GRAEME NICOLL and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 722
•19 October 2012
[2012] AATA 722
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1938
Re
GRAEME NICOLL
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Senior Member Dr K S Levy, RFD
Date 19 October 2012 Place Brisbane The decision under review is affirmed.
............................[sgd]..............................
Senior Member Dr K S Levy, RFD
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Physical, intellectual or psychiatric impairment – Impairment Tables – Applicant not qualified for disability support pension – Decision under review affirmed
LEGISLATION
Social Security (Administration) Act 1999 (Cth) Schedule 2
Social Security Act 1991 (Cth) s 94
Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011 (Cth) Part 2
REASONS FOR DECISION
Senior Member Dr K S Levy, RFD
19 October 2012
INTRODUCTION
The applicant, Graeme Nicoll, claimed disability support pension on 8 February 2012. Centrelink rejected that application on 28 February 2012. The applicant sought further review. That original decision was reviewed by an authorised review officer but, on 13 March 2012, that officer determined that Mr Nicoll did not have 20 impairment points or more as required by the legislation. She therefore affirmed the original decision. A further review was made by way of application to the Social Security Appeals Tribunal (SSAT). That Tribunal also found that the applicant did not have 20 impairment points as required by s 94(1)(b) of the Social Security Act 1991 (Cth) (“the Act”) and affirmed the original decision on 26 April 2012. That Tribunal, however, did not determine the question of whether the applicant also had a continuing inability to work under s 94(1)(c)(i) of the Act.
ISSUES
The Tribunal is asked to determine the following issues:
(1)Whether the applicant had a physical, intellectual or psychiatric impairment during the relevant period;
(2)If the answer to issue (1) is yes, does he have an impairment rating of 20 points or more under the impairment tables; and
(3)If the answer to issue (2) is yes, does he have “a continuing inability to work”?
EVIDENCE
Mr Nicoll represented himself at the Tribunal. He previously had been granted disability support pension on 23 September 2006 but that entitlement was cancelled with effect from 1 April 2007 as a result of the applicant receiving periodic compensation payments. He previously lived in Victoria until November 2011, when he moved to the Gold Coast.
The applicant told the Tribunal that there were four conditions from which he suffers and which he claims leave him unable to work. The conditions which he relies upon are as follows:
(1)Chronic lumbar degeneration with left sciatica and paraesthesia;
(2)Ruptured flexor muscle of the left forearm;
(3)Neck and shoulder pain; and
(4)Anxiety, depression and posttraumatic stress disorder.
The applicant stated that the origin of his chronic lumbar degeneration was a motor vehicle accident in 2000. It seems that Mr Nicoll did not then work until 2004 when he was able to do manual work working for a salt manufacturer. He then injured his arm and was sometime after that granted disability support pension. That was ceased after he had received compensation payments. He then survived on those payments, as well as from the sale of a boat and a car, until November 2011 when he applied for newstart allowance. Some days later, Mr Nicoll said he fell down a set of stairs. He said that since that time he has not been able to work. He also told the Tribunal that he had been told by a doctor previously that if there was surgical intervention on his back, there was some risk that he may end up in a wheelchair.
Mr Nicoll told the Tribunal that using a scale of 0 to 10, his usual level of pain could be subjectively rated as “three”, but on a bad day it would be 7 out of 10. He qualified that evidence by saying he could have a bad day once per week or once every three weeks.
Mr Nicoll indicated that his back condition was the most serious condition from which he suffers.
Mr Nicoll told the SSAT that he could sit for 30 minutes before he would experience some numbness. However, once he massages his leg and commences moving, his mobility returns. He stated he cannot stand for long, and in particular he cannot stand still for five minutes; he can bend to pick up an object at knee height; and he can walk a couple of kilometres before experiencing pain.
Under cross examination from Mr Hamilton, Mr Nicoll accepted that some people can work with pain and can even work with a disability. He did not accept that he could sit for eight hours. The Tribunal then heard that on 28 November 2011, within a month of the applicant applying for disability support pension, Mr Nicoll travelled to meet his fiancée in the Philippines and was able to sit for eight hours on an aircraft from Brisbane to the Philippines. He agreed with Mr Hamilton that he also undertook the same return journey by aircraft in December 2011/January 2012 and again in August 2012.
