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

[2015] AATA 560

Michell and Secretary, Department of Social Services (Social services second review) [2015] AATA 560 (31 July 2015)

Division	GENERAL DIVISION
File Number(s)	2014/5974
Re	Gerard Michell
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President Gary Humphries
Date	31 July 2015
Place	Canberra

The decision under review is affirmed.

..............................[sgd]..........................................

Deputy President Gary Humphries

Catchwords

SOCIAL SECURITY – disability support pension – whether conditions fully diagnosed, treated and stabilised – whether impairments attract a rating of 20 points or more under the Impairment Tables – decision affirmed.

Legislation

Social Security Act 1991 (Cth) s 94(1)

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 92

Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252

Secondary Materials

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

REASONS FOR DECISION

Deputy President Gary Humphries

17 July 2015

Summary

1. I affirm the decisions of the Social Security Appeals Tribunal (the SSAT) and Centrelink to reject Mr Michell’s claim for the disability support pension (the DSP). Mr Michell had a physical impairment during the relevant period, but that impairment was not of 20 points or more under the Impairment Tables. For that and other reasons he does not qualify for the DSP under s 94(1) of the Social Security Act 1991 (the SS Act).

   Background

2. Mr Michell is 61 years old and lives in Kootingal, NSW. He was the full-time carer for his mother for many years until her death in 2012. It has been more than 10 years since Mr Michell last worked in paid employment. He had a Heavy Rigid (HR) truck licence and tickets to operate several types of heavy machinery (excavator, back-hoe, front end loader). He also qualified in remedial massage.

3. On 19 February 2014, Mr Michell lodged a claim for the DSP, which was refused by Centrelink. An authorised review officer affirmed the agency’s decision, and the SSAT in turn affirmed that decision. Mr Michell now applies to the Tribunal for reconsideration under s 149 of the Social Security (Administration) Act 1999 and s 29(1) of the Administrative Appeals Tribunal Act 1975 for review of that decision.

4. Mr Michell spoke to the Tribunal via video conference and was accompanied by his former carer, Mrs Cheryl Blackler.

   Legislative framework

5. Eligibility for the DSP is set out in s 94(1) of the SS Act:

   94 Qualification for disability support pension

   (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;

   …

6. Section 23(1) of the SS Act provides that “Impairment Tables” means the tables determined by an instrument under s 26(1). That instrument is the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

   The relevant period

7. A claim for the DSP must be assessed as at the date of the claim or within 13 weeks of the date of claim.[1]  The relevant period for Mr Michell’s claim is 19 February to 21 May 2014.

   [1] Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at [1] per Gyles J. See Social Security (Administration) Act 1999, s 42 and clause 4(1) of Schedule 2.

   Did Mr Michell qualify for the DSP under s 94(1) of the SS Act?

8. The first requirement to qualify for the DSP is that the person has a physical, intellectual or psychiatric impairment (s 94(1)(a)).  The Impairment Tables define “impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.[2]  An impairment rating can only be assigned to an impairment if the condition causing the impairment is “permanent” and the impairment is likely to persist for more than two years.[3]  A condition is permanent if it has been fully diagnosed, fully treated and fully stabilised, and is likely to persist for more than two years.[4]

   [2] Impairment Tables, s 3.

   [3] Impairment Tables, s 6(3).

   [4] Impairment Tables, s 6(4).

9. The second requirement to qualify for the DSP is that the person’s impairment is of 20 points or more under the Impairment Tables (s 94(1)(b)).  Section 10 of the Impairment Tables relevantly provides:

   10 Selecting the applicable Table and assessing impairments

   Selection steps

   (1)  Table selection is to be made by applying the following steps:

   (a)  identify the loss of function; then

   (b)  refer to the Table related to the function affected; then

   (c)  identify the correct impairment rating.

   (2)  The Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise.

   …

   Multiple conditions causing a common impairment

   (5)  Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.

   (6)  Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.

10. In his application form, Mr Michell claimed to have the following disabilities, illnesses or injuries:

    ‘Interstitial lung disease. Left and right shoulder biceps: tendons and muscle damage: awaiting operation.’

11. In a medical report dated 12 February 2014 which was provided to Centrelink, Dr Vicki Thompson (a General Practitioner) listed ‘interstitial lung disease’ as the condition which had the most impact on Mr Michell. The report further noted:

    ·with respect to interstitial lung disease, Mr Michell was receiving treatment in the form of ‘spiriva, symbicort, ventolin’, past treatment was nil and no future treatment was listed;

    ·‘left shoulder tear long head biceps tendon and L shoulder suprospinatus tear and right shoulder supraspinatus tear’ was recorded as a secondary condition, and future treatment outlined;

    ·umbilical hernia, primary orchialgia and laceration L wrist tendons were listed as medical conditions that are generally well managed and cause minimal or limited impact on Mr Michell’s ability to function.

