MARK BOWRING and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2013] AATA 262
[2013] AATA 262
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/2541
Re
MARK BOWRING
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Mr P Wulf, Member
Date 29 April 2013 Place Brisbane The Tribunal affirms the decision under review.
[Sgd]
Mr P Wulf, Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Cancellation – Continued entitlement to pension – Permanent Impairment – Impairment rating less than 20 points – No continuing inability to work – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 94, sch 1B
Social Security (Administration) Act 1999 (Cth) s 80
CASES
Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635
Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606
Secretary, Department of Social Security v Pusnjak [1999] FCA 994REASONS FOR DECISION
Mr P Wulf, Member
INTRODUCTION
Mr Mark Bowring (“the applicant”)[1] seeks review of a decision made by Centrelink on 16 January 2012[2] to cancel his disability support pension (“DSP”) under s 80 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).
[1] Exhibit 1, T-Document 1/1-2.
[2] Exhibit 1, T-Document 16/77-78.
On 12 April 2012, the decision was affirmed by an authorised review officer.[3] The applicant appealed the decision to the Social Security Appeals Tribunal (“SSAT”), who affirmed the decision on 31 May 2012.[4] The applicant has applied to this Tribunal for review of the decision of the SSAT.
[3] Exhibit 1, T-Document 21/92-101.
[4] Exhibit 1, T-Document 2/3-8.
For the reasons that follow, the Tribunal finds that the applicant has a permanent condition; however, the condition does not incur 20 impairment points and, moreover, the applicant has a continuing ability to work more than 15 hours a week. Therefore, the decision is affirmed.
ISSUES FOR THE TRIBUNAL
The issues for the Tribunal to determine are:
(a)Whether, at 16 January 2012, when the applicant’s DSP was cancelled, did he have a condition/s that was fully investigated, treated and stabilised; and, if so
(b)Did, the applicant, as a result of his condition/s attract an impairment rating of at least 20 points under the Impairment Tables (“the Impairment Tables”) contained in Schedule 1B of the Social Security Act 1991 (Cth) (“the Act”);[5] and, if so
(c)Did the applicant have a “continuing inability to work” because of his impairment within the meaning of s 94 of the Act?
[5] Sections 26(3) and (4) of the Act provide that the impairment tables to be used in assessing the application are those in force at the time when the applicant was given an assessment notice under ss 63(2) or (4) of the Administration Act. The applicant was given an assessment notice on 12 October 2011.
LEGISLATION
The relevant qualification provisions for DSP are contained within s 94 of the Act, which states:
(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;
…
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and
(a) in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b) the availability to the person of work in the person’s locally accessible labour market.
The power to cancel DSP is contained within s 80 of the Administration Act, which provides:
(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a) who is not, or was not, qualified for the payment; or
(b) to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.
(2) Subsection (1) does not authorise the Secretary to make a determination if:
(a) the payment of a social security payment to a person has been cancelled or suspended by the operation of another provision of the social security law; and
(b) the determination would take effect at or after the time at which the cancellation or suspension referred to in paragraph (a) would take effect.
(3) However, subsection (1) authorises the Secretary to make a determination that:
(a) cancels a social security payment that has been suspended under subsection 81(3); and
(b) takes effect at or after the time the suspension took effect. …
IMPAIRMENT TABLES
The Impairment Tables, under which impairment point ratings appear, are contained in Schedule 1B of the Act. The introduction to those Tables relevantly states:
(4) A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
(5) The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
(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. …
THE EVIDENCE
The evidence before the Tribunal comprised:
(1)Exhibit 1: the “T Documents” (T1-23: pp. 1-114) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
(2)Exhibit 2: Medical report prepared by Dr Todd Stariha for Dr John Albietz dated 12 July 2012;
(3)Exhibit 3: Medical report prepared by Dr John Albietz dated 25 July 2012;
(4)Exhibit 4: respondent’s Statement of Facts and Contentions dated 19 December 2012; and
(5)the oral evidence of the applicant.
Post the hearing, additional material was provided, including:
(6)Exhibit 5: Applicant’s bundle of medical documents from Dr Stephen Tracey and Dr Bill Zhao; and
(7)Exhibit 6: Respondent’s additional submissions dated 12 February 2013.
ANALYSIS
Did the applicant have a disability that is fully investigated, treated and stabilised that would allow him to qualify to receive DSP on 12 January 2012?
