Jason Pearse and Secretary, Department of Social Services
[2013] AATA 890
[2013] AATA 890
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5267
Re
Jason Pearse
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 2 December 2013 Date of written reasons 13 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 – Number of impairment points – Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
SECONDARY MATERIALS
Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member Bernard J McCabe
13 December 2013
Mr Pearse applied for disability support pension (“DSP”) in May 2012. His application was refused. I decided to affirm the decision under review after a telephone hearing in the matter. I gave oral reasons for that decision. The written reasons which follow are distilled from the transcript for that hearing.
In order to be eligible for DSP Mr Pearse must satisfy a number of criteria.
These criteria are outlined in s 94 of the Social Security Act 1991 (Cth) (“the Act”). Given the application was made on 29 May 2012, Mr Pearse’s claim must be assessed on that day and the following 13 week period to determine his eligibility (“the assessment period”).
The first criterion is that Mr Pearse must have an impairment. The evidence suggests
Mr Pearse suffers from a number of impairments: namely, lower limb conditions of osteoarthritis in his right knee and hips, and a back condition, which has been described as lumbar intervertebral disc derangement at L4/5 and L5/S1.
The second requirement is an award of at least 20 points on the Impairment Tables.
This can only be done if a condition has been fully diagnosed, treated and stabilised. If it is not fully diagnosed, treated and stabilised, then an impairment rating cannot be assigned, even if the applicant experiences considerable difficultly as a result of the condition.
In Mr Pearse’s case, in relation to his right knee and hip osteoarthritis, there appears to be medical material supporting the acceptance of these conditions as being fully diagnosed, treated and stabilised. The respondent contends that five impairment points is the appropriate allocation under the Impairment Tables for these conditions: based on the Job Capacity Assessment completed 20 June 2012. However, Dr Doug Turner (who had examined Mr Pearse during the assessment period) suggests in his report, dated
12 September 2013, 10 points under Table 3 of the Impairment Tables is a better explanation. For the purposes of this exercise, I will accept 10 points is the appropriate rating under that table for these conditions.
Dr Turner also raises the possibility of allocating points for these conditions under a separate table and, if so, whether they should be treated cumulatively. I am satisfied, having regard to the Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension, it not appropriate to do so and only one impairment rating should be allocated for the lower limb conditions. The guidelines are clear that where it is possible to identify restrictions of physical activity due to a musculoskeletal condition – as is the case here – it is appropriate to rate that condition under the relevant table, which in this case is the table relating to lower limb function, Table 3: see p 28.
I turn now to Mr Pearse’s back condition. While the evidence suggests he has such a condition and that it has been diagnosed, it is less clear what level of functional impairment results. There are medical reports dating back to 2002 which suggest a serious lower back condition: specifically the report of Dr Michael Lowy completed in that year. Some of those reports refer to significant whole person impairment, but that is a different standard. There are Job Capacity Assessments, completed in 2008 and 2010, which suggest minimal functional impairment from the back condition. The Job Capacity Assessment completed in 2012 makes no reference to any back condition at all: see exhibit 1, p 147. More recent reports, such as that completed by Dr Wayne MacCrombie, a physiotherapist, suggest more significant impairment. I note however this report was completed on 26 October 2013 and discloses that the first time Dr MacCrombie examined Mr Pearse was in November 2012, well outside the assessment period. Unfortunately, Dr Olivier Gross, Mr Pearse’s treating doctor, and Dr Turner who completed reports in May and February 2012, respectively, make limited mention of any back condition.
There is recent evidence which suggests Mr Pearse is experiencing significant impairment as a result of his back condition. The question is whether – given the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 states that self-reporting is not enough – there is enough evidence to corroborate Mr Pearse’s claims. I do not doubt he had a back condition, or even experienced pain, but to what extent was he actually impaired from this during the assessment period? There appears to be a gap in that evidence. I have to decide whether I can infer, from the material that came before and the material that came after the assessment period, that Mr Pearse was experiencing an impairment from his back condition at a particular level as opposed to simply pain.
In the circumstances I think the gap is a problem. It may well be the case, as I have noted above, that Mr Pearse is now in a position where it is clearly documented that he is suffering from a significant impairment. But there really is not any corroborating evidence that assists me in assigning a particular impairment rating – whether it be zero points, or five points, or an impairment rating of 10 points – which would satisfy, in conjunction with the lower limb conditions, the 20 point requirement.
I must stress the real issue here is whether an impairment rating can be allocated and if so what particular rating. It is possible that an impairment rating might have been allocated during the assessment period, if someone had thought to investigate the issue. But it is simply impossible now to go back and allocate a specific rating. In particular, it is not clear that I have any evidentiary basis for nominating 10 points.
As Mr Pearse does not have 20 impairment points he does not satisfy the second criterion. For the sake of completeness, I would say I am satisfied the evidence establishes the applicant has engaged in an appropriate program of support. I would also add I am not satisfied the evidence establishes a real basis for assuming, with intervention, Mr Pearse’s lower limb conditions would actually have improved. So it may well be Mr Pearse would satisfy the third criterion under s 94 of the Act, which is that he have an ongoing inability to work.
CONCLUSION
Unfortunately for Mr Pearse I cannot award an impairment rating for his back condition. Given my other factual finding, he does not have 20 impairment points on the basis of the material that relates to the assessment period. Having said that, if he has not already done so, the material suggests Mr Pearse might well have a better chance of success if he were to make an application in the short term.
The decision under review is affirmed.
I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe ..............................[Sgd]..............................
Associate
Dated 13 December 2013
Date of hearing 2 December 2013 Applicant In person Solicitor for the Respondent Mr Christopher Bishop, Departmental Advocate
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