Robert Hill and Secretary, Department of Social Services
[2014] AATA 177
•1 April 2014
[2014] AATA 177
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4060
Re
Robert Hill
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 1 April 2014 Place Brisbane The Tribunal affirms the decision under review.
...............Sgd......................................................
Dr M Denovan, Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Less than 20 points under the Impairment Tables – Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 23, 26, 94
Social Security (Administration) Act 1999 (Cth) s 13, Sch 2 cl 4
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr M Denovan, Member
1 April 2014
INTRODUCTION
Mr Robert Hill, the applicant, was granted disability support pension (DSP) from 23 September 2010, however he received a compensation payment, and in July 2011 Centrelink imposed a compensation preclusion period from 21 June 2010 to
4 November 2012. Consequently his DSP was cancelled. Mr Hill reapplied for DSP on 15 October 2012. His claim was rejected. He believes the decision to reject his claim was incorrect and he has applied to this Tribunal to have that decision reviewed. It is
Mr Hill’s position that due to back and hip pain he is unable to work. He claims to have some additional impairment due to GORD (gastro-oesophageal reflux disease) and hypercholesterolemia, however he claims that the impairment from these conditions is minor and does not interfere with his capacity to work.
ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION
The Social Security Act 1991 (Cth) (“the Act”) sets out the qualification criteria for DSP. Insofar as it is relevant for present purposes, s 94 of the Act (as it appeared at the relevant date) provides that the applicant must:
·have a physical, intellectual or psychiatric impairment;
·have an impairment of 20 points or more under the Impairment Tables;[1] and
·have a continuing inability to work.
[1] See s 23 of the Act, whereby “Impairment Tables” means the tables determined by an instrument made under s 26(1) of the Act.
A person has a continuing inability to work under s 94 of the Act if:
· They have an inability to work, due to their accepted impairments, for 15 hours or more a week, and
· They have a severe impairment of 20 points or more under a single Table, or they have actively participated in a program of support.
Under Sch 2 cl 4(1) of the Social Security (Administration) Act 1999 (Cth), an applicant must qualify for a social security payment, in this case DSP, on the day on which the person made the claim or within 13 weeks of that date (“the relevant period”).
If a person advises Centrelink of their intention to make a claim and subsequently lodges a claim within 14 days, as Mr Hill did, they are deemed to have made the claim at the first date of contact, which in this case was on 4 October 2012.[2] The relevant period in which Mr Hill must satisfy all the criteria to qualify for DSP was from 4 October 2012 to 3 January 2013.
[2] Social Security (Administration) Act 1999 (Cth) s 13.
Before an impairment rating can be assigned under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”),[3] it is necessary to determine whether Mr Hill’s conditions can be regarded as being permanent and the impairment resulting from the conditions is likely to persist for more than two years.[4] A condition will be considered permanent where it has been fully diagnosed, treated and stabilised.[5]
[3] Which was made by the Minister pursuant to s 26(1) of the Act.
[4] Section 6(3) of the Determination.
[5] Section 6(4) of the Determination.
Mr Warren, for the respondent, accepts that Mr Hill’s hip and back conditions are fully diagnosed, treated and stabilised within the relevant period. Mr Warren contends that Mr Hill does not qualify for DSP because he does not attract 20 impairment points from the impairment tables, as he should be allocated 10 impairments points only from Table 4 for his back condition, and zero impairment points from Table 3 for his hip condition. Further, it is contended that Mr Hill does not have a continuing inability to work, and has not engaged in a program of support for the mandatory 18 month period.
The issues that I must determine are:
1. what rating, if any, can be assigned to Mr Hill’s medical conditions; and
2. whether he has 20 impairment points or more; and
3. whether he has a continuing inability to work, and if he does not have a severe impairment, whether he has engaged in a program of support for at least 18 months.
CONSIDERATION
What rating, if any, should be assigned to Mr Hill’s medical conditions?
