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

[2017] AATA 1085

Crocker; Secretary, Department of Social Services and (Social services second review) [2017] AATA 1085 (12 July 2017)

Division:GENERAL DIVISION 

File Number(s):      2016/6146 

Re:Secretary, Department of Social Services  

APPLICANT

Peter CrockerAnd  

RESPONDENT

DECISION

Tribunal:Mr D.J Morris, Member 

Date:12 July 2017

Place:Melbourne

The decision of the Social Services and Child Support Division of 11 October 2016 that the Respondent continues to qualify for disability support pension is affirmed.

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

D.J. Morris, Member 

SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments correctly assigned 20 or more impairment points – whether Respondent has continued inability to work – transitional provisions applicable to Respondent – Respondent assigned 20 impairment points – Respondent has continued inability to work for 30 hours a week – Respondent continues to qualify for DSP.

Legislation
Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005
Family Assistance and Other Legislation Amendment Act 2011, Sch 3
Social Security Act 1991, ss 94(1), 91(1)(a), 94(1)(b), 94(1)(c)
Social Security (Administration) Act 1999, Sch 2, cl 4(1)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

D.J. Morris, Member

12 July 2017

BACKGROUND

1. Mr Peter Crocker, the Respondent in this matter, was granted Disability Support Pension (DSP) in March 2001.  On 12 April 2016 he was sent a DSP medical review form by Centrelink (the Department), who is the Applicant in this matter.  On 6 June 2016 Mr Crocker underwent a Job Capacity Assessment (JCA) in order to assess his continuing eligibility to DSP.

2. The JCA recommended the assignment of 15 impairment points under the Determination (supra) for Mr Crocker’s impairments.  The assignment of 20 or more impairment points is a mandatory requirement for a person to receive DSP.  On 8 June 2016 the Department made the decision to cancel Mr Crocker’s DSP.

3. Mr Crocker sought a review by an Authorised Review Officer (ARO), an officer of the Department not involved in the original decision.  On 8 June 2016 the ARO affirmed the decision.

4. Mr Crocker sought a review by the Social Services and Child Support Division of the Tribunal (AAT1).  A hearing was held on 11 October 2016 and AAT1 set aside the decision under review and assigned 25 impairment points to Mr Crocker, and found that he had a continuing inability to work.

5. The Secretary of the Department sought a review of AAT1’s decision by the General Division of the Tribunal.

6. The hearing was held on 21 April 2017 by telephone.  The Applicant was represented by Mr Tim de Uray, a legal officer of the Department.  Mr Crocker represented himself, and gave evidence under affirmation.

   The Applicant tendered documents and supplementary documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ and ‘ST’ documents), which were admitted into evidence. The Applicant also submitted a Secretary’s Statement of Facts, Issues and Contentions lodged with the Tribunal on 22 March 2017.

   Qualification for DSP under the Act

7. The law applicable to the grant of DSP is contained in the Social Security Act 1991 (the Act) and in particular section 94 of that Act.

8. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied.  For this reason, it must be established that the person applying has –

   (a)       physical, intellectual or psychiatric impairment; and

   (b)       impairment of 20 points or more under the Impairment Tables; and

   (c)       a continuing inability to work.

9. The Impairment Tables referred to in section 94(1)(b) are to be found in subordinate legislation, namely a ministerial determination called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).  This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.

10. The applicable provision relating to Mr Crocker’s ability to “work” under section 94(1)(c) and section 94(5) of the Act is affected by transitional provisions enacted in the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005.  That legislation amended the definition of “work” in regard to DSP to mean work that is from 30 hours a week to 15 hours a week, with the legislative change taking effect from 1 July 2006.  Transitional provisions provide that the amended definition of “work” applies only to those granted DSP on or after 1 July 2006.  Any review, therefore, of Mr Crocker’s entitlement to the benefit should apply the 30 hours per week test in assessing whether he had a continuing inability to work under section 94(1)(c) of the Act.  With respect AAT1 did not consider these transitional provisions and therefore erred in applying the 15 hours a week test.

