Direen and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1944

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1944

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2006/175

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DAVID ALLAN DIREEN

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-Time Member)

Date13 November 2007

PlaceHobart

Decision The decision under review is affirmed.

..............................................

Part-Time Member

CATCHWORDS

SOCIAL SECURITY - disability support pension (DSP) - claimed disabilities - shoulder problems - bilateral rotator cuff disease - knee complaint - low back pain - impairment ratings - whether permanent - whether continuing inability to work - SSAT decision - AAT review

Social Security Act 1991, sections 94(1)(a), (b), (c) and Schedule 1B - Tables for Assessment of Work-Related Impairment for Disability Support Pension

Coates and S,DEWR (2006) AATA 938

SDFCS v Michael (2001) 116 FCR 500

SDSS v Pusnjak (1999) 56 ALD 444

Harris v S,DEWR (2007) FCA 404

Re Crossland and SDFCS (2004) AATA 864

Muir and S,DEWR (2005) AATA 902

Rudder and S,DEWR (2006) AATA 249

Dragojlovic v DGSS (1984) 52 ALR 152

Re Tonlan and SDSS (11997) 24 AAR 462

REASONS FOR DECISION

13 November 2007 Associate Professor B W Davis AM (Part-Time Member)   

Decision Under Review

1.      The decision under review is a decision made by the Social Security Appeals Tribunal (SSAT) on 5 October 2006, affirming the decision of a Centrelink officer on 1 September 2006 to reject the applicant's claim for disability support pension (DSP).

Issue

2. Does the applicant satisfy Section 94 of the Social Security Act 1991, ie did he have an impairment rating of at least 20 points and a continuing inability to work, between 2 May 2006 and 4 August 2006.

Legislation

3.      The relevant legislation is the Social Security Act 1991, Section 94 and Schedule 1B - Tables for the Assessment of Work-Related Impairment for Disability Support Pension.

4.      Note also the Social Security (Administration) Act 1999 and Guide to Social Security Law.

Standard of Proof

5.      The standard of proof is on the balance of probabilities and to the relevant satisfaction of the Tribunal.

Background

6.      The applicant is a 61 year old male who was previously self-employed operating a computer hire and set-up business.

7.      On 2 May 2006 Mr Direen lodged an application for disability support pension with Centrelink.  He had previously supplied a treating doctor's report and other documents.  Dr Potter identified the applicant as suffering injury discomfort in both shoulders and indicated the condition was likely to last 3 to 24 months, but his ability to function in future years was uncertain.  Dr Potter also identified a knee complaint, then undergoing treatment, but causing little impact on the applicant's capacity to function.

8.      In April 2004 MRI scans of both shoulders were conducted and reported upon by a Dr Turner.  The doctor identified a rotator cuff arthropathy of the right shoulder and a small tear in the cuff of the left shoulder.  Dr Turner outlined a number of treatment options, including surgery.

9.      In the medical details sections of his claim form dated 2 May 2006, Mr Direen indicated he was not receiving any treatment for his disabilities or injuries.  He reported no difficulty in standing, sitting, walking, driving a car, using public transport, interacting with others or sleeping.  He sometimes had problems operating everyday appliances, attending work, managing personal affairs and lifting and carrying items.  He was unsure whether he could cope with rehabilitation or training and be able to resume full or part-time work.  He had earlier completed in-house computer training and successfully operated a computer hire business.

10.     On 27 July 2006 Dr Tabart of Health Services Australia completed an assessment of the applicant's medical conditions.  Dr Tabart noted the applicant had ceased work 2.5 years ago because his shoulder condition precluded lifting and carrying 30 kg computer boxes.  Dr Tabart said Mr Direen did not report troubles with normal chores, but his shoulder situation was such that an impairment rating of 15 on Table 3 of the Impairment Tables was appropriate and that his work capacity was 30 plus hours per week, in sedentary tasks where he could change posture as required.

11.     Meanwhile on 5 April 2006 Centrelink decided to reject the applicant's claim for disability support pension (DSP).  Following a request for review, the decision was affirmed by the original decision-maker on 4 August 2006, an authorised review officer (ARO) on 1 September 2006 and the Social Security Appeals Tribunal on 5 October 2006.

