Lutvey and Secretary, Department of Social Services (Social services second review)
[2019] AATA 1203
•7 June 2019
Lutvey and Secretary, Department of Social Services (Social services second review) [2019] AATA 1203 (7 June 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2018/5862
GENERAL DIVISION )Re: Stephen Lutvey
Applicant
And: Secretary, Department of Social Services
Respondent
CORRIGENDUM
TRIBUNAL: Member D Mitchell
DATE OF CORRIGENDUM: 12 June 2019
PLACE: Brisbane
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the Decision dated 7 June 2019 in this application as follows:
1.Paragraph 79 of the Decision should be read as follows:
79.I find that the Applicant’s obstructive sleep apnoea condition was fully diagnosed but was not fully treated or fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
2.Paragraph 80 of the Decision should be read as follows:
80.I find that the Applicant’s asthma and Barrett’s oesophagus conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period. Based on the evidence before the Tribunal, I find that the conditions caused the Applicant minimal functional impairments and can be assigned 0 points under the Impairment Tables.
……………………[SGD]……………..
Member D Mitchell
Division:GENERAL DIVISION
File Number:2018/5682
Re:Stephen Lutvey
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:7 June 2019
Place:Brisbane
The Tribunal affirms the decision under review.
.............................[SGD]..............................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123REASONS FOR DECISION
Member D Mitchell
7 June 2019
INTRODUCTION
On 13 June 2017, Mr Stephen Lutvey (the Applicant) lodged a claim for Disability Support Pension (DSP).[1]
[1] Exhibit 1, T Documents, T 5, pages 47-76, DSP claim form.
The claim was rejected on 20 June 2017,[2] on the basis that the Applicant had not provided sufficient medical evidence for the Respondent to assess his claim.
[2] Exhibit 1, T Documents, T 6, pages 77-78, Letter: Rejection of DSP claim.
The Applicant provided further medical evidence which was reviewed and his claim was further rejected on 14 February 2018.[3]
[3] Exhibit 1, T Documents, T 8, pages 80-82, Letter: Rejection of DSP claim.
This decision was reviewed by an Authorised Review Officer (ARO) who affirmed the decision to refuse the application for DSP on 4 April 2018.[4]
[4] Exhibit 1, T Documents, T 10, pages 84-90, Authorised Review Officer Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), which affirmed the decision of the ARO on
6 September 2018.[5]
[5] Exhibit 1, T Documents, T 2, pages 3-8, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an email dated 27 September 2018.[6]
[6] Exhibit 1, T Documents, T 1, pages 1-2, Application for Review.
On 8 May 2019, a Hearing was held for this application. At the Hearing, the Applicant was self-represented and gave evidence under oath.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive DSP at the date of his claim or within 13 weeks thereafter.
BACKGROUND
On the Applicant’s DSP claim form, he lists the following disabilities, illnesses or injuries:[7]
·Chronic back pain
·Asthma
·Sleep Apnoea
·Barrett’s Osephalitis
·Extreme Shortness of Breath
·Hearing Aids
[7] Exhibit 1, T Documents, T 5, page 72, DSP claim form.
On 20 June 2017, a decision was made to reject the Applicant’s DSP application on the basis that the Applicant did not provide sufficient medical evidence to assess his claim.[8]
[8] Exhibit 1, T Documents, T 6, pages 77-78, Letter: Rejection of DSP claim.
The Applicant provided further medical information.
On 19 January 2018, the Applicant attended a face to face Job Capacity Assessment (JCA) with a registered occupational therapist.[9] The Assessor found that the Applicant’s spine condition was fully diagnosed, fully treated and fully stabilised and assigned the condition 10 points under Table 4 of the Impairment Tables. The Assessor found that the Applicant’s other conditions were not fully treated and fully stabilised and therefore could not be assigned a rating under the Impairment Tables.[10]
[9] Exhibit 1, T Documents, T 40, pages 204-217, Job Capacity Assessment Report.
[10] Exhibit 1, T Documents, T 40, pages 204-217, Job Capacity Assessment Report.
On 14 February 2018, the Applicant’s claim for DSP was rejected on the basis that he did not have an impairment rating of 20 points or more.[11]
[11] Exhibit 1, T Documents, T 8, pages 80-81, Letter: Rejection of DSP claim.
