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

[2017] AATA 1511

Morgan and Secretary, Department of Social Services (Social services second review) [2017] AATA 1511 (19 September 2017)

Division:GENERAL DIVISION

File Number(s):      2016/5666

Re:Thomas Morgan

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:19 September 2017

Place:Sydney

The Tribunal affirms the decision under review.

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

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – portability – whether applicant meets requirements for unlimited portability – whether applicant has a severe impairment – applicant does not have a severe impairment – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 1218AAA, 94(3B)

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

REASONS FOR DECISION

Dr L Bygrave, Member

19 September 2017

INTRODUCTION

1. The applicant, Mr Thomas Morgan, has received the disability support pension since 21 May 2010.

2. On 8 February 2016, Mr Morgan contacted Centrelink about whether he would qualify for the continued payment of his disability support pension for an unlimited period while he was outside Australia (unlimited portability). He completed a claim for review of portability of his disability support pension on 3 March 2016.

3. Centrelink rejected this claim, both initially and on review, on the basis that Mr Morgan did not have a ‘severe impairment’ and so did not satisfy section 1218AAA of the Social Security Act 1991 (the Act).

4. Mr Morgan applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal for review of the decision.

5. In a decision dated 15 September 2016, the SSCSD affirmed that Mr Morgan did not satisfy subsection 1218AAA(1)(c) of the Act and so did not satisfy the requirements for an unlimited portability period for his disability support pension.

6. On 24 October 2016, Mr Morgan applied to the General Division of the Administrative Appeals Tribunal for a review of the SSCSD decision.

7. The matter was heard in Sydney on 31 August 2017. Mr Morgan attended the hearing by telephone and was self-represented.

   RELEVANT LEGISLATION AND ISSUES

   Qualification for unlimited portability period for disability support pension

8. To qualify for an unlimited portability period for disability support pension, Mr Morgan must satisfy the criteria in subsection 1218AAA(1) of the Act, which requires him to show the following circumstances exist:

   (a)he receives disability support pension; and

   (b)he has a severe impairment that will exist for at least the next five years; and

   (c)his severe impairment would prevent him from performing any work independently of a program of support within the next five years.

   Issue 1 – Does Mr Morgan receive the disability support pension?

9. The Tribunal is satisfied that Mr Morgan was granted the disability support pension from 21 May 2010. He therefore satisfies the first criterion.

   Issue 2 – Does Mr Morgan have a severe impairment that will exist for at least the next five years?

   Rules for assigning impairment ratings

10. The combined operation of subsections 1218AAA(1)(b) and  94(3B) of the Act require the Tribunal to use the Impairment Tables to assess whether Mr Morgan has a severe impairment. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables Determination).

11. The Impairment Tables Determination includes instructions and rules for assessing impairment and corresponding rating. Depending on how it affects a person’s ability to function, impairment may be rated between nil and 30 points.

12. An impairment rating can only be given to a medical condition that is permanent.  Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and more likely than not will persist for more than two years: subsection 6(4).

13. When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified doctor; what treatment or rehabilitation has occurred; whether treatment is still continuing or is planned in the next two years: subsection 6(5).

14. Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6).

15. Pursuant to subsection 94(3B) of the Act, a ‘severe impairment’ is defined as an impairment assigned 20 points or more under the Impairment Tables.

    Mr Morgan’s medical conditions

16. The medical report for disability support pension review for portability completed by Dr Vinay Kudumula (general practitioner) on 3 March 2016 stated that Mr Morgan has the following impairments: CVA (cerebro vascular accident) with right hemiparesis; papillary carcinoma of thyroid; and previous hip replacement.

17. Mr Morgan has right sided hemiparesis after suffering a stroke in 2010. This affects the function of his right side, particularly his right arm and right leg. This is verified in reports by Dr Claudia Gschwind (orthopaedic specialist and hand surgeon) dated 23 January 2015 and 5 May 2015; and medical letters by Dr Jenson Mak (consultant rehabilitation physician) on 23 February 2015, 20 April 2015 and 20 July 2015. The medical evidence has been summarised in a Health Professional Advisory Unit report by Dr Catherine Moore on 29 May 2017.

