DANIEL TOBAR and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2012] AATA 923

[2012] AATA 923  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/2843
Re	DANIEL TOBAR
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Senior Member Dr K S Levy, RFD
Date	24 December 2012
Place	Brisbane

The Tribunal affirms the decision under review.

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Senior Member Dr K S Levy, RFD

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Impairment Tables – Fully diagnosed, treated and stabilised conditions – Zero impairment points No continuing inability to work – Decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 42, 94, Sch 1B

Social Security (Administration) Act 1999 (Cth) Sch 2

REASONS FOR DECISION

Senior Member Dr K S Levy, RFD

24 December 2012

INTRODUCTION

1. Mr Tobar made an initial application for disability support pension on 19 May 2011. His application was rejected by Centrelink’s decision dated 29 June 2011. He then sought review of that decision by an authorised review officer and then by the Social Security Appeals Tribunal (SSAT) who, on 20 December 2011 and 2 May 2012, respectively, affirmed the decision by Centrelink. He now seeks further review to this Tribunal.

   ISSUES

2. There are two legal questions which arise:

   (1)Does the applicant have an impairment of 20 points or more under s 94(1)(b) of the Social Security Act 1991 (the Act); and

   (2)If the answer to (1) is yes, does he have a continuing inability to work?

   THE LAW

3. The applicant has a number of medical conditions. The law governing an assessment of medical conditions relevant to disability support pension is contained in s 94 of the Act as follows:

   (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

4. To qualify, an applicant must satisfy the requirements set out above on the date of the application or within 13 weeks of that date (see s 42 of the Act and clause 4 of Schedule 2 of the Social Security (Administration) Act 1999 (Cth)). The period in which the applicant must qualify in having 20 impairment points or more is the 13 week period commencing on 19 May 2011 and concluding on 17 August 2011.

   THE IMPAIRMENT TABLES

5. The Impairment Tables are contained in Schedule 1B to the Act and are structured to enable an assessment of the degree of severity of functional impairment which a person experiences compared with a “normal” set of criteria and, thereby, enable an assessment on the impact on a person’s capacity for work. The criteria are set out as objective criteria in relation to the functions of particular conditions.

6. The Introduction to the Impairment Tables (the Introduction) provides interpretive information on the use of the impairment tables. Due to amendments which took place on 1 January 2012, the relevant impairment tables in this case are the pre-January 2012 tables.

7. The criteria essentially prescribe preliminary schema so a rating can be assigned to a condition if these rules have been satisfied. These are:

   (1)A comprehensive history and examination must be taken of the patient (see para 4 of the Introduction) ;

   (2)The condition “must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”. A working diagnosis is to be made firstly on the basis of the best available evidence (see para 4 of the Introduction).

   (3)If (1) and (2) are completed, the condition must be regarded as “permanent” before a rating can be assigned. This is defined as being a condition which has been diagnosed, treated and stabilised and it is more likely than not that it will last greater than two years. “Fully stabilised” means it is unlikely that there will be any significant improvement in the condition in the next two years, with or without any reasonable treatment (see para 5 of the Introduction).

8. Ratings can only be assigned based on the graduations shown in the Tables. That is, they are “spot” assessments and it is not permissible to make an assessment at a point or “spot” between the stated ratings or graduations (see para 10 of the Introduction).

   THE CONDITIONS AND THEIR ASSESSMENTS

9. Mr Tobar has a number of conditions which were submitted under the original application of 19 May 2011. Mr Tobar also pointed out that he cannot work and his medications are expensive. He has also separated from his wife in the past year or so.

10. In the course of lodging documents with the Tribunal in relation to this appeal, the applicant lodged further and more recent material with the Nerang Customer Service Centre of Centrelink. These include a neurologist’s report (24 May 2012); a radiologist’s report (7 June 2012); a medical report by Dr Zukelis (13 August 2012); and a psychologist’s report by Brendan Evans (30 August 2012). These reports provide more recent evidence (particularly the neurologist’s report) but none of these falls within the 13 week period of assessment which is prescribed for the Tribunal to conduct its merits review. Therefore, they cannot assist the Tribunal with the present application.

11. Mr Tobar appeared at the Tribunal hearing and gave evidence with the assistance of an interpreter in the Spanish language.

12. The conditions submitted for assessment fall into two categories: those for which the conditions have been fully diagnosed, treated and stabilised and, therefore, for which a rating can be assigned. There is another group of conditions being those which have not been fully diagnosed, treated or stabilised. As outlined in the Introduction under Schedule 1B of the Act, such conditions cannot be assigned a rating.

    ISSUE 1

    Fully diagnosed, treated and stabilised conditions

13. The fully diagnosed, treated and stabilised conditions are as follows:

    (1)Gastro-oesophageal reflux disease – the evidence in relation to this condition shows it is well managed and it has minimal impact on the applicant’s functioning. In accordance with Table 11.1 of Schedule 1B, a rating of 0 points is appropriate for this condition.