On 4 April 2018, an ARO affirmed the decision to refuse the Applicant’s claim for DSP. The ARO made the following key findings:[12]
· You have the following permanent condition: spinal disorder.
· Your conditions of coronary artery disease, partial hearing loss and respiratory disorder are not accepted as being permanent as they have not been fully treated and stabilised.
· Your total impairment rate is 10 points.
· You do not have an impairment rating of 20 points or more.
[12] Exhibit 1, T Documents, T 10, page 84-90, Authorised Review Officer Decision and Notes.
On 19 June 2018, the Applicant sought review of the DSP refusal decision by the SSCSD.[13] On 6 September 2018, the SSCSD affirmed the decision under review.[14]
[13] Exhibit 1, T Documents, T 11, page 91, Application to the SSCSD.
[14] Exhibit 1, T Documents, T 2, pages 3-8, Decision of the SSCSD.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the
Social Security Act 1991 (the Act), the Social Security (Administration) Act1999 (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominant qualification questions before the Tribunal are:
1.Does the Applicant have a physical, intellectual or psychiatric impairment;[15]
2.Do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[16] and
3.Does the Applicant have a continuing inability to work?[17]
[15] Section 94(1)(a) of the Act.
[16] Section 94(1)(b) of the Act.
[17] Section 94(1)(c) of the Act.
The Impairment Tables are set out in the Determination, which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination sets out that the purpose and general design principles of the Impairment Tables is that the Tables:
(i)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(ii)are function based rather than diagnosis based; and
(iii)describe functional activities, abilities, symptoms and limitations; and
(iv)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could not do, not on the basis of what the person chooses to do or what others do for them.[18] The Impairment 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.[19] Self-reported symptoms in relation to the persons condition can only be taken into account where there is corroborating evidence.[20]
[18] Section 6(1) of the Determination.
[19] Section 6(2) of the Determination.
[20] Section 8(1) of the Determination.
Further, an impairment rating can only be assigned to an impairment: if the person’s condition causing the impairment; is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[21]
[21] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[22]
(a)have been fully diagnosed by an appropriately qualified medical practitioner; and
(b)have been fully treated; and
(c)have been fully stabilised; and
(d)be more likely than not, in light of available evidence, to persist for more than 2 years.
[22] Section 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered; whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or planned in the next 2 years.[23]
[23] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[24]
(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.
[24] Section 6(6) of the Determination.
Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliability be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[25]
[25] Section 6(7) of the Determination.
The Determination sets out that, in selecting the applicable Impairment Table, it is necessary to: identify the loss of function; refer to the Table related to the function affected; and then identify the correct impairment rating.[26] In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table. Where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[27] Where multiple 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.[28]
[26] Section 10 of the Determination.
[27] Sections 10(3) and (4) of the Determination.
[28] Sections 10(5) and (6) of the Determination.
An impairment rating can only be assigned in accordance with the rating points in each Impairment Table; cannot be assigned between consecutive impairment ratings; 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.[29]
[29] Section 11(1) of the Determination.
In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which requires that a person must:
(a) if they do not have a severe impairment, have actively participated in a program of support; and
(b) be unable to work for at least 15 hours per week independently of a program of support; and
(c) be unable to participate in a training activity during the next 2 years or 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.
A person’s impairment is considered to be 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.[30]
[30] Section 94(3B) of the Act.
The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[31]
[31] Sections 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that is provided outside the Relevant Period may be considered, however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[32]
[32] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services[2015] FCA 1123 at [25]-[28].
RELEVANT PERIOD
The Relevant Period in this matter commences on 13 June 2017, being the date the Applicant lodged his claim for DSP, and ending 13 weeks later on 13 September 2017. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
ISSUES
Based on the evidence before the Tribunal, it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention[33] and the Respondent considers the Applicant’s impairments include chronic lower back pain,[34] hearing loss,[35] obstructive sleep apnoea,[36] asthma,[37] heart condition[38] and Barrett’s oesophagus.[39]
[33] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 4, paragraph 26.
[34] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 6-8, paragraphs 37-40.
[35] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 8-9, paragraphs 41-45.
[36] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 9-10, paragraphs 46-48.
[37] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 10-11, paragraphs 49-51.
