Nigel Hill and Secretary, Department of Social Services
[2014] AATA 321
•23 May 2014
[2014] AATA 321
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4034
Re
Nigel Hill
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 23 May 2014 Place Brisbane The Tribunal affirms the decision under review.
............................Sgd.........................................
Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Review of disability support pension qualifications – Relevant date of assessment – Physical impairment from “vertebrae stress fracture” – Impairment Tables – Condition not fully diagnosed, treated, stabilised or permanent at relevant time – Applicant not qualified for disability support pension at relevant date – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 26, 27, 94
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr R G Kenny, Senior Member
23 May 2014
BACKGROUND
From 2006, Nigel Hill (“the applicant”) was in receipt of the disability support pension which is a social security payment under the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth). On 19 December 2012, after a review of the applicant’s circumstances, Centrelink cancelled his payment on the basis that he was not qualified for it. That decision was affirmed, on 18 April 2013, by an authorised review officer and, on 1 August 2013, by the Social Security Appeals Tribunal.
LEGISLATION AND ISSUES
The qualifications for disability support pension are set out in s 94 of the Act. It is common ground that the applicant meets the age and residency requirements of that provision and has had a physical impairment in relation to a spinal condition and a range of other conditions. The remaining requirements in s 94 of the Act, and the matters in issue, are:
·whether the applicant has an impairment rating of 20 points or more which is calculated under the Impairment Tables in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”)[1] as required by s 94(1)(b) of the Act; and, if so
·
whether the applicant has a continuing inability to work[2] as required by
s 94(1)(c)(i) of the Act.
[1] For the requirement to apply these Tables, which came into force on 1 January 2012, see s 26 and s 27(3) of the Act.
[2] For continuing inability to work, see s 94(2)-(3) of the Act.
To qualify for a disability support pension, all of the requirements in s 94 of the Act must be met. Further, they must be met on the date of the cancellation decision made by Centrelink. This was 19 December 2012 (“the relevant date”). The procedures to be followed in applying the Impairment Tables are set out in s 6 of the Determination which falls under “Part 2 – Rules for applying the Impairment Tables” (“the Rules”). That section reads:
6 Applying the Tables
Assessing functional capacity
(1) The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2) The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Note: For additional information that must be taken into account in applying the Tables see
section 7.Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c) the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) 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 2 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 2 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.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
Impairment has no functional impact
(8) The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9) There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a) acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
EVIDENCE
The applicant
The applicant conceded that he had not seen a specialist for his back condition and was on a long waiting list to do so in the public hospital system. He said that he had seen an orthopaedic surgeon, Dr Peter Johnstone, in 2005 in respect of a shoulder problem but had not undergone the surgical treatment recommended by Dr Johnstone. This was because of the costs involved and the need to wait for public hospital treatment. He said that he no longer suffered from the gastroenterological or respiratory conditions and that he had been treated for his hernia which no longer bothered him. He recalled seeing a psychologist for depression but conceded that this was not a clinical psychologist.
The applicant continues to experience haemorrhoids but has not had treatment which was recommended to him in 2005.
The applicant said that he had good days and bad days because of the effects of his back condition from which he experiences daily pain. He takes Lyrica and Panadeine Forte each day to relieve pain. He lives in a hotel room and is independent in most of his daily activities though he sometimes gets assistance when shopping for his daily needs. This is due to limitations on his walking ability. He benefits from the use of a walking cane and is still able to drive his car. He travelled by train from Maryborough to Brisbane for the hearing and walked several city blocks from the station to the Tribunal premises with his file material. He is able to manage self-care though he described a weakness in his hands which he believes may be from peripheral neuropathy. Despite that he is able to deal with buttons on his clothing, though it has interfered with some of his activities such as playing the guitar. He is able to bend forward to pick up light objects, move his head to look in all directions and is able to rise from a chair without assistance. He is able to pick up a one litre carton full of liquid and a cardboard box but has some difficulty in writing and using a keyboard.
The applicant said that he had worked in many capacities over the years and would be prepared to do so again if he found work where he was able to function at his own pace. He advised that he has a friend who is likely to open a small bar in the near future and he was hopeful that he would be able to work there.
Medical evidence
After the hearing, the applicant provided the Tribunal with a report, dated
13 January 2014, from Dr Alex Dowland[3] who was the applicant’s general practitioner (“GP”) in Brisbane before the applicant moved to Maryborough. In relation to previous disability support pension claims by the applicant, Dr Dowland provided a treating doctor report in 2006 and in 2009.
