ROSE and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2011] AATA 692
•6 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 692
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/5386
GENERAL ADMINISTRATIVE DIVISION ) Re RONALD ROSE Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Egon Fice, Senior Member Date6 October 2011
PlaceMelbourne
Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal dated 4 November 2010. ..........[sgd] Egon Fice...............
Senior Member
SOCIAL SECURITY – Disability Support Pension – Continuing inability to work – Future capacity for work – Functional capacity examination – Lower Back Complaint – Amputated left little finger – Arthritis in knees – Gastro oesophageal reflux disease – Forestiers disease
Social Security Act 1991 (Cth) ss 94(1), 94(2), 94(4), 94(5)
Social Security (Administration) Act 1999 (Cth)
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris (2010) 114 ALD 560
REASONS FOR DECISION
6 October 2011 Egon Fice, Senior Member 1. At the conclusion of the hearing on 27 July 2011, I provided the parties with an indication of the outcome of this matter. I also provided a brief outline of my reasons for the view that Mr Ronald Rose’s application to this Tribunal must fail. Mr Rose requested written reasons for my decision. These are those reasons.
2. Mr Rose lodged a claim for the Disability Support Pension (DSP) with the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (the Secretary) on 26 May 2010. A Centrelink officer rejected Mr Rose’s claim because he was assessed as being able to work 15 hours or more per week within the next two years. Centrelink accepted that he had an impairment rating of more than 20 points.
3. Mr Rose sought review of Centrelink’s decision by the Social Security Appeals Tribunal (SSAT). On 4 November 2010 the SSAT decided to affirm Centrelink’s decision. On 13 December 2010 Mr Rose lodged an application with this Tribunal seeking a review of the SSAT decision. He said he was not happy with that decision without giving reasons why that was the case.
4.The issues before me are:
(a)whether Mr Rose’s medical conditions are fully documented, diagnosed, investigated, treated and stabilised;
(b)if the answer to (a) is in the affirmative, do his medical conditions rate at least 20 points on the DSP Impairment Tables; and
(c)if the answer to (a) and (b) is in the affirmative, whether Mr Rose has a continuing inability to work in that he is unable to do work of at least 15 hours per week or above within the next two years because of his medical impairment alone; or to undertake training activity within the next two years or, if so, would such activity be unlikely to enable him to do any work within two years.
THE RELEVANT MEDICAL CONDITIONS
5. This is Mr Rose’s second application for the DSP. His first application was lodged in 1996 and was rejected. This application was lodged with Centrelink on 26 May 2010. In his 1996 application, Mr Rose identified the following conditions or illnesses which stopped him from working:
(a)his left little finger had been amputated; and
(b)he suffered from a lower back complaint.
6. In support of his first application, Mr Rose presented a report from a treating chiropractor, Dr Warwick Tasker. Dr Tasker identified a sprain/strain of the lumbar spine and some degenerative changes. He also noted some minor problems with the cervical spine. Dr Tasker indicated the following treatments:
(a)rehabilitative exercises;
(b)chiropractic adjustments; and
(c)soft tissue therapy.
7. A second medical report was provided by Dr B Lloyd Myles, Mr Rose’s treating doctor. Dr Myles noted the crush injury on Mr Rose’s left hand and the amputation of the fifth finger. The only treatment prescribed by Dr Myles was exercise.
8. Mr J Das also provided a brief report referring to the amputation of Mr Rose’s left fifth finger. He noted that Mr Rose would be likely to be able to work full time in three months following that amputation.
9. Dr C Webster examined Mr Rose in respect of his first application for the DSP and recorded the abovementioned medical conditions. Dr Webster recorded that Mr Rose was medically fit for the work he was then undertaking or at least he would be fit to do so within 12 months. Dr Webster indicated that Mr Rose’s impairment did not prevent him from participating in educational or vocational training within the next two years nor did it affect his ability to participate in such a training program during the next two years.
10. In his second application for the DSP, which is the application before me, Mr Rose claimed that he suffered from the following illnesses or injuries:
(a)back injury;
(b)arthritis in the knees;
(c)GORD (gastro oesophageal reflux disease); and
(d)arthritis in one elbow
11. Mr Rose also noted that he attends his chiropractor every three weeks for treatment in respect of a spinal degenerative condition known as Forestiers disease. He said he was prescribed medication for that illness.
12. Dr Damien Cleeve provided a brief report following radiology. He reported that Mr Rose’s cervical spine disclosed normal spaces between the individual vertebral bodies and discs. There was minor facet joint osteoarthritis and no cervical rib or evidence of previous trauma. Dr Cleeve described Mr Rose’s thoracic spine as disclosing degenerative changes consistent with Forestiers disease with resultant increase in kyphosis (excessive curvature of the spine). There was no acute compression injury. His lumbar spine disclosed degenerative narrowing of the L5/S1 disc but no associated vertebral trauma. Shallow scoliosis to the left was noted. Dr Gopl Patel, who provided a supporting medical report, noted the condition of GORD and osteoarthritis. He described Mr Rose as suffering pain and discomfort in the chest and when bending down. He was taking medication for this illness. He described the condition of osteoarthritis as existing in his knee and back. Dr Patel also described Mr Rose as suffering from some anxiety and suggested relaxation therapy.
DSP IMPAIRMENT RATING
13. Section 94(1) of the Social Security Act 1991 (the Act) sets out the qualifications for the DSP. Insofar as it is relevant to Mr Rose’s case, it provides:
94Qualification for disability support pension
(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;
(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and ...
