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

Kooistra; Secretary, Department of Social Services and (Social services second review) [2015] AATA 897 (24 November 2015)

Division

GENERAL DIVISION

File Number

2014/3408

Re

Secretary, Department of Social Services

APPLICANT

And

Matthew Kooistra

RESPONDENT

DECISION

Tribunal
Senior Member R W Dunne

Date 24 November 2015

Place Adelaide
The decision under review is set aside and is substituted with a decision that the respondent does not satisfy subsection 94(1)(b) of the Act during the Relevant Period and is not qualified to receive the DSP.
...................[Sgd]...............................................
Senior Member R W Dunne
CATCHWORDS
SOCIAL SECURITY – disability support pension (DSP) – Impairment Tables considered – claim rejected – on review by Social Security Appeals Tribunal (SSAT), decision of Authorised Review Officer set aside – SSAT found that respondent qualified for DSP – reports of medical practitioners and Job Capacity assessor analysed – decision under review set aside.
LEGISLATION
Social Security Act 19991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) s 42, Schedule 2, clauses 3 and 4(1).
CASES
Re Summers and Secretary, Department of Social Services [2014] AATA 165
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Guidelines to the Rules for Applying the Impairment Tables
REASONS FOR DECISION
Senior Member R W Dunne
24 November 2015
INTRODUCTION

