Cirillo and Secretary, Department of Social Services (Social services second review)
[2015] AATA 506
•14 July 2015
Cirillo and Secretary, Department of Social Services (Social services second review) [2015] AATA 506 (14 July 2015)
Division GENERAL DIVISION File Number(s)
2014/4479
Re
Peter Cirillo
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
Decision
Tribunal Mr P W Taylor SC, Senior Member
Date 14 July 2015 Place Sydney The Tribunal affirms the decision under review.
........................[sgd]................................................
Mr P W Taylor SC, Senior Member
Catchwords
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision affirmed
Legislation
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
14 July 2015
On 5 April 2013 Mr Cirillo unsuccessfully submitted a formal application for disability support pension. He described his complaints as reduced neck and shoulder movement, as well as chest pain at night and during physical activity.
Centrelink rejected Mr Cirillo’s application. It did not regard his neck and shoulder complaints as involving a medical condition that had been fully diagnosed, treated and stabilised. Mr Cirillo disputed that characterisation of his condition, and asked Centrelink to review the decision. But Centrelink affirmed its rejection decision, in April 2014, despite having received further reports and various medical certificates from Mr Cirillo’s general practitioner. The Social Security Appeals Tribunal (“SSAT”) affirmed the rejection in its 28 July 2014 decision. Mr Cirillo disputes that decision and seeks to have this Tribunal accept his original application.
Mr Cirillo’s qualification for disability support pension depends on satisfaction that by 5 July 2013 (ie within 13 weeks of the 5 April 2013 date agreed to be relevant to his application): see Social Security (Administration) Act 1999 Schedule 2 clause 4(1)):
(a)he had “permanent” conditions – in the sense that they were fully diagnosed, treated and stabilised, and likely to persist for more than two years: see Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 subss 6(3)-(7) (“the 2011 Impairment Determination”);
(b)his “permanent” medical conditions resulted in functional impairments affecting his capacity to work and likely to persist for more than two years: see the 2011 Impairment Determination s 3, subss 6(3) and (8);
(c)his functional work impairments had an impairment rating of at least 20 points under the relevant Impairment Tables: see ss 26 and 94(1)(b) of the Social Security Act 1991 (“SSA 1991”) and the 2011 Impairment Determination Part 3;
(d)either his qualifying impairment rating included at least 20 points under a single Impairment Table or he had actively participated in a program of support: see SSA 1991 ss 94(1)(c); 94(2)(aa), 94(3B), 94(3C) and 94(5) and the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (“the 2011 Participation Determination”);
(e)those functional impairments themselves prevented him, within the next two years, from either doing any (ordinarily remunerated) work for at least 15 hours per week, or undertaking a relevant training program: see SSA 1991 ss 94(1)(c); 94(2)(a), 94(2)(b) and 94(5).
Mr Cirillo’s inability to show that his claimed impairments were relevantly “permanent” (see paragraph 3(a) above) - and thus eligible for any impairment rating under the Impairment Tables - is the reason why Centrelink refused his disability support pension application.
Mr Cirillo’s medical conditions
Mr Cirillo’s formal application, and the supporting 14 April 2013 medical report from his general practitioner (Dr Batagol), described only one condition as having any significant impact on his functional abilities. Mr Cirillo’s own description was of reduced neck and shoulder movement, and chest pain. Dr Batagol’s more particular diagnosis, as set out in the medical report, was “musculo-ligamentous strain both shoulders”. The “strain” diagnosis was said to be “confirmed”, although not supported by any specialist or investigative reports. The report indicated current treatment with analgesics, physiotherapy and a gym conditioning programme. It concluded that Mr Cirillo’s condition was likely to continue to impact on his functional abilities for up to 24 months. That functional impact was briefly described as neck and shoulder pain affecting Mr Cirillo’s sleep and making him feel unable to work.
Dr Batagol’s April 2013 report did not show that Mr Cirillo satisfied the qualification requirement referred to in paragraph 3(b) above. Centrelink’s initial rejection decision of 14 June 2013 was, therefore, unsurprising. Dr Batagol provided a further report in July 2013 (ie more than 13 weeks after Mr Cirillo’s application). In that report Dr Batagol set out a slightly more expansive, but otherwise unchanged, diagnosis. It referred to “upper sternal, thoracic and bilateral bruising and musculo-ligamentous bruising” (the result of a motor vehicle accident more than three years earlier) responsible for neck and bilateral shoulder pain. The report differed from the previous report in at least three respects in relation to the shoulder condition: (i) it noted only analgesia as a current treatment (ii) it planned further exercise treatment, and (iii) concluded that the condition would likely remain unchanged and effect Mr Cirillo’s functional abilities for more than two years.