11. In addition, section 94 was further amendment from 3 September 2011 by the Family Assistance and Other Legislation Amendment Act 2011 (Schedule 3 to that Act). This legislative change applied a requirement for a person to have actively participated in a program of support before the person could be found to have a continuing inability to work. Again, these provisions are not applicable to Mr Crocker because they took effect from 3 September 2011 and so the provisions of section 94(2)(aa) do not apply to him.

12. In summary, because Mr Crocker was granted DSP in 2001 and was in receipt of DSP before the provisions applied from 3 September 2011, the assessment in his case of satisfaction of section 94(1)(c) of the Act means that the Tribunal must apply a definition of “work” that is for at least 30 hours per week and, if he meets the other relevant provisions of section 94 in order to qualify for DSP, the requirement for Mr Crocker to have actively participated in a program of support does not apply to him. 

13. The consequence of these savings provisions in relation to Mr Crocker is that, while his continuing eligibility for DSP must be assessed against the Determination which came into effect on 1 January 2012 in regard to his being assigned 20 or more impairment points, if he satisfies that requirement, then the test for whether he has a continuing inability to work is work for at least 30 hours a week.

14. The question before the Tribunal is this: was Mr Crocker qualified for DSP on the date the Department cancelled it, 8 June 2015, in accordance with the law applicable on that date, including the transitional provisions relevant to him?

    Does the Applicant have a physical, intellectual or psychiatric impairment?

15. The Tribunal had before it a medical report by Dr Min Li Chong, Mr Crocker’s treating general practitioner.  Dr Chong lists the condition with the most impact on the Respondent as “chronic back pain; spondylosis lumbar spine”.  She said there was a corroborative diagnosis dated February 2000 from Dr Stephen Esler, a radiologist at the Austin Hospital.  Dr Chong said that Mr Crocker was unable to bend or lift a heavy object, was unable to sit or walk for a prolonged period, and had poor concentration.  She expected the condition to persist for more than 24 months. 

16. The second condition Dr Chong listed was: “cataract operation, no improvement after surgery; eye floaters/cataract.”  She reported that there was a corroborative diagnosis by Dr Joan Cosgrove, ophthalmologist, and the effect on Mr Crocker was “poor vision overall despite previous cataract operation.”  Dr Chong also listed three other medical conditions of the Respondent which she listed as generally well managed and that cause minimal or limited impact on Mr Crocker’s ability to function, namely Dyslipidaemia; Osteopenia and GORD.

17. The Secretary submitted that Mr Crocker satisfied section 94(1)(a) of the Act at the time of cancellation of his DSP in that he was suffering from a “back condition”, “slight vision reduction”, dyslipidaemia, gastroenterological conditions, and osteoporosis.

18. After reviewing the medical evidence before the Tribunal, I find that Mr Crocker satisfies section 94(1)(a) at the date of cancellation: he had a back condition; an eye condition; dyslipidaemia, GORD and osteoporosis.

19. There was mention in AAT1 of bilateral foot pain and an ultrasound of 20 September 2016 confirming the presence of bilateral plantar calcaneal spurs.  Mr Crocker did not mention this condition in his evidence, and the Applicant only mentioned it passing in his Statement of Facts, Issues and Contentions, noting that the Respondent wears inner soles to relieve foot pain.  AAT1 noted that there was no evidence of any treatment being commenced at the time of cancellation of the DSP.  Given the scant information available about this condition, the Tribunal did not consider this condition further in this review.

    What is the correct rating under the Impairment Tables?

20. The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations.  They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (see Part 2, section 5(2)).

21. Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.

22. Section 6(2) also provides that the Impairment Tables may only be applied after a person’s medical history, in relation to the condition causing the impairment, has been considered.

23. Under section 6(3), an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent, and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than two years.

24. Section 6(4) of the Impairment Tables provides that, for a condition to be permanent, it must be fully diagnosed, fully treated and fully stabilised by an appropriately qualified medical practitioner.