Matthew Kooistra is the respondent in these proceedings. He lodged a claim for Disability Support Pension (“DSP”) on 3 March 2014.
The claim was rejected and on review by the Social Security Appeals Tribunal (“SSAT”) the decision of the Authorised Review Officer (“ARO”) was set aside. On further review, the SSAT found that Mr Kooistra satisfied all parts of s 94(1) of the Social Security Act 1991 (“Act”) and qualified for DSP. The applicant (“Centrelink”) applied to this Tribunal for review of the decision of the SSAT.
At the hearing, Centrelink was represented by Dr Stephen Thompson (from Sparke Helmore) and Mr Kooistra was represented by Ms Margaret Riley (from the Welfare Rights Centre). The Tribunal received into evidence the T documents[1] lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, together with the following exhibits:
·copy of report of Mr Robin Jackson, orthopaedic surgeon, dated 10 November 2014;[2]
·copy of briefing letter from Sparke Helmore to Mr Jackson dated 25 September 2014;[3]
·copy of letter from Sparke Helmore to Mr Jackson dated 21 July 2015 with attachments from the Royal Adelaide Hospital relating to Mr Kooistra;[4] and
·copy of facsimiled letter from Sparke Helmore to Mr Jackson dated 22 July 2015.[5]
[1] Exhibit A1.
[2] Exhibit A2.
[3] Exhibit A3.
[4] Exhibit A4.
[5] Exhibit A5.
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal, in relevantly considering s 94 of the Act, is whether Mr Kooistra was qualified to receive DSP on the date of his claim, being 3 March 2014, or within 13 weeks thereafter, that is, by 1 June 2014 (“Relevant Period”).
In respect of the Relevant Period, Centrelink accepted that Mr Kooistra satisfied s 94(1)(a) of the Act in relation to the following impairments:
(a)bilateral hip dysfunction (more specifically, avascular necrosis); and
(b)post-traumatic stress disorder (“PTSD”).
In respect of the Relevant Period, Centrelink did not accept that Mr Kooistra’s impairments attracted a total impairment rating of at least 20 points under subsection 94(1)(b) of the Act.
LEGISLATION
The criteria for the grant of DSP are set out in the provisions of s 94 of the Act, which relevantly read:
“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;
(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
(da) in a case where the following apply:
(i)    the person is under 35 years of age;
(ii)the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;
(iii)if the person has one or more dependent children--the youngest dependent child is 6 years of age or over;
the person meets any participation requirements that apply to the person under section 94A; and
(e) the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(ea) one of the following applies:
(i)    the person is an Australian resident;
(ia)the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii)the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
Note 1:For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2:    For Impairment Tables see subsection 23(1) and sections 26 and 27.
Continuing inability to work
(2)   A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)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 program of support within the meaning of subsection (3C); and
(a)in all cases -- the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)   in all cases --either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking 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 2 years.
Note: For work see subsection (5).
(3)   In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)    the availability to the person of a training activity; or
(b) the availability to the person of work in the person's locally accessible labour market.
(3A) If:
(a)a person is receiving disability support pension; and
(b)the Secretary gives the person a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension;
then paragraph (2)(aa) of this section does not apply in relation to that assessment.
Severe impairment
(3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Example 1:A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2:A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3:A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
Active participation in a program of support
(3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
(3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).
(3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).
Doing work independently of a program of support
(4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a) is unlikely to need a program of support; or
(b) is likely to need such a program of support provided occasionally; or
(c) is likely to need such a program of support that is not ongoing.
Other definitions
(5)In this section:
program of support means a program that:
(a) is designed to assist persons to prepare for, find and maintain work; and
(b) either;
(i)is funded(wholly or partly) by the Commonwealth; or
(ii)is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) pre-vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work-related training (including on-the-job training).
work means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person's locally accessible labour market.
…”
In these proceedings is s 42, and clauses 3 and 4(1) of Schedule 2 to, the Social Security (Administration) Act 1999 (“Administration Act”). Where a person makes a claim for DSP, clause 3 in Schedule 2 provides the general rule for a start date as the day on which the claim is made. Otherwise, a person’s qualification for DSP is to be considered during the ensuing 13 weeks from the date when the claim is made, in accordance with clause 4(1) in Schedule 2 to the Administration Act. Clause 4(1) reads:
“4 Start day—early claim
(1) If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
…”
As already said, the Relevant Period for assessing Mr Kooistra’s entitlement of DSP for the purpose of these proceedings is the 13 week period from 3 March 2014 to 1 June 2014.
SOCIAL SECURITY (TABLES FOR THE ASSESSMENT OF WORK-RELATED IMPAIRMENT FOR DISABILITY SUPPORT PENSION) DETERMINATION 2011 (“Determination”)
The Impairment Tables were previously set out in Schedule 1B to the Act. The Determination, under s 26(1) of the Act, commenced on 1 January 2012. In the Determination the Rules for applying the Tables relevantly read:
“6.      Applying the Tables
Assessing functional capacity
(1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person choses to do or what others do for the person.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Note:For additional information that must be taken into account in applying the Tables see section 7.
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)    the person’s condition causing that impairment is permanent; and
Note:    For permanent see subsection 6(4).
(b)    the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example:   A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)    the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)    the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)    the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)    the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)    whether there is corroborating evidence of the condition; and
(b)    what treatment or rehabilitation has occurred in relation to the condition; and
(c)    whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)    either 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.
Note:For reasonable treatment see subsection 6(7).
Reasonable treatment
(7)For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)    is available at a location reasonably accessible to the person; and
(b)    is at a reasonable cost; and
(c)    can reliably be expected to result in a substantial improvement in functional capacity; and
(d)    is regularly undertaken or performed; and
(e)    has a high success rate; and
(f)     carries a low risk to the person.
Impairment has no functional impact
(8)The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a) acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
…
8 Information that must be not be taken into account in applying the Tables
(1) Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Note: Examples of the corroborating evidence that may be taken into account are set out in the Introduction of each Table in Part 3 of this Determination.
(2) Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.
9 Use of aids, equipment and assistive technology
A person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses.
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.
Single condition causing multiple impairments
(3) Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
Example: A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function (Tables 2 and 3); brain function (Table 7); communication function (Table 8); and visual function (Table 12).
(4) When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.
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.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
11 Assigning an impairment rating
(1) In assigning an impairment rating:
(a) an impairment rating can only be assigned in accordance with the rating points in each Table; and
(b) a rating cannot be assigned between consecutive impairment ratings; and
Example: A rating of 15 cannot be assigned between 10 and 20.
(c) if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; and
(d) a rating cannot be assigned in excess of the maximum rating specified in each Table.
(2) In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied.
Descriptors involving performing activities
(3) When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.
Example: If, under Table 2, a person is being assessed as to whether they can unscrew a lid of a soft drink bottle, the relevant impairment rating can only be assigned where the person is generally able to do that activity whenever they attempt it.
Episodic and fluctuating conditions
(4) When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
No impairment resulting from a condition
(5) To avoid doubt, where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.”
BACKGROUND

