MICHAEL DEAKIN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 745
•30 October 2012
[2012] AATA 745
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1856
Re
MICHAEL DEAKIN
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 30 October 2012 Place Brisbane The Tribunal affirms the decision under review.
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Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Relevant period for assessment – Physical impairment in left knee and lower back – Back condition not fully diagnosed, treated and stabilised in the relevant period – No impairment rating under the Impairment Tables for back condition – Rating of 10 points under Table 4 of Impairment Tables for left knee condition - Applicant not qualified for disability support pension – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94, Sch 1B
Social Security (Administration) Act 1999 (Cth) Sch 2
REASONS FOR DECISION
Mr R G Kenny, Senior Member
30 October 2012
BACKGROUND
On 23 May 2011, Michael Deakin lodged a claim for disability support pension which is payable under the Social Security Act 1991 (Cth) (the Act). A medical report by his treating doctor, Dr Henry Ung, was provided in support of the claim. Therein, Dr Ung diagnosed “osteoarthritis (L) knee”. Mr Deakin’s claim was rejected by a Centrelink delegate on 4 July 2011. On 17 October 2011, an authorised review officer affirmed that decision as did the Social Security Appeals Tribunal (SSAT) on 22 March 2012.
LEGISLATION, ISSUES AND SUBMISSIONS
The qualifications for a disability support pension are set out in s 94 of the Act. It is common ground that Mr Deakin has a physical impairment, as diagnosed by Dr Ung, and that he meets the age and residency requirements of that provision. The remaining requirements in s 94 of the Act are:
·an impairment rating of 20 points or more as calculated under the Impairment Tables in Schedule 1B of the Act as required by s 94(1)(b) thereof; and
·a continuing inability to work as required by s 94(1)(c)(i) of the Act.
To qualify for a disability support pension, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the initial claim or in the period of 13 weeks from the day of the claim.[1] In Mr Deakin's case, this is from 23 May 2011 until 21August 2011 (the relevant period). The Introduction to Schedule 1B of the Act provides guidance in the application of the various Tables which it contains. Part of that Introduction requires that a rating is only to be assigned to a condition which is considered to be permanent in that it has been fully diagnosed, treated and stabilised and is likely to persist for more than two years.
[1] See Schedule 2, clauses 3 and 4 of the Social Security (Administration) Act 1999 (Cth).
The initial decision and that of the authorised review officer were made on the basis that Mr Deakin did not have a continuing inability to work. In their decisions in this matter, the authorised review officer and the SSAT accepted that Mr Deakin suffered from the condition diagnosed by Dr Ung (i.e. osteoarthritis left knee). In a report dated 27 July 2011, another of Mr Deakin’s treating doctors, Dr Janaka Hendahewa, diagnosed Mr Deakin as also having degenerative changes to his lumbar spine. In its decision, the SSAT referred to Mr Deakin’s spinal and left knee conditions. For the former, the SSAT allocated no rating on the basis that it was not fully diagnosed, treated and stabilised during the relevant period. For the latter condition, it determined that the appropriate impairment rating under Table 4 of Schedule 1B was 10 points and rejected Mr Deakin’s claim as the overall impairment was less than the 20 points required under s 94(1)(b) of the Act.
CONSIDERATION
During the relevant period, job capacity assessment (JCA) reports were provided on 24 June 2011 by “Dean” and on 18 August 2011 by “Jannell”. Dean also submitted a JCA report on 19 September 2012 and gave evidence. In his second report and in his evidence, Dean expressed the opinion that Mr Deakin’s left knee osteoarthritis was fully diagnosed, treated and stabilised as at the date of his claim. This has been conceded by the respondent and, on the medical evidence available, I am satisfied that the concession was properly made.
