King and Secretary Department of Employment and Workplace Relations

[2007] AATA 1967

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1967

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1550

GENERAL ADMINISTRATIVE DIVISION		)
Re		FRANK KING

Applicant

And SECRETARY DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date19 November 2007

PlaceSydney

Decision The decision under review is affirmed.

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

Dr J D Campbell   Member

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension - Issue of Permanent Impairment - Assessment - Deeming Provisions - Date of Qualification

Social Security Act 1991 - section 94, Schedule 1B

Social Security (Administration) Act 1999 - sections 11, 12, 13, Schedule 2 clause 3

REASONS FOR DECISION

19 November 2007 Dr J D Campbell, Member

background

1.Mr King was born in Hungary in 1952. He left school at age 15 and worked in horse training, prior to escaping to Italy in 1969/70. In 1971 Mr King migrated to Australia. Since that time, Mr King has married and undertaken a range of work activities: including many labouring jobs, working in hospitals as a mortuary attendant, porter and theatre assistant and working as a truck driver and owner driver. Mr King has also had a long involvement with the fishing industry and purchased his own boat in 1985. Mr King continued to undertake labouring work with his last place of employment being at Metal Door Frames. Mr King has also enjoyed a long association with the sport of ice hockey, commencing in his native country and continuing until 2004 in activities involving the training of youths in ice hockey.

2.On 20 May 2004, Mr King lodged a claim for Newstart Allowance, having ceased work voluntarily on 14 May 2004 because of knee/leg pain (Dr Stott, 19 May 2004, 2T3). This knee/leg pain was later confirmed, through arthroscopic surgery on 27 August 2004, as a torn medial menisus in the left knee by Dr Robertson, an orthopaedic surgeon (2T14, p42). Mr King was granted and continued to receive Newstart Allowance. He was exempted from the activity test until 9 December 2005. A treating doctor’s report, in 2005, by Dr Stott detailed that Mr King was still experiencing mild pain in his left knee, probably arising from secondary osteoarthritis. Dr Stott concluded that Mr King would continue to experience pain from long periods of standing/walking and repetitive bending and lifting (2T26). A work capacity assessment was undertaken by Mr Robilliard, a rehabilitation consultant with qualifications in physiotherapy, on 6 December 2005 (2T30). In his report Mr Robilliard considered Mr King to have a permanent impairment in his left knee, as the treating doctor had reported the condition to be fully diagnosed, stabilised and treated, with little likelihood of significant improvement over the next 24 months. Mr Robilliard rated Mr King’s knee impairment as 10 points pursuant to Schedule 1B Table 4 of the Tables for the assessment of work-related impairment for disability support pension (‘the Impairment Tables’) of the Social Security Act 1991. He noted that Mr King was able to walk slowly along the beach for 30 - 45 minutes, had some difficulty with squatting, was able to walk slowly down stairs and had only a slight loss of active range of knee movement. As a consequence of this report Mr King lost his exemption status from the activity test. This decision was affirmed by the authorised review officer (‘ARO’) on 7 February 2006 (2T50), by the Social Security Appeals Tribunal (‘SSAT’) on 28 February 2006 (2T2), and by the Administrative Appeals Tribunal on 25 August 2006 (1T9).

