Diaz and Secretary, Department of Employment and Workplace Relations
[2006] AATA 1041
•4 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1041
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1171
GENERAL ADMINISTRATIVE DIVISION ) Re ROBERTO DIAZ Applicant
And
Secretary, Department of EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date4 December 2006
PlaceSydney
Decision The Administrative Appeals Decision affirms the decision under review.
……………………..
Ms N Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY - disability support pension – physical impairment – entitlement to disability support pension –impairment rating of 20 points or more under the impairment tables –“continuing inability to work” – decision under review affirmed
LEGISLATION
Social Security Act 1991 – section 94, Schedule 1B
Social Security (Administration) Act 1999 – Schedule 2
CASE LAW
Freeman v Secretary, Department of Social Security (1988) 87 ALR 506
REASONS FOR DECISION
4 December 2006
Ms N Isenberg, Senior Member
DECISION UNDER REVIEW
1. Mr Diaz’s claim for disability support pension (‘DSP’), made on 4 May 2005, was rejected by Centrelink. While Centrelink agreed that he suffers from osteoarthritis of the right knee, it did not agree that his impairment attracts the required 20 point impairment rating under the Impairment Tables contained in the Social Security Act 1991 (‘the Act’). Also, Centrelink did not agree that Mr Diaz meets the other requirement of eligibility for disability support pension, that is, a continuing inability to work. These requirements are set out in section 94 of the Act and so far as relevant are as follows:
Qualification for disability support pension
94(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) …
(i) the person has a continuing inability to work;
…
BACKGROUND
2. Mr Diaz was born on 10 September 1951. On 4 May 2005, when he lodged the claim for a disability support pension, he was 53 years old.
3. On 29 April 2005 Mr Diaz’s GP, Dr Levett, completed a treating doctor’s report and recorded Mr Diaz’s condition as chronic osteoarthritis of the right knee awaiting surgery.
4. On 26 May 2005 Katie McGrath, a rehabilitation consultant, assessed Mr Diaz and accorded 10 points for the osteoarthritis of the right knee. Ms McGrath concluded that Mr Diaz could work for 30 hours per week within the next two years and recommended sedentary duties, including jobs such as console operator and gate keeper.
5. On 2 June 2005 Centrelink rejected Mr Diaz’s claim for a disability support pension on the basis that Mr Diaz’s condition did not attract a rating of 20 impairment points. This was affirmed on review, and the Authorised Review Officer added that it was considered Mr Diaz also had a continuing ability to work.
6. On 18 August 2005 the Social Security Appeals Tribunal (‘the SSAT’) also affirmed the decision. That Tribunal agreed with the impairment rating of 10 points for Mr Diaz’s osteoarthritis of the right knee. It was not necessary for it then to consider the issue of continuing inability to work.
7. On 27 July 2006 Dr Dave, orthopaedic surgeon, wrote that at the date of Mr Diaz’s claim he had an impairment rating of 10 points for osteoarthritis of the right knee. Dr Dave also stated that Mr Diaz could undertake sedentary employment and education or vocational training.
8. On 3 August 2006 Dr Michael Gliksman, occupational physician, wrote a report after examining Mr Diaz on 12 July 2006 and accorded 20 points for osteoarthritis of the right knee. Dr Gliksman was of the view that Mr Diaz could undertake sedentary employment and education or vocational training in an ergonomically appropriate setting.
ISSUES BEFORE THIS TRIBUNAL
9. The main issues to be determined with relation to this matter are:
a)Does Mr Diaz have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables in Schedule 1B of the Act; and, if so,
b)Does he have a continuing inability to work due to the impairment because:
· the impairment prevents him from doing any work for at least 30 hours per week at award wages within the next two years? and either;
· the impairment is sufficient to prevent him from undertaking educational or vocational training or on the job training during the next two years? or
· such training is unlikely (because of the impairment) to enable him to do any work for at least 30 hours per week at award wages within the next two years?
