Darryl Kirk and Secretary, Department of Social Services

[2015] AATA 63

[2015] AATA 63

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/3698
Re	Darryl Kirk
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member CR Walsh
Date	30 January 2015
Place	Perth

The Tribunal affirms the decision under review.

…(Sgd) CR Walsh..............

Senior Member CR Walsh

CATCHWORDS

SOCIAL SECURITY – disability support pension (DSP) – applicant has physical “impairments” (being lower back pain and left knee osteoarthritis) – applicant’s impairments not “permanent” – applicant’s impairments not fully diagnosed, treated and stabilised and “permanent” and did not attract 20 points or more under the Impairment Tables on the date he claimed DSP or within 13 weeks thereafter – decision under review affirmed

LEGISLATION

Social Security Act 1991 – s 94(1)(a) – s 94(1)(b) – s 94(1)(c)

Social Security (Administration) Act 1999 – Schedule 2 - clause 3 - clause 4(1)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – s 6(1) – s 6(2) – s 6(3) – s 6(4) – s 6(5) – s 6(6) – s 6(7) – s 10 - Table 2 – Table 3 – Table 4

CASES

Nil

SECONDARY MATERIALS

Guide to Social Security Law – 3.6.3.05

REASONS FOR DECISION

Senior Member CR Walsh

30 January 2015

INTRODUCTION

1. Mr Kirk seeks review of a decision of the Social Security Appeals Tribunal (SSAT), dated 5 June 2014, which affirmed the decision of a Centrelink Authorised Review Officer (ARO), dated 17 September 2013, to reject Mr Kirk’s claim for disability support pension (DSP) on the basis that he did not satisfy all of the requirements for qualification for DSP in s 94(1) of the Social Security Act 1991 (SSA).[1]

   [1] The ARO’s decision affirmed an earlier decision of a Centrelink officer, dated 18 June 2013.

2. Specifically, the SSAT decided that whilst Mr Kirk had physical “impairments” for the purposes of s 94(1)(a) of the SSA, being lower back pain and left knee osteoarthritis, his impairments did not attract 20 points or more under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables), as they were not fully diagnosed, treated and stabilised (and, it follows, “permanent”), on the date Mr Kirk claimed DSP (being 19 February 2013) or within 13 weeks thereafter (being 21 May 2013), as required by s 94(1)(b) of the SSA and, therefore, he did not qualify for DSP.

   FACTUAL & PROCEDURAL BACKGROUND

3. On 19 February 2013, Mr Kirk lodged a Centrelink “Claim for Disability Support Pension” form with Centrelink in relation to his medical conditions, being lower back pain and left knee osteoarthritis (DSP Claim). 

4. On 12 April 2013, Mr Kirk participated, by telephone, in a Job Capacity Assessment (JCA). The JCA was conducted by a registered psychologist, with input from a registered occupational therapist.  The JCA assessor concluded that Mr Kirk’s lower back pain and left knee osteoarthritis were verified by medical evidence but not fully diagnosed, treated and stabilised (First JCA Report).

5. On 28 May 2013, Mr Kirk participated in a further JCA, via telephone, which was again conducted by a registered psychologist, with input from a registered occupational therapist.  On this occasion, the JCA assessor concluded that Mr Kirk’s lower back pain and left knee osteoarthritis were fully diagnosed, but not fully treated and stabilised (Second JCA Report).

6. On 18 June 2013, a Centrelink officer rejected Mr Kirk’s DSP Claim on the basis that he did not have an impairment rating of at least 20 points under the Impairment Tables and, therefore, did not qualify for DSP (Original Decision).

7. On 17 September 2013, an ARO affirmed the Original Decision (ARO Decision).

8. On 17 April 2014, Mr Kirk applied to the SSAT for a review of the ARO Decision and, on 5 June 2014, the SSAT affirmed the ARO Decision (SSAT Decision).

9. In relation to Mr Kirk’s lower back pain, the SSAT stated (at [19]):

   The Tribunal has no doubt that Mr Kirk was suffering significant lower back pain when he lodged his pension claim, however it appears that his GP did not, and still does not, recognise the impact that it is having on his ability to function. Without any substantial information about the management of this condition, the Tribunal finds that it had not been fully diagnosed, treated or stabilised at that time. It was, therefore, not a permanent impairment, which could attract any ratings under the Impairment Tables….