[38] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 11-12, paragraphs 52-54.
[39] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 13, paragraphs 55-58.
The remaining issues for the Tribunal to consider are:
1.Whether, within the relevant period, the Applicant’s impairments attracted 20 points or more under the Impairment Tables; and
2.If so, did the Applicant have a continuing inability to work?
CONSIDERATION
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
At the Hearing, the Applicant gave evidence and openly responded to questions from the Tribunal and cross-examination from the Respondent. I consider that the Applicant gave honest answers to the questions he was asked. I accept that the Applicant suffers impairments and is frustrated with the DSP application process.
The present issue for the Tribunal is whether, at or during the Relevant Period, the Applicant’s conditions can, for the purposes of section 94(1)(b) of the Act, attract 20 points or more under the Impairment Tables. A condition can only be assigned an impairment rating under the Impairment Tables if the condition that is causing the impairment is considered permanent.[40] As such, the condition must be considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period and be likely to persist for more than 2 years.[41] The Impairment 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.[42] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[43]
[40] Section 6(3) of the Determination.
[41] Section 6(4) of the Determination.
[42] Section 6(2) of the Determination.
[43] Section 8(1) of the Determination.
It is noted that the Applicant has continued to seek medical treatment for his conditions and has provided further medical reports since making his claim for DSP on 13 June 2017.
The Respondent contended that the Applicant’s asthma[44] and Barrett’s oesophagus[45] conditions were fully diagnosed, fully treated and fully stabilised at the Relevant Period and that the evidence indicates that these conditions were causing only limited or minimal functional impact and attract a 0 impairment rating under tables 1[46] and 10[47] respectively of the Impairment Tables.
[44] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 10-11, paragraphs 49-51.
[45] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 13, paragraphs 55-58.
[46] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 10-11, paragraphs 49-51.
[47] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 13, paragraphs 55-56.
At Hearing the Applicant told the Tribunal that he agreed that both his asthma and Barrett’s oesophagus conditions were under control. The Applicant said he agreed that these conditions should not be assigned any impairment points and that he did not see them as part of the claim.
Based on the medical evidence before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant at the Hearing, I am satisfied that the Applicant’s asthma and Barrett’s oesophagus conditions were fully diagnosed, fully treated and fully stabilised and caused minimal functional impact during the Relevant Period. Accordingly, I find that the Applicant’s asthma and Barrett’s oesophagus conditions are assigned 0 points under the Impairment Tables.
The Respondent contended that the Applicant’s obstructive sleep apnoea condition was fully diagnosed, but was not fully treated and fully stabilised at the Relevant Period and that consequently no impairment rating can be assigned.[48]
[48] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 9-10, paragraphs 46-48.
At Hearing the Applicant told the Tribunal that he agreed that his obstructive sleep apnoea condition could not be considered fully treated or fully stabilised as his current issue in relation to the condition is financial. The Applicant told the Tribunal that he had not undertaken all of the tests for his obstructive sleep apnoea as he did not think he could afford the CPAP machine, so there was no point.
Based on the medical evidence before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant at the Hearing, while I am satisfied that that the Applicant’s obstructive sleep apnoea condition was fully diagnosed at the Relevant Period, I am not satisfied that the condition was fully treated or fully stabilised at the Relevant Period. Consequently, the Applicant’s obstructive sleep apnoea condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign an impairment rating for the condition.
At the conclusion of the Hearing the Applicant’s chronic lower back pain, hearing loss and heart conditions remain in contention. These conditions will be considered below.
Chronic lower back pain
The Respondent accepts that the Applicant suffers from chronic lower back pain related to his degenerative disc disease and a wedge compression fracture of the L1 vertebra and that his chronic lower back pain condition as fully diagnosed, fully treated and fully stabilised during the Relevant Period.[49]
[49] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 6, paragraph 37.
The Respondent submitted that the Applicant’s chronic lower back pain condition attracts an impairment rating of no more than 10 points under Table 4 of the Impairment Tables, relying on the following:[50]
[50] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 6-8, paragraphs 38-39.
·Report by Sandra Dettmann (Southern Podiatry) dated 15 May 2017 (T24, f160-163) indicating:
"Steve suffers with asthma and chronic back pain. He has difficulty tending to his own care." (f 160)
…….
