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

[2015] AATA 523

Keir and Secretary, Department of Social Services (Social services second review) [2015] AATA 523 (17 July 2015)

Division	GENERAL DIVISION
File Number(s)	2014/5819
Re	Robert Keir
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President Gary Humphries
Date	17 July 2015
Place	Canberra

The decision under review is affirmed.

...........................[sgd].............................................

Deputy President Gary Humphries

Catchwords

SOCIAL SECURITY – disability support pension – weather conditions fully diagnosed, treated and stabilised – whether impairments attract a rating of 20 points or more under the Impairment Tables – decision affirmed.

Legislation

Social Security Act 1991 (Cth) s 94(1)

Cases

Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252

Secondary Materials

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

REASONS FOR DECISION

Deputy President Gary Humphries

17 July 2015

Summary

1. I affirm the decisions of the Social Security Appeals Tribunal (the SSAT) and Centrelink to reject Mr Keir’s claim for the disability support pension (the DSP). Mr Keir had a physical impairment during the relevant period, but that impairment was not of 20 points or more under the Impairment Tables. For that and other reasons he does not qualify for the DSP under s 94(1) of the Social Security Act 1991 (the SS Act).

   Background

2. Mr Robert Keir is a 61-year-old man who has lived with various forms of disability for most of his life.  He lost his right leg in a mining accident at the age of 21 but, remarkably, continued to work in the mining industry for another 17 years.  He subsequently worked running a franchise courier business, driving a truck and undertaking general maintenance tasks in a country hotel.  He is currently a part-time caretaker of a rural property where he lives with his partner of 22 years, Ms Glynis Jones.  His health has deteriorated in recent years.

3. On 12 February 2014 he lodged a claim for the DSP, which was refused by Centrelink. An authorised review officer affirmed the agency’s decision, and the SSAT in turn affirmed that decision on 23 October 2014. Mr Keir now applies to the Tribunal for reconsideration under s 149 of the Social Security (Administration) Act 1999 and s 29(1) of the Administrative Appeals Tribunal Act 1975 for review of that decision. 

   Legislative framework

4. Eligibility for the DSP is set out in s 94(1) of the SS Act:

   94 Qualification for disability support pension

   (1)  A person is qualified for disability support pension 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 Impairment Tables; and

   (c)    one of the following applies:

   (i)the person has a continuing inability to work;

   …

5. Section 23(1) of the SS Act provides that “Impairment Tables” means the tables determined by an instrument under s 26(1). That instrument is the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

   The relevant period

6. A claim for the DSP must be assessed as at the date of the claim or within 13 weeks of the date of claim.[1]  The relevant period for Mr Keir’s claim is 12 February to 14 May 2014.

   [1] Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at [1] per Gyles J. See Social Security (Administration) Act 1999, s 42 and clause 4(1) of Schedule 2.

   Did Mr Keir qualify for the DSP under s 94(1) of the SS Act?

7. The first requirement to qualify for the DSP is that the person has a physical, intellectual or psychiatric impairment (s 94(1)(a)).  The Impairment Tables define “impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.[2]  An impairment rating can only be assigned to an impairment if the condition causing the impairment is “permanent” and the impairment is likely to persist for more than two years.[3]  A condition is permanent if it has been fully diagnosed, fully treated and fully stabilised, and is likely to persist for more than two years.[4]

   [2] Impairment Tables, s 3.

   [3] Impairment Tables, s 6(3).

   [4] Impairment Tables, s 6(4).

8. The second requirement to qualify for the DSP is that the person’s impairment is of 20 points or more under the Impairment Tables (s 94(1)(b)).  Section 10 of the Impairment Tables relevantly provides:

   10 Selecting the applicable Table and assessing impairments

   Selection steps

   (1)  Table selection is to be made by applying the following steps:

   (a)  identify the loss of function; then

   (b)  refer to the Table related to the function affected; then

   (c)  identify the correct impairment rating.

   (2)  The Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise.

   …

   Multiple conditions causing a common impairment

   (5)  Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.

   (6)  Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.

9. In the application form, Mr Keir claimed to have the following disabilities, illnesses or injuries:

   ‘Amputee below right knew. Osteo arthritus [sic] in left knee and left foot. Arthritus in right hand’.