The material facts in these proceedings are not in dispute and are largely extracted from the statements of facts, issues and contentions of the applicant and the respondent.
Mr Kooistra was born in 1973 and is aged 42. He was employed as a correctional services officer for around 12 years, and resigned in 2012 as part of the settlement of a Workers’ Compensation claim. In 2006, he sustained a significant right shoulder injury as a result of a motor vehicle accident in the course of his employment duties, and a subsequent injury to his right hip. In 2008, he was diagnosed with bilateral avascular necrosis of the hips. In support of his claim for DSP Mr Kooistra provided a medical report from Dr Richard Heah. On 14 March 2014, Centrelink decided to reject his claim for DSP and an ARO affirmed the decision on 10 April 2014. In relation to Mr Kooistra’s bilateral hip avascular necrosis the ARO found that this condition was not fully diagnosed, fully treated and fully stabilised.
On 22 April 2014, Mr Kooistra lodged an application for review with the SSAT. On 27 May 2014, the SSAT set aside the ARO’s decision and found that Mr Kooistra satisfied s 94(1)(a), (b) and (c) of the Act. It considered that Mr Kooistra’s avascular necrosis met the condition of being fully diagnosed, fully treated and fully stabilised because he had been following an appropriate management plan from at least 2008, and there was planned surgery on the right hip, hopefully some time in 2014. The SSAT considered that Mr Kooistra had a severe impairment due to his hip condition and hence an impairment rating of 20 points applied. As to his post-traumatic stress disorder, the SSAT’s impression from Mr Kooistra’s evidence was that this disorder was still causing moderate symptoms and hence would attract 10 impairment points. Thus, Mr Kooistra’s total impairment rating under the Impairment Tables was 30 points. As his avascular necrosis attracted 20 points and was a severe impairment, the active participation in a Program of Support rules did not apply.
EVIDENCE
Evidence of Mr Robin Jackson
In giving his evidence, Dr Thompson referred Mr Jackson to his report dated 10 November 2014, to the letter dated 21 July 2015 with the attachments from the Royal Adelaide Hospital and to the facsimile dated 22 July 2015. In paragraph 3.3(b) of his report, Mr Jackson said that Mr Kooistra’s prognosis, if right hip surgery were undertaken, was likely to result in substantial functional improvement to the right hip. When asked whether, having reviewed the material from the Royal Adelaide Hospital sent to him with the letter dated 21 July 2015, he said there was no reason for him to change the opinion he expressed in paragraph 3.3(b) of his report. When referred to paragraph 3.3(c) of his report and the expected recovery and rehabilitation time following the surgery, he said the normal recovery and rehabilitation time would be in the vicinity of three months. When asked whether his opinion had changed after having regard to the Royal Adelaide Hospital material, he said he thought it would still be correct. Although Mr Kooistra had a weakened right leg and the recovery time was going to be substantially longer than for the average person, from the Royal Adelaide Hospital notes up until the time of his discharge, he was doing very well. When Dr Thompson suggested that a person’s recovery or rehabilitation from surgery involving a total hip replacement would be graduated, going from the day after surgery up to 100 percent of the level of functional improvement that the patient would be capable of, stabilisation would be 12 months post-surgery on an average date, but it would be a graduated improvement over that time. Mr Jackson said he agreed with this statement.
On being referred to paragraph 6.6(a) in the Determination and the time it would take for a person to reach a level of significant functional improvement to enable the person to undertake work, Mr Jackson said that he believed there was an excellent chance that Mr Kooistra would be able to return to some form of work, for 15 hours a week, within a time frame of 12 months, and possibly even well before that time frame. Further, assuming there were no complications of his surgery, Mr Jackson said he assumed that Mr Kooistra, fairly conservatively, would be able to go and seek work at probably about six months post-surgery. When asked by Dr Thompson to elaborate, Mr Jackson said that, on the balance of probabilities, Mr Kooistra could return to work within three months of surgery.
In relation to the Royal Adelaide Hospital notes accompanying the letter dated 21 July 2015, Mr Jackson was referred to the Braden Pressure Injury Risk Assessment document attached to a nursing history and assessment form dated 12 January 2015. On the first page of the nursing history assessment form relating to “Mobility”, Mr Jackson said that the word ticked “Independent” meant that Mr Kooistra did not need the assistance of another person for walking. When referred to page 3 of the Assessment and the risk factors referred to in the form, Mr Jackson said that the form showed a reasonably accurate assessment of Mr Kooistra’s pre-surgery situation with respect to his hip condition. The form was a reasonably accurate account of what he would be able to do – reasonable mobility, but certainly not totally disabled and certainly not fully mobile. Dr Thompson then referred Mr Jackson to the Royal Adelaide Hospital in-patient progress notes dated 6 May 2015 at 15:00 hours. Under the heading “PHYSIOTHERAPY – Initial Entry”, in a reference to “Mobility – 25m”, Mr Jackson said he thought that distance (25 metres) was very good for a “one day post-op”. He agreed that there were other references in the notes to a walking frame and to crutches or “with sticks”. When asked whether his evidence was that as of 6 May 2015, Mr Jackson said that Mr Kooistra was doing very well, as far as mobility was concerned.
When cross-examined by Ms Riley and asked whether the Braden Pressure Risk form was for measuring the risk of getting bed sores from lying down in a hospital bed for too long, Mr Jackson agreed that the Assessment was gauging whether a person was going to be lying in one place in a hospital bed and generating pressure sores. When Ms Riley then referred to the report by Dr Nick Ford,[6] psychiatrist, Mr Jackson agreed that a 42 year old person having a total hip replacement was a fairly drastic procedure for someone so young. However, he said ideally, we like to leave these procedures for as long as possible because these things do have a limited life. To re-do the operation causes the complication rate to go up considerably and patients are at much greater risk of things, like infection. When Ms Riley suggested that patients with total hip replacements often present with a gradual decline in hip muscle strength for two or three years after the operation, Mr Jackson said that this did not occur in his experience. Patients generally regained muscle strength very quickly because for the first time in many years they do not have pain and they can exercise so much better that they regain muscle strength very quickly.
