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

[2018] AATA 522

Rooney and Secretary, Department of Social Services (Social services second review) [2018] AATA 522 (29 January 2018)

Division:GENERAL DIVISION

File Number(s):      2016/6642

Re:Graeme Rooney

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:29 January 2018

Date of written reasons:        16 March 2018

Place:Sydney

The decision under review is affirmed.

........................[sgd]................................................

Bill Stefaniak AM RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY - disability support pension – impairment – whether disability is fully diagnosed, fully treated and fully stabilised – whether impairments attract 20 points or more on Impairment Tables – mental health – upper and lower limb function – other conditions – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) Schedule 2

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

1. At the conclusion of the hearing of this matter on 29 January 2018, the reasons for the decision intended to be made were given orally. The Administrative Appeals Tribunal (AAT) served both parties with a copy of the order outlining the decision that was made shortly afterwards. On 13 February 2018, the Applicant requested the Tribunal to provide written reasons for its decision pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth). The written reasons are set out below.

   BACKGROUND

2. The Applicant Mr Rooney was born on 3 January 1967.  He was involved in a motor cycle accident in 2001.  He had been suffering from a breakup of his marriage, he had been drinking heavily and he crashed into a telegraph pole.  He suffered injuries to his left arm, right wrist and also his lower limbs, namely his left limb and left leg in particular.

3. From the Respondent’s Statements of Facts, Issues and Contentions, it seems that the Applicant had been diagnosed initially on 21 January 2002 by two psychiatrists with a major depressive illness.  He had further diagnoses in March and August 2002 of major depression. On 25 February 2002 he was also was diagnosed for Hepatitis C. Around 2006/2007, the Applicant attempted to go back to work as a sheet metal worker.  He had always used his hands as a sheet metal worker and he attempted to return to work building a prison in Nowra

4. After working for approximately 12 to 18 months. It proved to be a little bit too much for him and unfortunately he got pneumonia. He subsequently received, on 7 September 2009, a Disability Support Pension (DSP) under the old scheme.

5. As a result of the regular checks the Department of Social Services does and after the law changed with effect 1 January 2012, the Applicant was re-assessed on 4 April 2016 by Dr Mittelstady, who was not his normal doctor. Dr Mittelstady made a few errors in terms of describing his injuries, specifically attributing problems to his right leg when it was his left leg but nevertheless his assessment caused the Applicant’s pension to be stopped.

6. In the process of DSP review, he was assessed on the papers by a Job Capacity Assessor. He did not attend an interview for the Job Capacity Assessment (JCA). The JCA indicated he did have a capacity to work of about 23 hours plus within the relevant two year period.

7. Accordingly, on 15 June 2016 his DSP was cancelled.

   ISSUES FOR CONSIDERATION AND THE LAW

8. In this matter, the Tribunal must look at whether the Applicant met the qualification criteria for DSP as at the date of cancellation; 15 June 2016.

9. He went through the review process and on 10 November 2016 the Social Security and Child Support Division of the AAT (AAT1) found in favour of the Department and indicated that they did not feel he satisfied the criteria.

10. If one accepts the various assessments before me it would seem certain decision-makers have potentially awarded him five points for Table 2 and five points for Table 3.  At the time his pension was cancelled, he was undergoing intensive treatment for his Hepatitis C which he had suffered from since February 2002.  It was hoped that that would show significant improvement in two years and that has been the case. His depression was also well handled.

11. However, there is no dispute that he has problems with his upper limbs, specifically in his left hand and left arm, his left leg and in his left knee. The issue is whether these conditions have been fully treated and stabilised.

12. In relation to the relevant legislation, section 94(1)(a) of the Social Security Act 1991 (the Act) provides that:

    ·A person qualifies for a disability support pension if that person has a physical, intellectual or psychiatric impairment.

13. The Respondent conceded in relation to those four injury strands, left upper limbs, lower limbs, depression and mental health, and also Hepatitis C that Mr Rooney satisfies section 94(1)(a).

