Nutt and Secretary, Department of Social Services (Social Services Second Review)
[2018] AATA 764
•6 April 2018
Nutt and Secretary, Department of Social Services (Social services second review) [2018] AATA 764 (6 April 2018)
Division:GENERAL DIVISION
File Number: 2016/4919
Re:Ian Nutt
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member P E Nolan
Date:6 April 2018
Place:Brisbane
The Tribunal affirms the decision under review.
...........................[sgd]..................................
Senior Member P E Nolan
CATCHWORDS
SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant had conditions that were fully diagnosed, treated and stabilised during the relevant period – whether Applicant had 20 impairment points – lower limb condition – upper limb condition – crush injury – Applicant has 0 impairment points – decision under review is affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
REASONS FOR DECISION
Senior Member P E Nolan
6 April 2018
INTRODUCTION
On 13 July 2015, Ian Nutt (‘the Applicant’) applied for a Disability Support Pension (‘DSP’) with the Department of Human Services (Centrelink).[1] In the portion of the DSP claim form where the Applicant was to list his disabilities, illnesses or injuries, he wrote:
Injury to (R) wrist from work injury;
Degeneratored [sic] bone grap [sic] to (L) foot.[2]
[1] Exhibit 1, T-Documents, T10, at p. 94, Claim form, dated 13 July 2015
[2] Ibid at p. 79
The central issue for the Tribunal to determine is whether the Applicant qualified for DSP on the date of his claim, 13 July 2015, or within 13 weeks thereafter, being up until 12 October 2015 (the “Relevant Period”).
HISTORY OF THE MATTER
As stated above, the Applicant lodged a claim for DSP on 13 July 2015. On 7 October 2015, the Applicant’s claim was rejected on the basis that he did not attain an impairment rating of 20 points or more under the Table.[3]
[3] Exhibit 1, T Documents, T17 at p. 126, Letter from DHS to Mr Nutt – Rejection of your claim for DSP, dated 23 February 2016
The Applicant sought review by an authorised review officer (‘ARO’), however the rejection decision was affirmed on 29 February 2016.[4] On 23 May 2016, the Applicant sought further review by the Social Security and Child Support Division (‘SSCSD’) of the Tribunal,[5] which affirmed the decision to reject the application on 1 August 2016.
[4] Exhibit 1, T Documents, T 19 at p. 130, Letter from DHS to Mr Nutt – Decision of ARO and notes, dated 29 February 2016 (please note it appears that the date on this letter is incorrect as the ARO decision clearly sets out that the initial refusal decision was made on 7 October 2015)
[5] Exhibit 1, T Documents, T2 at p. 6, Decision of the SSCSD, dated 16 August 2016
On 15 September 2016, the Applicant lodged an application for review of that decision with the General Division of the Tribunal.[6] The hearing was conducted on 1 December 2017. The Applicant appeared before the Tribunal by telephone.
[6] Exhibit 1, T Documents, T1 at p. 1, Application for review, dated 15 September 2016
ISSUES FOR THE TRIBUNAL
The issues for the Tribunal to consider can be summarised as follows:
a)Whether, during the relevant period the Applicant had a physical, intellectual or psychiatric impairment which was fully diagnosed, treated and stabilised;
b)Whether, at the relevant time, the Applicant’s conditions warranted an impairment rating of 20 points or more under the Impairment Tables, and if so;
c)Whether the Applicant has a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support (‘POS’); and
d)Whether the Applicant has a continuing inability to work.
Before determining the above, it is convenient to set out the relevant legislative framework.
LEGISLATIVE FRAMEWORK
Section 94 of the Social Security Act 1991 (Cth) (‘the Act’) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.
The Social Security (Administration) Act 1999 (Cth)(‘Administration Act’) require that qualification for DSP and assessment of the relevant impairment ratings be determined as at the date of claim, which in this case is 13 July 2015. There is, however, an exception where the person is not qualified on that date but “becomes qualified” within the 13 weeks immediately after lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[7] Therefore, the Relevant Period for considering whether the Applicant qualified for DSP is between 13 July 2015 and 12 October 2015. The Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period.[8]
[7] Sections 3, 4(1), 41 and 42, Schedule 2, Part 2 of the Administration Act; Fanning and Secretary, Department of Social Services [2014] AATA 447 at [33]
[8] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous AffairsThe Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).[9] The Tables are function based rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[10] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[11]
[9] Section 26(1) of the Act
[10] Section 5(2) of the Determination
[11] Section 6(1) of the Determination
Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results is more likely than not, in light of the available evidence, to persist for more than two years.[12] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not to persist for more than two years.[13]
[12] Section 6(3) of the Determination
[13] Section 6(4) of the Determination
In determining whether a condition has been fully diagnosed and fully treated, the following facts are to be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.[14]
[14] Section 6(5) of the Determination
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:
(c)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
(d)there is a medical or other compelling reason for the person not to undertake reasonable treatment.[15]
[15] Section 6(6) of the Determination
“Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[16] An impairment rating can only be assigned in accordance with the rating points in each Table.
