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

Hahnheuser and Secretary, Department of Social Services (Social services second review) [2018] AATA 1342 (23 May 2018)
Division:GENERAL DIVISION
File Number: 2017/5037
Re:Axel Hahnheuser
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member P E Nolan
Date:23 May 2018
Place:Brisbane

The Tribunal affirms the decision under review.
...........................[SGD].......................................
Senior Member P E Nolan
CATCHWORDS
SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant had conditions that were fully diagnosed, treated and stabilised during the relevant period – whether Applicant had 20 impairment points – lower limb conditions –– multiple conditions causing common impairment – below knee amputation – diabetic ulcer – Applicant has 10 impairment points – decision under review is affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
REASONS FOR DECISION
Senior Member P E Nolan
23 May 2018
INTRODUCTION

On 11 October 2016, Axel Hahnheuser (‘the Applicant’) applied for Disability Support Pension (‘DSP’).[1] In the portion of the DSP claim form where the Applicant was to list his disabilities, illnesses or injuries, he wrote: [2]
Amputated right leg below knee.
[1] Exhibit 1, T-Documents, T12 at p. 68, Claim for DSP dated 11 October 2016.
[2] Exhibit 1, T-Documents, T12 at p.94, Claim for DSP dated 11 October 2016.
The central issue for the Tribunal to determine is whether the Applicant qualified for DSP on the date of his claim, 11 October 2016, or within 13 weeks thereafter, being up until 10 January 2017 (the ‘Relevant Period’).[3]
[3] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions at [17], dated 8 December 2017
HISTORY OF THE MATTER
As stated above, the Applicant lodged a claim on 11 October 2016 for DSP. On 28 November 2016, the Applicant’s claim was rejected on the basis that he did not attain an impairment rating of 20 points or more under Impairment Table 3.[4]
[4] Exhibit 1, T-Documents, T14 at p. 104, Centrelink Notice: Rejection of Claim for DSP dated 28 November 2016
The Applicant sought review by an authorised review officer (‘ARO’), who affirmed the rejection decision on 3 March 2017.[5] The Applicant sought further review from the Social Services and Child Support Division (‘SSCSD’) of the Tribunal who upheld the decision of the Respondent on 12 July 2017.[6]
[5] Exhibit 1, T-Documents, T18 at p. 113, Decision and Notes of Authorised Review Officer dated 3 March 2017
[6] Exhibit 1, T-Documents, T2 at p. 4, Decision of the Social Services and Child Support Division (AAT1) dated 12 July 2017.
On 16 August 2017, the Applicant lodged an application for review of that decision with the General Division of the Tribunal.[7] The hearing was conducted on 18 January 2018. The Applicant appeared before the Tribunal by telephone.
[7] Exhibit 1, T-Documents, T1 at p. 1, Application for Second Review of Decision dated 16 August 2017.
ISSUES FOR THE TRIBUNAL
The issues for the Tribunal to consider can be summarised as follows:
a)Whether, during the relevant period the Applicant had a physical, intellectual or psychiatric impairment which was fully diagnosed, treated and stabilised;
b)Whether, at the relevant time, the Applicant’s conditions warranted an impairment rating of 20 points or more under the Impairment Tables, and if so;
c)Whether the Applicant has a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support (‘POS’); and
d)Whether the Applicant has a continuing inability to work.
Before determining the above, it is convenient to set out the relevant legislative framework.
LEGISLATIVE FRAMEWORK
Section 94 of the Social Security Act 1991 (Cth) (‘the Act’) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.
The Social Security (Administration) Act 1999 (Cth) (‘Administration Act’) require that qualification for DSP and assessment of the relevant impairment ratings be determined as at the date of claim, which in this case is 11 October 2016. There is, however, an exception where the person is not qualified on that date but “becomes qualified” within the 13 weeks immediately after lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[8] Therefore, the Relevant Period for considering whether the Applicant qualified for DSP is between 11 October 2016 and 10 January 2017. The Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period.[9]