10. As regards Mr Kirk’s left knee osteoarthritis, the SSAT found (at [22]):

    As with Mr Kirk’s back pain, the negligible medical information about his ankle, knee and hip pain precludes the Tribunal from finding that he has any permanent impairment that has been fully diagnosed, treated and stabilised at the date of his pension claim. His lower limb impairments, therefore, cannot attract any rating under the Impairment Tables.

11. On 14 July 2014, Mr Kirk applied to the Tribunal for a review of the SSAT Decision.

    RELEVANT PERIOD

12. The Social Security (Administration) Act 1999 (SSAA) provides that the “start-day” for a qualified DSP claimant is the date of claim:  clause 3 of Schedule 2 of the SSAA.  This means that qualification for DSP and impairment ratings must be determined as at the date of claim.  The only exception is where the person is not qualified on the date of claim but “will … become qualified” and “becomes so qualified” within 13 weeks of lodging a claim, in which case the “start-day” is the day the person became qualified:  clause 4(1) of Schedule 2 of the SSAA.

13. Consequently, the relevant period for consideration of Mr Kirk’s qualification for DSP is from 19 February 2013 (being the date of the DSP Claim) to 21 May 2013 (being 13 weeks after the DSP Claim) (Relevant Period).

    ANALYSIS

    Qualification for DSP – s 94(1) of the SSA

14. The requirements for qualification for DSP are set out in s 94(1) of the SSA, which states:

    94       Qualification for disability support pension

    (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

    [Emphasis added]

    Impairment – s 94(1)(a) of the SSA

15. The term “impairment” is not defined in the SSA. However, s 3 of the Impairment Tables defines “impairment” to mean:

    A loss of functional capacity affecting a person’s ability to work that results from the person’s condition.

16. It is common ground that in the Relevant Period Mr Kirk had physical “impairments”, being lower back pain and left knee osteoarthritis, and he, therefore, satisfied s 94(1)(a) of the SSA.

    Impairments attract 20 points or more under the Impairment Tables – s 94(1)(b)

17. What is in dispute, and what the Tribunal must consider, is whether in the Relevant Period Mr Kirk’s physical “impairments” attracted 20 points or more under the Impairment Tables, as required by s 94(1)(b) of the SSA. If “yes”, the Tribunal must then consider whether Mr Kirk had a “continuing inability to work” within the meaning and for the purposes of s 94(1)(c) of the SSA.

18. A person’s level of impairment must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Impairment Tables.

19. The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered: s 6(2) of the Impairment Tables.

20. The “Introduction” to the Impairment Tables sets out that an impairment rating can only be allocated to an impairment if the condition causing the impairment is “permanent” and the impairment is likely to persist for more than 2 years: s 6(3) of the Impairment Tables.

21. A condition will be “permanent” if it is “fully diagnosed” by an “appropriately qualified medical practitioner”, “fully treated”, “fully stabilised” and is likely to persist for more than 2 years: s 6(4) of the Impairment Tables.

22. An “appropriately qualified medical practitioner” is a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition: s 3 of the Impairment Tables.

23. The phrases “fully diagnosed” and “fully treated” are defined in s 6(5) of the Impairment Tables, as follows:

    Fully diagnosed and fully treated

    (5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraph 6(4)(a) and (b),  the following is to be considered:

    (a)whether there is corroborating evidence of the condition, and

    (b)what treatment or rehabilitation has occurred in relation to the condition, and

    (c)whether treatment is continuing or is planned in the next 2 years. [Emphasis added]

24. The phrase “fully stabilised” is defined in s 6(6) of the Impairment Tables, as follows:

    Fully stabilised

    (6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

    (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)      significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)     there is a medical or other compelling reason for the person not to undertake reasonable treatment. [Emphasis added]

25. The phrase “reasonable treatment” is defined, for the purposes of s 6(6) of the Impairment Tables, in s 6(7) of the Impairment Tables as treatment that is available at a location reasonably accessible to the person, is at a reasonable cost, can reliably be expected to result in a substantial improvement in functional capacity, is regularly undertaken or performed, has a high success rate and carries a low risk to the person.

26. Table 4 of the Impairment Tables, titled “Spinal Function”, is the table used where a person has a “permanent” condition resulting in functional impairment when performing activities involving spinal function. That is, bending or turning the back, trunk or neck. Table 4 of the Impairment Tables provides that an impairment rating ranging from 0 to 30 should be assigned to an impairment involving spinal function, depending upon whether functional impact on activities involving spinal function is nil, mild, moderate, severe or extreme.