12. On 3 December 2013, Mr Michell participated in a face-to-face Job Capacity Assessment (JCA) conducted by a nurse and an occupational therapist. The assessors commented in the report that:

    ·the applicant’s chronic obstructive airways disease was fully diagnosed, treated and stabilised;

    ·his shoulder and upper arm disorder was not fully diagnosed, treated and stabilised; and

    ·his baseline work capacity was 8-14 hours per work, and his capacity for work within 2 years with intervention was 15-22 hours per week.

13. On 19 February 2014, the Department rejected Mr Michell’s application for DSP, and on 6 August 2014, an authorised review officer affirmed the decision to reject his claim.  On 27 October 2014, the SSAT affirmed Centrelink’s decision. The SSAT relevantly found:

    ·the Applicant’s lung condition was fully diagnosed, treated and stabilised. However, the 10 point rating initially allocated by Centrelink under Table 1 of the Impairment Tables should be reduced to 5 points;

    ·the Applicant’s bilateral shoulder condition could not be considered ‘fully treated, stabilised and unlikely to improve within 2 years’; and

    ·the Applicant’s umbilical hernia, primary orchialgia and left wrist pain were generally well managed conditions and cause minimal or limited impact on Mr Michell’s ability to function.

14. On 18 November 2014, Mr Michell applied to this Tribunal for review of the SSAT decision.

15. At the date of the hearing (1 June 2015), the following evidence, in addition to that considered by Centrelink prior to its 19 February 2014 decision, was before the Tribunal:

    ·medical reports from Dr Graeme Doig dated 3 March 2014 and 19 February 2015

    ·a medical report from Dr Ramin Samali dated 15 May 2013

    ·a medical report from Dr Philip Kennedy dated 25 November 2010

    ·a medical report from Dr Hema Rajappa dated 25 February 2015

    ·statements by Ms G Michell and Mr J Blackler (both dated 29 May 2015)

    ·various emails from Mr Michell.

16. At the hearing, Mr Michell and Mrs Blackler offered a description of the challenges that Mr Michell encounters on a daily basis. Simple tasks such as food preparation, cleaning, grocery shopping and dressing have become increasingly difficult and/or painful for him. The Tribunal also heard of the difficulties he faced in obtaining employment, given those incapacities.

17. Mr Michell and Mrs Blackler provided the Tribunal with other medical evidence relating to his condition, but most of this evidence related his medical history after the relevant period referred to in paragraph 7 above. Any subsequent change in a person’s health is irrelevant to the question of whether they qualify for the DSP, except insofar as it may cast light on the position during the relevant period.[5]

    [5] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34].

18. On the basis of the available evidence, I find that Mr Michell suffered during the relevant period from the following physical, intellectual or psychiatric impairments: interstitial lung disease, bilateral shoulder pain, an umbilical hernia, primary orchialgia and left wrist pain. I make the following findings regarding those impairments. These findings are based on the Secretary’s submissions and the relevant medical evidence that was before the Tribunal.

    Interstitial Lung Condition

    ·Mr Michell’s lung condition was fully diagnosed, treated and stabilised during the relevant period and should be awarded a rating of no more than 10 points under Table 1 of the Impairment Tables.

    ·Mr Michell’s condition results in functional impairment when performing activities requiring physical exertion or stamina and should therefore, as contended in the Secretary’s Statement of Facts and Contentions, be assessed under Table 1 (Functions requiring Physical Exertion and Stamina).

    ·Significant in this regard is the following evidence before the Tribunal:

    othe medical report of Dr Thompson dated 12 February 2014 which confirms the date of diagnosis as 7 March 2013. The condition was fully diagnosed by Dr S O’Connor (Respiratory/Cardiac Physician) after Mr Michell was referred for his specialist consultation. Dr Thompson’s report of 12 February 2014 also describes Mr Michell’s symptoms as ‘breathlessness, rest every two minutes if uphill, can walk 20 minutes on the flat – but slower than normal range’.

    othe medical report of Dr Thompson dated 28 November 2013 which indicates that the impact on function due to interstitial lung disease is ‘breathlessness, rest every 2 minutes if uphill’. Impact on ability to function includes ‘endurance – Needs rests. Can walk 3 blocks. Ankle swelling’.

    othe JCA report of 9 December 2013 which concludes that his chronic obstructive airways disease was verified by medical evidence and fully diagnosed, treated and stabilised. The report also recorded that Mr Michell is ‘unable to walk far outside of home and needs to drive to local facilities…can have difficulty making his bed as he gets dizzy and short of breath… always feels short of breath’.

    othe medical certificate from Dr Thompson dated 14 May 2014 which describes the applicant’s symptoms as ‘breathlessness and walking limited to 1 block before a rest’

    oMr Michell’s oral evidence that he could now walk 500m to the shop, and that this was less than he could have walked in February 2014.

