Oliver; Secretary, Department of Social Services and (Social services second review)
[2015] AATA 593
•14 August 2015
Oliver; Secretary, Department of Social Services and (Social services second review) [2015] AATA 593 (14 August 2015)
Division
GENERAL DIVISION
File Number
2014/6158
Re
Secretary, Department of Social Services
APPLICANT
And
Gary Oliver
RESPONDENT
DECISION
Tribunal Deputy President Dr Christopher Kendall
Date 14 August 2015 Place Perth During the Relevant Period, the Applicant had a lower limb impairment. He thus meets the requirements of section 94(1)(a) of the Social Security Act 1991.
The Applicant’s conditions giving rise to his lower limb impairment were not fully treated and fully stabilised during the Relevant Period. As such, no impairment rating on the Impairment Tables can be assigned to any functional impairment to the Applicant’s lower limbs.
Had the Tribunal found that the Applicant’s impairments were fully diagnosed, fully treated and fully stabilised during the Assessment Period, the appropriate impairment rating would be 10 points under Table 3 – not 20 points.
In the circumstances, the Applicant does not satisfy the requirements of section 94(1)(b) of the Social Security Act 1991.
The Applicant does not have a continuing inability to work. He is not prevented by his impairments from undertaking any work of at least 15 hours per week. Nor is he prevented from undertaking a training activity.
As such, the Applicant does not satisfy the requirements of section 94(1)(c) of the Social Security Act 1991.
The decision under review is set aside. In substitution, it is found that the Applicant does not qualify for DSP.
..........................[sgd].......................................
Deputy President Dr Christopher Kendall
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – meaning of "the Relevant Period" - whether there is a physical, intellectual or psychiatric impairment - whether impairment is of 20 points or more under the Impairment Tables in Schedule 1B of the Social Security Act 1991- whether Applicant has a continuing inability to work – decision under review set aside
LEGISLATION
The Social Security Act 1991 (Cth) – 94(1)(a) – 94(1)(b) – 94(1)(c) – 94(2) – 94(3)(a) –94(3)(b) – 94(5)
The Social Security (Administration) Act 1999 (Cth) - Schedule 2
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 - 6(3) – 6(4) – 6(5) – 6(6) – 6(7) – 11(1)(c) – Table 2 – Table 3
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth)
CASES
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
DECISION
Tribunal Deputy President, Dr Christopher Kendall
Date 14 August 2015 Place Perth The decision under review is set aside. In substitution, it is found that Mr Oliver does not qualify for DSP.
BACKGROUND
Gary Oliver was injured in a boating accident on 27 September 2013. He sustained injuries to both legs. Mr Oliver’s left lower leg was surgically amputated and he underwent right foot reconstruction.
On 13 December 2013, Mr Oliver lodged a claim for a disability support pension (“DSP”).
On 6 January 2014, Mr Oliver attended a job capacity assessment conducted by an occupational therapist (T7, at 47).
On 14 January 2014, a Centrelink officer rejected Mr Oliver’s claim for DSP because it was concluded that he did not have an impairment of 20 points or more under the Impairment Tables (the “Original Decision”) (T8, at 52).
On 26 May 2014, Mr Oliver provided Centrelink with a further Centrelink medical certificate and various reports from his insurance claim (T9, at 54; T10, at 56; T11, at 60; T12, at 64; T13, at 65).
On 7 July 2014, Mr Oliver sought review of the Original Decision (T18, at 94).
On 5 August 2014, a Centrelink Authorised Review Officer (“ARO”) affirmed the original decision (the “ARO Decision”) (T16, at 71).
The ARO concluded that Mr Oliver’s leg conditions were not fully diagnosed, fully treated and fully stabilised at the time of his claim. As such, any impairments arising from these conditions could not be allocated an impairment rating under the Impairment Tables. The ARO further found that Mr Oliver did not have a continuing inability to work.
On 14 August 2014, Mr Oliver sought review of the ARO decision by the SSAT.
On 17 October 2014, the SSAT set aside the ARO decision and remitted the matter to Centrelink for reconsideration in accordance with the decision that Mr Oliver’s claim for DSP be reassessed on the basis that he satisfies section 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth) (the “Act”) (the “SSAT decision”) (T2, at 2).
Specifically, the SSAT found that Mr Oliver’s leg conditions were fully diagnosed, fully treated and fully stabilised. The SSAT allocated an impairment rating of 20 points under Table 3 of the Impairment Tables and found that Mr Oliver had a “continuing inability to work”.
On 26 November 2014, the Secretary, Department of Social Services (the “Secretary”) lodged an application for review of the SSAT decision by the Administrative Appeals Tribunal (the “Tribunal”) (T1, at 1).
ISSUE
The Tribunal must determine whether Mr Oliver is eligible for DSP. When making this assessment, the Tribunal must decide:
(a)Whether Mr Oliver had any physical, intellectual or psychiatric impairment(s) pursuant to section 94(1)(a) of the Social Security Act 1991 (Cth) (the “Act”); and
(b)if so, whether any such impairment(s) had a combined rating of at least 20 points under the The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the “Impairment Tables Determination”) pursuant to section 94(1)(b) of the Act; and
(c)if so, whether Mr Oliver had a continuing inability to work pursuant to section 94(1)(c)(i) of the Act because of any such impairment(s).
THE RELEVANT PERIOD
The Social Security (Administration) Act 1999 (the “Administration Act”) provides that the start-day for a qualified DSP claimant is the day on which the claim is made: Schedule 2. This means that qualification for DSP and any impairment ratings must be determined as at the date of claim.
In Re Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said at [31]–[33]:
[31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or within the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referable to the applicant's condition during the relevant period.
[32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant's entitlement to DSP must be considered at the date of claim and within the 13 week period, "Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time".
