Mark Dicton and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 513
[2013] AATA 513
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4307
Re
Mark Dicton
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Dr A Frazer, Member
Date 19 July 2013 Place Perth The Tribunal affirms the decision under review.
....(Sgd) Dr A Frazer............
Dr A Frazer, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – qualification requirements– applicant has impairments – applicant’s impairment 20 points under Impairment Tables – applicant does not have a continuing inability to work – does not meet active participation in program of support - applicant not qualified for disability support pension – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth), s 94 and Sch 1B
REASONS FOR DECISION
Dr A Frazer, Member
19 July 2013
INTRODUCTION
Mr Mark Dicton, (“the applicant”), who is 54 years of age, lodged a claim for the disability support pension (“DSP”) in respect of his right shoulder injury, coronary artery disease, psoriasis and psoriatic arthropathy on 5 April 2012.
On 16 May 2012 a Centrelink officer rejected his claim on the basis that although the applicant suffered from permanent impairments his impairments did not rate at least 20 points on the Impairment Tables.
On 22 June 2012 a Centrelink authorised review officer (“ARO”) determined the applicant did have an Impairment Rating of 20 points but he did not have a continuing inability to work. The ARO affirmed the decision to reject the claim for DSP.
On 21 August 2012 the Social Security Appeals Tribunal (“SSAT”) decided the Impairments attracted a rating of less than 20 points and affirmed the ARO’s decision.
On 25 September 2012 the applicant made an application to this Tribunal for review of the SSAT’s decision.
The applicant is currently in receipt of Newstart Allowance.
THE RELEVANT LEGISLATION
The conditions which must be satisfied before a person is qualified for DSP are set out in paras (a) – (f) of s 94(1) of the Act. It is common ground that the applicant satisfies the conditions set out in paras (d) – (f) of s 94(1). Section 94 of the Act otherwise relevantly provides:
“ 94(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
…
94(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)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) 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).
…
94(5) In this section:
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) pre‑vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work‑related training (including on‑the‑job training).
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
…”
The “Impairment Tables” referred to in para (b) of s 94(1) are set are set out in Schedule 1B to the Act and are referred to below.
THE EVIDENCE
The evidence before the Tribunal comprised:
·the “T Documents” (T1-T39), pp 1- 188) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”);
·the evidence of the applicant.
The applicant’s evidence
·The applicant told the Tribunal he lives with a friend as he has nowhere else to live. He has suffered from psoriasis since 1989, a chronic inflammatory skin disease, which variably will affect all parts of his skin. He has multiple red, flaky areas of psoriatic plaques. The applicant said that when his feet are affected the skin is cracked and painful and it is difficult to wear shoes and socks. The applicant said he will use different types of creams, including steroid cream, on the plaques. His skin is itchy and sore and this can vary on the sunlight and depending on what clothing he is wearing.
·The applicant said his skin psoriasis started in 1989 and then worsened to involve all of his body in 1993. He then developed arthritic pains with the psoriasis in 1995. (This is also known as “psoriatic arthropathy.” It is a known complication of psoriasis affecting the skin.) He required hospitalisation to Fremantle Hospital under Dr Gebauer (a dermatologist) in 1997 and multiple therapies were commenced. This included Dithranol, oral methotrexate, a cyclosporine and PUVA (a light therapy). The applicant said he did not really improve with this intensive therapy.
·The applicant said he has had problems with his heart. He had coronary artery bypass grafting in 2007 after a big heart attack on November 16 2007. He last saw his cardiologist in May 2011. The applicant told the Tribunal he is meant to have stress testing every 2 years but is unwilling. This is because if there are any issues he may lose his multicombination driver’s license. He said he tires easily and can play with his grandson for only about 15 minutes.
·The applicant told the Tribunal that he injured his shoulder at work on 10 March 2011. An ultrasound showed he had “frayed” a tendon. He said he might need surgery but he has been told that surgery does carry a risk of perioperative infarct given his history of cardiac disease so he has decided not to have it. He said he cannot lift his right arm sideways above his head level and cannot carry anything above this level.
