CECIL REIBEL and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 494
•31 July 2012
[2012] AATA 494
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/5623
Re
CECIL REIBEL
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
Decision
Tribunal Mr P Wulf, Member
Date 31 July 2012 Place Brisbane The Tribunal sets aside the decision under review and in substitution finds that the applicant is qualified for disability support pension from 10 January 2011.
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Mr P Wulf, Member
Catchwords
SOCIAL SECURITY – Pensions, benefits and allowances – Entitlement to Disability Support Pension – Physical, intellectual or psychiatric impairment – Job Capacity Assessment – Reports of medical practitioners including surgeons – Impairment rating of 20 points or more under the Impairment Tables – Continuing inability to work – Job – Decision under review set aside
Legislation
Social Security Act 1991 (Cth) s 94, Schedule 1B
Social Security (Administration) Act 1999 (Cth)
Cases
Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635
Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
Secretary, Department of Social Security v Pusnjak [1999] FCA 994
REASONS FOR DECISION
Mr P Wulf, Member
31 July 2012
Mr Cecil Reibel ("the applicant")[1] seeks review of a decision made by Centrelink on 8 February 2011[2] to refuse to grant him disability support pension (DSP) under the Social Security Act 1991 (Cth) ("the Act") and Social Security (Administration) Act 1999 (Cth).
[1] Exhibit 1, T-Document 1/1-2.
[2] Exhibit 1, T-Document 13/46.
On 14 June 2011, the decision was affirmed by an Authorised Review Officer.[3] The applicant appealed the decision to the Social Security Appeals Tribunal (‘SSAT”), who affirmed the decision on 23 November 2011.[4]The applicant has applied to this Tribunal for review of the decision of the SSAT.
[3] Exhibit 1, T-Document 18/65-76.
[4] Exhibit 1, T-Document 2/15-18.
For the reasons that follow, the Tribunal sets aside the decision and substitutes the decision granting the applicant DSP from 10 January 2011.
issues for the tribunal
The issues for the Tribunal to determine are whether:
(a)at 10 January 2011, when the applicant lodged his claim for DSP, or within 13 weeks thereafter, that being 11 April 2011, (“relevant period”), he had a disability that was fully documented, diagnosed, treated and stabilised; and, if so
(b)the applicant, as a result of his disability, attracts an impairment rating of at least 20 points under the Impairment Tables contained in Schedule 1B of the Act (“the Impairment Tables”); and, if so
(c)the applicant had a “continuing inability to work” because of his impairment within the meaning of s 94 of the Act.
legislation
The relevant qualification provisions for DSP are contained within s 94 of the Act, which states:
(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;
(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d)the person has turned 16; and
(e)the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(iii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iv) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A)is not an Australian resident; and
(B)is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(f)the person is not qualified for disability support pension under section 94A.
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)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)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.
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b)the availability to the person of work in the person’s locally accessible labour market.
impairment TAbles
The Impairment Tables, under which impairment point ratings appear, are contained in Schedule 1B of the Act. The introduction to those Tables relevantly states:
(4)A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
(5)The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
(6)In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
•what treatment or rehabilitation has occurred;
•whether treatment is still continuing or is planned in the near future;
•whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
Ÿtreatment that is feasible and accessible ie, available locally at a reasonable cost;
Ÿwhere a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. …”
THE EVIDENCE
The evidence before the Tribunal comprised:
(a)Exhibit 1: the "T Documents" (T1-20: pp 1-152) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
(b)Exhibit 2: applicant’s bundle of documents including letters from Dr Christopher Jones dated 2 March 2012, Dr John Corbett dated 11 April 2012; and Ms Chelsea Dawson, Psychologist dated 4 April 2012;
(c)Exhibit 3: respondent’s bundle of documents including “Dear Doctor” letter dated 8 February 2012;
(d)Exhibit 4: respondent’s bundle of documents including letter from Dr Christopher Jones dated 2 March 2012, “Dear Doctor” letter dated 8 February 2012 and assessment by Dr Neil Bartels dated 7 September 2010; and letters from Dr John Corbett dated 16 April 2010 and 18 June 2008;
(e)Exhibit 5: respondent’s bundle of documents including “Dear Doctor” letter dated 12 April 2012;
(f)Exhibit 6: respondent’s Statement of Facts and Contentions; and
(g)The oral evidence of the applicant.
