John McManus and Secretary, Department of Social Services

[2015] AATA 47

[2015] AATA 47  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/1452
Re	John McManus
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	30 January 2015
Place	Sydney

The decision under review is affirmed.

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Senior Member J F Toohey

CATCHWORDS – social security – disability support pension – head injury fully diagnosed treated and stabilised – 10 points – whether leg injury fully diagnosed treated and stabilised – whether mild or moderate – whether applicant had continuing inability to work – decision under review affirmed

Legislation

Social Security Act 1991 s 94

Social Security (Administration) Act 1999 s 42 and Sch 2

Secondary Materials

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

REASONS FOR DECISION

Senior Member J F Toohey

Background

1. Mr John McManus suffered a severe head injury and an injury to his left leg in a motor vehicle accident in 2000.  On 26 March 2013, he applied for disability support pension (DSP).  Centrelink rejected his claim and, on 27 February 2014, the Social Security Appeals Tribunal affirmed that decision.

2. Section 94 of the Social Security Act 1991 (the Act) provides that, in order to qualify for DSP, a person must have:

   (i)a physical, intellectual or psychiatric impairment, or impairments, which rated at 20 or more points according to the Impairment Tables in the Act; and

   (ii)a continuing inability to work as defined in the Act.

3. Mr McManus had to satisfy these criteria on the date of his application or within 13 weeks, that is by 25 June 2013: s 42 and Sch 2 of the Social Security (Administration) Act 1999.  I will call this the claim period.

4. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. They comprise 15 Tables by which the functional impact of impairment is rated as nil, mild, moderate, severe or extreme, corresponding to zero, five, ten, twenty and thirty points.  Ratings are assigned according to descriptors, some or all of which must be satisfied.

5. A rating can only be given to an impairment if the condition causing it is permanent: cl 6(3)(a).  Permanent means that a condition is fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and fully stabilised, and it is more likely than not to persist for more than two years: cl 6(4).

6. When deciding whether a condition has been fully diagnosed and fully treated, the following must be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation the person has had for the condition; and whether treatment is continuing or is planned in the next two years: cl 6(5).

7. Fully stabilised means either

   (a)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.

   Did Mr McManus’s impairments rate 20 or more points?

8. The extent of Mr McManus’s severe head injury was documented in the report of a clinical neuropsychologist in December 2002.  The resulting impairments were considered permanent by the date of the report.  They are further documented in a report of a more recent neuropsychological assessment on 24 January 2014.

9. It is agreed, and I am satisfied, that Mr McManus’s condition was fully diagnosed, treated and stabilised within the claim period.  It is further agreed, and I am satisfied, that it had a moderate functional impact and rated 10 points on Table 7 (Brain function). 

10. Mr McManus also sustained an injury to his left elbow in the accident in 2000.  He does not press any claim in relation to this condition and I have not taken it into account.

    Was Mr McManus’s lower limb condition fully diagnosed, treated and stabilised?

11. Mr McManus sustained an injury to his right ankle in an accident in 1989.  He underwent surgery from which he recovered well but his ankle has deteriorated over time and causes him pain.  He sustained serious injuries to his left leg in the accident in 2000 and has walked with the aid of a stick since.  He has also relied on painkillers since the accident.

12. In support of his claim for DSP, Mr McManus provided a medical report signed by his general practitioner, Dr Sam Chen, on 30 August 2013.  Dr Chen referred to his head injury and to his “walking difficulty”.  He stated that Mr McManus could not walk more than 400 metres.  He did not provide any further information.

13. Mr McManus also provided a report dated 25 September 2002 from Glynis Flanagan, an occupational therapist.  Ms Flanagan referred to the fracture in his right ankle sustained in 1989 from which he had “recovered well”.  She noted that his “left and right hip, knee and ankle movements were within normal range” and his “gait was unremarkable” but she noted a number of problems with his left leg.  In particular, she noted that Mr McManus could maintain a standing position but tended to favour his right knee and to shift his left leg when standing; he could negotiate the stairs at his home but needed to support himself on a handrail if he needed to negotiate a flight of stairs; he could walk up and down hills but it caused some discomfort in his left knee and his left leg could become sore; he had walked from the train station to the hospital but it took him three or four days for his leg to recover.

14. Mr McManus also provided a report dated 24 February 2004 from Dr Stephen Buckley, consultant physician in rehabilitation medicine, which appears to have been prepared for the purposes of a compensation claim.  Although he focused on Mr McManus’s head injury, which he assessed as resulting in “14% impairment of the whole person”, Dr Buckley also referred to “mild left [and right] cruciate and collateral ligamentous laxity” each of which he assessed as resulting in “10% whole person impairment”.