The applicant was involved in an accident when he was a young man and, as a result, his right leg is 11mm shorter than his left leg. He also suffers from lumbar spine disc degeneration with disc protrusion and distortion which appears to be as a result of moving his caravan numerous years ago. It would appear that the injury has got worse and the applicant has been in considerable pain, so much so that at times he cannot get out of bed, or can do very little as a result of the pain.
When making an assessment as to the applicant’s condition, the Tribunal must refer to paras 4 to 6 of the Introduction to the Impairment Tables (“the Introduction”), which set out a number of mandatory requirements that must be considered and satisfied before any impairment rating can be assigned to a condition (see Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606 at [11] per Finn J). Due to the operation of the Introduction, a physical, intellectual or psychiatric impairment can only be assigned impairment points if the medical condition is permanent, that is, a fully documented, diagnosed condition which has been investigated, treated and stabilised and if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.
In order to assess whether a condition is fully treated and stabilised, para 6 of the Introduction provides that the Tribunal must consider:
(1)“what treatment or rehabilitation has occurred”;
(2)“whether treatment is still continuing or is planned in the near future”; and
(3)“whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years”.
In this context, reasonable treatment is taken to be:
(1)“treatment that is feasible and accessible ie, available locally at a reasonable cost”; and
(2)“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”.
The applicant contends that his injury is fully investigated in that he has been treated by Dr Tracey as well as Dr Zhao over an extended period. The applicant has been treated with physiotherapy, chiropractic treatment and acupuncture to name a few. For pain relief, he does not normally take medication but uses alternative medication and self-management. It would appear from the evidence that the injury has not recovered in any way and, therefore, to a lay person, it could be considered as permanent as the applicant is unlikely to recover.
In contrast to what the respondent stated at para 3.3 of its Statement of Facts, Issues and Contentions,[6] the respondent submitted that the injury is not fully investigated as the applicant had not seen a specialist at the time and therefore there may be possible options that would potentially improve his condition. With respect to this, the evidence of Dr John Albietz,[7] a spinal surgeon, indicates that the applicant saw him in July 2012. While this report is outside the relevant period, it is important insofar as it states that the doctor would not recommend any further management other than self-directed regular gentle exercise. The respondent suggested that this report demonstrates that the applicant had not fully investigated his back problem and therefore his injury did not meet the requirements of the Impairment Tables. Notwithstanding that this is outside the relevant period, the Tribunal is of the opinion that it suggests that there was nothing further that the applicant could do to remedy his injury and the report indicates that the condition is permanent.
[6] Exhibit 4.
[7] Exhibit 3.
The Tribunal is of the opinion, particularly given that the respondent appeared to initially concede that the applicant has a physical impairment, that the applicant’s condition is one that is permanent, in that it is a fully documented diagnosed condition which has been investigated, treated and stabilised and is more likely than not that it will persist for the foreseeable future. The condition is not something that will improve, particularly given the medical report of Dr Albietz and, therefore, it complies with the requirements stated above as to a disability.
Section 94(1)(b) of the Act: Impairment Rating
The Impairment Tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. In using the tables, ratings can only be assigned for conditions where there is an associated current loss of function or where prolonged loss of function would be expected in most work situations.[8]
[8] See para 3 of the Introduction.
The Tribunal must utilise Table 21 of the Impairment Tables which are those relevant to intermittent conditions, which is what the applicant appears to suffer from. It is clear from the evidence that the applicant is restricted in his function and, from what can be adduced, cannot do any manual labour. However, the question is whether he has an impairment that attracts 20 impairment points.
The job capacity assessment undertaken by Ms Anne-Marie Botha, a registered nurse, on 13 January 2013,[9] suggests that the applicant has intermittent lower back pain that has flared up or become exacerbated three times during 2011 and which required bed rest.
[9] Exhibit 1, T-Document 15/72-76.
The applicant provided additional evidence after the hearing, including information from Dr Stephen Tracey and Dr Bill Zhao.[10] With respect to Dr Tracey, his evidence is that Mr Bowring attended his clinic on five occasions between February 2011 and January 2012, although there was no suggestion as to what the attendance was for nor was there information as to the extent of treatment. With respect to Dr Zhao, the applicant’s history indicates he attended his surgery only four times during the one year period immediately before the applicant’s DSP was cancelled and it would appear that only two of these occasions was specifically related to pain management, when he was given Tramahexal and Tramadol respectively.[11] None of this evidence was of much assistance.
