David LEWIS and Secretary, Department of Social Services

[2014] AATA 281

[2014] AATA 281 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/5807
Re	David LEWIS
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	9 May 2014
Place	Perth

The decision under review is affirmed.

.................................[SGD].......................................

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY - Application for Disability Support Pension - Whether the Applicant has any Permanent Conditions - Whether the Applicant has Obtained 20 Points under the Impairment Tables

LEGISLATION

Social Security Act 1991 (Cth)

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

Dr Ion Alexander, Member

9 May 2014

BACKGROUND

1. On 13 May 2013 Mr Lewis lodged a claim for Disability Support pension (DSP) on the basis that his various medical conditions were having an impact on his ability to function. The conditions included osteoarthritis of his back, neck, and shoulders, cysts on the wrist, tendinitis of the right elbow and ischaemic heart disease.

2. Mr Lewis now claims that he suffers from additional medical conditions of the right shoulder, right wrist and left wrist that also have an impact on his ability to function.

3. Mr Lewis’ claim was rejected by Centrelink, both initially and on internal review, and subsequently the Social Security Appeals Tribunal (SSAT) on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act) in particular s 94(1)(b) in that he did not have an impairment rating of at least 20 points under the Impairment Tables.

4. In this proceeding Mr Lewis seeks review of the decision of the SSAT.

5. At the hearing, which was conducted by video-link, Mr Lewis was self- represented but did give oral evidence.

   ISSUES

6. In order to be eligible for DSP Mr Lewis had to satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim in accordance with the requirements of the Social Security (Administration) Act 1999  (the Assessment period), that is, 13 May 2013 to 12 August 2013. .

7. It is agreed that Mr Lewis satisfied s 94(1)(a) of the Act.

8. The respondent submits that Mr Lewis’ correct rating was 10 points under Impairment Table 4 - Spinal Function and therefore did not satisfy s 94(1)(b) of the Act.

9. The Respondent also submits that if the Tribunal finds that the Mr Lewis’ rating under the Impairment Tables was 20 points or more he did not have a continuing inability to work as required by s 94(1)(c).

10. Mr Lewis claims that he was not correctly assessed and that he should have had a rating of at least 20 points and that he does have a continuing inability to work.

11. Therefore the issues to be decided are whether during the assessment period Mr Lewis had a rating of 20 points or more under the Impairment Tables and, if so, whether he had a continuing inability to work.

    IMPAIRMENT RATING

12. On 12 July 2013, Mr Lewis attended a face to face Job Capacity Assessment (JCA).

13. In a report dated 15 July 2013, the assessor confirmed that he suffered from severe generalised osteoarthritis involving his back, neck and shoulders and that the condition was permanent, fully diagnosed, treated and stabilised.

14. The assessor concluded that Mr Lewis’s condition caused a moderate functional impact on activities involving spinal function and recommended a rating of 10 points under Table 4 (Spinal Function).

15. The rating appears to have been based on the basis that Mr Lewis was able to sit in or drive in a car for at least 30 minutes and was unable to sustain overhead activities.

16. The assessor also concluded that Mr Lewis had a baseline work capacity of 8-14 hours per week but within 2 years, with intervention, his work capacity would be 15-22 hours per week.

17. In a subsequent JCA report dated 18 September 2013, Mr Lewis was found to have an additional impairment rating of 10 points under Table 4 and 10 Points under Table 2 (upper limb Function) because of subacromial bursitis and an intrasubstance tear at the supraspinatus insertion.

    MR LEWIS’ EVIDENCE

18. Mr Lewis explained that he applied for DSP after he collapsed while in the bathroom when bending over to pick up a toothbrush. He said his legs gave out from under him but that there was no pain. Subsequently this has happened on up to 6 occasions with no current explanation. He also frequently feels weak in his legs and has needed to use a walking stick for at least 18 months.

19. When going shopping, Mr Lewis parks near a shopping trolley bay so that he can use a trolley like a walking frame to help him get around the shops.

20. Mr Lewis explained that has had a longstanding problem with pain in his back and neck as well as physical limitations. He has had various treatments with little effect but has obtained some relief of his neck pain by using a self-made traction device with a rope.

21. He described difficulties in getting up from a chair and standing up in the shower in order to shave because he was unable to bend over a sink.

22. In response to questions from the Tribunal Mr Lewis described difficulty in turning his head laterally without moving his shoulders or torso and indicated that he has had this difficulty for some years.

23. Mr Lewis explained that in early 2013 he purchased slip-on casual shoes because he could no longer bend over to tie his shoe laces.

24. In respect of his condition of ischaemic heart disease, cysts on the wrist and elbow tendonitis Mr Lewis conceded that currently these conditions had little or no functional impact.

    MEDICAL EVIDENCE

25. In a brief letter dated 1 May 2013, Mr Khan, pharmacist and licensed acupuncturist, states that Mr Lewis had been a patient for several years who initially presented with severe debilitating neck pain and right shoulder pain radiating down his arm and that he will require regular neck traction.

26. Mr Khan also states that Mr Lewis has had occasional right elbow tendonitis and was currently under treatment for a right rotator cuff injury with needle and laser acupuncture.

