Mitchell and Secretary, Department of Social Services (Social services second review)
[2016] AATA 779
•5 October 2016
Mitchell and Secretary, Department of Social Services (Social services second review) [2016] AATA 779 (5 October 2016)
Division
GENERAL DIVISION
File Number(s)
2015/5649
Re
Anthony Mitchell
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr L Bygrave, Member
Date 5 October 2016 Place Sydney The decision under review is affirmed.
..................................[sgd]......................................
Dr L Bygrave, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – application rejected by Centrelink – whether impairments permanent – whether impairments fully diagnosed, treated and stabilised – impairment tables – continuing inability to work – spinal condition awarded 10 points under Table 4 – lower limb condition awarded 5 points under Table 3 – upper limb condition awarded 5 points under Table 2 – coronary artery disease awarded 5 points under Table 1 – applicant failed to complete program of support – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94(1)(b)
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr L Bygrave, Member
5 October 2016
On 27 February 2015, Mr Anthony Mitchell lodged a claim for the disability support pension.
The claim was rejected by Centrelink, both initially and on review, on the basis that Mr Mitchell did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act).
In a decision dated 6 October 2015, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal found that Mr Mitchell did not satisfy s 94(1)(b) of the Act and so he did not qualify for the disability support pension.
On 28 October 2015, Mr Mitchell applied to the General Division of the Administrative Appeals Tribunal for a review of the SSCSD decision.
The matter was heard in Sydney on 12 August 2016. Mr Mitchell attended the hearing by telephone and was self-represented.
RELEVANT LEGISLATION AND ISSUES
Section 94(1) of the Act provides that a person qualifies for the 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)the person has a continuing inability to work as defined in s 94(2) of the Act.
In accordance with the requirements of the Social Security (Administration) Act 1999 (Cth) (Administration Act), to qualify for the disability support pension, Mr Mitchell must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, that is between 27 February 2015 and 29 May 2015 (the claim period).
The Respondent concedes and the Tribunal agrees that Mr Mitchell suffers medical conditions that cause impairment and therefore, he satisfies s 94(1)(a) of the Act at the time of his claim for disability support pension.
It follows that the determinative issues in this matter are whether, during the claim period, Mr Mitchell had:
(a)an impairment rating of 20 points or more under the Impairment Tables; and
(b)a continuing inability to work as defined in s 94(2) of the Act.
Does Mr Mitchell have medical conditions that can be rated at 20 points or more under the Impairment Tables?
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination) requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. As set out in para 6(4) of the Impairment Tables Determination, a condition is permanent if it:
·has been fully diagnosed by an appropriately qualified medical practitioner; and
·has been fully treated; and
·has been fully stabilised; and
·is more likely than not to persist for more than two years.
The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.
The Introduction to each relevant Table requires that ‘self-report of symptoms alone is insufficient’ and ‘there must be corroborating evidence of the person’s impairment’.
The medical report for disability support pension completed by Dr Demend Naidu (General Practitioner) on 20 January 2015 listed Mr Mitchell’s conditions as ‘severe lower back pain due to osteoarthritis and degenerate disc disease’ and ‘left ankle injury resulting in permanent arthritis’. Dr Naidu also stated that Mr Mitchell suffered from coronary artery disease, hypertension, hyperlipidaemia, hypothyroidism and migraine headaches, which were ‘generally well managed’ and cause ‘minimal or limited impact on ability to function’.
Relying on all the medical evidence before me, I find that Mr Mitchell’s medical conditions for the purposes of the disability support pension are as follows:
·lower back osteoarthritis and degenerative disc disease – spinal condition;
·left ankle and knee – lower limb condition;
·shoulder and arm – upper limb condition;
·coronary artery disease condition;
·other conditions including migraines, pain in left ribcage, and arthritis in left wrist and fingers.
I now consider each of these medical conditions and their relevant rating under the Impairment Tables.
Spinal condition
In the medical report for disability support pension dated 20 January 2015, Dr Naidu stated that Mr Mitchell has ‘severe lower back pain due to osteoarthritis and degenerative disc disease’. He reported the date of onset as 2002 and the diagnosis was supported by a physiotherapist. Dr Naidu noted that Mr Mitchell is unable to ‘work due to pain and stiffness of back’, he ‘cannot concentrate due to pain’ and suffers from ‘poor sleep’.