"Has difficulty reaching feet to put shoes on / the laces" (f163).
·Medical certificates by Dr Seedat dated 9 June 2017 (T25, f164) and 23 June 2017 (T27, f170) indicating the Applicant suffered from chronic back pain–disc degeneration and the symptoms were: "pain" and "chronic pain" respectively.
·An Employment Services Assessment Report dated 10 July 2017 (T29, f172-177) referring to the Applicant's spinal condition and including the following comments:
"Client reports long standing condition with pain on walking and standing. He reports that he manages sitting and can "put up with pain" (f173)
·Report by Dr Rachel Daniels (GP) dated 15 January 2018 (T37, f198) indicating the Applicant has facet joint osteoarthritis L4/L5, L5/S1 and that:
This condition is chronic and progressive. He has constant low back pain with stiffness. It restricts him in most activities of daily living – household chores/mowing/regular exercise. He requires regular analgesia and his long term prognosis is poor. He is expected to have ongoing and permanent disability.
·Job Capacity Assessment dated 14 February 2018 (T40, f204-217) containing the following comments:
CUSTOMER REPORTED:
Symptoms/Functional impacts: Constant back pain which fluctuates; when severe, he can only sit for 3-4 mins; can be out of action for 3-4 weeks; if he drops a spoon on the floor, he has to get down on his hands and knees to pick it up; cannot shower anymore (cannot stand for long periods) - has to use a bath which has a grabrail. Lives alone so he has to do all self care and household chores independently but with great care and at reduced pace; struggles significantly with changing bed linens so this gets extended for longer than he should; throws his sheets over the door instead of out on the line; takes over an hour to vacuum; will do one room and then sit and rest for 10 mins; cannot mow lawns or do his garden; can walk 50m before he has to sit again; can't sit on a hard wooden chair. Grocery shopping - goes 1x/week for up to half an hour; can carry 4-6 bags into the house but only light loads and then then has to sit down again; empties one bag and then sits down; has to lean on things to reach and pick up things below waist level; cannot stand to use the toilet - has to sit all the time; has to use the hand rails to support himself whenever he has to climb stairs; avoids stairs; can't walk distances without a walking aid; uses a shopping trolley to take his weight when he goes grocery shopping; at times uses both wheelie walker and walking stick. Can't swim, can't take kids to theme parks; can't baby sit as he can't lift and can't bend over to pick them up if they fell over. (at f205)
ASSESSOR (OCCUPATIONAL THERAPIST) OBSERVATIONS:
Customer attended the interview for 1 hour; he remained seated for the first 45 minutes and was restless and frequently changing his lean from left to right every 5 minutes or so. At 45 minutes, he stood behind his chair for 5 minutes, leaning on the backrest, and then sat down again. He sat and stood independently, pushing himself up on the arm-rests. He demonstrated genuine pain behaviours consistent with his verified condition. (at f206)
·Functional Capacity Evaluation Report by Maree Van den Berg (Occupational Therapist) dated 9 May 2018 (T42, f221-235) containing the following comments:
MEDICAL INFORMATION AND CURRENT PRESENTING SYMPTOMS
Mr Lutvey reported lower back pain and neck pain symptoms including pain that limits his ability to complete functional tasks. He described limitations as including limiting walking to 100 metres before he experiences increased back pain and shortness of breath, related to the coronary condition. Mr Lutvey reported that he often uses a walking stick when walking in the community to enable him to walk for longer distances. He avoids using stairs, and currently the Department of Housing are seeking alternative accommodation for him with a maximum of two stairs. Mr Lutvey reported limited capacity for lifting, and estimated his lifting capacity to be approximately 2 kilograms (for example light groceries). Mr Lutvey reported that his capacity for driving is limited to 20 minutes as a result of increased lower back pain.
ACTIVITIES OF DAILY LIVING
Mr Lutvey reported that with increased lower back pain over the last three months he is more limited in his ability to independently complete activities of daily living. Overall Mr Lutvey reported that he completes tasks at a slower pace due to pain, and the need for more frequent rest breaks, for example when vacuuming he needs a break after a few minutes, and his ability to carry items like groceries is reduced so that he carries smaller amounts now.