27. A copy of a Health Summary Sheet from Mr Lewis’  General Practitioner, Dr Wright, printed on 9 May 2013, lists current active problems as “low back pain, neck pain and ischaemic heart disease”.

28. In a very brief letter dated 8 May 2013, Ms Rodriguez, Naturopath, notes that Mr Lewis attended her clinic between February and May 2011 and presented with extreme neck and lower back pain which resulted in reduced lateral rotation of the neck.

29. In a brief undated letter Dr Estash, Chiropractor, notes that Mr Lewis suffers from “severe degeneration of the lumbar, thoracic and cervical spine”.

30. In a Medical Report dated 9 May 2013, Dr Wright lists “generalised osteoarthritis. Back, neck, shoulders” as a medical condition with most impact.

31. Dr Wright describes the impact on ability to function as “decreased ability to move, lift, do daily tasks. In significant pain only a daily basis.”

32. Dr Wright also lists ischaemic heart disease, cysts on wrist and tendonitis right elbow as conditions that cause minimal or limited minimal impact on ability to function.

33. An ultrasound examination of the right shoulder performed on 6 August 2013 with the clinical details noted as “painful right shoulder with 4-5 month history” is reported as showing subacromial bursitis and a moderate intrasubstance tear at the mid-supraspinatus.

34. In a very brief letter dated 30 August 2013, Dr Wright states that Mr Lewis was having difficulty doing 8-14 hours work per week due to severe back and right shoulder pain.

35. X-rays of the right and left wrist, performed on 20 September 2013, are reported as showing degenerative changes in the right wrist and features suggesting Kienbock’s disease in the left wrist.

36. In a brief letter dated 25 September 2013, Dr Wright states among other issues that Mr Lewis now has significant pain to his right shoulder due to a torn tendon.

37. In a letter dated 18 October 2013, Dr Wright notes that Mr Lewis suffers significant pain to his right shoulder because of a torn tendon and has also been diagnosed with “Keinbocks disease affecting both wrists”.

38. Two reports dated 31 October 2013, describe ultrasound guided injection of corticosteroid in the right and left wrist.

    CONSIDERATION

39. There is no dispute that Mr Lewis suffers various medical conditions that cause impairment and which have an impact on his ability to function.

40. The Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011 (the Determination) requires that an impairment rating can only be assigned to an impairment, if, a condition causing that impairment is permanent.

41. The Determination also provides that a condition is permanent if it has been fully diagnosed, fully treated, fully stabilised and is more likely than not to persist for more than two years.

42. There is no dispute that at the relevant time Mr Lewis’ conditions of osteoarthritis of the spine and ischemic heart disease were permanent and that an impairment rating could assigned.

43. The JCA recommended 10 points under Table 4 Spinal Function and 0 points under Table 1 in respect of the ischaemic heart disease.

44. Mr Lewis submits that his spinal condition should have been considered as severe and that his rating should have been at least 20 points.

45. I accept that Mr Lewis’ oral evidence tends to support his submission that his spinal condition is severe and that his claim to be unable to turn his head laterally without moving his shoulders or torso is consistent with an impairment rating of 20 points under Table 4.

46. However, the Introduction to Table 4 clearly requires that “Self–report of symptoms alone is insufficient” and that “There must be corroborating evidence of the person’s impairment”.  

47. The medical evidence in this matter can best be described as superficial and in my view does not provide sufficient evidence to support Mr Lewis’ submission in respect of the severity of the functional impact of his spinal condition.

48. The only descriptions of functional impact in respect of the Mr Lewis spine are “reduced lateral rotation of the neck” by Ms Rodriguez and “decreased ability to move, lift, do daily tasks” by Dr Wright which in my view do provide sufficient corroboration.

49. On the available evidence I have no difficulty with the JCA recommendation of 10 points under Table 4.

50. The issue of Mr Lewis’ right shoulder is problematic as the only meaningful information as to diagnosis is the ultrasound which was performed on the 6 August 2013, six days before the end of the assessment period.

51. Dr Wright, in his report of 9 May 2013, did not describe any impairment of the right shoulder and does not refer to the right shoulder in any correspondence until 30 August 2013, which is outside the assessment period.

52. Also, in the letter of 30 August 2013, and in subsequent letters Dr Wright does not provide sufficient information with regard to treatment, prognosis or functional impact.

53. It follows that I am not satisfied that Mr Lewis’ shoulder condition was fully diagnosed, treated and stabilised during the assessment period.

54. Mr Lewis’s wrist conditions were not diagnosed until September 2013 and he was still being treated in October 2013 well after the end of the assessment period.

55. Therefore I am not satisfied that Mr Lewis’ wrist conditions were fully diagnosed, treated and stabilised during the assessment period.

    DECISION

56. For reason set out above I am satisfied that during the assessment period Mr Lewis’  rating under the Impairment Tables was 10 points .

57. This means that Mr Lewis did not satisfy the requirements of s 94(1)(b) and therefore was not qualified for DSP.

58. The decision under review is affirmed.

I certify that the preceding 58 (fifty eight) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander

...................................[SGD T Freeman].....................................

Associate

Dated 9 May 2014

Date of hearing	24 April 2014
Applicant	In person
Representative for the Respondent	Ms A Ladhams
Solicitors for the Respondent	Australian Government Solicitor