Michael Featon and Secretary, Department of Social Services
[2014] AATA 454
•7 July 2014
[2014] AATA 454
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4652
Re
Michael Featon
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 7 July 2014 Place Sydney The Tribunal sets aside the decision under review and instead decides that Mr Featon satisfies the requirements of section 94(1)(a),(b) and(c) of the Social Security Act 1991.
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Ms N Isenberg, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether Applicant’s conditions fully diagnosed, treated and stabilised – whether Applicant has a continuing inability to work – whether a condition satisfies a 'severe impairment' rating – whether requirement to participate in a program of support – decision under review set aside
LEGISLATION
Social Security Act 1991 (Cth) ss 94, 94(1), 94(3B)
Social Security (Administration) Act 1999 (Cth), s 42 and Sch 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
CASES
Niemann and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 27
Summers and Secretary, Department of Social Services [2014] AATA 165
SECONDARY MATERIALS
Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension
REASONS FOR DECISION
Ms N Isenberg, Senior Member
7 July 2014
The Applicant Michael Featon, suffers from osteoarthrosis of the left knee, trigger fingers (left and right little fingers), bilateral carpal tunnel syndrome, type II diabetes, sleep apnoea, and hypertension. He seeks review of a decision to refuse his application for disability support pension (DSP).
The Applicant applied for DSP on 30 November 2012. For his application to succeed, he had to qualify for DSP on that date or within 13 weeks, that is by 1 March 2013 (‘the relevant period’): s 42 and Sch 2 of the Social Security (Administration) Act 1999.
To qualify for DSP during the relevant period, the Applicant had to satisfy the following criteria in s 94 of the Social Security Act 1991 (the Act):
(i)a physical, intellectual or psychiatric impairment, or impairments, which are rated at 20 or more points according to the Impairment Tables in the Act; and
(ii)a continuing inability to work as defined in the Act; and
(iii)in a case where not one of the Applicant’s impairments attracts an impairment rating of 20 points, the Applicant has actively participated in a program of support.
The first question, therefore, is whether the Applicant’s conditions rated 20 or more points on the Impairment Tables during the relevant period. If not, then his application cannot succeed.
The Impairment Tables
The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
An impairment rating can only be assigned if:
(a)the condition causing that impairment is permanent; and
(b)the impairment is more likely than not to persist for more than two years.
A condition is considered permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, it has been fully treated and fully stabilised, and it is more likely than not to persist for more than two years: cl 6(4).
In deciding whether a condition has been fully diagnosed and fully treated, the following must be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.
A condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Reasonable treatment means treatment that:
(a)is available at a location reasonably accessible to the person;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the person.
CONSIDERATION
The Applicant gave evidence at the hearing, as did his GP, Dr Karina Lim. Dr Lim has been the Applicant’s general practitioner since September 2012, although he had been a patient of the practice since July 2012. While she was on maternity leave other doctors at her practice attended to the Applicant.
In his claim for DSP, the Applicant listed his conditions as depression, sleep apnoea, hypertension, collapsed knee and diabetes. At the hearing though the Applicant denied that he had suffered depression and was unable to explain why that condition had been listed on his claim form. He was unsure if his GP or the counter clerk at Centrelink had assisted in filling out the form. The Applicant conceded that his sleep apnoea, hypertension, and diabetes were all well under control and had no or minimal impact upon his work ability. As a result, the impairment for each of those conditions is NIL.
The main conditions affecting his work ability are his left knee condition and his upper body conditions – his bilateral carpel tunnel and trigger fingers (left and right little fingers).
Osteoarthrosis of the left knee
Dr Lim’s evidence was that, from her notes, the Applicant first complained of significant problems with his knee on 19 October 2012. At that time she discussed the likelihood of osteoarthrosis and she immediately ordered an x-ray which confirmed the diagnosis. That day she referred him to Dr Gray, orthopaedic surgeon, but when it was ascertained that he was unable to get an appointment until October 2013, he was referred instead, on 10 April 2013 to Dr Bateman, because his knee condition had deteriorated to such an extent that he was unable to wait several more months. At the time of the referral he was described as ‘barely coping’ and the Applicant believes Dr Lim called in a favour to have Dr Bateman see him urgently, albeit 6-8 weeks. Dr Bateman saw the Applicant on 16 May 2013 and immediately put him on the hospital waiting list for a total knee replacement, which, as anticipated, was a year long. The Applicant underwent surgery on 6 May 2014.