Dr Batagol’s July 2013 report also added gout as a second condition having a significant impact on Mr Cirillo’s functional abilities. It was said to cause joint pain in Mr Cirillo’s knees, ankles, elbows, hands and wrists.
Rules for determining an impairment rating
The 2011 Impairment Determination (referred to in paragraph 3 above) with its prescriptive rules and Tables, governs the assessment of any rating for the impairments resulting from Mr Cirillo’s medical conditions. Significant aspects of the 2011 Impairment Determination include the following:
(a)a rating can only be applied to levels of functional impairment, rather than to the diagnosed condition responsible for the impairment: see the 2011 Impairment Determination subs 5(2)(d), 6(8) & 11(5);
(b)an impairment point rating can only be assigned where conditions are (i) fully diagnosed, treated and stabilised, (ii) cause a functional impairment, and (iii) the impairment is likely to persist for more than two years: see the 2011 Impairment Determination subs 6(1)-6(4);
(c)diagnosed and relevantly treated chronic pain may itself be characterised as a relevant condition, but must be rated by assessment of its impact on the person’s functional abilities: see the 2011 Impairment Determination subs 6(9);
(d)past and planned reasonable treatment, corroborated diagnosis, and the likelihood of significant functional improvement, are relevant to the assessment of a condition as “fully diagnosed, treated and stabilised”: see the 2011 Impairment Determination subs 6(4)-(7);
(e)the Tables provide descriptions of various levels of functional impact (indicated by italicised type). Those levels are accompanied by particular examples of activities, abilities, symptoms or limitations (typically numerically itemised and indicated by ordinary font text). The functional impact of an impairment is to be assessed “by reference to” the listed examples: see the 2011 Impairment Determination subss 5(2)-5(3);
(f)a person’s impairment rating must be assessed on the basis of what the person can, or could, do normally or habitually, not on the basis of that they choose to do, or on what they can only do rarely: see the 2011 Impairment Determination subss 6(1) and 11(3);
(g)the functional assessment and rating cannot take into account either uncorroborated symptoms or non-medical factors: see the 2011 Impairment Determination subs 8;
(h)a functional impairment must be assessed by applying the Table specific to the particular impairment, and ratings for the same impairment (even where contributed to by several conditions) cannot be assigned under multiple Tables: see the 2011 Impairment Determination subss 10(2) - 10(6);
(i)in choosing between levels of impairment, the relative descriptors should be compared to determine which rating is to be applied: see the 2011 Impairment Determination subs 11(2);
(j)if an impairment straddles two impairment ratings, the higher rating can only be assigned if all of its descriptors are satisfied: see the 2011 Impairment Determination subs 11(1)(c);
(k)only the specified rating values (and no intermediate values) can be assigned: see the 2011 Impairment Determination subs 11(1)(b).
The Neck and shoulder condition - permanence issues
The fact that Dr Batagol described Mr Cirillo’s “strain” (April 2013 report) and “bruising” (July 2013 report) as responsible for neck and shoulder pain encourages describing Mr Cirillo as having a neck and shoulder condition. But it is more accurate (given Dr Batagol’s reports) to describe Mr Batagol as having only a diagnosed (musculo ligamentous) shoulder condition. That is the description I will adopt.
The SSAT noted that, prior to its 28 July 2014 decision, Mr Cirillo had not consulted a specialist about his shoulder complaints. It also noted that, according to Dr Batagol’s 2013 reports, his past treatment for the shoulder condition had been limited to various forms of analgesia, physiotherapy and a gym programme. At the time of Dr Batagol’s first report (4 April 2013) no further treatment had been planned for his “strain” injury. At the time of the second report (9 July 2013) the only planned future treatment was an exercise program.
