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

[2018] AATA 758

Duncan and Secretary, Department of Social Services (Social services second review) [2018] AATA 758 (9 February 2018)

Division:GENERAL DIVISION

File Number(s):      2017/3330

Re:John Duncan

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:9 February 2018

Place:Sydney

The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 24 May 2017 is set aside and in substitution it is decided that the applicant is qualified to receive a disability support pension with effect from 12 October 2016.

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

Bill Stefaniak AM RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant qualified for disability support pension – lower limb function – brain function – spinal function – whether applicant’s impairments rated at 20 points or more under a single table – whether applicant had a continuing inability to work – decision under review set aside and substituted

LEGISLATION

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

Social Security (Administration) Act 1999 s 94

REASONS FOR DECISION

Bill Stefaniak AM RFD, Senior Member

9 February 2018

BACKGROUND

1. The applicant was born on 2 March 1954.

2. He was formerly a computer engineer and in December 1994, whilst working for Colgate-Palmolive as a computer network engineer, was attacked on a train and suffered serious injuries to his right lower arm plus a broken nose and bruising.

3. In 1997, whilst working as an IT contractor at Qantas, he was involved in a car accident and suffered four displaced discs in his back.

4. In 2002, whilst working as the regional IT manager for Interface Corp, he injured himself further in a fall on the concrete floor of the company’s warehouse. He ruptured three of the displaced discs in his back, tore the medial meniscus in his right knee and sprained his right shoulder.

5. Over the next four years he had the following operations: right knee reconstruction; L5-S1 discectomy, fixation and laminectomy; and C5-C6-C7 discectomy and fixation with plates and bone graft from his right hip.

6. He at one stage applied for and received a disability support pension (DSP) but after his insurance claim was settled in early 2009, repaid all monies received from his DSP and was advised that he was not eligible for any welfare payments until July 2016. The WorkCover Tribunal ruled that he had a 47% whole of body permanent disability.

7. In March 2010 he obtained part time employment with a local engineering firm doing some accounting work, phone sales and computer maintenance. He would work for three hours on Fridays and six hours on Mondays. He found it very stressful on the several occasions he had to work an extra day to cover for other people’s absences.

8. In early 2015 he was getting increased pain in his back and as he could no longer sit at a desk without severe pain he had to leave the job. The pain was diagnosed by Dr Stanford as arthritis in his hip and around one of the screws in his back.

9. On 13 July 2016 he lodged a claim for DSP. Medical evidence in support of his claim led to his conditions being assessed as fully diagnosed, treated and stabilised.

10. His accepted conditions were: cervical radiculopathy – post C5-6-7 fusion; post laminectomy – L5/S1 chronic pain; and osteoarthritis in both knees.

11. On 28 September 2016 the Job Capacity Assessment (JCA) recommended a rating of 10 points under Table 4 for his spinal disorder, 10 points under Table 3 for lower limb deficiencies and 5 points under Table 7 for his respiratory disorder (sleep apnoea).

12. The assessor also found that the applicant had a baseline work capacity of 8 to 14 hours per week rising within two years to 15 to 22 hours per week.

13. On 29 November 2016 Centrelink rejected the applicant’s claim for DSP as he had not actively participated in a program of support as required by legislation, as he did not receive 20 points for any one table.

14. On 6 December 2016, Dr Pillai, the applicant’s GP, prepared a report that amongst other things stated in answer to the JCA report “I do believe that based on his current clinical status that he is never ever going to be able to return to any meaningful work”. The doctor gave evidence in these proceedings on 11 October 2017 and whilst cross examined on other reports he made that were before the Tribunal, was not challenged on this assessment.

15. On 3 February 2017, an internal review affirmed the earlier decision, and a subsequent appeal to the AAT1 was also rejected on 24 May 2017.

16. The AAT1 and the respondent all agreed that the JCA allocation of 25 points under Tables 4, 5 and 7 was correct, and as the applicant had not participated in a program of support, he was not eligible for a DSP at the relevant date.

    LEGISLATION

17. The relevant qualification period we are dealing with here is the 13 weeks between the claim date 13 July 2016 and 12 October 2016 inclusive.

18. The Social Security (Administration) Act 1999 provides (section 94) that to qualify for a DSP a person must have a physical, intellectual or psychiatric impairment, that impairment is 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables), and the person has a continuing inability to work.