3.On 23 May 2006 Mr King contacted Centrelink to enquire about claiming disability support pension (‘DSP’). Centrelink sent Mr King a claim package, with the advice that if the form was completed and returned by 6 June 2006, and he was successful in his claim, his contact date (23 May 2006) would be the date at which his claim would be deemed to have been made (1T5, p22). Mr King lodged his claim for DSP on 16 August 2006 (1T7), together with a treating doctor’s report from Dr Molesworth (1T8). A job capacity assessment report was undertaken by Ms Mortimer, a registered psychologist, on 14 September 2006 (1T10). Ms Mortimer concluded that the functional impact of Mr King’s left knee impairment was ‘difficulty walking or standing for prolonged periods, relies on a walking stick, difficulty walking in (sic) uneven surfaces or climbing up stairs, no lifting, squatting, bending’ (1T10, p73). An impairment rating of 20 points pursuant to Table 4 of the Impairment Tables was recommended. Ms Mortimer also concluded that future capacity for work with intervention was 8 – 14 hours per week in a light semiskilled sedentary role (1T10, p75). Mr King was granted DSP with the date of effect being 16 August 2006, a decision which has been reviewed and affirmed by an authorised review officer on 6 March 2007 and by the Social Security Appeals Tribunal on 17 April 2007. Mr King contends that the commencement date for DSP should be May 2004, when he first lodged medical certificates.

issues

4.The relevant issue in this matter is:

·Was Mr King qualified to receive DSP payments at a date earlier than 16 August 2006?

decision

5.For the reasons stated later in this decision, Mr King was not qualified to receive DSP payments at a date earlier than 16 August 2006.

further background

6.Mr King informed the Tribunal that his medical problem centred around his left knee. Mr King detailed the following:

·His first operation was for a lump on the side of his left knee in 1994. He consulted Dr Robertson, orthopaedic surgeon at St Vincent’s Hospital, with another doctor undertaking arthroscopic surgery on the medial cartilage in 1994 at Sydney Hospital.

·He stated that after he recovered from that operation his knee pain ceased and he had normal use of his knee. He said that when training boys at ice hockey in 2004, he again commenced experiencing pain around the medial aspect of the left knee.

·He saw Dr Robertson in May/June 2004. Arthroscopic surgery was undertaken by Dr Robertson in September 2004 or thereabouts, and followed by physiotherapy.

·Mr King continued to experience pain in the left knee and continued with physiotherapy at Woy Woy Hospital in the early months of 2005. He was reviewed by Dr Robertson in February/March 2005, in which Mr King believes it was indicated to him that it would, with exercise, take two years before his knee was better.

·A further review was undertaken in either September 2005 or September 2006 in which Dr Robertson suggested an MRI scan examination of the left knee.

·Mr King said that currently the pain is not there all the time, but with too much time on his legs, the pain really hits. He finds it difficult to do most things. He uses Tramal and Panadeine Forte to control the pain.

other relevant reports

7.The following health professional reports detail the nominated information:

·Dr Robertson, orthopaedic surgeon, confirmed in a report dated 25 January 2005 (2T14) that Mr King had an arthroscopic medial menisectomy left leg on 27 August 2004; that Mr King should continue with physiotherapy; that he could return to work for eight hours a day working the guillotine; and that significant improvement would occur over a three to 24 month period.

·Dr Robertson, in a report dated 23 March 2005 (Exhibit A4), noted that Mr King still had some knee pain after walking. At that time no further investigation or treatment was indicated.

·Mr Laybutt, rehabilitation consultant with qualifications in psychology, detailed in a work capacity assessment report, dated 14 February 2005 (2T16), that Mr King reported he was able to walk more than 500 metres, squat and kneel, although he experienced joint pain following strenuous activity. Mr Laybutt considered Mr King to be fit to work in light sedentary duties for 30 plus hours per week. Mr Laybutt observed that Mr King walked with a limp.

·Dr Stott, general practitioner, in his report dated 3 November 2005 (2T26), indicated that Mr King’s condition would impact in a variable manner on Mr King’s ability to function for more than 24 months.

·Mr Robilliard, rehabilitation consultant with qualifications in physiotherapy, in his report (2T30) has been referred to in paragraph two of this decision.

·Dr Molesworth, treating general practitioner, in a medical certificate dated 20 December 2005, (2T37) considered Mr King to have a temporary condition. He stated that Mr King was awaiting review by an orthopaedic surgeon. Dr Molesworth confirmed such comments in a medical certificate dated 3 January 2006 (2T44) and 6 February 2006 (2T47).

