Douglas Andrich and Secretary, Department of Social Services

[2014] AATA 953

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2014/2940

Re

Douglas Andrich

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Senior Member CR Walsh

Date 19 December 2014

Place Perth
The Tribunal affirms the decision under review.

..(Sgd) CR Walsh...................
Senior Member CR Walsh
CATCHWORDS
SOCIAL SECURITY – disability support pension (DSP) – applicant’s fully diagnosed, treated and stabilised impairment (being osteoarthritis which impacts upon his lower and upper limbs and spine) does not attract 20 points or more under the Impairment Tables on the date the applicant claimed DSP or within 13 weeks thereafter – decision under review affirmed
LEGISLATION
Social Security Act 1991 – s 94(1)(a) – s 94(1)(b) – s 94(1)(c)
Social Security (Administration) Act 1999 – Schedule 2 - clause 3 - clause 4(1)
Social Security (Tables for the Assessment of Wok-related Impairment for Disability Support Pension) Determination 2011 – s 6(1) – s 6(2) – s 6(3) – s 6(4) – s 6(5) – s 6(6) – s 6(7) – s 10 - Table 2 – Table 3 – Table 4
CASES
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606
SECONDARY MATERIALS
Guide to Social Security Law – 3.6.3.05
REASONS FOR DECISION
Senior Member CR Walsh
19 December 2014
INTRODUCTION

