Raymond MacMaster and Secretary, Department of Social Services
[2014] AATA 776
•24 October 2014
[2014] AATA 776
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/3347
Re
Raymond MacMaster
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr D Letcher QC, Senior Member
Date 24 October 2014 Place Sydney The decision under review is affirmed.
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Mr D Letcher QC, Senior Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicants impairment is rated 20 points or more under the Impairment Tables – whether applicant has a continuing inability to work – decision under review affirmed
LEGISLATION
Social Security (Administration) Act 1999
Social Security Act 1991 s 94
CASES
Re Lawson and Secretary, Department of Social Services (AAT 11767, 11 April 1997)
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr D Letcher QC, Senior Member
24 October 2014
The applicant, Mr MacMaster, claimed Disability Support Pension (“DSP”) on 6 December 2012 stating her suffers from “Disc prolapse C5/6”, “chronic osteomyelitis [left] tibia”, “splenectomy” and “tinnitus”. His claim was declined by Centrelink initially and upon internal review. The Social Security Appeals Tribunal (“SSAT”) affirmed Centrelink’s decision on 14 June 2013. The applicant seeks review of the SSAT’s decision with this Tribunal.
LEGAL BACKGROUND
The applicant’s state of disability at the time of the hearing before this Tribunal is not the issue and consequently the Tribunal is not able to undertake a hearing based upon the state of the applicant’s health conditions at the hearing date. Under the Social Security (Administration) Act1999 (the “Administration Act”) the role of the Tribunal is to decide whether the applicant establishes a case for a pension only as at the time of the notice to claim DSP or in the 13 week period thereafter: Re Lawson and Secretary, Department of Social Services (AAT 11767, 11 April 1997) and Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922. That is, the applicant’s health conditions as assessed outside the period 6 December 2012 to 7 March 2013 (“the relevant period”) are irrelevant to these proceedings and cannot be considered by the Tribunal except in so far as they throw light on his conditions during the relevant period.
In addition to the material before the SSAT, there is a further Job Capacity Assessment (“JCA”) report dated 18 March 2014 and a report from the Health Professional Advisory Unit dated 7 August 2014 before this Tribunal. I have taken them into account so far as they cast light on the applicant’s conditions at the time of his DSP application and in the 13 weeks thereafter.
In order to qualify for DSP, the applicant must satisfy the criteria set out in s 94 of the Social Security Act 1991 (the “Act) during the relevant period, which provides relevantly as follows:
94(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;
…
In relation to s 94(1)(b), for an impairment rating to be assigned the condition causing the impairment must be considered “permanent” as defined in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the “Impairment Tables”), meaning each and every of the following:
(a)fully diagnosed by a health practitioner qualified to make such a diagnosis;
(b)fully treated – meaning given all reasonable treatment which might be of some effect;
(c)stabilised – meaning unlikely to improve within the next two years; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Unless a health condition satisfies each of the criteria (a), (b), (c) and (d) above, it cannot be given an impairment rating under the Impairment Tables.
In deciding whether a condition has been fully diagnosed and fully treated, the following must be considered:
(a)whether there is authoritative diagnosis and corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.
In deciding whether a condition is stabilised, the Tribunal must consider whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years that would enable the person to undertake work in the next two years.
In order to satisfy s 94(1)(c) and establish a continuing inability to work (“CITW”) where the person’s impairment is not a severe impairment, the Tribunal must be satisfied that the applicant has actively participated in a Program of Support (“POS”), and the impairment is of itself sufficient to prevent the person from doing any work or training activity independently of a POS within the next two years. Under s 94(3C) of the Act, a person must have actively engaged in a POS for 18 out of the 36 months immediately preceding their claim.
However, a CITW assessor is required to disregard the effect of any impairment that has not been assigned a rating. That is, unless a condition is “permanent” (as defined above), it will not be taken into account when assessing CITW.
A “severe impairment” is defined in s 94(3B) of the Act as follows:
(3B) A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
It is accepted that the applicant satisfies s 94(1)(a) as he was suffering from a number of conditions during the relevant period. The issues for this Tribunal to determine are whether he had an impairment rating of at least 20 points under the Impairment Tables and whether he had a CITW.
ASSESSMENT UNDER THE IMPAIRMENT TABLES
The applicant injured his neck in a work-related accident in 1996 and in 1999 suffered severe injuries to his pelvis, legs and back in a motorbike accident. He suffers from a number of conditions including a spinal/neck condition, lower limb impairment, upper limb impairment and tinnitus.
The applicant claimed that he was unemployable as a result of his injuries which imposed severe permanent disabilities on him. He gave evidence by telephone to the Tribunal and was cross-examined on the particular functional impacts of each disability with a concentration on the criteria set out in the relevant Impairment Tables. The respondent took the applicant through the individual items making up the “mild”, “moderate” or “severe” impact in the relevant Table.
Neck/ spine condition
In the JCA report dated 11 December 2012, the applicant’s spine and neck condition were assessed under Table 4. The applicant said that these conditions did not preclude him from remaining seated for 10 minutes, he could bend forward to pick up an object from a table, he did not require anyone to help him out of a chair, he was able to drive a car for 30 minutes but he could not keep his arms above his head for any length of time. Both conditions were accepted by the assessor as fully diagnosed, fully treated, and stabilised, with the spinal condition allocated a rating of nil points and the neck disorder allocated a rating of five points.
