De Alwis and Secretary, Department of Social Services

[2014] AATA 318

[2014] AATA 318 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/5453
Re	Alec De Alwis
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	21 May 2014
Place	Melbourne

The Tribunal affirms the decision under review

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

Miss E A Shanahan, Member

SOCIAL SECURITY – disability support pension – impairment rating – failure to satisfy s 94(1)(b) of the Social Security Act 1991 – decision affirmed

Legislation

Social Security Act 1991 section 94(1)

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

REASONS FOR DECISION

Miss E A Shanahan, Member

21 May 2014

1. The applicant requested the Tribunal review the matter without a hearing and on consideration of the material presented. The respondent did not object. It appeared to the Tribunal that the issues for determination on the review could be adequately determined in the absence of the parties. Therefore, pursuant to s 34J of the Administrative Appeals Tribunal Act 1975, the Tribunal agreed to review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing. The Tribunal has been provided with the T-documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 prepared and filed by the respondent.  Mr Pat Carson has made various submissions on behalf of the applicant. 

2. Mr De Alwis lodged an application for disability support pension (DSP) on 28 August 2012.  His claim related to his incapacity arising from bilateral osteoarthritis of his knees.  A Centrelink delegate determined that Mr De Alwis did not qualify for the DSP on 8 September 2012 as he did not attract an impairment rating of 20 points.  A subsequent review by an authorised review officer (ARO) dated 4 June 2013 confirmed the decision of the Centrelink delegate. 

3. Mr De Alwis sought a review by the Social Security Appeals Tribunal (SSAT) who heard the matter on 25 September 2013 and affirmed the ARO’s decision. The SSAT estimated Mr De Alwis’s impairment rating at 10 points; thus he did not satisfy s 94(1)(b) of the Social Security Act 1991 (the Act).

4. Mr De Alwis lodged an application for review by the Administrative Appeals Tribunal (the AAT) on 25 October 2013. 

   BACKGROUND TO THE APPLICATION

5. Mr De Alwis is 64 years old and will qualify for the Age Pension in August 2014.  He ceased work in 2010 due to his osteoarthritis.  He has worked in a variety of physically demanding jobs throughout his life.  In 2006, he was involved in a motor vehicle accident and since then he has suffered from chronic pain in his neck, left shoulder and back.  He has hypertension which is treated, but according to Mr De Alwis, varies in terms of its control.  Mr De Alwis also suffers from glaucoma for which he takes drops daily but it appears that the condition is stable and affects his eyesight predominantly at night.  His most symptomatic medical condition is osteoarthritis which affects both knees. 

6. Dr Melissa Soares, Mr De Alwis’s long-standing general practitioner has certified that his bilateral knee osteoarthritis is permanent and the date of onset of this condition was 29 May 2008.  Dr Soares has provided a number of medical certificates, the latest of which dated 5 September 2013, nominates the medical conditions from which Mr De Alwis suffers as bilateral knee osteoarthritis, hypertension and bilateral elbow arthritis and heal spurs. The certificate states that Mr De Alwis is on a [hospital] waiting list for surgery [to his knees].

7. Mr De Alwis has undergone four job capacity assessments (JCA) between December 2010 and 5 September 2012.  The first of these related only to his complaint of back pain which was not considered to be fully diagnosed, treated or stabilised.  The second JCA took place on 6 September 2011 and the medical conditions of back pain/spinal disorder, shoulder and upper arm pain/disorder, osteoarthritis of both knees, arthritis of the fingers and glaucoma were recorded but none fulfilled all three requirements of being fully diagnosed, treated and stabilised and therefore did not attract an impairment rating.  The third JCA conducted on 26 March 2012, but not submitted to Centrelink until 3 April 2012, considered the condition of glaucoma, which was found to have a minimal impact. It also considered Mr De Alwis’ bilateral knee osteoarthritis, which was found to be fully diagnosed, but not fully treated or stabilised as Mr De Alwis was on a waiting list for surgery and had been for four months.

8. The final JCA of 5 September 2012 only considered Mr De Alwis’ osteoarthritis of the knees.  Again, this was determined to be fully diagnosed and permanent but not fully treated as further surgical intervention was being considered.  It did not attract an impairment rating and the job capacity assessor considered Mr De Alwis’ capacity for work within two years with intervention to be 15 to 22 hours per week with suitable work being a bench assembler or a light process worker.

9. In his submission of 4 December 2013, Mr De Alwis has addressed his symptomatology of persisting chronic back pain and bilateral knee pain with limitation in the length of sitting, standing, walking and overall reduced mobility.  He states that he does not attend shopping centres and supermarkets and he could not walk around such centres. He limits himself to driving a short distance to his pharmacy to collect his medication.  While he is able to stand without assistance he describes it as being a struggle and wherever possible he seeks assistance.  He does not use public transport as he is certain he would not be able to do so. He has requested that his hearing be conducted on the papers because of his inability to use public transport, his limited mobility and his constant pain levels.  All of these symptoms have been confirmed by Dr Soares in her medical certificate. 