[16] Section 6(7) of the Determination
In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.
CONSIDERATION
Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?
The Respondent accepts that the Applicant had an impairment for the purposes of subsection 94(1)(a) of the Act.[17] I am satisfied that concession is appropriate in light of the medical evidence.
[17] Exhibit 5, Respondent’s Statement of Facts, Issues and Contentions, at [34], dated 16 November 2017
I will now consider whether the Applicant’s impairments can attract impairment points under the Tables.
Right Wrist Injury
The Applicant sustained an injury to his right wrist whilst working on 13 September 2012.[18]
[18] Exhibit 1, T Documents, T11 at p. 99, Medicolegal Report completed by Dr Ryan dated 12 September 2014
The Respondent concedes that the Applicant’s right wrist injury was fully diagnosed, treated and stabilised during the Relevant Period.[19] Having regard to the evidence before me, I accept that this is the case.
[19] Exhibit 5, Respondent’s Statement of Facts, Issues and Contentions, at [35], dated 16 November 2017
I am therefore satisfied that the impairment caused by this injury can attract an Impairment Rating. The relevant table is Impairment Table 2 – Upper Limb Function. The Respondent contends that the resulting impairment attracts a rating of 0 points under Impairment Table 2.[20]
[20] Exhibit 5, Respondent’s Statement of Facts, Issues and Contentions, at [35], dated 16 November 2017
To attract no points, Table 2 decrees that a person can pick up, handle, manipulate, and use most objects encountered on a daily basis without difficulty.[21] To be assigned a rating of at least 5 points, the Applicant would need to have demonstrated that during the relevant period he could manage most daily activities, but had some difficulties with most of the following:
(a) Picking up heavier objects;
(b) Handling very small objects;
(c) Doing up buttons;
(d) Reaching up or out to pick up objects.[22]
[21] Table 2, the Determination.
[22] Ibid
The medical evidence before the Tribunal consists of various reports from medical professionals, including from Dr Andrew Ryan, Dr Tim Lloyd-Morgan and Dr Gregory Couzens. From the Medical Certificates provided for the purpose of WorkCover, dated 26 September 2015, it is evident that the Applicant was a patient of Dr Tim Lloyd-Morgan’s practice since on or around 26 September 2010.[23] However, the medical certificates and reports provided by Dr Lloyd-Morgan are of limited assistance as they have been provided outside of the Relevant Period, and do not tend to make reference to the Applicant’s condition during the Relevant Period.[24]
Dr Andrew Ryan – Report of 12 September 2014
[23] Exhibit 1, T Documents, T13 at pg. 122, Medical Certificate signed by Dr Lloyd-Morgan 26.09.2015
[24] Exhibit 1, T-documents, T15 at p. 124, Letter from Dr Lloyd-Morgan 06.01.2016, dated 6 January 2016; T14 at p. 123, Medical certificate signed by Dr Lloyd-Morgan dated 18 December 2015; T16 at p. 125, Medical certificate signed by Dr Lloyd-Morgan dated 23 February 2016; T20 at p. 137, Medical certificate signed by Dr Lloyd-Morgan dated 16 May 2016; T23 at p. 141, Medical certificate signed by Dr Lloyd-Morgan dated 16 August 2016; Exhibit 2, Report of Dr Tim Lloyd-Morgan dated 31 October 2017; Exhibit 3, Report of Dr Tim Lloyd-Morgan dated 7 February 2017; Exhibit 4, Report of Dr Tim Lloyd-Morgan dated 9 February 2017
In his report which was considered by the Job Capacity Assessor, Dr Ryan detailed the findings of his physical examination and the medical imagery reports available to him.[25] Dr Ryan found that the Applicant “experiences difficulty with mowing, whipper snipper use, mopping, sweeping and other similar domestic cleaning duties.”[26] The report provided that:[27]
Currently, Mr Nutt is unable to do any heavy lifting or power gripping with his right wrist.
