Peter Kennedy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 490
•30 July 2012
[2012] AATA 490
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/0926
Re
Peter Kennedy
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
Decision
Tribunal The Hon R J Groom AO (Deputy President)
Date 30 July 2012 Place Hobart The decision under review is affirmed.
[Sgd Hon R J Groom]
Deputy President
SOCIAL SECURITY – disability support pension – applicant suffers a range of conditions – whether those conditions are fully diagnosed treated and stabilised – whether impairment rating of 20 points or more – impairment rating less than 20 points – decision under review affirmed
Social Security Act 1991, s 94 and Schedule 1B
Social Security (Administration Act) 1999, ss 41, 42 and Schedule 2REASONS FOR DECISION
The Hon R J Groom AO (Deputy President)
introduction
This is a review of a decision of the Social Security Appeals Tribuanl (“SSAT”) made on 1 February 2011 affirming a Centrelink decision to reject a claim made by the applicant for a disability support pension (“DSP”).
the issue
The principal issue to be determined by the Tribunal is whether Mr Kennedy satisfies the requirements of section 94 of the Social Security Act 1991 (“the Act”) that he has an impairment rating of at least 20 points, and also a continuing inability to work as at the date of claim or within 13 weeks of that date.
the law
Section 94 of the Act relevantly provides as follows:
"94 Qualification for disability support pension
(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;
(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(f)the person is not qualified for disability support pension under section 94A".
It is not in dispute in these proceedings that section 94(1)(a) of the Act is satisfied as Mr Kennedy does have an impairment arising from his medical conditions. Subsections 94(1)(d), (e) and (f) of the Act are also satisfied.
It is submitted on behalf of the applicant that he satisfies section 94(1)(b) and (c) of the Act in the qualification period (that is at the date of claim or within 13 weeks thereafter – see sections 41 and 42 and Schedule 2 of the Social Security (Administration) Act 1999) as he had an impairment rating in excess of 20 points and also had a “continuing inability to work”.
The respondent contends that the applicant did not have an impairment rating of 20 points nor did he have a “continuing inability to work”.
background facts
Mr Kennedy was born on 29 January 1957 and is therefore now aged 55 years. He has been in receipt of newstart allowance since 2004. On 7 July 2010 he indicated an intention to claim DSP. He then lodged a claim form for DSP on 21 July 2010. It is noted that the claim for DSP was lodged more than two years ago.
In a medical report prepared following an examination of Mr Kennedy on 4 June 2010 which accompanied the DSP claim, Mr Kenndy’s treating general practitioner, Dr R Jackson, stated that the applicant suffered from several medical conditions including injuries to both shoulders and the right hip with pain when using the upper limbs and in all shoulder movements. Dr Jackson also referred to “depression” and “tinnitus”. (T7)
In that initial medical report Dr Jackson listed the “condition with most impact” as “shoulder injuries R and L …”. Those injuries followed a “… fall from scaffolding in Jan. 2008”. Dr Jackson said those injuries “will need surgical treatment”. He also stated in the report “post surgery aiming for sig. improvement of symptoms”.
Following the DSP claim and Dr Jackson’s initial report Mr Kennedy was assessed by a Job Capacity Assessor on 26 July 2010. A Job Capacity Assessment Report (“JCA Report”) was provided. (T8) In that report by Ms Anna Bowling several medical conditions were referred to. They included “shoulder and upper arm disorder”, “musculo-skeletal disorder”, “depression” and “tinnitus”. The assessor concluded that none of those conditions attracted impairment points under the Impairment Tables in Schedule 1B of the Act. The assessor also determined that Mr Kennedy had a base line capacity to work from 15 to 22 hours per week. If his conditions had been fully diagnosed treated and stabilised the report suggests his work capacity would then be 30 hours per week.
Dr Jackson provided a further medical report following her examination of Mr Kennedy on 10 September 2010 (T10). In this second report Dr Jackson described the “condition with most impact” as “bilateral severe rotator cuff injuries”. Dr Jackson described the symptoms as “significant pain when using both shoulders, weakness and unable to use shoulder to perform previous occupation. Activities of daily living affected by his ongoing disability”. (T Documents page 165) The medical report further stated that “needs further surgical treatment” and later that ability to function “will depend on surgical opinion”. (T Documents page 166)
In the same report (T10) “condition 2” is listed as “tinnitus + industrial deafness”. The “date of onset” is stated to be “1989”. The symptoms of this condition are described as “causes difficulty hearing, concentrating and cause intense stress”. (T Documents page 167). Dr Jackson said this condition was expected to persist for “more than 24 months”.
