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

Ellison and Secretary, Department of Social Services (Social services second review) [2017] AATA 578 (2 May 2017)
Division:GENERAL DIVISION
File Number: 2016/5024
Re:Robert Ellison
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:2 May 2017
Place:Brisbane

The Tribunal affirms the decision under review.
..............................[Sgd]..........................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – whether continuing inability to work - decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth), ss 26, 94
Social Security (Administration) Act 1999 (Cth), ss 41, 42, Sch 2 Pt 2 Cls 3, 4
CASES
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368
OTHER MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
REASONS FOR DECISION
Member D K Grigg
2 May 2017
INTRODUCTION

On 11 December 2015 Mr Ellison lodged a claim for Disability Support Pension (“DSP”), listing his medical conditions as “Charcot syndrome” which is a degenerative bone disease affecting his feet (“Claimed Medical Condition”).[1] In his DSP claim Mr Ellison said his Claimed Medical Condition affects his mobility which is limited and he cannot carry weight.[2]
[1] Exhibit 1, T Documents, T5, pages 53-80, Mr Ellison’s Claim for DSP dated 11 December 2015.
[2] Exhibit 1, T Documents, T5, at page 65, Mr Ellison’s Claim for DSP dated 11 December 2015.
To date Mr Ellison’s claim for DSP has been rejected. Mr Ellison seeks a further review by this Tribunal.
Claim History
As a result of a Job Capacity Assessment (“JCA”) Mr Ellison’s claim was rejected by a Centrelink officer on 15 May 2016.[3] The JCA concluded that Mr Ellison’s impairment did not attract 20 points or more under the Impairment Tables.[4]
[3] Exhibit 1, T Documents, T6, pages 81-82, Centrelink Decision dated 15 May 2016.
[4] Exhibit 1, T Documents, T18, pages 118-123, Job Capacity Assessment report dated 11 May 2016.
Mr Ellison then sought a review of that decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mr Ellison’s impairment did not attract 20 points or more under the Impairment Tables.[5]
[5] Exhibit 1, T Documents, T8, pages 85-90, ARO Decision dated 12 July 2016.
Mr Ellison then lodged an application for review with the Social Services and Child Support Division (“SSCSD”). The SSCSD rejected Mr Ellison’ claim and affirmed the ARO’s decision on 6 September 2016.[6]
[6] Exhibit 1, T Documents, T2, pages 6-11, SSCSD’s Decision and Reasons for Decision dated 6 September 2016.
Mr Ellison has sought a review of the SSCSD’s decision by this Tribunal.[7]
[7] Exhibit 1, T Documents, T1, pages 1-5, Application for Review of Decision dated 20 September 2016.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):
(a)Mr Ellison must have a physical, intellectual or psychiatric impairment/s.
(b)Mr Ellison’s impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[8]
(c)Mr Ellison must have a continuing inability to work.
[my emphasis]
[8] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Ellison meets the Section 94 Requirements is the date of the claim (in this instance as at 11 December 2015), unless Mr Ellison becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[9] Therefore, in order to qualify for DSP Mr Ellison must have met the Section 94 Requirements between 11 December 2015 and 12 March 2016 (“Qualification Period”).
[9] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration)
Act 1999 (Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Ellison’s impairments after the Qualification Period cannot be considered unless it “casts light on” the functional impact of the impairments in the Qualification Period.[10]
DID MR ELLISON HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[10] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]
and on appeal, Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
WHAT IS AN IMPAIRMENT
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[11]
[11] Determination, s 3.
Mr Ellison’ Medical Conditions
Mr Ellison was diagnosed with diabetes in 2000. As a result of this condition Mr Ellison has suffered from foot ulcerations and has had a part amputation of his left first digit.[12]
[12] Exhibit 1, T Documents, T16, pages 113-114, Report of Mr Worner dated 28 April 2014.
Foot Condition
In August 2014 Mr Ellison was reviewed by Dr Troy Keith, Orthopaedic Surgeon. Dr Keith noted that there had been a clear change in Mr Ellison’s condition since 2012 with “destruction of the mid-foot [of his left leg] with sclerosis and fragmentation involving the tarsometatarsal joints representative of a charcot arthropathy”.[13] Dr Keith noted that this condition can lead to amputation and a total contact cast was applied.
[13] Exhibit 1, T Documents, T12, pages 108-109, Report of Dr Keith dated 20 August 2014.
Mr Ellison was then reviewed by Ms Laeticia Douglas, Podiatrist, in October 2014 who conducted a neurovascular assessment of Mr Ellison’s right foot. Ms Douglas reported “peripheral neuropathy… up to the ankle area” and noted that he was at high risk of developing future complications due to the Charcot foot deformity and peripheral neuropathy.[14]
