Dockerty; Secretary, Department of Social Services and (Social services second review)

[2016] AATA 477

Dockerty; Secretary, Department of Social Services and (Social services second review) [2016] AATA 477 (5 July 2016)

Division	GENERAL DIVISION
File number	2015/0858
Secretary, Department of Social Services
APPLICANT
And	Joanna Dockerty
RESPONDENT

DECISION

Tribunal	Dr James Popple, Senior Member
Date	5 July 2016
Place	Canberra

The decision of the Social Security Appeals Tribunal on 21 January 2015 is set aside and, in substitution, the following decision is made:

The claimant’s impairment was not of 20 points or more under the Impairment Tables, so she does not satisfy the requirement in s 94(1)(b) of the Social Security Act 1991.  She does not qualify for the disability support pension.

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

James Popple, Senior Member

CATCHWORDS

SOCIAL SECURITY — pensions — disability support pension — whether claimant had a physical, intellectual or psychiatric impairment — whether impairment of 20 points or more under the Impairment Tables — decision set aside and substituted.

LEGISLATION

Social Security Act 1991, s 94(1)

CASES

Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr James Popple, Senior Member

5 July 2016

Summary

1. I set aside the decision of the Social Security Appeals Tribunal (the SSAT).  The respondent had a physical impairment during the relevant period, but that impairment was not of 20 points or more under the Impairment Tables.  She does not qualify for the disability support pension (the DSP) under s 94(1) of the Social Security Act 1991 (the SS Act).

   Background

2. On 28 December 2012, Mrs Joanna Dockerty was involved in a motor vehicle accident.  On 5 September 2014, she lodged a claim for the DSP.  On 1 October 2014, Centrelink rejected her claim.  Mrs Dockerty sought review of that decision.  On 6 November 2014, an authorised review officer affirmed the earlier decision.  On 20 November 2014, Mrs Dockerty applied to the SSAT for review of that decision.

3. On 21 January 2015, the SSAT set aside Centrelink’s decision and substituted its decision that Mrs Dockerty satisfied ss 94(1)(a), (b) and (c) of the SS Act and that, subject to her satisfying other relevant criteria, she was qualified for the DSP from the date of her claim.

4. On 24 February 2015, the Secretary of the Department of Social Services (the Secretary) applied to the Tribunal, under s 179 of the Social Security (Administration) Act 1999, for review of that decision.

   Decision under review

5. The decision under review is the SSAT’s decision on 21 January 2015 setting aside Centrelink’s decision to reject Mrs Dockerty’s claim for the DSP.

   Issue

6. The issue in this review is whether Mrs Dockerty qualifies for the DSP under s 94(1) of the SS Act. That depends on whether she had a physical, intellectual or psychiatric impairment during the relevant period; whether that impairment was of 20 points or more under the Impairment Tables; and whether she had a continuing inability to work.

   Legislative framework

7. Section 94(1) of the SS Act relevantly provides:

   94  Qualification 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;

   …

   …

8. Section 23(1) of the SS Act provides that Impairment Tables means the tables determined by an instrument under s 26(1).  That instrument is the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

9. A claim for the DSP must be assessed as at the date of the claim or within 13 weeks after that date.[1]  The relevant period for Mrs Dockerty’s claim is 5 September to 5 December 2014.

   Did Mrs Dockerty have a physical, intellectual or psychiatric impairment (s 94(1)(a) of the SS Act)?

   [1]     Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at 253 [1] per Gyles J. See Social Security (Administration) Act 1999, s 42 and clause 4(1) of Schedule 2.

10. The SSAT found that Mrs Dockerty suffers from functional impairments caused by the motor vehicle accident in 2012, resulting in a shoulder and upper arm disorder and spinal problems. The Secretary accepts, and I find (on the balance of probabilities), that Mrs Dockerty had a physical impairment during the relevant period. It follows that Mrs Dockerty satisfies s 94(1)(a) of the SS Act.

    Was Mrs Dockerty’s impairment of 20 points or more under the Impairment Tables (s 94(1)(b) of the SS Act)?

11. The Impairment Tables define “impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.[2]  An impairment rating can only be assigned to an impairment if the condition causing the impairment is “permanent” and the impairment is likely to persist for more than two years.[3]  A condition is permanent if it has been fully diagnosed, fully treated and fully stabilised, and is likely to persist for more than two years.[4]

    [2]     Impairment Tables, s 3.

    [3]     Impairment Tables, s 6(3).

    [4]     Impairment Tables, s 6(4).

