GLEN HULL and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2013] AATA 258

[2013] AATA  258

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/4176
Re	GLEN HULL
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	29 April 2013
Place	Brisbane

The Tribunal affirms the decision under review.

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Mr R G Kenny, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Relevant period for assessment – Physical impairments – Impairment Tables – Some conditions not fully diagnosed, treated and stabilised – Conditions not permanent – Others assessable at nil points under the appropriate tables – Applicant not qualified for disability support pension during the relevant period – Decision under review affirmed 

LEGISLATION

Social Security Act 1991 (Cth) s 27, s 94, Sch 1B

Social Security (Administration) Act 1999 (Cth) Sch 2

REASONS FOR DECISION

Mr R G Kenny, Senior Member

29 April 2013

BACKGROUND

1. On 26 October 2011, Mr Glen Hull made a claim for disability support pension which is payable under the terms of the Social Security Act 1991 (Cth) (the Act). This was rejected by a Centrelink delegate on 15 December 2011. On 26 March 2012, an authorised review officer affirmed the decision, as did the Social Security Appeals Tribunal on 19 July 2012.

   LEGISLATION, ISSUES AND SUBMISSIONS

2. The qualifications for disability support pension are set out in s 94 of the Act. It is common ground that Mr Hull meets the age and residency requirements of that provision and has a physical impairment in relation to his spine and feet and in relation to migraine and a gastroenterological condition. The remaining requirements in s 94 of the Act, and the matters in issue, are:

   ·whether Mr Hull has an impairment rating of 20 points or more which is calculated under the Impairment Tables in Schedule 1B of the Act as required by s 94(1)(b) thereof; and, if so

   ·whether he has a continuing inability to work as required by s 94(1)(c)(i) of the Act.

3. To qualify for disability support pension, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the initial claim or in the period of 13 weeks from the day of the claim.[1] In Mr Hull's case, that period is from 26 October 2011 until 26 January 2012 (the relevant period).

   [1] See Schedule 2, cl 3 and cl 4 of the Social Security (Administration) Act 1999 (Cth).

4. The Introduction to Schedule 1B of the Act[2] provides guidance in the application of the various tables which it contains. Part of that introduction requires that a rating is only to be assigned to a condition which is considered to be permanent in that it is a ”fully documented, diagnosed condition which has been investigated, treated and stabilised”.[3] Mr Bob Hamilton, for the respondent, submitted that, on the evidence available in the relevant period, only the migraine and the gastroenterological condition were fully diagnosed, treated and stabilised such that an impairment rating could be allocated to them. However, he submitted that a nil rating was appropriate to those conditions in the relevant period. This meant that s 94(1) of the Act was not satisfied. He also submitted that Mr Hull did not satisfy the incapacity for work requirements of s 94(2) of the Act.

   [2] For the relevant Tables to be applied, see s 27 of the Act.

   [3] See para 4 of the Introduction to the Impairment Tables in Sch 1B of the Act.

5. Mr Hull submitted that he is now severely incapacitated from his health problems and is not capable of engaging in or training for employment. In particular, he referred to the limitations imposed by his back condition and that of his feet. He submitted that he meets the qualification criteria for disability support pension.

   EVIDENCE

   The applicant

6. Mr Hull's evidence was that he no longer suffers from migraines and, because of the preventative medication Pariet, he no longer experiences gastroenterological discomfort. He described continuing pain in his spine and feet and functional limitations referrable to those conditions. These include limitations on walking distances and climbing stairs. The problems with his feet make it very difficult for him to wear shoes.

7. Mr Hull recalled his physiotherapy treatment with Mr Andrew Logan but said that this did not assist him with his back or feet problems. He attended a podiatrist in Bundaberg on one occasion but, again, was unable to benefit from that consultation. He is currently on a waiting list for an appointment with the spinal unit in Brisbane for his back and another list to see an orthopaedic surgeon in Bundaberg for his feet. He does not know how long he will need to wait for either of those appointments.

8. Mr Hull has worked in a variety of employment including the provision of plumbing materials and home maintenance when he lived in Victoria and, more recently in the Bundaberg area, farming. He believes that his present level of incapacitation from his health problems means that he is no longer capable of engaging in or training for employment.

   Other evidence

9. Dr Abid Majid completed a report and a referral letter on 12 October 2011[4] and 2 April 2012[5], respectively. In his report, he diagnosed chronic back pain with left leg radiation/spinal stenosis which was gradually getting worse and for which Mr Hull was on the public waiting list to see a specialist.  He also diagnosed osteoarthritis in both feet for which Mr Hull had surgery resulting in improvement of the right foot but not the left foot. His opinion was that these conditions would impact on function for more than two years. Dr Majid also noted the presence of migraine which “can impact on his ability to function” and GORD[6]. His opinion for migraine and GORD was that significant improvement was expected.