[33] … The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal's decision.
The Relevant Period in relation to whether Mr Oliver qualifies for DSP is 13 December 2013 (the date Mr Oliver lodged his claim for DSP) to 13 March 2014 (13 weeks after he lodged his claim for DSP) (the “Relevant Period”).
THE SSAT HEARING
The SSAT provided an overview of the facts and issues relevant to this matter. The hearing was also the subject of much discussion before this Tribunal. As such, some of what was examined and concluded before the SSAT merits repeating here.
The SSAT found as follows:
15. Mr Oliver said that he thinks he qualifies for a Disability Support Pension because he has medical reports saying he is unable to work for more than 24 months. He has one leg amputated and the other is in a moon boot.
16. Mr Oliver said he had been in a boating accident where he was pulling a boat off the beach and a rope broke and flew around at high speed injuring his legs. He needed a left below knee amputation and the right leg required an ankle reconstruction and bone grafting. The operation was some type of specialised operation where the doctors fabricate the bone somehow. The bone graft was done in 2013 and the most recent Xrays show signs of healing. He has a review in 6 months’ time to check progress. The leg is in a moonboot during the day. He gets pain from the right leg. He has a prosthesis fitted but it takes time to adapt to this, especially given the other leg is in a moonboot. He can walk around a little in the backyard using crutches. He generally uses a self propelled wheelchair at home and has a gopher.
17. Mr Oliver said he lives at home on his own. He can’t drive. His parents do his shopping. He doesn’t do any cleaning of the house. A friend mows his lawn. He uses a wheelchair to get into the shower and toilet. It takes 90 minutes to have a shower.
18. Mr Oliver said his insurance paid out on him being totally and permanently incapacitated.
19. Mr Oliver said he used to work as a boilermaker. He got to 4th year high school.
Do Mr Oliver's impairments rate at least 20 points under the impairment tables?
20. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) outlines the requirements that must be satisfied before an impairment rating can be assigned for a condition. These are:
·the condition must be fully diagnosed and fully treated and fully stabilised;
·the condition must be considered to be likely to persist for more than two years;
·a condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years.
Lower limb injuries
21.The Authorised Review Officer said this was not fully diagnosed, fully treated, and fully stabilised and did not attract impairment points.
22.The Tribunal does not agree with this conclusion.
23.Clearly it has been fully diagnosed.
24.With respect to the issue of whether it is fully treated the treating doctor's report dated 2 December 2013 says Mr Oliver had a number of operations starting on 27 September 2013 with the last being on 27 November 2013 which was “Removal of cement spacer R ankle + bone graft”. Future treatment was plan for removal of external fixators pending recovery.
25.The Tribunal considers Mr Oliver’s injuries were fully treated once he had his last operation.
26.With respect to fully stabilised the Determination provides the following instruction about the definition of fully stabilised:
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.
27. The treating doctor's report from Dr Yeo dated 2 December 2013 says the impact on function is expected to persist for 24 months and remain unchanged. The Tribunal is a little surprised that Dr Yeo says function is likely to be unchanged for 24 months as generally with the fitting of a prosthesis and rehabilitation some improvement in mobility and function might generally be expected.
28. There is also a report by Dr Wang dated 6 March 2014 for MetLife insurance that says Mr Oliver is unable to perform any duties of his occupation indefinitely. Mr Oliver’s limitations are “Amputations - unable to mobilise”. It also says “Patient unable to return to work”.
29. The Tribunal notes that both Dr Yeo and Dr Wang are interns and not orthopaedic specialists. However they were presumably working in the orthopaedic units under the supervision of orthopaedic specialists at the time. They would have had access to Mr Oliver’s casenotes and Xrays and to the opinions of the various specialists involved in Mr Oliver’s care. Because of this the Tribunal considers these reports should be accepted on face value as accurate.
30. The Authorised Review Officer says the condition is not fully diagnosed, fully treated, and fully stabilised because further medical intervention may result in an improvement in functioning. The Tribunal considers this is in contradiction to the medical evidence. In the Tribunal’s opinion if Centrelink wants to make a finding that contradicts written medical evidence of the treating medical staff they would need to organise their own thorough independent medical review, as they have the power to do under the Act, rather rely on the opinion of a non-medical job capacity assessor or Authorised Review Officer who doesn’t have access to the same range of relevant medical information as the treating medical staff.
31. For this reason the Tribunal finds Mr Oliver’s lower limb injuries as of the date of claim were unlikely to improve sufficiently for him to be able to undertake work within 2 years and hence met the criteria to be fully diagnosed, fully treated, and fully stabilised.
32. Table 3 has the following descriptor for 20 impairment points:
20
There is a severe functional impact on activities using lower limbs.
(1) The person:
(a) is unable to do any of the following:
(i) walk around a shopping centre or supermarket without assistance;
(ii) walk from the carpark into a shopping centre or supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b) requires assistance to use public transport.
(2) This impairment rating level includes a person who requires assistance to assistance to:
(a) move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b) move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
33. Mr Oliver can only walk a little and generally uses a wheelchair or gopher for mobility. He needs assistance standing from a sitting position in the sense that he has to have his prosthesis and moonboot on and would need to use his arms and furniture or crutches etc to assist with standing. The Tribunal considers this meets the criteria listed in (1) and hence an impairment rating of 20 points applies.
34. The Tribunal notes in passing that the second half of the descriptor - part (2) - uses the word “includes" which means that the list that follows is for illustrative purposes and is non exhaustive with respect to the types of people who might meet the 20 point descriptor. Mr Oliver would be in the category 2(b) from the descriptor in that when using crutches he would need help to walk on uneven surfaces.