10. This and the following nine paragraphs document Mr Keir’s medical history in relation to his DSP claim as recorded by the respondent. In a medical report dated 6 March 2014 which was provided to Centrelink, Dr S Hussaini (a General Practitioner) listed ‘below knee amputation and phantom pain’ as the condition which had the most impact on Mr Keir. The report further noted:

    ·Mr Keir was receiving treatment in the form of ‘analgesics, physiotherapy, counselling’ and ‘patient review, injections and analgesics’;

    ·‘tennis elbow R’ was recorded as a condition;

    ·past treatment included cortisone injections;

    ·future treatment would include corticosteroid injections and specialist referral;

    ·‘Pain L shoulder’ was listed as a medical condition that is generally well managed and causes minimal or limited impact on Mr Keir’s ability to function.

11. On 20 March 2014, Mr Keir participated in a face to face Job Capacity Assessment (JCA) conducted by a social worker. The assessor commented in a report that:

    ·his below knee amputation condition was not fully diagnosed, treated and stabilised;

    ·his shoulder and upper arm condition was not fully diagnosed, treated and stabilised; and

    ·his baseline work capacity was 15-22 hours per week, and his capacity for work within 2 years with intervention was 23-29 hours per week.

12. On 26 March 2014, the Department rejected Mr Keir’s application for DSP. Mr Keir requested review of the primary decision. The following additional medical evidence was provided to the Department in support of the claim for DSP:

    ·a medical certificate from Dr Hussaini dated 31 March 2014, which diagnosed ‘severe arthritis’ and ‘amputation of right leg (below knee)’;

    ·a letter by Mr M Hayman (Physiotherapist) dated 13 April 2014, which noted that he had ‘right-sided below knee amputation which causes chronic stump pain’, ‘right sided lateral epicondylitis’, ‘left sided sub acromial bursitis’, and ‘left upper limb and osteoarthritis of his left knee’;

    ·a further medical certificate from Dr Hussaini, dated 28 May 2014, which diagnosed ‘severe arthritis’ and ‘amputation of right leg (below knee)’.

13. On 18 June 2014, a further face to face JCA was performed by a registered psychologist. The assessor found that:

    ·Mr Keir’s below knee amputation condition was not fully diagnosed, treated and stabilised;

    ·his shoulder and upper arm disorder was not fully diagnosed, treated and stabilised;

    ·an osteoarthritis condition was considered to be verified by medical evidence but not fully diagnosed, treated and stabilised, and the JCA noted that there was limited medical information regarding associated functional impairment, treatment and prognosis; and

    ·his baseline work capacity was 15-22 hours per week and that his capacity for work within 2 years with intervention was 15-22 hours per week.

14. On 22 August 2014 a Centrelink review officer affirmed the decision to reject his claim for DSP, and in turn Mr Keir sought review of that decision by the SSAT.

15. Mr Keir provided the following additional medical evidence in support of the claim for DSP:

    ·a medical report dated 29 July 2014 of Dr G Sparkes (a GP) which lists ‘right below knee amputation with phantom limb pain / stump pain’ as the condition which had most impact on him. Dr Sparkes noted that Mr Keir was receiving current treatment in the form of ‘Lyrica, Endep, Celebrex, Panadene Forte’. Dr Sparkes listed past treatment as ‘surgery’. Dr Sparkes stated that Mr Keir had not been referred to a specialist, and indicated that he was ‘likely to need to see a chronic pain specialist’. Dr Sparkes listed ‘sub-acromial bursitis as a condition, noting that current treatment included ‘Celebrex, Panadene Forte’. ‘Right lateral epicondylitis’ and ‘left knee and foot osteoarthritis’ were listed as other medical conditions which were generally well managed and that caused minimal or limited impact on his ability to function.

    ·a handwritten note from Dr Sparkes attached to his medical report dated 29 July 2014 which provides further information on the conditions ‘right lateral epicondylitis’ and ‘left knee / foot osteoarthritis’. Dr Sparkes noted current treatment for ‘right lateral epicondylitis’ as ‘on medication treatment’, adding ‘no further surgery / injections advised’. In relation to ‘left knee / foot osteoarthritis’ Dr Sparkes noted current treatment as ‘celebrex and panadene forte’ and stated that Mr Keir ‘will eventually need a total knee replacement’.