Mr Andrich seeks review of a decision of the Social Security Appeals Tribunal (SSAT), dated 12 May 2014, which affirmed the decision of a Centrelink Authorised Review Officer (ARO), dated 22 March 2013, to reject Mr Andrich’s claim for disability support pension (DSP), lodged on 13 February 2013, on the basis that he did not satisfy all of the requirements for qualification for DSP in s 94(1) of the Social Security Act 1991 (SSA) on the date he claimed DSP or within 13 weeks thereafter (being 14 May 2013).[1]
[1] The ARO’s decision affirmed an earlier decision of a Centrelink officer, dated 22 March 2013.
Specifically, the SSAT decided that whilst Mr Andrich had an “impairment” for the purposes of s 94(1)(a) of the SSA, being osteoarthritis which impacts upon his lower limbs, upper limbs and spine, his impairment did not attract 20 points or more under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) on the date he claimed DSP or within 13 weeks thereafter, as required by s 94(1)(b) of the SSA and, therefore, his DSP claim must fail.
FACTUAL & PROCEDURAL BACKGROUND
On 13 February 2013, Mr Andrich lodged a Centrelink Claim for Disability Support Pension form (dated 11 February 2013) with Centrelink (Mr Andrich’s DSP Claim).
In Mr Andrich’s DSP Claim, Mr Andrich described his “disabilities, illnesses and injuries” as “fracture right ankle (ongoing problems), arthritis throughout back, left knee damaged, neck and lower back”.
Mr Andrich’s DSP Claim was supported by a Centrelink “Medical Report Disability Support Pension” by Dr Geoffrey Bloor (General Practitioner), dated 7 February 2013.
On 18 February 2013, Mr Andrich attended a Job Capacity Assessment (JCA), conducted by a qualified social worker, and a registered occupational therapist (JCA Assessors).
On 22 March 2013, a Centrelink officer decided to reject Mr Andrich’s DSP Claim on the basis that he did not have an impairment rating of at least 20 points under the Impairment Tables (Original Decision).
On 31 May 2013, Mr Andrich sought an internal review of the Original Decision.
On 24 March 2014, an ARO affirmed the Original Decision (ARO Decision).
In the ARO Decision, the ARO accepted that Mr Andrich’s osteoarthritis, left knee pain, insomnia, impaired concentration, headaches and constipation were “fully diagnosed”, “fully treated” and “fully stabilised”. The ARO decided that Mr Andrich’s osteoarthritis should be assigned 0 points under Table 2 (Upper Limb Function) of the Impairment Tables, 5 points under Table 3 (Lower Limb Function) of the Impairment Tables, and 5 points under Table 4 (Spinal Function) of the Impairment Tables. The ARO considered that Mr Andrich’s other conditions caused a minimal or limited impact on his ability to function, and did not attract any impairment rating under the Impairment Tables. The ARO also decided that Mr Andrich did not have a continuing inability to work.
On 27 March 2014, Mr Andrich lodged an application for review of the ARO Decision with the SSAT.
On 12 May 2014, the SSAT affirmed the ARO Decision (SSAT Decision).
In the SSAT Decision, the SSAT found that Mr Andrich’s osteoarthritis was “fully diagnosed”, “fully treated” and “fully stabilised” such that it could be assigned an impairment rating under the relevant Impairment Tables, namely Table 2 (Upper Limb Function), Table 3 (Lower Limb Function) and Table 4 (Spinal Function). The SSAT accepted that Mr Andrich’s osteoarthritis condition impacted upon his upper limbs, lower limbs and spine. The SSAT decided that Mr Andrich’s osteoarthritis should be assigned 5 points under Table 2 (Upper Limb Function), 0 points under Table 3 (Lower Limb Function) and 10 points under Table 4 (Spinal Function) of the Impairment Tables, giving Mr Andrich’s osteoarthritis a total impairment rating of 15 points under the Impairment Tables. As the SSAT found that Mr Andrich’s impairment rating was less than 20 points, the SSAT did not proceed to consider whether Mr Andrich had a continuing inability to work.
On 9 June 2014, Mr Andrich applied to the Tribunal for a review of the SSAT Decision.
RELEVANT PERIOD
The Social Security (Administration) Act 1999 (Administration Act) provides that the “start-day” for a qualified DSP claimant is the date of claim: clause 3 of Schedule 2 of the Administration Act. This means that qualification for DSP and impairment ratings must be determined as at the date of claim. The only exception is where the person is not qualified on the date of claim but “will … become qualified” and “becomes so qualified” within 13 weeks of lodging a claim, in which case their “start-day” is the day they became qualified: clause 4(1) of Schedule 2 of the Administration Act.
Consequently, the relevant period for consideration of Mr Andrich’s qualification for DSP is 13 February 2013 (being the date Mr Andrich’s DSP Claim was lodged at Centrelink) to 14 May 2013 (being 13 weeks after Mr Andrich’s DSP Claim was lodged at Centrelink) (Relevant Period). [2]
[2] See also Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 at [7] to [8]
MEDICAL EVIDENCE
The following medical evidence is relevant to Mr Andrich’s DSP Claim as it relates to Mr Andrich’s “impairments” up to and including the Relevant Period. Any medical evidence provided by Mr Andrich which does not relate to Mr Andrich’s “impairments” up to and including the Relevant Period, is irrelevant to this application and cannot be considered by the Tribunal: see paragraphs 15 and 16 above.
Perth Radiological Clinic Reports
