Screen and Secretary, Department of Social Services (Social services second review)
[2016] AATA 173
•23 March 2016
Screen and Secretary, Department of Social Services (Social services second review) [2016] AATA 173 (23 March 2016)
Division
GENERAL DIVISION
File Number(s)
2015/4603
Re
Colin Screen
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Professor R McCallum AO, Member
Date 23 March 2016 Place Sydney The decision to cancel Mr Screen’s disability support pension is affirmed.
.................................[sgd].......................................
Professor R McCallum AO, Member
CATCHWORDS
Social Security – Disability Support Pension – DSP – review conducted – Applicant did not have 20 points under current Impairment Tables – DSP cancelled – whether Applicant has 20 points under the Impairment Tables – decision affirmed
LEGISLATION
Social Security Act 1991 ss 27, 94
Social Security (Administration) Act 1999 ss 63, 80
CASES
Re Ulukut and Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Professor R McCallum AO, Member
23 March 2016
INTRODUCTION
The Applicant, Mr Colin Screen lives in rural NSW. In June 2000, Mr Screen suffered a serious motorcycle accident, and he received injuries to his back, neck, knees and his right wrist. On 17 September 2005, he was granted Disability Support Pension (DSP).
Review by the Department
In December 2014, The Department of Human Services (the Department) decided to review whether Mr Screen was entitled to continue to receive DSP. Pursuant to powers granted by section 63 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), on 22 December 2014, the Department sent Mr Screen Medical Report review forms requesting that they be returned by 9 March 2015.
On his portion of the medical form, dated 6 January 2015, Mr Screen wrote that he was a chronic asthmatic, that he suffered from wrist problems, headaches, problems with both knees, back problems, leg pain and hernias.
Dr Doan who is Mr Screen's treating doctor, completed a medical form which is undated, but which was received by the Department on 27 March 2015. One of the questions on the form stated, "Does the patient have one or more medical conditions that have a significant impact on their ability to function?" Dr Doan answered "no".
Another question on the form stated, "Does the patient have any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function?" Dr Doan stated that Mr Screen suffered from a disc protrusion at C3-C4 (neck) as well as neck pain, back pain wrist and knee pain.
On 14 April 2015, the Department wrote to Mr Screen informing him that he no longer qualified for DSP because his impairments did not warrant an assessment of 20 points under the Impairment Tables which are to be found in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables).
The current Impairment Tables commenced operation on 1 January 2012 long after Mr Screen had commenced receiving DSP. However, pursuant to subsection 27(4) of the Social Security Act 1991 (Cth) (the SS Act), when reviewing whether or not DSP holders are still qualified, decision-makers are required to apply these Impairment Tables to the impairments of Mr Screen. Accordingly acting pursuant to section 80 of the Administration Act, Mr Screen's DSP was cancelled, with the cancellation taking effect on 26 May 2015.
Further medical reports
Dr Rajen Ragavan who is a senior rehabilitation consultant, wrote a report dated 29 April 2015. Dr Ragavan wrote in part as follows.
Thanks for referring Mr Screen who comes with a history of a motor vehicle accident in 2000 and at that time, he had injury to his right wrist, both knees and left leg. He had arthroscopic surgery on the right wrist and both knees a couple of years afterwards.
He now complains of a chronic pain syndrome involving the cervical spine, lumbar spine, both knees and right wrist.
First of all, I checked on the right wrist where the range of movement is normal even though it is a bit tender on palpation. The x-ray does not come up with anything very specific, but as he has chronic pain, I think it is worthwhile doing a CT scan to check on the structures in detail.
He does not have any latest scans of the knees and I am getting a simple x-ray done because of his pain and difficulty to weightbear sometimes and a history of swelling occasionally.
I had a look at the CT scan of the cervical spine and lumbar spine and I do not think anything major can be reported. On the cervical spine, we have a small right C3-C4 disc protrusion without any incidence. In the lumbar spine, we have early facet joint arthritis especially at L5-S1.
After the x-ray to the knees was completed on 30 April 2015, Dr Ragavan wrote a further report dated 5 May 2015. Dr Ragavan stated as follows.
I reviewed Mr Screen today and the x-ray of the knee shows only a minimal amount of arthritis on the medial compartments of both knees. I also had a chance to look at the CT scan of the wrist, which was a little bit more of arthritis.
The reviews
Mr Screen sought review from an Authorised Review officer (ARO), but on 10 June 2015 the ARO affirmed the cancellation decision.
Mr Screen sought review of the ARO’s decision from the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) which I shall refer to as the first review.
In its first review decision dated 10 August 2015, the AAT affirmed the cancellation decision because it assessed Mr Screen's impairments as warranting nil points under the Impairment Tables. The AAT first review further held that there was insufficient medical evidence concerning Mr Screen's hernias and asthma for them to be assessed under the Impairment Tables.
Mr Screen seeks a second review from this Tribunal.
