David MacDonald and Secretary, Department of Social Services

[2015] AATA 465

[2015] AATA 465

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/5906
Re	David MacDonald
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	26 May 2015
Date of written reasons	30 June 2015
Place	Brisbane

The decision under review is affirmed.

.............................[Sgd]...........................................

Dr P McDermott RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – DSP – whether applicant had relevant impairment – whether impairment rating of at least 20 points – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 6, 11

CASES

Fanning and Secretary, Department of Social Servcies [2014] AATA 447

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

26 May 2015

1. ORAL DECISION      [1.11 pm]

2. SENIOR MEMBER:

3. Mr MacDonald lodged a claim for disability support pension on 25 June 2014. He contacted the department on 24 June 2014 and lodged his claim on 25 June 2013. Because he contacted the department within a fortnight of lodging his claim, if the claim is to be granted Mr MacDonald is entitled to be paid disability support pension from the time of first contact.

4. What I have now got to consider is whether the applicant satisfies s 94(1) of the Social Security Act 1991 (Cth) (“the Act”). At the start of the hearing I outlined to Mr MacDonald relevant provisions in s 94(1) of the Act in T3 at pp 7-8. At the outset I stated that Mr MacDonald satisfies s 94(1)(a) in having impairments. The disabilities that he claims are listed in his application form: osteoarthritis, morbid obesity, hypertension and gout. There is medical evidence before me that he has these conditions and there is no issue that the applicant certainly has these impairments. As well as these impairments that he claims in his form, it appears that there may also be a depression condition but the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination) provides that any condition of depression has to be diagnosed by a clinical psychologist, if not confirmed by a psychiatrist, and so there is no evidence before me of that condition being diagnosed.

5. The relevant period that I am considering for determining his eligibility is from 25 June 2014 to 24 September 2014.

6. Mr MacDonald is eligible for disability support pension provided he satisfies paragraphs (b) and (c) of s 94(1) of the Act. There is no issue with the other provisions in subsection (1). He has turned 16. Paragraph (da) does not apply and he certainly satisfies paragraph (e); he is an Australian resident. He has got qualifying residence so there is no problem with him satisfying the other provisions in subsection (1).

7. In determining whether Mr MacDonald satisfies s 94(1)(b) of the Act, I have to ascertain whether his impairments total 20 points or more under the Impairment Tables.

8. If a particular impairment does not result in a functional impairment I am not authorised to assign a rating of more than zero for that impairment; that is provided for in s11(5) of the Determination. The Determination that I have to apply is the Determination which appears in T3 from p 12 onwards. That Determination contains the Impairment Tables and was made by the responsible minister on 6 December 2011. The Determination is entitled the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth). The Determination came into force in 2012 and applies to this claim by Mr MacDonald.

9. I have already mentioned that s 11(5) of the Determination provides that an impairment rating other than a zero rating cannot be assigned where there is no functional impact. This applies to the gout condition which has not troubled Mr MacDonald for some years; he gave evidence confirming that the gout condition does not trouble him. So I am unable to assign a rating of more than zero points for the gout condition. I also accept that the gout condition does not trouble Mr MacDonald because the gout condition is not referred to in Dr Dressler's report dated 24 June 2014 at T20. There are some other conditions that are referred to in Dr Dressler’s report which he, as the treating doctor, has listed as being generally well-managed and which cause minimal or limited impact on the ability to function. These are hypertension, hyperlipidaemia which is, of course, the cholesterol issue, and morbid obesity. Because of the operation of s 11(5) of the Determination I am not able to assign an impairment rating other than a zero rating for these conditions.

10. That leaves me to consider the other conditions. Mr MacDonald has got an upper limb function condition. The upper limb function can be appropriately rated under Table 2. This is because the Introduction to Table 2 which appears at p 26 of the T documents states that Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms. Dr Dressler in his report dated 24 June 2014 has confirmed that there are radiology reports which document osteoarthritis of both wrists, the left ankle, the right elbow and the knees. Dr Dressler in commenting upon the ability of the patient to function has commented that Mr MacDonald has poor mobility generally and reduced dexterity of the hands.

11. In considering the upper limb condition I have considered what Mr MacDonald told the Social Security Appeals Tribunal. Mr MacDonald stated that he can lift a one litre or two litre carton of milk but would use both hands for the two litre carton. He stated that sometimes his left wrist is not working and this prevents him from driving the car because he cannot release the handbrake. Sometimes it is difficult to open the fridge with his hands and lifting heavier items of washing is difficult. Mr MacDonald stated that he sometimes finds it hard to put on his slip-on shoes because of the strain in his wrists as well as his knees. Opening a can or a jar is difficult and he will either seek the assistance of a neighbour or tap the lid of a jar with a spoon until it breaks the seal. He sometimes can write but takes his time writing because he gets cramping sensations if he does too much. He experiences some difficulty doing up buttons and picking up a biro. He can use a computer but he does not own one, and he cannot type fast. He does not have trouble turning the pages of a book.

12. I consider that Mr MacDonald can manage most daily activities requiring the use of his hands and arms, but has difficulty with picking up heavier objects such as a two litre carton of liquid, with doing up buttons and with handling very small objects. I think that a rating of five points is a fair rating to give for that condition under Table 2 which is a mild functional impact.

