Ollerenshaw and Secretary, Department of Social Services (Social services second review)
[2016] AATA 883
•8 November 2016
Ollerenshaw and Secretary, Department of Social Services (Social services second review) [2016] AATA 883 (8 November 2016)
Division
GENERAL DIVISION
File Number(s)
2016/0179
Re
Bruce Ollerenshaw
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr L Bygrave, Member
Date 8 November 2016 Place Sydney The decision under review is affirmed.
..................................[sgd]......................................
Dr L Bygrave, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – application for the disability support pension refused – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairments are rated 20 points or more under the Impairment Tables – spinal condition awarded 10 points under Table 4 – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr L Bygrave, Member
8 November 2016
INTRODUCTION
On 26 May 2015, Mr Bruce Ollerenshaw lodged a claim for the disability support pension.
The claim was rejected by Centrelink, both initially and on review, on the basis that Mr Ollerenshaw did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act).
In a decision dated 14 December 2015, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal found that Mr Ollerenshaw did not satisfy s 94(1)(b) of the Act and so he did not qualify for the disability support pension.
On 14 January 2016, Mr Ollerenshaw applied to the General Division of the Administrative Appeals Tribunal for a review of the SSCSD decision.
The matter was heard in Sydney on 26 October 2016. Mr Ollerenshaw attended the hearing in person and was self-represented.
RELEVANT LEGISLATION AND ISSUES
Section 94(1) of the Act provides that a person qualifies for the 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)the person has a continuing inability to work as defined in s 94(2) of the Act.
In accordance with the requirements of the Social Security (Administration) Act 1999 (Cth), to qualify for the disability support pension, Mr Ollerenshaw 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, that is between 26 May 2015 and 25 August 2015 (the claim period).
The Respondent concedes and the Tribunal agrees that Mr Ollerenshaw suffers medical conditions that cause impairment and therefore, he satisfied s 94(1)(a) of the Act at the time of his claim for the disability support pension.
It follows that the determinative issues in this matter are whether, during the claim period, Mr Ollerenshaw 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 Mr Ollerenshaw 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 ‘[s]elf-report of symptoms alone is insufficient’ and ‘[t]here must be corroborating evidence of the person’s impairment’.
Relying on the evidence before me, I consider that Mr Ollerenshaw’s medical conditions for the purposes of his claim for the disability support pension are:
·chronic hepatitis C;
·lower back pain / scoliosis – spinal condition;
·bone spurs / plantar fasciitis – lower limb conditions;
·parathyroid condition;
·cataracts – visual condition; and
·other conditions including depression and Bowen’s disease.
I now consider each of these medical conditions and their relevant rating under the Impairment Tables.
Chronic hepatitis C
The medical report for disability support pension completed by Dr Okoroma Igbojiaku (General Practitioner) on 24 May 2015 stated that Mr Ollerenshaw has chronic hepatitis C. The report noted that Mr Ollerenshaw is ‘Not on treatment. Gets regular review at [Westmead] liver clinic’ and the functional impact of the condition on Mr Ollerenshaw was described as ‘Poor endurance. Tired easily’.[1]
[1] Exhibit T1-T41, pp 223-225.
A report by Dr Choon Lee (Consultant Physician) dated 16 December 1992 set out that Mr Ollerenshaw had acute myeloid leukaemia in 1986 that went into complete remission following chemotherapy. Dr Lee noted that Mr Ollerenshaw received ‘blood and platelet support during the time of his acute myeloid leukaemia induction’ and he is hepatitis C positive.[2]
[2] Exhibit T1-T6.
At the Tribunal hearing, Mr Ollerenshaw said that his chronic hepatitis C condition should be considered permanent because Dr Igbojiaku, his treating doctor at the time of the claim period, was not aware of any available treatment.
In September 2015, after the claim period, Mr Ollerenshaw 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 a result of completing this trial, Mr Ollerenshaw told the Tribunal that his current test results indicate he is no longer hepatitis C positive, although he will continue to undergo testing for another 12 months to assess whether there are any secondary conditions that may occur from the treatment.
Based on the medical evidence before me, I am satisfied that Mr Ollerenshaw’s chronic hepatitis C condition was fully diagnosed, but not fully treated and fully 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.
Spinal condition
In his claim for the disability support pension on 26 May 2015, Mr Ollerenshaw stated that he suffers from ‘scoliosis and spondylitis lower lumbar’.
A Health Services Australia (HSA) report by Dr W Ma on 2 September 2002 noted that Mr Ollerenshaw ‘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’.[3]
[3] Exhibit T1-T24, p 145.
The history of diagnosing Mr Ollerenshaw’s scoliosis is set out in radiology reports by:
·Dr Victor Critoph (Mt Druitt Radiology Centre) on 16 February 2001;[4]
·Dr Paul Lee (Mount Druitt Primary Diagnostics) on 19 December 2008;[5] and
·Dr Luke Pascoe (Mt Druitt Healthcare Imaging Centre) on 21 May 2013 and 8 April 2015.[6]
[4] Exhibits T1-T20.
[5] Exhibit T1-T25.
[6] Exhibits T1-T33 and T1-T38.
On 30 November 2015, after the claim period, a CT lumbar 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.[7]
[7] Exhibit A1.
A chronic disease management plan by Dr Burke dated 9 February 2016 stated that Mr Ollerenshaw has back pain due to ‘[s]coliosis 10-15 degrees scoliosis lumbar region April 2015’.[8] Dr Burke prescribed Lyrica once to Mr Ollerenshaw on 9 February 2016, more than five months after the claim period.[9]
[8] Exhibit R1, Annexure A.
