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

[2020] AATA 1793

King and Secretary, Department of Social Services (Social services second review) [2020] AATA 1793 (17 June 2020)

Division:GENERAL DIVISION

File Number(s):      2019/4878

Re:Clive King

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Senior Member

Date:17 June 2020

Place:Sydney

The reviewable decision dated 23 July 2019, rejecting the applicant’s claim for the disability support pension, is affirmed. 

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

Dr I Alexander, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – chronic right-leg cellulitis – gastrointestinal disturbance – whether applicant had severe functional impairment on activities using lower limbs – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

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

REASONS FOR DECISION

17 June 2020

BACKGROUND

1. On 4 February 2010, while at work, Mr King felt a sharp pain in his right calf. Shortly thereafter he suffered swelling and pain around the right ankle.[1]

   [1] Section 37 Documents, page 141- Workers Compensation Commission Medical Assessment Certificate (23 September 2016)

2. In a Workers Compensation Commission Medical Assessment Certificate dated 23 September 2016, Dr Crane opined that the history of injury was “compatible with a bite or sting from an insect to the right lower leg with evidence of persisting mild to moderate lymphedema”[2]. The condition was subsequently diagnosed as “cellulitis”.[3]

   [2] Ibid page 144.

   [3] Ibid page 142- Dr Huber,12 November 2010.

3. Mr King did not return to work and, in fact, has not worked since the incident in 2010. He received weekly compensation payments for several years as well as two lump sum payments for permanent impairment.[4] 

   [4] Section 37 Documents, page138.

4. In a letter dated 25 September 2017 Mr King was informed that his entitlement to weekly compensation payments would cease on 25 December 2017.[5]

   [5] Ibid page 139.

5. On 13 December 2017 Mr King lodged a claim for Disability Support Pension (DSP). He described his medical condition as “lower right leg always swollen in pain, have had the injury for past 6 years, bitten on right lower leg, while at work, has never healed”.[6]

   [6] Ibid page 127.

6. On 20 December 2017, Centrelink rejected Mr King’s claim for DSP because he “did not provide sufficient medical evidence” to support his claim.

7. On 15 April 2018, after consideration of additional evidence, an Authorised Review Officer (ARO) affirmed the decision to reject Mr King’s claim for DSP. The ARO decided that Mr King suffered a permanent condition, that is, “chronic persisting cellulitis of the right leg and ankle”, and that a rating of 10 points under Impairment Table 3 should be assigned.

8. On 5 May 2018 Mr King lodged a claim for Carer Payment and Carer Allowance with respect to the care for his mother. Mr King’s claim was successful, and he has continued to receive these payments up to the present time.

9. In a decision dated 23 February 2019, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) found that Mr King had a total rating of 10 points under the Impairment Tables and, as his impairment was not 20 points or more under the Impairment Tables, he did not satisfy paragraph 94(1)(b) of the Social Security Act 1991 (Cth) (the Act)  and therefore did not qualify for DSP.

10. In these proceedings Mr King, who is self-represented, seeks review of the decision of the AAT1.

11. In view of the temporary changes with regard to the suspension of face-to-face Tribunal hearings during the COVID-19 crisis, both parties attended the hearing by telephone.

    ISSUES

12. In order to qualify for the DSP, a person must satisfy the requirements of section 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with subclause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (Cth) (Administration Act). That is, Mr King must satisfy the requirements between 13 December 2017 and 14 March 2018 (the qualification period).

13. Section 94(1) of the Act provides that a person is qualified for DSP 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)    …

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

    (ii) …

    d)    the person has turned 16; and… 

    …

14. There is no dispute Mr King suffers a medical condition that causes some functional impairment and, therefore, satisfies paragraph 94(1)(a) of the Act.

15. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is ‘permanent’ (paragraph 6(3)(a)).

16. For the purposes of paragraph 6(3)(a), a condition is permanent if it is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

    ·fully treated (paragraph 6(4)(b)); and

    ·fully stabilised (paragraph 6(4)(c)); and

    ·the condition is more likely than not, in light of available evidence, to persist for more than two years (paragraph 6(4)(d)).

17. The introduction to each relevant Table requires that ‘there must be corroborating evidence of the person’s impairment’ and that ‘self-report of symptoms alone is insufficient’.

18. The Respondent accepts that, during the qualification period, Mr King had the following impairments:

    ·Chronic right leg cellulitis; and

    ·Gastrointestinal disturbance.

19. The Respondent contends that, during the qualification period, Mr King’s gastrointestinal disturbance was not fully diagnosed, treated and stabilised, and therefore cannot be assigned an impairment rating. The Respondent further contends that Mr King’s chronic right leg cellulitis attracted a rating of 10 points under the Impairment Table 3 and, therefore he did not satisfy paragraph 94(1)(b) of the Act.

