PATRICK RYAN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2012] AATA 592

[2012] AATA 592  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/1479
Re	PATRICK RYAN
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	4 September 2012
Place	Brisbane

The Tribunal affirms the decision under review.

...............[Sgd]...................................................

Mr R G Kenny, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Relevant time-frame for assessment – Physical impairment in right elbow, left knee and right foot – Impairment rating of 10 points under Table 3 of Schedule 1B – Impairment rating of nil points under Table 4 of Schedule 1B – Applicant not qualified for disability support pension – Decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth) s 94, Sch 1B

Social Security (Administration) Act 1999 (Cth) Sch 2

REASONS FOR DECISION

Mr R G Kenny, Senior Member

4 September 2012

BACKGROUND

1. On 18 November 2009, Patrick Ryan lodged a claim for disability support pension which is payable under the terms of the Social Security Act 1991 (Cth) (the Act). This was rejected by a Centrelink delegate on 27 January 2010. On 22 November 2010, an authorised review officer affirmed the decision as did the Social Security Appeals Tribunal (SSAT) on 22 March 2011.

   LEGISLATION, ISSUES AND SUBMISSIONS

2. The qualifications for a disability support pension are set out in s 94 of the Act. It is common ground that Mr Ryan meets the age and residency requirements of that provision and has a physical impairment to his right elbow, left knee and right foot. The remaining requirements in s 94 of the Act are:

   ·whether Mr Ryan has an impairment rating of 20 points or more which is calculated under the Impairment Tables in Schedule 1B of the Act as required by s 94(1)(b) thereof; and, if so

   ·whether he has a continuing inability to work as required by s 94(1)(c)(i) of the Act.

3. To qualify for a disability support pension, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the initial claim or in the period of 13 weeks from the day of the claim.[1] In Mr Ryan's case, this is from 18 November 2009 until 16 February 2010 (the relevant period). The conditions nominated by Mr Ryan's treating general practitioner, Dr Reza Safari Nejad, in a report dated 15 December 2009, were “right elbow fracture” and “left knee injury”. In his claim form, Mr Ryan has also referred to a “right foot” condition.

   [1] See sch 2, cls 3 and 4 of the Social Security (Administration) Act 1999 (Cth).

4. Under Table 3 of Schedule 1B of the Act, the Centrelink officers and the SSAT allocated a 10 point impairment rating to Mr Ryan in relation to his elbow condition. No further allocation was made for any other condition. As the impairment rating was less than the threshold of 20 points required under s 94 of the Act, Mr Ryan's claim was rejected.

5. The Introduction to Schedule 1B of the Act provides guidance in the application of the various Tables which it contains. Part of that Introduction requires that a rating is only to be assigned to a condition which is considered to be permanent in that it has been diagnosed, treated and stabilised.

6. For the respondent, Bob Hamilton submitted that the decision under review was based on two Job Capacity Assessment (JCA) reports in relation to Mr Ryan's impairment for all nominated conditions and that these should be adopted. He also submitted that Mr Ryan did not satisfy the incapacity for work requirements of s 94(2) of the Act.

7. Mr Ryan's presentation to the Tribunal was one of anger and hostility towards the previous decision makers in this matter, to the decision-making process, and to the Tribunal. His concerns were that:

   ·proper regard had not been given to medical reports from eminent specialists who expressed opinions on his incapacity from 1992 (when he sustained his lower limb injuries) until 2005 (when he sustained his upper limb injury) in relation to common law damages claims;

   ·some of the earlier specialist reports had been misplaced by Centrelink;

   ·the specialist opinions were that he had an incapacity in excess of 20% which should mean that he met the 20 point requirement for a disability support pension;

   ·Centrelink had changed the basis on which disability support pension was administered which meant that the earlier rating, which was greater than 20%, could no longer be used to satisfy the requirements of an impairment rating;

   ·the JCA reports made reference only to his right elbow condition and his left knee, thereby ignoring the effects of his right foot condition;

   ·no reliance should be placed on the JCA reports because they were not prepared by qualified medical specialists but only by registered nurses and a conditionally registered psychologist; and

   ·he was unable to return to any form of employment and was incapable of undergoing any form of training because of his arm and leg conditions.