19. Further, if a person can attain 20 points for any one impairment under the tables, that person does not have to complete a program of support which otherwise would need to be undertaken for at least 18 months in the last three years, but would still need to satisfy the Secretary that the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next two years.

20. “Any work” has been taken to mean a work capacity within two years with intervention of 15 to 22 hours per week.

21. Further, the impairment must of itself be sufficient to prevent the person from undertaking a training activity during the next two years or if the impairment does not prevent the person from undertaking such an activity, such activity is unlikely, because of the impairment, to enable the person to do any work independent of a program of support within the next two years.

    EVIDENCE AND DISCUSSION

22. Having regard to the documentary and oral evidence in this matter, I am satisfied that the ratings of 10 points for Table 3 and 5 points for Table 7 are correct as at the qualification period (July to October 2016).

23. It is clear to me in regard to Table 3 that the applicant, as at the qualification period, was unable to walk far outside of his home and needed to drive to his local shops. Further he was able to use public transport but could not walk around the shopping centre and used a mobility scooter provided by the centre and left inside the door for him. He could move independently around the shopping centre using the scooter and he could independently transfer himself in and out of that mobility scooter.

24. He certainly qualifies for 10 points under Table 3 but to get 20 points the applicant would need to have assistance from another person to transfer in and out of his mobility scooter and to walk on some surfaces. He would need assistance from another person to walk around the shopping centre, to walk from the carpark into the shopping centre, or to stand up from a sitting position. As he could mobilise around the shopping centre without the assistance of another person and as he can stand up from a sitting position without the assistance of another person, he cannot qualify for the 20 points.

25. In relation to Table 7, I agree with 5 points only. Having listened to the very cogent evidence given by the applicant and to his most competent presentation of his case to the Tribunal, it is clear to me that he is able to complete most day-to-day activities without assistance and at worst has only mild difficulties in such things like memory, attention and concentration, problem solving, planning and decision-making and comprehension.

26. The applicant gave sworn evidence on oath that it took him about one and a half weeks to read all the material in this case. That was because of the pain he was in and the medications he was taking. He said he was tired all the time. He indicated this condition will only get worse.

27. The Tribunal notes that the excessive time needed to prepare his case has a lot to do with his other conditions that he suffers pain from. Accordingly I think 5 points is the correct allocation for Table 7.

28. We come now to Table 4 – Spinal Function. The applicant gave detailed evidence and was cross-examined extensively. Dr Pillai also gave evidence both in written form and orally. He was also extensively cross-examined.

29. A lot of the evidence given by Dr Pillai was centred around the respondent’s concern that up until 2016 the applicant had a pilot's licence. There was evidence that the applicant had flown as pilot in command from Camden to Temora in 2014 which necessitated him climbing up two steps and easing himself over the passenger seat into the pilot seat of the two seater plane.

30. The applicant gave evidence that he has not flown since 2015 and his licence lapsed in 2016. Nevertheless the respondent quite properly made much of the fact that Dr Pillai had indicated that the applicant’s condition was more or less the same now as it was three or so years ago and that he seemed surprised that the applicant was able to fly the aircraft in 2014.

31. Conversely the applicant indicated how he got into the aircraft and stated that it was not that difficult. The aircraft also had rear vision mirrors so it was not necessary for him to turn his head around nor was there any need for him to do anything over head height, and at any rate his condition had deteriorated in early 2015. That is why Dr Pillai had sent him to see Dr Stanford whose full report was read out by the Tribunal during the cross-examination of Dr Pillai. It showed some deterioration in his spine and discs.

32. The applicant disagreed with a number of the Secretary’s contentions and told the Tribunal that Dr Pillai, having read the guidelines to the tables, determined that he was unable to perform any overhead tasks, unable to sit in a standard car seat for at least 30 minutes, or sit in a standard chair for more than 10 minutes. The applicant also disputed ever saying to the Job Capacity Assessor that he was able to sit in a standard chair for 15 to 20 minutes. He said he was referring to a lounge chair with leg support.

33. The applicant drove a specially modified car with a special seat. Having heard his evidence and that of Dr Pillai and read the various reports, I have no problem agreeing with the descriptors that the applicant qualifies for 10 points under Table 4, in that he cannot sustain overhead activities such as accessing items over head height and he has difficulty moving his head to look in all directions.