THE LEGISLATION
The relevant provisions governing eligibility for DSP are to be found in the SS Act.
The criteria for DSP are set forth in section 94 of the SS Act. In Mr Screen's circumstances subsection 94(1) relevantly provides:
(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;
…
Put simply, I must be satisfied, first, that Mr Screen has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the Impairment Tables. Finally, I must be satisfied that Mr Screen has a continuing inability to work.
As Mr Screen received DSP prior to 2006, the issue of whether he has an inability to work must be decided under the applicable law at that time. Prior to 1 July 2006, 'work' was defined for the purposes of subsection 94(1)(c) as follows:
work means work:
(a) that is for at least 30 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person's locally accessible labour market.
It is also the case that Mr Screen is not subject to the program of support requirements under the current qualification for DSP set out under s94(2)(aa) of the SS Act.
CONCESSIONS OF THE RESPONDENT
At the hearing, the Respondent conceded that Mr Screen had the following impairments of injuries to his back, his wrist and knees, hernias and asthma.
ISSUES BEFORE THE TRIBUNAL
Given the Respondent's concessions, Mr Screen complies with subsection 94(1)(a) of the SS Act as he has impairments. Therefore, the first issue which I am required to decide is whether on 14 April 2015, that is the day of the cancellation decision, any of the impairments of Mr Screen have been fully diagnosed, treated and stabilised. If I find that any impairments have been fully diagnosed, treated and stabilised, I am required to assess them under the Impairment Tables.
The second issue which I am required to decide is whether Mr Screen has a continuing inability to work pursuant to subsection 94(1)(c) of the SS Act. It will not be necessary to decide whether or not Mr Screen has a continuing inability to work if I find that Mr Screen's impairments do not attain an assessment of 20 points under the Impairment Tables.
THE IMPAIRMENT TABLES
Section 94(1)(b) of the SS Act obliges me to decide whether on 14 April 2015 the impairments of Mr Screen are worth twenty points under the Impairment Tables. This requires a few words of explanation.
In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the Impairment Tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:
[5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.
[6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Importantly, impairments can only be assigned ratings under the Impairment Tables when the medical condition is permanent within the meaning of the term in the Impairment Tables and the impairment resulting from the condition is likely to persist for more than two years. The Impairment Tables provide at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and be likely to persist for more than two years.
Subsection 6(5) of the Impairment Tables 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 two years. Subsection 6(6) provides, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years.
It is also important to appreciate that under sub-section 10(5), if two or more conditions cause a common or combined impairment, then a single rating should be assigned in relation to that common or combined impairment under a single Table. However, sub-section 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
THE HEARING
Mr Screen attended the hearing by telephone and he gave sworn evidence.
Mr Screen recounted the circumstances of the motorcycle accident which occurred in June 2000. Mr Screen said that the car went through a stop sign and that he was hit and went over the car's bonnet and through the windscreen. He said that he suffered injuries to his back and neck, as well as broken fingers and a broken right wrist.
Mr Screen said that he also suffered injuries to his knees. He said that he cannot kneel down or stand for long periods. If he stands for too long he gets blood clots in his legs.
Mr Screen said that he can only walk a couple of hundred metres. He can get in and out of a chair by himself.
Mr Screen said that he can lift two kilograms, but that on occasions his wrist clicks out.
Mr Screen said that he can dress and wash himself. A person living in his house does the cooking and the laundry.
Mr Screen said that he can drive a car, but that on occasions he gets nerve spasms in his back. Mr Screen said that he can drive to the shops, that he can go in and put groceries into the shopping trolley. In cross-examination, Mr Screen said that four or five years ago he obtained his own truck licence. He worked for an employer delivering materials in a truck. He found continually getting in and out of the truck difficult. He said that he had three accidents and then he ceased employment.
Mr Screen said that he has hernias and asthma. He said he takes 500mg of Seratide, presumably on a daily basis. He said that he is constantly out of breath.
CONSIDERATION
The first issue which I am required to decide is whether on 14 April 2015, that is the day of the cancellation decision, any of the impairments of Mr Screen had been fully diagnosed, treated and stabilised. If I find that any impairments have been fully diagnosed, treated and stabilised, I am required to assess them under the Impairment Tables.
Disc protrusion at C3-C4
In his report which is quoted above, Dr Doan stated that Mr Screen suffers from a disc protrusion at C3-C4, together with neck and back pain.
Having regard to the evidence before me, I find that Mr Screen's disk protrusion, back and neck pain were fully diagnosed, treated and stabilised on 14 April 2015. The appropriate table to assess this impairment is table 4 of the Impairment Tables which is titled "Spinal function".
The descriptors for an assessment of a mild affect, that is for an assessment of 5 points under table 4 are as follows.
(1) The person has some difficulty in:
(a) activities overhead 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).
In his evidence before me, Mr Screen said that he can dress and wash himself and can drive a car.