Total impairment points
35. Mr Oliver’s total impairment rating is 20 points. Mr Oliver therefore satisfies section 94(1)(b).
Severe impairment
36. The Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011 (the Determination) applies to all applications for Disability Support Pension on or after 3 September 2011.
37. In Mr Oliver’s case chronic groin pain attracts 20 points and hence is a severe impairment and so the active participation in a program of support rules do not apply.
Does Mr Oliver have a continuing inability to work?
38. The test for a continuing inability to work is whether a person’s medical conditions prevent them working 15 hours per week in whatever type of work suits them best given their medical problems.
39. The Tribunal considers Mr Oliver is struggling with basic activities of daily living and couldn’t possibly work.
40. The job capacity assessment report says Mr Oliver’s work capacity is 0-7 hours per week. The medical reports say Mr Oliver can’t work.
41. The Tribunal finds as fact that Mr Oliver’s medical condition prevents him from working 15 hours per week any time in the next 2 years.
42. The Tribunal has also found that these limitations would also prevent him from undertaking educational, vocational or on-the-job training, which would enable him to perform alternative work within two years. He therefore has a continuing inability to work and satisfies section 94(1)(c).
43. Mr Oliver therefore satisfies all parts of section 94(1) and qualifies for a Disability Support Pension subject to all other requirements of the Act being met.
THE MEDICAL EVIDENCE
A good overview of the medical evidence in this matter was provided by the Secretary in its Statement of Facts, Issues and Contentions dated 26 June 2015 (R1). The Tribunal has reviewed the medical evidence before it and accepts the summary of this evidence provided by the Secretary, some of which is provided below.
Medical Report – DSP, completed by Dr Yeo, dated 2 December 2013 (T4 at 12-20)
Dr Yeo described Mr Oliver’s condition as ‘left below knee amputation, right lower leg in external fixators’, with a date of onset of 27 September 2013 (T4 at 15). Dr Yeo noted that Mr Oliver had undergone 3 surgeries on each leg between 27 September 2013 and 27 November 2013 and was currently undergoing outpatient rehabilitation, external fixation of right leg and hyperbaric therapy to optimize soft tissue condition in his right leg (T4 at 15-16).
In relation to future treatment, Dr Yeo noted that Mr Oliver had an outpatient appointment scheduled for 12 December 2013 and that the external fixators would be removed pending recovery (T4 at 16).
Dr Yeo indicated that this condition impacts on Mr Oliver’s movement and dexterity and affects his walking and activities of daily living (T4 at 17).
Dr Yeo noted further that the impact of the condition would last for more than 24 months and the effect on Mr Oliver’s ability to function would remain unchanged for the next 2 years (T4 at 17).
Job Capacity Assessment Report regarding assessment of 6 January 2014 (T7 at 47-51)
The job capacity assessor assessed Mr Oliver’s lower limb condition as permanent and fully diagnosed. However, the assessor did not consider the condition to be fully treated and stabilised because (T7 at 48):
Mr Oliver’s right lower leg is currently in external fixators and he is unable to weight bear through the right lower limb. He has a left below knee prosthesis in situ and is currently mobilising in a manual wheelchair, or an electric gopher for longer distances. Mr Oliver reported he experiences some pain but this is not of sufficient severity to require analgesia. He reported he has not yet undergone much physiotherapy for support to use his prosthesis as a result of requiring further treatment to the right leg first. Mr Oliver’s right foot appeared swollen and dark, and he reported needing to keep it elevated as much as possible (he did so during the JCA interview). Mr Oliver reported he is unable to perform many everyday activities currently as a result of his mobility limitations and is reliant on friends who were staying with him for all domestic duties. He cannot drive currently. Mr Oliver reported being independent in self-care with ergonomic aids (e.g. wheeled commode, shower chair, rails) but that these tasks are very time consuming to perform.
Mr Oliver is awaiting further treatment, including surgery to the right leg to remove external fixators. Provided there is a good outcome from this procedure, Mr Oliver is then likely to undergo further and ongoing postoperative rehabilitation/prosthetic training to increase his mobility. Mr Oliver’s current level of functional impact (eg not able to walk at all/fully wheelchair dependent) may not be indicative of his long term functioning and assigning an impairment rating based upon these symptoms could be considered over-rating. Future reassessment once Mr Oliver has undergone further treatment and rehabilitation and the level of his residual/ongoing symptomology is clearer may be appropriate.
The assessor did not find Mr Oliver’s leg condition to be fully diagnosed, fully treated and fully stabilized. As such, no impairment rating was recommended.
The assessor considered Mr Oliver’s temporary work capacity to be 0-7 hours per week, his baseline work capacity to be 8-14 hours per week and his capacity for work within 2 years with intervention to be 15-22 hours per week in light, less skilled work (T7 at 50).
In relation to Mr Oliver’s temporary work capacity, the Assessor explained:
Mr Oliver will benefit from a temporarily reduced work capacity as he is currently experiencing health issues which are significantly functionally limiting. During this time he will engage in further treatment (e.g., surgery, rehabilitation) which may stabilise his current symptoms, readying him for a return to paid employment/job seeking.
Medical certificate for DSP dated 21 April 2014 by Dr Milne (T9 at 54-55)
Dr Milne certified Mr Oliver as unfit for work until 31 May 2014, noting that Mr Oliver experienced pain and difficulties with mobility, and needed to “fully rehabilitate before attempting work again” (T9 at 54).
Metlife Medical Statement, completed by Dr Wang, dated 6 March 2014 (T10 at 56-59)
Dr Wang described Mr Oliver’s condition as “left below knee amputation and right lower limb reconstruction following bilateral lower limb traumatic amputations secondary to boating accident” (T10 at 56).