The SSAT considered that, given the duration of Mr Cirillo’s shoulder pain complaints, referral for further investigation by an orthopaedic surgeon was an appropriate and desirable course of action. No doubt the SSAT was of the view, which I share, that further investigation was a course of action likely to shed light on the source and extent of Mr Cirillo’s condition, as well as provide possible further options for effective treatment. The SSAT was quite unprepared to accept Dr Batagol’s statement (in a letter dated 25 February 2014) that Mr Cirillo would “not be fit to work at any time in the near future or even more distant future”. The SSAT thought that the limited current medical evidence, as well as Mr Cirillo’s own description of the nature and extent of his daily activities, did not support a finding that he was unable to participate in any current or future employment. The SSAT considered that his condition required much more extensive investigation than had occurred (by July 2013) before it could be considered as a material consideration permitting impairment rating under the 2011 Impairment Determination.
In November 2014, months after the SSAT’s decision and almost 18 months after his application, Mr Cirillo did undergo ultrasound and computed tomography (“CT”) examinations, and consult an orthopaedic surgeon. The ultrasound examinations revealed supraspinatus tears in both his left and right shoulders. The CT examination of Mr Cirillo’s sternum revealed slightly asymmetrical widening of his left sternoclavicular joint, which the report queried as possibly attributable to an old trauma. But the report also stated that the bone of the medial end of the clavicles and of the upper sternum was “entirely normal in appearance”. Apart from the slight widening of the left sternoclavicular joint, there was no other bone abnormality and the appearance of the soft tissues was unremarkable.
The orthopaedic surgeon’s brief report of 2 December 2014 described Mr Cirillo as having apparently chronic bilateral rotator cuff tears. The surgeon regarded this condition as likely to limit Mr Cirillo’s overhead activity, and activities to the front and to the sides. The surgeon also remarked that Mr Cirillo had a “subluxing left sternoclavicular joint” which reportedly caused “some discomfort”. The surgeon’s report did not, however, comment on whether there was any treatment that could assist Mr Cirillo. It did it not give any prognosis. Neither did it address the extent of Mr Cirillo’s functional limitations in a way that either applied, or permitted the application of, the 2011 Impairment Determination.
Notwithstanding the paucity of the information available about his shoulder condition at the time relevant to his 2013 application, Mr Cirillo strongly contended that I should regard it as relevantly “permanent” and eligible for an impairment rating. He pointed to (i) the long duration of his symptoms, and treatment, since the 2010 car accident, (ii) the description of his condition as “permanent” in an April 2013 assessment undertaken for Centrelink, (iii) Dr Batagol’s qualifications and “confirmed” diagnosis of musculo-ligamentous strain, (iv) Dr Batagol’s emphatic opinions that Mr Cirillo was unable to do any work, and (v) the November 2014 imaging studies, and specialist report, which he said demonstrated that Dr Batagol’s original diagnosis was correct.
None of these points, either alone or in combination, satisfies me that Mr Cirillo’s shoulder condition was relevantly “permanent” (in the sense required to be eligible for an impairment rating - as explained in paragraph 3(a) above) in the 13 week period between April and July 2013. At that time Mr Cirillo’s shoulder condition had been long standing but Dr Batagol opined only that it was likely to continue for up to two years. Contrary to that express statement, it may be appropriate to regard other parts of Dr Batagol’s April 2013 report as indicating, despite his apparently deliberate decision not to say so explicitly, that Mr Cirillo’s condition was likely to persist for more than two years. But irrespective of that possibility, the treatment Mr Cirillo had been given could not be regarded as “full” - because Dr Batagol’s April 2013 report described only intermittent past treatment with analgesia, no past exercise treatment and no future exercise treatment.
Neither do I consider that Mr Cirillo’s condition can properly be described as “fully diagnosed” at the time of the relevant 13 week period. In this regard it is misleading to refer to the November 2014 imaging studies and contend that they demonstrate the correctness of Dr Batagol’s April 2013 “strain” diagnosis. It is not correct to say that Dr Batagol’s use of the term “musculo-ligamentous strain” is a diagnosis of the supraspinatus tears revealed in the 2014 imaging studies. But even if that proposition could be regarded as approximately correct (a proposition which I reject in any event) the fact remains that Dr Batagol simply did not obtain any investigative studies in 2013 and the actual basis for, and the extent of, his diagnosis is unclear. I do not accept the proposition that a condition which had persisted for about three years, and which, without resort to any imaging studies, Dr Batagol variously described as a “strain” (in his April 2013 report) or “bruising” (in his July 2013 report), and for which he gave significantly different functional impairment durations, can be said to have been fully diagnosed.