·Dr Molesworth, in his report lodged on 16 August 2006 (1T8), detailed Mr King’s symptoms as pain localised in the medial compartment of left knee, with episodes of clicking and increased pain. He noted a MRI scan had been suggested by Dr Robertson, to be followed by a review. Dr Molesworth stated that, Mr King’s knee condition prevented him from walking or standing for long periods, and that he may need to use a walking stick as required. Dr Molesworth considered Mr King’s condition permanent and that it would impact on his ability to function for more than 24 months.

·Ms Mortimer, a registered psychologist, detailed her assessment in a job capacity assessment report dated 14 September 2006 (1T10). This has been referred to in paragraph three of this decision.

consideration and findings

8.There is no argument that Mr King lodged a claim for DSP on 16 August 2006, that his claim was accepted and payments commenced from that date. I have been particular in detailing the evidentiary material of Dr Molesworth, the treating general practitioner, and the job capacity assessment report by Ms Mortimer, who noted that the source of her knowledge in relation to the left knee condition was Dr Molesworth’s treating doctor’s report. I note that Dr Molesworth made no assessment of the impairment associated with the left knee condition. I observe that Ms Mortimer did conclude that Mr King was assessed as having 20 point impairment rating pursuant to Impairment Table 4.

9.I next note Table 4 of the Impairment Tables, in so far as it is relevant to this matter. Table 4 is concerned with function of the lower limbs.

TABLE 4.       FUNCTION OF THE LOWER LIMBS

Table 4 is used to assess lower limb not spinal function (see

Table 5). Assess both limbs together. Determination of lower

limb impairments must be based on a demonstrable loss of

functions.

Rating           Criteria

NIL Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.

TENDemonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or

Pain or claudication restricts walking to 250-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.

TWENTY Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or

Pain or claudication restricts walking (4km/h) to 50-250m or less at a time. Can walk further after resting or

Unable to walk or stand but independently mobile using a self-propelled wheelchair.

THIRTY        Pain or claudication restricts walking (4km/h) to 50m or less at a time. Can walk further after resting or restricted to walking in and around home and:

·     requires quad stick, crutches or similar walking aid, or

·     is unable to transfer without assistance.

10.I further note the requirement that determination of lower limb impairments must be based on demonstrable loss of functions. I note the criteria for assessing impairment at nil, 10, 20 or 30 points. In particular, I observe the difference in requirements for a 20 and 30 point rating.

11.In addressing the material upon which a 20 point rating was made, namely the treating doctors report of Dr Molesworth lodged on 16 August 2006, I note the current symptoms:

Pain localised medial compartment left knee. Moderate tenderness ant/med joint line. Episodes clicking/pain elaborated. …

Difficulty walking or standing for prolonged periods. May need to use a walking stick.

Dr Molesworth considered that any impairment arising from the left knee would fluctuate and last for longer than 24 months. I observe that Ms Mortimer notes that the functional impact of Mr King’s impairment involved difficulty in walking or standing for prolonged periods, difficulty walking on uneven surfaces or climbing up stairs, no lifting squatting or bending and that that Mr King relies on a walking stick.

12.Nevertheless, an impairment rating of 20 points was found to exist pursuant to Table 4, and Mr King was found to satisfy all requirements for DSP. Payment for DSP commenced from 16 August 2006. The issue of the correctness of those findings is not before me on this occasion. I would however venture to state that in considering Mr King’s claim for an earlier commencement date for the payment of DSP, the correctness of the decision to award Mr King 20 point impairment for his left knee remains a relevant issue. In so stating, it becomes necessary for Mr King to be successful in his claim for an earlier commencement date for payment of DSP to demonstrate that there is material to support him having a left knee impairment, that the impairment is permanent and that assessment of that impairment results in a rating of 20 or more points pursuant to the Schedule 1B Impairment Tables and that he has a continuing inability to work.