Consideration period for entitlement to DSP
10. Schedule 2, clause 4 of the Social Security (Administration) Act 1999 provides that the relevant time to consider a person’s entitlement is during the 13 weeks after the claim. Therefore, I had to consider if Mr Diaz was entitled to the DSP between the dates of 4 May 2005 and 3 August 2005.
Consideration of the evidence
11. In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.
12. I asked Mr Diaz to specifically comment on the condition of his knee as at the date of his application for disability support pension and thereafter, and not his current symptoms. This approach is consistent with that in Freeman v Secretary,Department of Social Security (1988) 87 ALR 506.
Did Mr Diaz, by 3 August 2005, have a physical, intellectual or psychiatric impairment of 20 points or more?
13. I must come to a view as to which descriptor in the Tables of Schedule 1B of the Act best describes Mr Diaz’s condition. The relevant Table provides:TABLE 4 FUNCTION OF THE LOWER LIMBS
Table 4 is used to assess lower limb not spinal function (see Table 5). Assess both limbs together. Determination of lower limb impairments must be based on a demonstrable loss of functions.
Rating Criteria
NILWalks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.
TEN Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking to 250‑500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.
TWENTY Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking (4km/h) to 50‑250m or less at a time. Can walk further after resting or
Unable to walk or stand but independently mobile using a self‑propelled wheelchair.
THIRTY Pain or claudication restricts walking (4km/h) to 50m or less at a time. Can walk further after resting or restricted to walking in and around home and:
Requires quad stick, crutches or similar walking aid, or
Is unable to transfer without assistance.
FORTY Unable to walk or stand and mobile only in a motorised wheelchair or wheelchair with an attendant.
14. Mr Diaz gave evidence of suffering pain in his knee. He takes no medication. He has no social life and he stays at home for the most part. His children attend to mowing the lawn and the vacuuming of his house. He does the balance of the housework.
15. He tries not to walk too much so as to rest his knee. However he said he walks to the shops nearly everyday and that is a distance of about 1km. He walks slowly and it takes him 10 to 15 minutes.
16. There was some confusion it seemed about when he last drove the car, telling me that he last drove six months after he left his job in 2003. This is somewhat inconsistent with what he told the SSAT in August 2005, where some detail was given about his driving which made it clear that, at that time, he was still driving.
17. When asked about this inconsistency he said that he did not have an interpreter before the SSAT. I note that he has been in Australia for nearly 20 years, had been in the workforce for 17 years and also that he did not appear to have had any communication issues with various medical specialists who have examined him. Mr Diaz was able to give very detailed evidence about his condition to the SSAT, apparently without difficulty. I perceived that he understood the vast majority of what transpired in the hearing before me without the assistance of the interpreter, and in fact answered some questions directly himself.
18. As to his condition now, he said that he has more frequent pain and he had an accident last Thursday when his knee gave way. He said he gets pain when he sits for more than 10 to 15 minutes. He said he feels like his knee is stuck together and he had cannot stand for long periods. Stairs are ‘like torture’ and he has difficulty with grass and uneven surfaces. He brought an umbrella to the hearing – it was a rainy day – and he said he used it for support. He does not use a walking stick.
Medical evidence
19. In a treating doctor’s report dated 29 April 2005, Mr Diaz’s GP, Dr Levett recorded Mr Diaz’s condition as severe osteoarthritis of the right knee awaiting surgery.20. On 3 August 2006, that is, a year after the relevant period, Dr Gliksman, occupational physician, wrote a report after examining Mr Diaz on 12 July 2006 and accorded 20 points for osteoarthritis of the right knee. Centrelink did not dispute this assessment as to Mr Diaz’s current condition but said that it was too long after the relevant period to be properly considered in the present application.
21. As noted in paragraph 10 above, I must assess Mr Diaz’s condition at the date of application and in the 13 weeks thereafter. In so doing, I turned to consider if Dr Gliksman’s assessment might apply to the relevant period. To this end I reviewed all the available medical evidence.