[6] Exhibit A1, T9 p 138-143.
In re-examination, Dr Thompson referred Mr Jackson to the report of Dr Hill dated 26 November 2008[7] and to paragraph 6, which reads:
“The disability related to the right hip would be close to 100% of normal usage when a total right hip replacement is performed the disability may fall to less than 5%.”
When asked whether he agreed with Dr Hill’s opinion that Mr Kooistra would normally expect to recover to the stage where he would only have 5 per cent disability to his right hip after surgery, Mr Jackson said he had no reason to suspect otherwise, and he believed this was a very accurate assessment.
[7] Exhibit A1, T8 p 135-137.
Evidence of Mr Kooistra
In giving his evidence, Mr Kooistra said that he lived at Woodville, but had just bought a church in Eudunda. When asked how he lived, he said not comfortably. He said he kept “getting ripped off” and he did not like leaving the house itself. He said it was hard to get dressed and to shower and he could not get to Medicare to get a new card. When asked what he meant by “getting ripped off”, he said his carers would take his money and things from the house, such as tools. He said that when he made the DSP claim, he was living at Modbury with his wife and daughter. When asked about his job as a corrections officer, he said that towards the end it was very emotional. The stress affected him badly and he ended up in places he had never been before, such as psychiatric wards.
He said he needed two walking sticks to walk. He went to a wheelchair and then he went to crutches. He went back to walking sticks and he had not got off them. He got out of the wheelchair because that did more damage. He said it was a pride thing. He did it for his daughter because she was teased at school because her dad was in a wheelchair. He said he saw Dr Nick Ford who worked with the army and was trying to treat his post-traumatic stress disorder. At that time, he was in a wheelchair if he was moving and was taking medication for his legs and for his PTSD. He said his sleeping patterns were ridiculous and he was prescribed Stilnox by Dr Van den Boss, who he also saw for ADHD. He said Dr Heah was still his GP, and was a pain doctor. When Ms Riley asked him whether he saw a psychiatrist now, he said he could not afford it. When asked if there was any reason why he did not see a psychiatrist, he said he did not want to go back there to be drugged-up again. When asked how he had been coping at home, he said not well. He had lost a lot of money and he had lost a lot of friends. When it was suggested that doctors were saying he could get a 95 per cent improvement, with a hip replacement, he said this had not been the case. The pain in his leg had moved, but it was still there. He did not see it as an improvement because it did not hurt at the back anymore, and because he could rotate his leg a little more. He said he was falling less now than he did before the surgery, but the left side was starting to weaken badly and also the right knee. When he fell over, he would get up slowly. He would stay on the ground, depending on where he fell, for anything up to three or four hours.
When Ms Riley asked about a normal day when he made his claim, Mr Kooistra said he would get up anywhere from 4am to 5am in the morning, because he couldn’t sleep. It would take half an hour for him to get dressed and the hardest thing to put on was his socks. It would take him 20 minutes to half an hour to shower, but he would not normally have a shower every day. If he didn’t have assistance he might shower twice a week. He hadn’t cut his hair for a while and he hadn’t shaved. When he made his claim, he wore clothes that were easy to put on. They were not clothes that he would wear to work and he could not have dressed in work wear when he made his claim. He did not eat breakfast because it was too hard, but he made his daughter’s breakfast instead. He also made her lunch for school and he took her to school at the time in a car that was automatic. She would get out and walk into the school, but he would not because that would embarrass her. He did not eat lunch because it meant he had to get up. Afterwards, he watched TV and would wait to pick his daughter up from school. He would leave half an hour early to prepare himself for his daughter. He would then take her home to help her with her homework. He would make dinner about 50 per cent of the time. It was difficult for him to do this because he needed to stand in one spot. He did not garden and someone came out, who he paid until he could not afford it anymore. He said migraines were the only thing that took the pain away, and he would get them once a year for about two months.
He said he used to walk his dog, but when he had the wheelchair he would have the dog pull him around. There were chores that he had to leave, like renovating the bathroom. He finished the kitchen, the lounge room, the dining room and his daughter’s bedroom. His ex-wife would do the day-to-day things, such as washing the linen. When asked about his PTSD, he said he suffered flash backs of what he had been through. He did not want to go to Centrelink because a lot of his “ex-clients” were there. As a result, he did not sit in places where he could not see the door. When asked about shopping in March 2014, he said he wasn’t allowed to go because it would take too long and his ex-wife did it. He couldn’t walk around the supermarket without some form of assistance, such as walking aids or in a wheelchair. He would take a wheelchair to the supermarket in the back seat of his car. He said that with walking sticks he could stand for a good 15-20 minutes if they were in the right positions, but it was painful. He said he did not use stairs and he could not reach for things over his head until he got the “grabber” from the hospital. In looking back to March 2014, he said the main reason for taking medication was because of the pain in his hips and in getting to sleep with his PTSD. He said that he monitors his medication at present which he gets from Dr Heah. He said the pain after the hip operation is ridiculous because he hasn’t had his medication for a