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

[2018] AATA 3365

Nikoloski and Secretary, Department of Social Services (Social services second review) [2018] AATA 3365 (31 August 2018)

Division:GENERAL DIVISION

File Number(s):      2018/0391

Re:Kiro Nikoloski

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member C Edwardes

Date:31 August 2018

Place:Perth

The decision under review is affirmed

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

Member C Edwardes

CATCHWORDS

SOCIAL SECURITY – disability support pension cancelled – whether applicant had conditions that were fully diagnosed, fully treated and fully stabilised – whether applicant had 20 impairment points at date of cancellation – spine – lower limb – upper limb – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) – ss 94(1), ss 91(1)(a) and ss 91(1)(b), para 94(1)(c)(i), ss 94(2), ss 94(3B), ss 94(3C)

Social Security (Administration) Act 1999 (Cth) – s 80, ss 80(1), s179

CASES

Freeman v Secretary, Department of Social Security (1988) 15 ALD 671
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – s 3, ss 6(1), ss 6(2), ss 6(3), ss 6(4), ss 6(5), ss 6(6), ss 6(7), s 7, s 8, ss 8(1), s 9, s 10, s 11, para 11(1)(c), Table 4
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – ss 7(1), ss 7(2)
The Guide to Social Security Law

REASONS FOR DECISION

Member C Edwardes

31 August 2018

THE APPLICATION

1. The Applicant’s Disability Support Pension (DSP) was cancelled on 17 July 2017 pursuant to section 80 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

2. The Tribunal has jurisdiction to hear this matter pursuant to section 179 of the Administration Act.

   RELEVANT LEGISLATION 

3. The relevant provisions governing eligibility for DSP are contained in the Social Security Act 1991 (Cth) (the Act) and the Administration Act.

   Relevant date

4. The decision to cancel the Applicant’s DSP was made under section 80 of the Administration Act. Section 80(1) of the Administration Act states:

   1If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

   (a)who is not, or was not, qualified for the payment; or

   (b)to whom the payment is not, or was not, payable (other than because of the operation of Division 3AA);

   the Secretary is to determine that the payment is to be cancelled or suspended.

5. The Tribunal will assess the Applicant’s qualification for DSP relevant to his conditions on 17 July 2017.  This was the date that the Applicant’s DSP was cancelled (Freeman v Secretary, Department of Social Security (1988) 15 ALD 671).

   Provisions relevant to the Applicant’s continuing eligibility for DSP

6. The relevant provisions governing eligibility for receiving a DSP are contained in the Act.

7. Section 94 of the Act provides the criteria for receiving a DSP, relevantly:

   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)     person has a continuing inability to work;

   (ii)    …

   Did the Applicant have impairment rating of 20 points or more under the Impairment Tables? - Subsection 94(1)(b) of the Act

8. The Impairment Tables referred to in subsection 94(1)(b) of the Act are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). The tables contained within the Determination are referred to as the Impairment Tables.

9. Subsection 94(1)(b) of the Act obliges the Tribunal to decide whether the impairments of the Applicant are worth 20 points under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AATA 399, Senior Member Isenberg explained the operation of the Impairment Tables as follows:

   5The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to 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: s 6(1) of the Determination.

   6The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

10. Subsections 6(5), 6(6) and 6(7) of the Determination provide further guidance in assessing whether or not a condition is permanent. Subsections 6(5), 6(6) and 6(7) fall under the heading “Applying the Tables.” Subsection 8(1) of the Determination (under the heading “Information that must not be taken into account in applying the Tables”) stipulates that symptoms reported by a person in relation to their condition can only be taken into account when there is corroborating evidence.

11. Sections 7 to 11 of the Determination provide guidance in how to assess information and evidence using the Impairment Tables, and how to assign impairment ratings. In particular, subsection 11(1)(c) of the Determination states that “if an impairment is considered as falling between impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.”

    Did the Applicant have a continuing inability to work? – Section 94(1)(c) of the Act

12. As set out above in section 94(1)(c)(i) of the Act, a criterion for qualifying for DSP is that the person has a continuing inability to work. Pursuant to section 94(2) of the Act:

    2A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (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.

    (Emphasis added)

13. ‘Severe impairment’ is defined in subsection 94(3B) of the Act:

    A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table. (Original emphasis)

14. Subsection 94(3C) of the Act states that a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister.

15. Relevantly, subsections 7(1) and 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 require generally, that a person is to participate in a program of support for 18 months in the 36 months prior to the date of the relevant claim for DSP. 