Dr Wang noted that Mr Oliver had attended for consultation on the following dates, for the reasons and with the results indicated below:
·27 September 2013, for traumatic injury with surgery being the treatment and Mr Oliver’s condition improving since this date;
·24 October 2013, for left leg amputation and right foot reconstruction, with rehabilitation being the treatment prescribed and Mr Oliver’s condition improving since this date;
·27 November 2013, for right tibia defect with surgery being the treatment and Mr Oliver’s condition improving; and
·5 March 2014, for right tibia external fixators, with surgery being the treatment and Mr Oliver’s condition considered improved (T10 at 57).
Dr Wang considered that Mr Oliver was unable to perform the duties of his occupation “indefinitely” because his amputations make him “unable to mobilise” (T10 at 57). She writes that he “is unable to return to work”.
Australian Super Initial Medical Attendant’s Statement, completed by Dr Wang, dated 6 March 2014 (T11 at 60-59)
Dr Wang indicated that, in relation to his left below knee amputation and right lower limb reconstruction, Mr Oliver was experiencing post-surgical pain of mild to moderate severity (T11 at 61).
Dr Wang described the treatment Mr Oliver had received as “left below knee amputation, right foot reconstruction and external fixators/K-wires, removal of external fixators/K-wires, hyperbaric treatment, Cephazolin, Paracetamol and Cephalexin” (T11 at 61).
Dr Wang described the work that Mr Oliver was generally required to perform in his usual occupation as a boilermaker and noted that Mr Oliver was limited in his ability to perform his usual duties as he is unable to stand, climb, do heavy lifting or drive (T11 at 62). She described him as “incapacitated” and “unable to return to work” (T11 at 63). She indicated that Mr Oliver would be unable to return to work indefinitely (T11 at 63). Dr Wang also indicated that Mr Oliver needs assistance with shopping and cleaning (T11 at 62).
Yachting Australia Sporting Personal Injury Insurance Claim Form, 30 April 2014 (T13 at 65-57)
The doctor (unnamed) completing this form indicated that Mr Oliver had suffered permanent impairment of 50% due to his inability to walk (T13 at 66). It was noted that Mr Oliver would never be able to return to work (T13, p66).
Report from Dr Mark Floyd, Consultant Occupational Physician, MLCOA, 25 March 2015 (A3)
In the course of this proceeding, the Secretary referred Mr Oliver for an assessment by a medico-legal occupational physician. He was provided all the relevant medical evidence held by Centrelink. Mr Oliver attended an appointment with Dr Floyd on 9 March 2015.
Dr Floyd provided a detailed report on 25 March 2015. Relevantly, it provided as follows:
SUMMARY AND ASSESSMENT:
Mr Oliver is a 61-year-old gentleman with a history of traumatic left below-knee amputation and injury to right lower limb and ankle. He has had surgical intervention with left below-knee amputation and on the right has reportedly had an external fixator to the right ankle with bone grafting. Mr Oliver reported that there was delayed union in the right ankle however further clinical reports to support this were not made available.
As a result of Mr Oliver’s injuries to his lower limb he would not have a capacity for work that involves standing long periods, walking long distances, crouching, squatting, pushing and pulling or carrying heavy loads, climbing ladders, repetitive ascending and descending of stairs or accessing constrictive spaces. To that end Mr Oliver’s employability as a boilermaker would be significantly restricted. Mr Oliver advised that the majority of his working history has been as a manual worker, which given the above restrictions would limit his employability. He would require further vocational assessment to identify suitable employments and may require further assistance with training to identify suitable light sedentary work.
When seen Mr Oliver had resigned to not returning to work considering his significant restrictions. However from a medical perspective within the restrictions identified above Mr Oliver would not be prevented from returning to suitable work initially commencing in a part- time role.
With regard to your specific questions:
1. Based on your examination of Mr Oliver and consideration of the medical evidence provided to you, please provide your opinion on the following questions;
a. Do you consider Mr Oliver's conditions of ‘left below knee amputation' and ‘right lower leg in external fixators’ to have been ‘fully diagnosed’ and ‘fully treated’ (within the meaning of the Rules) during the Assessment Period?
I note you define the assessment period as 13 December 2013 to 13 March 2014.
During the time of the assessment period Mr Oliver had evidence supporting a left below-knee amputation and right ankle traumatic injury requiring stabilisation with external fixators. This is corroborated from the medical report for Disability Support Pension from Dr Nicolette Yeo dated 2 December 2013.
At that point in time (assessment period) Mr Oliver’s condition would not have been fully treated. At that time Mr Oliver was due to undergo further treatment in the form of assistance with managing his prosthesis. At that time he was reliant on the use of a wheelchair and was not fully mobile on crutches. He was also in a period of reduced weight bearing to allow bone healing in the right lower limb. To that end it would appear treatment had not fully occurred and was likely to continue considering further intervention was planned. In my opinion this would not indicate that Mr Oliver’s condition was fully treated.
i. What are the functional impairments that Mr Oliver suffers as a result of the condition?
At the time of the assessment period Mr Oliver had functional impairment with a lack of mobility in his lower limbs as a result of his left below-knee amputation and traumatic injury to the right lower limb. As result of this he was non-weight bearing on the right lower leg awaiting for bone graft to heal and had not had the opportunity to master the use of a prosthesis.
ii. What treatment or rehabilitation had occurred for this condition?
Treatment and rehabilitation that had occurred is outlined in the body of my report above under the heading “History” and various subheadings where he had surgeries to the left lower limb with below-knee amputation and adjustments and on the right external fixators placed with bone grafting. At that stage no further functional rehabilitation had occurred waiting for bone healing to complete.
iii. Was treatment continuing or planned in the 2 years from 13 December 2013?