Mr Cirillo complained that it would be unfair to reject his application on the ground that his condition, and its resultant impairments, were not relevantly “permanent”. He said (i) there was no express requirement for his condition to have been supported by a specialist opinion, and (ii) Centrelink was itself responsible for the delay in obtaining the November 2014 imaging studies and the orthopaedic surgeon’s report.
There is no substance in either of these complaints. As to the first, the Centrelink application form specifically requested information about whether specialist reports had been obtained and would be made available. Centrelink had no obligation either to diagnose Mr Cirillo’s condition or to ensure that it had been “fully diagnosed” at the relevant time. It was a matter for Mr Cirillo, and Dr Batagol, to show that his condition was diagnosed, treated and stable. As to the second point, there is no absolute requirement precluding a condition from being regarded as “fully diagnosed” in the absence of imaging studies and specialist reports. But in my view the obtaining of such information is a common place occurrence. It is so commonplace that it simply does not accord with reality to characterise a condition variously described as a “strain” or “bruising”, and said to have its onset following an motor vehicle accident some years earlier, as involving a full diagnosis where no relevant imaging studies or investigations have been undertaken.
For these reasons, I am not satisfied that the shoulder condition identified in Mr Cirillo’s 2013 application, and Dr Batagol’s 2013 reports, can be regarded as relevantly permanent and thus eligible for a point score rating under the 2011 Impairment Determination.
shoulder condition - impairment rating
Even if it was possible to characterise Mr Cirillo’s shoulder condition as relevantly “permanent”, and thus eligible for an impairment point rating, there is a dearth of evidence to substantiate that it entails an impairment assessment that would satisfy the 20 point threshold: see paragraph 3(c) above.
In his April 2013 report, and in response to a question seeking specific details about “how this condition and its treatment currently impact on the patient’s ability to function”, Dr Batagol reported only that pain affected Mr Cirillo’s sleep and that he was not feeling fit for work. In his 9 July 2013 report, in response to the same question, Dr Batagol reported merely that Mr Cirillo was “unable to do heavy manual tasks”. Neither of these responses answered the question. Neither response provided any information that was at all useful in attempting to determine an impairment point rating for Mr Cirillo.
Notwithstanding this absence of specific descriptions of Mr Cirillo’s actual functional limitations, Dr Batagol has consistently certified Mr Cirillo as unfit for work. The date and periods of Dr Batagol’s many reports and certificates are summarised in the following table.
None of Dr Batagol’s reports, with two exceptions to which I will shortly come, contains an adequate description of examination findings detailing functional difficulties as a result of Mr Cirillo’s shoulder condition.
The first of those exceptions concerns Dr Batagol’s clinical notes of his examination of Mr Cirillo on 18 March 2011.That date was, of course, two years before his present application, but Mr Cirillo proffered them as evidence of the significant and long standing nature of his shoulder condition. The notes record Dr Batagol’s findings about the range of Mr Cirillo’s shoulder movements in 2011. Most of those notes record ranges of shoulder and arm movement that are recorded as either normal or substantial. Consistent with those findings (i) the notes contemplate that Mr Cirillo would be assisted to a graduated return to work, (ii) (as the Table above records) Dr Batagol only certified that Mr Cirillo would be unfit for work until 30 April 2011, and (iii) (as the Table also records) by March 2012 Dr Batagol certified that Mr Cirillo was able to return to work on light duties.
Leaving aside the 28 March 2011 clinical notes, the only occasion on which Dr Batagol has attempted to provide greater particularity of his assessment of Mr Cirillo’s shoulder condition, and to address the criteria to which I referred in paragraphs 3 and 8 above, is in a report dated 17 September 2014. In that report Dr Batagol described Mr Cirillo as
(a)able to lift a 1 L bottle of milk to shoulder height, but unable to lift a 2 L bottle
(b)requiring the assistance of his daughter to lift things above shoulder height
(c)able to hold a pen or pencil, but not write long letters
(d)able to do up his laces, undo lids on bottles and jars, but with considerable difficulty.
In the light of these descriptions, Dr Batagol opined that Mr Cirillo’s shoulder condition resulted in “moderate functional impact” for the purposes of the relevant impairment table, and merited a 10 point impairment rating.
A proper understanding of Mr Cirillo’s actual functional abilities requires regard to his own evidence. In part that evidence was consistent with what Dr Batagol had said. But a more complete and detailed picture emerged from the evidence Mr Cirillo gave to the SSAT, and from his description of his ordinary activities.
