Michael Blow and Secretary, Department of Social Services

[2015] AATA 289

[2015] AATA 289

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2015/0099
Re	Michael Blow
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr M Denovan, Member
Date	1 May 2015
Place	Brisbane

The Tribunal affirms the decision under review.

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Dr M Denovan, Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability Support pension – DSP – 20 points or more under the Impairment Tables – Spinal condition – Amputation of thumb – Knee condition – Whether fully diagnosed treated and stabilised  - Decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), ss 23, 26, 94

Social Security (Administration) Act 1999 (Cth), s 13, Schedule 2

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 6

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

REASONS FOR DECISION

Dr M Denovan, Member

1 May 2015

1. Mr Michael Blow is the applicant in these proceedings. He lodged a claim for Disability Support Pension (“DSP”) on 3 July 2014. On 1 August 2014 the Respondent decided to reject this claim. An Authorised Review Officer (“ARO”) affirmed that decision on 30 October 2014 as did the Social Security Appeals Tribunal (“SSAT”) on 16 December 2014. The applicant applied to the Administrative Appeals Tribunal (“AAT”) on 9 January 2015.

2. I must decide whether Mr Blow met the eligibility criteria for DSP on 3 July 2014, or within 13 weeks of that date (“the relevant period”).

   ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION

3. The Social Security Act 1991 (Cth) (“the Act”) sets out the qualification criteria for DSP. To the extent that it is relevant for present purposes, s 94 of the Act provides that the applicant must:

   ·have a physical, intellectual or psychiatric impairment;

   ·have an  impairment of 20 points or more under the Impairment Tables;[1] and

   ·have a continuing inability to work.

   [1] See s 23 of the Act, whereby “Impairment Tables” means the tables determined by an instrument made under s 26(1) of the Act.

4. Under Sch 2 cl 4(1) of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”), an applicant must qualify for a social security payment, in this case DSP, on the day on which the person made the claim or within the relevant period. In this case the relevant period is from 3 July 2014 to 2 October 2014.

5. There are rules for applying the impairment tables (“the Tables”), in deciding if a person qualifies for DSP. The Tables are function-based, rather than diagnosis based. Ratings are assigned to reflect the level of functional impairment from conditions that have been accepted to be permanent, and fully diagnosed, fully treated and fully stabilised.

6. A person’s functional capacity rated under the Tables concerns their capacity to work. The presence of a diagnosed condition does not necessarily mean that there will be a functional impact to which an impairment rating can be assigned from the Tables.

7. A person is regarded as having a continuing inability to work under s 94 of the Act if the Secretary is satisfied that:

   ·they have an inability to work for 15 hours or more a week due to their accepted impairments; and

   ·they have actively participated in a program of support.

   This second requirement is not necessary if a person has a severe impairment of 20 impairment points or more under a single Impairment Table.

8. Before an impairment rating can be assigned under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Determination”),[2] it is necessary to determine whether Mr Blow’s conditions can be regarded as being permanent, and whether the impairment resulting from those conditions is likely to persist for more than two years.[3] A condition will be considered permanent where it has been fully diagnosed, treated and stabilised.[4]

   [2] The Determination was made by the Minister pursuant to s 26(1) of the Act.

   [3] s 6(3) of the Determination.

   [4] s 6(4) of the Determination.

9. The Secretary accepts Mr Blow suffers from the following conditions, and therefore satisfies s 94(1)(a) of the Act:

   ·Right knee condition;

   ·Spinal condition; and

   ·Left thumb amputation.

10. The Secretary accepts that the spinal condition and left thumb amputation are fully diagnosed, treated and stabilised conditions. The Secretary further contends that Mr Blow’s right knee condition is not fully diagnosed, treated and stabilised, and cannot be assigned a rating under the Tables.

11. The issues that I must determine are:

    ·Which, if any, of Mr Blow’s conditions meet all the legislative criteria within the relevant period to be allocated an impairment rating; and

    ·If any can be rated, whether he has 20 impairment points or more; and if so whether he has a continuing inability to work.