13. To achieve a rating of 10 points which Mr MacDonald has sought, he has to have difficulty with most of the activities using hands or arms and while it is difficult to write or handle small objects and while he can use a keyboard I do not think that he satisfies most of those activities listed under the Table 10. It is not possible for me to give an intermediate rating for the upper limb condition because s 11(1)(b) of the Determination provides that a rating cannot be assigned between consecutive impairment ratings. In considering the upper limb condition I should mention that Mr MacDonald still has a driver’s licence and has a vehicle. He informed the Social Security Appeals Tribunal he was able to drive for 25 minutes.

14. The Secretary has submitted that treatment for the osteoarthritis condition could be diet, referral to a dietician or hydrotherapy. What is important is that Mr MacDonald's own treating doctor in his latest report has stated that weight loss might be beneficial in some functional improvement and that he has been referred to a specialist dietician in October 2014. That report was written after the Social Security Appeals Tribunal gave that decision. I give weight to the assessment of Mr MacDonald's own treating doctor who considers that weight loss might be beneficial and he has referred him to a specialist dietician in October 2014. This referral was made after the relevant period from 25 June 2014 to 24 September 2014. I have come to the conclusion that the condition has not been fully treated within the relevant period and on that basis alone the condition cannot be assigned a rating as it is not permanent.

15. One of the matters I have considered about Mr MacDonald being treated by a dietician is whether that treatment can be regarded as reasonable in terms of the Determination. Under s 6(7) of the Determination reasonable treatment is defined to be treatment at a location reasonably accessible at a reasonable cost. Mr Seely gave evidence that that this treatment would be available at no charge to the applicant and the general practitioner can outline a plan for a dietician to give assistance to him. Mr Seely also gave evidence that on his experience he expected there to be an improvement if Mr MacDonald did lose weight. I actually consider that there would certainly be improvement. I am relying not just on what Mr Seely said but I also rely on the recent evidence of Mr MacDonald's own treating doctor who says that “weight loss might be beneficial in some functional improvement”. Dr Tut in his 2001 report at T5 had referred to the arthritis in the knees and had recommended weight reduction and diet. I do not think the osteoarthritis condition as far as it affects the lower limbs can fairly be regarded as being fully treated within that period and I do not consider that an impairment rating can be applied to the lower limbs under Table 3.

16. I should also mention that in considering paragraphs s 6(5)-(6) of the Determination on

    
    

    p 18 of the T documents a Presidential Member of this Tribunal, Deputy President Handley, in Fanning and Secretary, Department of Social Servcies [2014] AATA 447 at [33], has explained that the language in these provisions is forward-looking language. In considering whether a condition is fully stabilised the question for the Tribunal is whether any reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years.

17. Now, the issue of whether any reasonable treatment is unlikely to result in significant functional improvement is really answered by Dr Dressler’s report of 11 February 2015 which contains his opinion that weight loss might be beneficial in some functional improvement. Because of that it would not be possible or fair for me to rule that further reasonable treatment is unlikely to result in significant functional improvement and on the issue of whether a person can undertake work in the next two years.

18. I consider the spinal condition of Mr MacDonald. Under Table 4 a spinal function can properly be assigned under the Determination but one matter of concern to me is that according to the report of Dr Dressler he has only had physiotherapy for the spine and lower limbs since October 2014. This referral was made after the relevant period from 25 June 2014 to 24 September 2014. I therefore do not consider that I can conclude that the spine condition has been fully treated within the relevant period when the treatment actually commenced after that period.

19. My conclusion is that under Table 2 Mr MacDonald should be assigned a rating of five points for the upper limb function. I find that he is not eligible for Disability Support Pension as he does not satisfy s 94(1)(b) of the Act which requires a total of 20 impairment points.

20. Because I have ruled that Mr MacDonald does not satisfy s 94(1)(b) of the Act it is not necessary for me to consider s 94(1)(c) of the Act. However, I should state that the report of the job capacity assessor who outlined his conclusions about the work capacity of the applicant is in evidence. I reminded Mr MacDonald that if there was any aspect of that report of the job capacity assessor he wishes to challenge he could ask questions of the job capacity assessor in cross-examination but he did not challenge the conclusion about his work capacity. This may be because Mr MacDonald has indicated that he would like to work in the future.

    CONCLUSION

21. My decision is that I affirm the decision under review because Mr MacDonald is not eligible for disability support pension and I will give a record of that decision to Mr MacDonald.

22. I would also recommend that Mr MacDonald be given some assistance. Perhaps if Centrelink can put him on their social security roster to see whether he is made aware of what relevant supports are available because hydrotherapy might be beneficial to him. However, I do not think it is fair on the state of the evidence before me to make any ruling about whether hydrotherapy is reasonable treatment when that question has not been considered by the treating doctor of Mr MacDonald.

    DECISION

23. I affirm the decision under review.

I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member

........................[Sgd]................................................

Associate

Dated 30 June 2015

Date(s) of hearing	26 May 2015
Applicant	In person
Solicitors for the Respondent	Sparke Helmore Lawyers