Re Summers and Secretary, Department of Social Services
[2014] AATA 165
•27 March 2014
[2014] AATA 165
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1505
Re
Anthony Summers
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 27 March 2014 Place Sydney The Tribunal affirms the decision under review.
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Ms N Bell, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – impairment tables – applicant does not meet impairment rating requirement – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) ss 41, 42, Sch 1B, Sch 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011REASONS FOR DECISION
Ms N Bell, Senior Member
27 March 2014
Anthony Summers claimed disability support pension in March 2012.
A Centrelink officer rejected Mr Summers’ claim on the basis that he had insufficient points under the Impairment Tables under the Social Security Act 1991 to qualify for disability support pension. That decision was affirmed on further internal review and by an authorised review officer including on the grounds that he had not participated in a program of support and did not have a continuing inability to work under the Social Security Act 1991. The decision was affirmed on review by the Social Security Appeals Tribunal.
Section 94 of the Social Security Act 1991 provides for the following requirements for eligibility to receive disability support pension:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s combined impairment is of 20 points or more under the impairment tables; and
(c)the person has a continuing inability to work; and
(d)in a case where not one of the person’s impairments attracts an impairment rating of 20 points, the person has actively participated in a program of support.
The combined effect of sections 41 and 42 and clause 3 of Schedule 2 to the Social Security (Administration) Act 1999 is that only the conditions suffered by Mr Summers during the period from the date of his claim and for the following 13 weeks may be considered for assessment of his qualification for disability support pension. Those conditions must be assessed against the impairment tables as they were during that 13 week period, that is, from 28 March 2012 to 27 June 2012. Similarly, his satisfaction of other eligibility requirements must also be assessed for that limited period.
Mr Summers currently suffers from:
(a)Left lower limb condition;
(b)Osteoarthritis of the right knee;
(c)Neck condition; and
(d)Hypertension and Gout.
It is not in dispute that Mr Summers has impairments and so meets the first requirement of section 94. The remaining requirements give rise to the issues in his application.
DOES MR SUMMERS HAVE AN IMPAIRMENT RATING OF AT LEAST 20 POINTS?
The introduction to the Impairment Tables provides that in order for a medical condition to attract an impairment rating under the Impairment Tables it must be permanent within the meaning of that term in the Introduction to the Tables. The Introduction provides at paragraph 6(4) that the condition is considered to be permanent if it has been fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated an stabilised; and it is more likely than not, in light of available evidence, to persist for more than 2 years.
Paragraph 6(5) of the Introduction provides that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next 2 years. Paragraph 6(6) provides, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment for the condition and any further treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years.
This means that, regardless of the range and progression of Mr Summers’ conditions now, I must restrict my consideration to those conditions that were fully diagnosed, treated and stabilised during the period 28 March 2012 to 27 June 2012.
I will deal with each of Mr Summers’ conditions in turn.
Left Lower Limb
Table 3 of the Impairment tables sets out the following criteria in relation to lower limbs for an allocation of 10 or 20 points respectively:
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.
20
There is a severe functional impact on activities using lower limbs.
(1) The person:
(a) is unable to do any of the following:
(i) walk around a shopping centre or supermarket without assistance;
(ii) walk from the carpark into a shopping centre or supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b) requires assistance to use public transport.
(2) This impairment rating level includes a person who requires assistance to:
(a) move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b) move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
Mr Summers said that during the relevant period he had a lot of trouble with his left leg, which had been damaged in a motor vehicle accident many years ago. According to the job capacity assessor, X-rays showed significantly mal-aligned fractures of the tibia, femur and fibula. He said he could only stand for a few minutes, could catch a train, as he did to the Tribunal hearing that morning, but could not catch a bus and had not done so for many years.
Mr Summers said he requires assistance from another person in order to get up off the floor, to get in and out of the driver’s side of a car, to get out of a lounge chair and to get out of a straight backed chair that has no arms and no table in front of it. He said he avoids stairs at all costs, needing to use a handrail when he must negotiate stairs, and finds it very hard to go down a ramp. He uses a walking stick.
