Kristoffersen and Secretary, Department of Employment and Workplace Relations

[2006] AATA 196

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 196

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/267

GENERAL ADMINISTRATIVE DIVISION		)
Re		KURT KRISTOFFERSEN

Applicant

And SECRETARY, DEPARTMENT
OF EMPLOYMENT AND
WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr RG Kenny, Member
Dr M Denovan, Member

Date6 March 2006  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

..................Sgn......................

RG Kenny
  Presiding Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – knee injury – relevant timeframe for qualification – condition not investigated, treated and stabilised in relevant timeframe – impairment rating less than 20 points

Social Security Act 1991 ss 94, Schedule 1B
Social Security (Administration) Act 1999 Schedule 2

REASONS FOR DECISION

6 March 2006

Mr RG Kenny, Member

Dr M Denovan, Member    

Background

1.      On 18 August 2004, Kurt Kristoffersen completed a claim form for disability support pension, a type of social security payment which is payable in accordance with the terms of the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act). He lodged this claim with Centrelink, the statutory authority within the portfolio of the Department of Employment and Workplace Relations (the respondent), on 6 September 2004. His claim was rejected by a delegate of Centrelink on 2 November 2004 and, on further review, by an authorised review officer on 29 December 2004 and the Social Security Appeals Tribunal on 30 March 2005.

2.      Mr Kristoffersen lodged an application for review by the Administrative Appeals Tribunal (the Tribunal) on 25 April 2005.

Hearing

3.      Mr Kristoffersen was not represented and spoke to the Tribunal by telephone.  The respondent was represented by Ms H Wallis-Dunn. After the hearing, Mr Kristofferson provided a medical report, dated 9 August 2005, from orthopaedic surgeon Dr Mr Mitchell Byrne and physiotherapy report, dated 22 September 2005, from Dr June Canavan. Further submissions in writing were also made by Mr Kristoffersen and Ms H Wallis-Dunn.

Issues and Legislation

4. To qualify for a disability support pension, the requirements in subsection 94(1) of the Act must be met. It reads:

94(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

(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.

5. It is not disputed that Mr Kristoffersen has a physical impairment related to a knee injury which he sustained in 2003. It is also not disputed that he meets the age and residential requirements in that provision. The issue is whether Mr Kristoffersen can be allocated an impairment rating and, if so, whether the threshold of 20 points is satisfied. In accordance with subsection 39(3) and clause 4 of Schedule 2 of the Administration Act, the qualifying criteria must be met on the date of his claim or within 13 weeks of that date.

Submissions

6. Mr Kristoffersen contends that the date of his claim was 15 January 2004. On that date, he spoke with a Centrelink officer and made reference to his knee injury. He was not given information at that time concerning the availability of the disability support pension and this situation continued through further Centrelink contacts until July 2004 when a “DSP kit” was posted to his home address. This contained a formal application for the disability support pension which he completed on 18 August 2004 and lodged with Centrelink on 6 September 2004. Ms Wallis-Dunn submitted that the requirements of the Administration Act in respect of making a claim were not met by Mr Kristoffersen until his claim form was lodged with Centrelink on 6 September 2004.

7. Mr Kristoffersen contended that he is severely disabled because of his knee condition and because of consequential injuries to his back and that the condition has been fully investigated, that he has undergone the full range of treatment for his condition and that it has stabilised in a manner which leaves him permanently disabled. Ms Wallis-Dunn submitted that, during the relevant timeframe of 13 weeks following the claim on 6 September 2004, Mr Kristoffersen’s condition had not been fully investigated, treated or stabilised and that, therefore, no impairment rating could be allocated to it. She submitted that this meant that the terms of paragraph 94(1)(b) of the Act could not be met and that Mr Kristoffersen was not qualified for the disability support pension.

Evidence

8. Mr Kristoffersen injured his left knee in a workplace accident on 4 December 2003. Apart from a few hours on 14 January 2004, he has not been in remunerative work since then. Orthopaedic surgeon, Dr Peter Myers, completed a knee reconstruction in March 2004 and provided reports, dated 23 March 2004 and 13 August 2004. Dr Myers last saw Mr Kristoffersen in March 2004 and his reports pertain to workers’ compensation matters rather than to those which arise for consideration under the Act or the Administration Act.

9.      Dr Allen Gray, Mr Kristoffersen’s treating medical practitioner, practises at the Kawana Waters Medical Centre and provided a report, dated 2 September 2004.  There, he described Mr Kristoffersen’s treatment at that time in the following terms:

“Supposed to be going to physio but can’t afford to go.”

Dr Gray also said that the condition was likely to persist for more than 2 years but that, within those 2 years, the effect of the condition was “uncertain”.

10.     The Tribunal found Mr Kristoffersen to be an unreliable witness.  He demonstrated an unwillingness to answer many of the questions put to him in cross-examination by Ms Wallis-Dunn.  In particular, this related to a second medical report which was signed by Dr Gray.  This was dated 24 November 2004.  Mr Kristoffersen gave varying accounts as to the authorship of various parts of that report.  At times, he said that he wrote the report and simply took it along to Dr Gray for him to stamp, sign and date.  On other occasions, he said that Dr Gray completed parts of the document.  Mr Kristoffersen refused to provide any assistance as to which parts had been completed by him and which parts may have been completed by Dr Gray.  The report makes reference to Mr Kristoffersen’s left knee condition and also to a condition diagnosed as “lower back pain and swelling”.  In relation to the knee, the report states that the condition was expected to persist for more than 2 years and to remain unchanged in its effect. It was noted that health practitioners whom Mr Kristoffersen consulted were significant distances from his home at Kawana Waters and he refused to provide information on how he was able to travel to these places.  However, in his closing remarks, he said that he did so through the services of a friend who was willing to drive him.