·The applicant said he could work about 1 or 2 days a week. However, he did say he would be impeded by his shoulder problem and also has difficulty wearing heavy clothing. He said he can’t lift and can’t sit or stand for longer periods than about 15 minutes without needing to move around.
THE RELEVANT MEDICAL EVIDENCE
Report by Dr Christenson, treating doctor, dated 30 January 1997. This states the applicant has suffered from “very severe psoriasis” (ie of the skin – Tribunal’s addition) since 1989. “Skin worsened to involve whole body in 1993.” Dr Christenson states “Psoriasis – arthritic pains associated – difficulty lifting or maintaining fixed positions due to arthritic pains.”
Report by Dr Nikoloski, Orthopaedic Registrar, dated 22 January 2013 sho states the applicant suffers from “right shoulder pain.” “Certainly there is no harm him …coming off the Waitlist. “..there are the modalities of treatment including analgesia, physiotherapy but he doesn’t feel it is necessary at this stage…”
Report with additional handwritten comments by Dr Priya Chowalloor, Rheumatology Registrar, dated 18 February 2013 and 24 April 2013. This states the applicant “ is troubled with an arthritic condition for the last few years which causes back pain and is disabled due to restricted movement in the lower spine. This affects his mobility…” On examination lumbar spine - forward flexion – reduced – (Scheber’s test 3.5 cm, normal 5 and above), very restricted extension, lateral movement reduced, right 10cm, left 9 cm, normally 15cm or more.
13… Report by Dr Lal, treating doctor, dated 5 April 2011 noting the applicant has coronary artery disease, a previous bypass graft, with reduced exercise tolerance and reduced endurance to carry out strenuous tasks. This was expected to continue for more than 24 months.
Centrelink form, SA 437 dated 26 April 2013
This report documents the applicant is receiving a programme of support from DES – Disability Management Services. This commenced on 24 April 2012. This states the applicant attends appointments and completes assessments he was requested to do. It states “the applicant is continuing to appoint with GP and specialists to determine appropriate treatment /management strategies to assist with employment prospects.
THE IMPAIRMENT TABLES
Schedule 1B to the Act is headed: “Tables for the assessment of work-related impairment for disability support pension”. The tables themselves are preceded by an “Introduction“ in which it is relevantly stated:
“1. These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work. …
2. These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. …
…
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. …
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. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:
·evaluate and document the probable outcome of treatment and the main risks and or (sic) side effects of the treatment; and
·indicate why this treatment is reasonable; and
·note the reasons why the person has chosen not to have treatment.
TABLE 14 FUNCTIONS OF THE SKIN
Points
Descriptors
0
There is no functional impact on activities requiring healthy, undamaged skin.
(1)The person is able to perform normal daily activities (e.g. washing dishes, shampooing hair, household cleaning and participating in outdoor activities) with no difficulty.
5
There is a mild functional impact on activities requiring healthy, undamaged skin.
(1) Regarding the minor adaptations to some daily activities that the person has to make, at least one of the following applies:
(a) the person has minor difficulties performing activities involving use of their hands due to minor skin lesions, dermatitis, skin allergies, scarring or nerve pain (e.g. mild allodynia) and may need to wear protective gloves for some tasks, apply protective cream to the hands, or limit repetitive tasks involving use of the hands;
(b) the person has minor difficulties performing activities involving use of other parts of the body due to minor skin lesions, dermatitis, skin allergies, scarring or nerve pain (e.g. mild allodynia);
(c) the person has minor difficulties performing activities involving exposure to sunlight due to heightened sensitivity to sunlight (e.g. as a result of certain medications or past history of skin cancers) and needs to take higher than normal precautions to limit exposure to sunlight.
10
There is a moderate functional impact on activities requiring healthy, undamaged skin.