Mr Nicoll described the functional impact of these conditions on his mobility as being that:
(a)he cannot shop for himself;
(b)he has some difficulty getting into a car if it is too low; and
(c)he can reach in an upward position but cannot change a light bulb.
However, he said he was able to:
(a) shower by himself;
(b) travel by bus or public transport;
(c)dress himself in the morning; and
(d) use a computer for 20 minutes per day.
Medical Evidence
Dr Rebgetz, the applicant’s general practitioner since he moved to the Gold Coast, described the applicant’s lower back pain and associated left sciatica and left foot paraesthesia, in a report dated 11 January 2012. He previously examined Mr Nicoll for this condition on 28 November 2011 and then reviewed him weekly on three occasions in December 2011.[1] The report revealed that his condition had significantly improved by then, even though the sciatica had continued.
[1] The report dated 11 January 2012 has these examinations as taking place in 2010. I accept, as did the SSAT, that this is an error and correct year of these examinations was 2011.
In a report dated 8 February 2012, Dr Rebgetz reported the applicant’s lower back pain was a degenerative condition which relates to motor vehicle accident in 2000. At the date of that report, he refers to the applicant needing analgesics to control pain and that the condition was likely to persist for more than two years. In a subsequent report dated 4 April 2012, Dr Rebgetz refers to the back pain as being an “L5/S1 disc disease” and more specifically a “S1 nerve root infringement with left sciatica”.
Other reports
There is an Employment Services Assessment Report, dated 8 February 2012, which was prepared by a registered psychologist. That report shows that Mr Nicoll’s prospects for employment are that he would be able to work within two years of that date with some intervention. The author of that report had noted however that there were some personal factors which were barriers to his work in the future. These are:
(1)Mr Nicoll’s experience of homelessness;
(2)the long gap between periods of employment; and
(3)unaddressed mental health issues.
There is also a Job Capacity Assessor’s report dated 8 March 2012. This report was prepared by a registered nurse and an exercise physiologist. That report refers to the applicant’s spinal disorder and states that the condition should be regarded as fully diagnosed. However, it concludes that it “cannot be justified to be fully treated and stabilised as [it] has not been fully investigated or treated by a specialist”.
In relation to the applicant’s work capacity, that report regards him as having a temporary capacity of zero to seven hours per week until 8 May 2012 and then having an anticipated capacity as follows:
(1)baseline capacity – 15 to 22 hours in suitable employment (that is, Mr Nicoll would not be able to undertake heavy manual work as he had done previously); and
(2)within two years, Mr Nicoll could expect to have work capacity of 23 to 29 hours.
That report also noted that Mr Nicoll’s lack of work experience and skill would be a barrier to actual employment.
CONSIDERATION
I have considered all of the evidence presented by the parties.
The Legislation
In arriving at a determination of the issues submitted by the parties, it is relevant that the Social Security (Administration) Act 1999 (Cth) requires that an applicant must qualify for disability support pension at the date of the claim or within 13 weeks of that date (see Schedule 2, Part 2, Clause 4). In this case, as the application was made on 8 February 2012, the relevant period for which the applicant must be assessed is 8 February 2012 to 8 May 2012, both dates inclusive.
These substantive provisions are contained in s 94 of the Act. Section 94(1) provides as follows:
(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.
…
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.
Example 1: A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2: A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3: A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
…
The following definitions, relevant to the above, are contained in s 94(5) of the Act:
work means work:
(a) that is for at 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.
In making an assessment of impairment, reference must also be made to the statutory instrument The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”). This is the statutory instrument which is applicable for a relevant period which is effective on or after 1 January 2012.
In Part 2 of the Determination, there are certain instructions in applying its tables. In particular, para 6 of Part 2 is pertinent. It states that an impairment must be assessed on the functional capacity of what a person can or cannot do and not on what the person chooses to do or what others might do for them. The Tables may only be applied to a person’s impairment after the medical history in relation to the condition has been considered. In addition, and importantly, para 6(3) states that an impairment rating can only be assigned to a claimed impairment if:
(a)the “impairment is permanent”; and
(b)the impairment “is more likely than not, in light of available evidence, to persist for more than 2 years”.
Other key definitions are important in how assessments are to be made. In particular, for the purposes of paragraph 6(3)(a), a condition is permanent only if:
(a)“the condition has been fully diagnosed by an appropriate qualified medical practitioner”; and
(b)it “has been fully treated”; and
(c)it “has been fully stabilised”; and
(d)the condition is, in light of available evidence, “more likely than not to persist for more than 2 years”.
