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

[2017] AATA 1280

Nankivell and Secretary, Department of Social Services (Social services second review) [2017] AATA 1273 (15 August 2017)

Division:GENERAL DIVISION

File Number(s):      2016/6842

Re:Thomas Nankivell

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Ms A F Cunningham, Senior Member

Date:15 August 2017

Place:Hobart

The decision under review is affirmed.

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

CATCHWORDS

SOCIAL SECURITY - Disability support pension – Cancellation – Qualification requirements – Impairment rating – Continuing inability to work – Decision under review affirmed.

LEGISLATION

Social Security Act 1991(Cth) (the Act) s 94(1)(a)-(b), (2)

REASONS FOR DECISION

Ms A F Cunningham, Senior Member

15 August 2017

1. The applicant seeks the review of a decision of the Social Services and Child Support Division of the AAT (first-tier review) which affirmed a decision to cancel his disability support pension (DSP).  The applicant had been in receipt of a DSP from 2008 which was cancelled following a review on 21 July 2016 on the basis that he did not satisfy the qualification requirements and, in particular, the required impairment rating and inability to work provisions.

2. The applicant represented himself at the hearing and called evidence from his general practitioner, Dr Chris Hughes, and his wife, Sandra Nankivell. The respondent was represented by Mr Brian Sparkes. The T documents were tendered in evidence pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth). Also tendered were witness statements from the applicant[1] and his wife[2], a report of Doctor Brett Oppermann, consultant occupational physician, dated 12 April 2017,[3] and three additional medical reports prepared by Dr Hughes.[4]

   [1] Exhibits A6 & A7.

   [2] Exhibit A5.

   [3] Exhibit A4.

   [4] Exhibits A1, A2 & A3.

   ISSUE

3. The issue for the Tribunal to determine is whether the applicant satisfied the qualification requirements for DSP within s 94 of the Social Security Act 1991 (Cth) (the Act) on the date that his DSP was cancelled.

   EVIDENCE AND CONSIDERATION

4. A medical report was prepared by Dr Chris Hughes on 17 March 2016 in which he lists the conditions with the most impact on the applicant’s ability to function as “lumbar disc degeneration and prolapse” and “osteoarthritis/meniscal degeneration both knees”.[5]  Diabetes was listed as a medical condition that was generally well managed and caused minimal or limited impact on ability to function.

   [5] T documents, T17 pp 149 & 152.

5. On 20 July 2016 a Job Capacity Assessment Report was prepared with respect to these three conditions.[6]  The Job Capacity Assessor (JCA) concluded that whilst the three conditions had been fully diagnosed and were considered permanent, none of the conditions attracted an impairment rating under the relevant impairment tables.

   [6] T documents, T22.

6. With respect to the applicant’s spinal disorder, the JCA reported under functional impacts:

   cannot stand/sit or work for prolonged periods.  The client reported the following additional information at assessment: is unable to perform repetitive overhead work, his daughter helps with putting out washing on clothes line.  Can stand up to 20 minutes, sitting up to 15-30 minutes (maximum “starts to get intense” client’s words). Can bend to touch knees, however not the floor and bending to touch knees results in pain.  Daily pain levels average 6/10. Client reports symptoms include numbness in buttocks.

   The JCA went on to observe that the “client sat for duration of interview (30 minutes) with a lean to his right, and performed independent sit/stand transfers”.

7. The JCA reported the following functional impacts with respect to the applicant’s knee osteoarthritis:

   pain reduces work capacity, Dr notes: “his back is his principle problem that he has had to his inability to work.”  The client reported the following additional information at assessment: sustained a workplace injury in September 2015 from steel pipe falling onto his knees; which aggravated knee and back pain. Difficulty with squatting, uses rain [sic] in toilet to assist with squatting. Can stand for 7 minutes and use public transport independently. Can use stairs independently holding rail and walk up to 30 minutes.[8]

   The JCA observed that the applicant “sat for the duration of the interview (30 minutes) with a lean to his right, and performed independent sit/stand transfers and mobility”.[9]

   [8] T documents, T22 p 169.

   [9] T documents, T22 p 169.

