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

[2017] AATA 599

Gibson and Secretary, Department of Social Services (Social services second review) [2017] AATA 599 (4 May 2017)

Division:GENERAL DIVISION

File Number:          2016/3936

Re:Trevor Gibson

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:4 May 2017

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – multiple conditions – whether applicant’s impairments are rated 20 points or more under the Impairment Tables – spinal condition – lower limb condition – hearing loss – diabetes – other conditions – decision affirmed

LEGISLATION
Social Security Act 1991 (Cth) section 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr L Bygrave, Member

4 May 2017

INTRODUCTION

1. The applicant, Mr Trevor Gibson, lodged a claim for disability support pension on 17 August 2015.

2. The claim was rejected by Centrelink, both initially and on review, on the basis that Mr Gibson did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (the Act).

3. In a decision dated 27 June 2016, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal found that Mr Gibson not satisfy subsection 94(1)(b) of the Act and so he did not qualify for the disability support pension.

4. On 27 July 2016, Mr Gibson applied to the General Division of the Administrative Appeals Tribunal for a review of the SSCSD decision.

5. The matter was heard in Sydney on 15 March 2017. Mr Gibson attended the hearing in person and had legal representation.

   RELEVANT LEGISLATION AND ISSUES

6. Section 94(1) of the Act provides that a person qualifies for the 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)the person has a continuing inability to work as defined in s 94(2) of the Act.

7. In accordance with the requirements of the Social Security (Administration) Act 1999 (Cth), to qualify for the disability support pension, Mr Gibson must satisfy the requirements of section 94 of the Act as at the date of his claim or within 13 weeks of lodging the claim, that is between 17 August 2015 and 16 November 2015 (the claim period).

8. The Respondent concedes, and the Tribunal agrees, that Mr Gibson suffers medical conditions that cause impairment and therefore, he satisfied subsection 94(1)(a) of the Act at the time of his claim for the disability support pension.

9. It follows that the determinative issues in this matter are whether, during the relevant claim period, Mr Gibson had:

   (a)an impairment rating of 20 points or more under the Impairment Tables; and

   (b)a continuing inability to work as defined in section 94(2) of the Act.

   Does Mr Gibson have medical conditions that can be rated at 20 points or more under the Impairment Tables?

10. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination) requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. As set out in paragraph 6(4) of the Impairment Tables Determination, a condition is permanent if it:

    ·has been fully diagnosed by an appropriately qualified medical practitioner; and

    ·has been fully treated; and

    ·has been fully stabilised; and

    ·is more likely than not to persist for more than two years.

11. The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.

12. The Introduction to each relevant Table requires that ‘[s]elf-report of symptoms alone is insufficient’ and ‘[t]here must be corroborating evidence of the person’s impairment’.

13. Relying on the evidence before the Tribunal, I consider that Mr Gibson’s conditions for the purposes of his claim for the disability support pension are:

    ·back / neck pain – spinal condition;

    ·knee pain – lower limb condition;

    ·hearing loss / vertigo / Meniere’s disease – hearing / ear condition;

    ·diabetes; and

    ·other conditions.

14. I now consider each of these medical conditions and their relevant rating under the Impairment Tables.

    Spinal condition

15. Mr Gibson injured his back in a work-related incident in September 2005. Medical certificates dated between 22 May 2013 and 20 August 2014 by Dr Christopher Knight (General Practitioner) refer to back pain that is permanent and likely to persist.[1]   

    [1] Exhibits T6, T9-T11.

16. On 21 August 2014, Dr Sohrabh Memon (Radiologist) reported on an MRI of Mr Gibson’s cervical spine. Dr Memon concluded:

    There is a multilevel disc/osteophyte complex causing at worst, mild carnal stenosis (though this does not cause flattening of the anterior margin of the cervical cord at C3/4) and multilevel severe neural for foraminal stenosis particularly in the lower cervical spine...[2]

    [2] Exhibit T12, p 97.

17. Dr Behzad Eftekhar (Neurosurgeon) confirmed on 17 October 2014 that Mr Gibson had ‘degenerative changes at C4/5 and C5/6 with reversal of cervical lordosis’. Dr Eftekhar advised that Mr Gibson did not require surgical intervention but he needed to ‘maintain proper spinal care and strengthen his neck muscles with isometric exercises’.[3]

    [3] Exhibit T13.