    ·The descriptors appear to give Mr Michell somewhere between 5 and 10 points on Table 1. I make no finding on the appropriate rating given that it is unnecessary to do so.

    Bilateral shoulder condition

    ·Mr Michell’s shoulder condition while diagnosed, was not fully treated and fully stabilised during the relevant period, and therefore cannot be given an impairment rating.

    ·Significant in this regard is the following evidence before the Tribunal:

    omedical reports of Dr Thompson dated 7 February 2013, 28 November 2013 and 12 February 2014;

    omedical certificates from Dr Thompson dated 1 May 2013, 30 January 2014 and 14 May 2014; and

    oa medical report completed by Dr Doig dated 19 February 2015

    ·Mr Michell was awaiting surgical repair for his shoulder condition during the relevant period. A medical report dated 12 February 2014 states that the applicant was planning to have the following treatment for his condition, surgical repair bilat shoulders. Duration - may be 6-12 months before operation.

    ·The medical certificate dated 14 May 2014 also states that Mr Michell is ‘awaiting operative repair bilateral shoulders’.

    ·Mr Michell provided the Tribunal with the medical report completed by Dr Doig (Orthopaedic Surgeon). Dr Doig states:

    ‘I am writing on behalf of my patient Mr Gerard Michell regarding his bilateral shoulder conditions. He has rotator cuff tears in both shoulders. The right side was operated on by myself in July 2014. He has had a less than satisfactory result which was not unexpected due to various reasons. With this in mind he has been advised not to have surgery on the left side. He has got ongoing restrictions of activities of daily living with lifting limitations of 10 Kgs to waist height in both arms. He is unable to use either arm overhead without discomfort. He is currently in the Pain Clinic in Tamworth’

    ·Mr Michell underwent surgery in July 2014, several months after the period under consideration. I agree with the Secretary’s contention that the surgery constituted reasonable treatment for the purposes of paragraph 6(7) of the Impairment Tables. The evidence also demonstrates that Mr Michell was awaiting pain management for both shoulders during the relevant period.

    ·After considering the above medical reports and certificates, I find that Mr Michell’s bilateral shoulder condition was not fully diagnosed, treated and stabilised during the relevant period.

    Other conditions

19. Reference was also made to Mr Michell’s umbilical hernia, primary orchialgia and left wrist pain. I agree with the Secretary’s contention that these conditions, during the relevant period, were generally well managed and caused minimal or limited impact on Mr Michell’s ability to function, as denoted in the medical report of Dr Thompson dated 12 February 2014. As such they do not attract any points under the relevant Impairment Tables.

    Did Mr Michell have a continuing inability to work (s 94(1)(c)(i) of the SS Act)?

20. Because of my conclusion that Mr Michell’s impairment was not of 20 points or more, his impairment does not satisfy the test of being a severe impairment under s 94(3B). Accordingly, he cannot demonstrate a continuing inability to work unless he has undertaken a program of support. It was the Secretary’s uncontested evidence that Mr Michell had not participated in a program of support for at least 18 months within the three-year period prior to lodging his claim on 19 February 2014. Accordingly, he has not demonstrated a continuing inability to work under s 94(1)(c) of the Act.

    Conclusion

21. Mr Michell’s bilateral shoulder condition was not fully treated and fully stabilised during the relevant period. By contrast, Mr Michell had a physical impairment for the purposes of s 94(1)(a) of the SS Act, in that his interstitial lung condition was fully diagnosed, treated and stabilised during the relevant period. In respect of that condition, however, his impairments do not attract at least 20 points under the Impairment Tables under s 94(1)(b) of the Act. Consequently, the Applicant was not eligible for DSP during the relevant period.

22. I therefore affirm the previous decisions of Centrelink and the SSAT with respect to Mr Michell’s application for DSP.

I certify that the preceding 22 (twenty two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries

.............................[sgd]...........................................

Associate

31 July 2015

Date(s) of hearing	1 June 2015
Applicant	In person
Solicitors for the Respondent	Amy Bartush