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

1. 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.

2. Mr MacGregor attended the hearing, was self-represented and gave evidence on affirmation.

3. Ms L Hinwood represented the Respondent and participated by telephone conference.

   BACKGROUND

4. 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.

5. 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).

6. 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).

7. 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).

8. 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.

9. 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.

10. 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

11. The Tribunal must decide whether Mr MacGregor was qualified for DSP on the day he lodged his claim, 10 September 2018, or within 13 weeks thereafter. This requires consideration of whether the requirements set out in s 94 of the Social Security Act 1991 (Cth) (the Act) are met; in particular, whether Mr MacGregor has:

    a)any physical, intellectual or psychiatric conditions;

    b)

    condition(s) that are FDTS that attract an impairment rating of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

    
    

    (the Impairment Tables); and

    c)a continuing inability to work (CITW).

    LEGISLATION

12. 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; and

    d)    the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).

13. 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).

14. 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

15. 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); and

    g)the oral evidence of the Applicant.

    CONSIDERATION

    Qualification Period

16. 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.

17. 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

18. 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).

19. 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

20. 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, 3^rd ed, Sydney, The Federation Press, 2013,

    
    

    p 254).

21. 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…

22. 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).

23. Mr MacGregor adduced no evidence to support a conclusion that the JCA conducted on

    
    

    30 November 2018 was flawed as a consequence of the particular discipline or qualifications of the JCA assessor. Before the Tribunal Mr MacGregor accepted that the JCA had been reviewed by a contributing assessor, in this case, a registered occupational therapist, who agreed with the findings of the JCA assessor (T38/255 and 262). As JCA assessors have the training, knowledge and experience in identifying interventions, barriers to employment, available programs and suitable occupations to determine an applicant’s work capacity, the Tribunal finds the JCA Report dated 30 November 2018 (T38) to be valid evidence in the present matter.

    Assessment of impairments under the Impairment Tables

    Upper limb condition

24. The medical evidence supports the Respondent’s acceptance of Mr MacGregor’s upper limb condition being FDTS as at the qualification period, and accordingly any functional impairment can be rated under the Impairment Tables. The Respondent contends that this condition caused a mild impairment (5 points) under Table 2 – Upper Limb Function

    
    

    (Exhibit R1, para 33). This review is de novo, and the Tribunal turns to its consideration of the impairment resulting from this condition and has regard to the following:

    a)

    In a statement dated 25 October 2017 prepared for Dr Desmond Williams, orthopaedic surgeon, Mr MacGregor recorded that he could handle cooking;

    
    

    he engaged in outdoor/garden activities but experienced pain and discomfort after completing mowing and weeding; and that an hour and 30 minutes was enough time in the car, and that if driving he started to experience pain from his shoulder and right elbow symptoms after that time (T28/195).

    b)

    In a medicolegal assessment dated 8 January 2017, Dr Williams stated that

    
    

    Mr MacGregor’s upper limb condition restricts his ability “in terms of upper limb demands of heavy lifting, repetitive activities, above shoulder activities including maintaining awkward and prolonged upper limb postures” (T29/204). Dr Williams also wrote: “He is limited with regard to return to heavy physical work activities but can cope with work activities at desk or bench level, and therefore areas of Office Management duties are appropriate work areas” (T29/206).

    c)

    In a medical certificate dated1 4 August 2018, Dr Andrew Taylor, general practitioner, noted in relation to Mr MacGregor’s shoulders, that he “Can’t do repetitive bending, moderate or heavy lifting, work requiring lifting above shoulder height” (T33/216). In a further medical certificate dated 3 January 2019, Dr Taylor stated that a return to work or study for Mr MacGregor

    
    “Must be light physical work so as not to aggravate the problems”

    (T42/278).

    d)The AAT1 decision dated 20 June 2019 (more than five months after the end of the qualification period) records that Mr MacGregor told that Tribunal that he:

    ·   Takes care of most of the domestic duties as his wife has a part-time job;

    ·   Can manage the ironing but struggles with activities such as sweeping, vacuuming and hanging up the washing;

    ·   Drives a car and can manage a two-hour trip;

    ·   Does shopping and can carry light loads such as two litres of milk, but uses a trolley for support; and

    ·   Manages fine activities with his hands but gets very sore after about half an hour on the computer (T2/9-10).

    e)The AAT1 noted that “Mr MacGregor attended the hearing carrying a rucksack of documents over his left shoulder. This caused no obvious discomfort” (T2/10).

    f)In a medical report dated 22 September 2019, Dr Alison Kearsley, consultant - pain management, stated that Mr MacGregor “tries to keep busy doing the gardening for example” and that “He does still manage the ironing, washing dishes and hanging clothes” (Exhibit R1, Annex A).

    g)

    In the report dated 5 December 2018, the JCA recorded that Mr MacGregor described the impacts of this condition as follows: “restricted range of movement in his bilateral shoulders (observable at assessment both restricted to elevation to just above shoulder height), unable to sustain overhead activities, reduced bilateral upper limb strength, lifting lighter weights only (some difficulties with lifting a 2 litre bottle of liquid; maximum lift), difficulties pegging clothes on the washing line, episodic difficulties with driving, and occasional difficulties with manipulating smaller items/twisting lids and tops/buttons/zippers etc. He described generally well managed fine motor skills with occasional limitations only.” The JCA determined that

    
    

    Mr MacGregor’s shoulder and upper arm disorder caused a mild to moderate functional impact on activities using his hands and arms and recommended an impairment rating of 5 points (T38/258-259).

25. The evidence is that Mr MacGregor is able to manage most daily activities, but there is functional impairment arising from his upper limb condition in relation to moderate or heavy lifting and sustaining activities at or above shoulder height. Although Mr MacGregor told the Tribunal that on some days he might struggle tying his shoelaces or unscrewing a lid on a soft-drink bottle, there is no corroborative evidence that he has difficulty with most of the six descriptors for a moderate functional impact under Table 2 (see T3/48,

    
    

    10 points). The Tribunal therefore finds that the upper limb condition cannot be assigned a rating higher than mild functional impairment, and assigns this condition five points.

    Spinal condition

26. The AAT1 decision records Mr MacGregor’s oral evidence as including in part the following:

    pain affecting most of his spine has gradually got worse. He has not been referred to an orthopaedic surgeon or neurosurgeon about the problem but has been treated with physiotherapy, chiropractic, massage and acupuncture. For pain relief he takes Nurofen.
    …
    he has been referred to the pain clinic at Fiona Stanley Hospital (FSH) and is waiting for an appointment. He knows that will be several months away (T210).

27. Despite that evidence, the Tribunal is satisfied that the medical evidence supports the Respondent’s acceptance of Mr MacGregor’s spinal condition as FDTS as at the qualification period, and accordingly any functional impairment can be rated under the Impairment Tables. The Respondent contends that this condition caused a moderate impairment (10 points) under Table 4 - Spinal Function (Exhibit R1, para 38). The Tribunal turns to its consideration of the impairment resulting from this condition and has regard to the following:

    a)The AAT1 decision records that Mr MacGregor told that tribunal that:

    ·he drives a car and can manage a two-hour trip,

    ·he does some shopping and can carry light loads, such as two litres of milk, but uses a trolley for support;

    ·bending to pick things off the floor is painful, but he can do it;

    ·he can walk for about 250 metres and sitting is fine for an hour or so; and

    ·his neck is quite stiff, and he cannot fully rotate to look over his shoulders (T2/10).

    b)

    In her report dated 22 September 2019 (paragraph [24(f)] above refers),

    
    

    Dr Kearsley noted that Mr MacGregor “does still manage the ironing, washing clothes and hanging clothes” (Exhibit R1, Annex A).

