MARK GAFER and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2012] AATA 535

[2012] AATA 535

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/0175
Re	MARK GAFER
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Mr P Wulf, Member
Date	16 August 2012
Place	Brisbane

The Tribunal affirms the decision.

[Sgd]

Mr P Wulf, Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Entitlement to Disability Support Pension – Physical, intellectual or psychiatric impairment – Job Capacity Assessment – Reports of medical practitioners – Impairment rating of 20 points under the Impairment Tables – Continuing inability to work – Job – Decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94, Schedule 1B

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 994

REASONS FOR DECISION

Mr P Wulf, Member

16 August 2012

1. Mr Mark Gafer ("the applicant")[1] seeks review of a decision made by Centrelink on 6 June 2011[2] to refuse to grant him disability support pension (DSP) under the Social Security Act 1991 (Cth) ("the Act").

   [1] Exhibit 1, T-Document 1/1-2.

   [2] Exhibit 1, T-Document 11/88-89.

2. On 17 October 2011, the decision was affirmed by an Authorised Review Officer.[3] The applicant appealed the decision to the Social Security Appeals Tribunal, who affirmed the decision on 19 December 2011.[4] The applicant has applied to this Tribunal for review of the decision.

   [3] Exhibit 1, T-Document 15/99-106.

   [4] Exhibit 1, T-Document 2/3-8.

3. For the reasons that follow, the Tribunal finds that the applicant has a permanent condition incurring 20 impairment points but has a continuing ability to work more than 15 hours a week and therefore the decision is affirmed.

   ISSUES FOR THE TRIBUNAL

4. The issues for the Tribunal to determine are whether:

   (a)At 29 April 2011, when the applicant lodged his claim for DSP, or within 13 weeks thereafter, that being 29 July 2011 (“relevant period”), he had a condition that was fully documented, diagnosed, treated and stabilised; and, if so

   (b)The applicant, as a result of his condition, attracts an impairment rating of at least 20 points under the Impairment Tables contained in Schedule 1B of the Act (“the Impairment Tables”); and, if so

   (c)The applicant had a “continuing inability to work”, because of his impairment, within the meaning of s 94 of the Act.

   LEGISLATION

5. 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;

   (ii)     the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

   (d)the person has turned 16; and

   (e)the person either:

   (i)      is an Australian resident at the time when the person first satisfies paragraph (c); or

   (ii)     has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

   (iii)    is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

   (A)is not an Australian resident; and

   (B)is a dependent child of an Australian resident;

   and the person becomes an Australian resident while a dependent child of an Australian resident; and

   (f)the person is not qualified for disability support pension under section 94A.

   (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.

   (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.

   IMPAIRMENT TABLES

6. 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

7. The evidence before the Tribunal comprised:

   (a)Exhibit 1: the "T Documents" (T1-17: pp. 1-129) 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);

   (b)Exhibit 2: medical report prepared by Dr L Tanaskovic dated 16 January 2012;

   (c)Exhibit 3: applicant’s bundle of documents including list of appointments with Maximarehab from 22 October 2010 to 23 December 2010; letter from WorkCover Queensland dated 4 January 2011; and a medical report by Dr Gavin Ballenden likely dated 15 December 2010;

   (d)Exhibit 4: Health Professional Advisory Unit “Summary of Findings and Recommendations” report prepared by Dr Mieka Tabart dated 21 March 2012;

   (e)Exhibit 5: respondent’s Statement of Facts and Contentions;

   (f)Exhibit 6: “Attachment A” to the respondent’s Statement of Facts and Contentions, that being the Job Capacity Assessment Report prepared by Mr Ty Maroske dated 18 August 2011; and 

   (g)the oral evidence of the applicant.

8. Post the hearing, additional material was provided including:

   (a)Exhibit 7: bundle of documents related to the applicant’s wife’s application for a Carer’s Payment;

   (b)Exhibit 8: respondent’s additional submissions dated 18 June 2012; and

   (c)Exhibit 9: applicant’s additional submissions dated 19 June 2012.

   ANALYSIS

   Did the applicant have a disability that is fully documented, diagnosed, treated and stabilised that would allow him to qualify to receive DSP on 29 April 2011 or within the relevant period?

