McKane and Secretary, Department of Employment and Workplace Relations

[2006] AATA 1010

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1010

ADMINISTRATIVE APPEALS TRIBUNAL          № V2006/64

GENERAL ADMINISTRATIVE  DIVISION

Re:            DIANNE McKANE

Applicant

And:SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal:       Dr K. Breen, Member

Date:27 November 2006

Place:Melbourne

Decision:The decision under review is affirmed.

(sgd) Kerry Breen

Member

SOCIAL SECURITY – disability support pension (DSP) – DSP granted after the Social Security Appeals Tribunal decision – whether back payment possible – start date – whether applicant eligible for DSP at time of original claim or within 13 weeks – whether condition fully investigated, treated and stabilised at time of original claim or within 13 weeks ‑ decision affirmed.

Social Security Act 1991 s 94

Social Security (Administration) Act 1999 Schedule 2

Guide to Social Security Law

Re Sargeant and Secretary, Department of Family and Community Services [2005] AATA 1076

Re Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902

REASONS FOR DECISION

27 November 2006  Dr K. Breen, Member

DECISION UNDER REVIEW

1.      Mrs Dianne McKane lodged a claim for disability support pension (DSP) on 10 June 2005.  This claim was rejected by a Centrelink officer on 15 July 2005 on the grounds that her condition had not been fully investigated, treated and stabilised.  Centrelink is the agency that acts on behalf of the Secretary to the Department of Employment and Workplace Relations (the respondent).  A Centrelink authorised review officer affirmed the original decision on 2 November 2005.  Mrs McKane appealed to the Social Security Appeals Tribunal (SSAT), which affirmed the decision on 6 January 2006.  Mrs McKane then applied to this Tribunal for a review of the decision of the SSAT.

2.      In the interim, Centrelink, in response to an updated work capacity assessment conducted on 7 June 2006, invited Mrs McKane to test her eligibility again for DSP and as a result she was granted DSP, effective from 28 June 2006.  Therefore, the only issue before the Tribunal is whether Mrs McKane is entitled to back payment of DSP from the date of her original expression of intention to claim, which was 1 June 2005.

3. The requirements for qualification for DSP (prior to July 2006) are set out in s 94 of the Social Security Act 1991 (the Act).  The relevant parts are as follows:

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;

(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…

(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 within the next 2 years; and

(b)       either:

(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work 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 educational or vocational training or on-the-job training; or

(b)if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.

(4)       For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.

(5)       In this section:

"educational or vocational training” does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

“on-the-job training” does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

"work” means work:

(a)that is for at least 30 hours per week at award wages or above; and

(b)that exists in Australia, even if not within the person's locally accessible labour market.

(6)       A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person's incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment.

…

BACKGROUND

4.      Mrs McKane was born on 31 August 1955.  She last worked approximately four years ago as a cleaner.

5.      Mrs McKane was involved in a motor vehicle accident in February 2003.  Shortly afterwards she became aware of pain in her right shoulder.  At first she was told she was entitled to compensation from the Transport Accident Commission for the injury; but this was later denied.

6.      Her right shoulder has troubled her since that time.  She is right hand dominant.

7.      She came under the care of her current general practitioner, Dr Wendy Tyshing, in 2002.

8.      Mrs McKane first gave intention to apply for DSP due to her shoulder condition on 1 June 2005 and lodged a claim form on 10 June 2005.

9.      Her claim was supported by a treating doctor’s report from Dr Tyshing dated 1 June 2005.

10.     She was assessed by Ms Carolyn Symonds, a rehabilitation consultant, on 6 July 2005 and a work capacity assessment report was submitted to Centrelink.

11.     Based on this assessment, Centrelink rejected her application.

12.     Mrs McKane requested a review of that decision and on 2 November 2005 the decision was affirmed by an authorised review officer.

13.     She appealed that decision to the SSAT.  The SSAT decided that Mrs McKane did have an impairment rating of 20 points under the Tables for the Assessment of Work‑Related Impairment for Disability Support Pension in Schedule IB of the Act (the Impairment Tables).  However, it also found that she did not have a continuing inability to work.  Therefore, it affirmed the Centrelink decision.  The SSAT appears not to have separately considered the shoulder condition from the condition which affects Mrs McKane’s right wrist and hand.