[3] This was taken into evidence without objection from the respondent.
On 7 July 2006, Dr Dowland diagnosed an “L1 burst fracture” from an injury on
14 January 2006. He wrote that this caused chronic pain, limitations on sitting or standing for long periods and an inability to work. Treatment was described by him as spinal splinting, pain medication and rest. In that report, Dr Dowland also diagnosed a right rotator cuff rupture which caused pain and weakness in the applicant’s right arm. On 12 January 2009, Dr Dowland identified the applicant as having an “L1, L2 back fracture” which caused daily pain, wakened him from sleep, limited his work capacity and was expected to deteriorate. Treatment was with analgesics and rest. No reference was made to a shoulder or any other condition in that report.
In his most recent report, dated 13 January 2014, Dr Dowland diagnosed “L1 lumbar disc fracture and degeneration” which had its onset in February 2006. Treatment was described as being rest and narcotic medication. Dr Dowland wrote that the applicant had not been referred to a specialist for the condition. He identified the symptoms as “chronic severe lower back pain, peripheral neuropathy” and “severely limited mobility”.
He reported that the condition would persist for more than 24 months and that it would deteriorate. Dr Dowland also reported that the applicant had “bilateral shoulder traumas with fractured clavicle and torn rotator cuffs” which he described as being generally well managed and which had minimal or limited impact on his ability to function.
Dr Peter Amadi, the applicant’s current GP, provided a report, dated 7 December 2012, as part of Centrelink’s review of the applicant’s disability support pension qualification. Dr Amadi identified only one condition in the applicant. This was “vertebrae stress fracture”. He noted that his diagnosis was not supported by any specialist opinion and his future/planned treatment was “for further specialist assessment”. He also advised that the condition was expected to fluctuate in its effect on the applicant.
On 17 December 2012, a Job Capacity Assessment (“JCA”) was undertaken by D,
a registered psychologist. D reviewed Dr Amadi’s report as well as earlier medical reports from 2005, 2006 and 2009 and 2010, including those of Dr Dowland. D noted that these identified health problems from which the applicant has suffered other than his back condition. These included a right shoulder injury, umbilical hernia, stomach pain and a respiratory disorder. D noted that no recent reports about these conditions had been provided. D referred to the report of Dr Amadi and also to the 2006 and 2009 reports of Dr Dowland. D concluded that, as the applicant’s back condition required further specialist attention, it was not fully diagnosed, treated and stabilised. D’s opinion was that no impairment rating was applicable to the applicant under the Impairment Tables. In relation to work capacity, the assessor noted that he had a current baseline work capacity of 15 to 22 hours per week with a capacity of 23 to 29 hours per week within two years with intervention.
SUBMISSIONS
The applicant submitted that Centrelink had inappropriately relied on a report from his current general practitioner (“GP”), Dr Peter Amadi, when assessing his health problems. This was on the basis that, when Dr Amadi completed his report, he had only seen the applicant a few times after the applicant had moved to Maryborough from Brisbane.
Dr Dowland had served as his GP for several years. The applicant submitted that
Dr Amadi was not aware of the history or extent of his health problems. He submitted that he should be assessed on the basis of Dr Dowland’s reports. The applicant contended that Dr Dowland’s reports demonstrated that he has several disabilities which will never improve and that, accordingly, should be treated as being permanent and given an impairment rating. He submitted that these reports demonstrated the long standing and unchanging nature of his health problems which meant that they were permanent for the purposes of assessing his impairment.
Mr Tim Ffrench, for the respondent, submitted that the relevant medical evidence was that which related to the applicant’s situation as at the relevant date. This, he submitted, was Dr Amadi’s report which identified only a back condition. He noted that
Dr Dowland’s reports were dated 2006 and 2009, several years before the relevant date, and 2014, more than 12 months after the relevant date. He also submitted that, in any event, the report of Dr Dowland which immediately preceded that relevant date and his recent report only identified the applicant’s back condition as being problematic to him. He noted that Dr Dowland referred, in both of those reports, to a right shoulder problem and, in his 2009 report, to abdominal hernia. However, Mr Ffrench noted that these were described in both reports as being of minimal or limited significance.
In relation to the applicant’ s back condition, Dr Amadi’s report foreshadowed reference to a specialist and Mr Ffrench submitted that this meant that it was not fully diagnosed, treated and stabilised. Accordingly, he submitted, it was not permanent. He submitted that this was also the case with other conditions for which the applicant had been treated in the past. These included a shoulder condition, a hernia, a gastroenterological condition, a respiratory condition, haemorrhoids and depression. In particular, he noted that, under the Rules, a diagnosis for depression required input from a psychiatrist or a clinical psychologist which, in the applicant’s case, had not happened. He submitted that the only conditions for which there appeared to be a continuing level of impairment was the back and shoulder condition.