    Mr Blow’s evidence at the hearing

12. Mr Blow gave evidence by telephone at the hearing.

13. Mr Blow told me that he has been troubled by his back condition for many years. He has been a labourer all his life. After injuring his left thumb (non-dominant hand) in 2006 he ceased work. In 2010 he set himself up in the carpet cleaning business. He serviced private and commercial clients. He worked alone. The availability of work varied from week to week and when demand was high he would work seven days a week. Cleaning carpets required him to bend a lot and to hold the cleaning wand in such a manner that his hand would regularly be in pain. He was unable to continue cleaning carpets as after three to four hours he would have pain in his left hand and pain in his back.

14. He walked away from his business in 2012. He still owns the cleaning machine, which in his opinion has scrap metal value only. He sold his manual truck and purchased an automatic wagon. He said driving the manual truck troubled his left hand, however he still pursued work located a long way from his residence in Toowoomba. He told me he cleaned carpets as far away as Brisbane, Bribie Island, and Northern New South Wales.

15. Mr Blow said he has been on a waiting list for specialist review at the Princess Alexandra Hospital for the last three years. His knee impacts on his ability to squat and bend and to walk.

16. Mr Blow said he has tried prescription medications (medical records suggest Endep), however the tablets made him sick. He regularly takes Panadeine Osteo, but prefers to avoid medication, and takes little else for any of his pain. He attended physiotherapy for his back some years ago, and he claims he routinely performs the exercises that were recommended to him. Mr Blow was treated with a series of injections in his back. These provided short term relief only. Mr Blow could not recall any other therapy recommended by his doctor for his back, and said he has not pursued any. He has not been referred to a pain clinic or an orthopaedic surgeon.

17. Mr Blow lives alone. He resides in a caravan. He regularly drives to the town some 10 minutes away, and occasionally drives to see his 16 year old son, a round trip of approximately 3 hours. If he is financially able to, he takes his son to lunch or to the shopping centre. Mr Blow does his own shopping, cooking and laundry. He has no garden to attend to. Mr Blow told me he feels he has done all that Centrelink have asked of him, and he cannot understand why he is not entitled to DSP. He does not understand why Centrelink acknowledges he has a disability, but does not grant him DSP.

    CONSIDERATION

18. Mr Blow has provided two medical reports from general practitioner Dr Kahelin, dated 14 July 2014[5] and 26 August 2014,[6] respectively.

    [5]  T Documents, p. 76.

    [6]  T Documents, p. 95.

    Left thumb amputation

19. Unfortunately no mention of Mr Blow’s left thumb amputation or impairment that results from this condition is made in either of Dr Kahelin’s reports. Although the respondent has accepted this condition as one that is fully diagnosed, treated and stabilised, as a matter of common sense that is likely to be the case, it is not possible to allocate a rating from the impairment tables without medical evidence. The Job Capacity Assessment (JCA)[7] makes reference to a report from general practitioner Dr Stone. That report is not in the T documents, and I imagine this is because it was prepared some time prior to Mr Blow’s application for DSP currently under consideration. There are no specific details from Dr Stone’s report repeated in the JCA report, so I have no way of knowing what impairment, if any, Dr Stone identified as resulting from this condition.  Table 2 is used to assess an impairment affecting the upper limb. The introduction to that table makes it very clear that allocation of points cannot be made on the basis of the self-reporting of symptoms. There must be corroborating evidence such as the report of a doctor or medical specialist, or allied health professional such as a physiotherapist. The report must confirm the functional impairment that exists before a rating can be allocated. As there is no corroborating evidence before me I am unable to allocate a rating. Even if this information was available, on the basis of the evidence provided by Mr Blow, he would not meet the requirements for 5 impairment points or more from Table 2. This is because the assessment is based on what a person can do whilst using both of their hands. Following his amputation, Mr Blow was able to continue in full time employment, albeit with some difficulty when using a manual gear stick and cleaning wand, for a period of two years. He has not indicated he has difficulty with the tasks described in Table 2 to be eligible for 5 points. Even if medical evidence was available in relation to this condition, Mr Blow would not be eligible for 5 or more points from Table 2.