while. He was taken off the Medicare card that he was on with his wife and he can’t bring himself to get his own card. When he made his claim for DSP the pain was always consistent. The main symptoms that affected him every day when he made his claim was the PTSD and the hips. When Mr Jackson said that after the surgery he would have a much better functional hip joint, Mr Kooistra agreed. There is slight improvement, but a couple of muscles have not built up and this has moved the pain more to the front. He did not agree that there had been considerable relief following the surgery. At the first consult, the surgeon had said that the other hip would need to be operated on in the future. Mr Kooistra said that when he made his DSP claim his health conditions had an extreme effect on his social life. He did not go to parties or to barbeques and he did not leave the house unless it was for his daughter. He had considered retraining or undertaking studies and had registered for two courses at the Adelaide School of Arts. But he couldn’t complete the first three lessons. This was because of the seating and climbing up the school steps. Back then, he had trouble leaving the house mentally, unless it was an emergency.
In cross-examination by Dr Thompson, Mr Kooistra said that he had driven to the hearing, but a friend was a passenger and when he helped him out the friend drove off with the car. He said he crossed the road to get to the hearing room. He lived at Modbury North with his ex-wife in a unit on the ground floor that had a steep driveway. He said he never went to the shops, but he agreed that he had no difficulty leaving the house, provided he was in the car and did not have to get out of it at the other end. When referred to his DSP claim, he agreed that a medical certificate had been completed by Dr Heah on 24 February 2014. He agreed that he had seen Dr Heah regularly since January 2008 and that, in his medical certificate, Dr Heah had described his second most serious condition as PTSD and that the treatment at that stage was counselling. He also acknowledged that Dr Heah had said that there were no other medical conditions that were generally well managed and that caused minimal or limited impact on ability to function.
When referred to the report of Dr Thoo dated 11 January 2008, Mr Kooistra acknowledged that he had had no difficulties with his right hip until about early 2008. He had had a motor vehicle accident and he had a steep driveway. He said the hip problem was a sequelae of the motor vehicle accident. He agreed that Dr Thoo had said he had sustained a significant injury to his right shoulder when he was a Correctional Services officer and the subsequent injury to his right hip was secondary to the shoulder injury. He said that in late 2008 his left hip was painful and he was on medication. He had not had right hip surgery in 2008 because he was told to leave that for as long as he could. He acknowledged Dr Hill had said that, in November 2008, had a total right hip replacement been performed the disability might fall to less than 5 per cent.
When Dr Thompson referred him to the Job Capacity Assessment report dated 14 March 2014,[8] he agreed the assessor had reported that he required medical clearance to maintain his driver’s licence on a yearly basis. He acknowledged Dr Heah had filled out a licensing form in 2013 to the effect that he was fit enough physically to drive. When he was referred to the SSAT decision, he agreed that on 27 May 2014 he could walk 50 metres using his walking sticks, on flat ground, but taking breaks. He also said that, using his walking sticks, he could get onto a disabled person’s bus if it was stationary, without difficulty. He told the SSAT member he was on a 12 months waiting list for a total hip replacement. When he was referred to the Health Professional Advisory Unit opinion dated 10 April 2014 and to the discussion between Dr Heah and a nurse (Sandee), Mr Kooistra acknowledged that it read, in part:[9]
“From a treatment perspective, in discussion with Dr Heah the customer’s pain levels increased at the end of 2013 and required further review at RAH. Dr Heah indicated that the lower limb condition is not fully treated and not fully stabilised at this point in time as surgery is planned for this year.
…
The customer reported a significant clinical deterioration and worsening of his pain levels at the end of 2013 and Dr Heah indicated that the customer saw the Orthopaedic Surgeon and they have agreed to trial a new surgery on the customer this year.
…
Dr Heah indicated that the customer is not currently able to work with his bilateral lower limb condition but they are expecting a good result from the surgery and the customer’s work capacity would need to be re-assessed then. Dr Heah indicated with a treatment plan in place this condition is not considered fully treated and until the surgery and rehabilitation is complete the condition is not fully stabilised. Dr Heah indicated that the customer may require surgery on the left lower limb in the future. Dr Heah indicated that he has prescribed the customer Oxycontin for pain.
…”
[8] Exhibit A1, p 192-197.
[9] Exhibit A1, T16, p 199.
Mr Kooistra also acknowledged that, in early March 2014, he could walk down a steep slope outside his home to get letters, that he would walk into the front yard to see his daughter and that he might have walked outside on the public street.
Dr Thompson referred Mr Kooistra to the Royal Adelaide Hospital material and to the “Separation Summary” dated 8 May 2015. He said that, on 8 May 2015 after the surgery, he had the capacity to walk outside his house with walking sticks. He also said he had used a walking frame, mainly at home. When he lodged a further DSP claim on 27 April 2015, Mr Kooistra agreed that he was 90 per cent responsible for the care of his daughter. Dr Thompson then again asked him a number of questions about what that care involved when he made his DSP claim on 3 March 2014.
In re-examination by Ms Riley, Mr Kooistra said that when he gets on to the surgery list he would have no control over when the surgery is going to be scheduled.
CONSIDERATION
Was Mr Kooistra qualified to receive DSP on the date of his claim, being 3 March 2014, or within 13 weeks thereafter, that is, by 1 June 2014?
In the present case, Mr Kooistra’s claim for DSP was initially rejected by Centrelink. On review, the decision of the Authorised Review Officer was set aside and the SSAT found that he satisfied all parts of s 94 of the Act and qualified for DSP. Did Mr Kooistra qualify on the date of his claim, being 3 March 2014, or within 13 weeks thereafter, by 1 June 2014?