Mr Lutvey reported that other limits as a result of his back condition include impacts on personal care - a need to use the bath now with the support of a grabrail instead of using the shower as he previously did, to limit standing time. Mr Lutvey also reported that he now sits down to use the toilet rather than standing as he did previously.
·The Applicant is recorded as providing the following information to the AA T1 at the hearing held on 6 September 2018 (T2, f6).
19. Mr Lutvey said he has pain every day, which is mainly right sided low back pain. He is very cautious doing things. About every couple of months, he has an acute episode, where he can be "laid up" for three weeks with the pain. He cannot bend down to the ground, but he can touch his knees with difficulty. He is limited with walking and uses a walker with a seat if he has to walk long distances, such as when he attends a football match to watch his grandchildren. He can sit for about 10 minutes and get out of a chair, but he leans on the arms for support.
At Hearing the Applicant told the Tribunal:
· He can sit down for 10 minutes with pain medication;
· He has been taking constant endone, anti-inflammatory and other pain relief medication for 7 years;
· He has moved everything in his house to waist level so that he can access it;
· He cannot hang clothes on the line, he hangs them over chairs inside;
· He cooks his meals in the microwave;
· He cannot bend down, he had to get on his knees to pick something up off the ground and then needs something to pull himself up on;
· He needs to sit down to use the toilet;
· It is a 23 minute drive to visit his grandchildren and he needs to take pain killers before making the drive; and
· When he goes to his grandson’s football games he has to take his walker to both mobilise at the ground and to sit on.
On cross-examination, the Applicant told the Tribunal:
· He could pick up his glasses from the table when he was sitting down or standing up but would not be able to pick them up from the floor;
· He can change the sheets on his bed however it is difficult and he has to hang them over chairs to dry;
· He can walk 50 metres but then has pain;
· In relation to whether the JCA comments about him attending a 1 hour appointment, sat for 45 minutes, was restless and constantly moving were true that they were true however he had ‘medicated up’ to allow him to get through the pain; and
· He spends 85% of the day lying in bed, if he has to go out he has to medicate and depending on how long he has to be away for depends on how much medication he takes.
At Hearing the Applicant contended that he should be assigned 20 points under Table 4 of the Impairment Tables as in 2014, 2015, 2016, 2017, and 2018 he was unable to sit for more than 10 minutes without severe pain however he did what he had to survive. He said he could not sit without pain medication.
The Applicant referred the Tribunal to section 3.6.3.40 of the Social Security Guide which deals with Table 4 – Spinal Function.[51] The Applicant contended that the following passage should be taken into consideration:
When determining whether the person is able to undertake the activities listed under the descriptors, consideration must be given to whether the person suffers pain on undertaking the activities. For example, under the 20 point descriptor, if a person is able to remain seated for 10 minutes but suffers significant pain on doing so, it should be considered that the person is therefore unable to remain seated for at least 10 minutes.[52]
[51] Exhibit 5, Section 3.6.3.40 Guidelines to Table 4 – Spinal Function of the Guidelines to the Tables effective from 1 January 2012.
[52] Exhibit 5, Section 3.6.3.40 Guidelines to Table 4 – Spinal Function of the Guidelines to the Tables effective from 1 January 2012.
Table 4 of the Impairment Tables considers spinal function. A moderate functional impact requires following descriptor to be met:[53]
[53] Impairment Table 4 – Spinal Function, Part 3 of the Determination.
10
There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
A severe functional impact requires following descriptor to be met:[54]
[54] Impairment Table 4 – Spinal Function, Part 3 of the Determination.
20
There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
Based on the evidence discussed above, I am satisfied that the Applicant’s chronic lower back pain condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. As such, the functional impact of the condition can be assessed under Table 4 of the Impairment Tables.
Considering the medical evidence and evidence given at the Hearing by the Applicant outlined above, I am satisfied that the Applicant’s impairment should be assigned 10 points under Table 4 of the Impairment Tables. During the Relevant Period, I do not consider that the Applicant met the requirements to be assigned 20 points under Table 2.