27. Table 3 of the Impairment Tables, titled “Lower Limb Function”, is the Table to be used where a person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet. Table 3 of the Impairment Tables provides that an impairment rating ranging from 0 to 30 should be assigned to an impairment involving lower limbs, depending upon whether functional impact on activities requiring the use of lower limbs is nil, mild, moderate, severe or extreme.

    Lower back pain

28. An undated Centrelink “Medical Report” by Dr J Afolabi (First Dr Afolabi Medical Report) referred to Mr Kirk as having “lumbar back pain radiating to the hip” and “recurrent pain in the lumbar area”. 

29. A second “Medical Report” by Dr Afolabi, dated 9 May 2013 (Second Dr Afolabi Medical Report), referred to a diagnosis of “Lumbar L5/51 nerve root compression” and “chronic back pain”.  The Second Dr Afolabi Medical Report also stated that future/planned treatment was “nerve root steroid injection” although Mr Kirk was “not keen”.

30. A CT scan report, which was included with the Second Dr Afolabi Medical Report, concluded “there is a midline and left sided posterolateral disc osteophyte complex which is touching the left S1 nerve root within the lateral recess but also the right S1 nerve root within the lateral recess and my well be causing some compromise”.

31. In the First JCA Report it was noted that there was no current treatment for Mr Kirk’s lower back pain and that Mr Kirk reported “taking analgesia, NSAIDs and resting when required”. The First JCA Report concluded that Mr Kirk’s lower back pain was not fully diagnosed, treated and stabilised due to no medical imaging being available and medical reports indicating that Mr Kirk was not engaged in treatment. Although, Mr Kirk stated he may have surgery in the future. Therefore, no impairment rating was assigned to Mr Kirk’s lower back pain by the JCA assessor in the First JCA Report.

32. In the Second JCA Report it was noted that Mr Kirk’s lower back pain was diagnosed in 2013, the current treatment included medication and avoidance of aggravating activities, and future treatment included a nerve root steroid injection which Mr Kirk was currently considering. The Second JCA Report concluded that given the recent commencement of Mr Kirk’s current medication, the recent diagnosis of his lower back pain by the CT scan and the consideration of a cortisone injection, Mr Kirk’s lower back pain was fully, diagnosed, treated and stabilised.   

33. In the ARO Decision, the ARO found that Mr Kirk’s lower back pain condition was not “permanent” as it had not been fully treated and fully stabilised.  The ARO further stated that there appeared to have been a minimal amount of treatment other than painkillers and anti-inflammatories, no physiotherapy at the date of the DSP Claim or within 13 weeks of that date, and no hydrotherapy, rehabilitation or pain management program. Therefore, no impairment rating was assigned to Mr Kirk’s lower back pain condition by the ARO in the ARO Decision.

34. The SSAT Decision summarises Mr Kirk’s evidence before the SSAT, concerning his lower back pain condition (at [16]), as follows:

    ·    He injured his back when he was 17 years old. However, that did not prevent him from undertaking heavy duties and he worked on a “cray boat” until he was 45 years old;

    ·    He has worked as a truck driver but had to stop due to the jarring of his back when driving;

    ·    At the date of his DSP claim, if he moved incorrectly or did any heavy work he would experience pain;

    ·    His GP referred him for physiotherapy approximately 2 months ago and he had been attending until the day before the hearing;

    ·    He hardly ever takes painkillers – only when he is in agony as they “knock him flat”;

    ·    He lives by himself and does all his own housework, cooking and shopping; and

    ·    He can drive for 100km to visit his mother, but sometimes needs to stop half way because of pain.   

35. Mr Kirk told this Tribunal that his lower back pain condition had deteriorated since the DSP Claim and, even further, since the SSAT Decision.  However, the present state of Mr Kirk’s lower back condition, whilst potentially relevant to any future DSP claim by Mr Kirk, is not relevant to the state of Mr Kirk’s lower back condition as at the Relevant Period and, it follows, for the purposes of this application.

36. Even if Mr Kirk’s lower back pain condition was “fully diagnosed” as at the Relevant Period (which appears, based on the medical evidence, not to be the case), since there had been a minimal amount of investigations or treatments undertaken for this condition as at the Relevant Period, Mr Kirk’s lower back pain was not fully treated and stabilised as at the Relevant Period and was, therefore, not a “permanent” condition as at the Relevant Period. As such, Mr Kirk’s lower back pain could not be assigned any impairment points under Table 4 of the Impairment Tables as at the Relevant Period.

