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

[2017] AATA 568

Geddes and Secretary, Department of Social Services (Social services second review) [2017] AATA 568 (24 April 2017)

Division:GENERAL DIVISION

File Number(s):      2015/6640

Re:Ian Geddes

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:24 April 2017

Place:Sydney

The Tribunal affirms the reviewable decision of the Social Services & Child Support Division of this Tribunal dated 23 November 2015 because Mr Geddes does not satisfy s 94(1)(b) of the Act.

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

Mrs J C Kelly, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether the impairment was fully diagnosed, treated and stabilised – Job Capacity Assessment Report – Table 2 – Upper limb function – functional impairment – decision affirmed.

LEGISLATION

Social Security Act 1991 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

24 April 2017

THE DECISION UNDER REVIEW

1. The decision under review was made on 23 November 2015 by the Social Services & Child Support Division of this Tribunal (AAT1) affirming a decision to reject Mr Geddes’ application for Disability Support Pension (DSP).  The application for DSP was made on 10 June 2015, refused on 15 August 2015, affirmed by the Authorised Review Officer on 21 August 2015 and then affirmed by AAT1. 

2. Mr Geddes had previously applied for DSP on 25 November 2014.  He did not lodge an appeal within 13 weeks of the rejected application dated 16 December 2014.  The Tribunal is concerned with the 10 June 2015 application.

   BACKGROUND

3. It is not disputed that Mr Geddes has a physical impairment and therefore satisfied s 94(1)(a) of the Social Security Act 1991 (Cth) (the Act). On 19 March 2015, Dr Eng, orthopaedic surgeon, wrote in the Medical Report -- Disability Support Pension form that Mr Geddes suffered from left shoulder multi-directional instability and osteoarthrosis in his right wrist.

4. Mr Geddes has undergone a knee reconstruction and has a hearing impairment.  Mr Geddes does not complain that either condition causes him a functional impairment. He uses hearing aids.  He had no difficulty hearing during the Tribunal hearing or during the telephone hearing with AAT1. There is no medical evidence to support a contrary finding.  Zero rating is therefore appropriate under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).

5. The respondent accepted the finding of AAT1 that, it is more likely than not, that Mr Geddes’ left shoulder and right wrist will not significantly improve within the next two years.  That is based on the evidence of Mr Eng.  The Job Capacity Assessment Report (the JCA Report) accepted that both conditions have been fully diagnosed, treated and stabilised.

6. In the past, Mr Geddes has been self-employed in farming and agriculture industries and doing asbestos removal work. 

7. Mr Eng’s opinion is that Mr Geddes’ left shoulder multidirectional instability had very limited surgical options which were highly likely to fail. Mr Geddes’ first dislocation occurred 20 years ago. He had surgery three years later but that failed when he fell in July 2013. He has an unstable glenohumeral joint.  Dr Eng reported that Mr Geddes’ shoulder dislocates 10 to 15 times per day and causes him pain requiring bracing.  Mr Geddes cannot lift or use his arm away from his body at all. 

8. Dr Eng reported that Mr Geddes has had no treatment for his wrist osteoarthritis, other than bracing which commenced in March 2015 and that Mr Geddes cannot use his right hand repetitively or to lift loads.

9. THE Issue The issue in this case is whether Mr Geddes has an impairment of 20 points or more under the Impairment Tables for his left shoulder and right wrist conditions and therefore satisfies s 94(1)(b) of the Act.  The respondent relies on the finding made by AAT1 that there is a single impairment for which 5 points is the appropriate rating under Table 2 – Upper Limb Function. The JCA Reports assessed a 10 point rating for those conditions which was accepted by the Authorised Review Officer.   In order to succeed, Mr Geddes’ impairment rating must be 20 points under the Impairment Table.  If he met that criterion, he would also have to have a continuing inability to work at least 15 hours per week or more.

10. The assessment of impairment raises the issue of whether the left shoulder and right wrist conditions result in a single functional impairment or in two impairments that should be assessed separately.

    THE MEDICAL EVIDENCE

11. Following is a summary of the evidence before the Tribunal about Mr Geddes’ medical conditions and functional impairment/s.

12. There were reports from Dr Eng dated 8 August 2013, 19 March 2015, 22 June 2016, 1 August 2016 and 14 November 2016. In the August 2016 report, Dr Eng clarified that he assessed a rating of 10 points for each of Mr Geddes’ left shoulder and right wrist and commented that those conditions may have been worse than when he last saw Mr Geddes in March 2015.  In the report of 14 November 2016, Dr Eng wished to clarify two things:  Mr Geddes’ arm is very unstable and he is unable to safely work. Dr Eng believes Mr Geddes’ application for a pension based on this injury is entirely appropriate as it is going to be permanent and disabling.

13. Dr Wood, orthopaedic surgeon observed in his report dated 30 October 2014, that Mr Geddes’ left upper limb issues prevent him from pursuing his regular occupation as a farm contractor and would prevent him from performing any other occupation involving manipulation of the left upper limb into a forward-reaching or elevated position.

14. Dr Smith, orthopaedic surgeon, wrote a report dated 15 November 2016.  He was considering examining Mr Geddes’ left shoulder under anaesthesia “to try and document the current direction of instability so that further treatment may be planned”.  Dr Smith was going to discuss the case at the “Sydney Shoulder Meeting” in a couple of weeks’ time.