While I accept that the Applicant’s chronic lower back pain, which may have worsened since making his claim for DSP, has functional impact that affects his ability to manage his activities of daily living, the medical evidence before the Tribunal does not corroborate that the Applicant could not remain seated for at least 10 minutes or that being seated for 10 minutes was causing him severe pain during the Relevant Period or that the other descriptors required to be assigned 20 points under Table 4 of the Impairment Tables were met. Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[55]
[55] Section 8(1) of the Determination.
It is noted that the Applicant provided reports from Dr Daniels his general practitioner during this review process that provide further information in relation to the functional impact of the Applicant’s chronic lower back pain.[56] These reports however, do not reference the Relevant Period and being dated 5 and 31 December 2018 do not assist in the determination of the Applicant’s current claim for DSP.
[56] Exhibit 3, Medical Questionnaire completed by Dr Daniels dated 5 December 2018; and Exhibit 4, Letter provided by Dr Daniels dated 31 December 2018.
Based on the evidence before the Tribunal I find that the Applicant’s chronic lower back pain condition was fully diagnosed, fully treated and fully stabilised at the relevant period and can be assigned a functional impairment rating of 10 points under Table 4 of the Impairment Tables.
Hearing loss
The Respondent accepts that the Applicant suffers from mild to severe sensorineural hearing loss bilaterally and that his hearing loss condition as fully diagnosed, fully treated and fully stabilised during the Relevant Period.[57]
[57] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 8, paragraph 41.
The Respondent submitted that there is insufficient corroborating medical evidence to support an impairment rating of more than 0 points under Table 11 of the Impairment Tables, relying on the following:[58]
[58] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 8-9, paragraphs 44.
·Report by Faraaz Ismail (Audiologist) dated 31 July 2017 (T32, f183) containing the following comments:
This letter serves to confirm that Mr Stephen Lutvey was assesses at our Logan Clinic on 21/9/16, and has been diagnosed with a mild to severe sensorineural hearing loss bilaterally. He was fitted with hearing aids bilaterally to help overcome his hearing difficulties. The hearing aid outcome was successful.
·Job Capacity Assessment report dated 14 February 2018 (T40, at f209) which contains the following comments:
ASSESSOR (OCCUPATIONAL THERAPIST) OBSERVATIONS: The customer demonstrated ability to converse normally within a quiet room environment during the JCA interview. He did not demonstrate signs of hearing difficulty such as leaning forward to hear better, asking to repeat questions, intense lip reading, etc.
·The report by Mr Ismail (Audiologist) dated 1 March 2018 (T41, f218) containing the following comments:
This letter serves to confirm that Mr Lutvey has Mild sloping to Severe sensorineural hearing loss bilaterally. He has been fitted with hearing aids bilaterally which have been optimized to meet his hearing requirements. These devices are suitable for use on an everyday basis and they provide good benefit to Mr Lutvey. The settings have been optimized to give Mr Lutvey the best level of clarity possible with his hearing aids.
·The Functional Capacity Evaluation report by Ms Van den Berg Occupational Therapist dated 9 May 2018 (T42, at f266) containing the following comments:
Mr Lutvey has been diagnosed with hearing loss, which he self reported has persisted for approximately 15 years. He was prescribed hearing aids in 2017, and reported a hearing review in March 2018 as he was continuing to experience difficulties hearing with the hearing aids, especially when there is background noise. Mr Lutvey reported that he has severe hearing loss at 70% in his right ear, and 60% in his left ear.
·Further report by Mr Ismail (Audiologist) dated 21 May 2018 (T43, f236) containing the following comments:
This letter serves to confirm that Mr Lutvey has Mild sloping to Severe sensorineural hearing loss bilaterally. This is permanent and is not likely to get any better. He has been fitted with hearing aids bilaterally which have been optimized to meet his hearing requirements. It is not possible to get complete clarity with the hearing aids.
An aided speech test showed that Mr Lutvey scored 83% with his hearing aids in at a presentation level of 45 dB. This is the only objective test I can perform to determine the level of speech perception with hearing aids.
At Hearing the Applicant told the Tribunal:
· When he was driving a cab, he had trouble hearing as he cannot hear if someone is sitting beside him or behind him;
· He uses the subtitles on the television;
· He can hear however does not have clarity of what is being said;
· The hearing aids he was provided through the Government system have not been helpful;
· While he can hear a conversation in a room with no background noise, he cannot understand what is being said;
· He has a telephone with a T switch however, he does not use it much as there is no similar product for a mobile phone;
· He lip reads all the time; and
· He has some balance issues and some ringing in his ears.