Certain other conditions are listed and said to cause “minimal or limited impact on ability to function”. These other conditions are “hepatitis C”, “ross river virus”, “TB” and a “L thigh injury post fall”.
Following Dr Jackson’s second medical report a further JCA report was then prepared by Ms Bowling and submitted on 1 October 2010. (T11) In the report Ms Bowling recommends an impairment rating for tinnitus using Table 20 of the Impairment Tables of 15 points. Tinnitus was the only condition given an impairment rating in the report. Although “hepatitis C”, “circulatory systems – other” and “tuberculosis” were considered fully diagnosed treated and stabilised in Ms Bowling’s opinion they were not sufficiently serious to be given a points rating under the relevant Impairment Tables.
Also in Ms Bowling’s second report the conditions of “shoulder and upper arm disorder”, “musculo-skeletal disorder – other” and “depression” were considered “fully diagnosed” but not “fully treated” or “fully stabilised”. Those conditions were therefore not given an impairment rating (see Part K in the Introduction to the Impairment Tables at T Documents page 28)
Dr Jackson provided a brief further opinion in her letter of 15 October 2010 (T 13) as follows:
“Further to the DSP from (sic) completed on 10/09/2010 I am writing to reiterate that Mr Kennedy is unfit for employment. He has severe bilateral shoulder damage which prohibits work, he has severe chronic tinnitus which prohibits work. He is unable to return to his previous occupation. I fully support his application for Disability Support Pension”.
Medical certificates were provided by Dr Pratis, Dr Hoar, Dr Dewing and Dr Davies. They are included in the T Documents as also are the reports of Dr Batlin and Dr Kozak. (See T14 and T Documents page 191)
Mr Kennedy’s DSP claim was rejected by Centrelink on 13 August 2010. That decision was reviewed by an Authorised Review Officer who decided that the original decision was correct. Mr Kennedy then sought a further review by the SSAT. On 1 February 2011 that Tribunal affirmed the decision under review.
This Tribunal will now consider the evidence in order to determine Mr Kennedy’s entitlement to a DSP.
does the applicant have an impairment rating of 20 points or more?
Ms House for the applicant submitted that Mr Kennedy’s tinnitus should be allocated 20 points, his right shoulder condition 10 points and the impairment caused by the Ross River virus also 10 points. Ms House did not contend at the hearing that the various other conditions suffered by Mr Kennedy were sufficiently serious in their effect to attract points under the Impairment Tables.
Mr Sparkes contended that the tinnitus condition should not be allocated more than 15 points, the shoulder condition had not been fully treated and stabilised and therefore could not be allocated points and the ross river virus did not satisfy the requirements of the Tables for any points score.
(A) Tinnitus
The evidence establishes to the Tribunal’s satisfaction that the applicant’s condition of “tinnitus” has been fully diagnosed treated and stabilised and is therefore a permanent condition.
In Dr Jackson’s first report (T7) he lists tinnitus under Part 4 of the pro-forma document. The question at the commencement at that part of the report is “Does the patient have any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function?” Both “depression” and “tinnitus” were included by Dr Jackson in that part of her report. As a result of that medical opinion Ms Bowling said in the initial JCA Report that:
“Mr Kennedy experiences continuous ringing of the ears. Previous hearing tests were undertaken to assist with this condition. As per medical report there is no current treatment available for this condition. As per medical report this condition is generally well managed and causes quite minimal or limited impact on ability to function”.
Ms Bowling therefore recommended a rating of nil points for tinnitus.
However in Dr Jackson’s second medical report (T10) tinnitus is listed as “Condition 2”. Dr Jackson indicates that Mr Kennedy’s tinnitus is “long standing” and also “… constant, debilitating”. She added that is causes “intense stress” and that “no treatment is available”. It is also noted that Dr Jackson said in her letter of 15 November 2010 “… he has severe chronic tinnitus which prohibits work. He is unable to return to his previous occupation”.