18. Dr Shahab Shirazi (General Practitioner) reported on 29 July 2015 that Mr Gibson’s neck pain had ‘slowly worsened’ and he was taking medication for the pain.[4]

    [4] Exhibit T23.

19. At the Tribunal hearing, Mr Gibson said that his back and neck pain were at a similar level to the period he lodged his disability support claim in August 2015.

20. Mr Gibson told the Tribunal that he lives in a share house with a friend and is able to cook for himself, do his washing, vacuum and mop the floors, carry a few pieces of firewood, and mow the lawn. He can shop for groceries and lift a one litre carton of milk. He is able to access utensils and kitchen items above head height using his right arm, although he has very limited ability to raise his left arm. He is able to drive from Mudgee to southern Queensland to visit his daughters, although he stops every two hours or so to rest. He also drives to visit his parents, who live two hours away. He is able to turn his head sufficiently to use his car mirrors while driving.

21. Mr Gibson was able to sit for the duration of the Tribunal hearing (a period of more than five hours with two adjournments), bend forward to pick up documents from the table, and get up from his chair without assistance from a person. He acknowledged that the pain in his neck settles down if he does his isometric exercises for a few days.

22. Based on the medical evidence before the Tribunal, I am satisfied that Mr Gibson’s spinal condition was fully diagnosed, fully treated and fully stabilised during the claim period. In accordance with the information at Table 4 – Spinal Function, I find that Mr Gibson’s condition during the claim period had a mild functional impact on activities involving spinal function and I assign an impairment rating of 5 points.

23. I note that Dr Richard Kidd (General Practitioner) provided a report dated 22 September 2016 in which he opined that Mr Gibson’s spinal condition was severe.[5] I am unable to place significant weight on Dr Kidd’s report for the following reasons: first, the report was written more than one year after the relevant claim period; second, Dr Kidd has only been Mr Gibson’s treating doctor since April 2016, a period of more than six months after the relevant claim period; and third, Dr Kidd’s contentions in his report are neither supported by the weight of other medical evidence nor the evidence Mr Gibson gave the Tribunal.

    [5] Exhibit A1.

    Lower limb condition

24. Medical certificates by Dr Knight in 2013 and 2014 diagnosed Mr Gibson with arthritis in his right knee, which is permanent and has symptoms of pain in the right knee and calf.

25. An MRI of Mr Gibson’s right knee by Dr Nandan Srivastava (Radiologist) on 9 April 2013 concluded: ‘chronic complex tear involving the anterior horn of the lateral meniscus. The ligaments appear relatively normal’.[6]

    [6] Exhibit T5.

26. Mr Gibson told the Tribunal that he saw Dr Peter Summersell (Orthopaedic Surgeon) in April 2013 and Dr Summersell recommended surgery on his right knee.[7] No report from Dr Summersell has been provided to the Tribunal. Mr Gibson said that he decided to postpone this procedure in 2013 as he thought his symptoms did not require surgery. Both the medical evidence and Mr Gibson’s oral evidence was unclear as to whether he may require future surgery on his knees.

    [7] Exhibit T7, p 81.

27. A right lower leg ultrasound on 16 December 2015 by Dr Mathew Healy (Radiologist) found that Mr Gibson has: ‘Achilles tendonopathy with a AP diameter that measures 8mm. No tear is seen. No retrocalcaneal or retro-Achilles bursitis is identified.’[8]

    [8] Exhibit T28.

28. An x-ray of Mr Gibson’s left knee by Dr Memon on 30 March 2016, four months after the claim period, opined he had ‘early osteoarthritis of the left knee’.[9]

    [9] Exhibit T33.

29. Further examinations of Mr Gibson’s right Achilles tendon, right ankle and both knees by Dr Nicholas Bryant (Radiologist) on 19 May 2016, more than six months after the relevant claim period, diagnosed ‘acute Achilles tendinosis’.[10]

    [10] Exhibit ST2.

30. Mr Gibson told the Tribunal he experiences severe periodic pain that radiates down his legs. He said his knees can give way under him from the pain. However, Mr Gibson was able to take the train from Mudgee to Sydney to attend the Tribunal hearing. He also walked from his accommodation in Sydney to the Tribunal, which took him about 40 minutes and was painful for his knee. He does not use a walking stick.