34. The question is does he satisfy the descriptors for 20 points under this table? To get 20 points there must be a severe functional impact on activities involving spinal function. A person has to be 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 a least 10 minutes.

35. The applicant can, with some difficulty, do (c) and (d). Can he do (a) and/or (b)?

36. To qualify as being unable to perform any overhead activities (or indeed (b) – turning head and/or bending neck without moving one’s trunk), the guidelines to the tables effective from 1 January 2012 state at page 58: “An activity listed under a descriptor is not taken to have been performed if it can only be done once or rarely”.

37. The example given under the 20 point descriptor is as follows: “If a person is able to bend forward to pick up a light object from a desk or table but after doing this once has to rest their back and is unable to bend forward for the remainder of the day it should be considered that the person is therefore unable to do this activity”.

38. The evidence from the applicant indicated that he would rarely have cause to do anything over head height or indeed have cause to do much around the home generally because of his ailments. He was also fortunate in having his 14 year old grandson do a lot of the tasks he used to do when he was more physically capable. For example, his grandson would wash clothes and put them on the line.

39. If the applicant had to get a cup out of the cupboard he would find this difficult even at head height and he would drop the cup. He indicated there was no way he could do that over head height. He could not hammer a nail into a wall. He would drop the hammer even at head height.

40. It was put to him that he had said he could wash his hair in the shower. He responded that he could only do that by leaning forward whilst sitting on his shower stool so that his head was down and that way he could get his hands to his head to wash his hair. He could not wash his hair if his back was straight as that would involve putting his hands over his head which he could not do.

41. Both parties were invited to make further submissions and put further evidence to the Tribunal by 8 November 2017. Both parties availed themselves of that opportunity, with the respondent giving the Tribunal a picture of the type of plane flown by the applicant and the applicant giving the Tribunal a picture of his shower and shower stool and a picture of him in his modified Ford Fairlane car adjusting the rear vision mirror.

42. The photo of him in his car showed significant headroom and a rear vision mirror he could adjust without the need to turn around and which was at head height only. It showed him adjusting the mirror with his right arm extended and slightly raised from the shoulder with his hand on the mirror which was placed perhaps 100 mm below the top of his head.

43. The Tribunal accepts that these above two activities were not activities performed as overhead activities in the circumstances of this case.

44. Dr Pillai’s written report dated 1 August 2017 indicated he could not perform any overhead activities on a repetitive or habitual basis and described him as having a severe functional impact on any activities involving his spine and allocated 20 points pursuant to Table 4. This was similar to his report of 17 May 2010.

45. Dr Pillai also gave evidence on 11 October 2017 and indicated in relation to overhead activities that maybe the applicant could perform an overhead activity “I would say – if you are saying on a repetitive manner, no, but an occasional one, maybe, yes”. The doctor was asked “So what would you class as like a one-off – do you mean that by occasional?” and he answered “yes, just maybe reaching up for a top shelf to grab something, but if you have to do repetitive, definitely no”.

46. Dr Pillai also indicated in relation to the descriptor of not being able to turn his head or bend his neck without moving his trunk, that “I think he’s got very limited movements … I mean, driving a car and all, I think he does have to swivel around a bit”.

47. Dr Pillai gave evidence that in 2016 he had seen the applicant on 14 occasions and would see him on average once a month for anything between 10 and 30 minutes.

48. It was quite obvious to the Tribunal having regard to all the evidence, that the applicant certainly satisfied that descriptor of being unable to sustain overhead activities. If the descriptor being unable to perform any overhead activities meant any at all, i.e. none, then the applicant would not satisfy it.

49. However the accepted interpretation of “any” in this context (see page 58 of the guidelines to the table effective 1 January 2012) does not rule out being able to perform an occasional overhead activity. If it can only be done once or rarely, it is deemed to satisfy that descriptor.

50. Dr Pillai stated that maybe the applicant would be able to perform occasionally a one-off overhead activity. The applicant himself has indicated that he in reality can’t as it is just too hard.

51. The medical evidence fits within the accepted definition of “any”, which does not preclude a one-off or occasional overhead activity. The applicant indicated that he could not and did not at the relevant time attempt any overhead activity and had taken steps to ensure he did not have to attempt overhead activities by doing things differently (see the photos already commented on). Therefore the Tribunal is satisfied on all the evidence put before it that for the purposes of Table 4 the applicant was and is unable to perform any overhead activities as that term has been defined and accepted in these types of matters.