[8] Sections 3, 4(1), 41 and 42, Schedule 2, Part 2 of the Administration Act; Fanning and Secretary, Department of Social Services [2014] AATA 447 at [33].
[9] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Determination’).[10] The Tables are function based rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[11] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[12]
[10] Section 26(1) of the Act.
[11] Section 5(2) of the Determination.
[12] Section 6(1) of the Determination.
Where two or more conditions cause a common or combined impairment, the Act provides that a single impairment rating is to be assigned under a single Impairment Table.[13]
[13] Section 10(5) of the Determination.
Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results is more likely than not, in light of the available evidence, to persist for more than two years.[14] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not to persist for more than two years.[15]
[14] Section 6(3) of the Determination.
[15] Section 6(4) of the Determination.
In determining whether a condition has been fully diagnosed and fully treated, the following facts are to be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.[16]
[16] Section 6(5) of the Determination.
A condition is “fully stabilised” if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.[17]
[17] Section 6(6) of the Determination.
“Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[18] An impairment rating can only be assigned in accordance with the rating points in each Table.
[18] Section 6(7) of the Determination.
In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.
CONSIDERATION
Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?
The evidence before the Tribunal makes reference to the Applicant having the following conditions:
·Right eye haemorrhage;[19]
·Below right knee amputation;[20] and
·Left foot infection.[21]
[19] Exhibit 1, T-documents, T8 at p. 63, Chronic Disease Management Plan: Dr Jayawardena dated 11 November 2015.
[20] Exhibit 1, T-Documents, T8 at p. 94, Claim for DSP dated 11 October 2016.
[21] Exhibit 1, T-Documents, T15 at p. 106, Letter: Dr Winkel, Orthopaedic PHO dated 19 January 2017.
The Respondent accepts that the Applicant had an impairment for the purposes of subsection 94(1)(a) of the Act.[22] Having regard to the evidence before the Tribunal, I agree with that concession.
[22] Exhibit 3, Respondent’s Statements of Facts, Issues and Contentions at [23].
I will now consider whether the Applicant’s impairments can attract impairment points under the Tables.
Right Eye Haemorrhage
The Respondent contends that there is insufficient medical evidence to assess whether this condition is fully diagnosed, treated and stabilised. A right eye haemorrhage is mentioned in a GP Management Plan prepared by Dr Jayawardena, on 17 November 2015,[23] which indicates that the impairment exists, however there is no evidence to indicate if any treatment has been sought. The Applicant’s initial application did not deal with this condition, and the Applicant did not make any submissions at hearing with regard to this condition. In the circumstances, due to the lack of evidence, I cannot conclude that this condition is fully diagnosed, treated or stabilised and therefore cannot assign an impairment rating.
[23] Exhibit 1, T-documents, T8 at p. 64, Chronic Disease Management Plan: Dr Jayawardena dated 11 November 2015..
Below Right Knee Amputation
The Applicant suffers from Type II Diabetes Mellitus.[24] As a result, he has a long history of foot complications and had to have a below the right knee amputation in April 2015.[25]
[24] Exhibit 1, T-Documents, T15 at p. 106, Letter: Dr Winkle, Orthopaedic PHO dated 19 January 2017.
[25] Ibid.
The Respondent concedes that the Applicant’s below right knee amputation was fully diagnosed, treated and stabilised during the Relevant Period.[26] Having regard to the evidence before me, I accept that this is the case.
[26] Exhibit 3, Respondent’s Statements of Facts, Issues and Contentions at [38].
