Re Jansen and Secretary, Department of Employment and Workplace Relations
[2006] AATA 367
•27 April 2006
Morton and Secretary, Department of Social Services (Social services second review) [2016] AATA 634 (24 August 2016)
Division
GENERAL DIVISION
File Number
2015/6580
Re
Lindon MORTON
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal D. J. Morris, Member
Date 24 August 2016 Place Perth The Tribunal affirms the reviewable decision.
...........[Sgd].............................................................
D. J. Morris, Member
CATCHWORDS
SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – reasonable treatment not undertaken – whether impairments attract 20 points or more on Impairment Tables – not qualified for DSP – decision affirmed
LEGISLATION
Social Security Act 1991 – s 94(1) – s 94(1)(a) – s 94(1)(b) – s 94(1)(c) – s 94(5)
CASES
Cardenzana and Secretary, Department of Employment and Workplace Relations [2007] AATA 1910
Jansen and Secretary, Department of Employment and Workplace Relations [2006] AATA 367
Newman and Secretary, Department of Family and Community Services (2002) 71 ALD 222; [2002] AATA 917
Rudder and Secretary, Department of Employment and Workplace Relations [2006] AATA 249
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
D. J. Morris, Member
24 August 2016
BACKGROUND
Mr Lindon Morton sought a review of the decision of the Social Security and Child Support Division of the Administrative Appeals Tribunal (AAT1) to affirm the decision of the Department of Human Services (Centrelink) to cancel his Disability Support Pension (DSP) on 24 July 2015.
The hearing was held on 8 August 2016. The Applicant represented himself. The Respondent was represented by Mr Ashley Burgess. The Applicant gave evidence under affirmation and was cross-examined by counsel for the Respondent.
The Respondent tendered documents submitted by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ documents).
The Tribunal also took into account a submission made by the Applicant which was not dated but received by the Tribunal on 22 March 2016.
The Applicant also tendered the additional documents during the hearing:
·Medical report from Dr Nick Wilson, General Practitioner, of The Bridge Family Practice dated 2 August 2016 (Exhibit A1);
·Medical report from Mr Arul Bala, Consultant Neurosurgeon, dated 21 April 2015 (Exhibit A2);
·Radiology report from Dr Vijay Sarode, Radiologist, dated 1 April 2016 (Exhibit A3); and
·Medical report from Dr Aman Sidhu, Department of Orthopaedic Surgery, Fremantle Hospital, dated 25 May 2016 (Exhibit A4).
FACTS
Mr Morton is a 61 year old man who was granted DSP on 16 September 2009.
Mr Morton made inquiries to the Department about portability of his DSP on 23 January 2015. This inquiry triggered a medical review of his qualifications for the benefit.
On 7 May 2015, in compliance with a request from the Department for him to provide a medical report, Mr Morton saw Dr Nick Wilson, general practitioner, who furnished a report which was provided to the Department.
On 24 July 2015, an officer of the Department of Human Services (the Department) decided that Mr Morton was not qualified for DSP under the Social Security Act 1991 (the Act) on the basis that he had been assessed as not having impairments of 20 points or more under the provisions of section 94(1)(b) of the Act, which is an essential requirement for qualification for DSP.
The Applicant sought a review of this decision and on 21 September 2015 an Authorised Review Officer (ARO), who had considered the decision, affirmed it.
Mr Morton sought a review of the ARO’s decision to refuse the grant of DSP by the Social Security and Child Support Division of this Tribunal (AAT1). A hearing was held on 10 December 2015 in Perth.
On 10 December 2015, AAT1 affirmed the Department’s decision. Mr Morton sought a review of the decision of AAT1 before this Tribunal.
QUESTION BEFORE THE TRIBUNAL
The purpose of this hearing, therefore, is to review the original decision of the Department’s officer that the Applicant was not qualified for DSP on the date it was cancelled, 24 July 2015.
Qualification for DSP under the Act
In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied. For this reason, it must be established that the person has –
(a) a physical, psychological or mental impairment;
(b)the impairment or impairments must attract a rating of 20 or more points under the Impairment Tables; and
(c) a continuing inability to work.