14. Section 94(1)(b) provides:

    ·That the impairment/s has to be 20 points or more under the independent tables.  and, the person also has to have a continuing inability to work as defined in section 94(2) of the Act.

    EVIDENCE

15. The written evidence before the Tribunal is contained in the T-documents.  There are various doctors’ reports and various reports from the department.  There has been some further information that has been supplied, namely; clinical notes of the Yagoona Medical Centre dated 17 October 2016, a CT scan of the Applicant’s whole brain and body on 19 May 2017, a letter from Dr Kurrle dated 2 June 2017, clinical notes of the Yagoona Medical Centre 8 June 2017 and also a Statement of Facts, Issues and Contentions by the Respondent dated 21 December 2017.

16. As this was a case where an existing pension was cancelled, there is no need for the Applicant to have participated in a program of support. However, there is still the requirement that the person has a continuing inability to work.

    CAN THE APPLICANT’S CONDITIONS BE ALLOCATED 20 POINTS OR MORE?

17. The Respondent’s case is that the Applicant’s conditions were not fully treated and stabilised because of pending operations. The Respondent also contended that whilst there was not much evidence of any continuing inability to work in the next two years, there was a Job Capacity Report completed.

18. I will assess his conditions as at the claim period against the Impairment Tables and also assess whether they are all fully treated and stabilised.

19. The Applicant lives most of the time with his carer, Jeanette Shaw.  He has three children, two who live in Campbelltown and who are aged 30 and 31 and a 27 year old daughter who until recently called on him a least once a week. He has grandchildren. His parents who are elderly have moved down to Mollymook. 

20. He has a friend called Danny who lives around the corner from him who he has not seen for about a month but who he regularly sees. They both have an interest in and own cattle dogs. He normally sees Danny about once a week.

21. He also has another friend called Riley who he sees less frequently and has not seen for several months.

22. The Applicant is able to get up in the morning.  He sometimes does not sleep very well because of his injuries but he gets up, he can go to the toilet.  He slowly washes his hair, in fact, he gave evidence that he can do a lot of things but much slower than normal.  He makes a cup of coffee; he makes some toast for breakfast. He watches television, especially the repeats.  Sometimes he will drive to the shops. He can park right outside.  He would walk around the shop, pick up what he needs. There is a young man who works at the shops who would actually put his purchased items in the car for him.  He would go home and he would take his groceries in.

23. He can handle about 4 items in his shopping bag.  For example, he might have a couple of cans of dog food and maybe some biscuits,  in his bag and take his bag in and then go back to the car to take the two litre carton of milk in.  He would get the items in that way, as he could not carry them all in at once because of his arm.

24. He has three dogs.  He would take his 14 year old cattle dog for a walk and he would walk around the block.  The block is about half a kilometre in circumference which is about the maximum distance he can do.

25. If he has to walk to the shops. He stated that he would have to stop every now and again, but he can walk, unaided but slowly with his dog. The other 2 dogs are taken for walks by his daughter and Jeanette Shaw who up until the day of the hearing was living with him in his house. Based on the evidence before me, I am satisfied that Mr Rooney has these permanent conditions. I shall deal with his upper limb condition first.

    Upper Limb Condition

26. The Tribunal notes that the Applicant was due to have an operation on his left arm at the time of the claim period. Indeed, that   operation only occurred five or six months ago and was not successful. The plate, which had been adjusted in his left arm by the operation, has not had the bone graft around it and another operation will be necessary.

    The treating doctor no longer deals with Medicare cases, and has referred the Applicant to another doctor. 

27. The Applicant indicated that if the operation works, his doctors are confident that it may make a significant difference.  Whilst his arm will not probably ever return to normal, it may well get pretty close to that.  Accordingly, whilst the impairment has been fully diagnosed, the Respondent contends it has not been fully treated and stabilised even though it is an old operation.   I would agree with that assessment on the evidence before me.

