Prins and Secretary, Department of Social Services (Social services second review)
[2017] AATA 46
•20 January 2017
Prins and Secretary, Department of Social Services (Social services second review) [2017] AATA 46 (20 January 2017)
Division
GENERAL DIVISION
File Number
2016/1322
Re
Brian Prins
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 20 January 2017 Place Adelaide The decision under review is affirmed.
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Deputy President K Bean
CATCHWORDS
SOCIAL SECURITY – Disability support pension – Whether conditions fully diagnosed, treated and stabilised during assessment period – Whether applicant had an impairment rating of 20 or more points under the Impairment Tables – Decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 34J
Social Security Act 1991, s 94
Social Security (Administration) Act 1999, Schedule 2, cl 4Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Deputy President K Bean
20 January 2017
The applicant, Mr Prins, suffers from a number of very serious medical conditions including severe arthritis in his left foot, severe depression and alcohol dependence.
As these conditions make it very difficult for him to work, or look for work, on 14 July 2015 he applied for the Disability Support Pension (DSP). That claim was rejected by Centrelink and the decision to reject the claim was subsequently affirmed at the first tier by the Social Services and Child Support Division of this Tribunal on 10 February 2016.[1]
[1] T2/5.
On 19 March 2016, Mr Prins applied for a second tier review of that decision, giving rise to this matter. For completeness, I understand Mr Prins has subsequently been granted DSP in the context of a later claim.
A hearing by telephone was convened on 14 December 2016 with Mr Prins attending by phone from Darwin together with his psychologist, Ms Parbs, and Mr Hawker appearing for the respondent from Brisbane. Unfortunately, at the outset of the hearing it became apparent that there were a number of difficulties with proceeding. These included the fact that Mr Prins and Ms Parbs could not clearly hear Mr Hawker, despite the connection being via landline, and the fact that Ms Parbs, who had intended to support Mr Prins throughout the hearing, had not appreciated how long the hearing would take and therefore had not allocated sufficient time for the hearing. After some discussion as to the best way forward in the circumstances, both parties effectively sought to have the hearing abandoned and requested that the matter be determined on the papers. Mr Prins essentially indicated that he did not wish to participate in the hearing or see the need for this. He simply wanted the matter dealt with on the basis that, from his perspective, nothing had changed since 2011.
In the circumstances, and noting the consent of both parties to this course, I decided that I would dispense with the hearing and decide the matter on the papers pursuant to s 34J of the Administrative Appeals Tribunal Act 1975. Necessarily, this has of course meant that I have not received any further evidence from Mr Prins as to the status and impact of his relevant conditions during the assessment period, although I have had regard to his written submission dated 20 May 2016.[2]
[2] This was received by the Tribunal on 22 June 2016.
ISSUES AND STATUTORY FRAMEWORK
The issue before me is whether Mr Prins was qualified for DSP at the relevant time.
The time during which Mr Prins must be qualified for DSP in the context of this matter starts on the day he made his claim, 14 July 2015, and ends 13 weeks after this date,[3] that is, 13 October 2015. This is the assessment period for the purpose of assessing Mr Prins’ claim for DSP.
[3] Sections 41 and 42 of the Social Security (Administration) Act 1999 (Administration Act), clause 4 of Schedule 2 of the Administration Act, Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
Section 94 of the Social Security Act 1991 (the Act) sets out the requirements to qualify for DSP. At the time Mr Prins applied for DSP, the requirements imposed by subs 94(1) were that:
(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) …
I will proceed to consider each of these requirements to the extent it is necessary to do so.
DOES MR PRINS HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
In view of the medical evidence which is available in relation to Mr Prins’ various conditions, including his left foot condition, the Secretary does not dispute and I accept that Mr Prins has at all relevant times suffered from a physical impairment satisfying subs 94(1)(a) of the Act.
AT THE RELEVANT TIME, DID MR PRINS HAVE AN IMPAIRMENT RATING OF 20 OR MORE POINTS UNDER THE IMPAIRMENT TABLES?
The requirements
The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).
The Impairment Tables set out rules about when an impairment rating can be assigned as well as a rating system for impairment. To be given a rating under the Impairment Tables, the impairment must be permanent and more likely than not to persist for two years (subs 6(3) of the Determination). To be a permanent condition, the condition must be fully diagnosed by an appropriately qualified medical practitioner, be fully treated, fully stabilised and more likely than not to persist for more than two years (subs 6(4)).
The Determination sets out at subs 6(6) when a condition is considered fully stabilised. A condition is fully stabilised if the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in a significant functional improvement to a level enabling the person to undertake work in the next two years (subs 6(6)(a)).
Reasonable treatment is treatment that can, among other things, reliably be expected to result in a substantial improvement in functional capacity (subs 6(7)(c)) and that has a high success rate (subs 6(7)(e)).
The relevant conditions
I note that in the medical report which accompanied an earlier claim for DSP in 2013, Mr Prins’ then General Practitioner, Dr Al–Sudani, indicated that Mr Prins suffered from the following relevant medical conditions:
·Chronic arthritis affecting “multiple joints” and resulting in “frozen R. elbow” as well as “movement of the upper-lower arm & spine … restricted with pain”;[4] and
·Asthma, which he said resulted in “shortness of breath on exertion”.[5]
[4] T6/68 - 69.