ANALYSIS
Did the applicant have a disability that is fully documented, diagnosed, treated and stabilised that would allow him to qualify to receive DSP on 10 January 2011 or within the relevant period?
There was significant evidence as to the applicant’s potential disability before the Tribunal. The applicant suffered a severe injury when he was eleven years old and this has had ongoing impacts on his life. He suffered a perforated disc in his back while playing football. He was diagnosed with Scheuermann’s disease at 14. At 17, the applicant suffered the onset of sciatica of the back. At 20, the applicant was impacted by a staphylococcal infection which resulted in the further degeneration of his back. To assist his back recover, he undertook martial arts that appeared to assist him at the time. For employment, the applicant has undertaken numerous courses including a Diploma in Engineering and work positions including being a carpenter, carer, an estimator at Langs Building Supplies and finally working as a security guard.
The applicant suffered carpal tunnel syndrome in both hands while working as an estimator. He was placed on WorkCover and, after having operations on his hands, he returned to work as an estimator. However, due to the Global Financial Crisis, he was made redundant.
When making an assessment as to the applicant’s condition, the Tribunal must refer to paragraphs 4 to 6 of the Introduction to the Impairment Tables (“the Introduction”), which set out a number of "mandatory requirements" that must be considered and satisfied before any impairment rating can be assigned to a condition (see Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606 at [11] per Finn J). Due to the operation of the Introduction, a physical, intellectual or psychiatric impairment can only be assigned impairment points if the medical condition is "permanent", that is, a "fully documented, diagnosed condition which has been investigated, treated and stabilised" and "if in the light of available evidence it is more likely than not that it will persist for the foreseeable future".
In order to assess whether a condition is fully treated and stabilised, para 6 of the Introduction provides that the Tribunal must consider:
(a)“what treatment or rehabilitation has occurred”;
(b)“whether treatment is still continuing or is planned in the near future”; and
(c)“whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years”.
In this context, reasonable treatment is taken to be:
(a)“treatment that is feasible and accessible ie, available locally at a reasonable cost”; and
(b)“where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient”.
With respect to whether the applicant has a condition that is a "fully documented, diagnosed condition which has been investigated, treated and stabilised”, there is conflicting evidence. The applicant contends that his disabilities include his back condition, both hands and depression. For the purposes of this decision, there is agreement that the conditions with respect to the applicant’s back and wrists are fully diagnosed.[5]There is a distinct absence of evidence as to the depression and, therefore, this is not included in this decision. Therefore, it is a matter as to whether the applicant’s agreed diagnosed conditions are fully treated and stabilised.
[5] Exhibit 1, T-Document 16/56-61.
The evidence of Dr Jones[6] suggests that the applicant has continuous pain, although on its reading, it would appear to be somewhat less than when he first presented. Dr Corbett[7] indicates that the applicant has severe right carpal tunnel conduction delay with ongoing numbness. This concurs with his previous report of 2010 although it suggests “severe bilateral carpal tunnel conduction delay, worse on the right side”.[8] He also indicates that the applicant has had repeated surgical intervention as well as sciatic pain in the lower back. Dr Corbett suggests that the applicant should see Dr Dodd, who has been the surgeon who has operated twice on the applicant. Ms Dawson,[9] a psychologist, indicated that the applicant has ongoing pain but has been treated and continues to receive treatment. Dr Shah provided a medical report[10] which suggested that the carpal tunnel syndrome on both sides has not had any improvement. Dr Shah states that the condition will impact on the applicant’s ability to function for 3-24 months and will fluctuate.