    Left knee osteoarthritis

37. The First Dr Afolabi Medical Report stated that Mr Kirk had a confirmed diagnosis of advanced osteoarthritis in his left knee, there was no current treatment, there had been no past treatment and there was no future/planned treatment for the condition. 

38. The Second Dr Afolabi Medical Report described Mr Kirk’s osteoarthritis knee condition as one which was generally well managed and caused limited or minimal impact on his ability to function and stated that the treatment for it was anti-inflammatory medication and that the condition affected Mr Kirk’s mobility.

39. The First JCA Report stated that Mr Kirk had osteoarthritis on his left knee, his condition was considered to be verified by medical evidence but not fully diagnosed, treated and stabilised due to no medical imaging being available and medical reports indicating that Mr Kirk was not engaged in treatment, although Mr Kirk stated that he may have surgery in the future. Consequently, no impairment rating was assigned to Mr Kirk’s left knee osteoarthritis by the JCA assessor in the First JCA Report.   

40. The Second JCA Report stated that Mr Kirk had been diagnosed with osteoarthritis in his left knee, Mr Kirk had reported an onset date of approximately 2008, the current treatment included medication and avoidance of aggravating activities and there was “no current or history of specialist review/assessment or secondary rehabilitative tx (eg physiotherapy)”.  The Second JCA Report concluded that Mr Kirk’s left knee osteoarthritis condition was “permanent” but not fully diagnosed, treated and stabilised. Therefore, no impairment rating was assigned by the JCA assessor for this condition in the Second JCA Report.    

41. In the ARO Decision, the ARO found that Mr Kirk’s left knee osteoarthritis was not “permanent” as it had not been fully treated and fully stabilised.  The ARO Decision further stated that, based on a recent medical report, this condition was well managed and had minimal or limited functional impact on Mr Kirk. No impairment rating was assigned to Mr Kirk’s left knee osteoarthritis by the ARO in the ARO Decision.

42. The SSAT Decision summarises Mr Kirk’s evidence before the SSAT, concerning his left knee osteoarthritis (at [20]), as follows:

    ·    he was in a car accident when he was 13 years old and broke 27 bones in his body;

    ·    he nearly lost his left foot form the accident and, as a result of favouring his injured foot, over the years he has gradually developed pain in his other foot and both knees;

    ·    he never needs to take painkillers for his foot or knee pain; and

    ·    he has not had any x-rays or scans of the joints in his legs.  

43. Based on the relevant medical evidence, Mr Kirk’s left knee osteoarthritis was fully diagnosed in the Relevant Period. However, there is insufficient medical evidence that, as at the Relevant Period, Mr Kirk’s left knee osteoarthritis condition could or would be treated. As such, Mr Kirk’s left knee osteoarthritis was not fully treated and fully stabilised as at the Relevant Period, was not a “permanent” impairment as at the Relevant Period and, consequently, could not be assigned an impairment rating under Table 3 of the Impairment Tables.

44. Even if Mr Kirk’s left knee osteoarthritis was fully treated, diagnosed and stabilised as at Relevant Period, the medical evidence suggests that this condition had limited or minimal functional impact on Mr Kirk as at the Relevant Period such that no points could be assigned to this condition under Table 3 of the Impairment Tables.

    Mr Kirk’s overall impairment rating

45. For the above reasons, the Tribunal finds that, as at the Relevant Period, Mr Kirk’s physical “impairments”, being lower back pain and left knee osteoarthritis, were not “permanent” and did not attract a rating of 20 points or more under the Impairment Tables for the purposes of s 94(1)(b) of the SSA. Consequently, Mr Kirk was not qualified for DSP as at the Relevant Period.

    Continuing inability to work – s 94(1)(c) of the SSA

1. Since the Tribunal finds that Mr Kirk’s physical “impairments” (being lower back pain and left knee osteoarthritis) did not attract a rating of at least 20 points or more under the Impairment Tables as at the Relevant Period, it is unnecessary to consider whether Mr Kirk had a “continuing inability to work” for the purposes of s 94(1)(c)(i) of the SSA.

   DECISION

2. For the above reasons, the Tribunal affirms the SSAT Decision.

I certify that the preceding 47 (forty seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh.

..(Sgd) T Freeman...........

Associate

Dated:  30 February 2015

Date of hearing	28 January 2015
Representative for the Applicant	Self
Representative for the Respondent	Ms S Vahala
Solicitors for the Respondent	Australian Government Solicitor