[14] Exhibit 1, T Documents, T13, page 110, Report of Ms Douglas dated 1 October 2014.
Dr Michael Donohue, General Practitioner, provided a medical certificate in November 2014 and reported that Mr Ellison was unable to work due to his Charcot left foot condition.[15]
[15] Exhibit 1, T Documents, T14,page 111, Medical Certificate by Dr Donohue dated 7 November 2014.
In April 2015 Mr Ellison was assessed by another Podiatrist, Mr Brandon Worner, who recommended “debridement of the current hyperkeratotic skin overlying [an] ulcer” which had developed at the plantar surface of the left foot.[16] Mr Worner also reported that at that time Mr Ellison was currently wearing an immobilising walking boot for his right foot. Due to Mr Ellison’s “high risk” status, Mr Worner recommended Mr Ellison attend a wound management team of Podiatrists for regular debridement and dressings to “enable sufficient management and promote healing of the ulcer and management of his Charcot’s Neuropathy”.[17]
[16] Exhibit 1, T Documents, T16, pages 113-114, Report of Mr Worner dated 28 April 2014.
[17] Exhibit 1, T Documents, T16, pages 113-114, Report of Mr Worner dated 28 April 2014.
Dr Nicholas Hinds, General Practitioner, provided a medical certificate in May 2015 and reported that Mr Ellison was unable to work due to his Charcot’s Arthropathy.[18]
[18] Exhibit 1, T Documents, T17, page 115, Medical Certificate by Dr Hinds dated 18 May 2015.
In December 2015 Dr Hinds reported that due to the Charcot’s Arthropathy, Mr Ellison’s had been advised to “spend no longer than 1 hour on his feet during the day”, that he “is unable to work and requires lots of assistance.[19] Dr Hinds wrote that he was supportive of Mr Ellison’s claim for DSP.
[19] Exhibit 1, T Documents, T17, page 116, Medical Certificate by Dr Hinds dated 11 December 2015.
Further medical certificates reporting that Mr Ellison was unable to work due to his Charcot’s Arthropathy were provided in January 2016, June 2016, and September 2016.[20]
[20] Exhibit 1, T Documents, T17, page 117, Medical Certificate by Dr Hinds dated 15 January 2015; T19, page 124,
Medical Certificate by Dr Julian Gregory dated 20 June 2016; T21, page 130, Medical Certificate by Dr Julian Gregory dated 26 September 2016.
Eye Condition
In April 2015 Mr Ellison attended an Optometry appointment for his diabetic eye condition. Ms Fiona Moore, Optometrist, reported that Mr Ellison’s right eye vision had dropped and that he had some cataract and diabetic retinopathy. Ms Moore recommended Mr Ellison be reviewed by an Opthamologist and prescribing Lipidil to reduce the retinopathy proliferation.[21]
[21] Exhibit 1, T Documents, T15, page 112, Report of Ms Moore dated 24 April 2015.
Hand Condition
Dr Julian Gregory, General Practitioner, provided a medical certificate in June 2016 reporting that Mr Ellison was unable to work due to “dupuytrens contractures of hands” condition.[22]
[22] Exhibit 1, T Documents, T19, page 125, Medical Certificate by Dr Gregory dated 21 June 2016.
JCA Report
The JCA was conducted face-to-face with Mr Ellison on 5 April 2016 by a Registered Psychologist and Registered Occupational Therapist. The JCA report confirmed that Mr Ellison suffered from the following medical conditions:[23]
·Charcot’s Arthropathy (which was found to be fully diagnosed, fully treated and fully stabilised);
·Cataract and Diabetic Retinopathy (which was categorised as “Other” because there was no corroborating medical evidence).
[23] Exhibit 1, T Documents, T18, pages 118-123, Job Capacity Assessment report dated 11 May 2016.
Conclusion on Impairments
The Secretary accepts that Mr Ellison had Impairments which satisfied section 94(1)(a) during the Qualification Period.[24]
[24] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 16 February 2017, at para 32.
In light of the above evidence I find that during the Qualification Period Mr Ellison suffered Charcot’s Arthropathy Impairment for the purposes of the Act and that the requirement in section 94(1)(a) has been met.
In relation to the Eye Condition and Hand Condition, there is insufficient medical evidence to determine by whom they were diagnosed, whether or not they have been fully diagnosed and what the status of this condition was during the Qualification Period. Therefore, I find that these conditions are not Impairments for the purpose of section 94(1)(a) of the Act.
At the hearing Mr Ellison confirmed that the Eye Condition and Hand Condition were not relevant to this DSP claim.
DOES MR ELLISON’S IMPAIRMENT ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[25] They are function based[26] and designed to assign ratings to determine the level of functional impact of impairment (Impairment Rating) and not to assess conditions.[27]
[25] Determination, ss 4(2) and 5(2)(a).
[26] Determination, s 5(2)(b) and (c).
[27] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[28]
(i)the condition causing that impairment is “permanent”; and
(ii)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[28] Determination, see s 6(3).