In the first review decision, the AAT wrote as follows.
23. Mr Screen advised me that he can put items away in an overhead cupboard in the kitchen and can turn his neck without difficulty, excepted [sic] when he turns it to the left which causes him pain. He can bend down to pick something up from a coffee table, but needs to take care about the way he bends.
Having regard to this evidence and to the medical reports of Dr Doan and Dr Ragavan which I have quoted above, I find that Mr Screen's disk protrusion, neck and back pain do not fall within the mild descriptors in table 4 of the Impairment Tables. Therefore, I assess Mr Screen's disk protrusion, back and neck pain at nil points under table 4 of the Impairment Tables.
Wrist pain
Having regard to the evidence, I find that Mr Screen's wrist pain was fully diagnosed, treated and stabilised on 14 April 2015.
The appropriate table to assess this impairment is table 2 of the Impairment Tables titled "Upper limb function".
The descriptors for an assessment of a mild affect, that is for an assessment of 5 points under table 2 are as follows.
(1) The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b) handling very small objects (e.g. coins);
(c) doing up buttons;
(d) reaching up or out to pick up objects.
Mr Screen's impairment is pain and difficulty of movement in his right wrist. In his evidence before me, Mr Screen said that he can lift two kilograms, but sometimes his wrist pops out. Mr Screen said that he can go shopping and put groceries into a shopping trolley.
In the first review decision, the AAT wrote as follows.
30. Mr Screen advised me that sometimes his right wrists 'pops out' which causes him to scream in pain. He stated that he has a number of fingers on his left hand which were broken in a motor vehicle accident and he has a lot of arthritis. Mr Screen stated that he is right handed, but due to the pain in his right wrist he tends to favour using his left hand, which can lead to awkwardness when he shakes hands.
31. Mr Screen stated that he can write for a short time, and uses his left had to turn pages of a book and use a computer mouse. He said he is pretty basic on a computer and generally uses his left hand. Mr Screen stated that he usually carries things under his arm or will get a trolley. Mr Screen explained that it takes him along time to put on shoes, but he is okay with shoe laces and buttons. Mr Screen stated that he can lift both one and two litre cartons of liquid without any problems.
Having regard to the medical evidence in the two reports of Dr Ragavan which I have quoted above, and having regard to Mr Screen's evidence before me and to the findings of the first review, I find that Mr Screen's wrist pain does not fall within the mild descriptors in table 2 of the Impairment Tables. Therefore, I assess Mr Screen's wrist pain at nil points under table 2 of the Impairment Tables.
Knee pain
Having regard to the evidence, I find that Mr Screen's knee pain was fully diagnosed, treated and stabilised on 14 April 2015. The appropriate table to assess this impairment is table 3 of the Impairment Tables titled "Lower limb function".
The descriptors for an assessment of a mild affect, that is for an assessment of 5 points under table 3 are as follows.
(1) At least one of the following applies:
(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c) the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
…
In his report dated 5 May 2015 which I have quoted above, Dr Ragavan wrote that "I reviewed Mr Screen today and the x-ray of the knee shows only a minimal amount of arthritis on the medial compartments of both knees."
In his evidence before me, Mr Screen said that he can walk for 200 metres. He also said that he can get himself in and out of a chair. Mr Screen said that he couldn’t kneel down or do stairs.
In the first review decision, the AAT wrote as follows.
38. Mr Screen advised me that he is limited to walking to about 500 metres. He says that he drives to the supermarket and parks close to the door and is able to get himself around the supermarket. Mr Screen stated that he can stand for about an hour and finds stairs difficult, but he deals with it.
It is clear that Mr Screen does not comply with the two additional descriptors because from the evidence before me, he can stand for more than ten minutes and he can mobilise without the support of a lower limb prosthesis or walking stick.
Having regard to the evidence before me, I find that Mr Screen’s knee pain does not fall within the mild descriptors in table 3 of the Impairment Tables. Accordingly, I assess Mr Screen’s knee pain at nil points under table 3 of the Impairment Tables.
Other impairments
I accept that Mr Screen has hernias and that he suffers from Asthma. However, there is insufficient medical evidence before me to enable me to assess these impairments under the Impairment Tables.
Conclusion
I assess Mr Screen’s impairments at nil points under the Impairment Tables. Accordingly, I find that Mr Screen does not comply with subsection 94(1)(b) of the SS Act.
I find that on 14 April 2015, Mr Screen did not fulfil the medical requirements to receive DSP. Therefore, it is not necessary for me to examine whether Mr Screen had a continuing inability to work.
DECISION
The decision to cancel Mr Screen’s disability support pension is affirmed.
I certify that the preceding 58 (fifty -eight) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member .................................[sgd]......................................
Associate
Dated 23 March 2016
Date(s) of hearing 8 March 2016 Applicant By phone Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Social Security – Disability Support Pension
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Impairment Tables
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Medical Requirements
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