    Mrs Dockerty’s right hand and left shoulder function

12. The Secretary accepts, and I find (on the balance of probabilities), that Mrs Dockerty’s conditions with respect to her right hand and left shoulder are permanent within the meaning of the Impairment Tables.  The related table is Table 2, which is about upper limb function.  The SSAT assessed Mrs Dockerty’s impairment under Table 2 at 20 points, indicating that the impairment had what the table describes as “a severe functional impact on activities using hands or arms”.  The Secretary says that Mrs Dockerty’s impairment should be assessed at 10 points, indicating “a moderate functional impact” on those activities.

13. Table 2 specifies that an impairment rating of 10 points should be assigned where the person with the permanent condition has difficulty with most of the following:

    (a)picking up a 1 litre carton full of liquid;

    (b)picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

    (c)holding and using a pen or pencil;

    (d)doing up buttons or tying shoelaces;

    (e)using a standard computer keyboard;

    (f)unscrewing a lid on a soft-drink bottle.

    Table 2 specifies that an impairment rating of 20 points should be assigned where most of the following apply:

    (a)the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;

    (b)the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;

    (c)the person has difficulty using a computer keyboard despite appropriate adaptations;

    (d)the person has severe difficulty using a pen or pencil;

    (e)the person has severe difficulty turning the pages of a book without assistance.

14. Before the SSAT, Mrs Dockerty explained that, after the motor vehicle accident, she accepted her surgeon’s advice that her right hand should be amputated.  However, she underwent some other surgery which allowed her to retain her hand.  She says that, effectively, she has lost the use of her right hand.

15. From the evidence before me, including the evidence of Dr Rebecca Mair (Mrs Dockerty’s general practitioner), there is no doubt that Mrs Dockerty has difficulty with most—if not all—of the activities listed above corresponding to an impairment rating of 10 points.  The Secretary does not dispute this.  The question is whether Mrs Dockerty should be assigned an impairment rating of 20 points under Table 2.

16. The Secretary points out that, on the basis of the evidence that Mrs Dockerty presented to the SSAT, the SSAT found that she is dependent on her husband to do all of the cooking.  The Secretary referred me to what would appear to be a comment that Mrs Dockerty posted on her Facebook page, during the relevant period,[5] indicating that she had made her husband’s lunch that day.  I put no weight on this evidence.  At its highest, it suggests that Mrs Dockerty was capable (during the relevant period) of preparing some food for her husband, but it does not necessarily contradict her assertion that her husband does all of the cooking in their household.  Importantly, I do not think it assists me in deciding the level of her impairment.

    [5]     14 September 2014.

17. Mrs Dockerty says that she can drive short distances.  She says that she has a home office with a modified chair in which she can type on a keyboard, but only using her left hand.  Her keyboard is a normal keyboard, not (for example) one adapted for one-handed use.  She operates a mouse with her right hand.  She uses a book holder to hold books and papers that she is reading.

18. At the hearing, she was asked whether she could hold anything with her right hand.  She replied, “Not really, no”.  She was asked whether that meant that she could not hold even “a piece of paper perhaps, or something extremely light” in her right hand.  She replied, “I don’t have any feeling and I don’t have any grip”.  She said that she wouldn’t hold a glass in her right hand, but that she would use her left hand to hold a glass even though “the pain is quite significant as well”.  At this point in the hearing, Mrs Dockerty was shown a photograph of her holding a champagne flute (possibly a plastic one) in her right hand.  I will call this the photo.  She explained that, “[q]uite often I will pick things up and hold them for a short amount of time” and added that “[i]t doesn’t mean I can feel it and it doesn’t mean it’s not painful”.

19. The Secretary played, at the hearing, a video recording of Mrs Dockerty playing a guitar—or, more precisely, moving her right hand in a strumming movement over the guitar’s strings.  I will call this the video.  It was fairly clear that Mrs Dockerty was not actually strumming the guitar strings in the video, because the movement of her right hand did not correspond to the music on the video’s soundtrack.  She says that the music was being played by another person, who was not visible: that is, that Mrs Dockerty was miming playing the guitar for the video.  I accept Mrs Dockerty’s evidence about the video.

20. It appears that the video was posted to Facebook on 13 July 2015.  I find that, on the balance of probabilities, it was recorded on—or a few days before—13 July.  That was the same day that Mrs Dockerty saw Dr Chris Oates, a consultant occupational physician.  On 5 August 2015, Dr Oates prepared a report on her condition.  In his report, he says that Mrs Dockerty should be assigned an impairment rating of 20 points under Table 2.  He also noted that Mrs Dockerty told him that the impairment of her right hand had become worse since the relevant period.