28. In relation to his upper limbs, he has a fused right hand, which has five wires in it, one of which appears to have come loose  and he only has five per cent movement up and about 45 per cent movement down in his hand.  He can use it for one finger typing on a keyboard.  He can use it if he puts a bottle under his left arm to screw the top off a bottle.

29. The Applicant told the Tribunal that he could pick up without too much trouble a two litre carton of liquid, he may have some difficulty carrying a full shopping bag but could carry a bag with two cans of dog food and two other packets in it.

30. It appears that he may be able to handle very small objects with his right hand, but he does have trouble doing up buttons.  He states he can do it but it is a struggle.

31. The Applicant told the Tribunal that he has a cupboard where everything is very much at head height so he might have some difficulty reaching up to pick up objects.  He can get his right hand to his head to help wash his hair. He can do some washing and occasionally put the washing out. 

32. In my view, where his condition fully stabilised and treated he would get five points.  As already indicated, because there is still the possibility that after his next operation his left arm will get better, this is still a work in progress.  If nothing improves after the operation this impairment would rate 5 points.

    Left Leg Condition   

33. In terms of his left leg getting any better in the two years since 15 January 2016, and given that it is highly unlikely he will have an operation before 15 June 2018, he satisfies the two year rule in that his condition is basically going to stay the same for at least two years.( indeed it has as at the time of the hearing )

34. Accordingly, in terms of the lower limb condition it can be said to have been fully diagnosed, treated  and stabilised.

35. Applying table 3 ( Lower limbs ) to the evidence relevant as at the claim period , I can say that there is some evidence of him having difficulties climbing stairs as he only has 2 in his house and he also has the  assistance of a hand rail . .He may also have some difficulty walking to local facilities as he can only walk about 500 metres maximum and he is unable to stand for more than 10 minutes ( 5 minutes is about his limit ). Accordingly he qualifies for 5 points under this table.

36. He may qualify for 10 points as he states he cannot stand for more than 5 minutes and can walk around a supermarket. I do note however that the Tribunal would need corroborating evidence as at the time of the claim period as to the time he can stand descriptor.

    As it is uncertain if he does qualify for 10 points and he thus can be said to fall between 2 impairment ratings, the lower of the 2 ratings is to be assigned and accordingly the Tribunal has to then go back to the lower rating of 5 points which I do.

    Mental Health

37. I am satisfied that Mr Rooney’s mental health has been diagnosed, fully treated and stabilised as at the claim period for the purposes of  this case.

38. Sometimes this ailment affects him more than at other times and from what he has told the Tribunal, it certainly appears to be getting worse.

39. He does his best to try to overcome it but clearly he has had some problems in recent times. At times he just sits and looks at the wall, sometimes he literally cannot move to get out of the house.  He cannot even go out the back to feed the dogs, he will get his daughter or someone to do that or indeed Jeanette Shaw if she is there.

40. Mr Rooney has indicated that he is worried about his mental health.  He has been trying to get on with it for many, many years but it is something that clearly worries him now.  That is certainly something he needs to have checked out because that issue is causing him some strain in recent times.

41. In looking at the  relevant table , table 5; as at the claim period in 2016, the Applicant was  not living independently at the time and got some help from Ms Shaw , but said he could wash himself and cook .He could cook a steak  in one pan and put potatoes in another and cook them and he could cook  a barbecue

42. He could put clothes in a washing machine and wash them.

43. He might leave the washing in the washing machine but he would put it out the next day. He   certainly takes pride in being able to manage himself and he seems to be able to look after himself and not neglect his self-care and grooming.   

44. There was little evidence before me to illustrate that the Applicant was involved in social and recreational activities and travel.

45. He had, and still does, have a couple of friends who visited him reasonably frequently.  He does have a daughter who visits him and did see the rest of his family at the time but not terribly often -maybe 3 or 4 times a year.