On 28 November 2006, Mr Mitchell underwent an x-ray of the lumbar spine to assess ‘persistent low back pain’. Dr Grace Tai (Radiologist) reported:
There is no loss of vertebral body height. There is reasonable vertebral alignment. There is perhaps some minor loss of disc height. A little hypertrophy is noted of the facet joints. There is no spondylolisthesis, destruction or pedicles or other focal vertebral lesion. There is a normal appearance of the SI joints.
A medicolegal report by Dr Peter Conrad (General Surgeon) dated 21 October 2008 stated that Mr Mitchell ‘continues to have ongoing back pain with left-sided sciatica. He finds it difficult to do a lot of standing, bending and lifting’.
Cervical and lumber spine x-rays by Dr Simon Alexander (Specialist Radiologist) on 7 February 2013 found:
Cervical spine:
Normal alignment… minor facet joint degenerative changes at some levels…
Lumbosacral spine:
There is a minor levoconvex scoliosis, apex at L3. Normal alignment in the sagittal plane.
T12 and L1 vertebral bodies are slightly wedged, presumably long standing in the absence of a history or recent trauma. There is minor degenerative disc narrowing and accompanying bony end plate degenerative change at L3/4, L4/5 and L5/S1. There may be mild degenerative change in the lumbosacral facet joints. No other bone or joint abnormality seen.
Medical reports for the disability support pension completed by Dr Naidu on 6 November 2012, 26 February 2013 and 29 May 2014 all refer to back pain, osteoarthritis of cervical spine or osteoarthritis of lower back.
At the Tribunal hearing, Mr Mitchell spoke about being in constant pain, which affects his ability to sleep, walk and undertake daily tasks. He is unable to make his bed and has difficulty in picking up items from the floor. He has developed tools to assist him (for example, he uses tongs to remove clothing from the washing machine and to pick up items from the floor). He has placed a bar fridge at standing height so that he does not need to bend down to access food. While he has a manual car, he only drives short (five minutes) distances and uses his driving/reverse mirrors as much as possible rather than turn his head.
On 12 May 2016, Dr Naidu reported ‘this back condition apparently translates to 10 points on the disability tables’ and that ‘all his conditions are deteriorating’. The Secretary has contended that it is unclear whether Dr Naidu is referring to Mr Mitchell’s current functionality or his functionality during the claim period.[1]
[1] Secretary’s Statement of Facts & Contentions dated 22 July 2016, para 6.8.
I note that Dr Naidu has been Mr Mitchell’s treating General Practitioner since 2001. He has provided a number of medical reports for the purpose of disability support pension since 2012 that refer to Mr Mitchell’s deteriorating back condition, associated pain and affected functionality. This diagnosis is also supported by Dr Conrad in 2008 and the lumber spine x-day by Dr Alexander in 2013. I am therefore satisfied that Dr Naidu’s assessment is relevant to the claim period.
Based on the medical evidence before me, I am satisfied that Mr Mitchell’s condition was fully diagnosed, fully treated and fully stabilised during the claim period. In accordance with the information at Table 4 – Spinal Function, I find that Mr Mitchell’s condition during the claim period had a moderate functional impact on activities involving spinal function and I assign an impairment rating of ten points.
Lower limb condition
Mr Mitchell was involved in a motorcycle accident on 6 August 2002, which has resulted in knee and ankle problems on his left side.
R L Plowman (Orthopaedic Medico-Legal Consultant), in a report on 30 September 2003, opined that Mr Mitchell had:
(1)Injury to the left ankle. This involved a fracture of the fibula: osteochondral injury of the talar dome: rupture of the anterior talar fibular ligament.
(2)Injury to the left knee – ACL rupture and tear of the lateral meniscus: a small laceration on the outside of the knee: laceration overlying the medial tibial condyle anteriorly.