Mr Kooistra had been diagnosed with two conditions. First, a bilateral hip dysfunction known as avascular necrosis. Second, post-traumatic stress disorder.
In its decision, the SSAT considered that Mr Kooistra’s bilateral hip met the condition of being fully diagnosed, fully treated and fully stabilised because he had been following an appropriate management plan from at least 2008 and surgery was planned some time in 2014. The SSAT also considered that he had a very serious impairment due to his hip condition and that an impairment rating of 20 points under Table 3 of the Impairment Tables applied. In relation to Mr Kooistra’s post-traumatic stress disorder, the SSAT felt that, as the condition was long-standing and was still causing moderate symptoms, it would attract 10 points under the Impairment Tables. His total impairment rating was thus 30 points. In these circumstances, he was eligible to receive a DSP from the date of claim.
In his report dated 10 November 2014, it was Mr Jackson’s opinion that Mr Kooistra’s bilateral hip condition was not fully treated or stabilised within the meaning of subsection 6(5) and subsection 6(6)(a) of the Impairment Tables. Having said that, he was obviously referring to the Rules for applying the Impairment Tables contained in subsection 6(5) and subsection 6(6)(a) of the Determination set out in paragraph 9 of these reasons. On the assumption that surgery would occur on 31 December 2014 at the latest, on Mr Jackson’s evidence it would take 12 months for a full recovery. However, as Dr Thompson submitted in his closing, the test for a full recovery is not under subsection 6(6)(a) of the Determination. The test is when you reach the stage of being able to work at least 15 hours per week on the basic minimum wage. It was Mr Jackson’s evidence that, on the balance of probabilities, Mr Kooistra would reach that stage at the earliest within 3 months of surgery, or at the latest within 6 months of surgery. If surgery did occur on 31 December 2014 within the Relevant Period, objectively he would be able to work on 31 March 2015 at the earliest, or on 30 June 2015 at the latest.
Thus, if the bilateral hip condition was not fully treated or stabilised during the Relevant Period and the surgery within 12 months for that condition was not unreasonable, which everyone including Dr Hill agreed was the case, the success rate for the surgery would be a 95 per cent improvement in Mr Kooistra’s right hip. As Dr Hill said in his report in 2008, the disability in the right hip would be close to 100 per cent of normal usage. When a total right hip replacement is performed the disability may fall to less than 5 per cent.
However, the hip condition during the Relevant Period cannot be permanent, as defined in the Determination. Under subsection 6(4) of the Determination, a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than two years.
Then, to continue, under subsection 6(3)(a) of the Determination, an impairment rating can only be assigned to an impairment if the condition causing the impairment is permanent. As the hip condition during the Relevant Period was not permanent, the impairment rating under the Impairment Tables must be Nil.
If it is possible to accept that the bilateral hip condition was fully treated and stabilised during the Relevant Period, how many points under the Impairment Tables can be attributed to the condition? The relevant Table for the hip condition is Table 3 – lower limb function. And the Introduction to Table 3 reminds us that “lower limbs extend from the hips to the toes”. The descriptors for 10 points (moderate functional impact) in Table 3 are as follows:

Points Descriptors

10
There is moderate functional impact on activities using the lower limbs.

(1)     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 5 minutes; and

(2)     The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

(3)     This impairment rating level includes 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).

Note:   The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

The descriptors for 20 points (severe functional impact) in Table 3 are as follows:

Points Descriptors

20
There is a severe functional impact on activities using the lower limbs.

(1)     The person:

(a)    is unable to do any of the following:

(i)     walk around a shopping centre or supermarket without assistance;

(ii)    walk from the carpark into a shopping centre or supermarket without assistance;

(iii)     stand up from a sitting position without assistance; and

(b)    requires assistance to use public transport.

(2)     This impairment rating level includes a person who requires assistance to:

(a)    move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or

(b)    move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.

In looking through the descriptors for 10 points and 20 points, on the evidence, Mr Kooistra would not meet all of the 20 point descriptors, and Dr Thompson submitted that the appropriate impairment rating for his hip condition would be 10 points under Table 3. In the Job Capacity Assessment report, the assessor reported that Mr Kooistra presented with the use of a walking stick and he advised that he used a self-propelled wheelchair in the home. In his oral evidence before the SSAT he said he used “sticks to walk”. He could only walk very short distances of about 50 metres and he used a wheelchair at home. In the Health Professional Advisory Unit opinion, it is stated that he uses a wheelchair at home as otherwise he would fall. He reported that he can walk for up to 50 metres with walking aide. He cannot stand for more than five minutes without assistance and cannot static stand. In his report, in relation to Mr Kooistra, Mr Jackson says:
“…He cannot run, he cannot kneel or crouch down and has difficulty on hills, slopes, rough and uneven ground….. He has considerable problems getting in and out of the vehicle….
The appropriate table, in my opinion would be a relevant ten points….
He would be considered borderline for 20 points.
...”
In the first descriptor for 20 points it says that the person is unable to walk around a shopping centre or supermarket without assistance. In this regard, Dr Thompson referred to the decision of Senior Member Bell Re Summers and Secretary, Department of Social Services.[10] In that case, the question of whether Mr Summers’ left lower limb impairment should attract a rating of 10 points or 20 points came down to whether, when he walked from his parked car to a shopping centre, he was able to do so without “assistance”. As “assistance” is not defined in the Tables or in the Act, the respondent in that case submitted that “assistance” meant assistance from another person, rather than assistance from an object, such as a shopping trolley or a walking stick. Senior Member Bell accepted this submission and I also agree with it: see 3.6.3.05 in the Guidelines to the Rules for Applying the Impairment Tables. It was Mr Kooistra’s evidence that, during the Relevant Period, he could walk around a shopping centre or supermarket for 50 metres without assistance. He could walk on a flat surface and he could walk around with pauses, perhaps for up to 50 metres. He said that he walked from a carpark into a shopping centre or a supermarket without assistance. He could get out of his car when it was parked in the driveway, without assistance from another person. On the day of the hearing, I noticed he could stand up from a sitting position without assistance.
[10] [2014] AATA 165.
The clear evidence is that Mr Kooistra, during the Relevant Period, did not satisfy any of the 20 points descriptors in Table 3 of the Impairment Tables. In saying this, I note that s 11 of the Rules for applying the Impairment Tables, states that, in assigning an Impairment Rating:
“…
(a) an impairment rating can only be assigned in accordance with the rating points in each Table; and
…
(c) if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied;”
Having regard to all the evidence and the above Rules, I am satisfied that Mr Kooistra deserves 10 points for his bilateral hip condition under Table 3 during the Relevant Period.
Looking at Mr Kooistra’s post-traumatic stress disorder during the Relevant Period, as Dr Thompson submitted, there is a divergence of evidence on the subject. It is Mr Kooistra’s evidence that he has not attended and had any treatment from psychologists or psychiatrists, during the Relevant Period. It appears that this is because of the cost involved, but it is not the evidence of his doctor. In the Health Professional Advisory Unit opinion, dealing with Mr Kooistra’s PTSD, at paragraph 3 on page 3, it says:
“… Dr Heah confirmed that the customer’s Post Traumatic Stress Disorder has been quite stable for a couple of years and has only been exacerbated since last year due to the customer’s son whom he has had limited contact with, coming back into his life and upsetting the family dynamics. Dr Heah indicated that because the Post Traumatic Stress Disorder has been stable for the last 3 years or more it hasn’t required management and psychological counselling or psychiatric intervention.”[11]
The Health Professional Advisory Unit opinion recommended that 5 points be assigned to Mr Kooistra’s PTSD under Table 5. Moreover, the most recent evidence about his PTSD is recorded in Mr Jackson’s report, on page 4, in which he says:
“He informed me that his PTSD has now stabilised. He no longer attends the psychologist or the psychiatrist and he is not taking any psychotropic medication.”
[11] Exhibit A1, T16 at p 200.
On the basis of what Dr Heah said, the PTSD has settled down, to the extent that it simply stopped. In the circumstances, Dr Thompson submitted that the condition deserved 5 points under Table 5. The descriptors for 5 points (mild functional impact) in Table 5, are as follows:

Points

Descriptors

5

There is a mild functional impact on activities involving mental health function.