the legal context in relation to commencement date

13.Section 11(1)(a) of the Social Security (Administration) Act 1999 (‘the Act’) states that as a general rule a person seeking a social security payment must lodge a claim for it. Clause 3 of Schedule 2 of the Act confirms that as a general rule the commencement date for a social security payment is the date on which the claim is lodged. Section 13(1) of the Act details the exception to the general rule that a claim must be lodged. An exception is permitted in circumstances where contact has been made by an individual or a person on behalf of an individual with the Department in relation to a claim for a social security payment. In such circumstances, the date of contact becomes the commencement date for payment only in circumstances where the individual was qualified for the social security payment on the date of contact, the Department has acknowledged by way of a written notice that the Department has been contacted in relation to the claim, and the individual lodges a claim for the payment with the Department within 14 days.

14.I have already detailed, earlier in this decision, the sequence of events that occurred in Mr King’s claim for DSP. To recapitulate, Mr King made a verbal enquiry on 23 May 2006. A claim package was forwarded by Centrelink to Mr King, indicating that the claim must be lodged by 6 June 2006. Mr King did not lodge his claim for DSP until 16 August 2006. I conclude that Mr King cannot avail himself of the exception to the general rule contained within section 13(1) of the Act, in that, Mr King failed to lodge a claim for DSP within 14 days. As a consequence any alteration to the commencement date for DSP of 16 August 2007 cannot occur under the exception rule provided by section 13(1).

15.Section 13(2) of the Act provides a further discretion in circumstances where there has been a failure to lodge a claim within the 14 days nominated. To fall within the parameters for the exercise of a discretion to alter the commencement date, an individual must lodge his claim within 13 weeks of the contact date, and the decision maker be satisfied that the individual was suffering from a medical condition throughout the period. The medical condition or circumstances related to that medical condition must have had a significant adverse effect on the individual’s ability to lodge the claim earlier.

16.In addressing this exception to the general rule, in this matter, I observe that there is an absence of evidence which suggests Mr King was suffering from a medical condition, or circumstances which related to that condition, that had an adverse effect on his ability to lodge the claim earlier. In such circumstances, I conclude that the requirements upon which the decision maker must be satisfied do not exist in Mr King’s circumstances. The consequence is that exception to the general rule contained within section 13(2) of the Social Security (Administration) Act 1999 cannot be extended to Mr King in the defined circumstances.

17.Section 12(1) of the Act provides for the circumstances in which an individual, who is already receiving an income support payment, becomes qualified for another income support payment. In such circumstances, if the decision maker determines that the individual is to be transferred to the other payment, the individual is deemed to have made a claim for the other payment on the day on which the person became qualified for the other payment.

18.In considering the application of the section 12 provision to Mr King’s circumstances, it would be necessary for Mr King to demonstrate that he met all the qualifications for DSP at a date earlier than 16 August 2007 and after 20 May 2004, being the date of commencement of his Newstart payments.

19.In addressing such a set of circumstances I have been mindful to document the clinical history of Mr King’s left knee impairment as told by him and recorded and assessed by a number of health practitioners from 20 May 2004 to 16 August 2006. I have already indicated concerns over the adequacy of the evidence which led to the 20 point impairment rate for the left knee impairment by Ms Mortimer.

20.I note again the early clinical history of Mr King’s left knee complaint as outlined by him, his treating doctor, Dr Stott, and his treating orthopaedic surgeon, Dr Robertson. It is evident from their reports that Mr King was receiving ongoing treatment post arthroscopy menisectomy in August 2004. This was essentially exercise and physiotherapy and continued at least until 23 March 2005. At this point Dr Robertson stated that no further investigation or treatment was required, while at the same time noting that Mr King still experienced some pain after walking. I also note the report of Mr Laybutt of 14 February 2005 in which it is recorded that Mr King was able to walk for more than 500 metres, squat and kneel, but with left knee pain following strenuous activity. Mr Laybutt considered that Mr King was fit to work for 30 hours plus in light sedentary duties.

