Phillip O'Bryan and Secretary, Department of Social Services
[2014] AATA 590
•1 August 2014
[2014] AATA 590
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5647
Re
Phillip O'Bryan
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member N A Manetta
Date 1 August 2014 Date of written reasons 22 August 2014 Place Adelaide For the reasons given orally at the conclusion of the hearing the Tribunal affirms the decision under review.
............................[Sgd]............................................
Senior Member N A Manetta
CATCHWORDS
SOCIAL SECURITY - disability support pension - whether applicant has impairments totalling 20 points - whether return to work program by WorkCover sufficient program of support - decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
CASES
Re Summers and Secretary, Department of Social Services [2014] AATA 165
Re Featon and Secretary, Department of Social Services [2014] AATA 454
REASONS FOR DECISION
Senior Member N A Manetta
22 August 2014
I delivered oral reasons in this matter for my decision affirming the decision under review. At the applicant’s request under section 43(2A) of the Administrative Appeals Tribunal Act, 1975, I now publish written reasons.
APPLICATION
This is an application by Mr Phillip O’Bryan for review of a decision of the Social Security Appeals Tribunal (SSAT). The SSAT affirmed a decision of an authorised review officer within the respondent’s department that Mr O’Bryan was ineligible to receive a disability support pension under the Social Security Act 1991. Mr O’Bryan had applied for this pension on 15 May 2012. The review officer affirmed the initial departmental decision to refuse Mr O’Bryan’s application. As I have said, Mr O’Bryan’s appeal to the SSAT against the review officer’s decision affirming the departmental refusal was unsuccessful.
Mr O’Bryan has now applied to this Tribunal. In the hearing before me, Mr O’Bryan was represented by Ms Tsoundarou and the respondent by Mr Visser. Deciding the matter afresh on the evidence adduced before me, I must decide whether Mr O’Bryan is eligible to receive a disability support pension in accordance with the requirements prescribed under the Act. At the risk of stating a proposition well understood by both parties’ advocates, I note that my task is to reach the preferable decision on the merits, whether the SSAT’s decision was a legally justifiable decision on the material it considered.
MEDICAL CONDITIONS AND PARTIES PRINCIPAL CONTENTIONS
It is accepted by the parties that there are three medical conditions that I should consider when assessing Mr O’Bryan’s application. I shall set these out, together with the parties’ principal contentions. I note that Mr O’Bryan did not pursue two medical conditions mentioned in the written material before me; namely, hypertension and lipidaemia. Accordingly, I have not considered these.
First, Mr O’Bryan has an arthritic hip, which he maintains has substantially restricted his capacity to walk freely. In respect of this condition, Mr O’Bryan submits, first, that the condition is fully diagnosed, treated and stabilised in accordance with the relevant tests under legislation and is, therefore, a condition which is eligible for consideration in connection with his pension application. Mr O’Bryan further submits that he should be awarded 20 points in respect of this condition alone in accordance with the applicable impairment table. The respondent agrees that the arthritic hip condition is fully diagnosed, treated and stabilised, and is therefore eligible to be considered, but submits that Mr O’Bryan should receive 10 points only in respect of this condition. I note that the relevant table does not allow for the awarding of points between 10 and 20. The decision for me, therefore, is between 10 points on the one hand and 20 on the other.
Secondly, Mr O’Bryan has shoulder bursitis. He contends that this condition is fully diagnosed, treated and stabilised and that it should receive 10 points. The respondent disputes that it is fully diagnosed, treated and stabilised and further contends that the condition attracts 5 points only, but concedes it may attract 10 points.
The third condition is depression. Here Mr O’Bryan contends that the condition was fully diagnosed, treated and stabilised at the time of his application for a pension and that it should receive 10 points. The respondent contends that the condition was not fully diagnosed, treated and stabilised at the time of application and that this remains the case today. The condition is, therefore, ineligible to be considered for this reason. The respondent accepts, however, that if this submission is not accepted, Mr O’Bryan should be awarded 10 points.
OTHER RELEVANT ISSUES
Another issue will arise if, but only if, I do not find Mr O’Bryan should be awarded 20 points in respect of his hip arthritis, the only condition which by itself might attract 20 points (on the case put by Mr O’Bryan). I shall have to consider whether Mr O’Bryan has participated in a program of support if I do not award him 20 points in respect of his hip arthritis. Mr O’Bryan’s submission here is that if I do not find his arthritic hip attracts 20 points, I should find that his participation in a WorkCover return-to-work program satisfies this legislative requirement. The respondent disputes that Mr O’Bryan’s participation in this program is sufficient participation in a program of support.