16. The Tribunal is also assisted by the Guide to Social Security Law (the Guide). The Guide provides assistance to those who administer the Act. Whilst not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (Refer to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

    BACKGROUND

17. The Applicant has received DSP since 7 December 1989 (T22 134)(R1).  

18. The Applicant’s DSP was cancelled on 17 July 2017 as it was found that the Applicant did not have an impairment rating of 20 points or more (T21 132)(R1).

19. On 5 September 2017, a review was undertaken by an Authorised Review Officer (ARO) (T22 133-137)(R1). The review affirmed the Department’s original decision.

20. The ARO found:

    ·     You have been receiving Disability Support Pension since 7 December 1989 for a musculoskeletal disorder.

    ·     Following your medical review, a decision was made on 31 May 2017 that you were no longer qualified for Disability Support Pension.

    ·     As there has been a change in the assessment of your level of impairment, your payments were scheduled to cancel on 4 September 2017, however have continued pending this review.

    ·     According to the latest medical evidence, you have the following permanent conditions: multilevel degeneration, nerve root abutment and thoracic and lumbar spondylosis, poliomyelitis, tenosynovitis and dupuytrons [sic] contracture of the right hand.

    ·     Your total impairment rating is 10.

    ·     You do not have an impairment rating of 20 points or more.

    ·     You do not have a continuing inability to work 15 hours per week or more because of your impairment. (T21 134)(R1)

21. The Applicant applied for a review of the ARO’s decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). (T1 3-11)(R1)

22. In a decision dated 2 November 2017, the AAT1 affirmed the ARO’s decision dated 5 September 2017. (T2 3)(R1).

23. The AAT1 determined:

    ·The Applicant’s condition of spinal pain, with widespread degenerative spinal disease was assessed as a moderate impairment and therefore generated an impairment rating of 10 points under Table 4. (T2 8)(R1)

    ·The Applicant’s condition of right hand problems, were assessed by his medical practitioner as “generally well managed causing minimal interference with function.” (T2 9)(R1) Therefore AAT1 determined  that this condition was not fully treated and stabilised and generated no impairment points.

    ·The Applicant’s total impairment rating was 10 points. (T2 9)(R1)

24. On 29 January 2018, the Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for a further review of the decision (T1 1-2)(R1).

25. The Applicant’s application for second review stated:

    I can not [sic] work

    I was on pension for 30 years

    I got spinal pain back pain

    Got problems with fingers

    On pain relief

    pain [sic] on Left [sic] Leg [sic] & knee 

    I need waking stick some time

    EVIDENCE

26. The matter was heard in Perth on 2 August 2018. The Applicant attended in person and was assisted by an interpreter. Ms Arielle Zinn appeared on behalf of the Respondent.

27. The Tribunal would like to thank all parties to this application for assisting the Tribunal.

28. The Tribunal received the following evidence:

    ·Exhibit A1 – Letter by Dr C Chan dated 2 May 2018.

    ·Exhibit A2 – Medical Report by Clinical Professor A Whyte dated 22 February 2018.

    ·Exhibit A3 – Letter from The Central Referral Service Team to Dr C Chan dated 9 March 2018.

    ·Exhibit A4 – Letter from The Central Referral Service Team to Dr C Chan dated 13 March 2018.

    ·Exhibit A5 – Medicare receipt dated 3 May 2018.

    ·Exhibit R1 – T documents (T1-T28 pp1-160) received 09/07/2018.

    ·Exhibit R2 – Statement of Facts, Issues and Contentions (SOFIC) dated 29 June 2018.

29. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address it, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be referred to below.

30. The Respondent  primarily relied on its SOFIC in its opening statement. The Respondent contended that three medical conditions formed the basis of this application.

31. In an opening statement, the Applicant, stated:

    ·That he did not  agree with the impairment rating of his spine.

    ·His conditions have deteriorated since 2011.

    ·He can’t move the  left side of his toes.

    ·His left leg is shorter than his right leg because he had previously contracted  polio.

    ·He can’t close both his eyes together.

    ·The nerves on his left side are damaged.

    ·He has a stomach ulcer.

    ·His left arm movement is a functionally impaired.

