MacGregor and Secretary, Department of Social Services (Social services second review) - [2020] AATA 2122

MacGregor and Secretary, Department of Social Services (Social services second review) [2020] AATA 2122 (7 July 2020)
Division:GENERAL DIVISION
File Number(s): 2019/4260
Re:Alan MacGregor
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Brigadier A G Warner, Member
Date:7 July 2020
Place:Perth

The Tribunal affirms the decision under review to reject the Applicant’s claim for Disability Support Pension made on 8 March 2019.
.........................[sgd]...............................................
Brigadier A G Warner, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether Applicant’s impairments were fully diagnosed, fully treated and fully stabilised at the qualification period – qualification period – conduct of Job Capacity Assessments – whether Applicant’s impairments attract 20 points under the Impairment Tables – whether Applicant has a continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 94(1)(a), 94(1)(b), 94(1)(c), 94(2)
Social Security (Administration) Act 1999 (Cth) – Schedule 2
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for DisabilitySupport Pension) Determination 2011 – Table 2, Table 4
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Wilson and Secretary, Department of Employment and Workplace Relations [2006] AATA 638
SECONDARY MATERIALS
Sutherland, P & Anforth, A, Social Security and Family Assistance Law. 3^rd ed, Sydney, 2013, The Federation Press
Guide to Social Security Law, Department of Social Services, version 1.239
REASONS FOR DECISION
Brigadier A G Warner, Member
7 July 2020
INTRODUCTION

The decision under review is a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1), made on 20 June 2019, that affirmed the decision of an authorised review officer (ARO) of the Department of Human Services

(the Department) to reject Mr MacGregor’s claim for disability support pension (DSP) lodged on 10 September 2018.
Mr MacGregor attended the hearing, was self-represented and gave evidence on affirmation.
Ms L Hinwood represented the Respondent and participated by telephone conference.
BACKGROUND
Mr MacGregor was born in 1962. He injured his right shoulder in 2009 whilst working as a geophysics field assistant and subsequently had on operation on his shoulder. In 2010,

Mr MacGregor was involved in a motor vehicle accident which was followed by further surgeries. He later engaged in less manual work and worked in a motel until August 2018 (T2/9). Mr MacGregor told the Tribunal that he ceased that employment because of a dispute over wages.
On 10 September 2018, Mr MacGregor lodged a claim for DSP (T35/219-250).

Mr MacGregor listed his medical conditions as: “Struggle to lift both arms above shoulder height. Stiff, sore + painful neck. Stiff, sore + painful thoracic spine. Stiff, sore + painful lumbar pain in hips. Torn hamstring. Sore right elbow” (T35/245).
On 30 November 2018, Mr MacGregor underwent a Job Capacity Assessment (JCA) and a report was provided on 5 December 2018. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: MacGregor and Secretary, Department of Social Services (Social services second review) [2020] AATA 2122
Case: [2020] AATA 2122
Decision Date: 7 July 2020

CaseChat Overview and Summary

This matter concerned an appeal by Mr MacGregor against the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT) which affirmed the Department of Social Services' rejection of his claim for a Disability Support Pension (DSP). Mr MacGregor lodged his claim on 10 September 2018, listing several medical conditions primarily related to his shoulder, neck, spine, and hip, stemming from a workplace injury in 2009 and a subsequent motor vehicle accident. A Job Capacity Assessment conducted on 30 November 2018 assigned him five impairment points for his upper limb condition and ten points for his spinal condition, concluding he had a work capacity of 15-22 hours per week with intervention.

The primary legal issues before the Tribunal were whether Mr MacGregor’s impairments were fully diagnosed, fully treated, and fully stabilised (FDTS) during the qualification period, and whether these impairments attracted a total rating of 20 or more points under the Impairment Tables. Additionally, the Tribunal had to consider whether Mr MacGregor had a continuing inability to work (CITW). The qualification period for assessing his claim was from 10 September 2018 to 10 December 2018.

The Tribunal reasoned that for a condition to be considered permanent for DSP purposes, it must be fully diagnosed by a qualified medical practitioner, fully treated and stabilised, and likely to last more than two years. Applying this to Mr MacGregor's circumstances, the Tribunal found that while his upper limb and spinal conditions were considered FDTS and attracted ratings of five and ten points respectively, his hip pain was not fully treated and stabilised. Consequently, his total impairment rating did not reach the required threshold of 20 points. Furthermore, the Tribunal found that Mr MacGregor did not satisfy the CITW criteria.