Finally if Mr O’Bryan is to be successful, I must find- and I express the regulatory requirement compendiously- that he is unable to work for 15 hours a week in any job for which he is qualified. Mr O’Bryan submitted that he is not able to do so, and the respondent did not make any strong submission in respect of this matter.
MR O’BRYAN’S PERSONAL CIRCUMSTANCES
Mr O’Bryan’s personal circumstances and history may be described as follows. Mr O’Bryan, who is now 58, has lived in Renmark for a year approximately, after moving there from Burra, where he was living at the time of his claim. He left Burra because of steps at the premises which had caused him to fall over twice. His brother, who owns the Renmark property, has removed steps, refurbished the shower to accommodate a chair, lowered the toilet pan, and installed a rail, all to accommodate Mr O’Bryan’s physical limitations.
He gave evidence that he has very black thoughts from time to time. Relatives visited him in Burra and now two nephews in Renmark check on him every day. His employment history is as follows. He is a farmhand who has driven tractors and worked in shearing sheds. All of this work was manual. He completed year 7 schooling in Adelaide in 1970 or thereabouts and then worked in Adelaide a few years. In 1975, he left Adelaide to live in Burra permanently. He worked in Burra as a shearing-shed hand whose principal task was to press wool into bales. Together with other men and women involved in this line of work, he moved from shed to shed. This phase of his working life lasted three or four years.
After that, he worked mainly on farms say for some eight months of the year and for the balance of the year he would work in shearing sheds. In 1981 or 1982, he became a permanent full-time farm hand and worked on various farms until 2003.
In 2003, he began work at a dairy farm, and much of his work there involved driving tractors and farm machinery. He worked at the farm, operated by a company called Beringa Holdings Enterprises, until late 2011 when he stopped after a knee strain. He found he could no longer climb into the tractor.
His knee strain was covered by the scheme of workers’ compensation and rehabilitation administered by WorkCover. Mr O’Bryan’s injury was treated under the scheme. Mr O’Bryan did try to resume work for some two weeks once his knee had improved, but he gave up working altogether with his employer because of pain (largely, I understand, from his hip). He resigned his employment in April 2012. I understand that WorkCover ceased its involvement with Mr O’Bryan at that time because his work-related knee injury had been remediated and his inability to continue work was attributable to his hip arthritis, a condition it did not cover. Mr O’Bryan received $32,000 as a “total and permanent disability” payout from his superannuation scheme and a further $50,000 in accumulated superannuation.
CONSIDERATION OF THE THREE MEDICAL CONDITIONS
I now turn to consider each of the three conditions.
Hip arthritis
Mr O’Bryan has had a hip condition all his life resulting from a congenital condition (Perthes’ disease). He has had two operations and has taken medication for pain relief for some 16 or 17 years. His hip arthritis is a complication arising from the Perthes’ disease.
Doctors have recommended a hip replacement, but have also advised him to delay the operation for the time being given his relatively young age. Mr O’Bryan has been told the hip replacement is unlikely to prove to be a permanent solution.
I have already noted that Mr O’Bryan’s arthritis of the hip is accepted by the respondent to be fully diagnosed, treated and stabilised. I accept that concession. Mr O’Bryan’s condition has been diagnosed by an appropriately qualified medical practitioner.
Mr O’Bryan gave evidence of his degree of impairment. In order to attract 20 points under the relevant table (Table 3), the degree of impairment must be severe. He had to persuade me that he is unable to walk around a shopping centre or supermarket without assistance, that he is unable to walk from the car park to a shopping centre or supermarket without assistance, and that he unable to stand up from a sitting position without assistance. Furthermore, he must require assistance to use public transport.
One critical concept here is that of undertaking an activity “without assistance”. Ms Tsoundarou submitted that he does require the assistance of a cane to undertake these activities and that the reference in the relevant table (Table 3) to “without assistance” means without any aid from either a person or object. This submission is inconsistent with this Tribunal’s decision in the case of Summers,[1] to which I was referred by the respondent. I find, as the Tribunal in Summers found, that “without assistance” means without personal assistance. I was referred by Ms Tsoundarou to the decision in Featon[2] but, as is made clear at paragraph [33] of that decision, Featon is not intended to be inconsistent with Summers. In addition, looking at the matter for myself, I would reach the same conclusion as was reached in Summers.
[1] Re Summers and Secretary, Department of Social Services [2014] AATA 165
[2] Re Featon and Secretary, Department of Social Services [2014] AATA 454
Accepting, therefore, that the test requires Mr O’Bryan to show he needs personal assistance to undertake the activities listed in the table to which I have referred, I find that the evidence before me is insufficient. Mr O’Bryan, I accept, is regularly accompanied on his shopping trips to the supermarket and, indeed, prefers to be accompanied, but his evidence to the Tribunal stopped short of a positive assertion that he is unable to walk around a shopping centre or supermarket by himself or that he is unable to walk unaided from the car park to a shopping centre or supermarket.