    ·He needs an operation on one of his knees.

    ·He can’t stand for long periods of time. He can’t sit for long periods of time.

32. Under cross-examination the Applicant made the following submissions:

    In relation to his spinal condition

    The Applicant:    

    ·lives at home with his wife;

    ·sometimes does house work;

    ·sometimes dresses himself – more often than not needs assistance;

    ·can reach overhead with difficulty (this condition has slightly deteriorated since 2017);

    ·drives a car and has done so for a period of 15 months;

    ·caught the bus to the Tribunal and sat for 20 minutes with difficulty;

    ·can shift his head with difficulty;

    ·can pick up an object between ½ to 1kg;

    ·can kneel on knees;

    ·is the President of a Seniors Macedonian Club and organises community events;

    ·walks slowly to his car;

    ·drives to shops and walks around shops.  The Applicant’s wife does not drive.  The Applicant’s wife carries shopping bags;

    ·referred to page 52 of the T-documents, relating to spinal function, and accepted that he could undertake each activity under the 20 points impairment rating table with difficulty.

    In relation to his upper limb condition:

    The Applicant:

    ·had been treated with injections;

    ·requires an operation;

    ·accepts that is he is still undergoing ongoing treatment.

    In relation to his lower limb condition:

    The Applicant:

    ·goes shopping;

    ·drives his car to the shops;

    ·walks around the shopping centre;

    ·uses a shopping trolley sometimes as an aid;

    ·does not exercise;

    ·stands for 10 minutes.

    Spine condition

33. The Tribunal notes the Secretary’s contentions in respect to the Applicant’s medical spinal condition:

    31. The Respondent accepts the Applicant's spinal condition was fully diagnosed, treated and stabilised at the date of cancellation (T5, 83-84, T6, 85 and T7, 86-87).

    The relevant consideration is what impairment rating ought to be assigned under  the Table 4.

    32. In the medical report dated 2 May 2017, General Practitioner Dr C Chan  recorded the Applicant suffered from stiffness and soreness in the spine and an abnormal gait (T14, 103). Dr Chan described the functional impact of this condition  as "unable to stand for long period, poor bodily movements, in pain most of the time". Dr Chan stated that he expected the condition to persist for more than 5 years (T14, 104)

    33. A JCA was conducted on 16 May 2017 (T16, 118-124). The assessor, a registered psychologist and with contributions from a registered occupational therapist, noted the Applicant sat for more than 10 minutes for the purpose of the interview and that he did not report any restrictions of neck or head movement,  nor any  restrictions with overhead activity (T16, 121). The applicant did, however, report difficulty with bending forward.

    34. The assessor recommended an impairment rating of 10 points under Table 4 on the basis that the Applicant:

    a. Lived independently, with some help with heavier household duties from  his adult son; and

    b. Is active in the community and attends the Macedonian Club for social functions (T16, 121).

    35. In a report dated 27 September 2017, Dr John Hayes, Consultant Rheumatologist, reported the Applicant had "marked limitation in lateral flexion to either side" in his thoracolumbar spine, while forward flexion "measure 4cm over a 15cm segment" (T24, 139).

    36. In the reasons for decision dated 2 November 2017, the AAT1 recorded the  applicant gave the following evidence (T2,  7-8):

    a. He can walk about 200 metres before needing a rest;

    b. He previously used a walking stick, but doesn't anymore;

    c. Sitting is uncomfortable after about 20 minutes;

    d. His wife does not drive and so he drives her to the shops;

    e. He is able to drive for approximately 15 to 20 minutes and is able to turn his head reasonably well when driving;

    f. He attended the hearing by bus;

    g. He can walk around the shopping centre and help carry lighter loads;

    h. He does a little bit to help around the house;

    i. He tries to take a short walk on most days and goes out about three or fours times a week, either to the shops or to meet friends.

    j. He can dress himself, use the shower and manage overhead activities; and

    k. He has to kneel to pick things up off the floor but can manage at table height.

    37. In a letter dated 2 May 2018 Dr Chan reiterated the Applicant's diagnosis and noted that the Applicant will be "functionally disabled for more than two years". However, he did not provide any further information regarding the functional impact of the Applicant's spinal condition.