15. On 14 August 2014, some 14 months after the claim period had elapsed, Mr Darren Stuchbery, a physiotherapist and exercise physiologist, assessed Mr McManus and prepared a report for the purposes of these proceedings.  He made a number of observations about Mr McManus’s left leg in particular, and noted limitations on his ability to perform functions including walking, standing unaided, squatting and kneeling.

16. Other than the reference in Dr Chen’s report, no more recent information about Mr McManus’s leg conditions was available during the claim period.  The Secretary contends there is insufficient evidence from which to conclude that his condition was fully diagnosed, treated and stabilised during the claim period.  

17. I accept, as the Secretary contends, that the diagnosis of Mr McManus’s left leg condition was not entirely clear during the claim period from the information available at that time.  However, it is clear from Ms Flanagan’s and Dr Buckley’s reports that, by February 2004 his condition was permanent.  I note that Dr Buckley refers in his report to “Previous findings” which indicates he had seen Mr McManus previously.  It is reasonable to conclude that he had previously fully diagnosed the condition which he assessed in February 2004. 

18. There has been no suggestion that Mr McManus requires further investigation, or surgery or any other form of treatment for his leg; he manages his pain by taking Panadol.  I am satisfied that his condition should be considered fully diagnosed, treated and stabilised during the claim period.

    What impairment rating did Mr McManus’s lower limb condition attract?

19. The Secretary contends that, even if Mr McManus’s lower limb condition is considered fully diagnosed, treated and stabilised, it had no more than a mild functional impact during the claim period and should be rated five points on Table 3 (Lower limb function).  For Mr McManus it is contended that his injury has resulted in moderate functional impairment and should be rated 10 points.

20. Table 3 provides that there is mild functional impact (rating five points) on activities using lower limbs if at least one of the following applies:

    (a)the person has some difficulty walking to local facilities (e.g. shops or bus stop); or

    (b)the person has some difficulty walking around a shopping mall or supermarket without a rest; or

    (c)the person has some difficulty climbing stairs;

    and

    (a)the person is unable to stand for more than 10 minutes; or

    (b)the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

21. Table 3 provides that there is moderate functional impact (rating ten points) on activities using lower limbs where 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 five minutes; and

    the person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket. 

    The rating is stated to include 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).

22. Mr McManus gave evidence that he cannot stand for more than about three minutes because of the pain in his leg.  He disputed the statement in a report of a Job Capacity Assessor dated 22 May 2013 which indicated that he could stand for up to 20 minutes.  He says he did not tell the Assessor he could stand for that long.  He gave evidence that he has pain when climbing stairs; he needs to hold onto a handrail and avoids climbing stairs when he can.  He can walk to his car but cannot walk far.  He has used a stick since the time of his accident.  He said his condition has gradually worsened over the years and he thought it might have worsened since the claim period.

23. Mr Stuchbery reported that, when he saw him in August 2014, Mr McManus had a reduced range of movement in his left hip, knee and ankle.  He could stand with his left leg “unloaded” and with support of a walking stick.  He was unable to stand on his left leg and unable to “toe walk or heel walk”.  He was unable to squat beyond 30 degrees on left knee flexion and was unable to kneel or crawl.  Mr Stuchbery said he observed Mr McManus to stand for up to 10 minutes “dynamically” that is, moving about a few steps during the course of assessment, but he needed the support of the wall for approximately a minute at a time on three occasions.  Mr McManus told Mr Stuchbery that walking approximately 40 metres from the car park had caused an increase in his pain. 

24. Asked whether he thought he would have found similar limitations had he examined Mr McManus during the claim period, Mr Stuchbery said he imagined he would have been more or less the same but he could not say although his impression was that Mr McManus’s condition had worsened in that time.

25. I am satisfied that Mr McManus’s lower limb condition rated at least five points during the claim period.  I am satisfied that he had some difficulty with each of the first three activities described for that rating, and he required a walking stick except for short distances within his home.   It is not necessary to decide whether he was able to stand for more than 10 minutes or not, although Mr Stuchbery’s evidence suggests he would have met that criterion as well.

26. As to whether Mr McManus’s lower limb condition rated ten points during the claim period, I accept that he was unable to walk far outside his home and needed to drive to local shops or community facilities.  However, I accept the Secretary’s contention that he did not require the use of a quad stick, crutches or walking frame in order to move around independently.  The language and structure of Table 3 suggests that dependence on a walking stick, as opposed to a quad stick, crutches or walking frame, may be insufficient to meet this criterion.  It is not necessary finally to decide this question because, for the reasons set out below, I am not satisfied that Mr McManus had a continuing inability to work during the claim period.

