Hubbuck and Secretary, Department of Social Services

[2013] AATA 883

[2013] AATA 883  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/2653
Re	John Hubbuck
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	12 December 2013
Place	Brisbane

The decision under review is affirmed.

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Senior Member Bernard J McCabe

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Closed period for assessment – Various impairments – Impairment Tables – Conditions not fully treated, stabilised and permanent in the relevant period – Unable to obtain necessary points for impairment under Impairment Tables – Decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member Bernard J McCabe

12 December 2013

1. Mr John Hubbuck applied for the disability support pension (DSP) on 24 September 2013. The respondent, the Secretary of the Department of Social Services, says Mr Hubbuck did not satisfy the eligibility criteria in s 94(1) of the Social Security Act 1991 during the period under review, which is 24 September 2012 – 24 December 2012. The respondent subsequently accepted Mr Hubbuck qualified for the DSP from March 2013. It follows these proceedings focus on whether Mr Hubbuck was qualified for DSP during a closed period.

2. Relevantly, the criteria in s 94(1) require that I be satisfied:

   ·The applicant has a physical, intellectual or psychiatric impairment. I note the applicant in this case appears to suffer from a heart condition, a spinal disorder, a shoulder and upper limb disorder and a hip or lower limb disorder. These conditions satisfy the requirements of s 94(1)(a);

   ·The person’s impairments attract 20 points or more under the impairment tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. I note a rating can only be given under the impairment tables if the decision-maker is satisfied the condition is permanent and likely to persist for at least two years: s 6(3). Section 6(4) of the determination goes on to explain a condition cannot be regarded as permanent – and therefore cannot attract any points – unless it is fully diagnosed by an appropriately qualified medical practitioner, and fully treated and stabilised and likely to persist for at least two years; and

   ·The applicant has a continuing inability to work.

3. The third criterion also refers to the applicant participating in an approved program of support. The respondent accepts that, to the extent the applicant was required to participate in a program of support, he has done so.

4. I turn firstly to the heart condition. The condition is fully diagnosed, treated and stabilised. The applicant agrees the condition does not have any significant impact on his functioning (although it does prevent him from engaging in high intensity exercise, which has implications for his weight). The condition does not attract any points on any of the impairment tables.

5. The spinal condition is more complicated. The respondent accepts the condition has been fully diagnosed, but doubts it has been fully treated and stabilised given the absence of specialist review during the period in question. Mr Hubbuck says his general practitioner is treating him with pain relief. He says it is a long-standing condition that is the product of overuse and genetics. He says there is nothing to be done for his back. That seems fair enough: Mr Hubbuck’s general practitioner is treating the applicant’s long-standing condition conservatively. If there was reason to believe a specialist referral was required, the general practitioner would presumably have attended to that. (I note the general practitioner has referred Mr Hubbuck to an orthopaedic surgeon in respect of his shoulder, so it is unlikely the general practitioner failed to consider whether a review of the applicant’s spine would also assist.)

6. The applicant’s spinal condition is fully diagnosed, treated and stabilised. But what impairment rating should it attract under table 4, the relevant table in the impairment tables? The respondent says Mr Hubbuck attracted a rating of five points in the period under review, although it was conceded he was eligible for ten points following a job capacity assessment completed in June. I accept the later report is not directly relevant since it assesses Mr Hubbuck at a point after the period that is the focus of these proceedings.

7. Mr Hubbuck talked about the impact of his condition on his functioning during the course of the hearing. He agreed he could not lift heavy weights but could lift lighter loads, and he could walk some distance. He was also able to bend and get out of a chair unaided – a fact he demonstrated during the hearing. He said his spinal condition was not an obstacle to working above head height, although his shoulder condition precluded that. Importantly, Mr Hubbuck pointed out he was able to do virtually all of the things referred to in the impairment tables when called upon to do so, but that did not take into account what happened to him the following day. He said if he exerted himself in many of the ways referred to in the tables, he would be completely incapacitated the following day.

8. I have no reason for doubting Mr Hubbuck’s evidence on this last point. He struck me as an honest witness who gave his evidence candidly. But the impairment tables expressly provide that self-reporting of symptoms is not enough. I must be able to point to corroborating evidence. That is not available in relation to the period under review. Unfortunately, I must confine myself to an analysis of what he could do when called upon. On that analysis, he was entitled at the time to five impairment points under table 4.

9. I turn to the shoulder condition. Mr Hubbuck said it was the product of an old football injury that he has lived with for many years. In March 2013, he was referred to an orthopaedic surgeon for review. I am told the applicant may get to see a specialist sometime within two years of that date – which rather suggests the applicant was unlikely to get meaningful treatment (if any is available) within two years of the date of his application. The applicant’s general practitioner has been unable to precisely diagnose the condition. That prevents the condition from being assessed under table 2. If I were to accept the applicant’s shoulder condition were fully diagnosed, treated and stabilised, the information he provided about his level of impairment at the hearing suggested he would be entitled, at most, to five points. He agreed he was able to pick up light loads and do other tasks requiring manual dexterity, which means he did not at the time attract ten points.

10. That leaves the hip/lower limb condition. There are gaps in the medical evidence. The applicant says the hip is affected by degenerative osteo-arthritic change but there is no clear diagnosis to that effect in the material relating to the period under review. There is also no evidence of treatment options being explored. But even if I were to accept the condition were fully diagnosed, treated and stabilised, it is difficult to see how the applicant attracts any points under table 3. To attract five points, an applicant must be unable to stand for more than 10 minutes (the applicant agreed he can stand for longer) or require a lower limb prosthesis or walking stick (the applicant has used crutches in the past but he did not appear to use them regularly during the period under review). On the most generous view, the applicant would be entitled to 5 points at the time.

    CONCLUSION

11. Mr Hubbuck is in significant pain as a result of his conditions. He has now qualified for the DSP from March 2013 following a fresh application. His earlier application, which must be assessed in the period September – December 2012, cannot succeed because the available evidence suggests he did not obtain 20 points under the impairment tables. It follows the decision under review must be affirmed.

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated 12 December 2013

Date of hearing	7 November 2013
Applicant	In person
Advocate for the Respondent	Mr A Burgess, Departmental Advocate