Treatment as reported by Mr Oliver for the two years from 13 December 2013 was allowing bone healing to occur in the right lower limb where bone grafting had been applied along with assistance from the prosthetic department and physiotherapy departments to assist with increasing mobility.
b. Was Mr Oliver’s leg condition ‘fully stabilised’ (within the meaning of the Rules) within the Assessment Period?
Within the assessment period Mr Oliver’s leg condition had not fully stabilised. Further treatment in the form of reduced weight bearing allowing bone healing to occur in the right lower limb was likely to result in significant functional improvement allowing Mr Oliver to mobilise without the use of a wheelchair.
He has achieved this now being able to mobilise with sticks. At the time of the assessment period it was uncertain what level of functional improvement he would achieve over the next two years and while it was likely that Mr Oliver would not return back to the full demands of a boilermaker it was not possible at that point to say that Mr Oliver would never return back to any work.
i. Mr Oliver had undertaken reasonable treatment for the condition:
Mr Oliver during the assessment period had had reasonable treatment however further treatment in the form of allowing time for bone to stabilise and input from the prosthetics and physiotherapy departments to assist with mobility had not occurred.
ii. Any further reasonable treatment and/or rehabilitation would be likely to have resulted in significant functional improvement to a level enabling Mr Oliver to work within 2 years of the Assessment Period.
As stated above further treatment rehabilitation at that point in time (the assessment period) may have predictably resulted in significant functional improvement to allow Mr Oliver to graduated return to light sedentary work. However it was appropriately predicted to be unlikely that he would return to full work demands as a boilermaker.
iii. There was medical or other compelling reason for Mr Oliver not to undertake reasonable treatment.
There was no medical or other compelling reason for Mr Oliver not to undertake reasonable treatment and he did undertake reasonable treatment from that time.
c. Having regard to the descriptors in Impairment Table 3, if Mr Oliver’s condition was to be assigned a rating on this Impairment Table, what is the appropriate rating to be allocated during the Assessment Period (see tab 11, p17-19)? Please address each of the specific descriptors in Impairment Table 3. In determining the level of functional impact, please also refer to the Guidelines (tab 12).
During the assessment period, with reference to the Impairment Table, Mr Oliver, based on the information Mr Oliver provided and the reports available, would fit within the 20-point category.
He was unable to walk around the shopping centre or supermarket. He was unable to walk from a car park into a shopping centre or supermarket without assistance. He could however stand up from sitting position without assistance but would not be able to undertake this repetitively as is detailed under the guidelines, “An activity listed under a descriptor is not taken as being able to be performed if it can only be done once or rarely - it needs to be able to undertaken repetitively”. Mr Oliver would require assistance to use public transport or assistance helping him with the wheelchair. Mr Oliver by the stage of discharge reported that he was able to transfer from a wheelchair to the toilet however at that stage he was primarily reliant on a wheelchair rather than crutches or a walking frame.
d. Would any of your answers to the above questions be different if you were assessing Mr Oliver’s condition, and the functional impact resulting from that condition, as at the present date? Please give reasons for your answer.
With regard to the above answers my answers may be different to some of the questions based on Mr Oliver’s presentation when seen. When seen he would not be at a level of impairment at 20.
He would fit into the 10 point moderate functional impact on activities of daily living.
I note that he is able to stand for more than five minutes and estimated his longest walk to be the length of a football field. He needs assistance or a gopher to get to the local shops. Mr Oliver is able to negotiate steps and stairs. He is able to use public transport and able to briefly mobilise around a shopping centre or supermarket. He is able to move around independently using walking aids.
At this stage coming up to 18 months after his accident he would be reaching a point of fully diagnosed and fully treated.
2. Did Mr Oliver’s impairments from his leg condition prevent him from undertaking work of at least 15 hours per week independently of a program of support within the 2 years from 13 December 2013? Please provide reasons for your answer.
Please note:
Work is defined to mean work:
• That is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
• That exists in Australia, even if not within the person’s locally accessible labour market.
Program of Support is defined as a program that is designed to assist people to prepare for, find or maintain work, and is funded (wholly or partly) by the Commonwealth or is of a type that the Secretary considers is similar to such a program.
In my opinion Mr Oliver would have had the capacity within the two-year period from 13 December 2013 to undertake at least 15 hours of week work in a light sedentary role with restrictions to standing long periods, walking long distances, crouching, squatting, pushing and pulling or carrying heavy loads, climbing ladders, repetitive ascending and descending of stairs or accessing constrictive spaces, in my opinion Mr Oliver would not have been fit and is still not fit to return to work as a boilermaker with the inherent demands on his lower limbs. A detailed vocational assessment may identify what types of work he would have capacity for within his education, experience and training and within the restrictions detailed above.
3. If you consider that Mr Oliver was able to undertake work within 2 years of 13 December 2013, what types of employment would Mr Oliver have been able to undertake, having regard to his impairment from his leg conditions?
Mr Oliver would have been able to undertake work that was light sedentary with restrictions as detailed in Q2 above. Specific occupations within his experience training and education could be identified with a vocational assessment.
4. If you consider that Mr Oliver’s leg condition was fully diagnosed, fully treated and fully stabilised during the Assessment Period, was the impairment arising from the leg condition of itself sufficient to prevent him from undertaking a training activity during the 2 years from 13 December 2013? If not, was such an activity likely to enable him to do any work independently of a program of support in the next 2 years?
Training Activity is defined to mean one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments: education, pre-vocational training, vocational training, vocational rehabilitation, work-related training (including on-the-job training).
In my opinion Mr Oliver’s leg condition was not fully stabilised during the assessment period and he went on to have further intervention that improved his level of functional capacity. It is impossible to be accurate with specific dates but at some point over that period of time and likely during the last four months Mr Oliver would have reached a point that would have allowed him to undertake some training to allow him to return to suitable employment
In my opinion with training and support it is reasonable to expect that Mr Oliver could have reached the capacity to allow him to return to work of 15 hours a week.