   EVIDENCE

   Mr Ryan

8. Mr Ryan acknowledged that Dr Nejad had not referred to his foot condition in his report but asserted that he had advised Dr Nejad of that condition as well as his elbow and knee condition. He said that the earlier specialist reports referred to the foot problem and that this should have been sufficient for the authors of the JCA reports to have included it. 

9. Mr Ryan last worked in his own landscaping business in July 2009 and closed the business officially in January 2010. For the most part in 2009, his role was in management whereby he completed quotations for customers, organised the ordering of materials, handled the bookwork and supervised the sub-contractors who did the physical work.

10. Mr Ryan takes no medication for his conditions and said that he “hates” doctors. He described the symptoms he has from his right elbow as including an inability to straighten his arm. He said that he has difficulty lifting a 20kg bucket of water. Mr Ryan considered that questions about the impact of the elbow condition on his right hand function were irrelevant and was very reluctant to answer them. Nonetheless, he eventually stated that he had no concerns with his hand and only had a problem with pain if his elbow was resting on a table and he tried to use his hand in that position, in which case he would reposition his arm. He described no limitation on manual handling with his hand. Mr Ryan said that he was able to walk for 20 minutes without concern from his lower limb conditions and confirmed that he could walk for an hour but that he would then suffer pain on the following day. He described himself as having to walk with a stiffened leg because of his knee injury. He also described pain on the top of his right foot and, as with the left knee, this was usually on the day following activity.

11. Mr Ryan was referred to a brief JCA report completed by registered nurse Leanne Steele on 17 November 2010. He described her observations in that report as being completely false.

    JCA reports

12. Sonia Adams is a registered nurse who completed a JCA report on 12 January 2010. Therein, Mr Ryan's right elbow condition and left knee condition are described as being fully diagnosed, treated and stabilised. Impairment ratings of 10 and 0 were allocated, respectively, for Mr Ryan's elbow condition under Table 4 of Schedule 1B and his left knee condition under Table 3 of Schedule 1B. For each of those conditions, Ms Adams noted that treatment was by conservative management only and that no future treatment was planned. Mr Ryan's right foot was described as not being fully diagnosed, treated and stabilised and no impairment rating was allocated for it. Again, Ms Adams noted that no future treatment was planned for his foot.

13. A second JCA report was completed by (conditionally) registered psychologist, Unique Weber, and registered nurse, Leanne Steele, on 2 July 2010. The report described all three of Mr Ryan's conditions as being fully diagnosed, treated and stabilised and allocated 10 points under Table 4 in Schedule 1B for the right elbow and 0 points under Table 3 for the combined impairment for Mr Ryan’s lower limb conditions. In that report, it was noted that specialist medical reports from 1992, 1993, 1994, 2005, 2006 and 2009 had been consulted. The description of associated symptoms was not materially different from those noted in the previous JCA report.

14. Ms Steele also commenced the completion of a further JCA report on 17 November 2010. She noted that Mr Ryan attended the pre-arranged appointment but left when he realised that she was to conduct the examination. Ms Steele recorded the following observations:

    “… Mr Ryan walked approximately 40 metres into the interview room from the waiting room, he walked at an average pace with a steady gait, and without walking aids. Mr Ryan was observed to sit and stand without any problems from the chairs in the waiting area and the interview room. He was observed … to sit with his legs crossed and he moved his right arm and elbow without effort …”.

15. Ms Steele noted that Mr Ryan declared that nothing had changed since the last JCA report and that he did not wish to do another assessment.

    Other evidence

16. During the hearing, Mr Ryan was noted to gesticulate widely with his right arm with no apparent discomfort. He was also observed spontaneously rising from his chair, swinging his right foot on to a desk for the purposes of inspection, and to do so with no apparent difficulty in carrying his weight on his left leg and with no apparent discomfort.