The Respondent referred to the Job Capacity Assessment (JCA) carried out by a Department of Human Services registered occupational therapist on 14 February 2013. The assessor wrote that the Applicant was booked in for a total knee replacement surgery on 17 October 2013 with Dr Gray. This contrasted to the Applicant’s evidence that he never saw Dr Gray and the appointment of 17 October 2013 was a ‘pre-surgery’ appointment. I prefer the account of the Applicant and that of Dr Lim, recorded above.
At the JCA the Applicant described severe knee pain which limited walking, standing and general ability to carry out physical task. The pain was constant. He was unable to stand for a maximum of five minutes before needing to rest. He was unable to kneel or squat. Stairs were difficult. The knee was tending to give way and the Applicant reported having trouble negotiating gutters and the like. He was unable to drive.
At the hearing the Applicant gave broadly consistent evidence. He said he had bought a large tug boat with a view to running it as a business venture, but found he was unable to manage it. It is moored and he went to live on it in June or July 2012, because he could not afford the mooring fees as well as accommodation. It has no stairs and his brother has rigged up a step/plank for access and he pulls himself along by a rope. He lives in the day cabin. Because the boat is so heavy and the mooring is secure it does not rock and he is able to get around, but mostly lives in the 6”x6” day cabin. He does not leave the boat other than for medical appointments, to which his brother takes him. His brother also brings him provisions, notably gas and water. Such cleaning and washing as is necessary is done by his brother. He was able to prepare his own simple meals. He said he has a car but has not driven for a long time.
Dr Lim said that the Applicant had attended the practice on only two prior occasions to 19 October 2012 when he had first complained about his knee. On those occasions he attended about unrelated matters. Her view was that the Applicant, like many middle-aged male patients, endured the pain in his knee, hoping it would subside. She regarded that type of stoicism to be consistent with the Applicant’s personality. The Applicant’s evidence was that his knee had been ‘playing up’ for ‘a while’ before he mentioned it. I also observe that in the Medical Certificate written by Dr Strazzari dated 13 December 2012 the doctor, in referring to the Applicant’s ‘knee pain’ wrote that the date of onset was 13 December 2011 which would tend to suggest that the Applicant had mentioned he had experienced knee pain for about a year or that the doctor formed the view that the severity of the condition as presented was consistent with clinical onset of at least a year’s duration.
On 29 January 2013, Dr Eric Lim, seeing the Applicant for the first time, completed a Medical Report in which he wrote that the Applicant had severe knee pain and could not walk and that the condition was worsening. The Applicant, he wrote, had had no past treatment for the condition.
On 27 February 2013, Dr Karina Lim completed a further Medical Report in which she listed the Applicant's condition with the most impact as left knee osteoarthritis. She wrote the Applicant had commenced wearing a knee brace on 19 October 2012 and was taking Panadol. His current symptoms were left knee pain, a limp, the need to rest after 10 metres and poor endurance. Dr Lim, referring to her notes, said that on 27 February 2013 she had prescribed Tramadol for the Applicant to provide stronger pain relief than Panadeine forte.
Outside the relevant period, in her Medical Certificate of 10 April 2013, Dr Karina Lim said the Applicant’s left knee caused pain and was locking and giving way, limiting his mobility. Further, in her Medical Report of 31 May 2013 Dr Lim referred to the Applicant as having progressive knee pain, and the knee gave way, and was unstable. The Applicant was prone to falling and was unable to walk more than 10 metres. The condition would deteriorate until it was operated on.
The Respondent contended that the condition could not be regarded as permanent during the relevant period. The Respondent relied on the report of Dr Catherine Moore of the Department’s Health Professional Advisory Unit (HPAU) dated 26 February 2014. Dr Moore, who reviewed the available medical evidence, was of the view the condition was not fully treated and stabilised if the Applicant was on a waiting list for a Knee Replacement in October of 2013 when reviewed for his initial JCA on 15 February 2013 then the condition could not be considered to be fully diagnosed treated and stabilised because there would have been sufficient time for recovery in the next 24 months to conclude the Applicant’s knee condition was likely to improve within that time period. If he was not on a waiting list at that time, given that waiting times in public hospital systems for knee replacements can be prolonged – and acknowledged that Gosford hospital states that it can be longer than 365 days – plus allowing for probable lengthy recovery, the condition could be considered fully diagnosed treated and stabilised. I have some difficulty with this contention.