15. Dr Acosta, plastic and reconstructive surgeon, hand surgeon/microsurgeon addressed a lip vascular lesion and the right wrist in a report dated 10 December 2014.  He recommended the use of splinting for the right wrist and was considering the possibility of stem cell treatment or arthrodesis surgery.

16. Western NSW Medical Imaging, Dubbo Base Hospital, provided a report of a bilateral shoulder x-ray taken on 27 October 2016 and a report of a CT of the left shoulder taken on 11 November 2016.

17. Several medical certificates from various general practitioners were before the Tribunal. On 5 June 2015, Dr Adie certified that Mr Geddes was unfit for work or study from 5 June 2015 to 4 September 2015, cannot undertake his usual work, and cannot do any other work for 8 hours or more per week. On 22 September 2015, Dr Adie certified Mr Geddes unfit for work or study from 22 September 2015 to 22 December 2015 and that he cannot undertake his usual work or any work for 8 hours or more per week.  On 23 December 2015, Dr Shaheed certified Mr Geddes unfit for work or study until 22 March 2016, that he cannot undertake his usual work and cannot do any other work for 8 hours or more per week.   On 29 August 2016, Dr Canalese certified Mr Geddes unfit for his usual work and unable to do any other work for 8 hours or more per week for the period 29 August 2016 to 29 November 2016.  Dr Canalese referred Mr Geddes for review to a shoulder specialist, Dr Young on 18 October 2016.  On 29 November 2016, Dr Canalese certified Mr Geddes permanently unfit for his usual work and for any other work for 8 hours or more per week.  In each case, the reason was Mr Geddes’ recurrent left shoulder condition.

18. Orana Radiology, Dubbo, provided a report of an MRI Left Shoulder undertaken on 27 October 2016.

19. JCA Reports were undertaken on 14 August 2015 and 6 September 2016.  The assessor who prepared the 6 September 2016 JCA Report also provided a Physical Specialist Assessment Report dated 7 September 2016 on referral of Mr Geddes by the AAT. The assessor accepted that Mr Geddes is incapable of work of a physical nature, based on Dr Wood’s report.  The assessor noted that Mr Geddes’ current employment included hiring his machinery without a driver due to difficulties performing that work himself attributable to his physical limitations.  She assessed Mr Geddes’ functional impairment resulting from the left shoulder instability as 10 points under Table 2 of the Impairment Table and allocated zero points for the impairment resulting from the right wrist osteoarthritis because those conditions result in the same functional impact and were assessed together.   That is essentially the same assessment as was made in the 2015 JCA Report.

    CONSIDERATION

20. Mr Geddes expressed his extreme frustration and distress caused by the DSP process, including the review process, in several pieces of correspondence and at the Tribunal hearing. He claims that no one will employ him because of his injury, he cannot get insurance because of his injury and therefore cannot legally work. He has to continue to look for work in order to receive his New Start Allowance, and he has been found not to qualify for DSP. 

21. Mr Geddes acknowledged that he could do everything the JCA assessor said that he could do but said that sitting was dangerous because he dislocates his shoulder.  He does not think that the Department has looked at the medical evidence.

22. The criteria for DSP qualification are very specific. The evidence is clear that Mr Geddes cannot undertake his previous employment and is incapable of work of a physical nature and suffers from frequent dislocations of his left shoulder.  However, that does not qualify Mr Geddes for the DSP. 

23. The Tribunal has carefully considered the medical evidence, including Dr Eng’s assessment of 10 points impairment for each of Mr Geddes left shoulder and right wrist.  However, it accepts the detailed assessments of the JCA assessors, which is the same in the two JCA Reports and the Physical Specialist Assessment Report dated 7 September 2016, that the functional impairment according to Impairment Table 2 – Upper Limb Function, is 10 points.  The Impairment Tables require that where two or more conditions cause a common or combined impairment, a single rating should be assigned to that impairment under a single Table (cl 10(5) and cl 10(6)). The assessors have concluded that is appropriate in this case.  The Tribunal accepts that is the appropriate interpretation and application of the Impairment Tables in this case.   

24. Attached is a copy of the criteria in Table 2 for allocating 5, 10, 20 and 30 points. 

    DECISION

25. The Tribunal affirms the reviewable decision of the Social Services & Child Support Division of this Tribunal dated 23 November 2015 because Mr Geddes does not satisfy s 94(1)(b) of the Act.

I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated: 24 April 2017

Date(s) of hearing:	8 December 2016
Applicant:	In person
Solicitors for the Respondent:	A Kennedy, Clayton Utz

5	There is a mild functional impact on activities using hands or arms.
(D	The person can manage most daily activities requiring the use of the 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.
10	There is a moderate functional impact on activities using hands or arms.
(D	The person has difficulty with most of the following:
(a)	picking up a 1 litre carton full of liquid;
(b)	picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
(c)	holding and using a pen or pencil;
(d)	doing up buttons or tying shoelaces;
(e)	using a standard computer keyboard;
(f)	unscrewing a lid on a soft-drink bottle.
20	There is a severe functional impact on activities using hands or arms.
(D	Most of the following apply to the person:
(a)	the person has limited movement or coordination In both arms or both hands, or has an amputation rendering a hand or arm non­functional;
(b)	the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c)	the person has difficulty using a computer keyboard despite appropriate adaptations;
(d)	the person has severe difficulty using a pen or pencil;
(e)	the person has severe difficulty turning the pages of a book without assistance.
30	There is an extreme functional impact on activities using hands or arms.
(1)	The person is unable to perform any activities requiring the use of both hands or both arms.