The requirement that a condition must be “permanent” is a requirement which applies as at the date the claim for a pension is lodged, or during the Qualification Period.[29]
[29] De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2014] FCA 368, at [12].
Mr Ellison’s condition can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[30]
(i)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(ii)the condition has been fully treated;
(iii)the condition has been fully stabilised; and
(iv)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[30] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[31] the following is to be considered:[32]
(i)whether there is corroborating evidence of the condition; and
(ii)what treatment or rehabilitation has occurred in relation to the condition; and
(iii)whether treatment is continuing or is planned in the next 2 years.
[31] For the purposes of ss 6(4)(a) and (b) of the Determination.
[32] Determination, see s 6(5).
A condition is fully stabilised[33] if:[34]
(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;[35] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[33] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[34] Determination, see s 6(6).
[35] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it then has to be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an impairment rating using the Impairment Tables can be assigned.
CHARCOT’S ARTHROPATHY IMPAIRMENT
Is Mr Ellison’ Charcot’s Arthropathy Impairment permanent and likely to persist for at least 2 years?
In April 2016 the JCA determined that Mr Ellison’s Charcot’s Arthropathy was fully diagnosed, fully treated and fully stabilised because no further significant functional treatment is expected to occur within the next 2 years. [36]
[36] Exhibit 1, T Documents, T18, page 119, Job Capacity Assessment report dated 11 May 2016.
The Secretary accepts that Mr Ellison’s Charcot’s Arthropathy Impairment was fully diagnosed, fully treated and fully stabilised in the Qualification Period.[37]
[37] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 16 February 2017, para 33.
The medical evidence supports a finding that Mr Ellison’s Charcot’s Arthropathy Impairment is permanent and likely to persist for at least 2 years.[38]
[38] Exhibit 1, T Documents, T14, page 111, Medical Certificate by Dr Donohue dated 7 November 2014; T17, page
115, Medical Certificate by Dr Hinds dated 18 May 2015. See also T22, pages 131-132, Information re Charcot
arthropathy.
Using the Impairment Tables
I have to assess the level of impact of Mr Ellison’s Charcot’s Arthropathy Impairment against the descriptors[39] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[40]
[39]Determination, see ss 3 and 5(3).
[40] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of impairment.
The impairment of a person 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.[41]
[41] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[42]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[42] Determination, see s 7.
I must not take into account the following information in applying the Tables:[43]
1symptoms reported by Mr Ellison in relation to his condition where there is no corroborating evidence; or
2unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Ellison’ local community.
[43] Determination, see s 8.
Which Tables are appropriate are determined by:[44]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[44] Determination, see s 10(1).
If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[45]
[45]Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[46]
[46]Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[47]
[47]Determination, see s 11(5).
Evidence Identifying the Loss of Function
In May 2015 Dr Hinds reported that Mr Ellison had a “painful and deformed foot… [and] difficulty walking”.[48]
[48] Exhibit 1, T Documents, T17, page 115, Medical Certificate by Dr Hinds dated 18 May 2015.
In June 2015 Mr Ellison reported that he was unable to walk and was about to progress to using a wheelchair.[49]
[49] Exhibit 1, T Documents, T4, pages 51-52, Letter from Mr Ellison to Centrelink dated 21 June 2015.
In December 2015 Dr Hinds reported that due to the Charcot’s Arthropathy, Mr Ellison had been advised to “spend no longer than 1 hour on his feet during the day”, that he “is unable to work and requires lots of assistance.[50] At the hearing Mr Ellison said that Dr Hinds had not reported this correctly and that he was in fact told to spend no longer that 1 hour on his feet every 2 days.
[50] Exhibit 1, T Documents, T17, page 116, Medical Certificate by Dr Hinds dated 11 December 2015.
The JCA recorded what Dr Hinds had reported in December 2015[51] and reported that Mr Ellison said he:
·had a standing tolerance of 10 minutes;
·can walk up stairs using a rail;
·can complete all activities of daily living;
·has no difficulty using public transport;
·can walk around a shopping centre for 1 hour;
·does not use walking aids;
·has difficulty kneeling and squatting.
[51] Exhibit 1, T Documents, T18, page 119, JCA Report dated 11 May 2016.