RELEVANT LEGISLATION
Section 94 of the Social Security Act 1991 (Cth) sets out the requirements of qualification for DSP. Section 94(1) provides:
(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)the person has a continuing inability to work;
…
ANALYSIS
Does Mr Oliver suffer from an impairment?
It was not disputed before this Tribunal that Mr Oliver has impairments to his lower limbs.
Mr Oliver thus satisfies the requirements of section 94(1)(a) of the Act.
Was Mr Oliver’s Impairment “Permanent”?
As outlined by the Secretary to the Tribunal, pursuant to section 94(1)(b) of the Act, Mr Oliver’s functional impairments must attract an impairment rating of 20 points or more under the Impairment Tables.
An impairment rating can only be assigned to an impairment if the condition causing the impairment is permanent, and the impairment that results from the condition is more likely than not, in light of available evidence, to persist for more than 2 years: s 6(3) of the Impairment Tables Determination.
Section 6(4) of the Impairment Tables Determination states that 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
(c) the condition has been fully stabilised; and
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Further, section 6(5) of the Impairment Tables Determination states:
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.
Under s 6(6) of the Impairment Tables Determination, “fully stabilised” means:
(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 medical or other compelling reason for the person not to undertake reasonable treatment.
Pursuant to section 6(7), “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.
In written statements to the Tribunal, the Secretary contended that Mr Oliver’s lower limb conditions were fully diagnosed during the Assessment Period but not fully treated or fully stabilised.
The Tribunal agrees.
In Fanning and Secretary, Department of Social Services [2014] AATA 447, DP Handley noted (at [33]) that:
The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years”. While hindsight may suggest that treatment did not result in improvement within two years that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.
The Secretary contended before the Tribunal that, as at the Relevant Period, there was substantial ongoing treatment and rehabilitation planned and being undertaken for Mr Oliver’s lower limb injuries. The Secretary argued that Mr Oliver had not yet had the external fixators in his right leg removed. Nor had he undergone rehabilitation of the sort that would show him how to effectively use his prosthesis. Further, Mr Oliver was still in a period of restricted weight-bearing, which was intended to assist the healing of his legs and improve his functional capacity. The Secretary further contended that the evidence does not support a finding that as at the Relevant Period such treatment was unlikely to result in significant functional improvement.
The Tribunal agrees with these conclusions. In particular, it notes the very detailed assessment provided by Dr Mark Floyd (A3).
Dr Floyd states said that he does not consider Mr Oliver’s condition would have been fully treated during the Relevant Period (page 7 of his report). He notes, relevantly, that Mr Oliver was due to undergo further treatment in the form of assistance with managing his prosthesis. He further notes that during the Relevant Period Mr Oliver was reliant on using a wheelchair and was not fully mobile on crutches. Further, he was in a period of reduced weight bearing.
Dr Floyd also concludes that Mr Oliver’s leg condition was not fully stabilised during the Relevant Period. He states (at page 8 of his report):
Further treatment in the form of reduced weight bearing allowing bone healing to occur in the right lower limb was likely to result in significant functional improvement allowing Mr Oliver to mobilise without the use of a wheelchair. He has achieved this now being able to mobilise with sticks. At the time of the assessment period it was uncertain what level of functional improvement he would achieve over the next two years and while it was likely that Mr Oliver would not return back to the full demands of a boilermaker it was not possible at that point to say that Mr Oliver would never return back to any work.
Dr Floyd considered that with the ongoing treatment expected during and after the Relevant Period, it was likely that Mr Oliver would experience significant improvement in his functional capacity. He notes that this improvement did occur, with Mr Oliver currently able to mobilise on crutches, rather than rely on a wheelchair.
The Tribunal also notes that although Dr Yeo indicated that the impact of Mr Oliver’s condition would remain unchanged, she also indicated that further treatment and rehabilitation was ongoing and that the external fixators would in time be removed from Mr Oliver’s right leg.
Based on the evidence before it and keeping in mind the Relevant Period, the Tribunal accepts the Secretary’s contention that Mr Oliver’s lower limb condition was not fully treated and fully stabilised during the Relevant Period.
As such, it follows that an impairment rating cannot be assigned in relation to Mr Oliver’s impairment arising from his lower limb condition.
The Tribunal finds that, in the circumstances, Mr Oliver does not satisfy the requirements of section 94(1)(b) of the Act.
What Impairment rating would be assigned had the Tribunal found that Mr Oliver’s Impairment had been fully treated and stabilised.
Because the Tribunal finds that Mr Oliver’s lower limb condition was not fully treated and fully stabilised during the Relevant Period, an impairment rating cannot be assigned in relation to Mr Oliver’s impairment arising from his lower limb condition. In these circumstances, the Tribunal is not required to determine what impairment rating would be assigned in relation to Mr Oliver’s impairment arising from his lower limb condition.
Nonetheless, for the sake of completeness, the Tribunal makes the following observations in relation to the appropriate impairment rating had Mr Oliver’s impairment been fully treated and fully stabilised.
It is not disputed that Table 3 of the Impairment Tables is the correct Table when a person has a condition resulting in functional impairment when performing activities involving the lower limbs.
Pursuant to the Impairment Table Determination, a rating of 10 points on Table 3 can be allocated as follows:
10
There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
A rating of 20 points of Table 3 can be allocated as follows:
20
There is a severe functional impact on activities using lower limbs.
(1) The person:
(a) is unable to do any of the following:
(i) walk around a shopping centre or supermarket without assistance;
(ii) walk from the carpark into a shopping centre or supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b) requires assistance to use public transport.