8. With respect to the applicant’s diabetes, the JCA noted that Dr Hughes and the applicant confirmed that although the condition is poorly controlled, it has minimal impact upon function.  The JCA concluded that because there was insufficient evidence of treatment, the condition could not be regarded as fully treated and fully stabilised at that stage.

9. In his evidence to the Tribunal the applicant disputed some of the findings of the JCA.  For instance, he contended that he was not able to remain seated for the duration of the interview, which he contended continued for approximately 45 minutes.  He said that he recalled standing, stretching and moving about on at least four occasions.  Mrs Nankivell stated during her evidence to the Tribunal that she recalled her husband “was up-and-down and did not sit for the whole time” during the job capacity assessment.  It was her evidence that she recalled that he got up on around three occasions to move around.  The interview room was fairly small so that Mr Nankivell was not able to move about very much.

10. Dr Chris Hughes gave evidence by telephone.  His medical reports dated 13 January 2017, 4 April 2017 and 13 April 2017 were tendered in evidence.[10]  In his report of 13 April 2017, Dr Hughes reported on the applicant’s “Lumbar Spine Disc Degeneration & Prolapse L4/5”, “Bilateral Knee Meniscal Degeneration & Osteoarthritis”, “Left Shoulder Supra Spinatus Tendon tear + Sub Achromial Bursitis”, Generalised Cervical Spondylosis”, “Depression” and “Unstable Insulin Dependent Type 2 Diabetes”.  For each of these conditions Dr Hughes reported on the date of diagnosis; current treatment, symptoms and functional impact; prognosis and disability level; and he included copies of some of the relevant impairment tables which had been given to him.  At the end of his report Dr Hughes stated:

    the disabilities mentioned above are representative of his condition at the date of his pension’s cancellation (21. 7. 2016).  Given the range of conditions and the resultant disabilities, I believe he well qualifies for reinstatement of his Disability Pension.[11]

    [10] Exhibits A1, A2 & A3 respectively.

    [11] Exhibit A3.

11. In his oral evidence to the Tribunal, Dr Hughes agreed that he had not referenced the impairment tables in his previous medical reports.  It was Dr Hughes’ evidence that he had made the assessments as to the impairment ratings based on the information provided by the applicant, his professional judgement and what he had observed.  He agreed that his assessments therefore reflected the applicant’s functional impact at the time of his assessment in April 2017.  It was Dr Hughes’ evidence that although the applicant’s conditions, in particular his shoulder condition, had significantly worsened since July 2016 when his DSP was cancelled, he considered that his assessments were also referable to that time some 12 months ago.

12. With respect to the functional impacts of the applicant’s lumbar spine disc degeneration and prolapse, Dr Hughes reported that the applicant cannot stand for long nor walk for more than 100m without discomfort requiring rest, needs a stick to walk, cannot bend to lift light objects and cannot sit for more than 10 minutes, preferring to lie down.[12]  Dr Hughes assessed his level of disability as severe and awarded 20 points under the impairment tables.  Under cross-examination by Mr Sparkes, Dr Hughes agreed that the applicant’s more recently diagnosed neuropathic condition would also impact on the applicant’s functionality but did not opine as to what extent.  Dr Hughes had assessed the applicant’s difficulty in lifting above shoulder height when considering the impacts of the applicants shoulder condition.  

    [12] Exhibit A3.

13. It was the applicant’s evidence that he did not use a stick at the time of cancellation of his DSP.  The applicant also confirmed the JCA’s observation that he was able to touch his knees, although with pain.  The JCA reported that the applicant was unable to perform repetitive overhead work and that his daughter helps with putting out the washing on the clothesline.[13]

    [13] T documents, T22 p 169.

14. On the basis of the evidence presented, the Tribunal does not accept that a 20 point impairment rating under Table 4 for the applicant’s spinal condition was appropriate as at the date of DSP cancellation.  There was no evidence that at that time the applicant was unable to perform the activities listed under this impairment rating.  Nor can the Tribunal be satisfied that an impairment rating of 10 points for the applicant’s spinal condition was an appropriate assessment as at the date of cancellation.  This impairment rating would require that a person is able to sit in or drive a car for at least 30 minutes and be unable to either sustain overhead activities; or have difficulty moving their head to look in all directions; or unable to bend forward to pick up a light object placed at knee height; or need assistance to get up out of a chair.  The evidence is, as noted above, that the applicant’s difficulty in being able to sustain overhead activities is more likely related to his cervical condition.  There is no evidence that the applicant, at the time of cancellation of DSP, had difficulty moving his head to look in all directions or bend forward to pick up a light object placed at knee height, particularly given the applicant’s acceptance of the JCA’s finding that he was able to bend to touch his knees.