In January 2016 Dr Hinds again reported that Mr Ellison had a “painful and deformed foot… [and] difficulty walking”.[52]
[52] Exhibit 1, T Documents, T17, page 117, Medical Certificate by Dr Hinds dated 15 January 2016.
In May 2016 Mr Ellison reported that:[53]
(a)he was using custom fitted orthotic boots that enable walking and that walking was limited to daily activities;
(b)the pain from wearing the boots makes it impossible to walk any distance; and
(c)he cannot wear the boots for more than one hour per day.
[53] Exhibit 1, T Documents, T7, pages 83-84, Letter from Mr Ellison to Centrelink dated 23 May 2016.
In June 2016, after another acute attack, Dr Gregory reported that Mr Ellison has a “painful infected foot pain, cant [sic] weight bear/walk far”.[54]
[54] Exhibit 1, T Documents, T19, page 124, Medical Certificate by Dr Julian Gregory dated 20 June 2016.
I note for also that by September 2016 Dr Gregory reported that Mr Ellison has “right foot pain and limited mobility; completely no weight bearing on right lower limb; is in an active phase of an episodic and fluctuating condition”.[55]
[55] Exhibit 1, T Documents,T21, page 130, Medical Certificate by Dr Julian Gregory dated 26 September 2016.
At the hearing, Mr Ellison gave evidence that:
(a)using public transport would require assistance with a wheelchair and that he does not do it because of the risks;
(b)he cannot walk around a shopping centre without risk;
(c)he only walks the minimum required to complete all activities of daily living;
(d)he frequently cannot walk given the pain and risk of accumulating damage from micro-trauma.
Further, Mr Ellison made it clear that even though he could, during the Qualification Period, walk around for approximately 30-60 minutes for the purpose of performing daily activities and so on (as reported to the JCA), he certainly was not able to do so every day. Mr Ellison says he was probably able to move around for an hour every second day and that, because of the pain he was experiencing, one day in three he could not move at all. Mr Ellison explained that while he could perform these functional actitivities to a limited extent, it was with significant risk that he did so. The risk being that he could cause further bone fragmentation.
Mr Ellison also pointed out that the condition is one which fluctuates and that he was in “Stage 3” of his condition during the Qualification Period. Stage 3 of Charcot’s Arthropy is the reconstruction/consolidation phase after an acute attack (which is stage 1 of the condition). Mr Ellison suffered another acute attack of bone fragmentation in June 2016.
Mr Ellison submits that since August 2014, when he was first diagnosed with the condition, he has had three acute attacks. The first being in August 2014 which led to the diagnosis, the second in March 2015 and the third in June 2016. During the acute stages (or Stage 1), Mr Ellison says he cannot walk and does need assistance to get out a chair. As a result of the acute attack in June 2016, Mr Ellison is moving towards needing to use an electronic wheelchair. The information sheet, prepared by the American Orthopaedic Foot & Ankle Society, concerning this condition, notes that this condition may flare up and recur and complications from the condition can include severe deformity and ulcers, which if they become infected can be life threatening.[56] The information sheet also noted that that early weightbearing is only allowed in stage 1 by 41 % of specialists and in stage 2 only by 49% of specialists. Some specialists recommended no weightbearing at all. This is a serious condition and one which, for Mr Ellison, is not going to improve.
[56] Exhibit 1, T Documents, T22, pages 131-132, Charcot Arthropathy Information Sheet by American Orthopaedic
Foot & Ankle Society.
The Secretary’s assessment of Mr Ellison’s functional ability is largely based on what Mr Ellison says he was able to do, albeit in significant pain, during the Qualification Period. Mr Ellison argues that this fails to take into account the fluctuating nature of this condition as is required by section 11(4) of the Determination which provides:
When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate
I accept that Mr Ellison’s Charcot left foot condition can have acute episodes and fluctuates in the severity of its impact. Dr Donohue and Dr Gregory have at times between November 2014 and June 2016 described the condition as a “temporary exacerbation of a permanent condition”.[57]
[57] Exhibit 1, T Documents, T14, page 111, Medical Certificate by Dr Donohue dated 7 November 2014; T19, page
124, Medical Certificate by Dr Julian Gregory dated 20 June 2016.
The Secretary submitted that it has taken into account the overall functional impact in assigning an impairment rating of 10 points. The Secretary said if it had only considered what Mr Ellison could do in the Qualification Period the Impairment would have been assessed as having no or minimal impact on activities.
I also note section 11(3) of the Determination which provides:
When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.
Example: If, under Table 2, a person is being assessed as to whether they can unscrew a lid of a soft drink bottle, the relevant impairment rating can only be assigned where the person is generally able to do that activity whenever they attempt it.
