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

[2016] AATA 602

Hermann and Secretary, Department of Social Services (Social services second review) [2016] AATA 602 (15 August 2016)

Division	GENERAL DIVISION
File Number	2016/0882
Re	Peter Hermann
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Member I Thompson
Date	15 August 2016
Place	Adelaide

The Tribunal affirms the decision under review.

......................[Sgd]..................................................

Member I Thompson

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether conditions fully diagnosed, treated and stabilised - requirements of a program of support - continuing inability to work - decision affirmed.

LEGISLATION

Social Security Act 1991, s 94

Social Security (Administration) Act 1999, ss 41 and 42, Schedule 1, Part 2, clauses 3 and 4

SECONDARY MATERIALS

Social Security (Active Participation for Disability Support Pension) Determination 2014

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

REASONS FOR DECISION

Member I Thompson

15 August 2016

1. The applicant, Mr Hermann, lodged a claim for Disability Support Pension (DSP) on 16 June 2015.  Centrelink rejected the DSP claim both initially and on internal review.  Mr Hermann applied to the Social Services & Child Support Division (SSCSD) of the Administrative Appeals Tribunal and the decision of Centrelink was affirmed.  In these proceedings, Mr Hermann seeks review of the decision of the SSCSD.  The hearing took place on 30 June 2016 and Mr Hermann was self-represented.  Mr A Parker represented the respondent, the Secretary, Department of Social Services.  Mr Hermann gave evidence.  The Tribunal received in evidence as exhibits various medical reports and Centrelink records.

   LEGISLATION AND ISSUES

2. The issue for the Tribunal is whether Mr Hermann satisfied the qualification criteria for the DSP which are set out in s 94 in the Social Security Act 1991 (the Act). In accordance with ss 41 and 42, and clauses 3 and 4 of Part 2 to Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) the relevant assessment period for consideration of Mr Hermann’s claim is taken from the date of the DSP claim and 13 weeks following. The assessment period in this case is 16 June 2015 to 15 September 2015.

3. Section 94 of the Act provides that a person is qualified for DSP 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 Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and

   (c)The person has a continuing inability to work.

4. In accordance with s 94 of the Act a person is regarded as having a “continuing inability to work” if:

   (a)They have an inability to work due to their accepted impairments for 15 hours or more a week; and

   (b)They have actively participated in a “program of support”.

   This second requirement is not necessary, however, if a person has a severe impairment of 20 points or more under a single Impairment Table.

5. The Secretary concedes, and the Tribunal accepts, that Mr Hermann suffers medical conditions that cause impairment. Accordingly, s 94(1)(a) of the Act is satisfied at the time of Mr Hermann’s claim for DSP.

6. The Secretary conceded that Mr Hermann’s medical conditions included bilateral ankle pain, bilateral shoulder disorder, anxiety, post-traumatic stress disorder, fibromyalgia, neck condition and bilateral knee disorders.

7. The Secretary conceded that Mr Hermann’s shoulder condition attracted a rating of 10 points under the Impairment Tables.  The Secretary also conceded that a rating of 10 points should be assigned to Mr Hermann’s knee condition.  However, it was not conceded that any of the other conditions attracted a rating of impairment points.

8. With the concession of a total of 20 impairments for Mr Hermann’s shoulder condition and the knee condition, the Secretary accepted that Mr Hermann satisfies s 94(1)(b) of the Act. However, the Secretary contended that Mr Hermann could not satisfy s 94(1)(c) of the Act as he did not have a continuing inability to work because he had not actively participated in a program of support which is a requirement of s 94(2)(aa) of the Act.

   CONSIDERATION

9. The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of an impairment.  The Impairment Tables are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.  Section 6 of the Rules for applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent, and that the impairment results from a condition that is more likely than not to persist for more than two years.  The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised.  The functional capacity which is rated under the Impairment Tables concerns the question of an individual’s capacity to work.

10. The applicable impairment rating, if any, for each of Mr Hermann’s conditions will be considered in turn by reference to the Impairment Tables.  As indicated, consideration must be given to whether each condition was fully diagnosed, fully treated and fully stabilised during the assessment period before determining an impairment rating, as the Impairment Tables provide this as a pre-requisite for the allocation of an impairment rating.