Because none of the conditions noted above was permanent, Mr Ffrench submitted that no impairment ratings should be allocated to those other conditions. In the alternative, he submitted that the highest ratings that could be allocated for the applicant’s back and shoulder condition were 5 points under Tables 4 and 2, respectively, of the impairment tables. In summary, he submitted that the applicant’s impairment did not meet the threshold of 20 points as required by s 94(b) of the Act.
Mr Ffrench submitted that, in accordance with the findings of D in the JCA Report, the applicant did not have a continuing inability to work as required under s 94(1)(c) of the Act.
CONSIDERATION
I have noted the applicant’s submissions about the absence of Dr Amadi’s understanding of his health problems. However, in each of Dr Rowland’s reports, only the applicant’s back condition is identified as being of significance for the purposes of applying an impairment rating. Significantly, Dr Amadi gave his opinion of the impact and treatment prospects of that condition within days of the relevant date. Dr Rowland’s opinions were given, as Mr Ffrench submitted, years earlier or more than a year after the relevant date. In that situation, I must place reliance on Dr Amadi’s evidence rather than on that of
Dr Rowland.
As noted above, the requirements to be followed in applying the Impairment Tables are set out in s 6 of the Determination. In regard to diagnosis, I accept as correct the submissions of Mr Ffrench concerning rateability of the applicant’s various conditions. As at the relevant date, the only condition for which there is medical evidence is his back condition. Dr Amadi’s evidence is that further treatment is required for this and, accordingly, it is not permanent as that term is used in s 6(4) of the Rules. This is because it is not fully diagnosed, fully treated and fully stabilised. I am satisfied that this is also the case with his shoulder condition, his haemorrhoids and his depression. The applicant’s evidence was that he no longer experiences incapacity from his gastroenterological or respiratory conditions or his hernia.
Despite my finding that the applicant’s back and shoulder conditions were not permanent at the relevant date, I have considered the applicability of the relevant Impairment tables to them. These are Table 4 and 2, respectively:
Table 4 – Spinal Function
Points
Descriptors
0
There is no functional impact on activities involving spinal function.
(1) The person can:
(a) bend down to pick a light object off the floor (e.g. a piece of paper); and
(b) turn their trunk from side to side; and
(c) turn their head to look to the sides or upwards.
5
There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).
10
There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
20
There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
30
There is an extreme functional impact on activities involving spinal function.
(1) The person is:
(a) completely unable to perform activities involving spinal function; or
(b) unable to bend or turn their trunk or their neck to complete the most basic of daily activities (e.g. dressing, bathing, showering or light housework).
Table 2 - Upper Limb Function
20. Points
Descriptors
0
There is no functional impact on activities using hands or arms.
(1) The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.
5
There is a mild functional impact on activities using hands or arms.
(1) The person can manage most daily activities requiring the use of the hands and arm, but has some difficulty with most of the following:
(a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b) handling very small objects (e.g. coins);
(c) doing up buttons;
(d) reaching up or out to pick up objects.
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.
30
There is an extreme functional impact on activities using hands or arms.
(1) The person is unable to perform any activities requiring the use of both hands or both arms.
Having heard the applicant’s evidence and having witnessed his movements in the hearing room, I am satisfied that he is able to achieve the moderate levels in each of those Tables and I accept as correct Mr Ffrench’s submission that the highest ratings which the applicant could be allocated is 5 points under each Impairment Table. That would be less than a total of 20 points.
As none of the conditions identified from which the applicant suffers is permanent, no impairment rating may be allocated to them under the Impairment Tables. On the basis of those findings, the applicant’s overall impairment is zero and it follows that the threshold of 20 impairment points required under s 94(1)(b) of the Act is not met. The applicant was not qualified for the disability support pension at the relevant date. It is not necessary for consideration to be given to his capacity for work though I note the opinion in the JCA report that he does not have a continuing inability to work.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member ............................Sgd........................................
Associate
Dated 23 May 2014
Dates of hearing 11 March 2014 & 1 May 2014 Date final submissions received 15 May 2014 Applicant In person Solicitors for the Respondent Mr Tim Ffrench, Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Impairment Rating
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Disability Support Pension
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Permanent Impairment
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Impairment Tables
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0
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