22. The available material points to Mr Diaz having had osteoarthritis of the right knee from at least 2001 (see x-ray report of 6 December 2001 - T5). By August 2003 the osteoarthritic changes in his knee were recorded as being ‘advanced’ (T6).
23. In September 2003 Dr Dave, Mr Diaz’s treating orthopaedic surgeon, referring to when he first saw Mr Diaz in January 2002, described the condition at that time as ‘severe’ and noted the osteoarthritis to be ‘advanced’. The pain in the knee was said to have ‘stopped him from [a] lot of activities including squatting, climbing stairs with ease and walking quickly’. Mr Diaz was considered to be a candidate for a total knee replacement.
24. Dr Marnie, orthopaedic surgeon, provided a report dated 28 July 2004. When he reviewed the x-rays of 18 August 2003 he found there to be ‘virtually bone to bone contact’ at that time. There was a muscle wasting. He found Mr Diaz to have difficulty going up and down stairs. He found him unable to run and that his walking was restricted to about 100 metres before the need to rest.
25. On 27 July 2006 Dr Dave, in answer to questions posed by Centrelink, wrote that during the relevant period Mr Diaz had an impairment rating of 10 points for the knee condition.
26. At the hearing Mr Diaz produced a further report from Dr Dave dated 31 October 2006. There the doctor wrote that Mr Diaz has difficulty with walking and even driving. He wrote of some pain, referred to the buttock and back and that the leg tends to give way. He wrote that Mr Diaz is currently not taking any analgesics or anti-inflammatory medication because of his gastric ulcer. Mr Diaz’s gait is affected and he is unable to squat. He has now been placed on a waiting list for knee replacement surgery.
27. Ms McGrath assessed Mr Diaz’s knee condition at 10 impairment points in her report of 25 May 2005 and noted his mobility restriction in that he had reduced ability to negotiate stairs and walk for long distances.
CONCLUSION
28. Both Centrelink and the SSAT assessed Mr Diaz as having an impairment rating of 10 pursuant to Table 4 of Schedule 1B of the Act during the relevant period. I also consider that it is appropriate to allocate 10 points under Table 4. I acknowledge that Mr Diaz has had severe osteoarthritis since at least 2003 and surgical intervention has been required since that time but not undertaken due to Mr Diaz’s young age.
29. I give particular weight to the evidence of Dr Dave, who has been his treating orthopaedic surgeon since January 2002. When directly asked by Centrelink to assess Mr Diaz’s condition during the relevant period, Dr Dave assessed the knee at 10 impairment points.
30. Mr Diaz’s own evidence was that he can walk 1km in 10 to 15 minutes, that is, 4-6km per hour, which is consistent with a rating of no more than 10 points. I also note that he does not use a walking stick, which might have been expected given the descriptor for 20 impairment points. It is only in recent times too, that his knee has given way. It appears that he may only have given up driving in about the last 12 months or so.
31. While Dr Gliksman’s recent report attributes 20 impairment points to his condition, I note that Dr Gliksman did not examine Mr Diaz until July 2006, some 14 months after the date of application. Mr Diaz’s own evidence was that his condition continues to deteriorate. Only now has his treating orthopaedic surgeon wait-listed him for surgery.
32. Mr Diaz’s overall impairment rating is therefore 10 points. This falls short of the 20 points or more required under section 94 of the Act for eligibility to receive DSP. Failure to meet just one of the requirements results in a failure to qualify for that pension. It is therefore not necessary for me to consider whether Mr Diaz has a continuing inability to work.
DECISION
33. The decision under review is affirmed.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
Signed: .........[sgd]..........................
AssociateDate of Hearing 6 November 2006
Date of Decision 4 December 2006
Appearance for Applicant Self-represented
Advocate for the Respondent Mr Ken Bullock of Centrelink Legal Services
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