Whilst he is able to do some heavier lifting and power gripping activities with his wrist in neutral, most of the activities… would in all likelihood either aggravate his right wrist symptoms or lie outside his current capabilities given his right wrist function.
[25] Exhibit 1, T-documents, T11 at p. 103, Medicolegal report completed by Dr Ryan 12.09.14, dated 12 September 2014
[26] Ibid at p. 102
[27] Ibid at p. 106
Dr Ryan concluded that the extent of the Applicant’s impairment was “restrictive forearm rotation, supination and pronation – equivalent to 3% upper extremity impairment which is equivalent to 2% of the whole person impairment.”[28]
Dr Gregory Couzens – Report of 23 April 2014
[28] Ibid at p. 107
Dr Couzens noted that the experienced musculoskeletal radiologist, Dr Paul O’Connell who performed the MRI Scan on the Applicant on 24 March 2014 had commented:[29]
There is evidence of abnormality involving the dorsal radiolnar limbos of the triangulo-fibrocartilage with intermediate signal extending through this area which maybe [sic] from granulation tissue from an older tear. Minimal cleft in the central triangular cartilage.
[29] Exhibit 1, T-documents, T11 at p.112, Letter from Dr Couzens 12.04.2014, dated 12 April 2014
Dr Couzens reported that the Applicant was unable to do any heavy work with his right wrist, particularly with the wrist in the off neutral position; however he could lift with the wrist in neutral position when the wrist was axially loaded.[30] He concluded that “Mr Nutt has a small degree of impairment which can be assigned based on the restricted forearm function.”[31]
[30] Exhibit 1, T documents, T11 at p. 113, Letter from Dr. Couzens, dated 12 April 2014
[31] Ibid at p. 114
During his face to face interview with the Job Capacity Assessment Officer (JCA), the Applicant confirmed that he was able to drive a motor vehicle for a distance of some 70km to attend the interview.[32] He told the officer that he has difficulties picking up heavy objects with his right hand, and therefore uses his left hand for most of the tasks. He also reported that he has experienced pain in the right hand for five minutes after using a keyboard.
[32] Exhibit 1, T Documents, T1 at pg. 116-121, Job Capacity Assessment Report dated 29 September 2015
During the Tribunal hearing, Mr Nutt corroborated the evidence given to the JCA and also testified that he could not reach up or out to pick up an object, or write more than one sentence before his right wrist cramps up. He further attested to the fact that he could not use his hand for up to 10 days after shaking someone’s hand due to the subsequent pain.
At hearing, the Applicant reiterated the evidence provided to the SSCSD; being that he could pick up, handle, manipulate and use most objects that he encountered on a daily basis during the relevant period. During cross-examination, the Applicant emphasised that he completes most of the relevant activities with his left hand, as he can only use his right hand when it is in a neutral position. Nevertheless, Table 2 requires consideration, and therefore a determination of what the Applicant can do with both of his limbs.[33]
[33] Department of Social Services, Guides to Social Security Law, 3.6.3.20 – Guidelines to Table 2 – Upper Limb Function, dated 5 February 2018
The Applicant gave evidence that he was over-using his good hand to achieve most of the required activities. Having regard to the oral testimony given by the Applicant and the medical evidence before the Tribunal, I have no doubt that the Applicant would have difficulty picking up heavy objects or performing the heavy, labouring work that was required of his previous profession. However, the evidence given at hearing and the medical evidence available to me address the first descriptor relating to mild functional impact and are largely silent on the remaining descriptors of the Impairment Tables. I am therefore bound by the Impairment Tables to attribute 0 points to the Applicant in respect of his right wrist injury.