[10] Exhibit 5.
[11] Exhibit 5, attendances dated 8 February 2011 and 15 November 2011.
During the hearing, there was open discussion as to the applicant’s condition. The applicant indicated that his condition was a level three with respect to the severity criteria and that the duration was prolonged.[12] When undertaking an analysis this would suggest that the applicant had an “F” condition.[13] The applicant indicated that at times he would need bed rest for a week or up to a month. In making the assessment, the job capacity assessor, Ms Botha, granted the applicant 93 days, although the evidence would suggest, particularly given the applicant’s comments, that this was an overestimate.
[12] See Tables 21.1 and 21.2 of the Impairment Tables.
[13] See Table 21.3 of the Impairment Tables.
The Tribunal believes that the applicant is likely affected by his condition for more than 40 days but less than 100 days a year and, therefore, he would have an impairment rating of 10 points which does not satisfy the requirements to be paid DSP.
Section 94(1)(c) of the Act: Continuing Inability to Work
Under s 94(1)(c)(i) of the Act, when read with s 94(2), a person has a continuing inability to work because of an impairment if the Secretary (or the Tribunal, upon review) is satisfied that the impairment was of itself, sufficient to prevent a person from doing any work within the next two years and the impairment was of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next two years. Under s 94(5), and in the applicant’s case, work means work that is for at least 15 hours per week in Australia at award wages or above.
In Secretary, Department of Social Security v Pusnjak [1999] FCA 994, Drummond J considered the operation of s 94(2) of the Act. At [31] and [32] of his decision, the learned Judge said:
[31] If, as I think it should be, s 94(2)(a) directs the Secretary to confine his determination to whether the impairment of itself is sufficient to prevent the person from doing any work that may be available anywhere in Australia, being work for which that particular person is already fitted without first requiring some form of occupational retraining, s 94(2)(b) then, logically enough, moves on to identifying what impact the availability of occupational retraining is to have on the eligibility of the particular applicant for a disability support pension who surmounts the first hurdle of s 94(2)(a).
[32] Effect will be given to the intention of legislation if the Secretary asks the following questions as he works his way through the various paragraphs of s 94(2):
As to s 94(2)(a): Does the impairment of itself, ie, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant's capacity for work that it prevents him from doing work available anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining? If so: As to s 94(2)(b)(i): Is the impairment of itself sufficient to prevent the particular pension claimant undertaking, ie, commencing, during the next two years, retraining of a kind that is available to him and which would fit him for a class of work available in Australia that he currently lacks the skills or experience to perform, even if unimpaired?
If so, the applicant will satisfy the Secretary that he has the requisite continuing inability to work. …
The concept of continuing inability to work is not confined to a claimant's ability to undertake work for which they are trained and skilled, but rather their capacity to undertake any work. In relation to the phrase any work in s 94(2)(a) of the Act, the Tribunal notes that this phrase ought not be qualified to meet suitable work (see Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864 at [34]), and the phrase does not exclude types of employment that a person might consider insufficiently intellectually challenging or are, in the person's view, insufficiently challenging (see Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635 at [27] per Branson J).
In the applicant’s case, in relation to his claim for DSP, an assessment of work capacity was carried out Ms Anne-Marie Botha on 13 January 2013.[14] The Tribunal recognises that a job capacity assessment is not about diagnosis or prognosis of a person’s medical condition. Rather, its focus is about drawing on the information provided by treating doctors and specialists when making assessments and applying the assessor’s specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s impairment rating and work capacity.
[14] Exhibit 1, T-Document 15/72-76.
The Job Capacity Assessment suggests that the applicant had a temporary incapacity and would be only able to work 8-14 hours a week, but with assistance will have a future work capacity of 15-22 hours a week with intervention and this could include supervisory work related to landscaping.
Given the medical evidence and the job capacity assessments for reaching the level of work capacity, I am satisfied that the applicant has the capacity to work at least 15 hours per week on wages that are at or above the relevant minimum wage.
DECISION
For the reasons set out above, the Tribunal finds that the applicant has a permanent condition but that the permanent condition does not incur 20 impairment points and he has a continuing ability to work more than 15 hours a week and therefore the decision is affirmed.
I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member.
...................[Sgd].....................................................
Associate
Dated 29 April 2013
Date of hearing 1 February 2013 Applicant In person Solicitors for the Respondent Mr Matthew Hawker (Sparke Helmore Lawyers)
0
4
0