Firstly, there was no doubt that the Applicant’s condition was fully diagnosed. The Applicant was wearing a knee brace and his medication was increased in February 2013. The Respondent submits that he had not even seen an orthopaedic surgeon until after the relevant period, and so the condition could not be considered to be fully treated. I reject this contention, because it fails to take into account that even prior to the relevant period, in October 2012 the Applicant was identified as a candidate for surgery. When it was ascertained that he could not even obtain a consultation with the orthopaedic surgeon until October 2013 another specialist was arranged urgently.
The Respondent also contended that the condition could not be considered to be fully stabilised because the Applicant had not undertaken reasonable treatment. It conceded that hospital waiting lists are to be taken into account and referred me to the Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension. The Respondent also referred me to Niemann and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 27 but there, no treatment procedure had been prescribed during the relevant period. The present matter differs to Niemann because, as I have mentioned above, by October 2012 the Applicant had already been identified as a candidate for surgery and the need for a referral to an orthopaedic surgeon. It is reasonable to take into account not only the hospital waiting time, but the delay in even obtaining an appointment.
The Respondent submitted that the evidence in relation to hospital waiting list was anecdotal, but Drs Lim, Bateman and Moore all referred to hospital waiting lists. In fact the T-Documents contained a letter from the Central Coast Local Health District dated 22 May 2013 that the Applicant had been placed on the waiting list and that the approximate waiting time was 12 months.
I find that during the relevant period the Applicant’s knee condition was permanent, as defined.
As to the appropriate impairment rating for the condition, the relevant Table provides as follows:
10
There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
20
There is a severe functional impact on activities using lower limbs.
(1) The person:
(a) is unable to do any of the following:
(i) walk around a shopping centre or supermarket without assistance;
(ii) walk from the carpark into a shopping centre or supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b) requires assistance to use public transport.
(2) This impairment rating level includes a person who requires assistance to:
(a) move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b) move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
The Respondent contended that during the relevant period the appropriate rating for the condition is 10 points under Table 3.
In my view the Applicant easily satisfied the descriptor for 10 impairment points. As to whether he met the very strict criteria for 20 impairment points, the Respondent contended firstly, that there is no evidence that during the relevant period, the Applicant required the assistance of another person to walk around a shopping centre, or to walk from the car park into the shopping centre. In view of the evidence that the Applicant was not able to do any shopping himself and required his brother to take him to medical appointments, I consider the Applicant meets this requirement.
The Respondent also contended that the Applicant did not require assistance to move around using walking aids because he had never in fact used a walking stick.
The Guide, to which the Respondent referred, contains in relation to Table 3 advises, relevantly, that 2(b), of the 20 point descriptor, applies where the person uses a walking aid, and that if such an aid is used, satisfaction of the provision is mandatory. As the Applicant has not used a walking stick – and in his ‘home’ environment such an implement was unlikely to be practicable in any event – the provision does not apply. Dr Lim’s evidence was that a stick would have been ‘unsafe’.
I was referred to In Summers and Secretary, Department of Social Services [2014] AATA 165, the Tribunal decided:
16. The question of whether Mr Summers' left lower limb impairment should attract a rating of 10 points or 20 points comes down to whether, when he walks from his parked car to a shopping centre, he is able to do so without "assistance". "Assistance" is not defined in the tables or in the Act The Secretary urged on me an interpretation of "assistance" that would mean that the assistance referred to is assistance from another person, rather than assistance from an object, such as a shopping trolley, a walking stick or a hand rail. The Secretary submitted:
The proper context for the descriptors for 10 and 20 points in Table 3 includes [paragraph] 9 of the Impairment Tables Determination. ... [Paragraph] 9 states that a person's impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses. Thus, the descriptors for 10 and 20 points in Table 3 are to be read in [Mr Summers'] case on the basis that he is normally using his walking stick and other aids such as trolleys in shopping centres, it would be superfluous to mention "aids, equipment or assistive technology" in the descriptors, because the rule in [paragraph] 9 of the Impairment Tables Determination requires them to be taking into account, it follow that "assistance" in the descriptors for 10 and 20 points in Table 3 does not extend to "aids, equipment or assistive technology" but is limited to assistance from a person.
