PRIOR DECISIONS
On 17 December 2013 the applicant lodged a claim for DSP. On 31 January 2014 her claim was rejected. On 9 May 2014 an authorised review officer (“ARO”) affirmed the decision to reject the claim. On 23 July 2014 the Social Security Appeals Tribunal (“SSAT”) affirmed the decision. On 18 August 2014 the applicant made an application to this Tribunal for review of the decision.
RELEVANT LEGISLATION
The relevant legislation that is applicable to the determination of this application is the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).
Section 94 of the Act provides:
Qualification for disability support pension
(1) 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;
There are also Ministerial Determinations to consider. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Disability Support Pension Determination”) came into force on 1 January 2012. The Disability Support Pension Determination contains the Impairment Tables which are function based and are intended to determine the level of functional impact of impairments.[1] The Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (“the Active Participation Determination”) came into force on 3 September 2011. Section 5 of the Active Participation Determination sets out the requirements for active participation.
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 5.
ASSESSMENT PERIOD
I am required to determine whether the applicant became qualified at any time within the 13 week period (“the relevant period”) from when the claim for DSP was lodged. During the hearing there was no issue that this period commenced on 17 December 2013 and concluded on 18 March 2014. After the hearing the applicant took issue with the reasons of the SSAT which contained the statement that the claim for DSP was lodged on 19 November 2013.
The claim for DSP that is in evidence before the Tribunal bears the signature of the applicant and is dated 12 December 2013. The file notes from the applicant’s customer record dated 19 November 2013 disclose that on that date the applicant contacted the Department about lodging a claim for Newstart allowance.[2] Other records from the ARO’s notes indicate that first contact with the applicant in relation to this claim occurred on 19 November 2013.[3] Both records support a finding that although first contact occurred on 19 November 2013, the claim for DSP was actually lodged on 17 December 2013.[4] I therefore find that the claim for DSP was lodged on 17 December 2013. This has the consequence that the relevant period is from 17 December 2013 until 18 March 2014.
[2] Exhibit E.
[3] Exhibit A p 173.
[4] Exhibit E; Exhibit A p 173.
I consider that the references in the reasons of the SSAT and in the ARO’s report to the claim being made on 19 November 2013 are typographical errors. The fact that the applicant may have notified the Department of her intention to claim DSP on 19 November 2013 does have some significance. That is because if her claim form for DSP had been lodged within a fortnight of that date (which is not the case here) she would have been entitled to payment of DSP from that date if her application was successful providing that the Secretary has acknowledged the contact by giving the applicant a written notice.[5] In Burgess v Secretary of the Department of Family and Community Services,[6] Wilcox J explained:
The general scheme of the legislation is to fix the commencement date for benefits by reference to the first day on which the Department is contacted by or on behalf of the applicant, provided the person lodges a formal claim within 14 days of that first contact.[7]
[5] Social Security (Administration) Act 1999 (Cth) s 13(1)(c).
[6] [2004] FCA 136.
[7] Ibid [12].
ISSUES
The application raises the following issues:
·whether the applicant, as at the date of the claim (or within 13 weeks of that date), had a physical, intellectual or psychiatric impairment; and
·whether the applicant had an impairment rating of at least 20 points or more under the Impairment Tables; and
·whether the applicant had a continuing inability to work.
Whether the applicant has an impairment
I find that within the relevant period the applicant had physical impairments as required by s 94(1)(a) of the Act. To make this finding I rely upon the medical report of Dr Pisasale, the treating doctor, dated 13 December 2013 in which Dr Pisasale reported that the applicant had bilateral severe hip arthritis and severe arthritis of the hands.
Assessment of impairments
I am now required to consider whether within the relevant period the impairments of the applicant can be assigned an impairment rating of 20 points or more under the Impairment Tables as required by s 94(1)(b) of the Act.
Severe hip arthritis
In her treating doctor’s report dated 13 December 2013 Dr Pisasale reported that the applicant suffers from “Bilateral severe hip arthritis” and that the diagnosis of the condition was supported further by the specialist opinion of Dr Bretherton, a radiologist. Dr Pisasale notes in her report that the condition was diagnosed on 30 October 2012. Further in that report she states that the date of onset of the condition was “unknown”, however, in her medical certificate dated 8 September 2014 Dr Pisasale opines that the date of onset of the condition was 1 August 2013. Later in her report, Dr Pisasale notes that the condition was treated with anti-inflammatories, painkillers, physiotherapy and the assistance of a rheumatologist. Dr Pisasale advised that the applicant had been referred to a hospital’s orthopaedic outpatients’ department with a view to hip replacement.