20. The Respondent also contends that, during the qualification period, Mr King could not satisfy paragraph 94(1)(c) of the Act as he did not have a continuing inability to work because he had not actively participated in a program of support (POS) as required by paragraph 94(2)(aa) of the Act.

21. Paragraph 94(2)(aa) of the Act provides that a person has a continuing inability to work because of an impairment if the Secretary is satisfied that “in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)… the person has actively participated in a POS within the meaning of subsection (3C)”.

22. Subsection 94(3B) of the Act provides that a person’s impairment is a severe impairment if the person’s impairment is 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

23. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) provides, inter alia, that a person has actively participated in a POS if they have participated in the program of support for a period of at least 18 months during the 36 months prior to the date of claim.

24. It is agreed that, prior to the date of claim, Mr King had not actively participated in a POS. However, Mr King contends that during the qualification period, as a result of right lower limb condition, he suffered a severe functional impact on his activities involving spinal function and, therefore, a rating of 20 points under Impairment Table 3 can be assigned.

25. It follows that the determinative issue in this matter is whether, during the qualification period, Mr King suffered an impairment of 20 points or more under a single Impairment Table and, if so, whether he had a continuing inability to work.

    EVIDENCE

26. At the hearing Mr King told the Tribunal that he has had persistent pain in the right lower limb and impaired mobility since 2010, which has been relatively unchanged. He explained that his symptoms did vary from time to time and did concede that the symptoms and impaired mobility had increased in the last twelve months.

27. Mr King told AAT1, inter alia, the following:

    “he struggles to walk very far and relies on a walking stick for stability…he is unable to stand in the one position for more than a few minutes and struggles with stairs due to pain and instability…he has lived with his mother for many years, who is herself in poor health but together they manage the household tasks as best they can with occasional support from other family members...he is able to shower dress and toilet independently although he has required adaptions to the way he goes about each task…is unable to wear shoes, resorting to thongs when going out…is able to complete light household tasks and completes the shopping with difficulty, with his mother…attends appointments either independently of with his mother for support and company.”[7]

    [7] Ibid page 6.

28. In the abovementioned Medical Assessment Certificate dated 23 September 2016, Dr Crane stated, inter alia, the following 

    On 4 February 2010 Mr King was working recycling bottles when he felt a sharp pain in the right calf and within 40 minutes the leg was very swollen around the ankle area. He noted the back of the calf was very red…one or two days later he saw another GP, Dr Samaraweera, when he was prescribed antibiotics and Tramadol…was then referred to see a vascular surgeon…on 12 November 2010 and he was diagnosed with cellulitis and given further antibiotics…[Mr King] was then sent for a second opinion…on June 2011. Venous duplex scans were done and abnormal venous circulation was found. Mr King was advised to once again wear a stocking and keep his leg elevated when possible.

    Present symptoms: The main problem is a continuous throbbing aching in his right calf and the back of the right ankle…He complains of a feeling of “abdominal bloating”...he also complains of “heartburn”…he has not worked since the work incident in 2010. For leisure, he enjoys watching television and reading, when he always keeps his leg elevated but continues to be unable to wear the elastic stocking. He regrets he is no longer able to ride his motorbikes and go camping...

    General health: This is described as good.

    …

    Findings on physical examination…Mr King was somewhat overweight with a slight-right-sided limp but his posture was normal. There was no difficulty with undressing, redressing or getting on and off the examination couch. He was noted to be heavily tattooed but there were no obvious extremity varicose veins...Maximal right calf circumference on the right was 45 cm and left calf circumference was 43 cm. Transmalleolar circumference on the right was 32 cm and on the left was 31 cm. There was very slight pitting oedema on the right leg but not the left.

    …

    This history is compatible with a bite or sting from an insect to the right lower leg with evidence of persisting mild to moderate lymphedema and restricted range of motion of the joints of the right ankle and foot.

29. At this point I note that apart from an inability to ride a motor bike and go camping and some restricted range of motion of the right foot, Dr Crane did not provide any assessment of functional impact on Mr King’s activities using lower limbs.

30. In a Job Capacity Assessment (JCA) report submitted on 5 January 2018, the assessor noted that Mr King reported “that his right calf pain radiates up his leg and the constant swelling radiates from the foot and up below the knee…that he cannot wear enclosed footwear; can only walk short distances ( 5-10) minutes before resting; and experiences pins and needles, and a burning sensation in the foot and leg…”

31. In a report dated 6 April 2017[8], Dr Berry noted that Mr King suffered from “bloating, abdominal distension, reflux, heartburn and constipation”[9].

    [8] Ibid page 161 -A report provided by Dr Berry to the Worker’s Compensation Appeal Panel - 19 May 2017 ..