    CONSIDERATION

17. I have noted Mr Ryan's criticism of the approach adopted by previous decision makers in this matter and, in particular, to that relating to the lack of reliance on earlier medical reports and with their opinions on the extent of his impairment. The previous decisions have been made in accordance with the statutory scheme which governs the assessment of a person for payment of the disability support pension. That scheme enables reliance on persons qualified in the manner of Ms Adams, Ms Steele and Ms Weber. The scheme also utilises criteria which are not related to assessment of impairment for common law damage claims and, accordingly, medical opinion in those terms is not directly relevant to an assessment under the terms of s 94 of the Act which requires a consideration of the Tables in Schedule 1B of the Act.

18. Under Schedule 1B of the Act, only a fully documented, diagnosed condition which has been investigated, treated and stabilised may be given an impairment rating. In preparing the first JCA report, Ms Adams did not have the formal diagnosis of the right foot condition and so no impairment rating was given to it. In the second JCA report, the condition was confirmed as being fully diagnosed, stabilised and treated. However, it was rated along with the left knee condition as, under Table 4 of Schedule 1B, the lower limbs are assessed together. Tables 3 and 4 of Schedule 1B read:

    TABLE 3: UPPER LIMB FUNCTION

    All upper limb problems are assessed under the upper limb Table (Table 3). Each arm is assessed separately. Determination of upper limb impairments must be based on a demonstrable loss of function.

Rating

Criteria

NIL

Can use dominant limb effectively and/or

Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.

FIVE

Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non‑dominant upper limb which causes moderate interference with hand function or manual handling.

TEN

Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.

FIFTEEN

Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non‑dominant upper limb which causes significant interference with hand function or manual handling.

TWENTY

Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes significant interference with hand function or manual handling or

Unable to use non‑dominant upper limb at all.

THIRTY

Unable to use dominant upper limb at all.

TABLE 4: FUNCTION OF THE LOWER LIMBS

Table 4 is used to assess lower limb not spinal function (see Table 5). Assess both limbs together.  Determination of lower limb impairments must be based on a demonstrable loss of functions.

Rating

Criteria

NIL

Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.

TEN

Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or

Pain or claudication restricts walking to 250‑500m or less, at a slow to moderate pace (4km/h).  Can walk further after resting.

TWENTY

Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or

Pain or claudication restricts walking (4km/h) to 50‑250m or less at a time.  Can walk further after resting or

Unable to walk or stand but independently mobile using a self‑propelled wheelchair.

THIRTY

Pain or claudication restricts walking (4km/h) to 50m or less at a time.  Can walk further after resting or restricted to walking in and around home and:

     requires quad stick, crutches or similar walking aid, or

     is unable to transfer without assistance.

FORTY

Unable to walk or stand and mobile only in a motorised wheelchair or wheelchair with an attendant.

1. Mr Ryan is right hand dominant and his evidence did not point to interference with his hand functioning or manual handling. Some reference to this is made in the first JCA report which was completed during the relevant period. That report allocated 10 impairment points under Table 3 and I am satisfied that this was the appropriate rating at that time. As for his lower limbs, Mr Ryan described a capacity to walk for 20 minutes and, indeed, referred to walking for an hour but with consequences on the following day. I do not accept Mr Ryan’s criticism of the JCA reporter who described him, after observing him, as walking at an average pace and with a steady gait and as demonstrating changes in sitting to standing and crossing his legs without effort. I accept those observations as accurate and objective descriptions of Mr Ryan and I reject his assertion that he walks with a stiffened left leg. In that regard, I have noted the lower limb agility which he displayed at the hearing. I am satisfied that the nil impairment rating allocated in each of the JCA reports is appropriate during the relevant period.

2. I am satisfied that, during the relevant period, the appropriate overall assessment rating for the impairment from Mr Ryan’s upper and lower limb conditions is 10 points. That is less than the threshold as provided for in s 94(1)(b) of the Act. As he fails to satisfy s 94(1)(b) as a threshold issue, there is no need to consider whether Mr Ryan has a continuing inability to work under s 94(1)(c)(i).

3. As Mr Ryan does not satisfy the terms of s 94 of the Act, he is not qualified, during the relevant period, for disability support pension.

   DECISION

4. The Tribunal affirms the decision under review.

23.       I certify that the preceding 22 (twenty two) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.

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Associate

Dated 4 September 2012

Date of hearing 23 August 2012

Applicant   In person

Representative for the respondent      Robert Hamilton