Prothero and Secretary, Department of Social Services (Social services second review)

Prothero and Secretary, Department of Social Services (Social services second review) [2024] AATA 3436 (24 September 2024)
Division:GENERAL DIVISION
File Number(s):2023/2502
Re:Glen Prothero
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member S Evans
Date:24 September 2024
Place:Sydney

For the reasons that follow, the reviewable decision will be affirmed.
..........................[SGD].......................................
Member S Evans
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension (DSP) – DSP previously cancelled – knee injury – lower back injury – s 94(1) Social Security Act 1991 – whether impairment rating of at least 20 points under Impairment Tables – Applicant unable to satisfy s 94(1)(b) – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13
SECONDARY MATERIALS
The Social Security Guide
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Member S Evans
24 September 2024
INTRODUCTION

Glen Prothero (‘the Applicant’) seeks review of a decision of the Social Services and Child Support Division of the Tribunal (‘AAT1’), made on 24 February 2023 (the reviewable decision).[1] The reviewable decision affirmed the decision of an Authorised Review Officer (‘ARO’) at the Department of Social Services (the ‘Agency’) to refuse his application for Disability Support Pension (‘DSP’) made on 25 November 2021.[2]
[1] T-Documents, T1, p.1-2; T2, p.3-5 [2023/2502].
[2] T17, p.168-198; T26, p.248 [2023/2502].
For the reasons that follow, the reviewable decision will be affirmed.
BACKGROUND
The Applicant is currently 62 years of age.[3] In 2008 he was injured in a workplace accident.[4] In a report dated 21 September 2010, Associate Professor Leon Kleinman stated the Applicant had “…lumbar spondylosis with an anterior traction spur at L4/5…”.[5] The Applicant was granted DSP in February 2011 on the basis of lower back strain and back pain.[6]
[3] T1, p.1 [2023/2502].
[4] T4, p.105 [2023/2502].
[5] T6, p.109 [2023/2502].
[6] T26, p.248 [2023/2502].
On 29 June 2018, the Agency decided to cancel the Applicant’s DSP after a Medical Eligibility Review found he was no longer eligible to receive DSP using a new version of the Impairment Tables. The Applicant sought review of the cancellation decision which was affirmed by an ARO who found his conditions warranted a total impairment rating of 5 points from the Impairment Tables.[7] The ARO decision was affirmed by the AAT1 on 6 December 2018.[8]
[7] T28, p.127-132 [2019/0033].
[8] T2, p.3-6 [2019/0033].
On 25 November 2021, the Applicant lodged a new claim for DSP, which is the subject of this review.[9] After submitting the claim, the Agency completed a ‘DSP Medical Eligibility Assessment Recommendation’ for the assessment of ‘lower limb deficiencies and spinal disorder – other’. The assessor determined that a Job Capacity Assessment (‘JCA’) was required to evaluate the Applicant's medical eligibility for DSP. [10]
[9] T17, p.168-198; T26, p.248 [2023/2502].
[10] T18, p.205; T19, p.206-207 [2023/2502].
On 10 January 2022, a JCA was completed by a registered nurse and registered occupational therapist. The assessment concluded that the Applicant had a total impairment rating of 5 points.[11] On 28 June 2022, the Applicant's DSP claim of 25 November 2021 was rejected on the basis that he was assessed as not having an impairment rating of 20 points or more under the Impairment Tables.[12]
[11] T20, p.208-217 [2023/2502].
[12] T21, p.218-219 [2023/2502].
On 30 June 2022, the Applicant applied for internal review of the Agency’s decision,[13] which was affirmed by an ARO on 8 November 2022.[14] On 22 November 2022, the Applicant sought review of the ARO’s decision at the first tier of the Tribunal.[15] On 24 February 2023, the AAT1 found that the Applicant’s medical conditions did not warrant an impairment rating of 20 points under the Impairment Tables.[16] On 19 April 2023, the Applicant lodged an application for second tier review of that decision at the Tribunal.[17]
[13] T25, p.240-243 [2023/2502].
[14] T23, p.223-226 [2023/2502].
[15] T25, p.230 [2023/2502].
[16] T2, p.3-5 [2023/2502].
[17] T1, p.1-2 [2023/2502].
On 6 December 2023, the Secretary lodged a report on the Applicant’s medical conditions prepared by a medical adviser from the Health Professional Advisory Unit (the HPAU report).[18]
[18] Health Professional Advisory Unit Report – Undated, Filed 6 December 2023, p.1-5.
RELEVANT LEGISLATION AND POLICY
The relevant law is contained in the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act), the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables) and the Program of Support (POS) determination. The Social Security Guide (the Guide) provides relevant departmental policy guidance.[19] It is well established that the Tribunal is not bound by government policy, but it will generally be taken into consideration unless there is good reason not to do so.[20]