(1) Regarding the adaptations to several daily activities that the person has to make, at least one of the following applies:
(a) the person has moderate difficulties performing activities involving use of their hands due to minor skin lesions, dermatitis, skin allergies, scarring or nerve pain (e.g. moderate allodynia) and needs to wear protective gloves for most tasks, avoid contact with all detergents and soaps, or avoid repetitive tasks involving use of the hands;
(b) the person has moderate difficulties performing daily activities due to scarring from burns which restricts movement of limbs or other parts of the body (e.g. may require additional time to perform some tasks, or some tasks may need to be modified);
(c) the person has moderate difficulties performing daily activities due to lesions on skin which require creams or dressings and limit movement and comfort (e.g. may require additional time to perform some tasks, or some tasks may need to be modified);
(d) the person has moderate difficulties performing activities involving exposure to sunlight due to heightened sensitivity to sunlight (e.g. as a result of certain medications, past history of skin cancers, albinism, or other genetic condition) and needs to take higher than normal precautions to avoid exposure to sunlight (e.g. must wear sunscreen at all times, wear hat and other protective clothing at all times outside and has to limit time spent outside in sunlight).
20
There is a severe functional impact on activities requiring healthy, undamaged skin.
(1) Regarding the person’s significant modifications to, or inability to perform, daily activities, at least two of the following apply:
(a) the person has severe difficulties performing activities involving use of their hands due to major skin lesions, dermatitis, skin allergies, scarring or nerve pain (e.g. severe allodynia) and is unable to perform some tasks involving use of the hands;
(b) the person has severe difficulties performing daily activities due to scarring from burns which restricts movement of limbs or other parts of the body (e.g. may not be able to perform some tasks, requires additional time to perform some tasks, or some tasks need to be modified);
(c) the person has severe difficulties performing daily activities due to extensive or severe lesions on skin which require creams or dressings and limit movement and comfort (e.g. may not be able to perform some tasks, requires additional time to perform some tasks, or some tasks need to be modified);
(d) the person has severe difficulties performing activities involving exposure to sunlight due to heightened sensitivity to sunlight (e.g. as a result of certain medications, past history of skin cancers, albinism, or other genetic condition) and can spend only a brief period of time in sunlight each day even when wearing sunscreen and protective clothing;
(e) the person is not able to wear clothing or footwear likely to be required in their workplace, including items of personal protective equipment (e.g. protective glasses, ear defenders, safety jacket, gloves, safety boots, safe shoes or hard hat).
30
There is an extreme functional impact on activities requiring healthy, undamaged skin.
(1) The person has to make major modifications to most daily activities or is unable to perform most daily activities, requires repeated assistance throughout the day and could not attend a work, education or training session for a continuous period of at least 3 hours as at least one of the following applies:
(a) the person has such extensive damage or scarring of their skin that they are unable to perform most daily activities without significant difficulty or discomfort;
(b) the person requires continual application or wearing of medically prescribed creams or dressings to most or all of the skin on the body;
(c) the person has severe reactions to normal exposure to sunlight or skin contact with routine substances found in most households, requiring repeated urgent medical treatment and frequent hospitalisation.
TABLE 4 SPINAL FUNCTION
Points
Descriptors
0
There is no functional impact on activities involving spinal function.
(1) The person can:
(a) bend down to pick a light object off the floor (e.g. a piece of paper); and
(b) turn their trunk from side to side; and
(c) turn their head to look to the sides or upwards.
5
There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).
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).
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.
30
There is an extreme functional impact on activities involving spinal function.
(1) The person is:
(a) completely unable to perform activities involving spinal function; or
(b) unable to bend or turn their trunk or their neck to complete the most basic of daily activities (e.g. dressing, bathing, showering or light housework).
TABLE 1 FUNCTIONS REQUIRING PHYSICAL EXERTION AND STAMINA
Points
Descriptors
0
There is no functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and
(b) has no difficulty completing physically active tasks around their home and community.
5
There is a mild functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b) is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
10
There is a moderate functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
20
There is a severe functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii) use public transport without assistance; or
(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
30
There is an extreme functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) is completely unable to perform activities requiring physical exertion or stamina; or
(b) experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing any activities requiring physical exertion or stamina and, due to these symptoms, the person is unable to move around inside the home without assistance.
(2) This impairment rating level includes people who require Oxygen treatment (e.g. the use of an Oxygen concentrator during the day or to move around).