    [7]  T Documents, p. 87.

    Right knee condition

20. As stated, Mr Blow is currently awaiting specialist review for his knee. He has now spent a lengthy period of time on the hospital specialist review waiting list, and there is no indication as to when he will be reviewed by a specialist. In some cases, when the wait to see a specialist is indefinite, conditions can be regarded as fully diagnosed, treated and stabilised, because there is unlikely to be any change in the condition in the next two years.  Those cases usually involve persons waiting for treatment only from a specialist. Dr Kahelin has provided a presumptive only diagnosis, of meniscus tear.[8] Because the diagnosis is still in question, the condition can not be allocated a rating. On the basis of Dr Kahelin’s reports, I conclude that Mr Blow’s knee condition has not been fully diagnosed, treated or stabilised, and cannot be allocated a rating from the Tables.

    [8]  T Documents, p. 82 and p. 98.

    Spinal condition

21. Dr Kahelin indicated Mr Blow has lumbar spine degenerative disease.[9] On the basis of the medical reports of Dr Kahelin, I agree with the respondent’s position that this condition is fully diagnosed, treated and stabilised and can be allocated a rating from the impairment tables. Table 4 is used to assess impairments that result from conditions that affect spinal function.

    [9]  T Documents, p. 79 and p. 101.

22. Dr Kahelin has indicated that as a result of this condition Mr Blow has back pain and stiffness, poor lifting ability, and difficulty with sitting and standing for long periods including difficulty driving.[10]

    [10] T Documents, p. 80.

23. Mr Blow has indicated he can drive for more than 60 minutes without a break. He can therefore not qualify for 20 impairment points from Table 4, as a requirement for that rating is that a person is unable to remain seated for at least 10 minutes.

24. Although Mr Blow claims he has difficulty with overhead heights, Dr Kahelin has not made mention of this as a consequence of his spinal condition. It is not possible to know why Mr Blow has difficulty with heights, the impairment he describes raises the possibility of an undiagnosed rotator cuff injury.

25. Dr Kahelin has not suggested Mr Blow has any difficulty turning his trunk or moving his head.  Dr Kahelin has indicated as a result of Mr Blow’s knee condition, he has poor ability to mobilise and difficulty squatting and bending.[11] Similar functional impairments can sometimes be caused by more than one medical condition. Mr Blow currently has two medical conditions that appear to be contributing to some of his functional incapacity to perform some activities described in Table 4. Only functional impairment that is resulting from Mr Blow’s spinal condition can be allocated impairment points from Table 4. Whilst I accept Mr Blow has some difficulty bending over and straightening up again,[12] because of his knee condition, I am unable to be reasonably satisfied that this functional loss is as a result of his spinal condition. I am reasonably satisfied that Mr Blow’s functional impairment is no more than 5 points from Table 4.

    [11]  T Documents, p. 84.

    [12]  T Documents, p. 80.

    CONCLUSION

26. Mr Blow does have disabilities but does still not qualify for DSP. This is because, as I have set out in paragraph 3 of these reasons, having a disability is only one of the three broad requirements a person must satisfy to be eligible for DSP.

27. Mr Blow does not qualify for 20 or more points from the Tables, and therefore does not satisfy the second requirement for DSP contained in s 94(1)(b) of the Act.

28. He also had not completed a program of support for 18 months prior to lodging this application for DSP. The requirement is that a person completes 18 months of a program of support within a three year period. Completing a program of support is essential before Mr Blow can be regarded as having an incapacity to work. The other requirement that a person cannot work 15 hours or more for the next two years is also not met. For these reasons Mr Blow does not satisfy the third requirement for DSP contained in s 94(1)(c) of the Act.

    DECISION

29. The decision under review is affirmed.

I certify that the preceding 29 (twenty -nine) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

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Associate

Dated 1 May 2015

Date of hearing	15 April 2015
Applicant	In person
Solicitors for the Respondent	Mr Nicholas Warren, Department of Human Services