    Mr Hermann’s evidence

11. Mr Hermann, aged 46, told the Tribunal that he lives alone in Port Pirie where he has resided for about 15 years.  He left school in Year 11.  He has a qualification as a forklift driver.  He has worked regularly over many years.  Unfortunately, he was injured severely in a motor vehicle accident in 1989 and he described the impact of crush injuries to his legs, a punctured lung, damaged shoulder and smashed face.  Thereafter his capacity for work has been intermittent.  In all he has worked for about six years in Port Pirie in a full-time capacity doing sales jobs.

12. In evidence, Mr Hermann described the impact of his medical conditions, particularly at the time of the DSP claim in 2015.  He described problems which he suffered with both shoulders.  His knees hurt and prevented him from bending.  He said that he did not have problems with his arms, however he suffers from arthritis in the fingers.  He suffers from pain in the neck and he has difficulty sleeping.  He gets headaches.  He suffers from anxiety and he consulted a psychiatrist to seek assistance for panic attacks and flashbacks to the 1989 motor vehicle accident.  He has had difficulties with hip pain.

13. For two years Mr Hermann has used a walking stick to assist his mobility.  He can drive a car and walk into the shops.  He looks after himself.  However, it is clear that he leads an isolated lifestyle.  As best he can, he cooks and cleans.  He avoids heavy lifting.  He has difficulty reaching above shoulder height.  He improvises and slowly attends to household tasks, preparation of food and cooking.  His routine generally involves staying at home during the day and occasionally friends visit him.  He has been prescribed a variety of medication for both the physical impact and the psychological effects of his medical conditions and he has gained some relief.

    Shoulder condition

14. Reports by an orthopaedic surgeon, Dr B Oloruntoba[1] were received in evidence.  The reports noted left shoulder surgery in 2010 and an arthroscopy of the right shoulder in 2012.  A report from a general medical practitioner, Dr A Kajani, confirmed a history of shoulder damage causing pain and discomfort with interruption to sleep.[2]

    [1]     Exhibit 1, T30 p 343-350.

    [2]     Exhibit 1, T23 p 279-289.

15. A Job Capacity Assessment (JCA) report[3] submitted on 27 July 2015 referred to functional impacts from bilateral shoulder pain which included difficulties with lifting and reaching over head, problems with repetitive use of the shoulder, including domestic work, and increased pain when the weather is colder.

    [3]     Exhibit 1, T28 p 324-332.

16. Impairment Table 2 provides the descriptors of impairment relating to upper limb function.  For a moderate functional impact Table 2 states:

Points

Descriptors

10

There is a moderate functional impact on activities using hands or arms.

(1)      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.

1. Taking into account the medical evidence together with Mr Hermann’s evidence, the Tribunal is satisfied that Mr Hermann’s upper limb condition was fully diagnosed during the assessment period and it was fully treated and stabilised.  The Tribunal considers that the Secretary’s concession, previously referred to, is correct and that Mr Hermann’s upper limb function attracts a rating of 10 points under the Impairment Tables for a moderate functional impact.

   Lower limb condition

2. Reports by Dr Kajani confirmed details of damage to both knees, left ankle and intermittent treatment over several years.[4]  Dr Kajani noted that Mr Hermann’s knee pain interfered with sitting, standing and squatting, resulting in a reduced range of movement and an inability to play any sport.[5]  An orthopaedic surgeon, Dr R Crowley, performed a bilateral knee arthroscopy in April 2014.  Dr Crowley reported degeneration with minor tears of the medial meniscal cartilages.  The cruciate ligaments were intact and the lateral compartments were normal.  Dr Crowley reported that “it is a long time” before Mr Hermann will require knee replacement surgery.[6]

   [4]     Exhibit 1, T22 and T23 p 268-289.

   [5]     Exhibit 1, T23 p 285.

   [6]     Exhibit 2.

