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

Ollerenshaw and Secretary, Department of Social Services (Social services second review) [2017] AATA 1176 (31 July 2017)
Division:GENERAL DIVISION
File Number(s): 2017/0289
Re:Bruce Ollerenshaw
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Bill Stefaniak AM RFD, Senior Member
Date:31 July 2017
Place:Sydney

The decision under review is affirmed.
...............[sgd].........................................................
Bill Stefaniak AM RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – application for disability support pension refused – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairments rated at 20 points or more under the Impairment Tables – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) sch 2
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Bill Stefaniak AM RFD, Senior Member
31 July 2017
INTRODUCTION

On 11 April 2016 the applicant lodged a claim for the disability support pension (DSP).
The claim was rejected by Centrelink, both initially (on 14 June 2016) and on review (on 16 August 2016), on the basis that the applicant did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act).
In a decision dated 13 December 2016, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal found that the applicant did not satisfy

s 94(1)(b) of the Act and so he did not qualify for DSP.
On 12 September 2016, the applicant applied to the General Division of the Administrative Appeals Tribunal for a review of the SSCSD decision.
The matter was heard in Sydney on 12 May 2017. The applicant attended the hearing in person and was self-represented.
The applicant had previously applied for DSP unsuccessfully in May 2015.
RELEVANT LEGISLATION AND ISSUES
Section 94(1) of the Act provides that a person qualifies for DSP 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)the person has a continuing inability to work as defined in s 94(2) of the Act.
In accordance with the requirements of schedule 2 of the Social Security (Administration) Act 1999 (Cth), to qualify for the DSP, the applicant must satisfy the requirements of s 94 of the Act as at the date of his claim or within 13 weeks of lodging the claim, namely between 11 April 2016 and 11 July 2016 (the claim period).
The applicant provided as evidence before the tribunal a management plan from his GP, Dr Michael Burke, dated 9 February 2016, Centrelink medical certificates from Dr Burke in 2015 and 2016, two Centrelink medical reports from previous GPs (Dr Okoroma Igbojiaku dated 24 May 2015 and Dr Leonard Yudeiken dated 26 June 2013) and a report by Dr Luke Pascoe, radiologist, dated 8 April 2015. These reports stated that the applicant, at the date of his application for DSP, suffered from hepatitis C, degenerative scoliosis and lumbar spondylosis causing lower back pain (spinal condition), spurs and foot tendon issue (lower limb condition), parathyroid condition, cataracts (visual condition), Bowen’s disease and other conditions, namely depression and impotence.
The respondent conceded that the applicant suffers medical conditions that cause impairment and therefore, he satisfied s 94(1)(a) of the Act at the time of his claim for DSP.
Accordingly the issues the tribunal must determine in this matter are whether, during the claim period, the applicant had:
(a)an impairment rating of 20 points or more under the Impairment Tables; and
(b)a continuing inability to work as defined in s 94(2) of the Act.
Does the applicant have medical conditions that can be rated at 20 points or more under the Impairment Tables?
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination) requires that an impairment rating can only be assigned if the condition causing that impairment is “permanent”. As set out in paragraph 6(4) of the Impairment Tables Determination, a condition is permanent if it:
·has been fully diagnosed by an appropriately qualified medical practitioner; and
·has been fully treated; and
·has been fully stabilised; and
·is more likely than not to persist for more than two years.
The Impairment Tables describe functional activities, abilities, symptoms and limitations, and are designed to assign ratings to determine the level of functional impact of impairment.
The introduction to each relevant Table requires that “Self-report of symptoms alone is insufficient” and “There must be corroborating evidence of the person’s impairment”.
Relying on the evidence before me, I consider that the applicant’s medical conditions for the purposes of his claim for the disability support pension are:
·hepatitis C;
·lower back pain / scoliosis – spinal condition;
·bone spurs / plantar fasciitis – lower limb conditions;
·parathyroid condition;
·cataracts – visual condition;
·Bowen’s disease; and
·other conditions including depression and impotence.
I will now consider each of these medical conditions and their relevant rating under the Impairment Tables.
Hepatitis C
The applicant told the tribunal he has had hepatitis C since 1986 and that it now appears to have gone, although he remains concerned about damage to his liver.
The medical report for DSP completed by Dr Okoroma Igbojiaku (General Practitioner) on 24 May 2015 stated that the applicant has chronic hepatitis C. The report noted that he is “Not on treatment. Gets regular review at [Westmead] liver clinic” and the functional impact of the condition on the applicant was described as “Poor endurance. Tired easily”.
A report by Dr Choon Lee (Consultant Physician) dated 16 December 1992 set out that the applicant had acute myeloid leukaemia in 1986 that went into complete remission following chemotherapy. Dr Lee noted that the applicant received “blood and platelet support during the time of his acute myeloid leukaemia induction” and he is hepatitis C positive.
In September 2015, the applicant saw Dr Michael Burke (General Practitioner), who recommended that he participate in a three month trial of a new drug “Viekira” to treat his hepatitis C. As indicated in Dr Bourke’s report dated 5 April 2016, the applicant duly completed this trial and it appears his current test results indicate that he is no longer hepatitis C positive. He told the tribunal that his liver is not yet normal, and that the full extent of the damage has yet to be assessed and cannot be ascertained until November 2017.