In this regard, I note that Mr O’Bryan apparently gave evidence to the SSAT that he would lean on a supermarket trolley for support and get himself about a supermarket in that way and that he could attend shops by himself although he tended to try to get in and out as quickly as possible. The test is one of physical incapacity, and in my opinion the evidence does not establish that Mr O’Bryan is unable physically to attend at a supermarket without the assistance of another person.
Mr O’Bryan confirmed to the Tribunal that he can lift himself from a chair without the assistance of another person although he may need to use his cane for support or the arms of the chair. I do not find that this aspect of the test is satisfied either.
I do accept, however, that he does require personal assistance to use public transport in that he is unable by himself to mount the steps in a bus. I would find that part of the test in Table 3 satisfied. I do not think that Mr O’Bryan needs to show that he requires personal assistance to use all forms of public transport, which was Mr Visser’s submission.
All in all, the 20-point classification in Table 3 has not been met.
There is another reason for my decision not to award Mr O’Bryan 20 points. The introduction to Table 3 makes it clear that there must be corroborating evidence of the person’s impairment. There is no corroborating evidence sufficient, in my opinion, to award Mr O’Bryan 20 points. Mr O’Bryan tendered a certificate and opinion from Dr Hurst that suggests 15 points is appropriate to be awarded to the hip. I note there is no 15-point classification and to this extent at least Dr Hurst has misunderstood the Table. I also note that it is for the Tribunal rather than medical practitioners to apply the Impairment Tables. I would have derived more assistance had Dr Hurst examined Mr O’Bryan and then explained what he believed Mr O’Bryan could or could not do as a result of that examination.
Nevertheless, it is clear Dr Hurst did not believe Mr O’Bryan warranted 20 points. He may have applied, of course, too stringent a test or in some other way misapplied Table 3 but I cannot say that is the case. I simply have a statement from Mr O’Bryan’s treating doctor that he does not warrant 20 points in respect of his hip alone.
In the circumstances, I do not have evidence from Dr Hurst or anyone else corroborating Mr O’Bryan’s assertion of the degree of impairment he suffers from his hip. I make clear that I certainly have corroboration from Dr Hurst that Mr O’Bryan suffers from an arthritic hip condition but his degree of impairment has not been corroborated to a level of 20 points. For these reasons, therefore, I conclude that Mr O’Bryan should not be awarded 20 points in respect of his arthritic hip condition.
I accept the concession of the respondent that in that event 10 points is appropriate. I would award Mr O’Bryan 10 points for his arthritic hip condition.
Shoulder Bursitis
I find here that Mr O’Bryan’s shoulder bursitis has been fully diagnosed, treated and stabilised contrary to the respondent’s submission. The respondent’s position at the hearing was that at the time of his application, Mr O’Bryan had not been referred to a specialist or physiotherapy. Implicit in this position is a contention that Mr O’Bryan ought to have seen a specialist or physiotherapist for further treatment. It is clear, however, from other documents in evidence that the respondent, in a later assessment of Mr O’Bryan (apparently in connection with another pension claim by him) accepted that he did not need to see a physiotherapist or specialist; that is, the department had changed its view. It was accepted that Mr O’Bryan had not consulted anyone in the interim or undertaken further treatment. In these circumstances, and in the absence of any medical evidence led by the respondent to the contrary in this regard, I would be loath to act on the first assessment. I believe in the circumstances that I should act on the second departmental assessment. I find, therefore, that the shoulder bursitis is fully diagnosed and is eligible to be considered.
Applying the relevant table (Table 2) is particularly difficult because the tests are so narrowly defined and there is no great difference between them. In all the circumstances of this case, however, I am prepared to award Mr O’Bryan 10 points.[3] I am comforted in that conclusion by the concession first made by Mr Visser that 10 points was appropriate, later qualified by him that 5 points was more appropriate but that 10 was a possibility.
[3] I am prepared to find Dr Hurst’s certificate sufficient corroboration of the degree of impairment for the purposes of the Tables.
It follows, in my opinion, that in respect of these two conditions (namely, the arthritic hip and the shoulder bursitis) Mr O’Bryan should be awarded 20 points.
Depression
It is unnecessary for me to decide whether Mr O’Bryan’s depression is fully diagnosed, treated and stabilised. I say this because Mr O’Bryan has already been awarded 20 points by me in respect of the other two conditions, and it was not contended by Ms Tsoundarou that Mr O’Bryan should receive 20 points in respect of his depression alone so as to remove the requirement for participation in a program of support.