12.     On 22 February 2007 the applicant lodged a new claim for disability support pension.  A treating doctor's report from a Dr Pitt noted the history of chronic shoulder pain and loss of function due to heavy lifting of computers.  Treatment was listed as 'supportive', but a possible need for surgery was noted.  Dr Pitt noted osteoarthritis of the right and left knees and right foot.  The doctor considered Mr Direen was only capable of sedentary desk work.  The applicant himself reported no difficulty with writing, reading, speaking, hearing, remembering or interacting with others.  He sometimes had trouble bending, driving a car, operating everyday appliances, sleeping and caring for himself.

13.     On February 2007 the applicant underwent imaging tests of his knees and feet,  A Centrelink Job Capacity Assessment on 13 March 2007 assigned a 15 point disability rating for shoulders and a 10 point disability rating for lower limbs under the Impairment Tables.  He was allotted nil points for lumbar back pain.  His future work capacity was assessed at 15 to 22 hours per week.  Taken at face value, none of these assessments met the qualifying criteria for payment of DSP, however the applicant has sought review by the Administrative Appeals Tribunal (AAT).

The AAT Hearing

14.     An AAT hearing was conducted in Hobart on 17 October 2007.  David Allan Direen was present and represented by Mr Benedict Bartl of the Hobart Community Legal Service.  Ms Allison Devine, assisted by Mr Brian Sparkes appeared for the respondent DEWR.

15.     Following opening addresses the applicant was sworn and responded to a number of questions put to him by his counsel, Mr Bartl.  Mr Direen said he had suffered from shoulder disabilities for many years and in November 2003 had been forced to cease work in the computer industry because he could no longer lift heavy weights.  When he applied for DSP in early 2006 his treating GP, Dr Potter, had confirmed the shoulder injuries and indicated he might be unable to work for up to two years, but did not suggest any treatment options, others than the possibility of surgery.

16.     Subsequent medical assessments confirmed what he already knew, there were associated lower limb disabilities in his knees and one foot.  By 2007 Dr Pitt noted chronic shoulder pain, osteoarthritis of both knees and right foot and considered his only employment prospect was of a sedentary nature for limited periods.  This had been further confirmed by Dr Tabart of Health Services Australia and a Centrelink Job Capacity Assessment in March 2007.  While he considered himself capable of most normal activities, there were tasks he could not longer undertake.  He considered his condition was deteriorating, he was reluctant to undergo surgery and as his employment prospects were limited, the pursuit of rehabilitation training was unlikely to succeed.

17.     Responding to cross-examination by Ms Devine, he admitted the various medical reports indicated he was capable of working 15 hours or more per week, if suitable vocations could be found.  He agreed that none of the disability ratings he had received were above 15 points, but considered these understated his deteriorating circumstances and in combination should have been rated higher.  Indeed Dr Pitt had noted this in February 2007.

18.     In closing submissions Mr Bartl drew attention to the Job Capability Assessment of March 2007, which showed a total functional impairment of 25 points, 15 for shoulder and upper limb disorder and 10 points for functions of lower limbs.  Some medical reports had also identified a spinal disorder, but regarded it as minor with nil rating.

19.     Ms Devine said that whatever recent medical evidence showed, the relevant consideration was Mr Direen's disabilities at the time of application for DSP and 13 weeks later.  Medical options were available, including surgery, hence Mr Direen's disabilities were not fully diagnosed, treated and stabilised and therefore could not be impairment rated.

Analysis

20.     The Tribunal is required to conduct a de-novo review of all available evidence, statutory and policy provisions, as well as relevant prior case determinations in order to identify the 'correct and preferable decision'.

21. Section 94 of the Social Security Act 1991 sets out the criteria for eligibility for disability support pension. In essence the three principal requirements are that the applicant demonstrate:

Øa physical, intellectual or psychiatric impairment;

Øan impairment of 20 points or more under the Impairment Tables in Schedule 1B of the Act;

Øa continuing inability to work

In the current case the relevant claim period is 2 May 2006 to 4 August 2006 (ie 13 weeks from the time the application for DSP was lodged).  DEWR has conceded that Mr Direen did have relevant impairments at that time.