3. A general medical practitioner, Dr H Muazam, reported that Mr Hermann fractured both ankles in the motor vehicle accident in 1989.  Some years later, Mr Hermann bent the left ankle badly while he was playing golf and subsequently suffered problems with rolling the ankles.  Left ankle pain interrupted Mr Hermann’s sleep.[7]

   [7]     Exhibit 1, T31 p 352.

4. A CT report regarding both ankles, by Dr P Newbold, concluded that there are some ossicles and bony irregularities in the right ankle, with no irregularities in the left ankle.[8]

   [8]     Exhibit 1, T31 p 356.

5. Impairment Table 3 provides the descriptors of impairment relating to lower limb function.  For a moderate functional impact Table 3 states:

Points

Descriptors

10

There is a moderate functional impact on activities using lower limbs.

(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 impairment rating level includes a person who can:

(a)      move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

(b)      move around independently using walking aids (e.g. quad stick, crutches or walking frame).

Note:    The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

1. The Tribunal is satisfied that Mr Hermann’s lower limb condition was fully diagnosed during the assessment period and it was fully treated and stabilised.  The Secretary’s concession, referred to previously, regarding the lower limbs is correct and an impairment rating can be given for this condition relating to the knees and ankles.  Taking into account all of the medical evidence, in addition to Mr Hermann’s evidence, the Tribunal considers that he has a moderate functional impact on activities involving the lower limb.  Accordingly, the lower limbs condition attracts a rating of 10 impairment points.

   Neck condition

2. The medical evidence relating to Mr Hermann’s neck condition is contained in a report by Professor M Smith dated 15 May 2015.[9]  Professor Smith is a senior consultant rheumatologist.  He referred to injuries which Mr Hermann sustained in the motor vehicle accident in 1989 including a neck injury.  Professor Smith reported that Mr Hermann has had several whiplash injuries.  Neck pain causes him problems with sleeping.

   [9]     Exhibit 1, T32 p 358.

3. The JCA report submitted on 27 July 2015[10] referred to several whiplash injuries which Mr Hermann has sustained.  The JCA report followed a face-to-face interview with Mr Hermann.  According to the report, Mr Hermann stated that he experienced frequent neck pain and headaches, with a reasonable range of movement in the neck.  However right neck rotation movement is the more difficult.  Mr Hermann also reported that his sleep was affected by neck pain.  There had been minimal medical intervention regarding the condition.  According to the report, management of neck pain included intake of Endone when the pain is severe.

   [10]    Exhibit 1, T28.

4. The Tribunal is satisfied that Mr Hermann’s neck condition was fully diagnosed during the assessment period and that it was fully treated and stabilised.  An impairment rating can be given for this condition.  Impairment Table 4 provides the descriptors of an impairment relating to spinal function.  That is bending or turning the back trunk or neck.  For a mild functional impact, Table 4 states:

Points

Descriptors

5

There is a mild functional impact on activities involving spinal function.

(1)      The person has some difficulty in:

(a)      activities over head height (e.g. activities requiring the person to look upwards); or

(b)      bending to knee level and straightening up again without difficulty; or

(c)      turning their trunk or moving their head (e.g. to look to the sides or upwards).

1. Taking into account all of the evidence, the Tribunal considers that a mild functional impact arising out of the whiplash injuries is the appropriate finding.  The Tribunal finds that Mr Hermann’s neck condition attracts a rating of five impairment points.

   Fibromyalgia

2. In the report dated 11 June 2015,[11] the general medical practitioner, Dr H Muazam, recorded a diagnosis of joint pain, osteoarthritis and fibromyalgia.  Symptoms included body aches and pains, and joint pain.  Medication was the prescribed treatment, commencing on 15 May 2015.  The diagnosis was confirmed by Professor Smith, in his report dated 15 May 2015.[12]  Professor Smith reported that Mr Hermann has a chronic pain syndrome with features that indicate fibromyalgia.  He recommended commencing a trial of medication at night with the dosage increasing over three months to assess any improvements and any side effects.  From that point onwards, Professor Smith recommended that the medication could be cautiously introduced during the day to assist and monitor any improvements.

   [11]    Exhibit 1, T23 p 290.

   [12]    Exhibit 1, T32 p 358.