Based on these findings, the Tribunal concluded that Mr MacGregor was not qualified for a DSP during the relevant qualification period. Therefore, the decision to reject his claim was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Ms L Hinwood represented the Respondent and participated by telephone conference.BACKGROUND Mr MacGregor was born in 1962. He injured his right shoulder in 2009 whilst working as a geophysics field assistant and subsequently had on operation on his shoulder. In 2010, Mr MacGregor was involved in a motor vehicle accident which was followed by further surgeries. He later engaged in less manual work and worked in a motel until August 2018 (T2/9). Mr MacGregor told the Tribunal that he ceased that employment because of a dispute over wages. On 10 September 2018, Mr MacGregor lodged a claim for DSP (T35/219-250). Mr MacGregor listed his medical conditions as: “Struggle to lift both arms above shoulder height. Stiff, sore + painful neck. Stiff, sore + painful thoracic spine. Stiff, sore + painful lumbar pain in hips. Torn hamstring. Sore right elbow” (T35/245). On 30 November 2018, Mr MacGregor underwent a Job Capacity Assessment (JCA) and a report was provided on 5 December 2018. The report recommended a rating of five impairment points under Table 2 – Upper Arm Function for Mr MacGregor’s shoulder and upper arm disorder (T38/258) and 10 impairment points under Table 4 – Spinal Function for his spinal disorder (T38/259). The assessor also found that Mr MacGregor had a capacity for work within two years with intervention of 15-22 hours per week (T38/261). On 5 December 2018, the Department rejected Mr MacGregor’s claim for DSP on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables (T40/266). Mr MacGregor sought review of the 5 December 2018 decision to reject his claim for DSP, and on 8 March 2019, ARO of the Department affirmed the decision to reject Mr MacGregor’s claim for DSP (T44/281-286). The ARO found that:(i)Mr MacGregor’s upper limb condition was fully diagnosed, treated and stabilised (FDTS), and an impairment rating of five points was assigned under Table 2 – Upper Limb Function;(ii)Mr MacGregor’s spinal condition was FDTS, and an impairment rating of 10 points was assigned under Table 4 – Spinal Function; and(iii)Mr MacGregor did not have a total impairment rating of 20 points or more. Mr MacGregor applied for first review by the AAT1, and on 20 June 2019 the AAT1 affirmed the decision to reject his claim for DSP (T2/5-11). The AAT1 decision is generally consistent with the decision of the ARO dated 8 March 2019, with the AAT1 finding that:(i)Mr MacGregor’s upper limb condition was FDTS, and an impairment rating of 5 points was assigned under Table 2 – Upper Limb Function;(ii)Mr MacGregor’s spinal condition was FDTS, and an impairment rating of 10 points was assigned under Table 4 – Spinal Function;(iii)Mr MacGregor’s hip pain was not fully treated and stabilised, and no impairment rating could be assigned under the Impairment Tables; and(iv)Mr MacGregor did not have a total impairment rating of 20 points or more. On 17 July 2019, Mr MacGregor applied for second review by this Tribunal (T1, pages 1-4). In his application, Mr MacGregor claimed that the decision under review was wrong because: “I have not been medically reviewed by a doctor. Information being used is old. Questions have not been answered that I have asked for clarification” (T1/4). ISSUE

