Gaiter; Secretary, Department of Social Services and (Social services second review)
[2016] AATA 668
•1 September 2016
Gaiter; Secretary, Department of Social Services and (Social services second review) [2016] AATA 668 (1 September 2016)
Division
GENERAL DIVISION
File Number
2015/3017
Re
Secretary, Department of Social Services
APPLICANT
And
Terry Gaiter
RESPONDENT
DECISION
Tribunal Senior Member P Britten-Jones
Date 1 September 2016 Place Adelaide The Tribunal sets aside the decision under review and substitutes a decision that the respondent was not qualified for disability support pension as at the date of claim.
....................[Sgd]....................................................
Senior Member P Britten-Jones
CATCHWORDS
SOCIAL SECURITY - disability support pension - whether respondent's conditions are fully diagnosed, fully treated and fully stabilised - whether respondent's conditions attract 20 points or more on the Impairment Tables - whether respondent has a severe impairment - respondent does not have a severe impairment - decision under review is set aside.
LEGISLATION
Social Security Act 1991 (Cth), s 94
Social Security (Administration) Act 1999 (Cth), Schedule 2, cls 3 and 4
CASES
Secretary, Department of Social Services and Smith [2015] AATA 578
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member P Britten-Jones
1 September 2016
On 19 August 2014 the respondent, Mr Gaiter, lodged a claim for disability support pension (DSP). That claim was rejected both at first instance and upon review by a Centrelink authorised review officer (ARO). However, on 15 May 2015, the Social Security Appeals Tribunal (SSAT) set aside Centrelink’s decision and decided that, he satisfied the provisions of s 94(1) of the Social Security Act 1991 (the Act).
On 19 June 2015, the applicant, the Secretary of the Department of Social Services (the Secretary) sought review of the SSAT’s decision by this Tribunal. The SSAT decision was stayed by order made on 2 July 2015.
LEGISLATION AND ISSUES
In broad terms the issue before me is whether Mr Gaiter was qualified for DSP as at the date of his claim on 19 August 2014 or within 13 weeks of that date (the assessment period).[1] The Tribunal is required to address the issue of qualification strictly by reference to the assessment period and the facts as they were during the assessment period.[2]
[1] Social Security (Administration) Act 1999, Schedule 2, clause 4.
[2] Secretary, Department of Social Services and Smith [2015] AATA 578.
Qualification for DSP is governed by s 94 of the Act, which, at the relevant time, relevantly provided as follows:
“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;
…
Continuing inability to work
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: for work see subsection (5).
(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person’s locally accessible labour market.
…
Severe impairment
(3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
…
Work means work:
(a)that is for a least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
…”
The Secretary accepts that Mr Gaiter suffers from impairments arising from the following conditions and therefor satisfies s 94(1)(a) of the Act:
(a)chronic back pain;
(b)depression and anxiety;
(c)hypertension;
(d)hyperlipidaemia and obesity;
(e)gout;
(f)impaired glucose tolerance; and
(g)urinary problems.
Mr Gaiter is only disputing the impairment rating for his back condition. He says that he should have received at least 20 points under Table 4 (spinal function). The Secretary says that Mr Gaiter’s spinal condition is properly rated at 10 points under Table 4 of the Impairment Tables.
The Facts giving rise to the impairment
Mr Gaiter has been afflicted with spinal restriction and spinal pain for more than 20 years. He left school at Year 7 and he has worked as a manual labourer and truck driver for all of his working life. He has not been able to manage the physical aspects of his job since 1996. He was on workers compensation payments until 22 February 2014.
As part of his claim for DSP, Mr Gaiter lodged a medical report – disability support pension form completed by Dr Suriyapalan and signed on 18 August 2014. A Job Capacity Assessment report (JCA) was conducted on 25 September 2014 to assess Mr Gaiter’s medical conditions and work capacity for DSP qualification purposes. The JCA found that none of Mr Gaiter’s conditions were fully diagnosed, fully treated and fully stabilised, therefore any impairment arising from these conditions could not be assigned an impairment rating under the Impairment Tables.
The Secretary accepts that the spinal condition was fully diagnosed, fully treated and fully stabilised in the relevant claim period, but contends that the functional impairment arising from the condition is properly rated at 10 points under Table 4.
The Secretary in particular relies on:
(a)The report of Dr Suriyapalan dated 18 August 2014 which stated that the functional impact of the chronic back pain condition was “back pain with walking and sitting”, that it would persist for more than 24 months, and within the next two years the effect of this condition on the Respondent’s ability to function was “uncertain”;
(b)The report of Dr Tschirn, occupational physician, dated 15 October 2015 which attributed a points rating of 10 under Table 4, namely that there is a moderate functional impact on activities involving spinal function because Mr Gaiter is able to sit in or drive a car for at least 30 minutes and the sub criteria in 10(1)(a)-(c) are met.
The Secretary also relied on the JCA report dated 26 September 2014 which included the following:
“Mr Gaiter reports that he is able to sit for 30 minutes, stand for 30 minutes, walk for 45 minutes, drive 30 minutes, and lift on an occasional basis up to 0.5kg. He reports of difficulty with bending and stooping, but that he is able to undertake most tasks when in a standing position, and is able to access items from above shoulder height.”