3. The JCA report[13] concluded that the fibromyalgia was permanent and fully diagnosed.  However, the report went on to conclude that the condition could not be considered fully treated or stabilised.

   [13]    Exhibit 1, T28 p 324.

4. Section 6(5) of the Rules for Applying the Impairment Tables includes a requirement that a condition is fully treated, if treatment or rehabilitation has already occurred, and, whether treatment is continuing or is planned in the next two years.

5. Under s 6(6) of the Rules for Applying the Impairment Tables, “fully stabilised” means:

   (6)For the purposes of paragraph 6(4)(c) and subsection 11(4) 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.

   Note:        For reasonable treatment see subsection 6(7).

6. Having regard to the medical evidence, the Tribunal concludes that the condition of fibromyalgia was fully diagnosed.  However, the condition was not fully treated and fully stabilised at the date of the DSP claim and during the assessment period, and it follows that no impairment points can be assigned for the fibromyalgia.

   Anxiety and post-traumatic stress disorder

7. The report from Dr Muazam dated 11 June 2015 refers to a diagnosis of generalised anxiety disorder and post-traumatic stress disorder, with the date of onset in 2007.  Treatment by administration of an anti-depressant commenced on 10 May 2015, and a referral was made to a psychologist, Dr I Butterfield.

8. Dr Butterfield wrote a report dated 10 May 2015[14] in which she concluded that it is likely that Mr Hermann suffers from a combination of generalised anxiety disorder and post-traumatic stress disorder.  The report noted that there was not a previous diagnosed psychiatric history, and that Mr Hermann had not previously required any psychiatric admissions or psychiatric treatment.  Dr Butterfield suggested commencement of medication and monitoring of dosage.

   [14]    Exhibit 1, T32 p 360.

9. In the JCA report submitted on 27 July 2015[15] it was noted that Mr Hermann had seen Dr Butterfield on six occasions, with a follow-up appointment in August 2015.  He was taking the medication recommended by Dr Butterfield and the dosage had recently been increased.  The theme from Mr Hermann’s evidence to the Tribunal, the themes in the report by Dr Butterfield and also in the JCA report, include functional impacts from anxiety and post-traumatic stress disorder.  They include flashbacks to the motor vehicle accident, panic attacks, social withdrawal, general anxiety and reduced concentration.  While the evidence is sufficient to indicate that the mental health function was fully diagnosed at the time of the DSP claim and during the assessment period, the treatment had only just commenced under the guidance of Dr Butterfield.  Accordingly, in the application of s 6(5) and s 6(6) of the Rules for Applying the Impairment Tables, it is clear that the mental health condition was not fully treated and stabilised during the assessment period.  Accordingly, no points could be assigned under the Impairment Tables for the anxiety and post-traumatic stress disorder.

   [15]    Exhibit 1, T28 p 324.

   ANALYSIS

10. Mr Hermann has a total rating of 25 points across the Impairment Tables. However, he does not have an assessment of 20 points or more under one Table and therefore does not meet the definition of having a severe impairment. Therefor he needs to have a continuing inability to work, as defined in s 94(2) of the Act. He must have actively participated in a program of support and his impairment must be sufficient from preventing him from doing any work or training activity independently of a program of support within the next two years.

1. The next step for the Tribunal is, therefore, to consider whether Mr Hermann had actively engaged in a program of support for 18 months out of a period of 36 months preceding his DSP application, as required by Part 2 of the Social Security (Active Participation for Disability Support Pension) Determination 2014[16] (the POS Determination).

   [16]    Exhibit 1, T7 p 101.

2. The Secretary contended that Mr Hermann had not participated in a program of support for at least 18 months during the three years leading up to the date of the DSP claim.  Further, the Secretary contended that ss 7(3), 7(4) and 7(5) do not apply to Mr Hermann’s circumstances.  In essence, those subsections provide an alternative pathway to compliance with the requirements of the program of support.  Under s 7(3) the requirement for period of participation in a program of support is satisfied if the duration of the program was less than 18 months and the person completed the program during the relevant period.  Under s 7(4) the requirements are met if the program of support was terminated before the end of the relevant period because the person could not improve capacity for work through continued participation in the program.  Under s 7(5) the requirements are satisfied if at the end of the relevant period the person is participating in the program and is prevented through the impairment from improving capacity to prepare for, find or maintain work through continuing participation in the program of support.