ANALYSIS
Impairments
It is common ground that, at all material times, the applicant has suffered from severe psoriasis of the skin and heart disease which are permanent impairments, within the meaning of para (a) of s 94(1) of the Act. It is also common ground that the applicant ‘s heart disease attracts an Impairment Rating of 5 points from Table 1 and his psoriasis of the skin attracts an Impairment Rating of 10 points from Table 14.
The first matter for the Tribunal’s determination is whether the applicant’s psoriatic arthropathy and his right shoulder injury, when he applied for the DSP and over the next 13 weeks, were permanent impairments and, if so, whether as a result of these impairments he has a total impairment of at least 20 points under the Impairment Tables for the purposes of para (b) of s 94(1) of the Act.
PSORIATIC ARTHROPATHY
It is common ground that the applicant suffers from severe psoriasis of the skin. In up to around 30% of people psoriasis of the skin is also associated with joint disease, often of the lower back, which is called psoriatic arthropathy. It is important to note that, whilst clearly associated and both inflammatory diseases, psoriasis of the joints is a different disease process from psoriasis of the skin alone. That is, the symptoms, signs and disabilities are different between psoriasis affecting the skin and psoriasis affecting the joints. Therefore, they need to be approached as potentially causing differing functional impairments. The applicant gives a consistent history of lower back pain and stiffness which limits his sitting and standing to around 15 minutes without needing to change position. There is medical evidence from Dr Christenson in 1997 and Dr Chowalloor in 2013 that the applicant suffers from a long standing arthritic condition of the spine. Dr Chowalloor indicates on examination there is loss of the applicant’s ability to bend forward and straighten and loss of ability to fully turn his trunk. On the applicant’s oral evidence, the applicant has received a course of disease modifying drugs in Fremantle Hospital years ago (methotrexate, as example) however these drugs may be associated with significant side effects, and infection, and the applicant does not which to continue with these, especially considering his heart problems.
Therefore, on balance, given the length of time the applicant has suffered from the psoriatic arthropathy, the range of treatments the applicant has tried in the past, and the fact the applicant is already under the care of the Rheumatology Clinic at RPH, the Tribunal considers the applicant’s condition of psoriatic arthropathy to be permanent. The Tribunal assigns an Impairment Rating of 5 points for this under Table 4.
RIGHT SHOULDER INJURY
The Tribunal considers this condition to be temporary in that it is not fully treated and stabilised. Dr Nikolinski, the orthopaedic registrar, in January 2013, stated there is no harm the applicant coming off the Waitlist for surgery and that the applicant could try analgesia and physiotherapy but does not think this is necessary at this time. Therefore, this condition does not attract any Impairment Rating.
The applicant therefore has a combined Impairment Rating of 20 points under the Impairment Tables and satisfies para (b) of s 94(1) of the Act.
The Tribunal must also consider whether the applicant satisfies para (c) of s 94(1) of the Act, and has a continuing inability to work. This means the applicant must have actively participated in a program of support (the AP determination) and his impairment is of itself sufficient to prevent him from doing any work independently of a program of support, or undertaking a training activity within the next 2 years.
Under section 5 of the AP determination the a person has actively participated in a program of support if they have done so for 18 months, and generally for 18 months in the 36 months prior to the person’s claim for DSP.
The applicant’s form SA437 (Information about participation in a program of support) shows the applicant started the DES Program on 24 April 2012 and is continuing to participate in the program. Therefore, the applicant has not participated in the program for a total of 18 months in the 36 months prior to his claim for DSP which was on 5 April 2012.
The Tribunal notes that the applicant stated he could work for 1 to 2 days a week but that it would be difficult because of his skin and back pain and shoulder problem.
The applicant therefore does not satisfy para (c) of s 94 (1) of the Act at the time of his claim and therefore was not qualified for DSP.
DECISION
For the above reasons the Tribunal affirms the decision under review.
I certify that the preceding 26 (twenty six) paragraphs are a true copy of the reasons for the decision herein of ....(Sgd) T Freeman...........
Associate
Dated 19 July 2013
Date(s) of hearing 22 April 2013. Applicant In person Representative for the Respondent Ms L Gallagher
Sparke Helmore
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