On 24 August 2012, an x-ray was performed on Mr Andrich’s cervical spine, in relation to an injury sustained one month previously and persisting pain and stiffness. The findings of the x-ray are as follows:
Limited flexion and extension. No instability. No fracture identified. Degenerative spondylosis C4/5, C5/6, C6/7. Degenerative changes uncovertebral joints C5/6, C6/7 bilaterally with early narrowing of the intervertebral foramina. Mild changes also noted at C4/5 bilaterally. Facet joints are normal. No sinister osseous lesions.
On 27 August 2012, an x-ray was performed on Mr Andrich’s lumbar spine and left hip. The results of the x-ray on the lumbar spine show that there is upper lumbar disc and lower lumbar facet joint degenerative change. The results of the x-ray on the pelvis and left hip did not reveal any evidence of advanced hip joint degenerative change.
On 31 August 2012, a bone scan was performed on Mr Andrich’s lumbar spine which revealed that:
·    The scintigraphic appearances of the lumbar spine are typical of degenerative disease;
·    Abnormal bone metabolism is more prominent relating to the right-sided L2/3 facet joint and both L4/5 facet joints, particularly to the left of the midline; and
·    Mild bilateral gluteal enthesopathy.
On 5 September 2012, x-rays were performed on Mr Andrich’s right ankle and left knee, as a follow up of medial malleolar fracture.
The x-ray of Mr Andrich’s right ankle showed that there was:
·    no displaced fracture line, although some sclerosis was seen at the medial malleolus reflecting the site of the prior healed fracture;
·    a small osteochondral lesion of the medial margin of the talar dome, which was observed to be unchanged from the previous study; and
·     a prominent calcaneal spur.
The x-ray of Mr Andrich’s left knee showed that there was no plain film evidence to suggest accelerated patellofemoral chondromalacia.
On 25 September 2012, a CT arthrogram was performed on Mr Andrich’s left knee, with reported that there is a:
·    tiny focus of radial free margin tearing involving the lateral meniscal mid body region;
·    tricompartmental degenerative chondral changes, with the most prominent involving the retropatellar surface with full thickness ulceration over the median eminence extending to the adjacent lateral facet; and
·    small Baker’s cyst.
On 22 November 2012, an x-ray was performed on Mr Andrich’s left ankle which showed that:
·    the alignment of Mr Andrich’s ankle joint is satisfactory without significant joint effusion identified;
·    there is a focal cortical irregularity and subcortical lucency identified at the medial talar dome, suggestive of underlying chondral degeneration;
·    no definite loose body or cortical depression is shown to suggest a definite osteochondral lesion; and
·    a moderate size plantar calcaneal spur is present.
On 26 November 2012, Mr Andrich underwent a whole body bone scan which identified:
·    mild irregularity in the thoracic spine, in keeping with early multilevel degenerative change;
·    degenerative periarticular uptake at the shoulders, knees, ankles, wrists and small joints of the hands and feet; and
·    notable active facet arthropathy at L2/3 on the right and L4/5 on the left which may account for Mr Andrich’s lower back pain.
On 31 January 2013, an x-ray was performed on Mr Andrich’s left shoulder and clavicle which showed a bony prominence of the lateral margin of the clavicle without AC joint instability or significant degenerative change.
On 9 May 2013, an ultrasound was performed on Mr Andrich’s right ankle. No ligamentous or tendinous abnormality was found.
Also on 9 May 2013, an x-ray was performed on Mr Andrich’s right ankle which found:
Alignment of the ankle joint is satisfactory without a significant joint effusion identified. The joint space is relatively well maintained although there is marginal osteophytic spurring at the anterior insertion of the distal tibial plafond. There is slight talar beaking noted. Overall appearance does raise the possibility of underlying anterior impingement. The subtalar joint is normal. Prominent plantar calcaneal spur is present. No evidence of acute or healing fracture is shown.
Dr Bloor report
In a Centrelink “Medical Report Disability Support Pension”, dated 7 February 2013, Dr Geoffrey Bloor (General Practitioner), of the Swan Medical Group, described Mr Andrich’s condition with the most impact as osteoarthritis affecting the spine and upper limbs (Dr Bloor Report).
In summary, the Dr Bloor Report stated:
·the diagnosis was said to be confirmed but was not supported by further specialist opinion and no date of onset was recorded;
·current treatment was said to include anti-inflammatories and analgesics, both of which had been commenced in 1992;
·no different future treatment was planned. The symptoms of osteoarthritis were listed as pain and stiffness in joints;
·the impact on Mr Andrich’s ability to function as reduced function of upper limbs and reduced spinal mobility; and
·the impact of the condition was assessed as likely to last for more than 2 years and likely to deteriorate in that time.
The Dr Bloor Report listed left knee pain and instability as a condition that was generally well managed and caused minimal or limited impact on Mr Andrich’s ability to function.
Mr Clark report
In his medical report dated 18 February 2013, specialist Mr Gavin Clark (Orthopedic Surgeon), reported that Mr Andrich was experiencing anterior left knee pain with less severe but similar symptoms on the right side, and that he had moderately severe patella femoral osteoarthritis with lateral maltracking, and tight lateral retnaculum and lateral soft tissue structures (Mr Clark Report).