14.     Mrs McKane underwent a second work capacity assessment, conducted by Mr Anthony Stott, a rehabilitation consultant, on 7 December 2005.  In his report Mr Stott agreed with the earlier assessment by Ms Symonds and noted two additional conditions, back pain and right knee pain.  The two additional conditions were not given an impairment rating as Mr Stott did not have supporting medical evidence.

15.     Mrs McKane then lodged an application with this Tribunal on 25 January 2006.

16.     On 26 April 2006 the Tribunal was provided with a further report from Dr Tyshing which stated that Mrs Dianne McKane will not be able to undertake any training for the next 24 months if ever.

17.     Following the receipt of this report, Centrelink arranged for a third work capacity assessment, which was conducted by Ms Larissa Natividad, rehabilitation consultant, on 28 June 2006.  Ms Natividad was asked to perform two tasks: to assess Mrs McKane's current work capacity and also to assess in retrospect her work capacity at the time of Mrs McKane’s original claim for DSP.

18.     One result of the third work capacity assessment was that Mrs McKane was invited to make another claim for DSP.  DSP was granted, effective from 28 June 2006.

ISSUES BEFORE THE TRIBUNAL

19. Since DSP was granted from 26 June 2006, the issues to be determined in this matter are whether, at 10 June 2005 or within the subsequent 13 weeks (as provided for in clause 4 of Schedule 2 of the Social Security (Administration) Act 1999) (the Administration Act)):

(a)Mrs McKane had a physical, intellectual or psychiatric impairment as defined in s 94(1)(a) of the Act?

(b)Mrs McKane had a diagnosed condition that has been investigated, treated and stabilised, and was likely to continue for at least two years? If yes, did Mrs McKane’s impairment rate at least 20 points under the Impairment Tables?

(c)Did Mrs McKane have a continuing inability to work because of the impairment, in that:

(i)The impairment was of itself sufficient to prevent her from doing any work within the next two years; and

(ii)The impairment was of itself sufficient to prevent her undertaking educational, vocational or on-the-job training during the next two years, or, if it did not so prevent her, the retraining was unlikely, because of the impairment, to enable her to do any work within the next two years?

20. It was not disputed before the Tribunal that Mrs McKane suffered (at the time of her original claim) from rotator cuff pathology and right wrist and hand pain. Thus s 94(1)(a) of the Act was met. It was also not disputed that her conditions have deteriorated since the original claim, as Mrs McKane was granted DSP effective from 28 June 2006.

21. What is in dispute is the degree of disability and impairment Mrs McKane was experiencing at the relevant dates (ie as 10 June 2005 and for the subsequent 13 weeks as provided for in clause 4 of Schedule 2 of the Administration Act and whether her condition had been investigated, treated and stabilised.

CONSIDERATION OF THE EVIDENCE

22.     Mrs McKane told the Tribunal that she considered that her shoulder and wrist/hand problems were just as bad now as they had been at the time of her initial DSP claim; and that therefore she believed she should have been granted DSP at that time.  She believed that the report of her treating doctor which she provided to Centrelink should have made her disabilities clear.

23.     When asked to describe these disabilities, Mrs McKane’s described her present limitations which included great difficulty with all aspects of daily living, including housework and cleaning; such that she depended greatly on assistance from her children.

24.     One of the important issues for the Tribunal is the state of planned treatment for Mrs McKane’s shoulder condition as at the time of her DSP claim.  At around that period, Mrs McKane had been referred to a specialist clinic at the Royal Melbourne Hospital.  She gave evidence that she saw a series of different doctors and was given different advice about treatment.  She was very clear in her recollection that at the time of the work capacity assessment on 6 July 2005, she understood that the preferred treatment was going to be major surgery to her right shoulder.  Later that advice was changed to hydrodilatation under general anaesthetic, a procedure she still awaits.

25.     As the Tribunal has to examine the state of Mrs McKane’s health as at June 2005, later evidence which may reflect a natural progression of her conditions is of relevance only in so far as it may support or not support the notion that her health has worsened.  Accordingly, I have especially looked in three places for contemporaneous evidence – viz. the treating doctor’s report of 10 June 2005, Ms Symonds’ work capacity assessment on 6 July 2005 and the claim form submitted by Mrs McKane dated 10 June 2005.  The more recent work capacity assessment, carried out by Ms Natividad on 28 June 2006, has been given less weight, as it is in the nature of a retrospective assessment.