    [9] Ibid page 164.

32. Dr Berry concluded that Mr King has “symptoms of colonic disorder in terms of constipation and also symptoms suggestive of an irritable bowel syndrome”[10].

    [10] Ibid page 166

33. In a letter dated 15 January 2018, Dr Samaraweera stated that Mr King suffered from “chronic persisting cellulitis” and was currently on pain medication and antibiotics.

34. Dr Samaraweera listed functional impacts as: “unable to stand for any length of time; unable to walk for more than 100 metres; unable to wear work shoes boots; unable to climb, lift; suffers constant pain on Rt leg”.

35. Dr Samaraweera recorded no physical examination or clinical assessment to support to Mr King’s claimed severity of impairment.

36. In a letter dated 3 May 2019, Dr Samaraweera provided a summary of Mr King’s medical history and concluded as follows:

    I understand that the total impairment rating for DSP has been assessed at 10 points. Being his regular general practitioner I am of the opinion that he deserves an impairment rating much higher than the above value.[11]

    [11] Ibid page 200.

37. I note that Dr Samaraweera provided no convincing rationale to support his opinion.

38. In a letter dated 18 September 2019, Dr Samaraweera listed Mr King’s impairments as “chronic pain R/leg; chronic swelling R/leg; recurrent episodes of cellulitis R/leg; inability to be up and about for any length of time; restricting his out-door activities such as gardening, recreational outings, doing odd jobs around the house”.

39. Dr Samaraweera expressed the opinion that Mr King deserves a  “better impairment rating than the above value” but again provided no rationale to support his opinion.

    CONSIDERATION

40. The Respondent accepts that during the qualification period Mr King suffered a moderate functional impact on activities using lower limbs and submits that 10 points under Impairment Table 3 can be assigned.

41. Mr King contends that during the qualification period he suffered a severe functional impact on activities using lower limbs and that a higher rating under Impairment Table 3 should be assigned.

42. The difficulty for Mr King is that, apart from his self-report of symptoms and impairment, the other evidence before the Tribunal does not, in my view, support his contention.

43. The medical evidence before the Tribunal can best be described as incomplete and, in my view, does not support a conclusion that Mr King suffered severe functional impairment during the qualification period.

44. In his report of 23 September 2016, Dr Crane provided a detailed examination of Mr King’s lower limbs and noted “restricted motion of the joints of the right ankle and foot” but provided no assessment of functional impact on activities using lower limbs.

45. If one accepts Mr King’s claim of severe functional impairment, approximately 12 months after the assessment by Dr Crane, it appears somewhat puzzling that Dr Crane did not report any significant impairment of activities using lower limbs.

46. Dr Samaraweera provided three reports, only one of which was contemporaneous with the qualification period. Dr Samaraweera listed Mr King’s self-report of symptoms but provided no meaningful clinical assessment to support the claimed severity of impairment.

47. In my view the medical evidence does not support a conclusion that during the qualification period Mr King suffered a severe functional impact on activities using lower limbs.

48. Also, Mr King has been receiving Carer Payment and Care Allowance since May 2018 in respect of care he provides for his mother.

49. I note that to be eligible for Care Payment and Carer Allowance a person “must be providing constant daily care in the home”.[12]

    [12] Australian Government / Services Australia website

50. Mr King’s application for Carer Allowance and Carer Payment was supported by a Medical Report provided Dr M. Vishnoi. 

51. One would assume that Dr Vishnoi, in supporting Mr King’s claim, would have been satisfied that Mr King could provide the appropriate level of care. This seems to be somewhat inconsistent with Mr King’s claim that, during qualification period, he suffered severe impairment of activities involving lower limb function

52. With respect to Mr King’s gastrointestinal symptoms there is insufficient evidence before the Tribunal to draw any meaningful conclusion with respect to diagnosis or functional impairment

53. Notwithstanding the limitations of the available evidence, I am satisfied, on balance, that during qualification period Mr King suffered a moderate functional impact on activities involving lower limb function.

54. I am not persuaded that the available evidence supports a conclusion that, during the qualification period, Mr King suffered a severe impact on activities involving lower limb function.

55. Therefore, during the qualification period Mr King had a rating 10 points under Impairment Table 3 which means he did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.

56. As Mr King did not satisfy section 94(1)(b) of the Act during the qualification period it is not necessary to consider whether he had a continuing inability to work.

    DECISION

57. For the reasons set out above, the Tribunal is satisfied that, during the qualification period, Mr King did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.

58. The decision under review is affirmed.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated: 17 June 2020

Date(s) of hearing:	4 June 2020
Applicant:	By Telephone
Solicitors for the Respondent:	Dr S Thompson, Services Australia