    ·reports dated 25 August 2014 of left ankle and foot x-ray, left knee x-ray and left shoulder x-ray and a report of an ultrasound of the left shoulder. The ultrasound report notes inter alia the possibility of an impingement of the rotator cuff which is hidden from the ultrasound.

16. On 23 October 2014, the SSAT heard the application and affirmed the decision to reject Mr Keir’s claim for DSP. The SSAT relevantly found:

    ·the Applicant’s pain condition at the site of the right below knee amputation was not fully diagnosed, treated and stabilised and could not be taken into account when assessing the functional impairment of the Applicant’s lower limbs;

    ·the Applicant’s lower limb impairments including right below knee amputation condition (prior to the exacerbation from the pain condition) and left knee and foot osteoarthritis were fully diagnosed, treated and stabilised and satisfied the requirements for allocation of a 10 point rating under Table 3 of the Impairment Tables;

    ·the fact that the Applicant had not been seen by a specialist and the different medical opinions about the likely duration of the impact of the conditions raised doubts as to whether his upper limb impairments were fully diagnosed, treated and stabilised. The SSAT found that even if the upper limb conditions could be regarded as fully diagnosed, treated and stabilised, the upper limb impairment would not attract a rating of more than 5 points under Table 2 of the Impairment Tables.

17. On 11 November 2014, Mr Keir applied to this Tribunal for review of the SSAT decision.

18. In support of this further review in the Tribunal, he provided the following medical evidence:

    ·a medical report from Dr G Bashford (Rehabilitation Specialist) dated 1 December 2014 which refers to ‘pulsating vaguely neuropathic pain involving the whole of the right stump’;

    ·a further medical report from Dr Bashford dated 2 February 2015, which diagnosed ‘a range of muscularoskeletal pathologies affecting his upper limbs’ including ‘glenohumeral impairments and right greater than left elbow tendon enthesopathy’; and

    ·a medical report from Dr Sparkes dated 14 February 2015 which diagnosed ‘left shoulder sub-acromial bursitis’ and ‘chronic right lateral epicondylitis’. Dr Sparkes noted that Mr Keir had a ‘similat [sic] problem with his left elbow but to a lesser degree’.

19. Medical evidence lodged by Mr Keir (excluding the report of Dr Bashford dated 1 December 2014) was subsequently referred to an assessor, a psychologist, for a further JCA.  In a report of 10 April 2015 that further JCA found:

    (a)Mr Keir’s right lower limb amputation condition (prior to the exacerbation in lower limb pain) was fully diagnosed, treated and stabilised and rated 10 points under Table 3 of the Impairment Tables;

    (b)his right and left elbows tendon enthesopathy was not fully diagnosed treated and stabilised and no impairment rating could be assigned;

    (c)his osteoarthritis of the left knee, ankle and foot was fully diagnosed, treated and stabilised and the combined functional impact of both the osteoarthritis and lower limb amputation condition rated a total of 10 points under Table 3;

    (d)his left shoulder sub-acromial bursitis was not fully diagnosed, treated and stabilised and an impairment rating could not be assigned;

    (e)Mr Keir has a baseline and future work capacity of 15-22 hours per week for the lower limb conditions found to be fully diagnosed, treated and stabilised; and

    (f)Mr Keir has a baseline work capacity of 8-14 hours per week and a future work capacity of 15-22 hours per week for the shoulder and upper limb disorders, conditions that are likely to persist for more than two years but not found to be fully diagnosed, treated and stabilised.

20. At the Tribunal hearing, Mr Keir tendered:

    ·a medical report from Dr Bashford, dated 14 May 2015, simply confirming that ‘Mr Keir’s amputation and upper limbs musculoskeletal pathologies are fully diagnosed, treated and stabilised’;

    ·a medical report from Dr P Donnelly, dated 29 April 2015, providing the results of a nuclear medicine bone scan;

    ·statements by Mr Keir (13 March 2015) and Ms Jones (22 February 2015).

21. At the hearing, Mr Keir and Ms Jones, who appeared with him, offered a description of the difficulties he now encounters in undertaking daily domestic tasks, and the pain he experiences throughout the day and night. The Tribunal also heard of the challenge he faced in obtaining employment, given those incapacities and where he lived. They also provided the Tribunal with other medical evidence relating to his condition, but most of this evidence related his medical history after the relevant period referred to in paragraph 6 above.  The Federal Court has ruled that any subsequent change in a person’s health is irrelevant to the question of whether they qualify for the DSP, except insofar as it may cast light on the position during the relevant period.[5]  Unfortunately this other evidence does not do that, in my opinion, although it gives rise to some hope that a fresh application may improve his chances of qualifying for the DSP.