26.     Dr Tyshing’s report dated 2 June 2005 is appropriately detailed and provides the diagnoses of right rotator cuff pathology and right wrist and hand pain.  Dr Tyshing reported, in relation to the right shoulder, that Mrs McKane was Unable to use R arm at all.  Unable to do any housework and struggles with ADLs [ie activities of daily living] and in relation to the right wrist and hand that she was unable to lift objects with R hand.  Drops things easily.  Dr Tyshing noted that the effect on Mrs McKane’s ability to function was expected to persist for more than 24 months and that within the next two years the effect of both conditions on her ability to function was expected to remain unchanged.  In her response to the latter question, in regard to the shoulder complaint, Dr Tyshing ticked two boxes, one remain unchanged and the other uncertain.

27.     Ms Symonds’ work capacity assessment contains the following relevant information.  Mrs McKane told her that she had previously had surgery to her right elbow and hand in November 2000 and was on the waiting list for further surgery to her right shoulder.  She was living alone in rental accommodation and was able to use public transport effectively.  Her right shoulder and wrist problems impacted on her physical functioning in terms of manual handling and strength.  Ms Symonds reported that:

…Customer is interested in accessing vocational rehabilitation support to explore work and training options…

…Very motivated to increase levels of participation and consider assistance that may be considered appropriate. 

Ms Symonds further stated:

Although further medical management is likely to improve ongoing pain to right shoulder, the customer’s capacity to return to full-time employment will remain restricted due to frequent pain to right elbow and hand/wrist and lack of suitable transferable skills.

Ms Symonds assessed Mrs McKane’s current work capacity to be 0-7 hours per week and within 6-24 months felt that this would increase to 30 plus hours per week.  This was qualified in the following terms: Training will enable the customer to [return to work] (30+hrs/week) within two years, subsequent to improvement of right shoulder condition.

28.     Ms Symonds provided a detailed description of the physical restrictions as described by Mrs McKane.  This is reproduced in full as it goes directly to the question at issue:

Right (dominant) rotator cuff pathology; right wrist and hand pain and left (non‑dominant) arm pain/discomfort associated with favouring left arm.  Reduced range of movement when reaching up (cannot lift right arm above shoulder level; can reach above shoulder level with left-arm), back (very limited with right arm; can reach back with left-arm), and forward (can reach forward gently with both arms, but pain on stretching forward with right arm), lifting/carrying (right-hand restricted to approx. <1kg; left-arm restricted to approx. <5kg), holding (sometimes cannot hold light items such as coffee cup with right-hand; tendency to drop items; uses both hands to hold heavier weight such as full saucepan), gripping (difficulty undoing jars/lids; favours left hand for gripping tasks requiring strength); writing (can write for short time; pain and swelling to hand on prolonged writing); and finger function tasks (some difficulty with finger function such as doing up/undoing buttons in morning, otherwise usually able to pick up small items, use buttons and zips).  Can open/close both hands fully. Customer confirmed that she is right hand dominant.  Customer reported intermittent pain/discomfort to left upper arm due to favouring left [sic] arm.  Right upper limb condition determined as temporary because TDR indicates that further treatment is planned for right shoulder and that prognosis regarding right shoulder condition is uncertain.

29.     In her claim form Mrs McKane writes as follows:

I have been to three different hospitals because the first two told me they were leg specialists and all three have given me three different opinions one says one thing then the next says something else.  I am hoping now I am seeing an arm specialist at the Royal Melbourne.  They will find out what is really wrong with my right arm.  

In response to specific questions on the claim form, Mrs McKane indicated that her disabilities often made it difficult for her operate everyday household appliances,  manage her personal affairs and for her to lift and to carry.

30.     Ms Natividad gave oral evidence to the Tribunal to support her detailed work capacity assessment report of 28 June 2006.  She said that she explained to Mrs McKane that her task was to assess Mrs McKane’s present work capacity and her capacity as at June 2005.  Mrs McKane told the Tribunal that she was not so advised.  Given the detailed nature of the questions recorded as having been put to Mrs McKane on that day, I am satisfied that Mrs McKane was adequately alerted to the fact that the work capacity assessment report was to cover both periods of time.