Chronic back condition – L4/5 disc protrusion
Mr Hill said that he recognised assessing his condition was difficult because his impairment fluctuates. He has good and bad days, but has pain on a daily basis. He has pain when he raises his leg straight to 40 degrees and restricted range of movement of his spine. Mr Hill underwent surgery on his lumbar spine in 1993 and 2008. Dr Gatehouse advised in 2013 that no further surgery would assist his condition. Mr Hill said he was treated by a pain specialist in May 2013. Facet joint blocks were of no assistance in alleviating any of his pain. Mr Hill said that a recent MRI demonstrated lumbar spondylosis. This condition was not present when he was first granted DSP, and Mr Hill believes this is evidence that his back condition has actually worsened. Mr Hill’s back condition was aggravated as the result of two accidents. Mr Hill trialled a course of acupuncture in 2013, however it did not help. He now relies on remedial massage, which he receives sometimes weekly or sometimes less often, depending on how his condition is affecting him. He relies on over the counter panadol and codeine, and panadeine forte for bad days. Mr Hill lives alone; he said his 72-year-old mother and neighbours are able to assist him when necessary. He has a sister who helps care for him during his exacerbations. According to Mr Hill, he either drives himself to his sister’s house or she comes to collect him. Occasionally his mother will drive him to his sister’s house.
He said he relies on frozen food when he is too unwell to cook. He has never engaged home nursing services, although he claims he has difficulty using a towel, and wiping his own backside, and cannot bend down to put socks on. He said he stays at home mostly and does not drive a car often, and on good days he cooks dinner, goes for a walk and does light housework.
Table 4 of the Determination is used to assess impairment of spinal function. After attending the most recent job capacity assessment, performed on 23 October 2012,
Mr Hill was allocated five impairment points for his back condition. It is Mr Warren’s contention that the highest rating Mr Hill could possibly be allocated from Table 4 is
10 points. Mr Warren argued that although Mr Hill may have severe functional impairment on some days, which may possibly satisfy the criteria of 20 points, this degree of impairment is not permanent. On his good days, Mr Hill would have, at the most, moderate impairment equivalent to 10 impairment points.
The medical evidence relating to impairment Mr Hill suffers as a result of his back condition is somewhat vague and the details of impairment suffered by Mr Hill on his bad days are not specified. It is clear, however, from the report of Dr Cruz, that Mr Hill’s impairment fluctuates and that he has many good days when his impairment is mild. On good days, by his own admission, Mr Hill can drive a car and is capable of going for a walk and performing housework. There is no suggestion that he is unable to pick up a light object placed a knee height on his good days, which is a criteria for being allocated 10 points for impairment due to a lumbar spinal condition. Considering all of the evidence, I am not persuaded that, as a result of his back condition, on bad days his impairment is any greater than 10 impairment points and on good days his impairment is any greater than five impairment points. Where a person falls between two impairment ratings, the lower rating is to be assigned.[6] The appropriate rating for Mr Hill’s back condition is therefore five points.
[6] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 s 11(1)(c).
Hip condition – congenital dysplastic hip condition (CDH)
A radiological report dated 10 October 2012 indicated that Mr Hill suffers from mild osteoarthritic changes in his hips with bony deformity on the right side consistent with CDH. Mr Hill said that one hip was worse than the other, sometimes both hips ache, and if he sits down and has a rest the pain and aching usually remits. Sometimes he experiences pain at night and the pain is worse in colder weather. Mr Hill said that although the pain can last for up to two days on some occasions, most times, if he sits down, the pain remits and he is all right. Mr Hill believes 10 impairment points from Table 3 is the appropriate rating.
An impairment rating cannot be assigned on the basis of self-reporting of symptoms alone. There must be corroborating evidence of the impairment from a medical practitioner or allied health practitioner. Dr Cruz listed Mr Hill’s CDH as a condition that has minimal or limited impact on his ability to function. There is no medical evidence to support Mr Hill’s claim that he has any significant functional impairment as a result of CDH. I find that the appropriate rating from Table 3 is therefore zero.
GORD, Sciatica, Hypercholesterolemia
Dr Cruz indicated these conditions are generally well managed and cause minimal impact on the applicant’s ability to function. The doctor provided little evidence about these conditions, and there is insufficient evidence to assess whether the conditions have been fully diagnosed, treated and stabilised. As the conditions cause minimal impact on the applicant’s capacity to function, even if they were capable of being allocated a rating, the rating would be zero.
CONCLUSION
Mr Hill does not have 20 impairment points during the relevant period and is therefore not entitled to DSP. It is unnecessary to consider whether he had a continuing inability to work or whether he has completed a program of support.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member. ..........Sgd...........................................................
Associate
Dated 1 April 2014
Date of hearing 3 February 2014 Date final submissions received 14 February 2014 Applicant By telephone Solicitors for the Respondent Nick Warren, Department of Human Services
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