[6] Exhibit 2: Report dated 2 March 2012.
[7] Exhibit 2: Report dated 11 April 2012.
[8] Exhibit 4: Report dated 16 April 2010.
[9] Exhibit 2: Report dated 4 April 2012.
[10] Exhibit 1, T-Document 9/29-36.
Dr Bartels[11] provided a report for the applicant’s WorkCover claim. In his summary, he indicates, using Table 16 (Q Comp impairment tables) that the applicant would have 2% impairment in both the right and left wrists and 2% and 1% for surgical scaring in the right and left wrists respectively. Dr Bartels refers to 10% impairment in his assessment of the right wrist.
[11] Exhibit 4: Report dated 7 September 2010.
In matters such as this, it is often difficult to prefer one expert’s evidence over another. In this matter, while the Tribunal notes the report of Dr Shah and others, the Tribunal prefers the medical evidence of Dr Dodd. He is a qualified orthopaedic surgeon, highly experienced and has operated twice on the applicant (the applicant was his patient from 28 July 2008 to 27 May 2010).[12] He is also the specialist that Dr Corbett suggests the applicant should again see.
[12] Exhibit 1, T-Document 14/47-54 at p. 53.
In his report of 7 March 2011,[13] which is within the relevant period, Dr Dodd stated that the applicant’s condition is one for which no further treatment is planned. He also indicates that the applicant has been very complaint and, moreover, that the condition is expected to last “more than 24 months” and will remain “unchanged”. The applicant, in his oral evidence, stated that Dr Dodd had told him that he would need to put up with the pain as there was nothing else he could do.
[13] Exhibit 1, T-Document 14/47-54.
This in the Tribunal’s opinion is overwhelming in that it demonstrates that the condition is permanent, in that it is a "fully documented, diagnosed condition which has been investigated, treated and stabilised" and "is more likely than not that it will persist for the foreseeable future".
Section 94(1)(b) of the Act: Impairment Rating
Due to the above finding, the relevance of the Job Capacity Assessment report of Mr Carmichael[14] is of little assistance as he has found that the applicant was not fully treated and stabilised for both the back disorder and carpal tunnel syndrome, whereas this Tribunal has an opposite view based on the medical evidence (except insofar as the future capacity of the applicant for work within two years without intervention and this will be discussed below).
[14] Exhibit 1, T-Document 12/40-44.
The Impairment Tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. In using the Tables, ratings "can only be assigned for conditions where there is an associated current loss of function or where prolonged loss of function would be expected in most work situations" (see para 3 of the Introduction).
When assessing the applicant’s upper limbs (wrists), the Tribunal must utilise Table 3 of the Impairment Tables, relevant to upper limb function. The evidence before the Tribunal from both the applicant and the medical evidence is that the applicant suffers major loss of strength and/or sensation of his dominant upper limb which causes significant interference with hand function and manual handling, and likewise for his non-dominant upper limb. For example, the evidence is that the applicant is unable to wear clothes with buttons, zippers and shoelaces as he is unable to do them up.[15] Further, he is unable to grip objects including cups etc. Therefore, with respect to the applicant’s carpal tunnel syndrome, the Tribunal finds an impairment of 20 points for the dominant right arm and 15 points for the non-dominant left arm.
[15] Exhibit 1, T-Document 17/62-64.
As to the applicant’s back, the Tribunal must utilise Table 5.2 of the Impairment Tables, relevant to spinal function. It is clear from the evidence that the applicant is restricted in his function and, from what can be adduced, there appears that no treatment has been suggested besides pharmaceutical drugs to relieve pain only. These drugs are unlikely to reverse over 35 years of damage. Considering this, and that the disability is permanent and noting the evidence that the applicant has difficulty undertaking manual tasks, the Tribunal determines that the condition is fully treated and stabilised and that he has loss of a quarter of the normal range of movement. The condition therefore incurs five impairment points.
Based on the above, the Tribunal finds the applicant has 40 impairment points.