18. Dr Kudumula reported on Mr Morgan’s incapacity due to his CVA on 28 February 2017. He stated that Mr Morgan:

    …continues to have weakness and poor coordination of his right Upper [sic] limb and he cannot use a pen/pencil, difficulty turining [sic] pages of a book, difficulty in handling or carrying objects and severely limited movement of his hand and also cannot use computer keyboard as he is right handed. With his right lower limb he continues to walk, but with poor balance and coordination. He has a bilateral foot prosthesis, which has been there to help him with his balance.[1]

    [1] Exhibit A1.

19. At the Tribunal hearing, Mr Morgan confirmed that he continues to have weakness and hemiparesis in his right arm and right leg. He attends regular weekly sessions with a physiotherapist, completes swimming and gym sessions, and exercises every morning to gain his mobility. He said his girlfriend undertakes most household chores including cooking, cleaning, grocery shopping and ironing. He is able to drive his car, which has been specially adapted. He said he can mow the lawn but it takes him all day.

20. Mr Morgan said he has almost no power in his right arm; he writes with his left hand and is able to do up buttons and shoelaces using his left hand but these tasks are difficult and very slow. He is unable to pick up any items with his right hand but can hold groceries if he uses his left hand to place the item into his right hand. He was able to turn pages of documents during the Tribunal hearing.

21. Mr Morgan told the Tribunal he continues to have difficulty with walking, balance and standing for extended periods. However, he travelled overseas on at least five occasions between June 2015 and May 2016. He told the Tribunal he was able to travel on cruise ships and airplanes; once he has completed his daily exercises to gain his mobility he is able to walk for a couple of hours at his own pace.

22. The Tribunal finds Mr Morgan’s right hemiparesis is fully diagnosed, fully treated and fully stabilised. The relevant Impairment Tables are Table 2 – Upper Limb Function and Table 3 – Lower Limb Function. Based on the medical evidence, the Tribunal is satisfied Mr Morgan’s right hemiparesis has:

    ·a moderate functional impact on activities using his hands or arms and assigns 10 points in accordance with Table 2; and

    ·a moderate functional impact on activities using his lower limbs and assigns 10 points in accordance with Table 3.

23. The Tribunal notes that Mr Morgan also has conditions of papillary carcinoma of thyroid and osteoarthritis in his hip. The Secretary submits, and the Tribunal agrees, that neither of these conditions could be assigned 20 points under the Impairment Tables.

    (a)Papillary carcinoma of thyroid: This condition has been described in reports by Dr Margaret Layton (consultant endocrinologist) on 2 December 2015 and Dr Kudumula on 3 March 2016. Mr Morgan had surgery in April 2012, thyroid tumour surgery in August 2013 and requires ongoing monitoring of his symptoms. Mr Morgan told the Tribunal his thyroid condition has minimal impact on his ability to function.

    (b)Osteoarthritis in hip: Dr Layton reported on 2 December 2015 that Mr Morgan had a ‘previous hip replacement with good outcome’. On 3 March 2016, Dr Kudumula confirmed this condition had minimal impact on Mr Morgan.

24. Based on the evidence, the Tribunal is not satisfied Mr Morgan has a ‘severe impairment’ because he does not have a single impairment that is assigned 20 points or more in accordance with the Impairment Tables.

    CONCLUSION

25. For the reasons set out above, the Tribunal is not satisfied that Mr Morgan meets the requirements of subsection 1218AAA(1)(c) of the Act because he does not have a ‘severe impairment’ and so does not satisfy the requirements for unlimited portability period for his disability support pension.

26. As the Tribunal finds that Mr Morgan does not have a severe impairment, it is not necessary to consider whether his impairment would prevent him from performing any work independently of a program of support within the next five years.

    DECISION

27. The Tribunal affirms the decision under review.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 19 September 2017

Date(s) of hearing:	31 August 2017
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services