21. Dr Oates gave evidence at the hearing.  He was shown the photo and the video.  He said that the way that Mrs Dockerty is seen holding the champagne flute in the photo was not inconsistent with how she had presented to him when he examined her.  But, he said that her actions on the video were inconsistent.  He said that, even if she were miming and not strumming the guitar on the video, “the fairly rapid fluid repetitive movement of the fingers” was inconsistent with how she had presented.  In light of the evidence of the video, Dr Oates said that Mrs Dockerty should be assigned an impairment rating of 10 points, not 20 points (as he had said in his report).

22. Dr Oates also gave evidence that, in a lot of cases, a person who has lost their dominant hand would be able to train themselves to write with their non-dominant hand within two years.

23. Having regard to all of the evidence, and especially the evidence that Dr Oates gave in his report and at the hearing, I find (on the balance of probabilities) that Mrs Dockerty’s impairment has a moderate functional impact on activities using her hands or arms: an impairment rating of 10 points should be assigned under Table 2.

24. In making this finding, I note that Mrs Dockerty has difficulty handling, moving or carrying most objects, but I do not think that this is a severe difficulty.  I note that the video was recorded after the relevant period, but Mrs Dockerty told Dr Oates at about that time that the impairment of her right hand had become worse since the relevant period.  I also note that there is no evidence about whether she would have difficulty using an appropriately adapted keyboard, or whether she would have severe difficulty in using a pen or pencil with her (non-dominant) left hand, given time to train herself to do so.

    Mrs Dockerty’s spinal function

25. The Secretary accepts, and I find (on the balance of probabilities), that Mrs Dockerty’s conditions with respect to her spinal function are permanent within the meaning of the Impairment Tables.  The related table is Table 4, which is about spinal function.  The SSAT assessed Mrs Dockerty’s impairment under Table 4 at 10 points, indicating that the impairment had what the table describes as “a moderate functional impact on activities involving spinal function”.  The Secretary says that Mrs Dockerty’s impairment should be assessed at 5 points, indicating “a mild functional impact” on those activities.

26. Table 4 specifies that an impairment rating of 5 points should be assigned where the person with the permanent condition has some difficulty in:

    (a)activities over head height (e.g. activities requiring the person to look upwards); or

    (b)bending to knee level and straightening up again without difficulty; or

    (c)turning their trunk or moving their head (e.g. to look to the sides or upwards).

    Table 4 specifies that an impairment rating of 10 points should be assigned where the person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

    (a)the person is unable to sustain overhead activities (e.g. accessing items over head height); or

    (b)the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

    (c)the person is unable to bend forward to pick up a light object placed at knee height; or

    (d)the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

27. From the evidence before me, including Dr Oates’s report of 5 August 2015, there is no doubt that Mrs Dockerty has some difficulty in doing one or more of the activities listed above corresponding to an impairment rating of 5 points.  The Secretary does not dispute this.  The question is whether Mrs Dockerty should be assigned an impairment rating of 10 points under Table 2.

28. Dr Oates was of the view that she should not be assigned an impairment rating of 10 points because “her back condition does not cause her to be unable to sustain overhead activities or move her head and she is able to bend forward to pick up a light object at knee height and does not need assistance to get up out of a chair”.  I note that there is no suggestion that Mrs Dockerty’s spinal condition improved between the relevant period and when she saw Dr Oates, just over seven months later.

29. Having regard to all of the evidence, and especially Dr Oates’s report, I find (on the balance of probabilities) that Mrs Dockerty’s impairment has a mild functional impact on activities involving spinal function: an impairment rating of 5 points should be assigned under Table 4.

    Total impairment rating

30. Mrs Dockerty has a total impairment of 15 points under the Impairment Tables: 10 points under Table 2 plus 5 points under Table 4. Because her impairment is not of 20 points or more, she does not satisfy s 94(1)(b) of the SS Act.

    Did Mrs Dockerty have a continuing inability to work (s 94(1)(c)(i) of the SS Act)?

31. Because of my conclusion that Mrs Dockerty’s impairment was not of 20 points or more, I do not need to consider whether she has a continuing inability to work.

    Mrs Dockerty’s condition since the relevant period

32. As noted above, there is some evidence that Mrs Dockerty’s condition has deteriorated since the relevant period.  It is open to her to make a new DSP application.

    Conclusion

33. During the relevant period, Mrs Dockerty had a physical impairment for the purposes of s 94(1)(a) of the SS Act. But her impairment was not of 20 points or more under the Impairment Tables, so she does not satisfy the requirement in s 94(1)(b). Accordingly, she does not qualify for the DSP.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

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

Associate

Dated 5 July 2016

Date of hearing	6 June 2016
Counsel for the Applicant	Mr Michael Phillis
Solicitors for the Applicant	Legal Services Division, Department of Human Services
Respondent	In person