14. In order to succeed in his claim, Mr Rose must be assessed as having an impairment rating of at least 20 points under the Table for the Assessment of Work Related Impairment (the Impairment Tables) and he must have a continuing inability to work. The expression continuing inability to work is explained in s 94(2) of the Act in the following way:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
15.The expression work is defined in s 94(5) of the Act which provides:
work means work:
(a)that is for at least 15 hours per week at award wages or above; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
16. Schedule 1B of the Act provides instructions for the use of the Impairment Tables. Paragraph 4 of the introduction provides that a rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. As is set out in paragraph 5, a condition is considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years.
17. Other than recommended ratings provided in a job capacity assessment report by Ms Sharon Horwood, a psychologist, I have no material before me which allows me to find that Mr Rose’s back and knee conditions have been investigated, treated and stabilised. Although Centrelink made an appointment for an examination by an occupational physician, Dr Nathan Pastor, on 16 February 2011, Mr Rose indicated he did not wish to attend the appointment with Dr Pastor and he did not do so. Because a rating is only to be assigned after a comprehensive history and examination, I cannot accept the recommended impairment ratings assigned by Ms Horwood. There is no evidence that she conducted any form of examination and, I might add, nor does she appear qualified to examine Mr Rose regarding his back and knee complaints. On that basis alone, I find that Mr Rose has not received an impairment rating of 20 points or more under the Impairment Tables. If I am wrong about that, and in fact a job capacity assessor can assign a rating on the basis of another person’s comprehensive history and examination, then I would accept that Mr Rose has been assigned a rating of 20 points under the impairment tables and the only remaining question is whether he has a continuing inability to work. In doing so, I have noted that Dr Patel did not examine Mr Rose in May 2010 when he prepared his medical report. He did not answer question nine of the medical report which requires the medical practitioner to state the date of examination.
18. I am also aware that the Social Security (Administration) Act 1999 provides that the start date for a qualified DSP claimant is the date of lodgement of the claim. If a person is not qualified on the date of lodgement of the claim, they must become qualified within 13 weeks of lodging the claim. There is no evidence before me that Mr Rose qualified for the DSP between the date of his claim and 13 weeks thereafter.
ABILITY TO WORK
19. If it is the case that Mr Rose should be given 20 points or more under the Impairment Tables, the next question which arises is whether, despite his medical condition, he has a continuing inability to work. To satisfy the qualifying requirements set out in s 94(1)(c)(i), Mr Rose’s impairment must of itself be sufficient to prevent him from doing work for at least 15 hours per week at award wages or above; and it must of itself be sufficient to prevent him from undertaking a training activity during the next two years. If the impairment does not prevent him from undertaking a training activity, then it must be that any such activity is unlikely, because of his impairment, to enable him to do any work independently of a program of support within the next two years.
20. Section 94(4) explains what is meant by the expression independently of a program of support. The person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a)is unlikely to need a program of support … ; or
(b)is likely to need a program of support provided occasionally; or
(c)is likely to need a program of support that is not ongoing.
21. The reference to the expression any work in s 94(2)(a) of the Act must be read in the context of what follows in s 94(2)(b) (Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris (2010) 114 ALD 560 at 566).
22. The job capacity assessment report prepared by Ms Horwood suggests that Mr Rose has a current baseline work capacity of 15-22 hours per week. Ms Horwood reported that Mr Rose cannot return to his previous employment, however his medical conditions did not limit his work capacity in terms of light and/or sedentary work. He is able to remain seated in a suitable chair for up to two hours. He could undertake regular employment with regular breaks and opportunities to stretch and move about. Ms Horwood also found that Mr Rose’s future capacity to work within two years with intervention was 23-29 hours per week. It should also be pointed out that during a functional capacity examination, Mr Rose declined to undertake a number of tasks designed to assess his functional capacity on the ground that he did not wish to hurt his back. Although it was explained to him that the tasks were not designed or intended to exacerbate a pre-existing condition, he nevertheless refused to participate. As a result, the report concludes, an accurate picture of Mr Rose’s injury limitations was difficult to obtain.
23. The only report that might suggest an opposite conclusion is warranted is contained in a brief letter dated 19 May 2010 from Dr Remo Parente, a chiropractor. The relevant part of that letter simply states: Ron Rose is unable to work.
24. Dr Parente provided a more extensive report dated 9 August 2010 in which he explained that Mr Rose was receiving conservative treatment once every two weeks along with analgesia to assist symptoms. He explained that Mr Rose’s prognosis for recovery was poor and his condition was progressive. He said that Mr Rose was unable to work in a manual handling capacity although that was already the conclusion drawn by the job capacity assessor. Dr Parente also said that it had become apparent to him that there were many other social and psychological factors that make finding suitable work for Mr Rose impossible.
25. However, there were no other qualified practitioners who made any findings about the social and psychological factors referred to by Dr Parente. Therefore, if I were to accept that Mr Rose satisfies the qualifying conditions in s 94(1)(b) of the Act, I would nevertheless find that he has a current work capacity of 15-22 hours per week in light and/or sedentary work. Furthermore, with the intervention of a program of support, I would find that Mr Rose’s future capacity for work within two years is 23-29 hours per week in light and/or sedentary work. Accordingly, I find that the decision made by the SSAT on 4 November 2010 was correct. I affirm that decision.
I certify that the twenty-five [25] preceding paragraphs are a true copy of the reasons for the decision herein of
Egon Fice, Senior MemberSigned: ........[sgd]....................................................................
E. Montalto, AssociateDate of Hearing 27 July 2011
Date of Decision 6 October 2011
Representative for the Applicant Self RepresentedRepresentative for the Respondent Ms A Bramley, Centrelink Program Litigation and Review Branch
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