The Impairment Tables under which a person must be assessed under the Act are the Impairment Tables implemented from 1 January 2012 and set out in Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
The applicable provision relating to the Applicant’s ability to “work” under subsection 94(1)(c) and section 94(5) of the Act is work that is for at least 15 hours a week.
Does the Applicant have a physical, intellectual or psychiatric impairment?
Dr Wilson’s medical report of 7 May 2015 stated that Mr Morton has chronic lower back pain and that degenerative changes have been confirmed with x-ray, CT scan and MRI. Dr Wilson also recorded a right knee condition (knee pain/stiffness) which was also degenerative in nature but which, in his view, is generally well managed and causes minimal or limited impact on Mr Morton’s ability to function.
Mr Morton undertook a face to face Job Capacity Assessment (JCA) on 9 June 2015. The JCA found that the Applicant has a spinal disorder, lower limb deficiencies (from the right knee pain/stiffness) and a rotator cuff tear to his shoulder. In addition, Mr Morton has Type 2 diabetes mellitus, hypertension and hypothyroidism.
With the corroborated medical evidence before the Tribunal, it is clear that the Applicant has permanent impairments and I so find.
Accordingly, Mr Morton satisfies section 94(1)(a) of the Act.
Medical conditions and impairment ratings
Dr Wilson reported that the Applicant has difficulty bending, lifting, carrying or standing for long periods. The Applicant said in evidence that he has difficulty lifting more than 5 kilograms with his right arm, but that he has no difficulties with his left arm. He said that he could lift an item such as a carton of milk with either hand. Mr Morton said that he does use public transport if he can get dropped off at the railway station and that he does drive on occasion; he told the Tribunal he can look over his shoulder when driving.
Mr Morton said he cannot use stairs and, when shopping for groceries, will use the supermarket trolley for support. He said that he could stand for 15 to 20 minutes, as a maximum period, before having to sit down.
Mr Morton said that he was scheduled to undergo surgery to repair his shoulder but that he has a fear of surgery and had cancelled a scheduled operation in a private hospital. He advised the Tribunal that he is now on a waiting list for surgery in a public hospital. Notwithstanding his aversion to surgery, in answer to a question in the hearing, he gave evidence that he had in fact recently undergone prostate surgery. The Tribunal therefore finds that his decision to cancel scheduled surgery was not for medical or other compelling reason as set out in Rule 6(b)(ii) of the Impairment Tables.
There have been a number of AAT determinations where the question of reasonable treatment has been considered, such as Newman and Secretary, Department of Family and Community Services [2002] AATA 917, Rudder and Secretary, Department of Employment and Workplace Relations [2006] AATA 249, Jansen and Secretary, Department of Employment and Workplace Relations [2006] AATA 367 and Cardenzana and Secretary, Department of Employment and Workplace Relations [2007] AATA 1910. In each of these, the Tribunal rejected a claim of permanent disability because the Applicant had failed to undertake recommended treatments and had not used their best endeavours to improve their situation. That applies in this case to Mr Morton’s shoulder condition.
Dr Wilson’s most recent medical report of 2 August 2016 and tendered by the Applicant at the hearing states that an x-ray performed in April 2016 has reported as normal and ultrasound scan shows subacromial bursopathy with “no evidence of rotator cuff tear”.
Therefore there is conflicting medical evidence in relation to the shoulder condition, but given that Mr Morton had been recommended for further treatment by qualified specialist medical practitioners before the date of cancellation and that he had of his own volition cancelled it, the Tribunal finds he has not undertaken reasonable treatment in terms of Rule 6(b) of the Impairment Tables. The consequence is that no impairment rating can be assigned for his shoulder condition.
In terms of the Applicant’s knee condition, Dr Aman Sidhu of Fremantle Hospital in his medical report dated 25 May 2016 diagnosed it as ‘bilateral knee osteoarthritis, right worse than left’. Dr Sidhu said that he had discussed the situation with Mr Morton and the options available to him, and that Dr Sidhu had
told him I think he is performing too well now to be considering a knee replacement and he agrees with me on that. He does not want to have surgery unless required.