(1)     The person has mild difficulties with most of the following:

(a)    self care and independent living;

(b)    social/recreational activities and travel;

(c)    interpersonal relationships;

(d)    concentration and task completion;

(e)    behaviour, planning and decision-making;

(f)     work/training capacity.

The descriptors for 10 points (moderate functional impact) in Table 5 are as follows:

10

There is a moderate functional impact on activities involving mental health function.

(1)    The person has moderate difficulties with most of the following:

(a)    self care and independent living;

(b)    social/recreational activities and travel;

(c)    interpersonal relationships;

(d)    concentration and task completion;

(e)    behaviour, planning and decision-making;

(f)     work/training capacity.

Dr Thompson submitted that Mr Kooistra did not satisfy most of the 10 point descriptors in Table 5. He referred to interpersonal relationships and Mr Kooistra’s responsibilities for looking after his 10 year old daughter, during the Relevant Period. In doing this, he needed and had considerable behaviour planning and decision-making capacity to properly look after his daughter. He was never late taking her to school or picking her up in the afternoon. He regularly made her breakfast and lunch to take to school, and he regularly assisted her with her homework. Dr Thompson submitted that Mr Kooistra is not a person who fails the descriptors for 10 points for a moderate functional impact. He has recently been living independently and takes care of himself. He described his showering patterns that indicated that he had sufficient self-care and independent living. He is not inhibited by any mental health function in meeting the 10 point descriptors. In these circumstances, it seems to me that Mr Kooistra deserves 5 points for a mild functional impact during the Relevant Period.
Even if Mr Kooistra’s hip condition is fully diagnosed, fully treated and fully stabilised, the medical evidence supports a rating of 10 points being assigned under Table 3 for the functional impact arising from this condition. Moreover, the medical evidence supports a rating of 5 points being assigned under Table 5 for the functional impact arising from his PTSD. This results in an overall impairment rating of 15 points, which means that Mr Kooistra does not meet the threshold of 20 points under subsection 94(1)(b) of the Act. This is so even though I have no doubt that Mr Kooistra encounters considerable difficulty and pain, particularly as a result of his bilateral hip dysfunction. At the hearing, although he was in pain and became emotional at times, he was a frank witness and gave his evidence about the effect of his conditions on his ability to function in an open way.
Because he has an impairment rating of less than 20 points there is no requirement for him to satisfy the Program of Support, which was conceded by Ms Riley. Accordingly, it is unnecessary for me to consider whether he has a “continuing inability to work” within the meaning of s 94(1)(c) of the Act.
CONCLUSION
I am satisfied that the conditions from which Mr Kooistra suffers which give rise to impairment ratings under the Impairment Tables during the Relevant Period are bilateral hip dysfunction (or avascular necrosis) and post-traumatic stress disorder. The applicable rating for the bilateral hip condition is 10 points and the applicable rating for the post-traumatic stress disorder is 5 points, resulting in a total of 15 points for the Relevant Period. As such he does not meet the threshold of 20 points under subsection 94(1)(b) of the Act.
DECISION
For the above reasons, the decision under review is set aside and is substituted with a decision that the respondent does not satisfy subsection 94(1)(b) of the Act during the Relevant Period and is not qualified to receive the DSP.

I certify that the preceding 47 (forty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
.....................[Sgd].........................................
Administrative Assistant
Dated 24 November 2015

Date(s) of hearing 24 July 2015

Advocate for the Applicant Dr S Thompson

Solicitors for the Applicant Sparke Helmore

Advocate for the Respondent Ms M Riley

Solicitors for the Respondent Welfare Rights Centre (SA) Inc

[2015] AATA 897

24 November 2015

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Impairment Tables

Disability Support Pension

Medical Evidence

Division	GENERAL DIVISION
File Number	2014/3408
Re	Secretary, Department of Social Services
APPLICANT
And	Matthew Kooistra
RESPONDENT

Tribunal	Senior Member R W Dunne
Date	24 November 2015
Place	Adelaide

Date(s) of hearing	24 July 2015
Advocate for the Applicant	Dr S Thompson
Solicitors for the Applicant	Sparke Helmore
Advocate for the Respondent	Ms M Riley
Solicitors for the Respondent	Welfare Rights Centre (SA) Inc