[19] Guide to Social Security Law.
[20] See Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 per Brennan J, which was cited with approval in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13, 30 per French and Drummond JJ.
Section 94 of the Act sets out the criteria for qualification for payment of DSP:
(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 Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; …
…
The Administration Act provides that the start day for a qualified DSP claimant is the date of claim. The Applicant’s qualification for DSP and the impairment ratings for his conditions must be determined as at the date of his claim and to qualify for DSP, the Applicant must satisfy the criteria when he applied for DSP or within the following 13 weeks. I am to consider the evidence as it relates to the 13-week period between 25 November 2021 and 24 February 2022, which I will refer to as the ‘relevant period’.
ISSUE TO BE DETERMINED
The issue to be determined is whether the Applicant qualified for DSP during the relevant period. In order to do so, the Tribunal is required to make factual determinations of the following:
(a)whether the Applicant had a physical, intellectual, or psychiatric impairment for the purposes of section 94 of the Social Security Act 1991 (Cth); and if so
(b)whether the Applicant's impairment(s) attracted an impairment rating of at least 20 points under the Impairment Tables in the Social Security Impairment Tables; and if so
(c)whether the Applicant had a continuing inability to work for at least 15-hours per week for the purposes of section 94 of the Act, and if the Applicant had actively participated in a Program of Support under the Social Security (Active Participation for Disability Support Pension) Determination 2014, or was participating in the supported wage system.
CONSIDERATION
The Secretary accepts, and I agree, that based on the medical evidence the Applicant had physical, intellectual, or psychiatric impairments and satisfied paragraph 94(1)(a) of the Act at the relevant period on account of his lower back pain and chronic left knee conditions.[21]
[21] R SOFIC dated 28 March 2024 at [5.13].
Impairment Tables
As it is not in dispute that the Applicant meets the requirements in subsection 94(1)(a) of the Act, the next issue for determination is whether the Applicant’s conditions qualify for an impairment rating, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.
The Impairment Tables include rules for assigning a rating to determine the level of functional impact of impairments. Subsection 5(2) sets out the purpose and general design principles of the Impairment Tables. Subsection 6(1) states that a person’s impairment must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Subsections 6(2)-(3) state that the Impairment Tables may only be applied after the person’s medical history has been considered, the conditions causing the impairment is permanent, and the impairment is likely to persist for more than two years. A condition is permanent if it is fully diagnosed, treated and stabilised, and likely to persist for more than two years.
Chronic lower back pain condition:
Following an MRI report, orthopaedic surgeon Associate Professor Leon Kleinman verified a diagnosis of ‘lumbar spondylosis with degenerative changes (from L3 to S1 level)’ on 21 September 2010.[22] In a Centrelink medical certificate dated 25 May 2021, the Applicant’s General Practitioner Dr Muhammad Raza, reported a diagnosis of ‘Chronic Back Pain-L3-S1 disc degeneration with mild disk bulge at L5/S1’. Dr Raza described symptoms including ‘sharp lower back pain’ and ‘left leg pain radiating from calf to hip’.[23] Dr Raza reported the pain experienced by the Applicant had been consistent since the 2008 workplace accident, and that it was his opinion the symptoms were likely to persist.
[22] T6, p.109 [2023/2502]; T26, p.117 [2019/0033].
[23] T14, p.158 [2023/2502].
On 2 August 2023, Dr Raza prepared a more comprehensive report on the Applicant’s medical conditions which he states is applicable to the relevant period. In relation to the Applicant’s lower back condition, he confirms a diagnosis of “Chronic Lower Back Pain due to multilevel Lumbar Spondylosis, most pronounced at L4/5, L4/5-disc bulge with mild canal stenosis and L5S1 Retrolisthesis, disc space narrowing and broad based disc osteophyte complex with indentation of thecal sac”. Dr Raza reported there were no plans for further investigations, specialist referrals or treatments for the Applicant’s back condition as further interventions would not make changes or improvements to the severity or frequency of his symptoms.[24]