46. He does appear to have an at times strained relationship with Ms Shaw with occasional tension and arguments. 

47. He told the Tribunal that he can watch television and can watch programs. He also gave good coherent evidence before the Tribunal and was able to answer questions from the Tribunal and the Respondent’s representative.

48. This means that he can certainly focus. He did not go off on tangents or anything like that.

49. On the evidence before the Tribunal, it is difficult to say if he demonstrated any unusual behaviour that may disturb other people or attract negative attention or that may indicate that he had any difficulties in planning or organising more complex activities.

50. Nor can the Tribunal comment on whether he has had any interpersonal problem in a work or education type situation as he hasn’t worked for a number of years.

51. As at the claim period, the Applicant certainly had mild difficulties with descriptors (b) social/recreational activities and travel and (c) interpersonal relationships.  He could not be assessed on work/training capacity (f) nor (e) behaviour, planning and decision making and could not be said to have difficulties with concentration and task completion (d).

52. It is possible to construe from the evidence that he may have had some difficulties with self-care and independent living (a), but he did not live alone and seemed to be able to manage his grooming and cook meals.

53. He needs to satisfy 4 out of the 6 descriptors to get 5 points.  He certainly satisfies 2 out of the 6 and possible, at best 3.

54. The Tribunal notes that the Applicant appears to have more issues now with his mental health and it is quite possible that he might now qualify for 10 points, but I am looking at his situation in 2016, not 2018 and at any rate he would need to be assessed by a psychiatrist or clinical psychologist, or as he has been already diagnosed, by even his GP on the tables to get a definitive view on this.

55. Finally regarding his mental health, I note that the mental health treatment  plan of 24 September 2016 ( see page 169 and 170 T docs ) prepared by  Dr Kurrle which is only about three months after the period I have to look at, indicates that things were progressing well at that stage in terms of his depression and his mental health.

56. Everything was normal except for poor sleep, impaired energy and he felt depressed. He was not suicidal and was doing very well in abstaining from alcohol. His appearance, concentration, appetite behaviour, mood, insight and judgement, speech, orientation recall and memory were all normal.

57. That does not seem to be the case now.  But I am dealing with June 2016 and having gone through those descriptors he would not qualify for any points under Table 5 as at that time.

    Other Conditions

58. His other issues seem to have either resolved (in the case of Hep C) or has not affected his functioning.

    CONCLUSION

59. As a result of the above as at June 2016, the Tribunal is only able to allocate the Applicant 5 points under table 3. That means I do not have to really consider anything apart from that. It also means that the decision of the AAT1 has to be affirmed by this Tribunal.

60. I would just like to add, with regard to his continued inability to work, that in my view it would be difficult for him to do any work because of the significant pain and problems he has with his arm and lower limb and to a lesser extent his worsening mental health problems he certainly could not do any work without training.

61. I would also not necessarily agree with the book assessment made by the JCA.  I think it would be difficult for him to do any physical jobs because of his injuries and especially because of his inability to use his left arm and his hands and the problems he has moving around because of his left leg injuries. I note also that he was a one finger operator of a computer which further complicates his ability to be retrained and reskilled.

62. There may be the potential for him to get suitable work somewhere in Australia, but he would need a lot of assistance.

63. However, as a result of my finding that he only qualifies for 5 points under the impairment tables I do not have to decide that issue.

64. Finally, I conclude by saying that as the Applicant’s circumstances seem to have changed and worsened since June 2016 he is entitled to submit a new application for the DSP at any time. Any fresh application should be supported by new reports by relevant health professionals, especially from his GP addressing the relevant Impairment Tables, commenting on the descriptors therein, and assigning him points for each condition.

    DECISION

65. The decision under review is affirmed.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

.....................[sgd]...................................................

Associate

Dated: 16 March 2018

Date(s) of hearing:	29 January 2018
Applicant:	In person
Advocate for the Respondent:	George Lozynsky
Solicitors for the Respondent:	Department of Human Services