25. The Impairment Table Determination also provides, at section 6(8), that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned.  In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.  The Tribunal must therefore consider Mr Crocker’s medical conditions with reference to the applicable Impairment Tables.

    Osteoporosis condition

26. Dr Chong refers to a diagnosis of osteopenia in her medical report dated 22 April 2016.  She listed it as a condition that had minimal or limited impact on Mr Crocker’s ability to function.  Mr Crocker himself told the JCA on 6 June 2016 that this condition is chronic, well managed and has no or minimal impact on his functionality.  The JCA concluded, on the basis of the medical diagnosis and the longevity of the condition that it was a permanent condition, fully diagnosed, fully treated and fully stabilised.

27. Mr Crocker told the Tribunal in the hearing that he “keeps breaking bones” in his sleep because of his osteoporosis.  He said that his last breakage was four weeks before the hearing, which would be in late February-early March 2017.  He said that he had previously broken a bone in his left foot in 2013.  He gave evidence that he was awaiting an x-ray of his left foot and that he had broken ribs in 2017 and 2011.  He said he was not aware of any breakages in 2014 or 2015.  He was asked whether his general practitioner, Dr Chong, knew about these bone fractures, because she does not mention them in her medical reports, and he confirmed that she did know.

28. It would seem to me on this evidence that there may be some deterioration of this longstanding condition, especially in regard to more recent apparent, or suspected, fractures, noting that Mr Crocker was awaiting a radiological report.  However, on balance I conclude that the condition was stabilised at the time of cancellation. 

29. The Tribunal finds, on the basis of the medical assessment and Mr Crocker’s own advice to the JCA that while this position may be regarded as permanent in terms of the Determination, it causes no impairment and under section 11(5) of the Determination it must be assigned a zero rating.

    GORD condition

30. Dr Chong’s report of 22 April 2016 refers to Mr Crocker having gastro oesophageal reflux disease (GORD).  Mr Crocker confirmed to the JCA Dr Chong’s assessment that this condition was well managed and caused minimal impact on his daily life.  He added to the JCA that he takes medication but still experiences reflux pain.  Accordingly, the job capacity assessor contacted Dr Chong and she confirmed that in her view Mr Crocker’s reported symptoms are not significant.

31. The Tribunal allocates no impairment points for the Respondent’s GORD condition.

    Dyslipidaemia condition

32. Dr Chong refers to a diagnosis of dyslipidaemia and listed it as a condition that caused Mr Crocker minimal impact and was generally well managed.  Mr Crocker echoed this assessment and said that this condition did not cause him significant difficulties but said it occasionally led him to experience sweats.  As a result, the assessor contacted Dr Chong who advised that the sweats only occurred if Mr Crocker was not compliant with his medication regimen, and confirmed that, in her opinion, the symptoms are not significant.

33. The Tribunal finds that this condition causes no functional impact and assigns zero points for Mr Crocker’s dyslipidaemia.

    Back condition

34. Dr Chong in her report indicates that the condition that has the most effect on Mr Crocker is his chronic back pain.  She indicates that past treatment has included physiotherapy, analgesia and muscle relaxants, and that Mr Crocker is currently taking prescribed medication to help manage the ongoing low back pain.

35. As mentioned above, Dr Chong said that the functional impact on Mr Crocker was that he was unable to lift heavy objects, could not sit or walk for long periods and had poor concentration.

36. Mr Crocker had had a previous JCA on 11 May 2007.  That 2007 JCA refers to a diagnosis of spondylosis through a CT scan some 15 years before, i.e. in 1992.  However, the Tribunal had before it a medical report of Dr Chong dated 7 October 1998 which refers to an x-ray showing cervical spondylosis and scoliosis of the lumbar and thoracic region in 1986.  The precise date of diagnosis is not at issue; the Tribunal accepts that there is a medical diagnosis of this condition and that it was fully treated and fully stabilised at the time of cancellation of the DSP.  The next step is to assess the functional impact on Mr Crocker.

