Mathers and Secretary, Department of Social Services (Social services second review)

[2015] AATA 864

Mathers and Secretary, Department of Social Services (Social services second review) [2015] AATA 864 (11 November 2015)

Division	GENERAL DIVISION
File Number(s)	2015/1689
Re	Gregory Mathers
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member Cunningham
Date	11 November 2015
Place	Hobart

The Tribunal affirms the decision under review.

........................................................................

Ms A F Cunningham, Senior Member

CATCHWORDS

Social Security - disability support pension - accepted lumbar spine condition and osteoarthritis of both knees - neither condition fully treated and stabilised such as to attract an impairment rating during assessment period - decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975

Social Security Act 1991

Social Security Administration Act 1999

Social Security (Tables for the Assessment of Work-related Impairment Disability Support Pension) Determination 2011

Social Security (Requirements and Guidelines-Active Participation for Disability Support Pension) Determination 2011

CASES

SECONDARY MATERIALS

REASONS FOR DECISION

Senior Member Cunningham

1. The decision under review is that made by the Social Security Appeals Tribunal (SSAT) on 10 March 2015 which affirmed a decision made by the Department of Human Services (the Department) on 10 November 2014 to reject Mr Mathers’ claim for Disability Support Pension (DSP).

2. The Applicant, Gregory Mathers attended the hearing by telephone and made oral submissions. No further evidence was adduced by Mr Mathers. The Respondent was represented by Brian Sparkes who tendered the T-documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and made oral submissions.

3. In Mr Mathers’ application for DSP dated 31 July 2014 he listed his disabilities as osteoarthritis of both knees, disc degeneration lumbar spine, thoracic spine spondylosis and chronic depression. Mr Mathers’ application was refused on the basis that his conditions were not permanent within the meaning of the relevant legislation such as to attract an impairment rating. Further, there was no evidence to support the required impairment rating of 20 points or more.

   ISSUES

4. The issues for the Tribunal to determine are whether Mr Mathers at the time of his claim:

   (i)had a physical, intellectual or psychiatric impairment; and

   (ii)had permanent impairment (s) attracting a rating of 20 points or more under the Impairment Tables; and if so

   (iii)had a continuing inability to work.

   LEGISLATION

5. The legislation relevant to this application is contained in the Social Security Act 1991 (Social Security Act); the Social Security Administration Act 1999 (Administration Act); the Social Security (Tables for the Assessment of Work-related Impairment Disability Support Pension) Determination 2011 (Impairment Determination); and the Social Security (Requirements and Guidelines-Active Participation for Disability Support Pension) Determination 2011 (POS Determination).

6. The qualification provisions are contained in section 94 of the Social Security Act, subsection 1 of which provides:

   “(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 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 Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

   (d)       the person has turned 16; and

   (da)     in a case where the following apply:

   (i)the person is under 35 years of age or is a reviewed 2008-2011 DSP starter;

   (ii)the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;

   (iii)if the person has one or more dependent children—the youngest dependent child is 6 years of age or over;

   the person meets any participation requirements that apply to the person under section 94A; 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

   (ea)     one of the following applies:

   (i)        the person is an Australian resident;

   (ia)the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

   (ii)the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.”

7. The Administration Act provides that the start day for a qualified DSP claimant is the date of the claim which means that qualification and impairment ratings must be determined as at the date of the claim. The only exception is where the person is not qualified on the date of claim but “will become qualified” and “becomes so qualified within 13 weeks of lodging a claim’’, in which case their start day is the day they became qualified (Schedule 2 clause 4(1) of the Administration Act).

8. The assessment period in consideration of Mr Mather’s qualification for DSP is therefore 31 July 2014 to 30 October 2014.

   DISCUSSION

9. The Respondent accepts the medical diagnoses for disc degeneration, lumbar spine and osteoarthritis of both knees but contends that the depression condition has not been diagnosed or treated by a psychiatrist or clinical psychologist. Further, the evidence is that this condition is generally well managed and does not cause any functional impairment. The thoracic spine spondylosis condition is not separately considered as the described symptoms appear to be more specifically related to the thoracic spine. The SSAT considered that the spine should be “assessed as a whole”.