Section 94(1)(c) of the Act: Continuing Inability to Work
Under s 94(1)(c)(i) of the Act, when read with s 94(2), a person has a continuing inability to work because of an impairment if the Secretary (or the Tribunal, upon review) is satisfied that the impairment was of itself sufficient to prevent a person from doing any work within the next two years, and the impairment was of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next two years. Under s 94(5) and in the applicant’s case, "work" means work that is for at least 15 hours per week in Australia at award wages or above.
In Secretary, Department of Social Security v Pusnjak [1999] FCA 994, Drummond J considered the operation of s 94(2) of the Act. At paras 31 and 32 of his decision, the learned Judge said:
[31] If, as I think it should be, s 94(2)(a) directs the Secretary to confine his determination to whether the impairment of itself is sufficient to prevent the person from doing any work that may be available anywhere in Australia, being work for which that particular person is already fitted without first requiring some form of occupational retraining, s 94(2)(b) then, logically enough, moves on to identifying what impact the availability of occupational retraining is to have on the eligibility of the particular applicant for a disability support pension who surmounts the first hurdle of s 94(2)(a).
[32] Effect will be given to the intention of legislation if the Secretary asks the following questions as he works his way through the various paragraphs of s 94(2):
As to s 94(2)(a): Does the impairment of itself, ie, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant's capacity for work that it prevents him from doing work available anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining? If so:
As to s 94(2)(b)(i): Is the impairment of itself sufficient to prevent the particular pension claimant undertaking, ie, commencing, during the next two years, retraining of a kind that is available to him and which would fit him for a class of work available in Australia that he currently lacks the skills or experience to perform, even if unimpaired?
If so, the applicant will satisfy the Secretary that he has the requisite continuing inability to work. …
The concept of continuing inability to work is not confined to a claimant's ability to undertake work for which they are trained and skilled, but rather their capacity to undertake "any work". In relation to the phrase "any work" in s 94(2)(a) of the Act, the Tribunal notes that this phrase ought not be qualified to meet "suitable work" (see Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864 at paragraph [34]), and the phrase does not exclude types of employment that a person might consider insufficiently intellectually challenging or are, in the person's view, insufficiently challenging (see Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635 at paragraph [27] per Branson J).
In the applicant’s case, in relation to his claim for DSP, assessments of work capacity in Job Capacity Assessments were carried out. The Tribunal recognises that a Job Capacity Assessment is not about diagnosis or prognosis of a person’s medical condition. Rather, its focus is about drawing on the information provided by treating doctors and specialists when making assessments and applying the assessor’s specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s impairment rating and work capacity.
The Job Capacity Assessment reports of Mr Carmichael, dated 28 January 2011[16] and Ms Sharpe, dated 29 March 2011,[17] indicates that the applicant had a current assessed baseline capacity for work of 15-22 hours per week and a future work capacity within two years, with intervention, of 23-29 hours a week.[18]However, as highlighted above, this determination was made in what the Tribunal considers was in error to the relevant medical evidence. As the applicant has done all that he can do, based on the opinion of Dr Dodd, his future work capacity within 2 years without intervention, noting he has done everything possible, is 8-14 hours per week. This work time is below the level considered to be work under s 94(5) of the Act.
[16] Exhibit 1, T-Document 12/40-44.
[17] Exhibit 1, T-Document 16/56-61.
[18] Exhibit 1, T-Document 16/56-61.
I note that there is little medical evidence about the applicant’s work capacity except for that contained within the reports and his own evidence. Given the medical basis for reaching the level of work capacity was made in error, I am satisfied that the applicant does not have the capacity within two years with intervention to work for at least 15 hours per week on wages that are at or above the relevant minimum wage.
decision
For the reasons set out above, the Tribunal sets aside the decision under review and in substitution finds that the applicant is qualified for disability support pension from 10 January 2011.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member.
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Associate
Dated 31 July 2012
Date(s) of hearing 31 May 2012 Applicant In person Advocate for the Respondent Rick McQuinlan
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