37. Mr Crocker was reminded that when giving evidence his answers should relate to his medical situation as it was in June 2016 when his DSP was cancelled.  He said that he agreed with his general practitioner’s assessment that he could sit in a car for at least 30 minutes.  He said he could get out of a chair by himself.  He said that when he watched television at home he would sit for a while, and then stand for a while; he has to get up to walk around and stretch because of his back pain.  He said that he could travel by train but it was a bit uncomfortable; he said he generally did not use public transport because his wife drove him around.

38. In terms of domestic chores, Mr Crocker told the Tribunal that he could wash dishes and sweep the floor.  When asked whether he could lift one arm above his shoulders he responded that he could, but not without pain, and that he could only raise either arm for a short period.  He told the Tribunal that his back had been getting worse in the last eight months or so.

39. Mr Crocker said that he could move his head to right or left “but not very far” and he could, when standing, touch both knees “but not without difficulty”.  He said that he could pick up light items from a coffee table from a standing position and, during the hearing, measured his coffee table as being at a height of about 7 or 8 inches above his knees.  The Tribunal notes that this direct evidence from the Respondent is different from the reported assessment of Dr Chong of 23 July 2016 where she stated that Mr Crocker was “unable to perform any housework” and on which AAT1 largely relied in terms of assigning impairment points under Table 4 – Spinal Function.

40. The Tribunal also had before it a medical report dated 23 December 2016 prepared by Dr Philip Haynes, a consultant occupational physician.  Mr Crocker attended Dr Haynes’ rooms and was examined by him.  Dr Haynes recorded:

    Back/Spine

    Inspection of the back did not show deformity.  He reported tenderness to palpitation throughout the lumbar region but there was no evidence of muscle spasm.  On formal testing he demonstrated back flexion to 30˚ but while undressing it was noted that he was able to flex the back to 80˚.  He demonstrated back extension to 10˚ and lateral flexion in either direction to 20˚

41. Dr Haynes was provided with a copy of Table 4 from the Determination and asked by the Department to assign an impairment rating.  His response was as follows:

    In my opinion, Mr Crocker’s chronic back pain is considered to be a permanent condition, in view of underlying degenerative change.

    With reference to the impairment table contained in Schedule 1B of the Act, I consider that Mr Crocker’s back pain gives rise to an assessment of 10 points.  It is likely that the degenerative condition affecting the cervical and the lumbar region causes a moderate functional impact on activities involving spinal function.

    I believe there is no objective evidence of any condition which would prevent Mr Crocker from sitting in a car for at least 30 minutes.  He may have some difficulty sustaining prolonged overhead activities because of neck pain.  He also may have some difficulty turning his head to look over his shoulder because of the degenerative nature in the cervical spine.  There is no objective evidence of a back condition which would prevent him from picking up a light object from knee height and he did not require assistance to get out of a chair.

42. The Tribunal notes that these conclusions marry with Mr Crocker’s evidence at the hearing about the effect of his back condition on what he could or could not do.  The Descriptors for assignment of 20 impairment points under Table 4 of the Determination are not met.  They require that a person be unable to perform any overhead activities, turn his or her head or bend forward to pick up a light object or remain seated for at least 10 minutes.  On the evidence and on Dr Hayne’s medical assessment and applying the relevant Descriptors, I find there is a moderate functional impact on Mr Crocker of his spinal condition – while he can get out of a chair unaided, he is unable to sustain overhead activities and he has some difficulty moving his head.

43. The Tribunal therefore finds that 10 impairment points should be assigned for Mr Crocker’s back condition.

    Cataracts

44. Mr Crocker told Dr Haynes that he was diagnosed with left eye cataract and underwent lens extraction surgery for the cataract in 2008, but he still has ongoing blurred vision.  He told Dr Haynes that he attends an optometrist every few years but is not under the regular care of an ophthalmologist.  He reported reduced vision in both eyes and the presence of floaters.