10. The Tribunal accepts the medical diagnosis of disc degeneration lumbar spine and osteoarthritis of both knees and concludes that Mr Mathers satisfies the qualification requirements of subsection 94 (1)(a) of the Social Security Act.

11. In accordance with subsection 94 (1)(b), a person’s impairment must rate at least 20 points under the Impairment Tables. In order for an impairment to attract an impairment rating under the Impairment Tables, the impairment must be considered permanent in that it is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years (section 6(3) of the Impairment Determination).

12. An impairment rating is assessed in accordance with the Impairment Tables made pursuant to the Impairment Determination. The Tables describe functional activities, abilities, symptoms and limitations and assign ratings to determine the functional impact of the impairments.

13. In determining whether a condition has been fully diagnosed and treated, consideration must be given to any corroborating evidence of the condition, what treatment has occurred and whether treatment is continuing or planned in the next two years (section 6(5) of the Impairment Determination), or if there would be unlikely to be significant functional improvement that would enable them to work in the next two years (section 6(6) of the Impairment Determination).

14. The Tables make it clear that self-reporting of symptoms alone is insufficient and there must be corroborating evidence of a person’s impairment. The symptoms reported by a person in relation to the condition can only be taken into account where there is corroborating medical evidence (section 8 of the Impairment Determination and the Introduction to the Tables).

15. Paragraph 11(5) of the Impairment Determination provides that a diagnosed condition which results in no impairment should be assessed as having no functional impact and an impairment rating of zero must be assigned.

    FUNCTIONAL IMPACTS

16. Mr Sparkes submitted that the condition that has the greatest impact on Mr Mather’s ability to function is osteoarthritis of both knees. Mr Mathers did not dispute the submission.

17. In Mr Mather’s application for DSP he described the limitations on his ability to work or study as “unable to lift or carry weight. Trouble with sitting for long periods. Difficulty in walking or standing for more than an hour or more.   Fluoxetine makes me vague.”

18. Accompanying Mr Mathers’ claim for DSP is a medical report completed by his general practitioner Dr Kim Yong on 30 July 2014. Dr Yong reports that Mr Mathers’ disc degeneration lumbar spine was confirmed by a CT scan on 21 July 2014 with current treatment being described as “analgesic as required” and future/planned treatment as “fitness exercise”. Current symptoms are described as “chronic lumbar back pain aggravated by physical activities; unable to bend and lift weights.”  Dr Yong records a long history of lumbar back pain limiting physical activities and describes the impact on ability to function as “back pain limiting physical activities; able to self-care but struggles with physical activities” with the impact expected to persist for more than twenty four months and remain unchanged within the next two years.

19. The osteoarthritis of both knees was confirmed by x-ray on 3 June 2014 and current treatment is reported as Panadol Osteo with future/planned treatment “fitness exercises”. Current symptoms are described as “chronic bilateral knee pain aggravated by activities”. The history is described as “recurrent knee pain is aggravated by physical activities; investigations showed evidence of bilateral knee arthritis.” Dr Yong reported that Mr Mathers is able to self-care but unable to cope with physical activities. He indicates the current impact is expected to persist for more than 24 months and the effect on function within the next two years is expected to deteriorate.

20. In a medical report dated 24 June 2014 Dr John Burke reported that Mr Mathers suffers from long-standing osteoarthritis of the knees and has resultant pain causing limitation of motion. He reported the current and future planned treatment was drug therapy and that the condition was expected to last more than twenty four months and to fluctuate.