    c)During the present proceedings, Mr MacGregor remained seated without apparent discomfort for a period well in excess of 15 minutes before standing, moving and stretching. He got up from the chair without assistance.

    d)

    In the report dated 30 November 2018, the JCA recorded that: “The client is able to sit in a vehicle for 30 minutes and:
    …Is unable to reliably bend forward to pick up a light object placed at knee height. GP Dr Taylor detailed: 14/08/18) pain bending or lifting heavy weights; can’t do repetitive bending. Orthopaedic Dr Williams detailed: (08/01/18) neck pain and thoracolumbar pain. Client reports impacts including restricted range of movement (e.g. observable at assessment: loss of forward flexion at lower back and only able to just bend to knee height; loss at neck, has movement, however, has to turn entire trunk for blind spots), sitting 1 to 2 hours, walking 200 to 300m (requires trolley for support around a supermarket), in a vehicle 1.5 to 2 hours, difficulties with stairs, kneeling, squatting and transferring after prolonged sitting, and difficulties with some activities of daily living.”

    
    

    The JCA determined that Mr MacGregor’s spinal disorder caused a moderate functional impact on activities involving spinal function and recommended an impairment rating of 10 points (T38/259).

1. The Tribunal is satisfied that the evidence related to Mr MacGregor’s spinal condition allows that there is moderate functional impact on activities involving spinal function because he is able to sit in or drive a car for at least 30 minutes and is unable to sustain overhead activities (see T3/53, 10 points). Before the Tribunal, Mr MacGregor was unable to establish his inability to perform the activities detailed in the four descriptors for a severe functional impact under Table 4 (T3/53, 20 points), however he submitted that his ability to bend forward to pick up a light object from a desk or table might depend on the object’s weight. Having regard to the totality of the evidence relevant to Mr MacGregor’s spinal condition, the Tribunal assigns an impairment rating of 10 points.

   Other condition – hip pain

2. The AAT1 decision records that Mr MacGregor told that tribunal that “In recent months,
   he has been getting some hip pain. An X-ray showed arthritis. He is not sure what will be done about it” (T2/11). The AAT1 determined that this condition was not fully treated or fully stabilised and that it did not merit an impairment rating. Noting that Mr MacGregor’s mention of his hip pain was some nine months after he lodged his DSP claim, that this condition was not considered in the JCA conducted on 30 November 2018, and in the absence of any relevant corroborative evidence, the Tribunal takes this condition no further.

   Overall impairment rating

3. The Tribunal finds that at the qualification period, Mr MacGregor’s medical conditions attract 10 impairment points under Table 4 – Spinal Function and five points under Table 2 –

   
   

   Upper Limb Function. He therefore does not satisfy s 94(1)(b) of the Act.

   Continuing inability to work

4. As Mr MacGregor does not satisfy s 94(1)(b) of the Act, it is not strictly necessary for the Tribunal to consider whether he has a continuing inability to work pursuant to s 94(1)(c) of the Act.

5. For completeness, the Respondent contends that Mr MacGregor did not satisfy s 94(2)

   
   

   of the Act and did not have a CITW during the qualification period (Exhibit R1, para 50).

   
   

   The Respondent’s contention relies on detailed submissions at paragraphs [51]-[66]

   
   

   of Exhibit R1, which the Tribunal accepts. The Tribunal particularly notes the evidence that

   
   

   Mr MacGregor had not commenced a POS at the qualification period, and the JCA determination dated 5 December 2018 that Mr MacGregor had a future work capacity within two years with intervention of 15-22 hours per week in light semi-skilled work (T38/261).

   CONCLUSION

6. 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

7. 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.

   
   
   

35.     I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner, Member

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

Associate

Dated: 7 July 2020

Date of hearing:	10 June 2020
Applicant:	Self -represented
Counsel for the Respondent:	Ms Laura Hinwood
Solicitors for the Respondent:	Services Australia