Based on the medical evidence before me, I am satisfied that the applicant’s chronic hepatitis C condition was fully diagnosed, but not fully treated and fully stabilised during the claim period. Accordingly, as I am not satisfied that his condition was permanent during the claim period, I cannot assign an impairment rating.
Spinal condition
The applicant told the tribunal that his back problem is the main reason he is unable to work these days. The problem started gradually around 2000 and has affected him badly since 2010.
A Health Services Australia (HSA) report by Dr W Ma on 2 September 2002 noted that the applicant “has had chronic back pain for many years. X-ray and CT scan showed scoliosis of the lumbar spine, small disc bulge at L4/5 and slight spinal canal stenosis”.
The history of diagnosing the applicant’s scoliosis is set out in radiology reports by:
·Dr Victor Critoph (Mt Druitt Radiology Centre) on 16 February 2001;
·Dr Paul Lee (Mount Druitt Primary Diagnostics) on 19 December 2008;
·Dr Luke Pascoe (Mt Druitt Healthcare Imaging Centre) on 21 May 2013 and 8 April 2015; and
·Dr Andrew Law (Blacktown Medical Imaging) on 7 December 2016.
On 30 November 2015, a CT lumbosacral spine found:
There is sacralisation of L5 with four lumbar type vertebrae. Mild spondylotic degenerative disc disease at L5/S1 with a right foraminal disc/osteophyte complex causing moderate right sided L4/5 foraminal stenosis. This results in contact and slight displacement of the exiting right L4 nerve root. Right L4 perineural injection can be considered for further management.
A chronic disease management plan by Dr Burke dated 9 February 2016 stated that the applicant has back pain due to “Scoliosis 10-15 degrees scoliosis lumbar region April 2015”. Dr Burke prescribed Lyrica once to the applicant on 9 February 2016.
In his report dated 5 April 2016 Dr Burke stated that the applicant:
has long standing lower back pain. This interferes with activities of daily living. He has marked reduction of lower back range of motion. He is unable to bend to collect items form [sic] the floor withouot [sic] bending his knees. He can sit up to 15 minutes only due to lower back pain.
The Job Capacity Assessment (JCA) Report dated 22 July 2015 reported that the applicant’s spinal condition:
is considered fully diagnosed, however does not fulfil the criteria of fully treated and stabilised as the client would benefit from specialist consultation in order to discuss future treatment options … [such as] further physiotherapy, secondary rehabilitation, hydrotherapy and pain management program which may improve [his] prognosis.
It is interesting to note that the JCA dated 25 May 2016 made an identical comment.
At the tribunal hearing, the applicant reported that he had attended physiotherapy sessions in the past and did the exercises recommended by the physiotherapist until about 2011/2012. He said that he has been unable to do the exercises since then, and therefore considered there was no benefit in attending further sessions with a physiotherapist. It didn’t work and the exercises just caused him pain. His current GP, Dr Burke, whom he says has taken a real interest in his welfare, said not to do the exercises because of the pain they caused.
The applicant told the tribunal that he has a vibrating chair and a portable spa that fits into his bath which gives him some relief.
I accept the applicant’s submission that his spinal condition has occurred since at least 2000 and that, at the time of the claim period, he had considered and participated in all options for treating his back condition. Dr Burke’s reports also effectively backs this up.
The applicant told the tribunal that he is in constant pain from his back. He is able to sit for approximately 15 minutes at a time and can only walk for about 10 to 15 minutes before he needs to rest. He can walk with the aid of a walking stick to his local shops, a distance of about 200 metres, but needs to rest at the shops before he comes home. He can carry a two litre bottle of milk and a loaf of bread home.
The applicant can use certain types of buses and can catch a train if the station has a lift or a ramp. He often gets lifts with his sister or his niece if he needs to go to an appointment away from his immediate neighbourhood. There is usually a bus between his home and Mt Druitt shopping centre that he can catch. He is capable of bringing home about 5 kilograms of groceries, in a bus or in a car using a small wheeled shopping bag.
On the day of the tribunal hearing, the applicant had taken a train from Mr Druitt to the city and during the hearing was able to sit for periods of approximately 15 minutes before having to stand up. The most time he was able to stand without sitting was about 35 minutes. He told the tribunal that when he catches the train he alternatively sits and stands and tends, if at all possible when sitting, to sit sideways across the seats. He sits sideways at home and can’t stretch out in bed because of his back but tends to sleep sideways and curled up on some pillows on the couch. The pillows help alleviate the back pain.
The applicant has lived alone for over a year now. He is able to shop using a trolley, cook for himself, wash his clothes and hang them on a clothes line at eye level, dress himself and wash his hair in the shower if he leans forward from the waist. He cannot engage in activities over head height and told the tribunal that he has modified his house so that he can conduct his daily activities between waist and eye level.
As stated above, the functional impact of the applicant’s back condition was reported by Dr Burke in his report dated 5 April 2016 immediately prior to the claim period. Dr Burke said, inter alia, “He is unable to bend to collect items form [sic] the floor withouot [sic] bending his knees. He can sit up to 15 minutes only due to lower back pain”.
Based on the medical evidence before me, which corroborates the applicant’s evidence, I am satisfied that the applicant’s condition was fully diagnosed, treated and stabilised during the claim period. In accordance with Table 4 – Spinal Function, I find that the applicant’s condition during the claim period had a moderate functional impact on activities involving spinal function. Specifically, he is “unable to sustain overhead activities”. I assign an impairment rating of 10 points.
Lower limb conditions
The medical report for DSP completed by Dr Igbojiaku on 24 May 2015 diagnosed the applicant with bilateral calcaneal spurs, which are “generally well managed and ... cause minimal or limited impact on [his] ability to function”.