[5] T6/70 - 71.
He also referred to the following conditions resulting in minimal or limited impact on Mr Prins’ ability to function:
·“High Blood pressure”; and
·“Lt knee surgery”.[6]
[6] T6/73
I note the material before me also includes an x-ray report indicating osteoarthritis of Mr Prins’ left ankle and severe arthritis in his left foot.[7]
[7] T4/61.
In his DSP claim form, Mr Prins referred to “L knee surgery”, “scarring and burns damage of L foot”, “Asthma” and “Hypertension”.[8] He also stated “Cannot wear boots they cause ulcers”.[9]
[8] T9/95.
[9] Ibid.
In a subsequent medical report of 29 July 2015, a different general practitioner, Dr Khan, indicated that Mr Prins was suffering from:
·Severe degeneration of the 1st metatarsophalangeal joint of the left foot;
·Hypertension;
·Depression; and
·Chronic obstructive pulmonary disease (COPD).[10]
A number of medical certificates provided by Dr Khan in 2014 and 2015 also refer to “L Foot skin contracture/burns scarring”.[11]
[10] T12/114
[11] T19/142 - 145.
Accordingly, I am satisfied that the conditions which are potentially relevant for my purposes are:
·Various conditions affecting Mr Prins’ left leg and foot, namely a left knee condition, arthritis affecting his left foot and ankle, and “scarring and burns” to his left foot;
·Arthritis affecting Mr Prins’ right elbow and spine;
·Asthma/COPD;
·Depression; and
·Hypertension.
Which of Mr Prins’ conditions can be given an impairment rating?
As I have indicated above, only those conditions which had been fully diagnosed, treated and stabilised as at the assessment period can be given an impairment rating.
Whilst I accept that Mr Prins is currently suffering from a range of psychiatric conditions including depression and alcohol dependence, it is clear that those conditions had not been diagnosed or treated prior to the end of the assessment period on 13 October 2015. Dr Khan referred to Mr Prins being depressed in his report of 29 July 2015, but did not refer to any treatment. The documentary material indicates that Mr Prins was first referred to a psychologist in December 2015 and in her report of 8 December 2015, that psychologist, Ms Guse, reported that Mr Prins’ “condition of severe depression and alcohol misuse is currently not treated”.[12]
[12] T17/137.
Mr Prins has subsequently seen a clinical psychologist, Ms Parbs, on a number of occasions, with the first consultation occurring on 9 March 2016. Following an initial report of 28 March 2016, Ms Parbs provided a detailed report of 18 April 2016 giving a number of diagnoses, and noting that “Mr Prins has a long history of undiagnosed and untreated psychological symptoms”.[13] However, nothing in Ms Parbs’ report suggested that any of Mr Prins’ psychiatric conditions had been fully diagnosed or treated prior to 13 October 2015. It follows that no impairment rating can be given for any of his psychiatric conditions.
[13] Report of Ms H Parbs dated 18 April 2016, p 7.
Having regard to the evidence before me, however, I accept that Mr Prins’ other relevant conditions were fully diagnosed, treated and stabilised at the relevant time and can potentially be given an impairment rating.
What are the applicable impairment ratings?
Therefore, I will proceed to consider what ratings should be allocated for each of Mr Prins’ relevant conditions.
Left leg and foot conditions
With respect to the ulceration and burns on Mr Prins’ left foot, the Member conducting the first tier review (the previous Member) recorded:
Mr Prins said he also suffers from recurrent ulceration of the left foot following surgery to remove a cancer some years ago and has deformed small toes on the left foot, which is a legacy of a burn injury when a very small child and a motor bike accident. A report by (clinical nurse) Ms K Osborne on 19 March 2014 indicates Mr Prins was being treated for a chronic ulcer of his left dorsal lateral foot.
Although Mr Prins’ ulceration has healed, his frustration is that he can no longer work in the construction industry because there is an OH&S requirement to wear closed boots.[14]
[14] T2/8, [16] - [17].
In relation to the impact of Mr Prins’ left leg and foot conditions, the previous Member recorded that:
… [h]e is typically able to walk to nearby shops and back, which he estimates to be a round trip of 200 metres. Mr Prins is able to negotiate a flight of stairs but indicated he would then need to rest due to pain in his left big toe.
…
Mr Prins reports only being able to stand for about five minutes, although in their report of 15 September 2015 the job capacity assessor records a tolerance of between five and 10 minutes. It is not clear to the Tribunal why Mr Prins could not stand for 10 minutes as he is in a position to favour his right leg, which is materially unaffected. Mr Prins indicated he does not typically use a walking aid, although he sometimes uses a walking stick when his big toe “blows out” due to arthritic inflammation.[15]
[15] T1/8-9.
The Job Capacity Assessor also recorded Mr Prins’ reporting that the pain in his left knee was manageable if “he avoids walking more than 10 minutes”.[16]
[16] T14/119.
