CRAIG WELLS and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2013] AATA 195
[2013] AATA 195
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0265
Re
CRAIG WELLS
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Dr A Frazer, Member
Date 3 April 2013 Place Perth Decision Summary
The Tribunal affirms the decision under review.
..(sgd) Dr A Frazer............................
Member
Catchwords
SOCIAL SECURITY – disability support pension – qualification requirements– applicant has impairments – applicant’s impairments not considered permanent or sufficient rating –applicant not qualified for disability support pension – decision under review affirmed
Legislation
Social Security Act 1991 (Cth), s 94 and Sch 1BREASONS FOR DECISION
Dr A Frazer, Member
3 April 2013
INTRODUCTION
Mr Craig Wells, (“the applicant”), who is 48 years old, lodged a claim for the disability support pension (“DSP”) on 6 April 2011 in respect of multiple conditions.
On 26 May 2011, a Centrelink officer rejected the claim on the basis that the applicant’s conditions were not fully treated and stabilised. On 8 November 2011 an Authorised Review Officer (“ARO”) affirmed the decision to reject the claim for DSP.
On 3 January 2012 the Social Security Appeals Tribunal (“SSAT”) affirmed the ARO’s decision.
On 24 January 2012 the applicant made an application to this Tribunal for review of the SSAT’s decision.
THE RELEVANT LEGISLATION
The conditions which must be satisfied before a person is qualified for DSP are set out in paras (a) – (f) of s 94(1) of the Act. It is common ground that the applicant satisfies the conditions set out in paras (d) – (f) of s 94(1). Section 94 of the Act otherwise relevantly provides:
“ 94(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;
…
94(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.
Note: For work see subsection (5).
…
94(5) In this section:
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) pre‑vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work‑related training (including on‑the‑job training).
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 “Impairment Tables” referred to in para (b) of s 94(1) are set are set out in Schedule 1B to the Act.
THE EVIDENCE
The evidence before the Tribunal comprised:
·the “T Documents” (T1-T25,) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”);
·Exhibit A1 – Bundle of Medical Documents submitted by the applicant.
·Exhibit A2 – Bundle of Medical Appointments submitted by the applicant
·The applicant had previously requested that his GP, Dr Thomas, provide telephone evidence to the Tribunal however due to some communication issues this did not occur. At the conclusion of the hearing, following the applicant’s oral evidence and a review of the documentation, the applicant decided this was not necessary.
THE APPLICANT’S EVIDENCE
·The applicant told the Tribunal he lives alone and independently in a flat. He does his own cleaning, shopping and cooking however he is slow at some tasks. The applicant explained he had multiple medical problems including a past head injury, osteoarthritis of the feet, a hiatus hernia with a Barrets esophagus, neck and lower back pain, silicosis and emphysema, Von Willebrands disease and also hepatitis C.
·The applicant said he was assaulted on 23 March 2010 and suffered a head injury requiring admission to Fremantle Hospital for a night. He has not worked since the head injury and says he suffers from headaches and a fine tremor and has permanently lost his sense of smell and taste. He also has some neck and back pain. The applicant said he is still attending the pain clinic at Fremantle Hospital and is now only taking panadol for his pain.
·The applicant said he also has a hiatus hernia with a Barrett’s esophagus. His symptoms are currently controlled with regular Somac medication and he is regularly reviewed by endoscopy. He may require future surgery.
·The applicant said he suffered from Von Willebrand’s disease (a clotting disorder) which causes bleeding at surgery and hepatitis C which is regularly monitored. These conditions do not presently impact on his day to day function.
·The applicant said he had previous surgery in September 2010 to manage osteoarthritis of his left great toe. This was complicated by bleeding and required multiple operations. The applicant said his left toe “still has its days” but overall the outcome has been good. It can though be difficult to wear shoes. The applicant said he is now getting pain in his right toe and is due for further surgery.
THE RELEVANT MEDICAL EVIDENCE
Report by Dr Pinto, Respiratory Physician, November 2011 stating the applicant has mild obstructive airways disease and mild impairment of gas transfer consistent with early emphysema and silicosis.
Medical Report by Dr Sean Thomas, GP, dated 14 October 2010. This confirms the applicant sustained a head injury causing tremor, headaches, neck and back pain requiring review by a neurologist and spinal surgeon.
Report by Dr Kelly, Neurologist, 11 February 2011. Dr Kelly states the neurological examination is normal but for some very mild resting tremor and a reduced sense of taste and smell.
Report by Dr Kerr, Spinal Surgeon, 5 April 2011. This states the applicant reports headache and neck pain. Dr Kerr states he was unable to demonstrate any abnormality on examination but for a reduced sense of smell.
THE IMPAIRMENT TABLES
Schedule 1B to the Act is headed: “Tables for the assessment of work-related impairment for disability support pension”. The tables themselves are preceded by an “Introduction“ in which it is relevantly stated:
“1.These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work. …
2.These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. …
…
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. …
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:
·treatment that is feasible and accessible ie, available locally at a reasonable cost;
·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.
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. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:
·evaluate and document the probable outcome of treatment and the main risks and or (sic) side effects of the treatment; and
·indicate why this treatment is reasonable; and
·note the reasons why the person has chosen not to have treatment.
…”
ANALYSIS
Impairments
It is common ground that, at all material times, the applicant has a past head injury causing headaches, neck and low back pain and a loss of smell, osteoarthritis of both great toes, silicosis and early emphysema, von Willebrand’s disease and hepatitis C. These are impairments within the meaning of para (a) of s 94(1) of the Act.
The first matter for the Tribunal’s determination is whether the applicant, when he applied for the DSP on 6 April 2011, and within 13 weeks following, had a total impairment, by reason of his impairments, of at least 20 points under the Impairment Tables, for the purposes of para (b) of s 94(1) of the Act.
The Tribunal accepts the evidence from Dr Sean Thomas, GP, Medical Report, dated 4 October 2011 that the applicant sustained a cerebral contusion following an assault on 23 March 2010 which has resulted in tremor, neck and back pain and headaches. The Tribunal notes that the subsequent clinical examination of the Applicant by the treating Neurologist and Spinal Surgeon was essentially normal. The Tribunal notes the Applicant is receiving ongoing support from the Pain Management Clinic at Fremantle Hospital and has managed to reduce his medications to panadol only. The Tribunal allocates nil points to this condition under Table 6 of the Impairment Tables.
The Tribunal notes that the applicant has undergone relatively successful surgery for his osteoarthritis in the left great toe and is planning further surgery to his right toe. Therefore the right toe condition cannot be considered permanent for the purposes of applying the Impairment Tables.
The Tribunal accepts the applicant’s evidence that his multiple conditions of emphysema, hiatus hernia and Barrett’s esophagus, von Willebrand’s disease and Hepatitis C are generally under review and well managed and have little impact on his daily functioning. These conditions therefore do not attract any Impairment Rating under the Impairment Tables.
The applicant therefore does not satisfy para (b) of s 94(1) of the Act.
As the applicant does not satisfy para(b) of the s 94(1) of the Act it is unnecessary to consider whether the applicant satisfies para (c) of s 94(1) of the Act.
DECISION
For the above reasons the Tribunal affirms the decision under review.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of .
....(Sgd) T Freeman......................
Associate
Dated 3 April 2013
Date(s) of hearing 24 January 2013 Applicant In person Representative for the Respondent Lana Gallagher
Solicitors for the Respondent Sparke Helmore
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