In Ms Bowling’s second JCA Report (T11) tinnitus is given a recommended rating of 15 points. In that report it is noted that:
“Mr Kennedy experiences continuous ringing in the ears. Previous treatment has included hearing tests to assist with condition. As per medical report dated 10/09/10 tinnitus “causes difficulty hearing, concentrating and causes intense stress”. As per medical report “no treatment is available for tinnitus””. (T Documents page 175)
In oral evidence Mr Kennedy explained the impact his tinnitus was having on his daily life. He said that he has a constant ringing in his ears which affects his ability to function in a normal way. It seriously impacts upon his sleep and various activities of daily life. He said the tinnitus became worse in the period leading up to his DSP claim.
On the material before it the Tribunal concludes that Mr Kennedy has been suffering tinnitus since 1989. He has performed paid work since then. He suffered the fall at work in January 2008 some 19 years or so after tinnitus was first experienced. Mr Kennedy was able to adequately perform his work duties despite suffering continuous ringing in the ears and the related problems caused by his tinnitus.
Mr Kennedy said in evidence that he last worked in April 2008. At the hearing Mr Sparkes for the respondent asked the following question:
Mr Sparkes – “And why didn’t you work after that? Because of the shoulder?”
Mr Kenndy – “Yes, I went back. I had this doctor to see about my shoulder”.
(Transcript page 17)
As mentioned Mr Kennedy managed to perform work for many years despite his tinnitus. The Tribunal concludes on the evidence that the reason he couldn’t continue to work was the injury to his shoulders suffered in the fall at work in 2008. As Mr Kennedy’s work has mainly been fixing ceilings a good part of it involved reaching upwards. The serious shoulder injuries he suffered were obviously going to limit his capacity to undertake that type of work.
The description of the symptoms set out in Table 20 for “fifteen” points most accurately describes the impact of tinnitus on Mr Kennedy. As is so often the case there was, in the Tribunal’s view, a tendency exhibited by Mr Kennedy to somewhat overstate the impact of the condition on his everyday life. That is not to suggest that it doesn’t interfere with his daily activities. The Tribunal is satisfied it does cause distress and interferes with some of his activities of daily living. The Tribunal believes that tinnitus alone would not prevent full time work as was the case in the past. Importantly self-care is maintained as is Mr Kennedy’s independent lifestyle.
After considering the various medical reports, the two JCA Reports and Mr Kennedy’s oral evidence the Tribunal finds that a rating of 15 points is appropriate for the condition of tinnitus as suffered by Mr Kennedy in the “qualification period” between 7 July 2010 and 6 October 2010.
(B) injuries to right and left shoulder and upper arms
As has been mentioned these injuries were caused when Mr Kennedy fell from scaffolding in January 2008 in the course of his employment. In the Tribunal’s view these are the conditions which, of all his conditions, may potentially have the most impact on his future capacity to perform work, particularly work of the kind he has previously performed.
It is of significance that reference is made in Dr Jackson’s two medical reports (T7 and T10) to the need for further surgery. In his second medical report Dr Jackson said that Mr Kennedy’s ability to function within the next two years was “uncertain” and “will depend on surgical opinion”. (T Documents page 166)
Mr Kennedy did have an operation on his right shoulder in 2008 but has been awaiting further surgical treatment for some time. He has moved from Western Australia to Tasmania and is now on a waiting list for surgery to be performed by Dr Penn who is apparently a Launceston surgeon. Mr Kennedy told the Tribunal at the hearing that he had an appointment to see Dr Penn in the near future.
In the second JCA Report (T11) Ms Bowling concluded that the “shoulder and upper arms disorder” which elsewhere has been described as “bilateral rotor cuff injuries” or similar (See Dr Jackson’s first report (T7), the SSAT decision (T2) and also the Internal Review Decision (T16)) was not fully diagnosed treated and stabilised and could not be assigned a rating under the Impairment Tables. This was also the view of the SSAT (T Documents page 8).
Ms House contends on behalf of the applicant that his right shoulder should be considered “fully diagnosed treated and stabilised”. It was operated on in August 2008. Mr Kennedy said in evidence that the operation was unsuccessful. He said “I can’t get surgery on my right shoulder” and “but I can have my left shoulder done”. (Transcript page 14).