    Did Mr McManus have a continuing inability to work?

27. Mr McManus gave evidence that he originally served an apprenticeship as a motor mechanic and then joined the railways and worked as a train driver.  He later worked as a storeman and then as a truck driver.  He was not working at the time of the accident in 2000.

28. After the accident, Mr McManus did not work for some years while he recovered from his injuries and because employers were reluctant to take him on when they learned of his brain injury.  Around 2005 or 2006, he found full-time employment as a storeman.  He held that position for approximately a year before he was made redundant.

29. Mr McManus next worked in about 2009.  He was employed as a truck driver for approximately 11 months from about November 2010.  He described his position as a “permanent casual” by which I understand him to mean he had no permanent security of employment.  He worked approximately 40 hours a week most weeks.  He left that position when there was a downturn in work; because he was the last one taken on, he was the first to go.

30. After a break of approximately two weeks, Mr McManus found full-time employment as a truck driver with another company.  He worked on average 40 hours a week, and sometimes longer, until March 2013 when he lost his driver’s licence.

31. Mr McManus gave evidence that, had he not lost his driver’s licence, he possibly would still be working for his last employer; at the time, he was trying to negotiate permanent employment but his boss did not want to discuss the matter with him and said the company was not big enough to take on permanent staff.

32. From early July 2014 to early September 2014, Mr McManus was employed for several hours each week as a cleaner at a motel.  The employment was organised through Job Centre Australia through which Mr McManus was undertaking a program of support.  He gave evidence, which I accept, that he was unable to continue that work because of the pain in his leg and the time it took him to do the work. 

33. Mr Stuchbery reported in August 2014 that Mr McManus’s injuries affected his ability to work.  In particular, he would be “very limited in his ability to perform work of a physical nature due to his grossly reduced tolerances of standing and walking and virtual inability to squat, kneel or crawl”.  Mr Stuchbery noted that Mr McManus’s apparent reliance on a walking stick would “limit his ability to perform manual handling in standing or walking beyond very small and relatively light items, or light actions, that could be handled in or managed by his right hand only”.  He thought Mr McManus would be capable of sedentary work only but, given his limited academic background and that he was trained in mechanical work, he would need educational or vocational training.  He thought Mr McManus would “barely have” the physical capacity to work 15 hours per week and “only under [these] potentially unfeasible conditions”.

34. Giving evidence, Mr Stuchbery confirmed this opinion.  He thought Mr McManus could be capable of sedentary work but not if he was required to walk around, and he was essentially limited to an office job, although he could not say how long he would be able to perform that sort of work.  Mr Stuchbery said an assessment of that sort would need to be undertaken by some other person.

35. It is relevant that Mr Stuchbery’s assessment was undertaken more than 12 months after the claim period during which time, by Mr McManus’s evidence, his condition had possibly worsened.

36. Mr McManus’s former employer, Mr Stephen Stack, gave evidence that he was employed on average 40 hours each week from November 2010 until he lost his licence around March 2013.  Mr Stack said that his position involved no heavy lifting and there was “nothing especially physically” required of the position.

37. A continuing inability to work for the purposes of s 94 of the Act relevantly means that an impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next two years and either the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next two years or, if a person is able to undertake a training activity, such activity is unlikely, because of the impairment, to enable the person to do any work independently of a program of support within the next two years.

38. On the information before me, I am not satisfied that Mr McManus had a continuing inability to work during the claim period.  The evidence is that, apart from the break of two weeks between jobs, he had been working an average of 40 hours each week since around November 2010.  I accept his evidence that he relied on painkillers in order to function. 

39. For Mr McManus it was submitted that he only maintained his employment with the assistance of painkillers and because he needed to pay his mortgage. However, neither takes away from his evidence that he expected, and wanted, to continue in employment, and he was in fact trying to negotiate secure permanent employment. Had he not lost his licence, there is no reason to think that he would not have continued in full-time employment. In these circumstances, I can see no basis for finding that Mr McManus had a continuing inability to work within the meaning of s 94 during the claim period.

    Conclusion

40. I am satisfied that Mr McManus’s conditions rated 15 points on the impairment tables during the claim period.  Even if I was satisfied that his conditions rated 20 points, his claim would fail because I am not satisfied that he had a continuing inability to work.

41. I accept that Mr McManus lower limb condition has deteriorated in time.  It is open to him to make a further claim for DSP at any time and to have his entitlement tested according to his condition now.

42.       I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. 

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Associate

Dated 30 January 2015

Date(s) of hearing		27 January 2015
Representatives for the Applicant		Mr Kai Wu, Solicitor, Legal Aid
Representatives for the Respondent	Ms Rebecca Kougellis, Solicitor