    [5] Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at [1] per Gyles J.

22. On the basis of the available evidence, I make the following findings regarding the conditions Mr Keir suffered from during the relevant period. These findings are based on the Secretary’s submissions and the medical evidence referred to above, which was substantially uncontradicted by Mr Keir.

    Lower limb amputation pain condition

    ·Mr Keir’s pain condition at the site of the lower limb amputation, while diagnosed, was not fully treated and fully stabilised during the relevant period, and therefore cannot be taken into consideration when assessing the functional impairment of his lower limbs.

    ·Both the medical reports of Dr Hussaini dated 6 March 2014 and Dr Sparkes dated 29 July 2014 contain a diagnosis of ‘phantom pain’.  In his report, Dr Hussaini stated that the condition effects Mr Keir’s mobility, endurance and psychological wellbeing, and that the condition is expected to persist for more than 24 months.  Dr Hussaini also stated that the condition is expected to remain unchanged within the next 2 years, though it is clear from Dr Hussaini’s handwritten comment that this assessment related to the lower limb amputation.

    ·The JCA report of 19 June 2014 notes that Mr Keir had reported that the frequency and duration of the pain attacks associated with the condition had changed significantly since December 2013. This is consistent with a later report of Dr Bashford dated 1 December 2014 which stated that his condition ‘has been getting worse over the last year’.

    ·In his report of 29 July 2014 Dr Sparkes stated that at the time of writing Mr Keir had not been referred to a specialist. He also stated that the effect of the condition on Mr Keir’s ability to function within the 2 years would ‘fluctuate’.

    ·In his letter of 1 December 2014, Dr Bashford noted that Mr Keir had ‘quite an unusual stump pain’ and that he would be liaising with his colleague Dr Jensen in relation to the condition (suggesting that investigation and the trialling of treatments for the pain condition continued after the relevant period).

    Osteoarthritis and lower limb amputation

    ·Mr Keir’s right lower limb amputation and osteoarthritis were fully diagnosed, treated and stabilised during the relevant period and should be awarded a combined rating of no more than 10 points under Table 3 of the Impairment Tables.

    ·Mr Keir’s lower right limb amputation and osteoarthritis affect the functioning of his lower limbs, and should therefore, as contended in the Secretary’s Statement of Facts, Issues and Contentions, be assessed under Table 3 (Lower Limb Function). The Guidelines to the Tables make it clear that two or more medical conditions may result in a common impairment, and that only one table should be applied in those circumstances as the calculation of impairment should be function-based and not condition-based.

    ·Significant in this regard is the following evidence before the Tribunal:

    othe JCA report of 25 March 2014 which records Mr Keir’s self-report that in between episodes arising from the pain condition at the site of the amputation, he ‘is able to drive for up to 2 hours’, ‘does not require assistance in and out of a seated position’, ‘is able to stand for 30 minutes’ and ‘is able to walk around a supermarket without assistance. With the use of a prostheses [sic]’;

    othe JCA report of 19 June 2014 which records Mr Keir’s self-report that he is ‘currently able to independently mobilise with crutches and uses a motorised “buggy” to go shopping’;

    othe JCA report of 10 April 2015 which concludes that his osteoarthritis and lower limb amputation were fully diagnosed, treated and stabilised during the relevant period and that he had a moderate impairment to his lower limbs.

    ·These descriptors appear to give Mr Keir somewhere between 5 and 10 points on Table 3.

    Tennis elbow and sub-acromial bursitis

    ·Mr Keir’s tennis elbow and sub-acromial bursitis were not fully treated and fully stabilised during the relevant period.

    ·The report of Dr Hussaini dated 6 March 2014 indicates that the right tennis elbow condition had been treated by cortisone injections and that at the time of the report there had been no specialist consultation. The report stated that future planned treatment for the condition would include corticosteroid injections and specialist referral. The symptoms were reported to include persistent pain in right elbow, and the impact on Mr Keir’s ability to function was described as decreased functioning capacity of his right elbow. The impact of the condition was reported as expected to persist for 3-12 months and the effect of the condition on his ability to function within the next 2 years was reported as ‘uncertain’.