Upon reviewing this assessment, the SSAT assessed the applicant’s spine and neck condition as having a moderate impact attracting an impairment rating of 10 points under Table 4. In the present proceedings, the respondent has accepted this rating as warranted and I accept this position.
Upper limb impairment
It appears the applicant has two conditions that impact on the functionality of his upper limbs – his osteoarthritis and his spinal condition. The applicant’s osteoarthritis in the right wrist and weakness in his right arm caused difficulty in picking up bulky objects, opening bottles and doing up buttons, although the left arm was better. In the JCA Report these conditions were assessed as having a moderate impact under Table 2 and allocated a rating of five points. In considering the evidence before it, the SSAT disagreed with this finding and found that an impairment rating of 10 points under Table 2 was appropriate for this impairment.
I agree with the SSAT’s decision that this impairment attracts a rating of 10 points, noting in his evidence the applicant stated that he could use a pen, turn the pages of a book and was able to carry things. This is consistent with a moderate impact and so does not attract a “severe” rating.
Lower limb impairment
The applicant’s left hip and leg condition were assessed under Table 3 and include osteomyelitis of the tibia, chronic pain in the hip and wasting of muscles. The applicant said he was unable to walk to local shops but could walk from the car park and then around a supermarket. There is no dispute that these conditions were fully diagnosed, treated and stabilised at the date of claim and the respondent accepts the SSAT’s finding that this condition warrants a rating of 10 points. I agree with this assessment, as the applicant’s lower limb impairments had a moderate functional impact.
Tinnitus
The condition of tinnitus, assessed under Table 11, was diagnosed by Professor Fagan, an ear, nose and throat (“ENT”) specialist, and is accepted by the respondent to be permanent. The applicant said he uses a hearing aid, has to increase the volume of the television when others are talking but can hear a conversation in the same circumstances. He has no problems with balance and no need for the use of lip-reading or special telephone devices. I agree with, and the respondent accepts, the SSAT’s finding that the functional impact of this condition is mild and attracts a rating of five points.
Other conditions
The other conditions advanced by the applicant, being depression and seizures, were not diagnosed within the relevant period and have not been fully treated. The applicant also had a splenectomy as a child but there is no functional impact claimed or apparent in the evidence. These conditions do not attract a rating under the Impairment Tables.
CONTINUING INABILITY TO WORK
The applicant has a cumulative rating of 35 points across Tables 2, 3, 4 and 11 and therefore satisfies s 94(1)(b) of the Act. However, with no assessment of 20 points or more under the one Table, the applicant does not satisfy the definition of severe impairment. This means it is essential for the applicant to establish a CITW in order to satisfy s 94(1)(c), which in turn requires that the applicant has actively participated in a POS, and the impairment is of itself sufficient to prevent him from doing any work or training activity independently of a POS within the next two years.
The evidence before this Tribunal does not satisfy me that the applicant actively engaged in a POS for 18 out of the 36 months immediately preceding his application. At the SSAT the applicant was insistent that he had participated in various rehabilitation activities in the three years prior to his application for DSP and had been sent to various places as part of the insurer’s attempt to rehabilitate him back into alternative work. In his evidence to this Tribunal, he maintained that he had done everything that QBE Insurance and Centrelink had asked of him. QBE was the applicant’s workers compensation insurer and it obtained a vocational assessment and vocational plan report after certifying the applicant as unfit for employment for many years prior to June 2011. In August 2011, he was assessed by Konekt (QBE’s service provider) and as a result “he was therefore not recommended for vocational rehabilitation”. The service was then closed as Konekt deemed him unsuitable for workplace preparation “due to his current self-perception that he would never return to work, and his low self-efficacy, and poor motivation to return to work”.
Regardless of how it was referred to by QBE, the vocational plan was a program of assessment only and not a POS within the meaning of s 94(5) of the Act. It was not “designed to assist persons to prepare for, find or maintain work” and it was not similar to POS’s provided by the government.
Centrelink did not refer the applicant to a POS service provider before the end of the claim period and the applicant had not participated in such a program until March 2013. It appears that the applicant believed that because QBE had regarded him as unsuitable for workplace rehabilitation, he was not obliged to engage in a POS and did not do so.
Additionally, in the JCA Report dated 10 December 2012 the assessor formed the view that the applicant had a baseline work capacity of 8-14 hours a week and with intervention this would increase to 15-22 hours within two years [T26-208]. There was no evidence contradicting this opinion.
The significance of this is that the applicant does not have a CITW and does not satisfy s 94(1)(c) of the Act.
CONCLUSION
During the relevant period the applicant suffered from a number of permanent conditions and he has been assessed as having an impairment rating of 35 points under Tables 2, 3, 4 and 11 of the Impairment Tables. Hence he satisfies the s 94(1)(a) and (b) of the Act.
However, he does not have a severe impairment within the meaning of the Act, and has does not meet the requirements for participation in a POS, and so does not have a CITW. Hence he falls short of qualifying for DSP as he does not satisfy the criteria in s94(1)(c).
DECISION
The decision under review is affirmed.
I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr D Letcher, QC, Senior Member ..........................[SGD]..............................................
Associate
Dated 24 October 2014
Date of hearing 13 August 2014 Applicant Self-represented, appeared by telephone Solicitors for the Respondent Mr D McLaren, Department of Human Services
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