In his written submission of 20 May 2016, Mr Prins stated:
Table 1 – There is a moderate functional impact as I have difficulty performing daily activities eg. sweeping paths and am able to use public transport and limp around a supermarket and perform tasks of a stationary nature. = 10 points
…
Table 3 – There is a moderate functional impact as I am unable to stand for more than 5 minutes and am able to use a vehicle and limp around a supermarket. = 10 points.
In my view, the applicable Table for assessing a rating for all of these conditions is Table 3 relating to Lower Limb Function. I note the applicable criteria for a 5 and 10 point rating under Table 3 are as follows:
Table 3 – Lower Limb Function
Points
Descriptors
5
There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c) the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
(b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
10
There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
Having regard to Mr Prins’ evidence to the previous Member, and the findings of the Job Capacity Assessor, I am not satisfied that during the assessment period Mr Prins was unable to stand for more than 5 minutes, that he was unable to walk far outside his home, or that he otherwise met the criteria for a rating of 10 points under Table 3 as at the assessment period. Accordingly, the applicable rating under Table 3 is 5 points.
COPD/Asthma
With respect to the impact of this condition, the previous Member recorded that:
Mr Prins down played the effect of his breathing issues saying that his real impediment on mobility and inability to obtain work is his left foot issues. Mr Prins said he uses a puffer about three or four times daily when experiencing shortness of breath and “sits down for a while”. As the Tribunal understands Mr Prins he achieves effective relief with his puffer.[17]
[17] T2/9.
The applicable Table for assessing the impact of this condition is Table 1, which provides with respect to the 5 and 10 point criteria as follows:
Table 1 - Functions requiring Physical Exertion and Stamina
Points
Descriptors
5
There is a mild functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b) is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
10
There is a moderate functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
Based on Mr Prins’ evidence to the previous Member and the other material before me, I am not satisfied that he meets the criteria for a rating of 10 points under Table 1, or met those criteria during the assessment period. Accordingly, the applicable rating under Table 1 is 5 points.
Right elbow condition
With respect to this condition, Mr Prins told the previous Member that he had “good dexterity in the fingers and is able to write, button a shirt and tie shoelaces without a problem. Mr Prins is also able to unscrew milk bottle lids and can lift a slab of beer.”[18]
[18] T2/7.
In his written submission of 20 May 2016, Mr Prins stated:
Table 2 – There is a mild functional impact as I have difficulty carrying a full shopping bag, handling small objects, doing up buttons and reaching out to pick up objects due to my arthritic elbow. = 10 points
The applicable Table for assessing the impairment caused by the right elbow condition is Table 2, which relevantly provides as follows:
Table 2 – Upper Limb Function
Points
Descriptors
0
There is no functional impact on activities using hands or arms.
(1) The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.
5
There is a mild functional impact on activities using hands or arms.
(1) The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b) handling very small objects (e.g. coins);
(c) doing up buttons;
(d) reaching up or out to pick up objects.
Notwithstanding what he has said in his written submission, having regard to Mr Prins’ evidence to the previous Member, I am not satisfied that as at the assessment period he met the criteria for a 5 point rating. I therefore assess him as suffering from a zero impairment under Table 2.
Spinal condition
Whilst Dr Al-Sudani referred to Mr Prins’ spinal movements being restricted,[19] there is no other documentary material before me to support the existence of a spinal impairment.
[19] T6/69.
The applicable Table for assessing spinal function is Table 4, which relevantly provides as follows:
Table 4 – Spinal Function
Points
Descriptors
0
There is no functional impact on activities involving spinal function.
(1) The person can:
(a) bend down to pick a light object off the floor (e.g. a piece of paper); and
(b) turn their trunk from side to side; and
(c) turn their head to look to the sides or upwards.
5
There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).
Based on the evidence before me, I am not satisfied that during the assessment period Mr Prins was suffering from an impairment of his spinal function which met the criteria for a 5 point rating, and I note he has not referred to Table 4 in his written submission. It follows that I must also assign zero impairment points for this condition.
Hypertension
I note that in his medical report of 4 April 2013, Dr Al-Sudani indicated that Mr Prins’ high blood pressure was well-managed and had minimal or limited impact on his ability to function. As there is no other material before me which suggests that that assessment was incorrect during the assessment period, I am also satisfied that this condition does not attract any impairment points under the applicable Table, Table 1.
Overall conclusion
It follows that in my assessment, during the assessment period, Mr Prins suffered from impairments attracting a total rating of 10 points under the Impairment Tables. As this is less than the required total of 20 points necessary to establish eligibility for DSP, it follows that Mr Prins was not qualified for DSP during the assessment period and I am obliged to affirm the decision under review.
I note that Mr Prins has subsequently qualified for DSP and I infer that this is likely to be on the basis that at the time of the relevant claim, his psychiatric conditions were fully treated and stabilised and therefore able to be allocated an impairment rating.
DECISION
The decision under review is affirmed.
I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean
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Administrative Assistant
Dated: 20 January 2017
Date of hearing: 14 December 2016 Applicant:
In Person
Advocate for the Respondent:
Solicitors for the Respondent:
Mr M Hawker
Sparke Helmore Lawyers
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