17. I accept this submission. The conclusion that "assistance" refers to assistance from a person and not from an object or physical aid is inescapable.
I do not consider my approach to be inconsistent with that in Summers.
The Respondent also contended that there was no evidence that the Applicant was not able to stand up from a sitting position without assistance. I agree there was no direct evidence on this point. The medical evidence of his treating doctors and even the JCA during the relevant period however is clear – the Applicant had severe mobility issues that precluded him from walking for five minutes before having to rest, he limped and was unable to squat or kneel. His knee tended to give way and he had poor endurance. He was ‘house’ bound. By contrast, Dr Moore of the HPAU, following a review of all the medical evidence, wrote that:
In general most people who have impairment limited to one lower limb should be able to stand up from a sitting position without assistance…
I do not consider the doctor’s general observation to be helpful in circumstances where she did not have the opportunity to examine the Applicant.
The Respondent also noted that Dr Bateman had assigned the Applicant to a waiting list category according to his clinical needs and elected to put the Applicant onto the longest waiting list – 365 days as opposed to 90 days – on the basis that the Applicant's condition was unlikely to deteriorate quickly and had little potential to become an ‘emergency’. I do not draw any conclusion adverse to the Applicant and consider that that almost no knee condition would be properly categorized as an ‘emergency’.
I have therefore come to the view that, during the relevant period, the Applicant’s lower limb function attracted a rating of 20 impairment points and is properly described as ‘severe’.
Having come to this view it was unnecessary for me to consider the Applicant’s bilateral carpel tunnel and trigger fingers, but for completeness, now do so, albeit with an abridged discussion.
Bilateral Carpel Tunnel and Trigger Fingers
The Respondent accepted that during the relevant period, the Applicant's bilateral trigger fingers of the left and right little fingers and bilateral carpal tunnel syndrome were fully diagnosed. However, the Respondent contended that at the time of claim, the conditions were not fully treated and stabilised.
Dr Lim, after referring to her notes, said that that Applicant had attended the surgery on 3 January 2013 complaining of pins and needles in his hands, tingling and loss of grip strength. Blood tests were ordered to eliminate a B12 deficiency. On 14 January 2013, the Applicant was referred for an x-ray of his hands by Dr Strazzari. He was found to have bilateral trigger finger (left and right little fingers). On 7 February 2013, the Applicant underwent nerve conduction tests with Assoc. Professor Sturm, and the findings were consistent with bilateral median nerve entrapment at the wrist, severe on the right and moderately severe on the left. On 13 February 2013, Dr Lim referred the Applicant to Dr Myers, a hand specialist. On 27 February 2013, in her further Medical Report Dr Lim noted the Applicant’s symptoms as hand tingling, pain and poor grip strength. He was waiting for a consultation with Dr Myers and surgery was foreshadowed.
Again, because of delay, Dr Lim referred the Applicant to Dr Bateman in relation to his hands as well as his knee. As Dr Bateman observed, the Applicant could only be on the waiting list for one condition at a time, so the Applicant is only now, following his knee surgery able to be wait-listed for hand surgery. Dr Lim did not know if it was possible to be wait-listed for two conditions in different hospitals or with different surgeons. It was even unclear if only one wrist could be repaired at a time.
For the reasons discussed above in relation to the Applicant’s knee condition, the delay in obtaining an appointment and placement on the waiting list to be no impediment to finding that the during the relevant period, the Applicant’s condition was permanent, as defined.
As to the appropriate impairment rating, Table 2 – Upper Limb Function relevantly provides:
10
There is a moderate functional impact on activities using hands or arms.
(1) The person has difficulty with most of the following:
(a) picking up a 1 litre carton full of liquid;
(b) picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
(c) holding and using a pen or pencil;
(d) doing up buttons or tying shoelaces;
(e) using a standard computer keyboard;
(f) unscrewing a lid on a soft-drink bottle.