31. Based on the medical evidence before the Tribunal, I am satisfied that Mr Gibson’s lower limb condition was fully diagnosed, fully treated and fully stabilised during the claim period. In accordance with the information at Table 3 – Lower Limb Function, I find that Mr Gibson’s condition during the claim period had a mild functional impact on activities involving his lower limb function and I assign an impairment rating of 5 points.

    Hearing loss

32. Dr Andrew McNeil (General Practitioner), in a medical certificate dated 7 April 2015, diagnosed Mr Gibson with vertigo and deafness, which was a temporary exacerbation of a permanent condition and caused symptoms of deafness and dizziness.[11] A similar form was signed by Dr Bryan Cebuliak (General Practitioner) on 20 April 2015.[12]

    [11] Exhibit T18.

    [12] Exhibit T20.

33. On 30 June 2015, Dr Bruce Black reported that Mr Gibson had ‘a severe loss of hearing on the right side’ and an MRI scan ‘showed no evidence of a retrocochlear lesion’.[13]

    [13] Exhibit T22.

34. Ms Gail Wickham (Clinical Physiotherapist) assessed Mr Gibson’s dizziness/imbalance on 28 January 2016 and opined a diagnosis of Meniere’s disease. Although this diagnosis was after the relevant claim period, I am satisfied that it is consistent with medical reports from prior to and during the claim period.

35. Dr Kidd, in a report dated 22 September 2016, more than one year after the date of claim, stated Mr Gibson has:

    … permanent total deafness of the right ear and there is moderate loss of hearing in the left ear.

    Tinnitus is always present and becomes severe at times. A hearing aid has not helped and a cochlear implant will be of no benefit. He has difficulty hearing and can not [sic] follow conversation if 2 or more people are talking.[14]

    [14] Exhibit A1.

36. Mr Gibson was able to participate in and provide evidence to the Tribunal hearing with minimal difficulties. Occasionally, he misheard questions or required questions to be repeated. He told the Tribunal he holds his mobile phone to his left ear as he is unable to hear anything with his right ear.

37. Based on the medical evidence before me, I am satisfied that Mr Gibson’s hearing condition is fully diagnosed, treated, and stabilised. Having regard to Table 11 – Hearing and other Functions of the Ear, I am satisfied that Mr Gibson’s condition has a mild functional impact on activities involving his hearing (communication) function or other functions of the ear and assign 5 points.

    Diabetes

38. The Job Capacity Report dated 26 October 2015 stated Mr Gibson has non-insulin dependent diabetes, which is fully diagnosed, fully treated and fully stabilised. Mr Gibson told the Tribunal he takes oral medication and, while he states the condition is chronic, it is well managed and has minimal impact on his ability to function.

39. Based on the evidence before the Tribunal, I am satisfied that Mr Gibson’s diabetes condition was fully diagnosed, fully treated and fully stabilised during the claim period. I have regard to the information at Table 1 – Functions requiring Physical Exertion and Stamina and am satisfied that Mr Gibson’s diabetes condition has no functional impact on activities requiring physical exertion or stamina and I assign an impairment rating of nil points.

    Other conditions

40. Mr Gibson told the Tribunal that his thyroid causes no functional impact. I therefore do not assign an impairment rating to this condition.

41. An ultrasound of Mr Gibson’s right elbow by Dr Bryant on 16 August 2016 showed acute lateral epicondylitis (tennis elbow).[15] As this condition was diagnosed after the relevant claim period, I am not satisfied that it was permanent during the claim period and therefore cannot assign an impairment rating.

    [15] Exhibit R2.

    CONCLUSION

42. For the reasons set out above, I am satisfied that Mr Gibson did not meet the requirements of section 94(1)(b) of the Act during the claim period as his impairments were not rated at 20 points or more under the Impairment Tables.

43. As I find that Mr Gibson did not qualify for the disability support pension during the claim period, it is not necessary for me to consider whether he had a continuing inability to work.

    DECISION

44. The decision under review is affirmed.

45.     I certify that the preceding 44 (forty four) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member.

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

Associate

Dated: 4 May 2017

Date(s) of hearing:	15 March 2017
Counsel for the Applicant:	Mr D Williams
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services