    38. The Secretary submits there is no corroborating medical evidence to support a finding that the spinal condition had a severe functional impact as at the date of cancellation. Indeed, on the Applicant's own evidence to the AAT1 he is unable to satisfy the 20 point descriptors under Table 4. Accordingly, the Secretary contends the Applicant can be assigned an impairment rating of no more  than  10  points under Table 4.

34. The Tribunal accepts that the Applicant has suffered from a significant spinal condition over a period of time. The Tribunal particularly notes:

    ·All medical reports available before the Tribunal;

    ·Dr Chan’s letter to an officer at the Department of Human Services assessing the Applicant’s medical conditions (A1); and

    ·The Applicant’s Job Capacity Assessment (JCA) report (assessment date 11 May 2015) (T16 119) (R1).

35. The Tribunal notes the assessment of Dr John Hayes (T24 139-140) confirming the Applicant’s medical spinal condition. Dr John Hayes stated the Applicant had “evidence of marked degeneration in the thoracolumbar spine and…multi-level disc and facet degeneration throughout the thoraco [sic] spine”.

    Lower Limb Condition

36. The Tribunal notes the Secretary’s contentions in relation to his lower limb condition.  The Secretary contends:

    39. The Secretary accepts the Applicant's lower limb condition was fully diagnosed, fully treated and fully stabilised at the date of cancellation.

    40. In a letter of Dr Chan, dated 29 October 2013, the doctor notes the Applicant   has a "past history of poliomyelitis with shortening of one leg" (T5, 88).

    41. In the medical report dated 2 May 2017, Dr Chan reported the Applicant had an "abnormal gait' but did not report any lower limb condition or any associated functional impairment (T14, 102).

    42. In the JCA report dated 16 May 2017, the assessor recorded that the Applicant reported that "one leg is shorter than the other" and that the condition "did not affect his work capacity". Accordingly, the assessor recommended an impairment rating of nil points under Table 3 (T16, 119).

    43. In a report dated 27 September 2017, Dr Hayes reported the applicant  suffered from "muscle wasting and weakness in his left lower limb" and that this was likely due to "childhood poliomyelitis" (T24, 140).

    44. In a letter dated 2 May 2018 Dr Chan noted the applicant's childhood   poliomyelitis "caused atrophy of his left leg resulting in his two legs being of unequal length.

    45. The Secretary submits the medical evidence supports a finding that the lower limb condition has a limited or minimal impact on the applicant's ability to function. In the absence of corroborating medical evidence, the Secretary contends the Applicant's lower limb condition should be assigned a nil impairment rating under Table 3.

    Upper limb condition  

1. The Tribunal notes the Secretary’s contentions in relation to his upper limb conditions.  The Secretary contends:

   46. The Secretary accepts the Applicant's upper limb conditions were fully diagnosed; however contends they were not fully treated and stabilised at the date of cancellation.

   47. In the medical report dated 2 May 2017, Dr Chan reported the Applicant's upper limb conditions were "generally well managed' and caused "minimal or limited impact on ability to function" (T14, 108). The conditions are otherwise not referred to in the further reports of Dr Chan or Dr Hayes.

   48.      In hearing before the AAT1 the Applicant gave evidence that Dr Chan had "injected his hand and told him he may need an operation" (T2, 8).

   49. The Secretary contends that there is insufficient corroborative evidence to support a finding that the applicant's upper limb conditions were fully treated and fully stabilised at the date of cancellation. Accordingly, the Secretary contends these conditions cannot be assigned an impairment rating

   ISSUES FOR DETERMINATION

2. The issue for the Tribunal to determination is whether it is satisfied that the decision to cancel the Applicant's DSP on the relevant date, 17July 2017, was correct.

3. This requires consideration of whether or not, on 17 July 2017, the Applicant was qualified for DSP under subsection 94(1) of the Act and, in particular, whether he had:

   (a)a physical, intellectual or psychiatric impairment; and

   (b)an impairment of 20 points or more under the Impairment Tables; and 

   (c)a continuing inability to work. 

   CONSIDERATION

4. The Tribunal will consider relevant issues, legislation and evidence before it in determining if the Applicant was eligible for DSP on 17 July 2017. 

   Whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments

5. The Tribunal accepts at the date of the claim of the Applicant (17 July 2017) that he suffered from a severe medical condition affecting his spine, and medical conditions involving his lower and upper limbs.