The Mr Clark Report noted that Mr Clark had referred Mr Andrich for physiotherapy and indicated that arthroscopic lateral release may be considered if physiotherapy failed to settle his discomfort. The Mr Clark Report also indicated that Mr Andrich may be able to avoid knee replacement surgery for “some time to come”.
JCA report
Mr Andrich attended a JCA with two JCA Assessors (being a qualified social worker and a registered occupational therapist) on 18 February 2013. The JCA Assessors submitted their report on their assessment of Mr Andrich on 28 February 2013 (JCA Report).
The JCA Report states that Mr Andrich has the “permanent” medical condition of osteoarthritis which is verified by medical evidence as fully diagnosed, fully treated and fully stabilised.
The JCA Assessors gave Mr Andrich’s osteoarthritis a recommended rating of 5 points under Table 4 (Spinal Function) of the Impairment Tables and 5 points under Table 2 (Upper Limb Function) of the Impairment Tables, giving Mr Andrich’s osteoarthritis a total impairment rating under the Impairment Tables of 10 points.
The functional impact of Mr Andrich’s osteoarthritis was described in the JCA Report as follows:
Self care and independence is retained, can bend to floor level to pick up a light object – notes moderate pain markers. Would be able to bend to knee level without increased pain. Some difficulty with spine movement in lower and upper regions. Inability to sustain career in heavy manual labouring.
Limited range of movement in left shoulder, wrist weakness. Is able to manipulate most objects, use a computer keyboard, knife and fork and unscrew the lid off a bottle. Has some difficulty with activities over the head height.
The JCA Report also noted the following in relation to Mr Andrich’s osteoarthritis:
Supporting reasons summary
There is mild functional impact on activities involving spinal function.
(1) The person has some difficulty in: (c) turning their trunk or moving their head.
There is mild functional impact on activities using hands or arms.
(1) The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with the following: (a) picking up heavier objects, (d) reaching up or out to pick up objects.
In the JCA Report, the JCA Assessors reported that Mr Andrich also had the “permanent” medical condition of lower limb deficiencies and that this condition has been verified by medical evidence as “fully diagnosed”, but not fully treated or stabilised as there was an absence of information from a specialist addressing treatment and prognosis of the condition.
The JCA Report also stated that Mr Andrich has:
· a baseline work capacity of 15 to 22 hours per week in light semi-skilled work; and
· a capacity for work within 2 years with intervention of 23 to 29 hours per week in light semi-skilled work.
ANALYSIS
Qualification for DSP – s 94(1) of the SSA
The requirements for qualification for DSP are set out in s 94(1) of the SSA, which states:
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;
(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
[Emphasis added]
Impairment – s 94(1)(a) of the SSA
The term “impairment” is not defined in the SSA. However, s 3 of the Impairment Tables defines “impairment” to mean:
A loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
It is common ground that Mr Andrich has a physical “impairment” for the purposes of s 94(1)(a) of the SSA, being osteoarthritis which impacts on his upper limbs, lower limbs and spine.
Impairments attract 20 points or more under the Impairment Tables – s 94(1)(b)
What is in dispute, and what the Tribunal must consider, is whether in the Relevant Period Mr Andrich’s “impairments” attracted 20 points or more under the Impairment Tables, as required by s 94(1)(b) of the SSA. If “yes”, the Tribunal must then consider whether Mr Andrich had a “continuing inability to work” within the meaning and for the purposes of s 94(1)(c) of the SSA.
A person’s level of impairment must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Impairment Tables.
The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered: s 6(2) of the Impairment Tables.
The “Introduction” to the Impairment Tables sets out that an impairment rating can only be allocated to an impairment if the condition causing the impairment is “permanent” and the impairment is likely to persist for more than 2 years: s 6(3) of the Impairment Tables.
A condition will be “permanent” if it is “fully diagnosed” by an “appropriately qualified medical practitioner”, “fully treated”, “fully stabilised” and is likely to persist for more than 2 years: s 6(4) of the Impairment Tables.
An “appropriately qualified medical practitioner” is a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition: s 3 of the Impairment Tables.
The phrases “fully diagnosed” and “fully treated” are defined in s 6(5) of the Impairment Tables as follows:
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraph 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition, and
(b)what treatment or rehabilitation has occurred in relation to the condition, and
(c)whether treatment is continuing or is planned in the next 2 years. [Emphasis added]
The phrase “fully stabilised” is defined in s 6(6) of the Impairment Tables as follows:
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment. [Emphasis added]