The medical evidence before the Tribunal suggests that Mr Mitchell has had ongoing treatment for and assessment of his left ankle and left knee since he sustained his injury in 2002. For example, Mr Mitchell underwent a left sided ankle and knee arthroscopy on 16 August 2004.[2] A radiology report by Dr Ian Grant dated 20 August 2007 stated that Mr Mitchell’s left knee exhibited ‘intra-articular loose bodies with evidence of medial compartment degenerative joint disease’. An MRI report of his left ankle by Dr Sean Khoury on 15 October 2007 showed a ‘small osteochondral lesion lateral talar dome. Mild synovial thickening anterolateral gutter’.
[2] Document T15 and Document T16.
The medical evidence also shows Mr Mitchell has suffered functional impairment in his left knee and left ankle since his accident in 2002. On 6 July 2004, Dr Raymond Wallace (Orthopaedic Surgeon) reported that Mr Mitchell:
complains of dull, constant aching pain at the lateral joint line and lateral tibial condyle [of the left knee]. The pain is worse with stair climbing, bending, squatting, crouching, sitting or walking…
At the left ankle, he complains of pain at the lateral collateral and medial collateral ligaments. The pain is worse with stair climbing, walking…
On 20 January 2015, Dr Naidu stated in the medical report for disability support pension that Mr Mitchell had a ‘left ankle injury resulting in permanent arthritis’. He noted the date of onset of the condition was 2002 and the diagnosis was supported by a physiotherapist and orthopaedic surgeon, Dr Hasn. The functional impact was stated as ‘poor mobility’ and ‘cannot walk on uneven ground’.
Mr Mitchell told the Tribunal that he suffered swelling and constant pain in his left ankle and left knee. He had difficulties walking and used a walking stick when he ‘was not feeling good’ – usually once a week. He said his left ankle ‘gives way’, causing him to fall over.
On 12 May 2016, Dr Naidu further reported that Mr Mitchell ‘has lower limb and ankle conditions which also restricts [sic] his ability to work and this translates to 5 points’. The Secretary has contended that as Dr Naidu does not appear to address Mr Mitchell’s conditions during the claim period, it follows that the functional impact at the date of claim was no higher than a mild rating.[3]
[3] Secretary’s Statement of Facts & Contentions dated 22 July 2016, para 7.5.
Based on the extensive medical evidence before me, I am satisfied that Mr Mitchell’s lower limb condition was fully diagnosed, fully treated and fully stabilised during the claim period. In accordance with the information at Table 3 – Lower Limb Function, I find that Mr Mitchell’s condition during the claim period had a mild functional impact on activities using lower limbs and I assign an impairment rating of five points.
Upper limb condition
In a medical report for disability support pension dated 29 May 2014, Dr Naidu reported Mr Mitchell has osteoarthritis in both shoulders, for which he has had cortisone injections in 2013.
Dr Alexander undertook an x-ray and ultrasound of Mr Mitchell’s right shoulder on 9 April 2013 and reported ‘bursitis and impingement’.
On 20 January 2015, in the medical report for disability support pension, Dr Naidu stated that Mr Mitchell suffers from ‘severe… shoulder pains’. On 16 May 2016, Dr Naidu opined Mr Mitchell’s ‘shoulder conditions causing disability… translates to 5 points on the disability tables’.
At the Tribunal hearing, Mr Mitchell said that he only carries a small amount of items when shopping. He ensures food packaging is easy to open and eats with a spoon. He is able to use his phone for texting but is not able to use pegs to hang his clothes.
I am satisfied that Mr Mitchell’s upper limb condition was fully diagnosed, fully treated and fully stabilised during the claim period on the basis of the medical evidence. In accordance with the information at Table 2 – Upper Limb Function, I find that Mr Mitchell’s condition during the claim period had a mild functional impact on activities using hands or limbs and I assign an impairment rating of five points.
Coronary artery disease
In a medical report for disability support pension dated 29 May 2014, Dr Naidu reported that Mr Mitchell suffered from ‘ischaemic heart disease with bypass surgery in 2009’ and this has resulted in ‘tiredness’ and the inability ‘to exert himself due to shortness of breath’.
On 20 January 2015, Dr Naidu listed Mr Mitchell’s coronary heart disease in the medical report for disability support pension as ‘generally well managed and causing minimal or limited impact on ability to function’.