I am therefore satisfied that the impairment caused by this injury can attract an impairment rating. The relevant table is Table 3 – Lower Limb Function. The Respondent contends that the resulting impairment attracts a rating of 5 points under the Tables.[27] Due to the operation of subsection 10(5) of the Determination, before I consider the total impairment rating to be assigned under Table 3, I will review whether the Applicant’s left foot infection is permanent within the meaning of the Act.
[27] Ibid at [40].
Left Foot Infection
The Respondent took the view that the Applicant’s left foot condition was fully diagnosed but does not accept that it was fully treated or stabilised during the Relevant Period, and on that basis argues that an impairment rating cannot be assigned for this condition.[28]
[28] Exhibit 3, Respondent’s Statements of Facts, Issues and Contentions at [32].
The Respondent, relying on the medical report[29] and medical certificate[30] issued by Dr Winkel and the Job Capacity Assessor’s (JCA) report,[31] argued that the Applicant was continuing to work during the Relevant period, despite medical advice, was being treated by antibiotic medication for the condition and further treatment was recommended. The Respondent therefore argued that the condition was not fully treated or stabilised.[32]
[29] Exhibit 1, T-documents, T15 at p. 106, Letter: Dr Winkel, Orthopaedic PHO dated 19 January 2017.
[30] Exhibit 1, T-documents, T16 at p. 107, Medical Certificate: Dr Winkel dated 19 January 2017.
[31] Exhibit 1, T-documents, T13 at p. 100, Job Capacity Assessment Report dated 8 November 2016.
[32] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions at [32] – [36].
The medical certificate provided by Dr Winkle dated 19 January 2017 refers to the Applicant being unfit for work or study for the period of August 2016 with no end date provided.[33] The medical certificate indicates that the Applicant’s conditions consist of “Type II diabetes with left diabetic foot infection and previous right below knee amputation.”[34] The treatment refers to the Applicant’s past surgery for his below right knee amputation and debriding in December 2016, lists current treatment as consisting of “dressings, elevation, limit mobility” and potential future treatment including “possible further surgical debriding/amputation.”[35]
[33] Exhibit 1, T-documents, T16 at p. 107, Medical Certificate: Dr Winkel dated 19 January 2017.
[34] Exhibit 1, T-documents, T15 at p. 106, Letter: Dr Winkel, Orthopaedic PHO dated 19 January 2017.
[35] Exhibit 1, T-documents, T16 at p. 107, Medical Certificate: Dr Winkel dated 19 January 2017.
Dr Winkel’s report, also dated 19 January 2017 provided: [36]
He currently has a severe diabetic foot infection in his remaining left foot. This has           deteriorated due to Mr Hahnheuser’s requirement to work instead of resting and          elevating his left foot as requested.
He has to continue working despite medical advice as his recent Disability Support         claim has been rejected. It is of my, and Dr Hope’s opinion that if Mr           Hahnheuser continues to work and weight bear on his left leg instead of resting        as requested, the wounds will continue to deteriorate possibly resulting in a            below knee amputation on his left side as well.
Weight bearing for any period will exacerbate his current medical condition. This is          a permanent condition that will likely persist for more than 2 years. He is           unfit to            return to any form of work due to the issues outlined above.”
[36] Exhibit 1, T-Documents, T15 at p. 106, Letter: Dr Winkel, Orthopaedic PHO dated 19 January 2017.
Dr Hope’s reports are dated 24 October 2017[37] and 4 December 2017[38] respectively. These dates are nearly one year outside of the Relevant Period, and therefore limited weight can be attached, except to the extent that they cast light on the Applicant’s position during the Relevant Period.[39] Dr Hope’s reports both explicitly refer to the patient’s status during the Relevant Period. Accordingly, I accept both of these reports are sufficiently capable of being relied upon as regards to the Applicant’s condition during the Relevant Period.
[37] Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions dated 2 January 2018, AH04.
[38] Ibid, AH03.
[39] Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252.
Dr Hope’s report of October 2017 provides, relevantly:[40]