   [4] Exhibit 1, T-document 6, pp. 24-31.

   [5] Exhibit 1, T-document 14, p. 61.

   [6] Gastro Oesophageal Reflux Disease.

10. In his referral letter, Dr Majid described Mr Hull as suffering from osteoarthritis of both feet and chronic back pain with radiation in his left leg due to spinal stenosis. Again, his opinion was that the symptoms were unlikely to improve in the next two years.

11. A Job Capacity Assessment (JCA) report was completed by “JS”, a qualified social worker, and “RK”, a registered nurse, on 1 November 2011.[7] They described Mr Hull's osteoarthritis of the feet as fully diagnosed with the following functional impact:

    pain that varies between increases in his activity levels. unable to walk distances over 1 klm. altered gait. periodic swelling. difficulty wearing closed in shoes. stand 45 minutes. cannot squat difficulty pushing up. difficulty with repetitive stair climbing.

    [7] Exhibit 1, T-document 9, pp. 42-47.

12. The JCA reporters concluded that there were prospects of functional improvement with further secondary interventions.

13. For Mr Hull’s spinal disorder, the JCA reporters concluded that it was fully diagnosed, with the diagnosis being:

    Diffuse Disc Bulge L3/4/5 with moderate bilateral inferior neural forminal narrowing and mild thecal sac indentation. L4/5 disc is abutting bilateral exiting L4 nerve root. medication (Naproxin, Tramel, Endep). nil physiotherapy or pain management. referral to specialist cat 2 wait listed.

14. As to functional impact, they reported:

    client reported – chronic aching pain with referred pain down his left leg. lift/carry up to 15 kg. can sit drive for 45 min. decreased pushing, pulling actions or repetitive bending .

    med report – chronic low back pain radiating left leg, gradually getting worse. unable to sit or stand longer periods

15. Their conclusion was that further secondary interventions were anticipated to reduce the functional impact.

16. In relation to the gastroenterological condition, the JCA reporters were of the opinion that it was fully diagnosed, treated and stabilised but that it had a “minimal functional impairment apart from a burning sensation and abdominal pain when exacerbated”.

17. The JCA reporters recommended a nil impairment rating under Table 11.1 for the gastroenterological condition and no ratings for the other conditions. Further, they concluded that Mr Hull had a baseline work capacity of 8-14 hours per week and a capacity, with intervention, for work of 15-22 hours per week in light less-skilled work such as “Retail, Customer Service, Call Centre”.

18. Mr Hull attended physiotherapy sessions with Mr Andrew Logan in January 2012. In his report, dated 25 January 2012,[8] Mr Logan wrote that Mr Hull would benefit from further treatment and recommended a trial of four treatments on a fortnightly basis over two months with further review thereafter.

    [8] Exhibit 1, T-document 12, pp. 52-53.

19. In evidence was a report from Disability Employment Services, dated 18 July 2012.[9] It identified various individually tailored programs which have been provided to Mr Hull. It notes the treatments given by the physiotherapist and the podiatrist and the unsuccessful intervention by them. It also makes particular reference to the difficulty Mr Hull faces in obtaining appropriate footwear. It was noted that Mr Hull’s back and feet conditions were the main barriers to his gaining employment.

    [9] Exhibit 1, T-document 15, pp. 62-63.

    CONSIDERATION

20. Mr Hull’s evidence relates to his present position which is more than 12 months after the end of the relevant period. I am satisfied that the reports of Dr Majid and the JCA reporters, completed during the relevant period, provide a reliable analysis of Mr Hull’s impairment levels at that time. In relation to his back condition and the osteoarthritis in his feet, there is evidence that they were fully diagnosed in the relevant period. However, there is also evidence that they were not fully treated and stabilised during that time. His continued physiotherapy treatment throughout the relevant period for his back, his pending appointments to a pain clinic for his back and with an orthopaedic surgeon for his feet, confirm that those conditions were not fully treated and stabilised during the relevant period. Because of that, I am satisfied that no impairment rating may be allocated under the Impairment Tables for those conditions.

21. The JCA reporters considered that Mr Hull’s gastroenterological condition was fully diagnosed, treated and stabilised in the relevant period and presented him with minimal symptoms. That is consistent with Mr Hull’s evidence and it would seem also to be the case with his migraine condition. I am satisfied that those descriptions equate with a nil impairment rating under the Impairment Tables.

22. As no impairment rating may be allocated to Mr Hull’s conditions in relation to the relevant period, the threshold level of 20 points as provided for in s 94(1)(b) of the Act was not met by him during that time. Accordingly, he is not qualified for disability support pension and it is unnecessary for consideration to be given to his work capacity.

    DECISION

23. The Tribunal affirms the decision under review.

I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.

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Associate

Dated 29 April 2013  

Date of hearing	17 April 2013
Applicant	In person
Solicitors for the Respondent	Mr Bob Hamilton