Evidence

Evidence Before The Court

The Respondent relevantly cites a number of authorities (Exhibit R1, paras 19-21) which establish that medical reports that have come into being after the qualification period will only be relevant to the extent that they refer to the claimant’s condition during the qualification period, ant that a decision-maker such as this Tribunal can only consider an applicant’s qualification for DSP within the qualification period. If the applicant’s circumstances have subsequently changed it may be appropriate for him or her to lodge a fresh claim for DSP. Mr MacGregor’s oral evidence Mr MacGregor told the Tribunal that as a layman, he found Centrelink unhelpful and the DSP application process difficult to navigate. He described the CITW requirement for eligibility for DSP as “hidden” criteria (see also A1, p4). The crux of Mr MacGregor’s brief submissions before the Tribunal was that the assessor who conducted the JCA on 30 November 2018 (paragraph [10] above refers) was not a medical practitioner and therefore, in Mr MacGregor’s opinion, was not qualified to conduct the JCA.Job capacity assessments JCAs are generally conducted by officers of the Department who may or may not possess medical training or qualifications, and while some previously constituted Tribunals have expressed reservations about JCAs being conducted by assessors without medical qualifications, others have endorsed the practice. Since 1 January 2008 there has been no restriction limiting impairment assessments to medical officers (Sutherland, P & Anforth, A, Social Security and Family Assistance Law, 3rd ed, Sydney, The Federation Press, 2013, p 254). The Tribunal discussed the issue in Wilson and Secretary, Department of Employment and Workplace Relations [2006] AATA 638 where the Tribunal said at:[35] The Respondent referred to the case of Re Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902 in which the Tribunal stated that:…it does not matter whether the work capacity assessor does or does not hold any relevant medical qualifications as the work capacity assessor performs his or her task on the basis of accepting the conclusions and findings of other medical personnel and then determines whether or not the person been (sic) assessed does or does not have the requisite work capacity…However, I note that in that case the Tribunal noted: …the applicant did not adduce any evidence to provide a counterweight to the work capacity evidence relied on by the respondent… The Tribunal notes that the Introduction to Table 2 of the Impairment Tables provides that examples of corroborating evidence for the purposes of that table include, but are not limited to “a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact” (T3/47). Similarly, the Introduction to Table 4 provides for a report from a “physiotherapist or other rehabilitation practitioner” (T3/52).

Decision

Reasons for decision

For the reasons detailed above, the Tribunal finds that Mr MacGregor’s conditions do not attract an impairment rating of 20 points or more under the Impairment Tables and that he does not have a CITW. Therefore, Mr MacGregor was not qualified for DSP as at the qualification period.DECISION It follows from all of the above that the decision to reject Mr MacGregor’s claim for DSP was the correct and preferable decision, and consequently the Tribunal affirms the decision under review, that being the decision of the Social Services & Child Support Division of the AAT dated 20 June 2019.

Ratio Decidendi

Legal Principle Established

The legislation applicable to this matter is contained in:a) the Act;b) the Social Security (Administration) Act 1999 (the Administration Act);c) the Impairment Tables; andd) the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination). The relevant policy is contained in the Guide to Social Security (the Guide). To ensure consistency in decision making, the Tribunal relevant policy should follow the relevant policy in the Guide unless there are cogent reasons for departing from its application (Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634). The relevant statutory and policy provisions are laid out comprehensively in the Secretary’s Statement of Issues, Facts and Contentions dated 17 December 2019 (R1, paras 23-31). The qualification criteria for DSP can be summarised as follows:a)Section 94 of the Act sets out the first requirement for qualification for DSP, and that is that a person had an impairment at the time they lodged their claim. The Respondent accepts (Exhibit R1, paras 32, 37), and the Tribunal is satisfied, that Mr MacGregor meets this requirement as the evidence is that he had medical conditions when he lodged his DSP claim.b)The second requirement for DSP is also in s 94 of the Act and provides that a person’s impairment must rate 20 or more points against the Impairment Tables at the relevant time. To apply the Impairment Tables, the condition or impairment must be considered permanent. In the Impairment Tables, the word ‘permanent’ does not have its usual meaning. For DSP purposes, for a condition to be permanent it must have been fully diagnosed by an appropriately qualified medical practitioner, have been fully treated and stabilised, and is more likely than not to last for more than two years (s 6(4) of the Impairment Tables).c)There is also a requirement that an applicant for DSP must have a CITW. For DSP eligibility, both the minimum qualification threshold of 20 points and the CITW criteria must be met and they are of equal importance.EVIDENCE The Tribunal had before it the following evidence:a)The ‘T-Documents’ (T1-T49, pp 1-344);b)The Applicant’s Statement of Facts, Issues and Contentions dated 10 June 2019(Exhibit A1);c)Centrelink Mutual Obligation letter dated 15 October 2919 (Exhibit A2);d)A bundle of documents received 14 October 2019, including a medical note from Dr Andrew Taylor, letter from Dr Alison Kearsley, and booklet ‘STEPS Self-Training Educative Pain Sessions’ (Exhibit A3);e)Medical Reporting Spreadsheet for June 2010, received 13 October 2019 (Exhibit A4);f)The Secretary’s Statement of Issues, Facts and Contentions dated 17 December 2019 (Exhibit R1); andg)the oral evidence of the Applicant.CONSIDERATIONQualification Period Mr MacGregor’s claim for DSP must be assessed on his medical conditions as at the date of claim or within 13 weeks of that time, and that period is referred to as the qualification period. In the present case that means the qualification period is 10 September 2018 until 10 December 2018.