On 1 September 2016, Mr Hahnheuser presented with an ulcer beneath the left     first metatarsophalangeal joint. There was an obvious infected loose piece of bone     at the base of the ulcer. This was removed and arrangements were made to admit Mr Hahnheuser for surgery to debride this bone from the forefoot. This            surgery was    carried out on 9 September 2016. Mr Hahnheuser was discharged            from hospital on 12 September 2016. Mr Hahnheuser was reviewed in the    outpatient clinic on 15 September 2016. His dressing was reapplied. During            this period, Mr Hahnheuser had regular dressings to the left foot.
He was reviewed at the Orthopaedic Outpatient Clinic on 20 October 2016. At this           time, Mr Hanheuser wished to return to work for financial reasons. He was advised on 20 October 2016 that he could increase working hours to 6 hours per          week due to the fact that the majority of his work involved sitting. On 17       November 2016, Mr Hahnheuser was reviewed at the Orthopaedic Outpatient      Clinic again. It was noted that he had increased ulceration over the plantar      aspect of the left forefoot. This was re-dressed with offloading dressings to attempt to reduce any pressure on the ulcerated area.
The advice with regard mobility during this period had been to carry out a maximum of 6 hours of work per week with avoidance of prolonged periods of           standing. This advice extended to both working and social walking.
At the time (September 2016) Mr Hahnheuser had a severe infection to the left      forefoot and was admitted to hospital. At this time, he was unable to walk around a      shopping centre or supermarket, walk from the car park into a shopping           centre or supermarket and would have required assistance to use public transport had he not been admitted to hospital for treatment of a severe infection to his left foot.
According to Table 3, this places him at 20 points on the rating scale in September          2016.
[40] Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions dated 2 January 2018, AH04.
The JCA formed the view that the condition was not fully treated or stabilised, and considered it to be an exacerbation of a permanent condition, and the impairment was likely to improve with ongoing treatment.[41] Further, the JCA provided that the Applicant reported that he was taking antibiotics for the infection at the time.
[41] Exhibit 1, T-documents, T17 at p. 112, Job Capacity Assessment Report dated 1 March 2017.
Although the Applicant’s doctors, and the Applicant himself, may have considered the Applicant’s left foot condition to be permanent, during the Relevant Period the Applicant was clearly undergoing treatment and medical review of the condition. Further information before the Tribunal and the evidence provided by the Applicant at the hearing point to improved mobility and functionality when the left foot condition is stabilised. As such, I am not satisfied that the left food condition is fully treated and stabilised during the Relevant Period. Accordingly, only the right below knee amputation can be rated under Table 3.[42]
[42] Section 10(5) of the Determination.
Impairment Rating
It is important to first point out that I am limited to consider the Applicant’s functional impairment during the Relevant Period. That is not to say that the Applicant’s condition may not have worsened after the Relevant Period, and it is open to him to reapply for the DSP at any time.
Table 3 deals with Lower Limb Function, and is to be used where the person has a permanent condition resulting in functional impairment when forming activities which require the use of legs or feet.[43]
[43] Introduction to Table 3 of the Determination.
To attract 20 points, Table 3 provides:[44]
[44] Table 3 of the Determination.
(1) The person
a)is unable to do any of the following:
i.walk around a shopping centre or supermarket without assistance;
ii.walk from the carpark into a shopping centre or supermarket without assistance;
iii.stand up from a sitting position without assistance; and
b)requires assistance to use public transport.
(2)This impairment rating level includes a person who requires assistance to:
a)move around in, or transfer to and from a wheelchair; or
b)move around using walking aids.