45. Dr Mark Lazarus, ophthalmic surgeon, examined Mr Crocker on 14 July 2000.  His report was before the Tribunal.  Dr Lazarus confirmed a “traumatic cataract left eye” as a permanent condition but considered that further deterioration was unlikely to occur, that surgery was not needed and that improvement was also unlikely to occur.  However, the Tribunal notes that Dr Lazarus’s assessment was conducted some 17 years ago and on the other more recent medical evidence there has not only been change in Mr Crocker’s visual acuity, but he had also undergone eye surgery.

1. Mr Crocker was asked at the hearing about his sight.  He said he had two bad eyes but his right eye was worse.  He said that he had had a plastic intraocular lens inserted in his right eye but that it “didn’t work”.  He said that when he walks outside he uses spectacles with darkened lenses.  He said he could not see street signs unless right in front of them  and has not been able to read newspapers for many years and uses a magnifying glass as well as spectacles to read text.  He said that he often got others to read things to him that he needed to know.

2. The Respondent told the Tribunal that he could see someone approaching him from when they were at a distance of about six feet.  The JCA of 6 June 2016 recorded that Mr Crocker reported he did not drive because of his visual problems and this was confirmed by Dr Chong and by the Medical Adviser to the Secretary in May 2000. 

3. Dr Chong recorded in her report dated 28 September 2016:

   “He has great difficulty seeing print letters and road signs and his symptoms get worse when the lighting is poor.’

4. The Applicant said, in his Statement of Facts, Issues and Contentions:

   Regarding cataracts, Dr Chong indicated in his [sic] report:

   a.Onset of symptoms was in about 2008,

   b.Symptoms indicated are: poor overall vision

   c.An operation having occurred, but this was later admitted to be an error in his [sic] report with subsequent discussions with the Job Capacity Assessor.

5. However, the discussion with the JCA was to clarify the situation.  Mr Crocker reported he had had surgery on his left eye (which, as it turned out, was not a success), not on his right eye.  The Secretary was therefore mistaken and Dr Chong was, in fact, correct in her report that there had been surgery, although she did not specify in that report which eye has been the subject of surgery.  However, Dr Chong did specify that Mr Crocker had had surgery to his left eye in her subsequent medical report dated 28 September 2016.

6. In evidence, Mr Crocker told the Tribunal that he had been advised to have surgery to his right eye but had declined to pursue this, because of the unsuccessful result of the intraocular lens surgery on his left eye. The Tribunal notes that in terms of assessing whether a condition is fully stabilised, one of the requirements in section 6(6)(b)(ii) of the Determination is to consider when a person has not undertaken reasonable treatment but there is a medical or other compelling reason for the person not to undertake the treatment.  I consider that Mr Crocker was frank about the advice he had been given in relation to surgery on his right eye.  However, I also note that the surgery on his left eye had not had an optimal result.  I consider that, in these circumstances where there may be a fear of significant permanent loss of total vision if the right eye surgery had a similar suboptimal outcome, that Mr Crocker’s stance is reasonable and find that the condition is fully diagnosed, fully treated and fully stabilised in the terms required in the Determination.

7. The relevant impairment table for the assessment of this condition in the Determination is Table 12 – Visual Function.  In considering the Descriptors in Table 12, it would appear from the medical and other evidence that Mr Crocker meets the requirements for the assignment of 10 impairment points.  It was not disputed that he does not drive because of his vision.  He not only uses, as detailed by Dr Chong, both reading and distance spectacles, including darkened spectacles when outside, but in addition deploys a magnifying glass to read (as he said he did during the hearing).  He can function independently in familiar environments and could (and occasionally did) travel independently using public transport.  I find that Mr Crocker’s vision impairment has a moderate functional effect on him and he should be assigned 10 points under Table 12 for his eye condition.

8. The Tribunal finds that the Applicant is assigned a total of 20 impairment points for his medical impairments at the time of cancellation, 10 points under Table 4 – Spinal Function and 10 points under Table 12 – Visual Function. He therefore satisfies section 94(1)(b) of the Act.