[24] Applicant’s Materials, Letter from Dr Muhammad Raza, Response to targeted questions, Filed 8 August 2024, p.1-2.
In a report dated 29 March 2011, Associate Professor Leon Kleinman confirmed the Applicant had reported walking and sitting aggravated his lower back pain, that he had difficulty with any task which requires bending or lifting heavy weights, was unable to mow the lawns and had difficulty driving a car.[25]
[25] T11, p.128-131; T20, p.210 [2023/2502].
On 12 August 2016, the Applicant’s GP Dr Steven Rudolphy reported the Applicant had difficulty dressing himself – ‘pulling on trousers/shorts, difficulty managing shoes and socks’, attends toileting slowly, mobility in and out of bed is slow and painful if stationary for at least 30 minutes, and indicated back movement as 30 degrees on flexion, 5 degrees on extension, 10 degrees on lateral flexion and 10 degrees on rotation’.[26]
[26] T12, p.143 [2023/2502].
The 10 January 2022 JCA states that the Applicant “…reported he has a sitting limit of 20 minutes before requiring rest due to pain, stating he needs to take more pain relief (MS Contin) afterwards”. It is recorded that the Applicant reported having “…two neighbours who assist with domestic duties such as shopping, cleaning and laundry approx. 3 times a week, 30-60 minutes a day”.[27]
[27] T20, p.210 [2023/2502].
At the hearing, the Applicant gave evidence he is no longer able to drive a car as the side effects of the medications he was taking for pain relief include drowsiness, lethargy and slow reflexes. On 23 November 2021, Dr Raza reported that the Applicant was “…taking a substantial amount of pain medication to manage his chronic pain such as: MS Contin MR tablets 30mg, 1 (dose), 2 times daily and Panadeine Forte tablets 500mg/ 30mg, 1-2 (dose), 3 times a day”.[28]
[28] Applicant’s Materials, Dr Muhammad Raza, Medical Report filed 20 December 2023.
The medical evidence supports a finding that the Applicant’s lower back condition was fully diagnosed, treated, and stabilised, and able to be assigned an impairment rating during the relevant period. Conditions resulting in functional impairment when performing activities involving spinal function are considered in ‘Table 4 – Spinal Function’. The Secretary considers that the Applicant’s spinal condition is ‘moderate’ and warrants an impairment rating of 10 points under Table 4.
Table 4 provides a ‘severe’ functional impact on activities involving spinal function requires that a person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
It is well documented by Dr Raza that the Applicant experienced significant discomfort and pain due to his lower back condition, stiffness, and slow movement during the relevant period. For the 10 January 2022 JCA the Applicant reported being unable to bend over or reach upwards to grab objects due to back pain.[29] If the Applicant was unable to perform overhead activities during the relevant period, he may qualify for 20 points under Table 4. The rules for assigning an impairment rating require that self-reported symptoms can only be taken into account where there is corroborating evidence. The medical reports in evidence do not confirm the Applicant was unable to perform overhead activities during the relevant period or that he otherwise meets the criteria for a severe impairment under table 4.
[29] T20, p.212 [2023/2502].
Based on the evidence, the appropriate impairment rating for the Applicant’s spinal condition is 10 points under Table 4.
Chronic knee pain condition
In a Centrelink medical certificate of 22 November 2021, Dr Raza stated that the Applicant was experiencing ‘left leg pain radiating from calf to hip’ which had been consistent since the 2008 workplace accident in which he also sustained his chronic lower back pain condition.[30] An x-ray was performed on the Applicant’s left knee on 25 August 2011 and Dr Allan Aho reported normal alignment, ‘the joint spaces normally preserved’, ‘no bony injuries or abnormalities detected’, ‘no joint effusion’ and concluded the Applicant’s knee joint was ‘normal’.[31]
[30] T18, p.205 [2023/2502].
[31] T13, p.150 [2023/2502].
On 23 July 2018, Dr Rudolphy reported the Applicant experiences pain in his left knee if he walks for 1 to 2 km despite the ‘normal looking x ray’. Dr Rudolphy writes that the Applicant was seen by the orthopaedic clinic at Cairns Hospital in May of 2018 and a report indicated there was ‘no useful surgical cure’ for the knee condition. Dr Rudolphy concludes it will be difficult for the Applicant to stand for long periods or walk without pain and swelling.[32]
[32] Ibid,p.153 [2023/2502].
