Ireland and Secretary, Department of Social Services (Social services second review)
[2016] AATA 281
•3 May 2016
Ireland and Secretary, Department of Social Services (Social services second review) [2016] AATA 281 (3 May 2016)
Division
GENERAL DIVISION
File Number(s)
2015/5138
Re
Wayne Ireland
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Brigadier AG Warner, Member
Date 3 May 2016 Place Perth The Tribunal affirms the decision under review.
.........[Sgd]...............................................................
Brigadier AG Warner, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant’s impairments were fully diagnosed, fully treated and fully stabilised – whether applicant’s impairments attract 20 points under the Impairment Tables – continuing inability to work
LEGISLATION
Social Security Act 1991 – ss 94(1)(a) – 94(1)(b) – 94(1)(c)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – Table 2 – Table 3
CASES
Anthony Summers and Secretary, Department of Social Security [2014] AATA 165
REASONS FOR DECISION
Brigadier AG Warner Member
3 May 2016
INTRODUCTION
On 23 September 2014, Mr Ireland submitted a claim for Disability Support Pension (“DSP”) (T35/141). Centrelink rejected the claim that same day because he did not have the requisite 20 points under the Impairment Tables (T2/4).
An Authorised Review Officer (“ARO”) affirmed the decision on 28 May 2015 (T55/253). The ARO found that Mr Ireland suffered from permanent injuries to his right leg, right ankle and left knee, and assigned 10 impairment points under Table 3 for these conditions. The ARO also found that Mr Ireland’s chronic neck and back pain, right rotator cuff tear and tendonitis, and right wrist osteoarthritis had not been fully treated and stabilised and therefore could not be assigned impairment ratings. Additionally, the ARO was not satisfied that Mr Ireland had a continuing inability to work.
On 5 June 2015 Mr Ireland applied to the Social Security Appeals Tribunal (“SSAT”) for a review of the decision to reject his DSP claim. From 1 July 2015 the SSAT became the Social Services and Child Support Division of the AAT. Under the transitional provisions of the Tribunals Amalgamation Act 2015, Mr Ireland’s application for review was taken to be an application for AAT first review (“AAT1”).
AAT1 affirmed the Centrelink decision to reject Mr Ireland’s DSP claim (T2/3-14). AAT1 assigned his lower limb impairment 10 points under Table 3, and his upper limb impairment 5 points under Table 2. AAT1 also found that Mr Ireland’s claimed spinal condition had not been fully treated and stabilised and could not therefore attract an impairment rating under the Impairment Tables.
Mr Ireland lodged an Application for Review of Decision (Individual) with this Tribunal on 29 September 2015 (T1/1-2).
Mr Ireland has provided to the Tribunal a medical report by Dr JA Rodrigues dated 25 September 2015 and a medical report by Dr Sean Lim dated 26 October 2015.
This hearing was held on 12 April 2016. At that time Mr Ireland was a patient in Fiona Stanley Hospital. He requested that the hearing proceed and he participated by telephone conference.
BACKGROUND
Mr Ireland was born in October 1959.
In 1978 Mr Ireland sustained a compound fracture of the right tibia/fibula and an associated right ankle injury in a motorbike accident.
Mr Ireland was granted DSP on 30 June 2008.
The DSP was reviewed in 2013. Mr Ireland was found to have an impairment rating of 10 points under Table 3 for lower limb functional impairment, and his DSP was cancelled on 19 November 2013 (T17/97).
The decision to cancel Mr Ireland’s DSP was affirmed by an ARO in December 2013 (T20/101) and by the SSAT in January 2014 (T26/114). This Tribunal affirmed the SSAT decision on 5 June 2014.
Mr Ireland had travelled to Cambodia in September 2013, and on 14 October 2013 sustained a fracture of the upper right tibia in a motorbike accident (T37/198). He returned to Australia on 19 September 2014.
On 23 September 2014, Mr Ireland lodged a new claim for DSP (T35/141) which was rejected by Centrelink. That decision was affirmed by an ARO on 28 May 2015 (T55/253).
On 5 June 2015 Mr Ireland requested review of the Centrelink decision by the Social Security Appeals Tribunal (“SSAT”).
On 18 August 2015 AAT1 conducted a hearing which Mr Ireland attended, and affirmed the Centrelink decision (T2/3-14).
ISSUE
The Tribunal must determine whether Mr Ireland was qualified to receive DSP within the period 23 September 2014 (“the date of claim”) to 23 December 2014. This depends on:
a.Whether Mr Ireland had any physical, intellectual, or psychiatric impairments pursuant to section 94(1)(a) of the Social Security Act 1991 (“the Act”); and
b.If so, whether any such impairments had a combined rating of at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Impairment Tables”) pursuant to section 94(1)(b) of the act; and
c.If so, whether Mr Ireland had a continuing inability to work pursuant to section 94(1)(c)(i) of the Act because of any such impairment.