In relation to whether a condition is fully diagnosed and fully treated, consideration must be given to any corroborating evidence; whether any treatment or rehabilitation has occurred; and whether treatment is continuing or is planned in the next two years. In determining whether a condition is fully stabilised, this criterion can be accepted if either the person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in a significant improvement in functioning; or where a person has not undertaken reasonable treatment, there is a medical or compelling reason why this should not be undertaken or no significant functional improvement which enable the person to work would be expected in the next two years even with reasonable treatment.
The determination also emphasises that a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
I turn now to an assessment of each of the four conditions claimed.
Chronic lumbar degeneration
This is dealt with under Table 4 of the Determination. The condition originated from a motor vehicle accident in 2000. There are various reports by Dr Rebgetz. In February 2012, there is a diagnosis of L5/S1 disc disease with S1 nerve root infringement and left sciatica. Mr Nicoll said he can walk a couple of kilometres before he gets pain although he cannot stand still for very long. At the hearing of this matter, I noted that the applicant sat at the bar table for the first 50 minutes of the hearing and then stood intermittently for five to ten minutes at a time. Mr Nicoll can look upwards and bend to knee level to pick up an object. This is consistent with a “mild functional impact” and a rating of 5 points under Table 4. I find that for this condition 5 points is the appropriate rating.
Raptured flexor muscle left forearm
Assessment of this injury can be made using Table 2 of the Determination. I note the applicant can do up buttons; he can pick up and handle or manipulate most objects normally encountered on a daily basis. This impairment occurred at work in 2006 and could now be regarded as being fully diagnosed, treated and stabilised. The Secretary concedes such an assessment. However, the description of functionality accords with the description in Table 2 for 0 points. I therefore find that is the appropriate assessment for Mr Nicoll for this condition.
Neck and shoulder pain
The applicant has pain in his neck and experiences headaches. He uses massage and analgesics for his back. His evidence shows that he had x-rays somewhere in the past but he has lost them and no other evidence has been produced. He has tightness in his left shoulder and it is controlled with analgesics and stretching exercises. There is the report by Dr Rebgetz dated 4 April 2012 but it appears that opinion is based solely on the patient’s history rather than any independent evidence or any expert report by a specialist. In any event, he opines at that stage that significant improvement is expected (see p. 6 of that report).
As there is no specialist medical report, the impairment cannot be regarded as fully diagnosed, treated or stabilised at present. The description of this upper limb function shows no functional impact on the use and coordination of hands and arms. At this stage, therefore, no rating can be made under Table 2.
Anxiety, depression and posttraumatic stress disorder
At the hearing by the SSAT, the applicant denied he had any psychiatric condition. He has had no treatment for such a condition. Mr Nicoll did however mention at the Tribunal that some years ago he was present when his then girlfriend of 12 ½ years duration fell from a cliff and died. This occurred on 27 April 2010. There may be a psychiatric condition resulting from that event, however, the applicant has not been examined and diagnosed or treated by a specialist doctor. Therefore, the condition cannot be regarded as permanent (in the sense that term is used in the Determination) as it is not fully diagnosed, treated and stabilised. Therefore a rating cannot be provided for this condition.
CONCLUSION
On the basis of the above assessments and taking account of the application of the statutory provisions and other factors which must be disregarded, I find that the total impairment rating for Mr Nicoll is 5 points, which is for the chronic lumbar degeneration condition. He therefore does not have a “severe impairment”. I note also that the applicant states, in addition to the anxiety, depression and PTSD claim relevant to Table 5, that he has some psychological issues about working in confined areas or near crowds. However, I accept the evidence of the job capacity assessors that a baseline work capacity of 15-22 hours per week would be realistic for the relevant period. Therefore, I am not satisfied that, even if there had been 20 impairment points as required under the Act that Mr Nicoll had a continuing inability to work for the relevant period as required by s 94(c)(i) of the Act.
DECISION
In the circumstances, I find that the applicant cannot succeed. The decision under review is affirmed.
I certify that the preceding 33 (thirty –three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy RFD ..........................[sgd]...........................
Associate
Dated 19 October 2012
Date of hearing 5 September 2012 Applicant In person Advocate for the Respondent Mr Robert Hamilton
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