    ·The report of Dr Sparkes dated 29 July 2014 records ‘right lateral epicondylitis’ as a condition that is generally well managed and causes minimal or limited impact on Mr Keir’s ability to function. In an attachment to the report, Dr Sparkes noted past treatment included ‘cortisone injections’. He further advised that he was ‘on medication treatment’ and that future surgery or injections are not advised. Dr Sparkes noted that the condition limits use of right upper limb and movement in the elbow.

    ·The report of Dr Hussaini dated 6 March 2014 also lists ‘pain L shoulder’ as a condition that is generally well managed and that causes minimal or limited impact on Mr Keir’s ability to function.

    ·The report of Dr Sparkes dated 29 July 2014 indicates that Mr Keir’s ‘left sub-acromial bursitis’ had been treated with cortisone injection and medications including Celebrex and Panadene Forte and indicates that at the time of the report there had been no specialist consultation. Dr Sparkes notes Mr Keir is a poor candidate for surgical repair. The impact on his ability to function was described as left shoulder pain, decreased function of left upper limb and decreased lifting ability. The impact of the condition was reported as expected to persist for more than 24 months and the effect of the condition on the Applicant’s ability to function over the 2 years was reported as expected to ‘fluctuate’.

    ·Other evidence suggested that Mr Keir’s upper limb condition is neither fully treated nor stabilised. Dr Sparkes’ report of 14 February 2015 noted that Mr Keir ‘has had a range of appropriate physical therapy and pharmacotherapy treatments trialled’. In his report of 2 February 2015, Dr Bashford stated that his ‘glenohumeral impairments’ and ‘right greater than left tendon enthesopathy’ has been ‘treated by physiotherapy and appropriate medications, including the use of opioid Palexia, currently at a dose of 200mg twice daily, and Lyrica 300mg twice daily’.  Dr Bashford further states that the ‘medications are being pushed to the limits allowing safe driving and day to day functioning’.

    ·The Secretary contended that, even if the Tribunal were to accept that the conditions were fully diagnosed, fully treated and fully stabilised during the relevant period, the impairment could not attract a rating greater than 5 points under the relevant table, Table 2. I make no finding on the appropriate rating given that it is unnecessary to do so.

    Lower back pain

    ·In his report dated 1 December 2014 Dr Bashford refers to Mr Keir’s ‘left low [sic] back pain’, though there was no reference to back pain in Mr Keir’s original DSP claim, nor has it been considered it seems by any of the decision-makers prior to the Tribunal’s consideration of this appeal.

    ·Although there is evidence of this condition, including in the report of Dr Donnelly of 29 April 2015, it would appear that it has developed after the relevant period. It is thus not possible to support a finding that this condition was fully diagnosed, fully treated and fully stabilised during the relevant period.

    Did Mr Keir have a continuing inability to work (s 94(1)(c)(i) of the SS Act)?

1. Because of my conclusion that Mr Keir’s impairment was not of 20 points or more, I do not need to consider whether he meets the next requirement to qualify for the DSP, a continuing inability to work pursuant to s 94(1)(c)(i).

   Conclusion

2. Mr Keir’s pain condition at the site of the lower limb amputation, tennis elbow and sub-acromial bursitis were not fully treated and fully stabilised during the relevant period. By contrast, Mr Keir had a physical impairment for the purposes of s 94(1)(a) of the SS Act, in that his right lower limb amputation and osteoarthritis were fully diagnosed, treated and stabilised during the relevant period. In respect of that condition, however, his impairments do not attract at least 20 points under the Impairment Tables under s 94(1)(b) of the Act. Consequently, the Applicant was not eligible for DSP during the relevant period.

3. Nonetheless, Mr Keir is obviously not a well man, and the evidence suggests that his health continues to deteriorate. While he has not on this occasion met the strict requirements of the Act, a future application for the DSP based on this outlook may yield a different result.

I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries

.................................[sgd].......................................

Associate

Dated 17 July 2015

Date(s) of hearing	22 May 2015
Applicant	In person
Solicitors for the Respondent	Mr Tal Aviram, Department of Human Services