9. The applicant suffered a lower back injury on 20 September 2010. He was undertaking the renovation of a property, this being a community based program. Prior to this time, he worked as an accountant but was unable to undertake this work due to a number of reasons other than health.

10. The applicant was placed on WorkCover payments from 21 October 2010 until 4 January 2011. On 4 January 2011, based on a medical report, WorkCover advised the applicant that his payments would cease as he was no longer incapacitated for work.[5]

    [5] Exhibit 3, letter of Carrie Worthington dated 4 January 2011.

11. 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".

12. In order to assess whether a condition is fully treated and stabilised, para 6 of the Introduction provides that the Tribunal must consider:

    (a)“what treatment or rehabilitation has occurred”;

    (b)“whether treatment is still continuing or is planned in the near future”; and

    (c)“whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years”.

13. In this context, reasonable treatment is taken to be:

    (a)“treatment that is feasible and accessible ie, available locally at a reasonable cost”; and

    (b)“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”.

14. With respect to whether the applicant has a condition that is a "fully documented, diagnosed condition which has been investigated, treated and stabilised”, there is conflicting evidence.

15. The applicant contends that his injury is fully documented in that his osteoarthritis of the lumbar spine is fully treated based on the significant treatment, including the 20 sessions of physiotherapy with Mr Green and Mrs Callaghan, and that it was stabilised as he has reached maximum medical improvement.[6] The applicant further based his submission on the fact that Dr Ballenden indicated in his report that further treatment will not provide any functional gain and that there are no on-going work related symptoms. Dr Ballenden does, however, state that ongoing symptoms are attributed to degeneration, and confirmed that the work related condition is stable and stationary.

    [6] Exhibit 3.

16. Dr P Sandhu provided a medical report, dated 29 April 2011, which suggested the applicant suffered from “prominent osteoarthritic changes of the lumbar spine”.[7] This would not normally be something that would be a work-related injury and, therefore, it is logical that WorkCover did not continue payments. However, it is something that would be considered a valid injury for the purposes of DSP. The report of Dr Tanaskovic, dated 16 January 2012, contends that the applicant’s condition will persist to impact on his ability to function for more than 24 months but its effect on his ability to function is “uncertain”.[8] However, it is important to note that this report was produced approximately eight months after the relevant period and, therefore, is of little assistance to the applicant’s claim.

    [7] Exhibit 1, T-Document 8/73-80.

    [8] Exhibit 2, Report dated 2 March 2012.

17. The Tribunal notes that there is inconsistency among the reports as to whether the applicant’s injury is "fully documented, diagnosed condition which has been investigated, treated and stabilised.” The initial report of Dr Sandhu, dated 29 April 2011, suggests that the condition is expected to impact for “3-24” months and will “fluctuate”. The 21 June 2011 report by Dr Sandhu, which Centrelink suggests is the same report as submitted on 29 April 2011,[9] states that the condition is likely to persist for “more than 2 years” (the 3-24 months has been crossed out and signed by the doctor). However, the report continues to state the injury will “fluctuate”. While it is noted that the second Job Capacity Assessment of Mr Maroske on 18 August 2011 is outside the relevant period,[10] it does say the condition is permanent and fully diagnosed. However, it also says that it is not fully treated and stabilised.

    [9] Exhibit 1, T-Document 16/115.

    [10] Exhibit 5, ‘Attachment A’.

18. It is also noted that while Dr Ballenden’s report says that the condition is stable and stationary, when read in the context of the letter it is fair to say that Dr Ballenden is suspicious as to whether the applicant’s injury is work related. However, it would appear from his report, and others, that Dr Ballenden does recognise degenerative issues with the applicant’s back. Unfortunately, Dr Ballenden does not appear to really consider the degenerative back condition in the context of whether it is fully stabilised, other than to say the applicant will continue to suffer significant pain, especially if he remains overweight.

19. The Tribunal finds that the applicant’s lumbar spine condition, whether work-related or, as is more likely, degenerative, has been fully treated and stabilised. While the differing medical reports provided to Centrelink by the applicant variously consider that the condition’s effect on his ability to function over the next two years will either “fluctuate” or remain “uncertain”, the Tribunal’s opinion is that his lumbar spine condition will not improve and, as stated by Dr Ballenden, that further treatment will be of no benefit to him.