The SSAT noted that Mr Cirillo reported he could attend to his own self-care and also to activities such as mowing the lawn, gardening, housecleaning and shopping, at least if the tasks were broken down into manageable units.
In the course of his evidence in the present proceedings Mr Cirillo gave an account of his ordinary daily activities. He described his typical day (in about April 2013) as involving getting up in the morning, making a cup of coffee, attending to his personal hygiene and dressing. He said he could do all of that without assistance.
Mr Cirillo’s young school age daughter used to live with him on 2 to 3 days a week in 2013. On the days that she stayed with him Mr Cirillo would typically make her lunch, wash up the plates and crockery he used, drive her to the station, pick her up after school, prepare dinner, and wash up after dinner before going to bed.
Mr Cirillo explained that he did all his own washing, shopping and cooking. So far as shopping is concerned he was able to drive to the supermarket, walk around the aisles, use a trolley, and select items from the supermarket shelves. He could also carry his shopping bags to the car, although he said he usually only had a few items and did not carry anything too heavy. So far as cooking was concerned, Mr Cirillo cooked spaghetti and pasta dishes, steak and the occasional baked dinner.
When regard is had to the principles I summarised in paragraph 8 above, and the actual evidence Mr Cirillo gave about his ordinary activities, there is no justification for Dr Batagol’s impairment rating assessment. The appropriate table in the 2011 Impairment Determination, is Table 2 – Upper Limb Function. Its relevant terms are set out below.
Points
Descriptors
0
There is no functional impact on activities using hands or arms.
(1) The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.
5
There is a mild functional impact on activities using hands or arms.
(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.
10
There is a moderate functional impact on activities using hands or arms.
(1) The person has difficulty with most of the following:
(a) picking up a 1 litre carton full of liquid;
(b) picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
(c) holding and using a pen or pencil;
(d) doing up buttons or tying shoelaces;
(e) using a standard computer keyboard;
(f) unscrewing a lid on a soft-drink bottle.
20
There is a severe functional impact on activities using hands or arms.
(1) Most of the following apply to the person:
(a) the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b) the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c) the person has difficulty using a computer keyboard despite appropriate adaptations;
(d) the person has severe difficulty using a pen or pencil;
(e) the person has severe difficulty turning the pages of a book without assistance.
Quite contrary to Dr Batagol’s 17 September 2014 opinion, Mr Cirillo’s account of his activities and abilities indicates that he can “pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty”. Even if one was to accept that he had some degree of difficulty (a view about which minds might differ) the extent of any difficulty is unlikely to permit an assessment that he had “mild” functional impairment - because it is unlikely to be accurate to say that he had difficulty with “most” of the four kinds of tasks set out in the table under the relevant descriptors. It is certainly not accurate to say, as Dr Batagol opined, that Mr Cirillo had difficulty with “most” of the five matters set out in the table relating to “moderate” functional impairment. Accordingly, and bearing particularly in mind the principles summarised in paragraphs 8(i), 8(j) and 8(k) above, I find that, for the purposes of determining the appropriate impairment rating under Table 2, Mr Cirillo has no functional impact on activities using his hands and arms.
Gout & joint pain
Dr Batagol only listed this condition in his July 2013 report. There he described it as a condition that flared up weekly, with physical exertion, and was responsible for joint pain in Mr Cirillo’s knees, ankles, elbows, hands and wrists. It was a long-standing condition that had commenced in 2005, been treated with medication since May 2011 and had caused the doctor to make recommendations about lifestyle modifications for Mr Cirillo. Perhaps because of those recommendations Dr Batagol reported that although the condition was likely to subsist for more than 24 months it “may improve with treatment”.
That impression of Mr Cirillo’s prognosis in relation to his gout, when coupled with Dr Batagol’s indication that he planned further treatment by way of lifestyle modifications, precludes the condition from being regarded as relevantly “permanent” - in the sense I have explained in paragraph 3(a) above. Consequently, the condition cannot be given an impairment rating under the 2011 Impairment Determination.