(2) This impairment rating level includes a person who requires assistance to:
(a) move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b) move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
The Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension (“the Impairment Tables Guidelines”) explain (at 7-8) that the Impairment Tables are function-based rather than diagnosis-based. Specifically, they focus on assessing impact of impairment on normal functions as they relate to work performance. They do not just assess a person’s medical conditions, the person's overall health status or a loss or abnormality of psychological, physiological or anatomical structure.
Section 11 of the Impairment Tables Determination contains rules about assigning an impairment rating and provides:
(1) In assigning an impairment rating:
(a)an impairment rating can only be assigned in accordance with the rating points in each Table; and
(b)a rating cannot be assigned between consecutive impairment ratings; and
Example: A rating of 15 cannot be assigned between 10 and 20.
(c)if an impairment is considered as falling between 2 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; and
(d)a rating cannot be assigned in excess of the maximum rating specified in each Table.
(2)In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied.
Descriptors involving performing activities
(3)When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.
Example: If, under Table 2, a person is being assessed as to whether they can unscrew a lid of a soft drink bottle, the relevant impairment rating can only be assigned where the person is generally able to do that activity whenever they attempt it.
Episodic and fluctuating conditions
(4)When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
No impairment resulting from a condition
(5)To avoid doubt, where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.
The Tribunal notes that both the SSAT and Dr Floyd concluded that the functional impact of Mr Oliver’s leg condition would rate 20 points on Table 3 during the Relevant Period.
In particular, the Tribunal notes that Dr Floyd states:
He was unable to walk around the shopping centre or supermarket. He was unable to walk from a car park into a shopping centre or supermarket without assistance. He could however stand up from sitting position without assistance but would not be able to undertake this repetitively as is detailed under the guidelines, “An activity listed under a descriptor is not taken as being able to be performed if it can only be done once or rarely - it needs to be able to undertaken repetitively”. Mr Oliver would require assistance to use public transport or assistance helping him with the wheelchair. Mr Oliver by the stage of discharge reported that he was able to transfer from a wheelchair to the toilet however at that stage he was primarily reliant on a wheelchair rather than crutches or a walking frame.
The Secretary contended before the Tribunal that if the Tribunal had determined that Mr Oliver’s lower limb condition were fully treated and stabilised during the Relevant Period, an impairment rating of 10 points would be appropriate because, during the Relevant Period, Mr Oliver was unable to walk far outside his home, could not use stairs or steps without assistance and was unable to stand for more than 5 minutes.
The Secretary further contended, however, that a rating of 20 points was not appropriate because, although Mr Oliver met some of the descriptors of a 20 point impairment rating as at the Relevant Period, he did not meet all such descriptors.
In this regard, the Tribunal was referred to s 11(1)(c) of the Impairment Tables Determination, which provides:
… if an impairment is considered as falling between 2 Impairment Tables, 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.
The Tribunal’s attention was also drawn to page 31 of the Impairment Tables Guidelines, where it is explained that:
… to meet the 20 point descriptor all the points below 1(a) must apply (i, ii and iii) and the person must also require assistance to use public transport. (2)(a) and (b) outline the level of assistance required by a person who either uses a wheelchair or walking aid. If the person uses a wheelchair or walking aid either one of these points must also be met.
The Secretary contended that the descriptor in (1)(a) of the 20 point impairment rating for Table 3 requires Mr Oliver to be unable to do any of the activities listed. The Secretary argued that the evidence shows that Mr Oliver did not require assistance from another person to stand up from a sitting position. As such, 20 points cannot be assigned.
The Tribunal accepts the evidence of Dr Floyd that although Mr Oliver could stand up from a sitting position, he “would not be able to undertake this repetitively as is detailed under the guidelines”.
The Secretary further contended that Mr Oliver does not meet the descriptor in paragraph (2)(a) for a 20 point rating as the evidence indicates he did not require assistance from another person to mobilise in a wheelchair and did not require assistance from another person with transfers.
The Tribunal agrees with this conclusion. There is nothing in the evidence before the Tribunal that demonstrates that, during the Relevant Period, Mr Oliver was unable to transfer in and out of a wheelchair. Indeed, the evidence of Dr Floyd states that Mr Oliver was able to do so and there is no evidence that Mr Oliver required personal care assistance to use the toilet.
In the circumstances, even if the Tribunal were to assign an Impairment Rating based on Mr Oliver’s functional impact during the Assessment Period (which in these circumstances is not appropriate on the basis that Mr Oliver’s leg conditions were not fully treated and stabilised), the appropriate impairment rating would be 10 points on Table 3.
Accordingly, the Tribunal finds that Mr Oliver does not satisfy the requirements of section 94(1)(b) of the Act.
Continuing Inability to Work
The Tribunal has found that Mr Oliver’s impairment was not fully treated or stabilised during the Relevant Period. It has also found that, even if Mr Oliver’s impairment had been fully treated and stabilised, he would only receive an impairment rating of 10 points under Table 3 of the Impairment Tables. This latter finding means that Mr Oliver’s impairment would not be a “severe impairment”.
In the circumstances, it is not necessary for the Tribunal to determine whether Mr Oliver has a continuing inability to work pursuant to section 94(1)(c) of the Act.
For the sake of completeness, however, the Tribunal makes the following observations.
If the Tribunal had been satisfied that Mr Oliver's condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period, and the resulting impairment attracted an impairment rating of at least 20 points under the Impairment Tables, then the Tribunal would also need to determine whether Mr Oliver had a “continuing inability to work” for the purposes of section 94(1)(c)(i) of the Act.
Section 94(2) of the Act defines a “continuing inability to work” as follows:
(2)A 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) - the person has actively participated in a program of support within the meaning of subsection (3C); 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.
The evidence shows that Mr Oliver participated in a program of support for 18 months in the 3 years prior to his claim.