31.     In regard to Ms Natividad’s assessment of Mrs McKane’s incapacities as at June 2005, I note the following excerpts of descriptions given to Ms Natividad by Mrs McKane:

…I am doing half of what I was able to do last June…

She stated that pain restricted her ability to perform many activities of daily living, however she indicated that she was still able to hang washing, clip canines, knit, sew and garden…

Customer reported a deterioration of her R upper limb resulting in significant impairment of function.  She stated that she was no longer able to knit, sew, garden nor hang washing. She remained independent with personal care, however reportedly had to modify tasks.  She was dependent on her children for completion of most domestic chores.  Customer was still awaiting the 2nd hydrodilatation and no further treatment was planned…

32.     I note that Ms Natividad in retrospect regarded Mrs McKane’s conditions in June 2005 as having been fully diagnosed, treated and stabilised and allocated an impairment rating of ten points under Table 3 of the Impairment Tables.

33.     I am satisfied that the preponderance of the evidence supports the conclusion that in June 2005 and during the subsequent 13 weeks, Mrs McKane’s disabilities were not as severe as they are now.  This conclusion is based particularly on the information given to professional rehabilitation consultants by Mrs McKane, especially that recorded by Ms Symonds, which was contemporaneous with the claim period.

34.     I note again Mrs McKane’s clear recollection of the point in time where the suggestion that surgery was needed for her shoulder was replaced by the recommendation that she have a second hydrodilatation therapy under general anaesthesia.  She gave evidence that the first hydrodilatation was under local anaesthesia and vividly recalled how painful this was.  This evidence supports the evidence that Ms Symonds was aware that shoulder surgery was planned and thus makes it open to her to conclude that Mrs McKane’s shoulder condition was not yet fully treated and stabilised.

35.     It is necessary that I comment on one small aspect of the reasoning of the SSAT.  I respectfully disagree with the SSAT’s finding that Mrs McKane’s shoulder condition had been treated and stabilised, for two reasons.  First, as mentioned above, at the time the DSP claim was rejected, the planned treatment was surgery.  Second, even if this were not the case, I disagree with the SSAT’s interpretation of a second hydrodilatation as simply being a repeat of a therapy which had failed.  It would appear that the SSAT was unaware that the second treatment was planned to be under general anaesthesia.

36.     Finally the Tribunal must consider the differing views of Mrs McKane’s disability as at June 2005 as expressed by her own doctor and by Ms Symonds.  For it is this area that, it is clear, Mrs McKane feels aggrieved.  The respondent submitted that the roles and skills of a treating doctor and a work capacity assessor covered different domains.  This was explained in relation to the government policy in introducing such assessments, by reference to the Guide to Social Security Law and by reference to previous discussions of the different roles as recorded in earlier decisions of this Tribunal.

37.     With regard to Government policy, it was described thus by the respondent in the Statements of Facts and Contentions:

…[The September 2002] Australians Working Together Budget initiative provides for a greater focus on the assessment of work capacity and the identification of early interventions with a view to maximising social and economic participation of people who are ill, injured or have a disability.  This includes making better use of a range of internal and external assessors to advise Centrelink on a person’s work capacity and involves interaction with customers to determine their capacity for work or participation, rather than just accepting a customer's medical certificate or doctor's report…

…

The ‘Better Assessment and Early Intervention’ measure introduced a ‘streaming’ procedure whereby Centrelink officers would consider new claims for disability support pension and make an informed decision as to the appropriate assessor to provide the information required to determine the person’s eligibility for the pension.  That is, whether the person should be assessed by a medical assessment service provider…a work capacity assessor or a Centrelink psychologist.

38.     The role of medical assessors as compared to work capacity assessors is described in part 3.6.2.120 of the Guide to Social Security Law thus:

…

[Medical assessment service providers] will be well placed to identify barriers closely associated with a person's medical condition/s, and will be able to recommend medical interventions such as injury rehabilitation and pain management courses to address these issues.

Whereas work capacity assessors:

…are likely to be familiar with a broader range of non-medical barriers, including vocational, psychological, and socio-economic barriers. They will be well placed to recommend interventions such as occupational and vocational rehabilitation, counselling and employment assistance.

39.     The respondent drew attention to previous consideration of the different roles of medical practitioners and work capacity assessors by this Tribunal in Re Sargeant and Secretary, Department of Family and Community Services [2005] AATA 1076 where the Tribunal said at paras 18-19:

The tribunal places considerable weight on the conclusions by Ms McDonald, an experienced and qualified rehabilitation consultant, whose report was comprehensive and took into account the applicant's particular needs and limitations. The tribunal also accepts the reports from Dr Goh and Dr Paulson, who recommended a gradual return to work following appropriate vocational rehabilitation, because the applicant's conditions would prevent her from undertaking her previous occupation of telephone switchboard operator.