[9] Exhibit A4.
A Job Capacity Assessment (JCA) Report dated 22 July 2015 reported that Mr Ollerenshaw’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.[10]
[10] Exhibit T1-T43, p 260.
At the Tribunal hearing, Mr Ollerenshaw reported that he had attended physiotherapy sessions in 2009 and had continued to do the exercises recommended by the physiotherapist until about 2011. Mr Ollerenshaw said that he has been unable to do the exercises since 2011, and therefore considered there was no benefit in attending further sessions with a physiotherapist. I accept Mr Ollerenshaw’s submission that his spinal condition has occurred since at least 2001 and that, at the time of the claim period, he had considered and participated in all options for treating his back condition.
Mr Ollerenshaw 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 uses public transport when he needs to leave his home, which is usually a bus between his home and Mt Druitt shopping centre. On the day of the Tribunal hearing, Mr Ollerenshaw had taken a train from Mr Druitt to the city and was able to sit for periods of approximately 20 minutes. Mr Ollerenshaw has lived alone for the past five months and 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.
The functional impact of Mr Ollerenshaw’s back condition was reported by Dr Burke more than seven months after the claim period on 5 April 2016 as follows: ‘He has marked reduction of lower back range of motion. He is unable to bend to collect items form [sic] the floor without bending his knees. He can sit up to 15 minutes only due to lower back pain.’[11]
[11] Exhibit R1, Annexure C.
Based on the medical evidence before me, I am satisfied that Mr Ollerenshaw’s condition was fully diagnosed, treated and stabilised during the claim period. In accordance with the information at Table 4 – Spinal Function, I find that Mr Ollerenshaw’s condition during the claim period had a moderate functional impact on activities involving spinal function and I assign an impairment rating of 10 points.
Lower limb conditions
The medical report for disability support pension completed by Dr Igbojiaku on 24 May 2015 diagnosed Mr Ollerenshaw 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 Mr Ollerenshaw has ‘[m]edial erosive disease right ankle’. A further report by Dr Pascoe on 8 April 2015 stated that Mr Ollerenshaw has ‘mild spurring of the [right knee] patella superiorly’, and bilateral plantar and posterior calcaneal spurs on both feet and ‘[n]o other abnormalities are identified’.
A JCA Report dated 22 July 2015 recorded that Mr Ollerenshaw 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 Mr Ollerenshaw would benefit from specialist consultation to discuss future treatment.
Mr Ollerenshaw visited Ms Zara Nikbin [also referred to as Z Ware] (Podiatrist) in November 2015, three months after the claim period. In a report dated 2 November 2015, Ms Nikbin stated that Mr Ollerenshaw ‘walks with feet abducted … [h]e 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 Mr Ollerenshaw to wear correct footwear, use orthoses in shoes and do exercises.[12]
[12] Exhibit A3.
Mr Ollerenshaw 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.
Based on the medical evidence before me, I find that Mr Ollerenshaw’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.
Parathyroid condition
A medical certificate by Dr L Yudeiken dated 3 February 2014 recorded ‘Investigation of Parathyroid’.[13] This condition was not set out in either Mr Ollerenshaw’s application for disability support pension on 26 May 2015 or Dr Igbojiaku’s medical report dated 24 May 2015.
[13] Exhibit T1-T35.
A report by Dr Burke on 23 September 2016, more than 13 months after the claim period, stated that Mr Ollerenshaw ‘is awaiting parathyroid surgery – this will be done in the next twelve months’.[14]
[14] Exhibit R1, Annexure D.
Based on the evidence before me, I find that Mr Ollerenshaw’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 Mr Ollerenshaw 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 Mr Ollerenshaw’s 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’.[15]
[15] Exhibit T1-T29.
There are no further medical reports before the Tribunal in relation to Mr Ollerenshaw’s visual condition. Mr Ollerenshaw told the Tribunal that he was able to see and read, but he had sensitivity to sunlight.
I note the most recent report in relation to Mr Ollerenshaw’s visual condition is six years prior to his application for the disability support pension. In the absence of a report from either Mr Ollerenshaw’s treating doctor or medical specialist that is relevant to the claim period, I am not satisfied that his visual condition was fully diagnosed, treated and stabilised during the claim period. I therefore cannot assign an impairment rating.
Other conditions
At the Tribunal hearing, Mr Ollerenshaw stated that other medical conditions recorded in the chronic disease management plan by Dr Burke dated 9 February 2016, including Bowen’s Disease and intermittent depression, did not have any negative functional impact on him. As there is no further medical evidence in relation to these conditions, I cannot assign an impairment rating under the Impairment Tables.
CONCLUSION
For the reasons set out above, I am satisfied that Mr Ollerenshaw did not meet the requirements of s 94(1)(b) of the Act during the claim period as his impairments were not 20 points or more under the Impairment Tables.
As I find that Mr Ollerenshaw did not qualify for the disability support pension during the claim period, it is not necessary for me to consider whether he had a continuing inability to work.
If Mr Ollerenshaw’s circumstances change, he is entitled to submit a new application for the disability support pension at any time.
DECISION
The decision under review is affirmed.
I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member ....................................[sgd]....................................
Associate
Dated 8 November 2016
Date(s) of hearing 26 October 2016 Applicant In person Solicitors for the Respondent Dr S Thompson, Department of Human Services
Key Legal Topics
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