    (2)Asthma – the Job Capacity Assessor report of 6 October 2011 states that this condition is well managed with medication. Mr Tobar experiences some shortness of breath with exertion and has a cough, but it has minimal impact on his ability to function. A rating of 0 points is also relevant here.

    Non-fully diagnosed, treated and stabilised conditions

14. The non-fully diagnosed, treated and stabilised conditions are those for which a rating is not permissible under Schedule 1B. These are as follows:

    (1)Diabetes mellitus – this condition is non-insulin dependent diabetes and, for the period under review, was initially very serious. The applicant had a serious loss of vision but this has been partially recovered as evidenced by the decision of the SSAT. That decision shows there was no mention of visual problems in the medical report of May 2011 and the diagnosis in the August 2011 report was regarded as “uncontrolled”. In the latest report by the general practitioner, dated 29 August 2011, Dr Jeffrey groups diabetes with his consideration of hypertension and other conditions. He notes that poor vision and hypertension were then considerations but still noted that the condition was “uncontrolled”. He also noted the condition would continue for greater than 24 months and said that its impact on the applicant’s ability to function may “fluctuate”.

    Mr Tobar has been seeing a diabetic nurse periodically on the Gold Coast and the respondent submitted that there is some evidence that this condition is now becoming more stabilised (based on evidence which appears to have been given to the SSAT by Mr Tobar himself).

    In any event, the evidence for the 13 week period under review can only be regarded as the condition being not fully diagnosed, treated and stabilised. Therefore, no rating can be assigned.

    (2)Psychiatric conditions (depression, anxiety etc.) – the applicant has stated that he has had various psychological conditions for a number of years. He has given evidence that his depression started as a consequence of the onset of diabetes with a consequence of loss of vision and elevated blood pressure.

    He has prescribed medication for these conditions from his general practitioner. He had not been referred to a psychiatrist at the time of the SSAT hearing and there is no evidence that has occurred since that time. However, the recent report by Brendan Evans, psychologist, indicates some formal assessment is now being undertaken but that is 12 months post the assessment period provided for under the Act.

    This condition may be regarded as fully diagnosed, but not fully treated and stabilised. Therefore, a rating cannot be assigned to these conditions.

    (3)Hypertension – this condition is fully diagnosed but his blood pressure has improved. A recent report by Dr Zukelis in August 2012 predicts significant improvement is to be expected with this condition for the future. However, for the 13 week period under review it was not, at that time, treated or stabilised. Therefore, no rating can be assigned.

    (4)Arthralgia/Musculo-skeletal conditions – there is a recent report by a neurologist, Dr Bonev, which suggests further investigation should be undertaken by a rheumatologist. It is clear, therefore, that this condition is not fully diagnosed, treated or stabilised at present. Therefore, for the 13 week period under review, it is also not fully diagnosed, treated or stabilised. No rating can therefore be assigned to this condition also.

15. From the above, it is apparent that the only conditions for which a rating may be assigned results in a total rating of 0 impairment points for the 13 week period under review. It is clear further investigations and treatment of some of these conditions is proceeding and further developments may be relevant in the future. However, the applicant clearly has not obtained the required 20 impairments points as required by s 94 of the Act.

    ISSUE 2

16. Given Issue 1 has not been satisfied the applicant technically cannot be qualified for disability support pension. Therefore, it is not strictly necessary to consider Issue 2; that is whether Mr Tobar has a “continuing inability to work”. Nevertheless, for the sake of completeness, even if Mr Tobar did obtain 20 impairment points he would have to demonstrate he could not work for 15 hours per week. This is because the definition of “work” in s 94(5) of the Act defines work as being of at least 15 hours per week on rates that are at or above the relevant minimum wage.

17. A “continuing inability to work” is a requirement of s 94(1)(c) and that is elaborated in conditions set out in s 94(2) of the Act. The respondent has submitted that in the job capacity assessor report of 9 June 2011, the applicant, at that time, had a baseline work capacity of 15-22 hours per week and it was then anticipated that the applicant could have greater capacity for work in two years of that date.

18. Whether the applicant’s conditions have improved or deteriorated since that time, must await for those conditions to be fully diagnosed, treated and stabilised and then be assessed for a rating under Schedule 1B of the Act. But for present purposes it is apparent that the applicant’s capacity for work for the 13 week period under review did not reveal a “continuing inability to work” as provided for under the Act.

19. I have concluded, therefore, that Mr Tobar is unsuccessful in his present application as he does not qualify for disability support pension for the 13 week period under review.

    DECISION

    
    
    

20. The decision under review is affirmed.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy RFD

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Associate

Dated 24 December 2012  

Date of hearing	15 November 2012
Applicant	In person
Solicitors for the Respondent	Sparke Helmore