I shall, however, deal with the question. As at the date of application, I accept that Mr O’Bryan’s condition was not fully diagnosed, treated and stabilised and that has remained the case. The evidence establishes that at the time of the application, Mr O’Bryan had been referred to a psychologist. The psychologist met with Mr O’Bryan for some six sessions. As at 11 October 2012 he had completed six sessions, but was eligible to attend a further six sessions. Mr O’Bryan gave evidence that he did not tell the psychologist that the social outings arranged for him as part of his therapy had not proved beneficial for him. It was, however, important for Mr O’Bryan to participate effectively in those sessions in my opinion and that required more candour from him. The psychologist’s decision not to continue the sessions was based in part, it would appear, on a false understanding of the benefits Mr O’Bryan had derived from his therapy to date.
Mr O’Bryan’s submission to me was that his condition was unlikely to improve within two years even with further psychotherapy and that his condition should be regarded as fully diagnosed, treated and stabilised for pension purposes at that time. A report by a Dr Liu was tendered by Mr O’Bryan in this connection although Dr Liu was not called to give evidence. That report, dating from 2013, indicates that a course of long-term psychotherapy would be beneficial. I infer from that report that that would have been Dr Liu’s position also in April 2012. The conclusion by Dr Liu is expressed that Mr O’Bryan’s condition is unlikely to improve in a short period of time and that he would benefit from long-term psychotherapy. Unfortunately, what Dr Liu means by “the long term” is not discussed by him in this connection. It is not clear to me that Dr Liu believed Mr O’Bryan’s condition was unlikely to change within two years. I would need to be satisfied that Dr Liu believed that even if Mr O’Bryan had commenced treatment in April 2012, his depression would not have improved markedly within two years of that date. I am unable to infer that from his statement. In the circumstances, I am unable to conclude that Mr O’Bryan would not have seen significant improvement to his depression within two years from the commencement of long-term psychotherapy. In the circumstances, I do not believe the depression can be awarded any points. If I am wrong in this conclusion, I note the parties are agreed I should award 10 points.
I do note, however, that in light of my other conclusions, whether or not Mr O’Bryan receives 10 points for depression is academic. On my findings, he has already received 20 points.
CONCLUSIONS IN RESPECT OF CONDITIONS
My conclusions so far are that Mr O’Bryan is eligible to receive 10 points for his arthritis but not 20, 10 points for his shoulder bursitis, and nil points for his depression. This means that Mr O’Bryan has accumulated the necessary 20 points. As he has not received 20 points under a single table, he must demonstrate participation in a program of support as a condition of qualifying for the pension.
PROGRAM OF SUPPORT
I do not believe Mr O’Bryan has actively participated in a program of support as required by the relevant determination. I do not believe that the WorkCover return-to-work program was a program of support for these purposes. The evidence before me is that Mr O’Bryan injured his knee towards the end of 2011 and was referred to WorkCover at that time. He underwent rehabilitation of his knee – but I emphasise his knee alone – and sought to return to work. He resigned in April 2012. His resignation meant that he was no longer eligible to receive income maintenance payments from WorkCover and it ceased its involvement with him. The program WorkCover organised for Mr O’Bryan did not address his hip arthritis, bursitis or depression. I do not believe, therefore, that it can be said to be a program of support to return Mr O’Bryan to the workforce in light of these particular conditions. In addition, the program, which was of very short duration, was directed to assisting Mr O’Bryan to return to one particular employer only. The program of support referred to in the relevant determination is one that should address the person’s general capacity to find employment in all those areas where he or she is qualified to work. A program which is aimed solely at remediating one condition only and in that respect a relatively minor condition with a view to that person returning to a single employer is not a program of support for these purposes. In particular, I refer to clause 6 of the determination in this connection.[4]
[4] Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011.
INCAPACITY TO WORK
Mr O’Bryan’s incapacity to work for 15 hours a week was not explored in great detail before me. In all the circumstances, I do not think it is necessary for me to express a conclusion in respect of that matter given my other conclusions.
SUMMARY
In summary the two conclusions I have reached which determine this case are:
(a)No eligible condition attracts 20 points in its own right and in particular I do not find the arthritic hip attracts 20 points in its own right; and
(b)Mr O’Bryan has not participated in a program of support.
My third conclusion, which favours Mr O’Bryan, is that he is eligible to be awarded a total of 20 points in respect of two conditions; but, as I have indicated, he has not participated in a program of support.
DECISION
In all the circumstances, I affirm the decision under review.
I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta .......................[Sgd].................................................
Administrative Assistant
Dated 22 August 2014
Date(s) of hearing 28 July 2014 & 1 August 2014 Advocate for the Applicant Ms A Tsoundarou Solicitors for the Applicant Welfare Rights Centre (SA) Inc Advocate for the Respondent Mr C Visser Solicitors for the Respondent Department of Human Services
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