Mr Oliver would still be required, however, to demonstrate that he met the continuing inability to work criteria in sections 94(2)(a) and (b) of the Act.
The Secretary contended that Mr Oliver did not meet these criteria at any time during the Relevant Period. As such, he did not meet the requirement of section 94(1)(c)(i) of the Act.
Section 94(5) of the Act defines 'work' as work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage that exists in Australia, even if not within the person's locally accessible labour market.
The Secretary noted that when determining whether a person has a continuing inability to work, the Tribunal should disregard the following factors:
·any impairments that have not been assigned a rating under the Impairment Tables (Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500);
·the availability of work in the person's locally accessible labour market (section 94(3)(b));
·the availability to the person of a training activity (section 94(3)(a));
·the person's motivation to work or train except when medical evidence indicates that the lack of motivation is directly attributable to the impairment (Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444, 451);
·the person's preferences regarding the type of work or training (Crossland and Secretary, Department of Family and Community Services [2004] AATA 864 [34]);
·the person's potential attractiveness to an employer in a particular area of work or employer preferences and discriminatory practices that exist in the open labour market, including the willingness or otherwise of employers to engage people with disabilities (Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846);
·the existence of a benign employer or sheltered or special employment; that is, only the normal workplace is considered (Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606; Re Hamal and Secretary, Department of Social Service (1993) 30 ALD 517).
The Secretary contended that, with intervention, Mr Oliver is likely to be able to work for at least 15 hours per week within 2 years of lodging his claim on 13 December 2013. In making this contention, the Secretary relied on the evidence of Dr Floyd and the job capacity assessor, both of whom believed that Mr Oliver would be able to work in a sedentary role for more than 15 hours per week with some restrictions
The Tribunal agrees with this assessment.
The Tribunal notes, in particular, that Dr Floyd considered that Mr Oliver would have the capacity to work for at least 15 hours per week within the 2 year period from 13 December 2013 in a light sedentary role with restrictions on standing long periods, walking long distances, crouching, squatting, pushing and pulling or carrying heavy loads, climbing ladders, repetitive ascending or descending stairs or accessing constrictive spaces. He did not consider that Mr Oliver would be able to return to his work as a boilermaker and suggested that a detailed vocational assessment may identify the types of work for which Mr Oliver may have capacity (page 10 of Dr Floyd’s medical report).
Although Dr Wang and the doctor who completed the Yachting Australia Personal Injury Insurance Claim Form both indicated that Mr Oliver was unlikely to be able to return to work, a close reading of that evidence suggests that both reports refer to work in his current capacity. The Secretary contended that as these forms were completed for insurance purposes, it is likely that any references to work are references to Mr Oliver's work in his usual occupation of boilermaker. The Tribunal agrees. As explained by the Secretary to Tribunal, there is no evidence to suggest that these doctors were assessing Mr Oliver's capacity to perform any work that is available in Australia, or his capacity to undertake a training activity to prepare him for any work to which he is suited having regard to his impairments.
In relation to section 94(2)(b) of the Act, under section 94(5), “training activity” is defined as :
one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments: (a) education, (b) pre-vocational training, (c) vocational training, (d) vocational rehabilitation, (c) work-related training (including on-the-job training)
There is no evidence before the Tribunal that Mr Oliver's impairments prevent him from undertaking a training activity. Indeed, the evidence of Dr Floyd states otherwise. Further, as detailed above, the evidence shows that Mr Oliver would have been able to work independently of a program of support within 2 years of the Assessment Period for the purposes of section 94(2)(b)(ii) of the Social Security Act.
In hearing before this Tribunal, Mr Oliver expressed concern that he could not work in the future because of his age and because he was only qualified as a boiler maker - a career path that is as no longer an option for him due to his injuries. He also suggested that any further training would effectively be pointless given his prospects for future employment.
These are not factors the Tribunal can take into account.
The Tribunal is not unsympathetic to the concerns raised by Mr Oliver. What has happened to him can only be described as tragic.
However, the Tribunal can only look at the evidence before it in relation to the legislation relevant to DSP. In that context, it cannot be said that Mr Oliver satisfies either of section 94(2)(a) or (b) of the Act during the Relevant Period.
The Tribunal finds, accordingly, that Mr Oliver did not have a continuing inability to work as required by section 94(1)(c) of the Act.
FINDINGS
During the Relevant Period, Mr Oliver had a lower limb impairment. He thus meets the requirements of section 94(1)(a) of the Social Security Act 1991.
Mr Oliver’s conditions giving rise to his lower limb impairment were not fully treated and fully stabilised during the Relevant Period. As such, no impairment rating on the Impairment Tables can be assigned to any functional impairment to the Applicant’s lower limbs.
Had the Tribunal found that the Mr Oliver’s impairments were fully diagnosed, fully treated and fully stabilised during the Assessment Period, the appropriate impairment rating would be 10 points under on Table 3 – not 20 points
Mr Oliver does not satisfy the requirements of section 94(1)(b) of the Social Security Act 1991.
Mr Oliver does not have a continuing inability to work. He is not prevented by his impairments from undertaking any work of at least 15 hours per week. Nor is he prevented from being able to undertake a training activity.
Mr Oliver does not satisfy the requirements of section 94(1)(c) of the Social Security Act 1991.
Accordingly, Mr Oliver does not qualify for DSP.
DECISION
The decision under review is set aside. In substitution, it is found that Mr Oliver does not qualify for DSP.
I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall. ..................[sgd D Brodie]......................................
Administrative Assistant
Dated 14 August 2015
Date of hearing 5 August 2015 Representative of the Applicant Ms A Ladhams Solicitors for the Applicant Australian Government Solicitor Respondent In person (unrepresented)
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