Mr Morton reported that he walked, although he did not walk long distances. He uses public transport and he drives. He did not use a cane or other walking aid at the time of cancellation, although he said he does lean on the trolley when shopping, as a support.
Applying the Descriptors in Table 3 – Lower Limb Function, in relation to the knee condition, to the medical evidence and Mr Morton’s own evidence at the hearing about what he is able to do, the correct rating to be assigned to this condition at the relevant date is 5 points, that there is a moderate functional impact on the person’s activities.
The correct Impairment Table to consider the functional impact of the Applicant’s condition of chronic lower back pain is Table 4 – Spinal Function. When considering how this Impairment Table applies in a particular person’s case, the Tribunal must do so with reference to the Rules for applying the Impairment Tables set out in Part 2 of the Minister’s Determination.
In particular, Rule 6(3) provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
In considering whether a condition is “permanent”, Rule 6(4) requires that a condition must be fully diagnosed by an appropriately qualified medical practitioner, and the condition must be fully treated and fully stabilised.
The chronic lower back pain condition suffered by Mr Morton satisfies these statutory requirements. It has been diagnosed by an appropriately qualified medical practitioner; the applicant has received treatment; and the condition, being a chronic condition, can be regarded as fully stabilised. It is a medical condition that is more likely than not, in light of the available evidence, to persist for more than two years, and so I find that Mr Morton’s back condition is permanent in terms of satisfying Rule 6(3) of the Impairment Tables.
Mr Morton gave evidence that he can pick up an object from a table, but not from knee height. He said that he does not need help with showering and that he can sit for 10 to 15 minutes or longer when taking pain-killers, such as Panadeine Forte and Naproxen. Dr Wilson in his medical report of 12 August 2016 said that the Applicant:
Suffers from chronic lower back pain and MRI has confirmed Mr Morton has Grade II LS/S1 spondylolisthesis with multilevel mild facet joint arthritis. The back pain is continuous and he experiences intermittent radicular symptoms with the left leg being worse that the right. Surgery is not an option at present.
Having considered the medical evidence and the evidence given by the Applicant at the hearing, the Tribunal finds that Mr Morton’s back condition is permanent and fully diagnosed, fully treated and fully stabilised. Applying the Descriptors in the Minister’s Determination for Table 4 – Spinal Function, on balance, an assignment of 10 points is correct, that there is a moderate functional impact on Mr Morton’s activities.
Mr Morton’s other medical conditions of non-insulin dependent diabetes, hypertension and hypothyroidism are generally well managed and, as confirmed in his evidence before the Tribunal, cause him minimal functional impairment. Accordingly, these conditions do not satisfy the requirements to receive a rating under the Impairment Tables, so under Rule 11(5) of the Tables, a zero rating must be assigned in relation to these conditions.
CONCLUSION
I found Mr Morton to be a co-operative and open witness. I accept that he has two conditions which medical evidence records are, by their nature, degenerative. However, under the law the Tribunal is required to assess the condition of the Applicant on the date that his DSP was cancelled, not speculate about how a condition or disease might progress. This conclusion is supported by the advice of medical practitioners who have examined Mr Morton that he may face surgical intervention in the future but it is not yet medically justified.
For a person to be eligible for DSP, each part of section 94 of the Act must be satisfied. As the Tribunal has found that the Applicant can be correctly allocated a total of 15 points under the Impairment Tables, the requirements of section 94 (1)(b) of the Act are not satisfied in the relevant period. The consequence is that the Applicant was not qualified for DSP on the relevant date, 24 July 2015.
As all three sub-parts of section 94(1) of the Act must be satisfied, it is not necessary for the Tribunal to go on to consider whether the Applicant has a continuing inability to work.
The Tribunal finds that the original decision was correct.
DECISION
The reviewable decision is affirmed.
I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of D. J. Morris, Member .....[Sgd]...................................................................
Administrative Assistant
Dated 24 August 2016
Date of hearing 8 August 2016 Applicant In person Representative for the
RespondentMr A Burgess Solicitors for the Respondent
Sparke Helmore Lawyers
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