The Tribunal prefers these reports to that of Dr Rodgers, whose opinion that the applicant would not be able to return to part-time work in the next two years, did not take into account the availability of specially-designed rehabilitation programs with modern technology. The Tribunal notes the symptoms of the applicant's depression/anxiety, but takes into account her evidence that she is able to perform some household tasks and that she is prepared to try participating in an appropriate program.

40.     The respondent also drew the Tribunal’s attention to Re Muir and the Secretary, Department of Employment and Workplace Relations [2005] AATA 902 where the Tribunal stated at para43:

The evidence before the Tribunal in the shape of the work capacity report establishes the applicant is able to work 30 hours per week performing telemarketing activities, which the Tribunal is satisfied amounts to work of a light nature. While the applicant was critical of the person at who undertook the work capacity assessment, those criticisms centred upon the absence of medical qualifications of the work capacity assessment (Ms Webster). The Tribunal agrees with the contention of the respondent 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 within the meaning of section 94(1)(c) of the Act.

41.     Mrs McKane was not represented and was thus at a disadvantage in not being able to respond formally to these submissions from the respondent. Nevertheless, I find these submissions crucial to understanding the different roles of the treating doctors and work capacity assessors.  And thus the submissions are also crucial to my attaching appropriate weight to different assessments of Mrs McKane’s medical conditions.

42.     The specific purpose of the work capacity assessment conducted by Ms Symonds was to determine the effect of Mrs McKane’s medical conditions as certified by Dr Tyshing.  While Mrs McKane wants this Tribunal to accept Dr Tyshing’s report as indicating that she was unfit for any work for the next 24 months, I am unable to do that, as I am not satisfied that Dr Tyshing was in a position to consider the requirements of the legislation or the steps by way of retraining that might have been open to Mrs McKane to help her back into the workforce, despite her painful conditions.  I acknowledge that after the event and consequent (in the Tribunal’s view) upon deterioration of Mrs McKane’s condition, Dr Tyshing can now be seen to have been proven correct.

43.     However, in my view the weight of the evidence supports the correctness of Ms Symonds assessment in early July 2005.  She noted the expressed wish of Mrs McKane then as being very motivated to increase levels of participation.  Ms Symonds is highly likely to have been influenced by the prospect of restorative surgery for Mrs McKane’s right shoulder problem.  In the absence of any new evidence supporting Mrs McKane’s present contention as expressed to me, that her condition has not altered since mid-2005, I am persuaded that Centrelink made the correct decision.

44.     As slightly different conclusions (but with the same end result) have been made by SSAT or proffered by Ms Natividad, the Tribunal wishes to make clear its findings.  The Tribunal finds as follows:

(a)pursuant to s 94(1)(a) of the Act, Mrs McKane suffered as at 10 June 2005, and for the subsequent 13 weeks, from the physical conditions of rotator cuff pathology and right wrist and hand pain; and

(b)that pursuant to s 94(1)(b) of the Act, Mrs McKane’s right shoulder condition had not been fully treated and stabilised. Accordingly no impairment rating can be allocated to Mrs McKane for this disability and thus the requirements of s 94(1)(b) are not met.

45. Failure to meet just one of the requirements for DSP prescribed in s 94(1) of the Act, results in a failure to qualify for DSP. Thus it is not necessary for the Tribunal to consider whether Mrs McKane has a continuing inability to work.

46.     There remains a small hiatus in the consideration of the medical evidence as assessed at the relevant time which I feel should be remarked upon.  Dr Tyshing described two conditions, one being the right rotator cuff injury and the other being a longer-standing problem with her right wrist and hand.  Ms Symonds assessment of incapacity appears to have considered this as a single global impairment of the right arm, as did the SSAT.  While it might have been open to this Tribunal to consider the issues separately, I am satisfied on review of the assessments of the three work capacity assessors that the conclusion reached as to the correct decision in July 2005 would also have been reached by this Tribunal.

DECISION

47.     The Tribunal affirms the decision under review.

I certify that the forty‑seven [47] preceding paragraphs are a true copy of the reasons for the decision of:

Dr K. Breen, Member

(sgd)     Olympia Sarrinikolaou

Clerk

Date of hearing:  27 October 2006

Date of decision:  27 November 2006
Advocate for the applicant:          Self‑represented
Advocate for the respondent:       Mr P. Mentor
Solicitor for the respondent:        Sparke Helmore Lawyers