5
There is mild functional impact on activities involving hearing (communication) function or other functions of the ear.
(1) The person:
(a) has some difficulty hearing a conversation at an average volume in a room with background noise (e.g. other people talking quietly in the background); and
(b) may use a hearing aid, cochlear implant or other device; and
(c) has difficulty hearing conversations when using a standard telephone, particularly in a room with background noise; or
(2) The person has occasional difficulty with balance (e.g. occasional dizziness) or ringing in the ears which occasionally interferes with communication ability or routine activities due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease, or tinnitus).
Table 11 of the Impairment Tables considers hearing and other Functions of the Ear. A mild functional impact requires following descriptor to be met:[59]
[59] Impairment Table 11 – Hearing and other Functions of the Ear, Part 3 of the Determination.
A moderate functional impact requires following descriptor to be met:[60]
[60] Impairment Table 11 – Hearing and other Functions of the Ear, Part 3 of the Determination.
10
There is a moderate functional impact on activities involving hearing (communication) function or other functions of the ear even when using a hearing aid, cochlear implant or other assistive listening device; or sign language interpreting is required.
(1) The person:
(a) has difficulty hearing a conversation at average volume in a room with no background noise; and
(b) the person has to use a telephone with a T switch and has occasional difficulty with some words ; and
(c) is partially reliant on lip-reading or a recognised sign language (e.g. Auslan), that is, the person needs to lip‑read or watch a sign language interpreter in some situations where background noise is present or needs to have parts of conversations clarified or repeated using lip-reading or recognised sign language; or
(2) The person has more frequent difficulty with balance (e.g. has to sit down or hold on to a solid object) or ringing in the ears which interferes with communication ability or routine activities, due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease or tinnitus).
Based on the evidence outlined above, I am satisfied that the Applicant’s hearing loss condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. As such, the functional impact of the condition can be assessed under Table 11 of the Impairment Tables.
Considering the medical evidence and evidence given at the Hearing by the Applicant outlined above, I am satisfied that the Applicant’s impairment should be assigned 5 points under Table 11 of the Impairment Tables. During the Relevant Period, I do not consider that the Applicant met the requirements to be assigned 10 points under Table 11 as there is no corroborating evidence outside of the Applicant’s self-reporting to support that his hearing loss condition has a moderate functional impact.
Based on the evidence before the Tribunal I find that the Applicant’s hearing loss condition was fully diagnosed, fully treated and fully stabilised at the relevant period and can be assigned a functional impairment rating of 5 points under Table 11 of the Impairment Tables.
Heart condition
The evidence before the Tribunal indicates that the Applicant’s heart condition was at best only starting to be investigated in June 2017.[61] The Applicant underwent a Stress Echocardiogram on 27 June 2017[62] and a CT Coronary Angiogram and CTPA on 26 July 2017.[63] Subsequent to those tests in a report dated 1 August 2017, Dr Rajan Prashar, Cardiologist stated:[64]
He had a CT coronary angiogram which showed a calcium score of 179. There was a high grade proximal to mid LAD stenosis as well as possible high grade proximal diagonal stenosis. A high grade stenosis in the obtuse marginal could not be excluded as well. There was significant motion artefact and hence the mid RCA stenosis could not be fully quantified.
Given these findings and his history he would benefit from a coronary angiogram.
Currently he is on Aspirin 100mg, Lipitor 40 mg a day, Imdur 60mg a day, Nexium 20mg a day, Seretide and Ventolin.
[61] Exhibit 1, T Documents, T 27, page 170, Medical Certificate provided by Dr Seedat.
[62] Exhibit 1, T Documents, T 28, page 171, Cardiac Diagnostic-Stress Echocardiogram Report.
[63] Exhibit 1, T Documents, T 36, pages 189-194, Report of Dr Jaishankar.
[64] Exhibit 1, T Documents, T 33, pages 184-185, Report of Dr Prashar.
The Coronary Angiogram report dated 22 August 2017 provided the following:[65]
[65] Exhibit 1, T Documents, T 35, page 187, Procedure Report of Dr Prashar.