52. I should also add that the applicant may well have sufficient evidence to satisfy descriptor (b) namely turning his head or bending his neck. Dr Pillai certainly thinks he did and I have quoted him above to that effect. The Tribunal does have a mind’s eye view that the applicant did in fact turn his head and bend his neck on one or two occasions during the hearing. But it is not a clear one and I did not note it down as I normally would. For example I noted that the applicant sat in a Tribunal chair for 28 minutes. It was one of our more comfortable chairs but not a special one. My notes are silent on head and neck movement.

53. Accordingly, I am unable to decide one way or the other on that descriptor for that reason. At any rate as a result of my finding in relation to descriptor (a) I do not need to.

54. As this Tribunal finds the applicant is entitled to 20 points for Table 4, there is no requirement for him to have completed a program of support.

55. When a person gets 20 points for one impairment under the tables that is usually indicative of the fact that they have a continuing inability to work, as in these types of instances the condition is fully diagnosed, treated and stabilised and is unlikely to improve or change in the next two years.

56. However, the Secretary (and in this instance this Tribunal standing in the shoes of the Secretary) has also to be satisfied that the impairment is of itself sufficient to prevent the applicant from doing any work independently of a program of support within the next two years and either that impairment is of itself sufficient to prevent the person from undertaking a training activity during the next two years or, if the impairment did not prevent the applicant from undertaking a training activity, such activity is unlikely (because of the impairment) to enable him to do any work independently of a program of support within the next two years.

57. Dr Pillai, in his report dated 6 December 2016, stated “he is never ever going to be able to return to any meaningful work”.

58. Further, as the applicant points out, in the ARO notes of the Record of Discussion with Customer dated 3 February 2016, the ARO states “Whilst I respect that the JCA has assessed future work capacity of 15-22hpw, in light of additional medical evidence from the treating GP I am satisfied that, it is more likely than not, that this may be an optimistic assessment of the customer’s work capacity. CUS conditions are FDTS [fully diagnosed treated and stabilised] and therefore improvement is not expected so it can be reasonably be considered that the work capacity would remain stable at 8-14hpw”.

59. Further to this the applicant has given evidence that he was in the workforce full time until 2002, and after his operations and after ceasing to be on a DSP in 2010 when his compensation claim was settled, he re-entered the workforce in a part time capacity working six hours on a Monday and three hours on a Friday. He was unable to even continue this limited amount of work because of the deterioration in his condition in 2015. He initially gave up the six hour stint and had to give up working the three hour stint in August 2015.

1. I found the applicant to be a truthful if intense witness who was clearly frustrated at his lot and in particular, not being able to work. He had held responsible, interesting and well-paid jobs in the past and had led an active life and would obviously prefer to be working again rather than suffering the restrictions his accidents had thrust upon him. For a man of his obvious ability if he could do suitable work he would have no difficulty in finding it with or without assistance in my view.

2. As a result of his ailments, which I also accept are certainly not going to improve with time but will continue to deteriorate as he ages, at the relevant time namely 13 July 2016 to 12 October 2016 I find that he had a continuing inability to work.

3. Indeed as a result of the difficulties he encountered in 2015 when he could not even sustain working six hours on Monday and then having a break before doing another three on Friday, I think it would be highly unlikely that he would even have been able to engage in eight hours work a week as at 2016, let alone now. Accordingly, and sadly, because I’m sure he would prefer otherwise, the applicant satisfies the Tribunal that he has a continuing inability to work.

4. Finally the Tribunal notes the applicant is 63 years of age and at the time of the determination was 62. Given his age this is another factor in it being highly improbable that his conditions will get any better in the future due amongst other reasons to the normal ageing process that every human body suffers from.

   DECISION

5. It is the decision of this Tribunal that the decision of the AAT1 dated 24 May 2017 be set aside and that the applicant is qualified to receive a DSP with effect from 12 October 2016.

6. The Tribunal notes that it does have a limited discretion in terms of when a person qualifies for a DSP to the extent that the Tribunal is limited to a time within the qualification period. In this instance the Tribunal feels the pension should commence from the end of that period, namely 12 October 2016.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

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

Associate

Dated: 9 February 2018

Date(s) of hearing:	11 October 2017
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services