A radiologist report by Dr Pascoe on 21 May 2013 noted the applicant has “Medial erosive disease right ankle”. A further report by Dr Pascoe on 8 April 2015 stated that he has “mild spurring of the [right knee] patella superiorly”, “bilateral plantar and posterior calcaneal spurs” on both feet and “No other abnormalities are identified”.
A JCA Report dated 22 July 2015 recorded that the applicant had received no treatment for his lower limb conditions. The Job Capacity Assessor considered the conditions were fully diagnosed but not fully treated and stabilised, and that the applicant would benefit from specialist consultation to discuss future treatment. The JCA report of 25 May 2016 said the same.
Dr Burke referred the applicant to a podiatrist, Ms Zara Nikbin (also referred to as Zara Ware), and in a report dated 2 November 2015, Ms Nikbin stated that the applicant “walks with feet abducted … He doesn’t have much dorsiflexion at the ankle joint as he has tight gastrocnemius. He complains of plantar feet pain which is due to plantarfasciitis”. Ms Nikbin advised the applicant to wear correct footwear, use orthoses in shoes and do exercises.
Dr Burke in his report dated 5 April 2016 stated in relation to the feet that “He also reports ongoing pain from plantar fasciitis. This makes walking on stairs difficult - hence he avoids stairs. He can stand up to 15 minutes only due to foot pain”.
The applicant told the tribunal that, while he commenced the treatment recommended by Ms Nikbin, he is now unable to put on shoes or complete the exercises. He indicated that he normally just wears thongs unless another person is around to put on his shoes and socks. He stated the podiatrist gave him inner soles. He further said he can’t get a doctor to do the necessary operation on Medicare and that he wished to get other things sorted first.
The applicant went on to say in cross examination that he had an appointment with his GP on 24 May 2017 for a referral to the podiatrist who he intends to ask to arrange for him to have an operation to fix up his feet. He volunteered that there is a 12 month wait for an operation.
Based on the medical and other evidence before me, I find that the applicant’s lower limb conditions were fully diagnosed, but not fully treated and stabilised during the claim period. As I am not satisfied that his condition was permanent during the claim period, I cannot assign an impairment rating.
I note that if the applicant has an operation in future, if these lower limb conditions are then fully treated and stabilised and if his problems do not improve as a result of that further treatment, then he may well qualify for a points rating under Table 3.
Parathyroid condition
A medical certificate by Dr L Yudeiken dated 3 February 2014 recorded “Investigation of Parathyroid”. This condition was listed in the applicant’s application for DSP on 11 April 2016.
A report by Dr Burke on 23 September 2016 (two months after the claim period) stated that the applicant “is awaiting parathyroid surgery – this will be done in the next twelve months”.
The applicant in evidence said he was listed to have an exploratory operation on 22 May 2017 and when he got the results he would then seek to take further steps as required. He said he had been told that 95% of tumours were not cancerous.
Accordingly, based on the evidence before me, I find that the applicant’s condition was not fully diagnosed, treated and stabilised during the claim period. As I am not satisfied that his condition was permanent during the claim period, I cannot assign an impairment rating.
Visual condition
A HSA report by Dr Ma dated 2 September 2002 stated that the applicant had bilateral cataract operations in 1993 and 1996, and has photophobia that requires him to wear sunglasses in bright light. An optometrist report on 28 July 2009 noted his cataract surgery and recorded his visual acuity as “RE [right eye] 6/6 and LE [left eye] 6/6”, and “[v]isual field confrontation is normal”.
On 5 December 2016, some six months after the claim period, a report by optometrist Stephen McCowage of Mt Druitt stated that “Wearing sunglasses when outside alleviates the glare symptoms. He is moderately hypermetropic with presbyopia. Visual acuity corrected is 6/6 for each eye. His glare problem is longstanding and I do not expect it will improve over time”.
The applicant gave evidence that he wore a hat and sunglasses outside to avoid glare. He reported no further problems.
There are no further medical reports before the tribunal in relation to the applicant’s visual condition.
In light of the above, I am satisfied that the applicant’s visual condition is now fully diagnosed, treated and stabilised and that this was also the case during the claim period. Having looked at Table 12 – Visual Function I award him nil impairment points as apart from glare issues, he has reasonable eyesight and thus does not qualify.
Bowen’s disease
At the tribunal hearing, the applicant stated that he had attended a dermatologist regularly since 2015 to have many small lesions burned off. He is very careful to avoid direct sun exposure to his skin, wears long sleeve shirts and other protective clothing and uses sunburn cream to avoid skin issues.
The applicant said his problems go back to his chemotherapy treatment decades ago, plus the fact he is a red head and fair skinned. He said “It’s the UV rays. I take whatever precautions I can”.
Dr Burke in his management plan of 9 February 2016 notes that Bowen’s disease is monitored by KRMC skin clinic.
In light of the above I find that there is sufficient evidence to satisfy me that Bowen’s disease has been fully diagnosed, treated and stabilised and that the applicant has to take extra precautions, higher than normal, to limit exposure to sunlight. As a result the tribunal awards him 5 points under Table 14 – Function of the Skin for continuing avoidance of sunlight because of an increased risk of skin cancers such as Bowen’s disease.
Other conditions
The applicant also complained of issues of intermittent depression and impotence in his application. He did not go as far as to say these conditions were causing him a lot of grief, however annoying they were, and the tribunal was left with the clear impression that he was managing them and that they did not have any negative functional impact on him.