LEGISLATION
Section 94 of the Act sets out the qualification criteria for the DSP. It provides that a person is qualified for the DSP if:
a.They have a physical, intellectual or psychiatric impairment (s 94(1)(a)), and
b.That impairment (or impairments in combination) attract an impairment rating of 20 points or more under the Impairment Tables (s 94(1)(b)), and
c.The person has a continuing inability to work (s 94(1)(c)).
The Impairment Tables contain rules (“the Rules”) for their use when deciding if a person is qualified for DSP. The Impairment Tables are function-based rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations and are designed to determine the level of functional impact of impairments.
An impairment rating can only be assigned if the condition causing that impairment is permanent (that is, fully diagnosed, treated and stabilised and likely to persist for more than two years), and the impairment rating resulting from that condition is also more likely than not to persist for more than two years (ss 6(3) – 6(4) of the Rules).
The following must be considered in determining whether a condition has been fully diagnosed and fully treated:
(a)whether there is corroborating evidence of the condition; and
(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 (s 6(5) of the Rules).
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 two years, or
(b)the person has not undertaken reasonable treatment for the condition and either:
(a)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or
(b)there is a medical or other compelling reason for the person not to undertake reasonable treatment (ss 6(6) and 6(7) of the Rules).
The existence of a diagnosed condition will not necessarily result in a rating under the Impairment Tables. If an impairment has no functional impact, then no rating can be applied (s 6(8) of the Rules).
EVIDENCE
The evidence before the Tribunal comprised:
·The “T Documents” (T1-T65, pp1-296, Exhibit R1)
·Secretary’s Statement of Facts, Issues & Contentions dated 21 December 2015, including attached medical reports by Dr JA Rodrigues dated 25 September 2015 and Dr Sean Lim dated 26 October 2015 (Exhibit R2)
·Applicant’s Facts, Issues and Contentions dated 8 March 2016 (Exhibit A1)
·The oral evidence of the applicant
CONSIDERATION
A person’s qualification for DSP is to be considered during the ensuing 13 weeks from the date on which the claim was made. It is not in dispute that Mr Ireland’s qualification for DSP is to be determined during the period 23 September 2014 to 23 December 2014 (“the relevant period”).
Upper limb conditions
AAT1 found that within the relevant period Mr Ireland suffered from the upper limb conditions of right rotator cuff tear and tendonitis, and arthritis of the right wrist, and that these conditions were fully diagnosed, treated and stabilised (T2/12). The respondent also accepts that the upper limb conditions were fully treated, stabilised and treated. The Tribunal agrees.
In his report dated 4 November 2014, Dr Rodrigues wrote that Mr Ireland had reduced mobility above shoulder level, had difficulty in performing tasks like hanging out washing, and that his wrist condition caused difficulty using aids (T45/216, 220).
AAT1 accepted Mr Ireland’s evidence related to his upper limb conditions and found that these conditions would cause difficulty reaching out for objects, difficulty carrying heavier objects, and difficulty with overhead activities and opening jars. AAT1 observed that Mr Ireland carried his backpack at the hearing (T2/13).
AAT1 found, and the respondent accepts, that Mr Ireland satisfies the descriptors for a mild functional impact on activities using hands or arms, and thus attracts 5 impairment points under Table 2 – Upper Limb Function. This is because Mr Ireland has some difficulty with most of the following:
(a)picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b)handling very small objects (e.g. coins);
(c)doing up buttons;
(d)reaching up or out to pick up objects.
For Mr Ireland’s upper limb conditions to have a moderate functional impact as required by Table 2, he would need to show that he had 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; and
(f)unscrewing a lid on a soft-drink bottle.
In the absence of evidence to satisfy these descriptors for moderate impairment, the Tribunal finds that Mr Ireland’s upper limb conditions warrant 5 impairment points under Table 2.
Spinal condition
AAT1 found, and the respondent accepts, that Mr Ireland has been diagnosed with a spinal condition (chronic back and neck pain), but that this condition was not fully treated and stabilised.
Dr M Dill-Macky’s xray report dated 21 October 2014 (T42/204) and Dr Amarash Dayanandan’s report dated 3 February 2015 T49/236) provide medical evidence of Mr Ireland’s spinal condition.
AAT1 records that Mr Ireland advised that he had no treatment for his spine condition (T2 paragraph 63), and the JCA report dated 25 November 2014 states:
Condition is assessed as not fully treated: no medical information has been provided indicating engagement in any past or current treatment, with Mr Ireland confirming that treatment has consisted of mainly massage from a friend. As such, it is assessed that not all reasonable treatment has been attempted for this condition. Treatments may include physical therapy, structured strengthening exercise programme determined by a physical therapist, pain management specialist input, possible specialist opinion to determine other treatment options. As this condition is not fully treated, it cannot therefore be considered to be fully stabilised (T47/225).