Conclusions
·Three vessel coronary artery disease
·Severe left anterior descending coronary artery disease
·Severe marginal artery disease
·Severe posterior descending artery disease
·Normal left ventricular systolic function
Recommendations
·Aspirin 100 mg/d indefinitely
·Aim for an LDL target level less than 1. 8 mmol/L
·Referral for coronary artery bypass graft as an outpatient
·GP follow up 4-7 days
·Patient has an appointment in CTS clinic on 23 August 2015 (sic)-information provided to patient
In a report dated 15 January 2018, Dr Daniels provided:[66]
2.Severe Coronary artery disease.
This condition is chronic. He has been advised to have either CABG/or stenting. He has regular symptoms and it affects most activities of daily living. He has dyspnoea and chest pain with exertion (NYH Grade 2).
[66] Exhibit 1, T-Documents, T 37, page 198, Assessment Services Recommendation for Disability Support Pension medical eligibility.
The Respondent contends that the Applicant’s heart condition was not fully diagnosed, treated and stabilised during the Relevant Period and cannot be assigned an impairment rating.[67]
[67] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 11, paragraph 52.
At Hearing the Applicant told the Tribunal that:
· In June 2017, he saw Dr Seedat in relation to shortness of breath and that is when the investigation into his heart condition began; and
· He does not want to have surgery as he has a fear of death.
On cross-examination, the Applicant told the Tribunal:
· He thought his shortness of breath was because he had been a smoker, he had not realised until after June 2017 that he had a heart condition;
· He did not know at the time of making his claim for DSP that he had a heart condition;
· He gave up smoking 7 or 8 years prior; and
· He agreed that at the time of making his claim for DSP he had not been treated for a heart condition, however when asked whether he agreed that his heart condition was not fully treated and fully stabilised at the time he made his claim, the Applicant disagreed on the basis that everything is relative and that he had a fear of surgery and had not seen a psychiatrist in relation to his hear prior to June 2018 as he did not know he needed to.
Dr William Wilkie, Specialist Psychiatrist, provided a report dated 28 June 2018 outlining the Applicant’s fear of surgery.[68] While I accept that the Applicant’s evidence in relation to his fear of surgery and the confirmation of this by Dr Wilkie, given the Applicant saw Dr Wilkie and the subsequent report well outside the Relevant Period, little weight can be put on the report.
[68] Exhibit 1, T Documents, T 44, page 237, Report of Dr Wilkie.
Based on the medical evidence before the Tribunal, and the evidence provided at Hearing by the Applicant, I find that the Applicant’s heart condition was not fully diagnosed, fully treated or fully stabilised during the Relevant Period as he only became aware of the condition after making his claim for DSP and engaging in treatment and investigation of the condition at the Relevant Period.
As I have found that the Applicant’s heart condition was not fully treated and fully stabilised during the Relevant Period, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
Continuing Inability to Work
As I have found that the Applicant does not have a total of 20 impairment points either on one table, or cumulative across multiple tables, there is no need to consider whether the applicant met the requirements of section 94(1)(c) of the Act.
CONCLUSION
I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
I find that the Applicant’s chronic lower back pain condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. Based on the evidence before the Tribunal, I find that the condition caused the Applicant a moderate functional impairment and can be assigned 10 points under Table 4 of the Impairment Tables.
I find that the Applicant’s hearing loss condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. Based on the evidence before the Tribunal, I find that the condition caused the Applicant a mild functional impairment and can be assigned 5 points under Table 11 of the Impairment Tables.
I find that the Applicant’s heart condition was not fully diagnosed, fully treated or fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
I find that the Applicant’s obstructive sleep apnoea condition was not fully diagnosed, fully treated or fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
I find that the Applicant’s asthma and Barrett’s oesophagus conditions were fully diagnosed, however were not fully treated or fully stabilised during the Relevant Period and therefore cannot be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
I find that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.
Accordingly, the decision under review is affirmed.
I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
.................................[SGD].................................
Associate
Dated: 7 June 2019
Date of hearing: 8 May 2019 Applicant: In person Advocate for the Respondent: Mr Rick McQuinlan Solicitors for the Respondent: Department of Human Services
Key Legal Topics
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Administrative Law
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Appeal
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Judicial Review
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Procedural Fairness
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