10. In Mr De Alwis’ most recent submission of 31 March 2014, he brought the Tribunal’s attention to the part of the SSAT’s decision wherein Member H Schwarz reported that Mr De Alwis was capable of getting out of a kitchen chair without help.  Mr De Alwis has informed this Tribunal that he does not sit in a chair in the kitchen but uses a stool from which he can get to his feet with ease and without assistance.  He states by using such stools he can effectively half sit and half stand when he eats a meal, drinks coffee, tea etcetera.  Mr De Alwis cannot manage stairs and his standing time is limited to 20 minutes, driving to five minutes and walking to five - six minutes.

11. The Tribunal has been provided with limited records from the Monash Medical Centre, Orthopaedic Unit, located at the Moorabbin campus.  Mr De Alwis first attended the Orthopaedic Outpatient Clinic at the Monash Medical Centre on 17 November 2011.  The outpatient progress notes records that Mr De Alwis reported a 12-month history of bilateral knee pain, joint swelling and limitation of walking to 10 minutes.  He further reported that his pain was associated with stiffness, occasional clicking of the joints and giving way.  He also reported that he had no difficulty with self-care but did have difficulty getting into his car.  The history of hypertension was noted as was an absence of ischaemic heart disease. 

12. On examination of the knees, no effusion was detected. Mr De Alwis was tender over the medial aspect of both joint lines and the range of movement was reduced on the left side being 0 to 95 degrees compared to the right 0 to 140 degrees.  His patella-femoral joint was noted to track normally.  A plain x-ray of the knees was described as showing very mild changes. A diagnosis of early osteoarthritic degeneration in the knees and a possible meniscal tear was made.  Bilateral knee arthroscopy was recommended and Mr De Alwis was presumably placed on a waiting list as he underwent bilateral knee arthroscopies on 15 August 2012.  The clinical notes describe the operative findings as bilateral medial compartment osteoarthritis with posterior medial meniscal tears.  

13. Mr De Alwis was reviewed in the outpatient clinic on 29 August 2012 at which time he was mobilising on crutches, was not requiring any analgesia and his arthroscopy stab incisions were healing well.  Mild tenderness was detected along both joint lines.  At further review on 27 September 2012, Mr De Alwis complained of ongoing knee pain which was diffuse in nature but denied any joint locking.  He had experienced his knees giving way on several occasions.  Mild tenderness on the joint line was detected on examination and the range of movement in both knees was 0 to 120 degrees.  It was noted that he had difficulty achieving full extension of the knee joints.  No effusion was detected. The infrapatellar saphenous nerve branches were noted to be intact.  The consulting surgeon recommended that if Mr De Alwis’ pain persisted, an MRI of both knees should be performed.

14. Mr De Alwis was seen again on 8 November 2012 by the Orthopaedic Registrar, Dr Jamieson, who noted ongoing pain in both knees- the right being more severe than the left.  Physical examination of the knees revealed no effusion, some joint line tenderness, crepitus over the patella-femoral joint, greater on the right than the left knee and equal ranges of movement in both knees from 0 to 130 degrees.  A plain x-ray of the knees was said to show minimal osteoarthritis.  Dr Jamieson discussed Mr De Alwis’ case with Mr Freedman, an Orthopaedic Surgeon, and it was decided to perform an MRI of the right knee to exclude chondrolysis or any other cause of persisting pain. 

15. Mr De Alwis was next seen on 20 December 2012 by which time he had noticed some improvement in the level of pain in his knees.  The MRI scan of the right knee had shown only degenerative changes and no loose body or further meniscal tear.  The entry in the Monash record states :

    Patient, not keen for more surgery currently. Feels that knees reasonably comfortable in the warm weather.

    Mr De Alwis was to continue with physiotherapy and to be reviewed in three months’ time. Reconstructive surgery was to be considered if there was further clinical deterioration.

16. This was the last entry provided from the Monash Medical Centre record. However, the Tribunal notes that according to Dr Soares, Mr De Alwis is on the Monash Medical Centre waiting list for surgery (or was) as of 5 September 2013. 

    RELEVANT LEGISLATION

17. Section 94 of the Act outlines the qualification for a DSP and states:

    94Qualification 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

    ...

    (e)the person either:

    (i)     is an Australian resident at the time when the person first satisfies paragraph (c); or

    (ii)     has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

    (iii)    is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

    (A)   is not an Australian resident; and

    (B)   is a dependent child of an Australian resident;

    and the person becomes an Australian resident while a dependent child of an Australian resident; and

    ...

    (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and

    (a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b)in all cases—either:

    (i)     the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii)     if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

18. The Act also provides a definition of severe impairment under s 94(3B). Severe impairment is defined as an impairment rating of 20 points or more under the Impairment Tables of which 20 points or more are under a single Impairment Table. 