To attract 10 points, Table 3 provides:[45]
[45] Table 3, the Determination.
(1)At least one of the following applies:
a)the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
b)the person is unable to use stairs or steps without assistance; or
c)the person is unable to stand for more than 5 minutes; and
(2)The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3)This impairing rating level includes a person who can:
a)move around independently using a wheelchair and can independently transfer to and from a wheelchair; or
b)move around independently using walking aids.
The Guidelines to Table 3 indicates that ‘assistance’ in the descriptors refers to assistance from another person, as opposed to any aids or equipment that the person has and usually uses.[46] The Guidelines stipulate that an Applicant must meet all the descriptor points under a rating to be assigned that rating.[47]
[46] Exhibit 3, Respondent’s Statements of Facts, Issues and Contentions, Attachment A.
[47] Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions, Attachment AH03.
At the hearing, the Applicant gave evidence that he was working part-time during the Relevant Period as a security guard. His duties included driving from one site to another, getting out of the vehicle at some sites to check the doors were sealed, to investigate why alarms had been activated and to inspect premises. Further, the Applicant stated that he lives by himself and is able to shower unassisted, although it is strenuous, and he is able to undertake some light housework.
The Applicant’s evidence at hearing was that without the use of his prosthesis, he required assistance to get in and out of his wheelchair or a chair, and assistance to get his wheelchair out of the car. He further stated that he is unable to walk around a shopping centre, or walk to a car park without assistance.
Dr Hope’s report of December 2017 refers to a review of the Applicant undertaken on 29 December 2016, providing responses to a set of questions concerning the activities set out in Table 3. The responses are summarised as follows:[48]
[48] Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions dated 2 January 2018, AH03.
·On 29 December 2016, this patient had difficulty with his right below knee prosthesis due to the fact that it had been too tight and therefore he had removed the below knee prosthesis.
·This patient requires the assistance of a right below knee prosthesis in order to walk. Therefore, without this assistance, the patient could not walk around a shopping centre. In the period up to 27 December [2016], the patient was having difficulty using the prosthesis due to poor fitting in combination with ulceration of the left foot. It is my opinion that this patient could not walk around a shopping centre without assistance.
·This patient is likely to have had the ability to walk a short distance from the doors of a shopping centre to the building inside. It is my opinion that at this time the patient did not have the capacity to walk from the car park. Without the assistance of a below knee prosthesis, this patient does not have capacity to walk.
·Without the assistance of a right below knee prosthesis, this patient would not have been unable to stand up from a sitting position. This is due to a right below knee amputation and left forefoot ulcerations. With the assistance of a below knee prosthesis, this patient could stand up from a sitting position, he would not have capacity for a long duration of greater than 10-15 minutes due to the poor fitting of the left below knee prosthesis at this time.
·It is my opinion that the patient would have an extremely limited capacity to access public transport. It is unlikely that he would have had capacity to use this on a regular basis.
·It is my opinion that:
(a)In the period concerned, the patient had capacity to transfer from bed to wheelchair. He had capacity to carry this out unaided.
(b)this patient required the use of a walking aid, namely a right below knee prosthesis. In the period in question, this was poorly fitting and therefore at times was unable to use his below knee prosthesis and therefore required to use a wheelchair.
It is clear from the medical evidence available to the Tribunal and the evidence given at the hearing by the Applicant, that during the Relevant Period, the Applicant was unable to fully utilise his prosthesis as a result of the left foot condition and therefore was required to also use a wheelchair.
The Respondent contended that the functional impairment should be rating as mild.[49] In my view, the Applicant’s functional impairment during the Relevant Period could, at most, be rated as moderate. Based on the evidence before me, this would also be my finding had I been satisfied that the Left Foot Condition was fully treated and stabilised. I come to this conclusion due to the Applicant’s evidence that he was able move around a shopping centre independently using his prosthesis and or his wheelchair during the Relevant Period. I therefore can attribute 10 points to the Applicant in respect of lower limb impairment.
[49] Exhibit 3, Respondent’s Statements of Facts, Issues and Contentions at [40].
Continuing Inability to Work
During the hearing, the Applicant gave evidence that he continued to work as a security guard after the amputation, however he could only work 10 hours per week because of the pain from the foot infection. The Applicant stated that he had to go back to work after being refused the DSP as he has no other source of income. The medical evidence before the Tribunal indicates that, during the Relevant Period, the Applicant was unable to work and that working exacerbated his conditions.
However, given that the Applicant can only be assigned 10 points under Table 3, I do not need to consider whether the Applicant had a continuing inability to work.
DECISION
The Applicant does not qualify for DSP. Accordingly, the decision under review is affirmed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for the decision herein of Senior Member P E Nolan

...........................[SGD].......................................
Associate
Dated: 23 May 2018

Date of hearing: 18 January 2018

Applicant: By telephone

Advocate for the Respondent: Ms Claire Campbell

[2012] AATA 922 at [34].

[2018] AATA 1342

23 May 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	18 January 2018
Applicant:	By telephone
Advocate for the Respondent:	Ms Claire Campbell