20. Therefore the Tribunal is of the opinion is that the condition is permanent, has been fully diagnosed and treated. While the pain may “fluctuate”, the injury is not something that will improve and, therefore, it has also been fully stabilised. The applicant’s lumbar spine condition thus complies with the requirements to be assigned an impairment rating.

    Section 94(1)(b) of the Act: Impairment Rating

21. 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" (see para 3 of the Introduction).

22. As to the applicant’s back, the Tribunal must utilise Table 5.2 of the Impairment Tables, relevant to spinal function. 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 although much of this is due to his weight. The Authorised Review Officer[11] determined that the applicant accrued 20 impairment points as he considered the injury was fully diagnosed, treated and stabilised; however the SSAT did not agree with this assessment.

    [11] Exhibit 1, T-Document 15/99-106.

23. This Tribunal agrees with the assessment by the Authorised Review Officer in that the applicant has a loss of ½ range of normal movement[12] as well as back pain associated with most physical activities, including standing, sitting and sleeping. Considering this and that the condition is permanent, and noting the evidence that the applicant has difficulty undertaking manual tasks, the Tribunal determines that the applicant has loss of a quarter of the normal range of movement and has referred pain with most physical activities; therefore the injury incurs 20 impairment points.

    [12] Exhibit 1, T-Document 15//104. The ARO based this finding on the Job Capacity Report of Ms Ray, dated 11 May 2011, Exhibit 1, T-Document 9/85.

    Section 94(1)(c) of the Act: Continuing Inability to Work

24. 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.

25. In Secretary, Department of Social Security v Pusnjak [1999] FCA 994, Drummond J considered the operation of s 94(2) of the Act. At paras 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. …

26. 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 mean "suitable work" (see Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864 at paragraph [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 paragraph [27] per Branson J).

1. In the applicant’s case, in relation to his claim for DSP, assessments of work capacity in two Job Capacity Assessments were carried out, one by Ms Ray on 9 May 2011, this being within the relevant period;[13] and a subsequent assessment by Mr Maroske on 18 August 2011, this being outside the relevant period.[14]

   [13] Exhibit 1, T-Document 9/81-85.

   [14] Exhibit 5, ‘Attachment A’. 

2. 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.

3. The Job Capacity Assessment of Ms Ray was conducted on 11 May 2011, within the relevant period.[15] The assessor suggests that the applicant had a then temporary work capacity of 15-22 hours until 9 November 2011 and, subsequent to that date, had a future work capacity of 30+ hours a week with our without intervention. Importantly, it was noted that the applicant declined an offer for recommended intervention.

   [15] Exhibit 1, T-Document 9/81-85.

4. The applicant stated that he was unable to work due to his inability to maintain his personal hygiene in certain circumstances. While the Tribunal has doubt as to the veracity of the applicant’s evidence, there is no supporting evidence to elaborate that claim. Further, from his oral evidence, it would appear that this was an issue at the time of the hearing rather than during the relevant period.

5. When discussing potential positions, the applicant stated he was not able to continue with his past profession as an accountant due to a number of reasons that do not need to be discussed here and therefore he would need to find other non-labour intensive work to undertake.

6. The applicant stated during the hearing that he was unable to perform certain activities, including personal hygiene. However, this conflicts with the report of Dr Ballenden who states that “[a]ctivities of daily living are normal. He dresses himself, manages all self‑care and toileting.[16] While the Tribunal does not dispute that the applicant may now have issues with the maintenance of personal hygiene, the report of Dr Ballenden must be considered more favourable as it is closer to the relevant period.

   [16] Exhibit 3, Medical report of Dr Gavin Ballenden.

7. 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

8. For the reasons set out above, Tribunal finds that the applicant has a permanent condition incurring 20 impairment points but has a continuing ability to work more than 15 hours a week and therefore the decision is affirmed.

I certify that the preceding 34 (thirty four) paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member.

...............[Sgd]................................................

Associate

Dated 16 August 2012

Date of hearing	30 May 2012
Applicant	In person
Advocate for the Respondent	Simon Letch