15. Mr Sparkes, on behalf of the respondent, conceded an impairment rating of five points for the applicant’s spinal condition, which the Tribunal accepts is appropriate.  This rating is on the basis that, as at the date of cancellation, the applicant had difficulty in activities over head-height.

16. Dr Hughes considered the applicant’s bilateral knee meniscal degeneration and osteoarthritis together under Table 3 and assessed a moderate level of functional impact of 10 impairment points.  The JCA, in considering the applicant’s osteoarthritis, found that the condition had not been fully treated, and that surgery had been noted as a future intervention but that medical evidence was unclear as to when this might occur.  The first-tier reviewer agreed that there was insufficient evidence to make a finding that the condition was fully treated and stabilised at the time when the applicant’s pension was cancelled and further, that there was insufficient medical evidence to assess the impact of the condition under Table 3 of the impairment tables.

17. The Tribunal however accepts the evidence that the applicant’s knee condition is long-standing and that any proposed knee surgery would not take place for some years.  It was noted that the applicant was very compliant with recommended treatment.  The JCA observed that the applicant was able to stand for seven minutes and walk for up to 30 minutes.  Mr Sparkes advised that on the basis of the available evidence referable to the date of cancellation, an impairment rating of five points is appropriate.  The Tribunal agrees with the respondent’s assessment on the basis that the applicant had difficulty walking around a shopping mall or supermarket without resting, climbing stairs and an inability to stand still for more than 10 minutes at a time (the JCA reported up to seven minutes).

18. With respect to the applicant’s left shoulder condition, Dr Hughes assessed the functional impact as moderate and awarded 10 points under Table 2.  This condition however was not included in his medical report referable to the cancellation of the applicants DSP, namely that of 17 March 2016.[14]  The JCA reported that the onset of the condition was in 2016 and that the applicant was awaiting a shoulder scan and referral to a specialist after having a cortisone injection.  The Tribunal accordingly accepts that as at the date of cancellation, this condition had not been fully diagnosed, treated and stabilised such as to attract an impairment rating.

    [14] T documents, T17.

19. The other condition included in Dr Hughes’ initial medical report was diabetes but he noted that this condition was generally well managed and caused minimal or limited impact on the ability to function despite “poor control”.[15]  The JCA reported that there was insufficient medical evidence regarding treatment and therefore the condition could not be considered fully treated or stabilised.  In his report of 13 April 2017, Dr Hughes considered that the condition had a moderate impact on the applicant’s ability to function and referred to limitations on the applicant’s ability to perform his former employment as a truck driver.  In awarding five points for the condition, Dr Hughes however did not reference any impairment table.  

    [15] T documents, T17 p 155.

20. The Tribunal agrees with the previous findings that there was insufficient medical evidence available regarding this condition at the time of the DSP cancellation in order to make a finding as to whether this condition was permanent such as to attract an impairment rating.  There are no other relevant conditions with respect to the respondent’s determination to cancel the applicant’s DSP as from 21 July 2016.

    CONCLUSION

21. The qualification requirements for DSP are contained within s 94 of the Act. The Tribunal is satisfied that, as at the date of cancellation, the applicant suffered from a number of physical impairments and therefore met the requirements of s 94(1)(a). However, for the above stated reasons, the applicant’s total impairment rating for his back and knee conditions under the relevant tables is only 10 points and thus he fails to meet the qualification requirement of 20 points or more under s 94(1)(b). It is thus not necessary for the Tribunal to consider the applicant’s inability to work in accordance with the s 94(2).

    The decision of the Tribunal is therefore to affirm of the decision under review.

I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A F Cunningham

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

Administrative Assistant - Legal

Dated: 15 August 2017

Date(s) of hearing:	8 August 2017
Applicant:	In person
Counsel for the Respondent:	Mr Brian Sparkes

[7] T documents, T22 p 169.