22.     No rating can be assigned to the disabilities unless requirements set out in the Introduction to the Impairment Tables are met.  The principal requirement is that the impairment(s) have been fully documented, diagnosed, treated and stabilised and the condition must be considered permanent, in the light of available information in that it will persist for the foreseeable future.  This is to be assessed after considering:

Øwhat treatment or rehabilitation has occurred;

Øwhether treatment is continuing or planned in the near future; and

Øwhether any further medical treatment is likely to lead to significant functional improvement within the next two years

23.     What constitutes 'treatment' and 'permanence' has been tested in a number of prior AAT cases such as Coates and S,DEWR (2006) AATA 938, Rudder and S,DEWR (2006) AATA 249, while the phrase 'inability to work' has been considered in S,DFCS v Michael (2001) FCR 500 and SDSS v Pusjnak (1999) 56 ALD 444. In essence such decisions confirm that it is the medical condition during the qualifying period and not later which must be considered. The applicant must have undertaken reasonable medical treatment recommended by doctors, only permanent conditions can be considered in deciding whether inability to work exists and the issue of whether training or education within the next two years would permit some return to work is crucial.

24.     In the case of David Allan Direen, counsel for the applicant has argued that his disabilities are longstanding and more severe than initial ratings suggested and the situation has worsened to the point that the most recent assessment (Job Capacity Report, March 2007) indicates a combined impairment rating of 25 points, which would indicate eligibility for DSP.  The respondent refutes this claim, arguing that the medical condition during the qualifying period must govern and a point-by-point analysis of medical evidence relating to each claimed disability results in a nil rating, as the injuries have not been fully diagnosed, treated and stabilised.  Inability to work has also not been demonstrated.

25.     The Tribunal is required to test these claims by its own independent review.  Having considered all available evidence, the following conclusions have been drawn.

Left Shoulder

26.     Dr Turner, Dr Porter and Dr Pitt have all raised the possibility of surgery, which has been rejected by the applicant.  But given that the prospect exists, it cannot be argued that the shoulder has been fully diagnosed and treated, so it is not necessarily permanent and cannot be given an impairment rating.  The only person to claim the disability is permanent is Dr Tabart, but her assessment is recent and outside the relevant claim period.  Even if the diagnosis is accepted, the rating is 15 points, which does not render the applicant eligible for DSP payment.

Right Shoulder

27.     Again the issue of prospective treatments arises with the applicant failing to pursue proposals by Dr Turner and Dr Pitt.  Dr Tabart regards the condition as now permanent, with an impairment rating of 10 points, but this assessment has arisen after the relevant qualifying period.  Mr Direen admits to failing to pursue some treatment options, in part because he is able to cope with many everyday tasks and has learnt to avoid or work around ongoing difficulties.  On the other hand he is not optimistic rehabilitation programs would permit him to pursue part-time employment.

Other Disabilities

28.     No back problems were mentioned at the time of application for DSP, however Dr Tabart noted in her report of 27 July 2006 that the applicant claimed intermittent low back ache over many years.  There was no detailed diagnosis and the doctor decided nil impairment rating was appropriate.

29.     There is considerable medical evidence about bilateral knee and right foot problems, but the SSAT decided the analysis of these conditions was not complete ie they had not been fully diagnosed and treated, but did cause some interference with daily functioning.  Much earlier Dr Potter had considered the knee situation to be generally well managed and Dr Tabart much later reported mild interference in lower limb function but concluded this rated nil in the Impairment Tables. 

Inability To Work

30. As Mr Direen does not have the minimum 20 points impairment to qualify for DSP, the issue of whether he has or has not an ongoing inability to work becomes less relevant. The Tribunal notes, however, that all treating doctors considered that with suitable treatment and/or rehabilitation training there was some prospect of Mr Direen returni9ng to work, albeit at an unspecified date and perhaps limited employment options. It is clear, therefore, that Mr Direen does not meet the criteria of section 94(1)(c) of the Act, namely an ongoing inability to work.

Decision

31. Having conducted its de-novo review, the Tribunal finds on the balance of probabilities Mr David Allan Direen did not satisfy provisions of section 94 of the Social Security Act 1991 in respect of his claim for DSP dated 2 May 2006. The decision under review is therefore affirmed.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  17 October 2007
Date of Decision  13 November 2007
Solicitor for the Applicant          Mr B Bartl, Hobart Community Legal Service
Solicitor for the Respondent    Ms A Devine, Mr B Sparkes, Centrelink Legal        Services