In the Job Capacity Assessment (JCA) Report dated 18 March 2015, Mr Mitchell advised that he experiences fatigue and inability to exert himself due to shortness of breath. Mr Mitchell also told the Tribunal that he is only able to walk for about five minutes before needing to rest.
In his report dated 16 May 2016, Dr Naidu stated that Mr Mitchell’s cardiac condition translates to ‘5 points on the disability tables’.
Based on the evidence before me, I am satisfied that Mr Mitchell’s condition was fully diagnosed, fully treated and fully stabilised during the claim period. I have regard to the information at Table 1 – Functions requiring Physical Exertion and Stamina. I am satisfied that Mr Mitchell’s condition has a mild functional impact on activities requiring physical exertion or stamina and I assign an impairment rating of five points.
Other medical conditions
Mr Mitchell reported other medical conditions to the Tribunal. These included arthritis (wrists, fingers and elbow pain), hypothyroidism, migraine/headaches, rib pain, visual condition, depression and morbid obesity.
The Secretary has contended that ‘there is extremely limited medical evidence regarding the treatment and prognosis of these conditions, but the available evidence suggests these conditions were well controlled at the relevant period’.[4]
[4] Secretary’s Statement of Facts & Contentions dated 22 July 2016, para 10.1.
On the basis of the limited evidence before me, I cannot be satisfied that Mr Mitchell’s conditions were permanent during the claim period as required by the Impairment Tables Determination. I therefore cannot assign an impairment rating.
Conclusion
In accordance with my findings at paragraphs 24, 32, 37 and 42 above, Mr Mitchell has a total of 25 points under the Impairment Tables and so has met the requirement of s 94(1)(b) for an impairment rating of 20 points or more.
Does Mr Mitchell have a continuing inability to work as defined in s 94(2) of the Act?
The next issue I must consider is whether, as required by s 94(1)(c), Mr Mitchell has a continuing inability to work because of his impairments.
Pursuant to s 94(2) of the Act, a person has a ‘continuing inability to work because of an impairment’ where:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; 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.
As Mr Mitchell does not have a severe impairment (he has not been assigned 20 points under a single Impairment Table) and is not a ‘reviewed 2008-2011 DSP starter’, he is required to have actively participated in a program of support.
The term ‘program of support’ is defined in s 94(5) of the Act as a program that:
(a) is designed to assist persons to prepare for, find or maintain work; and
(b) either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
A person has ‘actively participated’ in a program of support if they have ‘satisfied the requirements set out in the relevant legislative instrument’ (s 94(3C) of the Act), being the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination).
The POS Determination provides that a person must participate in a program of support for at least 18 months during the ‘36 months ending immediately before the day on which the claim for disability support pension is made or is taken to have been made’ before they can be taken to have actively participated in a program of support (s 5(1)(a) and s 7(2)).
Accordingly, to satisfy the requirement of s 94(2)(aa) of the Act, Mr Mitchell was required to have actively participated in a program of support for 18 months prior to 27 February 2015, the date of his application for the disability support pension. He did not satisfy that requirement.
The Secretary’s written submissions dated 2 September 2016 stated that ‘as at 30 May 2015, [Mr Mitchell] had completed only 341 days of a program of support’ (para 25). Consequently, he does not satisfy s 94(2)(aa) of the Act and does not have a continuing inability to work as defined in s 94(1)(c) of the Act.
I therefore find that Mr Mitchell did not satisfy s 94(1)(c) of the Act.
CONCLUSION
For the reasons set out above, I am satisfied that Mr Mitchell met the requirements of s 94(1)(b) of the Act during the claim period as his impairments were 20 points or more under the Impairment Tables.
I also find that Mr Mitchell did not satisfy s 94(1)(c) of the Act because he did not complete a program of support as required by s 94(2)(aa) of the Act.
If Mr Mitchell’s circumstances change, he is entitled to submit a new application for the disability support pension at any time.
DECISION
The decision under review is affirmed.
I certify that the preceding 59 (fifty -nine) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member ...................................[sgd].....................................
Associate
Dated 5 October 2016
Date(s) of hearing 12 August 2016 Applicant In person Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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