The Disability Support Pension Determination provides that an impairment rating can only be assigned to an impairment if the person’s impairment is permanent.[8] For the purposes of the determination, a condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, fully treated and fully stabilised. I will consider whether these requirements have been met within the relevant period.
[8] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6(3)-(4).
I am satisfied that the hip condition has been fully diagnosed by an appropriately qualified medical practitioner as on 30 October 2012 Dr Bretherton, a radiologist, diagnosed that the applicant had the condition of “moderately severe osteoarthritic changes present in both hips”.
It is necessary to determine whether the hip condition could be regarded as fully treated within the relevant period. In considering whether a condition has been fully diagnosed and fully treated I am required to consider whether treatment is planned in the next two years.[9] The applicant in her claim form dated 12 December 2013 indicated that she expected that she would have a bilateral hip replacement in December 2014.[10] A hospital report dated 19 September 2013 which is addressed to Dr Mulhall advises that the applicant was assessed as a Category 3 patient with an appointment desirable within 365 days.
[9] Ibid s 6(5).
[10] Exhibit A p 115.
The documentary evidence that was available during the relevant period indicated that the applicant would be treated by having a bilateral hip replacement within a year. This was certainly the case as the applicant received bilateral hip replacements on 27 October 2014. There is a later suggestion in a medical report of Dr Mulhall dated 21 July 2014 that the applicant would require two operations but that this would be unlikely within the next two years,[11] however the applicant underwent a bilateral procedure on the one day.
[11] Exhibit B.
The Disability Support Pension Determination provides that a condition is fully stabilised if 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.[12] The expression “reasonable treatment” is defined in the Disability Support Pension Determination to refer to treatment that is at a reasonable cost.[13] I am satisfied that that the bilateral hip replacement procedure is reasonable treatment to be given to the applicant. This is because it is stated in the medical report of Dr Mulhall dated 21 July 2014 that following the procedure “her mobility will improve and she may be able to return to 15 or more hours per week”.[14]
[12] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6(6).
[13] Ibid s 6(7).
[14] Exhibit B.
I find that the hip condition of the applicant was not fully treated and stabilised at the date of claim or within the relevant period. The Determination prevents the hip condition of the applicant from being assigned a rating under the Impairment Tables.
Osteoarthritis of the hands
The applicant has severe arthritis of the hands. I am satisfied that this is a permanent condition within the meaning of s 6(4) of the Disability Support Pension Determination. This condition has been fully diagnosed by an appropriately qualified medical practitioner and the condition has been fully treated and fully stabilised. There is a statement in a medical report of Dr Mulhall dated 21 July 2014 that no further surgical treatment is available to treat the osteoarthritis of the hands. In that report it is also stated that hand therapy would not considerably improve the applicant’s condition and is not a financially viable option. I consider that I can assign an impairment rating to the hand condition as s 6(7)(b) of the Disability Support Pension Determination provides that reasonable treatment has to be available at a reasonable cost.
I do not accept the submission of the respondent that the hand condition should be assigned an impairment rating of 0 points. Instead, I consider that an impairment rating of 10 points under Table 2 is fair and appropriate.
I accept the assessment of Dr Mulhall who, in his medical report dated 21 July 2014, has expressed the opinion that the hand condition should be assigned 10 points under Table 2 as the applicant was “having difficulties increasingly with manual dexterity tasks and lifting heavier objects as indicated in moderate functional impact”.[15] The expression “moderate functional impact” is found in the description for 10 points in Table 10. To be assigned a rating of 10 points under Table 2 it is necessary for a person to have difficulty with most of the tasks which are listed as having a moderate functional impact and Dr Mulhall in his unchallenged report stated that “she has difficulty with most of those tasks”. There is other medical evidence which confirms the difficulties experience by the applicant. Dr Pisasale, in her report dated 13 December 2013, reported that the applicant is “unable to hold objects, difficulty holding pen, [and] typing”. I accept that the applicant has intermittent difficulties with fine motor tasks including doing up buttons, opening jars and lifting a milk bottle.[16]
[15] Ibid.
[16] Exhibit A p 145.