Dr Burke noted these two issues in his 9 February 2016 management plan, however gave insufficient documentation to the tribunal for me to determine whether those conditions had been fully diagnosed, treated and stabilised. Accordingly, I cannot assign a rating under the Impairment Tables to them.
CONCLUSION
For the reasons set out above, I am satisfied that the applicant did not meet the requirements of s 94(1)(b) of the Act during the claim period as his impairments were not rated at 20 points or more under the Impairment Tables. As can be seen from the above the tribunal can only award him 15 points.
Accordingly, as I find that the applicant did not qualify for the DSP during the claim period, it is not necessary for me to consider whether he had a continuing inability to work.
I do however note that the respondent concedes, in paragraph 72 of the Secretary’s Statement of Facts and Contentions, that the applicant has participated in a program of support (POS) for an 18 month period of time prior to lodging his DSP claim, namely 663 days.
Further, I should put on the record that the applicant was very concerned about the accuracy of the various JCAs and the alleged lack of qualifications of the assessors involved. He submitted that the tribunal should have little regard to them, especially the JCA dated 25 May 2016 upon which the respondent relies to an extent.
As a result of my decision above there is no need for me to go into detail on this issue, suffice to say I have had little if any regard to the content of the JCA reports tendered and have based my decision on the medical evidence and what the applicant said under oath. I should add that the JCA report of 25 May 2016 was based on a phone interview with the applicant and in many instances seems to be a rehash of the previous JCA dated 22 July 2015. I did not need to rely on it in any way in coming to my decision.
I further note, although I do not need to rule on it, that the POS documents admitted into evidence seem to indicate that the applicant was not capable of employment for much of the previous three year period, thus contradicting the conclusions made as to work capacity in the JCA of 25 May 2016.
However, as already stated, this is academic and I do not need to decide that evidentiary issue as the applicant in this instance, in my view, can only qualify for 15 points under the Impairment Tables.
Finally, I conclude by saying that if the applicant’s circumstances change or worsen in any way, he is entitled to submit a new application for the DSP at any time. Any fresh application should be supported by new reports by relevant health professionals (e.g. from his GP especially) addressing the relevant Impairment Tables, commenting on the descriptors therein, and assigning him points for each condition.
DECISION
The decision under review is affirmed.

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member.

...............[sgd].........................................................
Associate
Dated: 31 July 2017

Date(s) of hearing: 12 May 2017

Date final submissions received: 18 May 2017

Applicant: In person

Solicitors for the Respondent: Dr S Thompson, Department of Human Services

[2017] AATA 1176

31 July 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Remedies

Date(s) of hearing:	12 May 2017
Date final submissions received:	18 May 2017
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services