21.It is evident that by April 2005, Mr King’s left knee condition had been documented and diagnosed and that the attending orthopaedic surgeon considered that the condition had been investigated and treated. As to whether the left knee condition was stabilised, Dr Robertson had in an earlier report of 25 January 2005 indicated that Mr King was fit to return to work and that significant improvement would occur over a 24 month period. I note that there is no contrary material in his report of 24 March 2005. In such circumstances, I am unable to conclude that by the end of March 2005 that Mr King’s left knee condition was fully stabilised. Further there is much evidence, namely that of Dr Robertson and Mr Laybutt, that Mr King had a continuing capacity to work.

22.In the circumstances as detailed, I conclude that Mr King did not qualify for DSP from 20 May 2004 up until late 2005 as his condition was not considered to be permanent and he did not have a continuing inability to work.

23.Next, I address the reports commencing with that of Dr Stott of 3 November 2005. Dr Stott considered that Mr King would continue to experience mild pain with long periods of standing/walking, and with repetitive bending and lifting. Dr Stott considered this would continue for more than two years. The next report is that of Mr Robilliard, on 6 December 2006. Mr Robilliard considered Mr King had a permanent impairment arising from his left knee condition as the treating doctor had reported the condition to be fully diagnosed, stabilised and treated with little likelihood of significant improvement over the next 24 months. Apart from Dr Robertson’s statement in March 2005 that there was no requirement for further treatment or investigation, and Dr Stott’s comment about significant improvement over the next two years was unlikely, Mr Robilliard would appear to have arrived at his own conclusion irrespective of what was said by Dr Robertson (improvement expected over two years). Mr Robilliard assessed Mr King’s left knee impairment at 10 points pursuant to Table 4, while noting Mr King was able to walk slowly along the beach for 30 to 45 minutes, able to walk slowly down the stairs, while having some difficulty with squatting. Mr Robilliard considered Mr King retained a capacity to work between 15 and 29 hours per week in light low-skilled work, either currently or with educational, vocational or on the job training. He also considered that with disability specific intervention Mr King had a capacity to undertake 30 hours plus of work per week. I also note that over the period December 2005 to February 2006, Dr Molesworth, Mr King’s new general practitioner considered that Mr King’s left knee condition was temporary and he was receiving a review by an orthopaedic surgeon.

24.In addressing such evidence, and despite the apparent inconsistency, I can only conclude that during the period ending January 2006, there is an absence of any material which would suggest an impairment rating of Mr King’s left knee condition other than 10 points, despite some argument to suggest that the condition was not yet permanent. Similarly, I note that there is no evidence to support a finding that Mr King qualified for DSP at any time prior to February 2006.

25.In the absence of any relevant clinical material between February 2006 and his date of lodgement on 16 August 2006, I conclude on the balance of probabilities, that there is an absence of clinical material and opinion which would permit a finding that Mr King had a permanent impairment from a physical condition that was able to be assessed at 20 points or greater under Impairment Table 4, and that he had a continuing inability to work.

26.In the circumstances as assessed, I conclude that at no date between 20 May 2004 and 16 August 2006 is there material which would allow me to conclude that Mr King qualified for DSP. In such circumstances, any exemption within the section 12 provision of the Act is not of assistance to Mr King.

27.In summary, issues pertinent to Mr King’s contentions have been considered and addressed in light of the available evidence. I conclude that such consideration and findings have not progressed Mr King’s contentions that he was entitled to payment of DSP at a date earlier than 16 August 2006. In such circumstances, I affirm the decision under review.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D CAMPBELL, MEMBER

Signed:         ...................[sgd]...................
  Keelyann Thomson, Associate

Date of Hearing  9 October 2007
Date of Decision  19 November 2007
Representative for the Applicant    Self-represented
Solicitor for the Respondent          Ken Bullock