Spinal condition
In her medical certificate dated 8 September 2014 Dr Pisasale reported that the applicant has osteoarthritis of the lumbar spine and that this condition has the date of onset of 1 August 2013. The applicant did not refer to the spinal condition in her claim form.[17] Dr Pisasale did not refer to the spinal condition in her treating doctor’s reports dated 13 December 2013 and 20 February 2014. Dr Mulhall in his report of 21 July 2014 has comprehensively outlined the orthopaedic conditions of the applicant but does not refer to the spinal condition. The Disability Support Pension Determination provides that an impairment rating can only be assigned to an impairment if the person’s impairment is permanent.[18] For this purpose a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner and the condition has been fully treated and fully stabilised. I do not consider that the condition has been fully diagnosed by an appropriately qualified medical practitioner as there is no report in evidence from an orthopaedic specialist or radiologist which confirms the diagnosis. I do not consider that an impairment rating can be assigned for the spinal condition under the Disability Support Pension Determination.
[17] Ibid p 115.
[18] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6(3).
Osteopenia
Dr Pisasale has advised that the applicant has an osteopenia condition. The applicant did not refer to the condition in her claim form.[19] Dr Pisasale did not refer to this condition in her treating doctor’s report dated 13 December 2013. However the condition is mentioned in her treating doctor’s report of 20 February 2014 in which she stated that the condition is generally well managed and causes minimal or limited impact on the ability of the applicant to function. Dr Pisasale has declined to provide any other information about the condition by answering “No” to question 7 in that report. The osteopenia condition could not be assigned a rating of more than 0 points as there is no evidence of any functional impact of the condition.
[19] Exhibit A p 115.
Total Impairment Rating
The applicant does not satisfy s 94(1)(b) of the Act as she cannot be assigned a rating of 20 points for her impairments. Her impairments can be assigned a total of 10 points. On this ground alone the applicant is not eligible for the payment of DSP.
After the hearing before this Tribunal the applicant took issue with the Job Capacity Assessment report and went as far as to describe the document as “fraudulent” because the report did not correctly record the responses made by the applicant. I do not accept this contention because the reasons of the SSAT record that the applicant was asked “if the Job Capacity Assessment was an accurate reflection of her capabilities at the time and she stated that it was”.[20]
[20] Exhibit A, p 12 [11].
WHETHER THE APPLICANT HAS A CONTINUING INABILITY TO WORK
It is not necessary for me to consider whether the applicant can be regarded as having a continuing inability to work as required by s 94(1)(c)(i) of the Act. However, it is important that I express my views on this question as this issue was the subject of submissions before this Tribunal.
I have not found that the applicant has a “severe impairment” within the meaning of
s 94(3B) of the Act as she does not have an impairment of 20 points of more under the Impairment Tables.
For the applicant to be assessed to be eligible for DSP it is necessary for the applicant to satisfy the Active Participation Determination. As the Active Participation Determination is now repealed I thought that it was fair to enable the applicant and respondent to make submissions on whether the Active Participation Determination should still be applied to the claim of the applicant. I have now determined in accordance with the long-established practice of this Tribunal[21] that it is fair for the claim of the applicant be assessed by reference to the Active Participation Determination which was in force during the relevant period.
[21] Reilly and Secretary, Department of Social Security [1987] AATA 291.
For the applicant to be regarded as having a continuing inability to work she will be required to have actively participated in a program of support for 18 months in the 36 months prior to the date of the relevant claim for DSP.[22] The applicant’s referral history indicates that she had not actively participated for 18 months in the 36 months prior to 17 December 2013.[23] This is the case even if any period of medical exemption is considered. I therefore find that during the relevant period the applicant did not have a continuing inability to work as required by s 94(1)(c)(i) of the Act.
[22] Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth) s 5(1)-(2).
[23] Exhibit A, T26.
CONCLUSION
The applicant is not eligible for the payment of DSP.
However the applicant should be afforded assistance with Disability Employment Services – Disability Management Service intervention to assist her with building workplace management strategies to enable her to identify appropriate work options.
DECISION
I affirm the decision under review.
I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member .........................[Sgd]...............................................
Associate
Dated 29 May 2015
Date(s) of hearing 21 January & 18 March 2015 Date final submissions received 2 April 2015 Applicant In person Solicitors for the Respondent Mr N Warren, Department of Human Services
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