I agree with the Secretary that the evidence regarding the Applicant’s lower limb condition is sufficient to conclude the condition is fully diagnosed, treated and stabilised and eligible to be assigned an impairment rating under ‘Table 3 – Lower Limb Function’.[33]
[33] R SOFIC dated 28 March 2024 at [3.12], [5.39].
In reference to the Applicant’s lower limb condition, a JCA submitted on 27 July 2017 states that the Applicant reported being able to attend a ‘…fortnightly grocery trip (including walking around, negotiate occasional stairs, maneuver shopping trolley, load and unclad the groceries, and wait at the checkout) and does not require any physical assistance or walking aids’. The Applicant also reported walking to his local small supermarket if required and that Dr Rudolphy had encouraged him to walk as much as possible for exercise purposes.[34] Dr Raza reported on 23 November 2021 the Applicant had a standing limit for 20 minutes before requiring rest.
[34] T26, p.120 [2019/0033].
The JCA report prepared on 11 January 2022 records that the Applicant reported a walking limit of a few hundred metres before experiencing pain.[35] The Applicant also reported using a walking stick in the community and at home when he is using the stairs, and of ‘experiencing 5-6 falls in the last year due to his knee pain’. When considering the functional impact of the condition, I note the Applicant had reported his neighbours help with shopping, cleaning and laundry and that he had accessibility rails installed in his shower.[36]
[35] T20, p.211 [2023/2502].
[36] Ibid, p.212-213.
On 5 July 2023, an MRI was performed on the Applicant’s left knee by Dr Arash Azimi-Tabrizi. Dr Azimi-Tabrizi reported ‘horizontal cleavage tear at junction of body and posterior horn segments of medial meniscus’ and a ‘chronic appearing complex tear of anterior horn and body segment of lateral meniscus with parameniscal cyst formation’.[37]
[37] R SOFIC dated 28 March 2024, Annexure A, p.3.
In the report dated 2 August 2023, Dr Raza confirmed the Applicant had reduced range of motion in his left knee, experienced pain, discomfort and swelling in his left knee when supporting his weight for prolonged periods of time and walking for more than 1 km. He also suffers insomnia due to the pain and anxiety.[38]
[38] Ibid, p.1-2.
The Secretary submits that the Applicant’s lower limb condition warrants a ‘mild’ impairment rating of 5 points under Table 3. The Applicant may qualify for a mild impairment rating under Table 3 if he is unable to ‘walk far outside his home’, which is not in dispute.[39]
[39] R SOFIC dated 28 March 2024 at [5.56].
Table 3 provides the following descriptors for there being 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.
Note 1: 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).
The Applicant has reported the condition causes him difficulty walking and limits his ability to stand for periods longer than 20 minutes. However, the reporting and medical evidence before the Tribunal indicates that the Applicant can walk to the shops if required, he uses steps with the aid of a walking stick and is able to stand for up to 20 minutes. In my view, these functional impacts do not rise to the level of meeting the descriptors for a moderate impairment rating.
Having found the evidence is not consistent with a moderate functional impact under Table 3, an impairment rating of 5 points is appropriate for the Applicant’s lower limb condition.
CONCLUSION
The Applicant has a chronic spinal condition which qualified him for DSP under the rules that applied in February 2011. He subsequently developed a condition in his left knee. Both conditions limit his mobility and cause significant pain and discomfort, which are treated with pain medications.

For the reasons I have set out, I find that the Applicant’s impairments are rated 15 points under the Impairment Tables. As he does not have 20 points or more on the Impairment Tables, the Applicant is unable to satisfy 94(1)(b) of the Act and his claim cannot succeed. It is, therefore, not necessary to consider whether the Applicant also had a continuing inability to work during the relevant period.
DECISION
For the reasons outlined the reviewable decision is affirmed.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Member S Evans.

..............................[SGD]...................................
Associate
Dated: 24 September 2024

Date(s) of hearing: 30 July 2024

Applicant: By Telephone

Solicitors for the Respondent: Mr A. Campbell, Hunt & Hunt Lawyers (by AVL)

[2024] AATA 3436

24 September 2024

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

Date(s) of hearing:	30 July 2024
Applicant:	By Telephone
Solicitors for the Respondent:	Mr A. Campbell, Hunt & Hunt Lawyers (by AVL)