The difficulty for Mr Kennedy is that there is no medical evidence before the Tribunal supporting his claim that nothing further can be done to improve the function of the right shoulder. In the medical report (T7) Dr Jackson refers to shoulder injuries R + L and states: “Post surgery aiming for sig. improvement of symptoms”. Dr Jackson does not distinguish between the left and right shoulder. This report was prepared after an examination in June 2010. That was almost two years after the operation on the right shoulder in August 2008. Again in the later medical report (T10) the condition is described as “bilateral severe rotator cuff injuries” and the comment is made by Dr Jackson “needs further surgical treatment”. The “ability to function” is said to “… depend on surgical opinion” (T Documents page 166). One can reasonably infer from those comments by Dr Jackson that the bilateral injuries may well improve if further competent surgery is performed on the shoulders.
The Tribunal recognises that Mr Kennedy has suffered serious injuries to his left and right shoulders and that these injuries have impacted on his capacity to undertake ceiling work of the kind he was doing leading up to his 2008 accident. However it is not yet known what the final outcome of medical treatment is likely to be. Dr Jackson clearly recognised the need for further surgery in the two medical reports she has provided.
The Tribunal concludes on the evidence before it that Mr Kennedy’s conditions arising out of injuries he suffered to both shoulders and the upper arms (however those conditions are elsewhere described) have not yet been fully treated and therefore at this point in time those conditions cannot be assigned an impairment rating under the Impairment Tables in Schedule 1B of the Act.
(C) Ross river virus
There is some evidence of lethargy and fatigue said to be caused by the virus. It was, of course, also indicated that tinnitus caused loss of sleep and tiredness during the day. There is a reference to ross river virus in medical certificates at pages 195 and 196 of the T Documents. But it is noted that “arthritis” is also mentioned in the relevant certificates as impacting on capacity to work.
In Dr Jackson’s report (T7) there is no mention of ross river virus and in her later report (T10) it is said to be “… generally well managed that causes minimal or limited impact on ability to function”. (Page 169 of T Documents)
In his oral evidence Mr Kennedy described the effect of the ross river virus on him. The suggestion that he generally feels lethargic, tired and unwell could well be attributable to a number of his various conditions particularly tinnitus which he says so seriously affected his sleeping habits.
After considering all of the material before it the Tribunal finds that the ross river viral condition has been fully diagnosed treated and stabilised but that its impact on Mr Kennedy’s functions is minor. The condition is easily tolerated and has no appreciable effect on daily living or capacity to work.
The Tribunal therefore finds that ross river virus has a rating of nil points under the Impairment Tables.
(D) other conditions
As mentioned there was no emphasis by Ms House for the applicant on other conditions said to be suffered by Mr Kennedy. These include “hepatitis C”, “tuberculosis”, “depression”, “hip pain and left thigh injury” and “hernia”.
The Tribunal finds that the conditions of “hepatitis C” and “tuberculosis” had been fully diagnosed treated and stabilised but should be allocated nil impairment points under the Impairment Tables as they manifest only minor symptoms, if any, and have had no appreciable effect on daily living or work capacity.
As for the conditions of “depression”, “hip pain and left thigh injury” (also referred to as musculo-skeletal disorder) and “hernia” the Tribunal is not satisfied on the evidence that these conditions were fully diagnosed treated and stabilised and therefore could not be assigned an impairment rating under the Impairment Tables.
conclusion
As mentioned above the Tribunal finds that Mr Kennedy did not have an impairment rating of 20 points or more as at the date of the DSP claim or within 13 weeks of that date.
The Tribunal will not proceed to consider whether Mr Kennedy has a continuing inability to work as an impairment rating of 20 points or more is a prerequisite to obtaining a DSP.
Mr Sparkes pointed out at the hearing that “an applicant is always entitled to retest eligibility and might be encouraged to do so”. (Transcript page 61) It is now of course more than two years since the DSP application was made. A delay of that magnitude causes particular difficulties for applicants because of the 13 week “qualification period”. If Mr Kennedy is to succeed in a future DSP application it would be helpful if he is able to produce medical evidence clearly indicating a sufficient degree of impairment and a continuing inability to work as required by the Act.
decision
The decision under review is affirmed.
I certify that the preceding fifty paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom AO (Deputy President) [Sgd : Administrative Assistant]
Dated 30 July 2012
Date(s) of hearing 5 July 2012 Solicitors for the Applicant Ms S House, Launceston Community Legal Centre Solicitors for the Respondent Mr B Sparkes, Program Litigation and Review Branch
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