11.     A medical report was also prepared by Dr C Mare from Health Services Australia (HSA).  The report is dated 29 October 2004 and, therein, Dr Mare wrote:

“Condition not stabilised.  Client requires review by Orthopaedic Specialist.

Demonstrable loss of strength, mobility to cause moderate interference with walking, climbing, sitting.

Condition not stabilised.

Temporarily unfit for 6 months.

Recommend review in 6 months time.”

Dr Mare was not able to allocate an impairment rating from Table 4 of the Impairment Guide in relation to lower limb functions.

12.     Mr Kristoffersen was very critical of Dr Mare.  He said that she had not subjected him to any form of physical examination and described her as being unable to do so because she was pregnant and within a month of giving birth. 

13.     Also in evidence were physiotherapy reports from Rachel Anderson, dated 5 May 2005, and from Dr Canavan, as noted above.  Ms Anderson practises at Mooloolaba and Dr Canavan gave a Maroochydore address on her report.  The first of those reports relates to treatment for left hamstring pain and not Mr Kristofferson’s knee condition.  Dr Canavan’s report details the event when Mr Kristoffersen injured his knee but provides no assistance on the assessment of the level of impairment.

Consideration

14. Under section 11 of the Administration Act, a person who wants to be granted a social security payment, which includes a disability support pension, must make a claim in accordance with the Administration Act. Section 16 of the Administration Act sets out the means of making a claim. A written claim must be lodged and this requires that it be delivered to, in this case, a Centrelink office. While the Tribunal noted that Mr Kristoffersen had dealings with Centrelink staff from January 2004, no claim for a disability support pension was completed or lodged at that time. The Tribunal is satisfied that the claim, which was completed on 18 August 2004, was lodged by Mr Kristoffersen on 6 September 2004 and that the 13 week period within which the qualifying criteria for disability support pension must be met commenced on that date.

15.     The medical evidence available to the Tribunal in respect of that 13 week period comprises the reports of Dr Gray and of Dr Mare.  Because of the circumstances in which the second report of Dr Gray was prepared, the Tribunal attaches little weight to it.  In any event, it was completed towards the end of the 13 week period.  The first report of Dr Gray, dated 2 September 2004, was completed after the claim was filled out and before lodgement but reflects Mr Kristoffersen’s circumstances as at the time of his claim.  As noted above, Dr Gray described the effect of the condition at that stage as being “uncertain”.  The report of Dr Mare is written in a format which reflects that she conducted an examination of Mr Kristoffersen and the Tribunal rejects his criticism of her.  Dr Mare’s report was completed in the middle of the relevant 13 week period and is unequivocal in its description of Mr Kristoffersen’s condition as being not stabilised and of temporary duration. 

16.     The report from Dr Byrne, noted above, relates to Mr Kristoffersen’s back condition and appears to have been prepared in respect of a compensation claim. He saw Mr Kristoffersen on 9 August 2005.  Dr Byrne refers to Mr Kristoffersen’s knee condition and provides an opinion on whether the causal influences that brought it about may have also been responsible for his back condition.  Mobility limitations are noted by Dr Byrne but the report provides no guidance for allocating a rating for Mr Kristoffersen’s knee condition and is not in the time-frame relevant to the Tribunal’s determination.

17.     The Introduction to the Impairment Tables includes a requirement that, for an impairment rating to be assigned, the condition under consideration must be fully documented, diagnosed, investigated, treated and stabilised.  Paragraph 6 then reads:

“6.       In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

what treatment or rehabilitation has occurred;

whether treatment is still continuing or is planned in the near future;

whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

In this context, reasonable treatment is taken to be:

treatment that is feasible and accessible ie, available locally at a reasonable cost;

where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.

In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:

evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and

indicate why this treatment is reasonable; and

note the reasons why the person has chosen not to have treatment.”

18.     During the 13 week period after Mr Kristoffersen’s claim was made, the Tribunal is satisfied that Mr Kristoffersen’s left knee condition had not been fully investigated, treated and stabilised.  In particular, reliance is placed upon the report of Dr Mare, although that is supported by the first report of Dr Gray.  The Tribunal is satisfied that there are no special circumstances in which an impairment rating should be determined in the absence of full investigation, treatment and stabilisation. This means that no impairment rating can be allocated.

19.     Even if the Tribunal applied the terms of the relevant table i.e. Table 4: function of the lower limbs, the description of the condition provided in the medical reports during the 13 week period is not sufficient to meet the threshold of 20 points.  The criteria for that level read:

“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.”

20.     Considering the criteria in Table 4, Dr Mare described a demonstrable loss of strength and mobility sufficient to cause a moderate interference with walking, climbing and sitting.  That description equates with a rating of 10 points under that Table and, accordingly, is not sufficient to meet the threshold of 20 points required for Mr Kristoffersen to qualify for the disability support pension within the relevant timeframe.

Decision

21.     The Tribunal affirms the decision under review.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny and
Dr M Denovan, Members

Signed:         Jeff Mills
  Legal Research Officer

Date/s of Hearing  20 January 2006
Date of Decision  6 March 2006     
The Applicant was unrepresented
For the Respondent                  Ms H Wallis-Dunn, Departmental Advocate