21. In a medical report dated 10 October 2014 Dr Speden, Consultant Rheumatologist reported that Mr Mathers’ knee and back pain conditions are both long-standing of 10 to 15 years duration. Mr Mathers had reported an increase in knee pain in the last six months with constant aching after walking 30 to 45 minutes particularly up or down hills and stairs and his symptoms are eased with rest. Dr Speden recommended the investigation of activities such as swimming or an exercise bicycle which would avoid full body weight through the knees and a long-term goal for weight loss. A continuation with simple analgesics such as Panadol Osteo and in the long term consideration of a knee arthroplasty if his symptoms progressed and his walking time and distance declined.

22. A further report from Dr Yong dated 3 June 2015 referred to Mr Mathers’ advanced osteoarthritis in both knees. He noted that Mr Mathers is coping reasonably well with activities of daily living but is unfit for work due to limited standing and activity tolerance. He considered the condition stable and unlikely to improve with intervention. He noted that the waiting list to see an Orthopaedic Surgeon at the Royal Hobart Hospital is in the order of one to two years for initial assessment and that the waiting list for a knee replacement is at least a few years.

23. The Job Capacity Assessment of 9 July 2015 considered that the condition was not fully treated and stabilised as Dr Speden had recommended conservative management of the condition including exercise with a goal of weight loss.  Further that recommended therapy may result in functional improvements as there was no documentation of that therapy occurring previously.

24. In a subsequent report dated 26 November 2014 following rejection of his DSP claim, Dr Speden reported a functional decline since his first assessment. She stated that Mr Mathers is not suitable to undertake any form of employment that requires him to be on his feet and that the combination of back and knee pain will preclude jobs which require lifting activities. She was referring him to the Orthopaedic Department at the Royal Hobart Hospital for consideration of knee arthroplasty and/or interim knee bracing as the surgical wait list is likely to be more than a year or two.

25. The evidence is that at the time of Mr Mathers’ application for DSP on 31 July 2014 his

    
    

    osteoarthritis of both knees condition although long-standing, had only been recently diagnosed. Mr Mathers was not referred to an orthopaedic specialist until his consultation with Dr Speden in November 2014.

26. In Dr Kim Yong’s medical report dated 30 July 2014 he indicated that future treatment of fitness exercise was planned. Dr Speden in her report of 2 October 2014 also suggested exercise and activities such as swimming or the use of an exercise bicycle with a long-term goal for weight loss.

27. Dr Crawford in a report dated 17 October 2014 stated that he had arranged for Mr Mathers to have an MRI scan in the near future after which he would review him. On 3 December 2014 following his review, Dr Crawford suggested intervention either by injection or surgery. He went on to state that it was unlikely that Mr Mathers would be able to return to the workforce in any active capacity.

28. In his application for review Mr Mathers states that he ceased working in Aged Care some four years ago because of his deteriorating and debilitating osteoarthritis in both knees along with ongoing back problems. He claims that he is unable to work and that his specialists have confirmed this.

29. Before however, Mr Mathers can be granted DSP he must meet the relevant qualification requirements under the Social Security Act. At the time of lodging his claim in July 2014, whilst Mr Mather’s osteoarthritis of both knees and lumbar spine condition had been diagnosed by medical specialists, the diagnoses were recent and various treatment and management options were proposed. The Tribunal considers that neither of these conditions could be considered permanent such to attract an impairment rating in that they had not been fully treated and stabilised. Further, there is no evidence regarding the functional impact of either of these conditions such that the Tribunal could make the necessary finding for an impairment rating of 20 points under the Impairment Tables. No medical evidence was produced of an assessment of functional impact under the Impairment Tables.

30. The Tribunal accordingly determines that Mr Mathers fails to meet the qualification requirement of sub section 94 (1)(b) of a 20 point impairment rating under the Impairment Tables.

31. For these reasons the Tribunal affirms the decision under review.

32.      

33.      

34.     I certify that the preceding 31 (thirty one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Cunningham

........................................................................

Administrative Assistant

Dated   

Date of hearing	29 October 2015
Solicitor for the Applicant	Self-represented
Solicitor for the Respondent	Mr Brian Sparkes, Department of Human Services