6. The Tribunal therefore accepts that the Applicant satisfies subsection 94(1)(a) of the Act.

   Whether the Applicant’s impairments receive an impairment rating of 20 points or more under the Determination

   Condition 1 - Spinal Condition

7. The Tribunal accepts on the basis of the Applicant’s JCA, that this condition is fully diagnosed, treated and stabilised (FDTS).  (T16 118-124)(R1)

8. The Tribunal notes the finding of AAT1 – “Based on the available medical reports, and Mr Nikoloski’s evidence, the tribunal determined that he has a moderate impairment of spinal function. This generates 10 points from Impairment Table 4” (T2 3-11)(R1)

9. The Tribunal notes observations in AAT1, namely that “Sitting is uncomfortable [for the Applicant] after about 20 minutes.” (T2 3-11)(R1)

10. The Tribunal notes that the Applicant sat in the hearing for over 60 minutes without any apparent difficulty.

11. Under cross examination, the Applicant confirmed that he could undertake all functions in the 20 point impairment category of Table 4, albeit with difficulty.

12. The Tribunal notes and agrees with the ARO’s assessment (T22 136)(R1) that confirms that the Applicants spinal condition is a permanent condition, and is rated correctly as 10 impairment points under Table 4.

13. The Tribunal finds that this condition generates an impairment rating of 10 points on the basis of the evidence before it.

    Condition 2 – Lower Limb Condition

14. The Tribunal accepts, on the basis of the Applicant’s medical history that this condition is FDTS.

    oThe Tribunal notes Dr Chan’s letter at (T8 88)(R1) that the Applicant has a medical history involving the contraction of poliomyelitis.

    oIt was reported by the JCA that one leg of the Applicant was shorter than the other (T16 118-124)(R1)

    oThe Tribunal notes that Dr Hayes at (T24 140)(R1) stated: “The muscle wasting and weakness in his left lower limb is most likely due to childhood poliomyelitis.”

15. The Tribunal, after having considered the evidence of the Applicant supports the conclusions of the Secretary that the Applicant’s lower limb condition has a limited functional impairment on the daily activities of the Applicant.

16. There is no evidence before the Tribunal to indicate that the Applicant’s   functional impairment arises from his lower limb condition.  Whilst the letter of Dr Chan (A1) discusses in general terms: “…these [conditions] affect his physical daily activities and work,” this letter does not inform the Tribunal what the Applicant’s specific impairments were.

17. The Tribunal notes that the Applicant stated under cross – examination, that he undertook a number of functions whilst shopping.  This includes driving, walking and standing.

18. The Tribunal notes the ARO report (T22 135)(R1) – “ ….However, Dr Chan reports these conditions are reasonably well managed and they cause limited ability to function.”

19. There is no evidence before the Tribunal that the Applicant suffered from any functional impairment, and therefore, the Tribunal determines that no impairment points are generated in relation to the Applicant’s lower limb condition.

    Condition 3 – Upper limb

20. The Tribunal notes the Applicant’s submissions during the hearing, that treatment relating to his upper limb was still ongoing as at 17th of July 2017. On the evidence before it, the Tribunal accepts the conclusion of the Secretary that there is a lack of corroborative evidence supporting a view that the condition is fully treated and stabilised.

    Dr Chan’s report which refers to the Applicant’s upper limb conditions of tenosynovitis and Dupuytren’s contracture as “generally well managed and that cause minimal or limited impact on ability to function.” (T14 108)(R1).  This therefore also means, in the Tribunal’s view, that no impairment points can be generated for the Applicant’s upper limb condition.

    Whether the Applicant has a continuing inability to work

21. The Tribunal finds that the Applicant’s impairments received a total impairment rating of ten points (under Impairment Table 4). 

22. Given the Tribunal’s findings from paragraph 43 to 56 of this decision, the Tribunal is not required to consider whether the Applicant had a continuing inability to work at the date of his claim. That is, the Tribunal is not required to consider criteria under subsection 94(1)(c) of the Act

    CONCLUSION

23. The Applicant does not qualify for DSP as his conditions can only be assigned 10 impairment points as at the date that his DSP was cancelled.

    DECISION

    The decision of the AAT1 dated 2 November 2017 is affirmed. 

I certify that the preceding 59 (fifty nine) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

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

Associate

Dated: 31 August 2018

Date(s) of hearing:	02/08/2018
Applicant:	In person
Solicitors for the Respondent:	Arielle Zinn, Mills Oakley Lawyers