    SUBMISSIONS

19. Both parties provided written submissions in the form of Statements of Facts and Contentions.  Mr De Alwis challenged the SSAT’s assignment of 10 impairment points and submits that his condition, namely that of his knees, attracts an impairment rating of 20 points under Table 3 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) as he is unable to walk around a shopping centre or supermarket without assistance, unable to walk from a car park into a shopping centre or supermarket without assistance, unable to stand up from a sitting position without assistance and would require assistance to use public transport. 

20. Mr De Alwis also believes he satisfies the definition of moderate functional impact on activities involving spinal function in Table 4 of the Impairment Tables, in that he is able to sit or drive a car for at least 30 minutes, has difficulty moving his head in all directions and difficulty bending forward to pick up light objects.  As such, he would attract an impairment rating of 10 points.  Based on his knee condition and that of his back, Mr De Alwis believes he attracts at least 30 impairment points, of which 20 points are for his knee condition rendering his knee osteoarthritis in the severe impairment category.  The question of a continuing inability to work would therefore not arise. 

21. The Secretary contended that Mr De Alwis’ knee condition was not fully treated or stabilised in the period under review as indicated by the reports from Monash Medical Centre up until December 2012.  And as pointed out by the Secretary, there is a lack of medical evidence as to whether Mr De Alwis is to undergo any further surgery, be it further arthroscopies or reconstructive knee surgery.  In the alternative, it is contended that if the Tribunal were to determine Mr De Alwis’s knee conditions were fully treated and stabilised, the condition would not attract a 20 point impairment rating under Table 3, lower limb function. 

22. In relation to Mr De Alwis’ other conditions, the Secretary contended that there is no evidence before the Tribunal of any specialist opinion for Mr De Alwis’ hypertension. His glaucoma appears to be stable and of minimal impact and there is a lack of medical evidence, opinion and investigations in regard to Mr De Alwis’ back pain, such that it could not be concluded that it has been fully treated and stabilised.

    TRIBUNAL’S DELIBERATIONS

23. It is clear that Mr De Alwis satisfies s 94(1)(a) of the Act, as he has documented bilateral knee osteoarthritis resulting in pain and limited mobility with frequent giving away of his knees.  Mr De Alwis also suffers from hypertension, glaucoma and lower back pain. 

24. The issue before the Tribunal is essentially whether Mr De Alwis’ medical conditions are fully diagnosed, treated and stabilised.  It is only if these requirements are met that an impairment rating can be assigned. 

25. Mr De Alwis’ hypertension is relatively long standing and has been treated by Dr Soares although the actual treatment has not been stated.  According to Dr Soares, his symptoms of hypertension are raised blood pressure, which is not a symptom, dizziness and headaches.  Mr De Alwis has stated in his submissions that his blood pressure fluctuates and its control is not ideal.  Thus, his hypertension cannot be considered to be fully treated and stabilised.  The evidence before the Tribunal regarding Mr De Alwis’s glaucoma suggests this has a minimal, if any, impact as it only affects his eyesight at night. 

26. Mr De Alwis’ back pain is said to affect not only his lumbar spine but his neck and his left shoulder. It is also said to be secondary to a motor vehicle accident in which he sustained various injuries.  There is no description of these injuries, nor is there a description of the physical findings or any radiological findings to assist the Tribunal in determining the nature of the medical condition giving rise to the pain and its impact on his mobility and function.  It is not possible to assign an impairment rating, with respect to Mr De Alwis’ back on the information provided to the Tribunal.

27. Mr De Alwis’ bilateral knee osteoarthritis is reasonably well documented.  It is clear that these changes are permanent and that they affect both knee joints as evidenced by plain x-ray, which has estimated the changes to be mild, MRI scanning, which confirms at least in the right knee the presence of degenerative changes, and the findings of the arthroscopies which are referred to in Monash Medical Centre entries.  A copy of the operation report has not been provided. 

28. Following bilateral arthroscopies in August 2012, Mr De Alwis did not improve symptomatically until mid-December.  At that time, he declined further surgical intervention in the form of reconstructive surgery.  Thus, his knee condition has not been fully treated and stabilised as at the date of the lodgement of his claim on 27 August 2012 or during the following 13-week review period provided under the Act. The Orthopaedic Unit at Monash Medical Centre was still considering further surgical treatment on 20 December 2012 which is outside the 13-week period.  On that date, Mr De Alwis stated that his knees were reasonably comfortable in the warmer weather and deferred consideration of further surgery.

29. As Mr De Alwis’ back pain, hypertension and bilateral knee osteoarthritis have not been fully treated and stabilised, an impairment rating cannot be assigned and s 94(1)(b) of the Act is not satisfied. Mr De Alwis does not meet the eligibility criteria for DSP.

30. The Tribunal affirms the decision under review.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member.

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

Associate

Dated 21 May 2014

Date of hearing	14 April 2013 – Hearing on the papers
Applicant	Self –represented
Solicitors for the Respondent	Tim de Uray, DHS Legal Services Division