He said he sometimes goes with his partner to the shopping centre. They will park next to the trolleys and he uses a trolley to lean on as he walks around. Mr Summers said he is able to walk for more than 5 minutes but it causes him pain. He described walking to the Tribunal that morning from Town Hall Station and needing to stop and either sit or lean against a wall on at least four occasions over the distance. He said it took him 45 minutes.
Mr Summers’ difficulty with walking and weight bearing were corroborated by his general practitioner, Dr Mirza. The Job Capacity Assessor, an exercise physiologist, also accepted that Mr Summers experiences these difficulties.
The question of whether Mr Summers’ left lower limb impairment should attract a rating of 10 points or 20 points comes down to whether, when he walks from his parked car to a shopping centre, he is able to do so without “assistance”. “Assistance” is not defined in the tables or in the Act. The Secretary urged on me an interpretation of “assistance” that would mean that the assistance referred to is assistance from another person, rather than assistance from an object, such as a shopping trolley, a walking stick or a hand rail. The Secretary submitted:
The proper context for the descriptors for 10 and 20 points in Table 3 includes [paragraph] 9 of the Impairment Tables Determination. … [Paragraph] 9 states that a person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses.
Thus, the descriptors for 10 and 20 points in Table 3 are to be read in [Mr Summers’] case on the basis that he is normally using his walking stick and other aids such as trolleys in shopping centres. It would be superfluous to mention “aids, equipment or assistive technology” in the descriptors, because the rule in [paragraph] 9 of the Impairment Tables Determination requires them to be taking into account.
It follow that “assistance” in the descriptors for 10 and 20 points in Table 3 does not extend to “aids, equipment or assistive technology” but is limited to assistance from a person.
I accept this submission. The conclusion that “assistance” refers to assistance from a person and not from an object or physical aid is inescapable. It follows that Mr Summers’ considerable impairment of his left lower limb attracts a rating of only 10 points, notwithstanding the extent of its functional impact.
Right Lower Limb
Mr Summers, predictably given the state of his left lower limb and the strain this puts on his other leg, has developed osteoarthritis of his right lower limb. However, this was not diagnosed until October 2012 - after the relevant period. I have no medical evidence of onset of this condition at an earlier date. In any event, the current impairment tables assess functional impact and not individual conditions. The symptoms Mr Summers experiences in his right leg no doubt contribute to the difficulties he faces with lower limb movement. He cannot be assessed twice for this.
Cervical Spine
Mr Summers said his neck aches and he cannot sleep on his right side. He also said he cannot raise his right arm above shoulder level. Bending and prolonged sitting make it worse.
Dr Mirza described this condition as “generally well managed”. Table 4 sets out the criteria in relation to the spine for an allocation of 5 or 10 points respectively:
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).
10 There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
This degenerative condition, conceded by the Secretary to be permanent and likely to deteriorate, did not, during the relevant period, attract more than 5 points under the Impairment Tables.
Hypertension and Gout
Dr Mirza described Mr Summers’ hypertension as controlled by medication. No functional impairment was described.
Mr Summers said his gout commenced in 2011 but he did not consult a doctor about it straight away. It was not mentioned in Dr Mirza’s initial medical report, but was mentioned by him in a report of May 2013 as having its onset in July 2012. Mr Summers, in his evidence to the Tribunal, described it as now being controlled by medication. He also mentioned that the gout is in his right toe, on his “balancing leg”. I accept that, for Mr Summers, that must have caused great difficulty.
However, both of these conditions, fortunately controlled by medication, and though likely troublesome at times, do not significantly impact on Mr Summers’ function.
They attract no positive impairment rating under the Tables.
It follows that Mr Summers has an impairment rating of 15 points under the Tables. That is so even though I have no doubt that Mr Summers encounters considerable difficulty and pain, particularly as a result of his leg conditions. Mr Summers was a credible and frank witness and gave his evidence about the effect of his conditions on his ability to function honestly and with no embellishment.
Because he has an impairment rating of less than 20 points, Mr Summers cannot qualify to be paid disability support pension, regardless of any limitation on his continuing inability to work.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member. ......[Sgd]..................................................................
Associate
Dated 27 March 2014
Date of hearing 30 January 2014 Applicant In person Solicitors for the Respondent S Thompson, Sparke Helmore
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