The phrase “reasonable treatment” is defined, for the purposes of s 6(6) of the Impairment Tables, in s 6(7) of the Impairment Tables as treatment that is available at a location reasonably accessible to the person, is at a reasonable cost, can reliably be expected to result in a substantial improvement in functional capacity, is regularly undertaken or performed, has a high success rate and carries a low risk to the person.
It is not in dispute that Mr Andrich’s osteoarthritis (which impacts upon Mr Andrich’s upper limbs, lower limbs and spine) was “fully diagnosed”, “fully treated” and “fully stabilised” in the Relevant Period.
Section 10 of the Impairment Tables provides that where a single condition causes multiple impairments, each impairment should be assessed under the relevant Impairment Table. Since Mr Andrich’s osteoarthritis condition impacts upon his upper limbs, lower limbs and spine it is appropriate to consider whether an impairment rating can be allocated for the condition under each of the relevant Impairment Tables, being Table 2 (Upper Limb Function), Table 3 (Lower Limb Function) and Table 4 (Spinal Function).
Osteoarthritis – impairment rating
Table 2 – upper limb function
Table 2 of the Impairment Tables provides that 0 points should be assigned to an impairment involving upper limb function where there is “no” functional impact on activities using hands or arms, meaning that the person “can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty”.
Whereas, 5 points should be assigned to an impairment involving upper limb function under Table 2 of the Impairment Tables where there is “mild” functional impact on activities using hands or arms. This will be the case where:
(1) The person can manage most daily activities requiring the use of hands and arms, but has some difficulty with most of the following:
(a)picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b) handling very small objects (e.g. coins);
(c) doing up buttons;
(d) reaching up or out to pick up objects.
Based on the medical evidence, the appropriate impairment rating for Mr Andrich’s osteoarthritis, so far as it impacts on his upper limb function for the Relevant Period, under Table 2 of the Impairment Tables is 0 points.
In reaching this conclusion, the Tribunal notes, in particular:
·The Dr Bloor Report which states that Mr Andrich has reduced function of his upper limbs;
·The JCA Report which states that Mr Andrich is able to manipulate most objects, use a computer keyboard, knife and fork, can unscrew the lid of a bottle, but has some difficulty with activities overhead height; and
·Mr Andrich’s evidence before the SSAT that he has difficulty raising his arm above his head or above shoulder height and found it hard to grip things with his left hand, especially things like a hot kettle.
The medical evidence indicates that in the Relevant Period Mr Andrich could manage most daily activities requiring the use of the hands and arms, but had some difficulty with picking up heavier objects and reaching out or up to pick up objects. However, the medical evidence does not suggest that in the Relevant Period Mr Andrich had any difficulty handling very small objects or doing up buttons. Since in the Relevant Period Mr Andrich had difficulty with only 2 of the 4 descriptors for a 5 point rating under Table 2 of the Impairment Tables, he did not meet “most” (i.e. more than 50%) of the descriptors under Table 2 of the Impairment Tables.[3] Consequently, it cannot be said that in the Relevant Period Mr Andrich’s osteoarthritis had “mild” functional impact on activities using his arms and hands. As such, an impairment rating of 0 under Table 2 is appropriate.
[3] The Guide to Social Security Law provides (at 3.6.3.05) that for the purpose of applying the Impairment Tables “most” means more than 50%. For example, if there are 3 examples in the descriptor, “most” means 2; if there are 4 examples in the descriptor, “most” means 3; if there are 6,“most” means 4 and so on.
Table 3 - Lower limb function
Table 3 of the Impairment Tables provides that a 0 impairment rating should be assigned to an impairment involving lower limbs where there is “no” functional impact on activities requiring the use of lower limbs. This will be the case where:
(1) The person can:
(a)walk without difficulty on a variety of different terrains and at varying speeds; and
(b) walk without difficulty around the home and community; and
(c) kneel or squat and rise back to a standing position without difficulty; and
(d) stand unaided for at least 10 minutes; and
(e) use stairs without difficulty.
Whereas, 5 points should be assigned to an impairment involving lower limbs under Table 3 of the Impairment Tables where there is a “mild” functional impact on activities using lower limbs. This will be the case where:
(1)       At least one of the following applies:
(a)the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b)the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c)       the person has some difficulty climbing stairs; and
(2)       At least one of the following applies:
(a)       the person is unable to stand for more than 10 minutes;
(b)the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick. [Emphasis added]