Having regard to all the evidence relevant to Mr Ireland’s spinal condition, the Tribunal is not satisfied that the condition was, at the relevant time, fully treated and stabilised. Therefore, the Tribunal finds that the spinal condition cannot be assigned impairment points under the Impairment Tables.
Lower limb conditions
The Tribunal noted from the medical evidence that Mr Ireland had long standing lower limb injuries dating from 1978 and complicated by a fracture on 14 October 2013. The respondent accepts that during the relevant period the lower limb conditions were fully diagnosed, treated and stabilised. Having reviewed the medical evidence, the Tribunal agrees.
The medical report by Dr Rodrigues dated 4 November 2014 details that Mr Ireland suffered pain when walking and standing, needed the assistance of a walking aid, had a reduced walking distance of 50 metres, and had difficulty with footwear (T45/212).
In the supporting reasons for its recommendation of 10 impairment points, the JCA report dated 25 November 2014 states:
An impairment rating of 10 continues to reflect the functional impacts experienced, with the client has (sic) reduced ability to walk and stand and relying on mobility aids, but remains independent with transfers, and is able to walk in and out of the office without assistance (T47/231).
The AAT1 Decision and Reasons for Decision records that Mr Ireland told that tribunal that it was painful to stand and walk, he used a walking stick, he used a motorised bicycle, and he had to stop and rest when walking distances (T2 paragraph 28 (c)).
The Health Professional Advisory Unit opinion dated 7 August 2013 (T12/80-84) and the Physical Specialist Assessment Report by exercise physiologist Damian Torrisi dated 5 August 2013 (T11/73-79), both reported that Mr Ireland was unable to walk far outside his home, would have difficulty navigating stairs, had a reduced standing tolerance, was able to mobilise independently using a walking stick and could use public transport.
The most recent radiology report, that by Dr Sean Lim dated 26 October 2015, provides no evidence that Mr Ireland’s hip pain contributed to his functional impairment (R2 Attachment A).
In his medical certificate dated 25 November 2015, Dr Rohr contemplated the possible amputation of Mr Ireland’s lower right leg (R2 Attachment B). Mr Ireland told the Tribunal that this surgery occurred on 3 December 2015. The Tribunal records its sympathy for Mr Ireland and his circumstances, but this development cannot be taken into account in the current consideration because it occurred outside the relevant period.
The Tribunal considers that the evidence is consistent with the descriptors for a moderate functional impact on activities using lower limbs under Table 3 – Lower Limb Function. Those descriptors are as follows:
(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.
In relation to the question of Mr Ireland meeting the requirements for a severe functional impact on activities, the respondent submitted:
As the applicant is able to stand up from a sitting position, use public transport and/or walk around supermarket without assistance, his lower limb condition does not have a “severe” functional impact on activities using lower limbs as provided for by Table 3. Although the term “assistance” is not defined in the Tables or in the Act, the “assistance” referred to is assistance from another person, and not from an object or physical aid, such as a shopping trolley, a walking stick or a hand rail: Anthony Summers and Secretary, Department of Social Services [2014] AATA 165 at (16)-(17) (R2 paragraph 45).
There was no evidence before the Tribunal that would satisfy the Table 3 descriptors for a severe functional impact on activities.
Having considered all the evidence relevant to Mr Ireland’s lower limb conditions, the Tribunal finds that those conditions attract an impairment rating of 10 points under Table 3 – Lower Limb Function.
Continuing inability to work
As the Tribunal has found that Mr Ireland’s impairments do not attract an impairment rating of 20 points or more, he does not satisfy s 94(1)(b) of the Act, and is therefore not qualified for the DSP. There is then no requirement to consider whether or not Mr Ireland has a continuing inability to work.
For the sake of completeness, the Tribunal notes that the respondent provided a detailed consideration of the continuing inability to work requirement. The respondent contends that Mr Ireland did not have a continuing inability to work (R2 paragraphs 53-67).
FINDINGS
The Tribunal finds that:
·Mr Ireland’s impairment from his lower limb conditions attracts a rating of 10 points under Table 3.
·Mr Ireland’s impairment from his upper limb conditions attracts a rating of 5 points under Table 2.
·At the relevant time Mr Ireland’s spinal condition was not fully treated and stabilised and attracts 0 impairment points.
It follows from the above that, in the period 23 September 2014 to 23 December 2014, Mr Ireland did not satisfy section 94(1)(b) of the Act which requires that a person’s impairments be assigned an impairment rating of 20 points or more. Consequently, the DSP claim must fail.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner Member ......[Sgd]..................................................................
Administrative Assistant
Dated 3 May 2016
Date of hearing 12 April 2016 Applicant Self-represented (By telephone) Representative for the
RespondentMs S Sangha Solicitors for the Respondent
Mills Oakley Lawyers
Key Legal Topics
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Administrative Law
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Statutory Interpretation
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Appeal
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Judicial Review
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