20
There is a severe functional impact on activities using hands or arms.
(1) Most of the following apply to the person:
(a) the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b) the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c) the person has difficulty using a computer keyboard despite appropriate adaptations;
(d) the person has severe difficulty using a pen or pencil;
(e) the person has severe difficulty turning the pages of a book without assistance.
The Applicant gave evidence that he was prone to dropping heavy objects and, for example, could not lift a kettle. He has to hold his coffee in both hands. He is unable to write his name because he is unable to hold a pen. His hands go into spasm and he will not be able to let an object go, and then, when he does, he is unable to stop the object falling. His brother puts his water in 2L bottles which he can manage with 2 hands, but he still spills it. His medication was increased in December 2012 or January 2013 – a ‘neuroblocker’ which provides relief. He wears only loose clothing as he unable to manage buttons. He wears slip on sandals with velcro closure and his brother has made a stick with a hook on it to assist him. His brother used to help him shave but he has stopped shaving and now has a beard, which makes him feel like ‘a dag’. I consider that the evidence supports a finding that the Applicant, during the relevant period, met the criteria for an impairment rating of 10 points.
In total therefore the Applicant has a combined impairment of 30 points.
Does the Applicant have a continuing inability to work?
A definition of the term 'continuing inability to work' and related terms are set out in s 94(2) to (5) of the Act, and states, inter alia:
Continuing inability to work
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) … and
(a)in all cases-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)in all cases-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
(a)because of an impairment, the Secretary is not to have regard to:
(b)the availability to the person of a training activity; or
(c)the availability to the person of work in the person's locally accessible labour market.
(3A) ….
A person cannot be found to have a continuing inability to work unless they participated in a program of support. An exception to this is if the person suffers a severe impairment. This is defined as when a single impairment accounts for 20 or more impairment points: s 94(3B).
I have found that the Applicant’s knee condition attracts a rating of 20 impairment points and is therefore a ‘severe impairment’. It is therefore not necessary that he have participated in a program of support.
The Respondent contended that even if I were to find that the Applicant has a severe impairment, the Applicant still does not have a continuing inability to work and thus does not satisfy s 94(1)(c) of the Act.
The Respondent relied on the JCA dated 14 February 2013, in which the Applicant was assessed as having a temporary work capacity of 0 – 7 hours per week to allow him time to undergo his medical treatment. His baseline capacity to work was assessed at 15 – 22 hours per week. This would increase to 23 – 29 hours per week within two years with intervention, which were identified as surgical treatment; secondary rehabilitation; vocational assessment and counselling; and functional evaluation and assessment if unable to return to previous employment. The assessor’s findings were unchanged after he conducted a JCA file review on 14 March 2013.
The Respondent contended that there is no evidence that the Applicant's medical impairments would prevent him from doing work within the next two years. Similarly, the Respondent contended that there is no evidence that the Applicant's medical impairments would prevent him from undertaking training within the next two years. I disagree. While I accept that the Job Capacity Assessors may be qualified to make an assessment of the Applicant's continuing inability to work because of their specialised knowledge and experience in identifying barriers to employment, interventions, available programmes, and suitable occupations to determine a person's impairment rating and work capacity, the Applicant’s circumstances have not, in my view, been adequately taken into account by the assessors. The medical evidence is clear: during the relevant period the Applicant was a candidate for surgery on his knee. He waited about 18 months for surgery. He is still in the recovery phase. He was also, during the relevant period, identified as a candidate for hand surgery. There is a delay for that surgery also. I find that his symptoms make any work impossible until that has occurred. In the two years from the relevant period the Applicant has a continuing inability to work.
I find that the Applicant has a continuing inability to work and satisfies s 94(1)(c) of the Act. The Applicant has therefore met all criteria for the disability support pension.
DECISION
The Tribunal sets aside the decision under review and instead decides that Mr Featon satisfies the requirements of section 94(1)(a),(b) and(c) of the Social Security Act 1991.
I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member. ............[Sgd]............................................................
Associate
Dated 7 July 2014
Date of hearing 26 June 2014 Applicant In person Solicitors for the Respondent Ms L Weston, DHS Program Litigation & Review Branch
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