3. The relevant period for consideration is 16 June 2012 to 16 June 2015 (the date of the DSP claim).

4. Records from Centrelink were received in evidence in relation to the period in which Mr Hermann participated in a program of support.[17]  From those records the Secretary submitted that Mr Hermann commenced a program of support on 6 June 2013 with an agency in Port Pirie.  Next, the Secretary submitted that Mr Hermann had not participated in a program of support for the periods 23 July 2013 to 18 December 2013 and 5 March 2014 to 25 December 2014.  In the three years leading to the date of the DSP claim, the Secretary contended that the records showed that Mr Hermann participated in a program of support for a total of 138 days.  Given that this period is less than the required 18 months, the Secretary contended that Mr Hermann had not satisfied the requirements and that ss 7(3), 7(4) and 7(5) do not apply in this case. 

   [17]    Exhibit 1, T20 p 229 and T21 p 267.

5. In contrast, Mr Hermann suggested that he had complied with the requirements to the best of his ability and in accordance with the criteria, as he understood them.  However, his understanding was not correct and it is unfortunate that the misapprehension continued.  During the period from mid-2013 to the time of his DSP claim, Mr Hermann entered into Centrelink’s employment pathway plan with the ultimate goal of improving his capacity for work.  He attended appointments with various agencies to which he was referred for assistance with preparation, training and searching for work.

6. The POS records indicated that in the periods from 23 July 2013 to 18 December 2013 and 5 March 2014 to 25 December 2014, Mr Hermann had not participated in the program of support.  It may be that he miss-understood the criteria or the status of his participation.  Nonetheless, a JCA report submitted on 22 October 2014[18] reported at that time the active participation in a program of support criteria were not met.  In the subsequent JCA report[19](27 July 2015), the recommendations included referral to a program of support which would be facilitated best by a disability employment service, because of the long-term nature of Mr Hermann’s medical conditions.

   [18]    Exhibit 1, T27 p 317.

   [19]    Exhibit 1, T28 p 324.

7. In relation to the periods in 2013 and in 2014, previously mentioned, in which Mr Hermann did not participate in a program of support, the Tribunal notes that s 8 of the POS Determination states:

   “To avoid doubt, any period during which a person who has started a program of support does not participate in the program for any reason (including as a result of any exemption, relief or suspension from the program) is not to be counted in determining, for the purpose of section 7, the length of the period during which the person has participated in the program.”

8. In summary, a scrutiny of the Centrelink records[20] in the context of the Secretary’s explanation about their contents, leads to the conclusion that the requirement for participation in the program of support for at least 18 months was not satisfied.  Mr Hermann’s participation was for 138 days commencing on 6 June 2013, during the requisite period of three years.  The Tribunal agrees that ss 7(3), 7(4) and 7(5) of the POS Determination do not apply and the program of support requirement has not been met.

   [20]    Exhibit 1, T20 and T21.

   SUMMARY

9. The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied.

10. The Tribunal finds that s 94(1)(b) of the Act is satisfied as Mr Hermann has a cumulative rating of 25 points under the Impairment Tables.

11. Mr Hermann does not have a severe impairment within the meaning of s 94(2)(aa) of the Act as he does not have an impairment of 20 points or more under a single Impairment Table. Accordingly, there is a requirement for him to have actively participated in a program of support within the meaning of s 94(3C). However, as previously explained, Mr Hermann does not meet the requirements for participation in a program of support and does not satisfy the criteria for continuing inability to work within the meaning of s 94(1)(c) of the Act.

12. Accordingly, Mr Hermann has not qualified for DSP at the time he made his claim and during the assessment period.

    DECISION

13. For the reasons set out above the Tribunal affirms the decision under review.

I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson

......................[Sgd]..................................................

Administrative Assistant

Dated 15 August 2016

Date(s) of hearing	30 June 2016
Applicant	In person
Advocate for the Respondent	Mr A Parker
Solicitors for the Respondent	Department of Human Services