In his first report, Dean made no reference to Mr Deakin’s spinal condition. In his second report and in Janell’s report, the condition is noted but assessed as not having been fully diagnosed, treated and stabilised during the relevant period. In his evidence, Dean confirmed that opinion. Dr Ung made no reference to Mr Deakin’s spine. The report of Dr Hendahewa referred to treatment with analgesics. Janell’s report noted that there had been no recent physiotherapy, no specialist review and no pain management in relation to the spinal condition. In his second report, Dean noted that Mr Deakin had not accessed all reasonable treatment of physiotherapy, pharmacotherapy review, pain management or orthopaedic review. Both Dean and Jannell made reference to the available medical evidence and I am satisfied that Mr Deakin’s spinal condition was not fully diagnosed, treated and stabilised during the relevant period and that no impairment rating may be allocated to that condition.
In her report, Jannell noted that Mr Deakin’s left knee condition caused knee swelling, difficulty in bending and straightening of his left leg, difficulty with ladder or stair climbing and periods of locking up. In his first report, Dean described generalised knee pain and stiffness which restricts mobility, an inability to squat or kneel, and reduced tolerances for sitting 30 minutes, standing 30 minutes and walking 15 minutes. He also noted that Mr Deakin reported that his self-care was unaffected but that he had lost efficiency with performing most activities of daily living. In his second report and in his evidence, Dean confirmed that description of Mr Deakin’s capacity except that he noted Mr Deakin reported “no problems” with a wide range of activities of daily living. He also noted that Mr Deakin detailed his grocery shopping activities as involving his walking some 250 metres to the shopping centre, completing the shopping with the use of a trolley, returning to his home with the laden trolley and carrying 3-4 bags of groceries into his house. He also noted that Mr Deakin takes rest breaks during that process. Dean referred to Mr Deakin’s use of a walking stick at the time of his 2012 assessment but not in the earlier assessment which was during the relevant period. Dean’s opinion was that Mr Deakin’s impairment from his knee condition had increased in the interval between his assessments of him. His opinion was that the appropriate rating under Table 4 in Schedule 1B of the Act was 10 points. He said that there was insufficient objective medical material or information from Mr Deakin’s self-reporting to justify a higher rating.
In his evidence, Mr Deakin confirmed that his grocery shopping was correctly described by Dean although he said that he had a walking stick around the time of his claim but did not use it as much as he now does. He agreed that the condition had worsened over the previous 12 months and that he now lies down to rest more than he did 12 months ago. He confirmed the sitting, standing and walking tolerances as described by Dean.
Table 4 of Schedule 1B of the Act reads:
TABLE 4: FUNCTION OF THE LOWER LIMBS
Table 4 is used to assess lower limb not spinal function (see Table 5). Assess both limbs together. Determination of lower limb impairments must be based on a demonstrable loss of functions.
Rating
Criteria
NIL
Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.
TEN
Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking to 250‑500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.
TWENTY
1. Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
2. Pain or claudication restricts walking (4km/h) to 50‑250m or less at a time. Can walk further after resting or
3. Unable to walk or stand but independently mobile using a self‑propelled wheelchair.
THIRTY
4. Pain or claudication restricts walking (4km/h) to 50m or less at a time. Can walk further after resting or restricted to walking in and around home and:
5. requires quad stick, crutches or similar walking aid, or
is unable to transfer without assistance.
FORTY
6. Unable to walk or stand and mobile only in a motorised wheelchair or wheelchair with an attendant.
I am satisfied that the criteria set out at the 10 point level in that Table appropriately describes the level of impairment experienced by Mr Deakin during the relevant period. In so determining, I accept that his impairment level may well have exceeded that level subsequent to the relevant period. As noted above, I am also satisfied that no additional impairment rating may be allocated to any other of Mr Deakin’s conditions during the relevant period. This means that Mr Deakin’s overall impairment is less than the threshold of 20 points for him to qualify for the disability support pension under s 94 of the Act. For that reason, Mr Deakin’s claim for disability support pension is unsuccessful.
Although not necessary for the decision, I have also noted that both of the JCA reporters assessed Mr Deakin as not having a continuing inability to work as provided for in s 94(1)(c)(i) of the Act.
DECISION
The decision under review is affirmed.
13. I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
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Associate
Dated 30 October 2012
Date of hearing 22 October 2012 Applicant By video-link
Representative for the Respondent Karen Hamilton
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