   Continuing inability to work

9. The Tribunal must consider whether Mr Crocker has a continuing inability to work for at least 30 hours a week.  The Applicant contended that he relied on Dr Haynes’ opinion that Mr Crocker had a work capacity of 30 hours a week as at 8 June 2015 and within two years from that date, in that he could sustain light factory or process work where he could sit or stand as required and avoid heavy lifting or prolonged overhead activities.

10. The JCA of 6 June 2016 considered that Mr Crocker had a baseline work capacity of between 15 and 22 hours a week.  The assessor noted that Mr Crocker’s back pain affected his concentration (as noted by Dr Chong in her reports).  The JCA also noted that Mr Crocker’s visual impairment “may result in difficulty sustaining fine visual tasks and screen-based activities”.  The JCA also stated that Mr Crocker may have difficulties in high glare contexts and requires specialised eyewear.  It went on:

    Work capacity is assessed at 15-22 hours per week to allow for shorter shifts at work and rest periods between shifts to allow for physical recovery.

    …

    Rationale: Work capacity is expected to remain at 15-22 hours per week as impacts of conditions are likely to be ongoing.

11. The ARO, in reviewing the original decision, considered the JCA and, it appears, spoke to Mr Crocker on 13 July 2016.  The ARO wrote in his or her notes:

    In relation to the work capacity, the assessor considered that the customer’s baseline work capacity is 15-22 hours per week and a future capacity of 15-22.  Due to the limited medical information indicating that there could be ongoing functional impacts, I consider the work capacity to be correct.

12. Dr Haynes, as mentioned above, was asked to answer the following question: State whether Mr Crocker was capable of undertaking suitable employment of at least 30 hours per week (that is, did he have a Continuing Inability to Work)?  Dr Haynes responded that he considered Mr Crocker would have capacity for suitable work duties for at least 30 hours per week.  The Tribunal considers that this question was somewhat leading.  It should have been couched in terms of how many hours a week the doctor considered, in his professional opinion, Mr Crocker could work.  Dr Haynes’ opinion in this regard is quite different from the JCA assessment (on which the Applicant in other respects relies) and the ARO assessment that both considered a maximum weekly work capacity for Mr Crocker was 22 hours with “shorter shifts at work and rest periods between shifts to allow for physical recovery.”

13. I note, in this respect, that AAT1’s conclusion about Mr Crocker’s capacity to work was “substantially less than 15 hours a week”.  I do not come to that conclusion but in this review, as outlined above, Mr Crocker must be assessed under the transitional provisions and, in terms of satisfying a continuing inability to work, whether he had the capacity, at the time of cancellation, to work for “at least 30 hours a week”.  Noting that the JCA is a recommendation only, but taking into account the JCA assessing the Respondent’s impairments together with his work capacity, after careful consideration the Tribunal on balance gives more weight to the 15-22 hours a week work capacity assessment, which was the recommended conclusion of the JCA and which also was the decision of the ARO.  I conclude that Mr Crocker would not be able to work for at least 30 hours a week.  I therefore find that he satisfies the requirements of section 94(1)(c) of the Act of having a continuing inability to work.

14. The conclusion of the Tribunal is that at the time of cancellation Mr Crocker continued to qualify for DSP.  Although it is not relevant to this assessment, the Tribunal notes that the Respondent’s evidence at the hearing about successive bone fractures since the cancellation points to a deterioration in the Respondent’s osteoporosis which may well lead, on a contemporary assessment and with corroborative medical evidence, to that condition being one that has a greater functional impact and which would properly be assigned impairment points under Table 3, if it were being assessed now.

    DECISION

15. The decision of the Social Services and Child Support Division of 11 October 2016 that the Respondent continues to qualify for disability support pension is affirmed.

61.      

62.      

63.     I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of D.J. Morris, Member

.....................................[sgd]...................................

Associate

Dated: 12 July 2017

Date of hearing:	21 April 2017
Solicitors for the Applicant:	Department of Human Services, FOI & Litigation
Advocate for the Applicant:	Mr T de Uray
Respondent:	By telephone