Even if I was satisfied that Mr Cirillo’s gout was relevantly permanent it is very significant to note that Dr Batagol’s July 2013 description of Mr Cirillo’s gout as a relevantly disabling condition is quite inconsistent with his April 2013 report. There is no reference to gout in the April report. The only condition the April report identified, other than the musculo-ligamentous shoulder strain to which I have already referred, was “mild bilateral knee pain”. However that condition, far from being one the doctor then regarded as the cause of any significant disability, was identified in answer to a question enquiring about other medical conditions “that are generally well managed and that cause minimal or limited impact on ability to function”.
Despite the absence of any detailed description of functional impairment in any of his previous reports or certificates Dr Batagol described the effect of this condition in part of his 17 September 2014. In that report Dr Batagol considered that Mr Cirillo merited a five-point impairment rating. This was based on his view that Mr Cirillo
(a)was able to stand for more than five minutes, but less than 10, without a break
(b)had some difficulty in walking to local facilities and required a break after 150m.
The relevant table in the 2011 Impairment Determination, is Table 3 – Lower Limb Function. Its relevant terms are as set out below.
Points
Descriptors
0
There is no functional impact on activities requiring use of the lower limbs.
(1) The person can:
(a) walk without difficulty on a variety of different terrains and at varying speeds; and
(b) walk without difficulty around the home and community; and
(c) kneel or squat and rise back to a standing position without difficulty; and
(d) stand unaided for at least 10 minutes; and
(e) use stairs without difficulty.
5
There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c) the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
(b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
10
There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
Contrary to Dr Batagol’s 17 September 2014 letter I am not at all satisfied that Mr Cirillo’s gout condition merited any impairment point rating at the time relevant to his application in 2013. Even in Dr Batagol’s July 2013 report he refrained from any description of the effect of the condition, other than that it prevented Mr Cirillo “undertaking heavy labour”. This was the case despite the fact that the form specifically asked for details of the impact of each relevant condition on the applicant’s ability to walk, bend, sit, stand and lift or carry objects. In that context I also note that in none of his reports or certificates, other than those dated July 2013 and September 2014, did Dr Batagol even refer to Mr Cirillo’s gout as a relevantly disabling condition. (This is readily apparent from the table set out in paragraph 22 above.)
Ratings under other tables
Dr Batagol’s 17 September 2014 letter also suggested that Mr Cirillo merited a 10 point impairment rating under Table 1 for “Functions requiring Physical Exertion and Stamina”, and an additional 10 point rating under Table 4 relating to Spinal Function.
The basis for Dr Batagol’s assessment relating to Table 1 was that Mr Cirillo experienced frequent pain in the chest and shoulder girdle when performing day-to-day household activities. In addition he was said to only be able to walk short distances of up to 150 m without a break.
The basis for Dr Batagol’s assessment of an impairment rating under Table 4 was that Mr Cirillo could only bend to knee level with difficulty, was unable to do activities involving lifting his arms above his head, and “had difficulties” moving his head to the side to look around.
There are two problems with Dr Batagol’s attempt to rely on Tables 1 and 4 to derive an additional impairment point rating for Mr Cirillo. The first problem is that Dr Batagol does not clearly identify the condition to which the impairment relates and does not establish that the condition is relevantly permanent - so as to make the impairment eligible for a rating. Both of these requirements are mandatory pre-conditions for the application of both Tables. The second problem is that Dr Batagol appears to be using the two conditions identified in his July 2013 report to justify ratings under multiple Tables. This would be a permissible approach if the conditions gave rise to different impairments. But Dr Batagol’s letter tends to show that he used the same impairment (shoulder pain and perhaps gout) to arrive at ratings under different Tables. Such an approach violates the principles I summarised in paragraph 8(h) above.
Conclusion
Mr Cirillo has not satisfied me that he had a relevant permanent impairment, and certainly not an impairment that merited a 20 point rating under the 2011 Impairment Determination, either at the time of his 2013 disability support application or within 13 weeks after he made the application. Such a point rating is a necessary pre-condition for disability support pension qualification (see paragraph 3(c) above). Because Mr Cirillo does not satisfy that condition, at least not at the time relevant to his application, it is unnecessary to determine whether he would have been able to satisfy any of the other qualification requirements (ie those referred to in paragraphs 3(d) and 3(e) above.
For the reasons set out above, I affirm the decision under review.
I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member ...........................[sgd].............................................
Associate
Dated 14 July 2015
Date(s) of hearing 18 June 2015 Applicant In person Solicitors for the Respondent A McLeod, Department of Human Services
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
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Appeal
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Procedural Fairness
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