I also note Mr Ellison’s self-report of the impact on his ability to function is supported by the information brochure provided.
This condition is a fluctuating and recurring one.
Relevant Impairment Table and Impairment Rating
In light of the evidence I consider that Table 3 of the Determination which deals with Lower Limb Function is the relevant Table.
The introduction to Table 3 provides that:
·Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence of whole or part of lower limb);
oa report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
oresults of diagnostic tests (e.g. X-Rays or other imagery);
oresults of physical tests or assessments.
· For the purposes of this Table lower limbs extend from the hips to the toes.
The Secretary submitted that the appropriate Impairment Rating under Table 3 is 10 points.[58]
[58]See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 16 February 2017, para 33.
In order to assign an Impairment Rating of 10 points under Table 3 the evidence would need to show the following:
There is a moderate functional impact on activities using lower limbs.
(1)At least one of the following applies:
(a)the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2)The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3)This impairment rating level includes a person who can:
(a)move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b)move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
To attract an impairment rating of 20 points the evidence would need to show that Mr Ellison:
(a)Was unable to do any of the following:
(i)walk around a shopping centre or supermarket without assistance;
(ii)walk from the carpark into a shopping centre or supermarket without assistance;
(iii)stand up from a sitting position without assistance; and
(b)requires assistance to use public transport.
Centrelink and this Tribunal are bound to apply the descriptors as they are presently drafted, whether they are appropriate in their application to certain conditions or situations or not. To satisfy an impairment rating of 20 points the evidence would have to show that Mr Ellison could not do any of those activities without assistance. No corroborating medical evidence of this has been provided. The fact that Mr Ellison may have required a wheelchair or had to use crutches at certain times does not mean that 20 points is the correct impairment rating. Table 3 clearly sets out that a 10 point rating includes a person who can move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently) or move around independently using walking aids.
There is insufficient corroborating medical evidence that during the Qualification Period Mr Ellison had a severe impairment which would attract an impairment rating of 20 points.
Even if the Tribunal were to rely on the Information Sheet as corroborating medical evidence of the functional impact of this condition, the Information Sheet does not say that every person with Charcot’s Arthropathy would meet the descriptors for a 20 point impairment rating. The Information Sheet says “[p]atients use footwear and orthoses, and limit standing and walking to that required for activities of daily living”.[59]
[59] Exhibit 1, T Documents, T22, page 131, Charcot Arthropathy Information Sheet by American Orthopaedic
Foot & Ankle Society.
The corroborating evidence supports an Impairment Rating of 10 points. As Mr Ellison’s Charcot’s Arthropathy Impairment does not attract an Impairment Rating of 20 points, it does not qualify Mr Ellison for the DSP.
If Mr Ellison’s Charcot’s Arthropathy Impairment has now deteriorated to such an extent that he would now meet the 20 point impairment rating criteria, it is open to him to file a new DSP application together with corroborating medical evidence of his functional inability.
Pain
Mr Ellison submitted that the extent of his pain needs to be taken into consideration in assessing an appropriate impairment rating.
I note that there is no medical evidence confirming a diagnosis of chronic pain. However, Section 6(9) of the Determination relevantly provides that as there is no Table dealing specifically with pain and that when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
I have already found that the condition causing the pain, the Charcot arthropathy, has been fully diagnosed, fully treated and fully stabilised and I have assigned an Impairment Rating of 10 points to that condition.
CONCLUSION
The decision under review is affirmed.
Mr Ellison is, of course, able to submit a new application for DSP in the event that his conditions have deteriorated to such an extent that they have become permanent, attract a 20 point Impairment.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

...........................[Sgd]............................................
Associate
Dated: 2 May 2017

Dates of hearing: 28 March 2017

Advocate for the Applicant:

By Phone

Solicitors for the Respondent: Department of Human Services

[2017] AATA 578

2 May 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Dates of hearing:	28 March 2017
Advocate for the Applicant:	By Phone
Solicitors for the Respondent:	Department of Human Services