The Secretary further relies upon the report of Dr Tschirn dated 15 October 2015 which provided with respect to sub criterion 10(1)(a) in Table 4 as follows:
“…there is however no clear structural pathology to explain a significant decrement in neck function. Pain is subjective and unreliable as an indicator of true function. For this reason it is my view that the usual state of affairs is that Mr Gaiter is able to access items over head height, however I accept there might be some increase in symptomatology when doing it.”
Mr Gaiter submits that the evidence supports a finding of at least 20 impairment points for his spinal condition. Mr Gaiter has been in receipt of workers compensation since 1996 and has Workcover medical certificates stating he has lower back pain. A report from Mr James Bodel, orthopaedic surgeon, in 1998 stated that a CT scan from 18 October 1996 confirmed central disc pathology at L5/S1 and minor disc pathology at L3/4. A report from Dr David O’Keefe, orthopaedic surgeon, dated 19 March 2015 refers to the earlier CT scan of 18 October 1996 and a further CT scan on 21 April 2005 and confirms the central disc pathology and minor pathology stating that the later shows basically the same but that the degeneration at L5/S1 is worse and a possible disc prolapse at a higher level causing testicular pain radiating to the knee. The effect of Dr O’Keefe’s diagnosis was that there was a further deterioration of Mr Gaiter’s back.
Mr Gaiter gave evidence that he showers in chair and his wife dries his bottom parts and puts his shoes on. He said he can do the dishes and the sweeping but he cannot bend to put the dishes away. He does not go anywhere on his own because he gets dizzy and wobbly on his feet and his legs get pins and needles. He said that he can take the shopping out of the bag but he can’t reach up to put it away. He can sit for up to half an hour but then he must get up. He can drive his car for about 40 minutes but then needs to stop as he did when driving down from Broken Hill to Adelaide.
Mr Gaiter also gave evidence that he has trouble with his bowel and that he becomes constipated when taking his tablets. He also reported pain in his testicles.
Dr Tschirn gave evidence by telephone. He examined Mr Gaiter on 15 October 2015. He confirmed his opinion that there was a moderate functional impact on activities involving spinal function that he rated 10 points under Table 4. He felt that the issue was that he could sit in or drive a car for 30 minutes and that he satisfied the sub criteria in (a) to (c). Dr Tschirn did not consider that he met the criteria for 20 points in particular with respect to overhead activities, which required that Mr Gaiter be “unable” to perform any overhead activities as opposed to the criteria for 10 points being “unable to sustain overhead activities”. Dr Tschirn considered this distinction to be important.
Dr Tschirn said that Mr Gaiter’s constipation was linked to the drugs that he was taking but that the issue of loose bowels did not come up in his interview with Mr Gaiter. Nor did Mr Gaiter mention anything about his urinary tract or that his testicles were swollen. He considered that with treatment for his depression that Mr Gaiter could work for 15-22 hours per week but that when he saw him he could not.
Having considered all of the evidence I am of the view that a 10 point rating under Table 4 is appropriate. Although Mr Gaiter gave oral evidence that he was unable to perform any overhead activities this is inconsistent with what was recorded in the JCA report dated 26 September 2014. I accept Dr Tschirn’s opinion that Mr Gaiter is able to access items overhead height albeit resulting in some increase in symptomatology when doing it.
It follows that with respect to total impairment I find a rating of 10 points and therefore subsection 94(1)(b) of the Act is not satisfied and Mr Gaiter fails to satisfy the statutory criteria.
Mr Gaiter did give evidence about his bowel problems. It is noted that at the hearing before the SSAT Mr Gaiter was only disputing the finding of the ARO with respect to his back condition and none of his other conditions. This was also the position in the statement of facts and contentions for the respondent provided to the Tribunal. In any event, I would reject any submission that an impairment rating can be assigned for his condition relating to his bowel problems.
Continuing inability to work
Although it is not necessary for me to consider the requirements of s 94(1)(c) of the Act I would make the following findings:
21.1Mr Gaiter’s impairment is not considered severe under s 94(3B) because his spinal condition attracted less than 20 points under Table 4.
21.2Mr Gaiter did not establish on the evidence that he had actively participated in a program of support within the meaning of s 94(3C) of the Act and therefore s 94(2)(aa) is not satisfied.
21.3Mr Gaiter did not establish that his impairment prevented him from working or undertaking a training activity within the next two years within the meaning of s 94(2)(a) and (b).
With respect to the matters raised above regarding continuing inability to work I accept the written submissions contained within the Secretary’s statement of facts and contentions from paragraph 41 to 70.
CONCLUSION
The respondent has not satisfied s 94(1)(b) and (c) of the Act. Consequently, the Tribunal sets aside the decision under review made by the SSAT on 15 May 2015 and substitutes a decision that the respondent was not qualified for DSP at the date of his claim.
I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Britten-Jones ....................[Sgd]...............................
Administrative Assistant
Dated 1 September 2016
Date(s) of hearing 27 July 2016 Advocate for the Applicant Mr A Hay Solicitors for the Applicant Department of Human Services Advocate for the Respondent Ms M Riley Solicitors for the Respondent Welfare Rights Centre (SA) Inc
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