The Tribunal finds that appropriate impairment rating for Mr Andrich’s osteoarthritis condition in so far as it impacts on his lower limb function under Table 3 of the Impairment Tables in the Relevant Period is 0 points. In reaching this conclusion the Tribunal notes, in particular, the Dr Bloor Report which indicated that Mr Andrich’s left knee pain and instability was a condition that was generally well managed and caused minimal or limited impact in the Relevant Period.
While the evidence supports a finding that in the Relevant Period Mr Andrich had some difficulty walking to local facilities, there is no evidence that, during the Relevant Period, Mr Andrich was unable to stand for more than 10 minutes or that he required a lower limb prosthesis or a walking stick. As Mr Andrich did not satisfy “at least one” of the descriptors at paragraph (2) (set out above in paragraph 62), a 5 point rating cannot be allocated to Mr Andrich’s osteoarthritis (as it impacts on his lower limb function) in the Relevant Period under Table 3 of the Impairment Tables.
Table 4 – spinal function
Table 4 of the Impairment Tables provides that an impairment rating of 10 should be assigned to an impairment involving spinal function where there is “moderate” functional impact on activities involving spinal function. This will be the case where:
(1) 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 shoulder0; 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).
Whereas, an impairment rating of 20 should be assigned to an impairment involving spinal function under Table 4 of the Impairment Tables where there is “severe” functional impact on activities involving spinal function. This will be the case where:
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
The appropriate impairment rating for Mr Andrich’s osteoarthritis, in so far as it impacts on his spinal function, under Table 4 of the Impairment Tables in the Relevant Period is 10 points (not 20 points). That is, the Tribunal finds based on the medical evidence that in the Relevant Period Mr Andrich’s osteoarthritis condition caused “moderate” rather than “severe” functional impact on activities involving spinal function. In reaching this conclusion, the Tribunal notes, in particular:
·The Dr Bloor Report which indicated that Mr Andrich had reduced spinal mobility; and
·The JCA Report which noted that Mr Andrich retained self-care and independence, could bend to floor level to pick up an object with some pain and would be able to bend to knee level without increased pain, and experienced some difficulty with spine movement in lower and upper regions.
The evidence suggests that Mr Andrich could, in Relevant Period, sit in a car for 30 minutes, and was unable to sustain overhead activities and had difficulty moving his head to look in all directions. Accordingly, a rating of 10 points under Table 4 of the Impairment Tables for Mr Andrich’s osteoarthritis in the Relevant Period is appropriate.
The medical evidence does not support an impairment rating of 20 points under Table 4 of the Impairment Tables as there is no evidence that Mr Andrich was, in the Relevant Period, unable to perform any overhead activities, turn his head, or bend his neck, without moving his trunk, bend forward to pick up a light object from a desk or table or remain seated for at least 10 minutes, as is required to attract a 20 point impairment rating under Table 4 of the Impairment Tables.
Mr Andrich’s overall impairment rating
For the above reasons, the Tribunal finds that Mr Andrich’s osteoarthritis (which impacted upon his lower limbs, upper limbs and spinal function) attracted 10 points under Table 4 of the Impairment Tables in the Relevant Period. Since this is less than the 20 points required to satisfy the requirements of s 94(1)(b) of the SSA, Mr Andrich was not qualified for DSP in the Relevant Period. That is not to say that Mr Andrich will not qualify for DSP, under s 94(1) of the SSA, in the future, if he were to lodge a new claim.
Continuing inability to work – s 94(1)(c) of the SSA
Since the Tribunal finds that Mr Andrich’s “impairments” do not attract ratings of at least 20 points or more under the Impairment Tables in the Relevant Period, it is unnecessary for it to consider whether Mr Andrich has a “continuing inability to work” for the purposes of s 94(1)(c)(i) of the SSA.
DECISION
For the above reasons, the Tribunal affirms the SSAT Decision.

I certify that the preceding 72 (seventy two) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh

...(Sgd) T Freeman............
Associate
Dated: 19 December 2014

Date of hearing 18 December 2014

Representative for the Applicant Self

Representative for the Respondent Ms A Ladhams

Solicitors for the Respondent Australian Government Solicitor

[2014] AATA 953

19 December 2014

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Disability Support Pension

Impairment Ratings

Statutory Interpretation

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/2940
Re	Douglas Andrich
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Senior Member CR Walsh
Date	19 December 2014
Place	Perth

Date of hearing	18 December 2014
Representative for the Applicant	Self
Representative for the Respondent	Ms A Ladhams
Solicitors for the Respondent	Australian Government Solicitor