Left Ankle Injury
The Respondent does not accept that the Applicant’s left ankle condition is fully diagnosed, treated or stabilised during the Relevant Period, and on that basis argues that an impairment rating cannot be assigned.[34]
[34] Exhibit 5, Respondent’s Statement of Facts, Issues and Contentions at [38], dated 16 November 2016
During his interview with the JCA in September 2015, the Applicant reported that “he had previously sustained an injury to his left foot and that this condition impact[s] on his ability to function.”[35] The Applicant advised that he would provide medical evidence of the condition however no further information was provided.[36]
[35] Exhibit 1, T Documents, T12 at p. 120, Job Capacity Assessment Report dated 29 September 2015
[36] Ibid
For the purpose of this review, the Applicant seeks to rely on medical reports compiled by Dr Lloyd-Morgan to corroborate the evidence given at hearing that this condition has been ongoing since 1994. While the reports tendered by Dr Lloyd-Morgan clearly demonstrate that such an injury exists, and that the doctor is of the belief that it is a permanent condition, the reports are dated from January of 2016[37] and February[38] and October[39] of 2017. As mentioned previously, being compiled outside the Relevant Period, with no substantive reference to the condition during the Relevant Period limits the weight that can be attributed to these reports.
[37] Exhibit 1, T Documents, T15 at p. 124, Letter from Dr Lloyd-Morgan
[38] Exhibit 3, Report of Dr Tim Lloyd-Morgan dated 7 February 2017; Exhibit 4, Report of Dr Tim Lloyd-Morgan dated 9 February 2017
[39] Exhibit 2, Report of Dr Tim Lloyd-Morgan dated 31 October 2017
In his report of 31 October 2017, Dr Lloyd-Morgan provided that “as at 13/07/2015, I can confirm [the Applicant’s] ankle was in status quo, as stated above. It is a chronic condition that did and will disable him, as described.”[40]
[40] Ibid
Even if I were to accept that Dr Lloyd-Morgan’s reports sufficiently particularised the condition as having existing during the Relevant Period, in his report of 6 January 2016, Dr Lloyd-Morgan wrote:[41]
“As is commonly the case with [vascular necrosis post fusion] injuries over the subsequent decades the ankle becomes increasingly degenerative and arthritic. The consequence of this is increasing pain, instability and diminished mobility.”
[41] Exhibit 1, T Documents, T15 at p. 124, Letter from Dr Lloyd-Morgan, dated 6 January 2016
From this description, it is clear that the injury cannot be said to be fully diagnosed, treated and stabilised for the purpose of the Act. The Applicant’s oral evidence at hearing was that he cannot walk a distance without his foot swelling up and hurting, cannot manoeuvre stairs and needs to rest while walking around shopping centres. During cross examination, the Applicant gave evidence that he cannot comfortably stand still for more than 10 minutes, and could not stand at all for longer than 45 minutes. He testified that he uses a walking aid ‘when his foot flares up’ but that he does not generally need it.
The Applicant believed that Dr Lloyd-Morgan’s reports of 7 and 9 February 2017[42] corroborated his oral testimony, however the report of 7 February 2017 merely provides that the Applicant is “unable to… stand for [a] lengthy period,”[43] while the report of 9 February 2017 states that the Applicant “can only safety [sic] navigate the left side of [the] staircase.”
[42] Exhibit 3, Report of Dr Tim Lloyd-Morgan dated 7 February 2017; Exhibit 4, Report of Dr Tim Lloyd-Morgan dated 9 February 2017
[43] Exhibit 3, Report of Dr Tim Lloyd-Morgan dated 7 February 2017
The Introduction to Table 3 dictates that self-report of symptoms alone is insufficient.[44] Accordingly, I am not persuaded that the Applicant’s left ankle condition is fully diagnosed, treated and stabilised and I therefore cannot assign him a rating under the Impairment Tables.[45]
[44] Table 3, the Determination
[45] Section 94(1) of the Act
Conclusion on points
I have found that the Applicant’s upper limb condition is fully diagnosed, fully treated and fully stabilised. On the basis of the evidence before the Tribunal, I have assigned the Applicant’s lower limb condition an impairment rating of 0 points under Table 2. I have found that the Applicant’s lower limb condition cannot be assigned an impairment rating under the Tables.
Given that the Applicant has not attained 20 points or more under the Impairment Tables for the Relevant Period, it is not necessary for me to consider whether he satisfies the remaining criteria for DSP.
DECISION
The Applicant does not qualify for DSP. Accordingly, the decision under review is affirmed.
I certify that the preceding 41 (forty - one) paragraphs are a true copy of the reasons for the decision herein of Senior Member P E Nolan
........................[sgd]............................
Associate
Dated: 6 April 2018
Date of hearing:
1 December 2017
Applicant: By phone Solicitors for the Respondent: Ms Jacky Vetter
Department of Human Services
[2012] AATA 922 at [34]
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