Sean Connlley and Secretary, Department of Social Services

[2014] AATA 710

[2014] AATA 710  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/6246
Re	Sean Connlley
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms A F Cunningham (Senior Member)
Date	30 September 2014
Place	Hobart

The decision under review is affirmed.

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Ms A F Cunningham (Senior Member)

CATCHWORDS

Social Security - disability support pension - disc prolapse and frozen shoulder -  required impairment rating of 10 points not satisfied - decision under review affirmed

LEGISLATION

Social Security Act 1991

Social Security (Administration) Act 1999

Administrative Appeals Act 1975

REASONS FOR DECISION

Ms A F Cunningham (Senior Member)

1. The applicant, Sean Connlley seeks the review of a decision of the Social Security Appeals Tribunal (SSAT) dated 14 November 2013 which affirmed a Centrelink decision not to grant his claim for Disability Support Pension (DSP). Mr Connlly’s claim was refused on the basis that he did not have 20 points impairment or a continuing inability to work (CITW).

2. The hearing was conducted by way of video link to Mr Connlley who appeared on his own behalf and gave oral evidence. Mr Sparkes appeared on behalf of the Secretary and tendered the T documents pursuant to section 37 of the Administrative Appeals Act 1975.

3. Mr Connlly’s claim for DSP is dated 26 June 2013. In the medical report which accompanied his application the treating doctor nominated two diagnosed conditions namely L5/S1 disc prolapse and frozen left shoulder. Both of these conditions are accepted as physical impairments under the qualification provisions for DSP. What remains in issue is whether Mr Connlley meets the qualification requirement for an impairment rating of 20 points and has a continuing inability to work.

4. Mr Connlley lodged a further claim to DSP on 19 March 2014 which was originally rejected by Centrelink but granted following an internal review. Mr Connelly maintained that there had been no change in his condition since the date of his original claim in July 2013 and contended that his eligibility for DSP should date from the date of his first claim. Mr Connlley claimed that no further medical evidence was available to the decision maker.  Mr Sparkes advised that Mr Connlley’s second claim was accepted on the basis of the contents of a Job Capacity Assessment Report prepared in March 2014 by a psychologist submitted in support of his further application.

   LEGISLATION

5. The qualification provisions for DSP are contained in section 94 of the Social SecurityAct 1991 (the Act) which provide:

   “(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% or more under the Impairment Tables; and

   (c)The person has a continuing inability to work; and

   (d)The person has turned 16; and

   (e)The person either:

   (i)      is an Australian resident at the time when the person first satisfies paragraph (c); or

   (ii)     has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

   (iii)    is born outside Australia and, at the time when the person first satisfies paragraph (c the person:

   (A)is not an Australian resident; and

   (B)is a dependent child of an Australian resident.”

6. The Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011 (the Determination) set out the Impairment Tables. Those relevant to Mr Connlley’s impairments are Table 2 – Upper  Limb Function with respect to his frozen shoulder and Table 4- Spinal Function with respect to his spinal disorder.

7. The Social Security (Requirements and Guidelines- Active Participation for Disability Support Pension) Determination 2011 set out the requirements and guidelines in relation to a program of support.

8. The Tribunal was also referred to the Guide to the Social Security Law and Guidelines issued by the Secretary which provide further explanation of the impairment tables and case studies.

9. Sections 41, 42 and Schedule 2 clause 3 of the Social Security (Administration) Act 1999 (Administration Act) provide that the qualification period derives from the date of the claim and within 13 weeks thereafter. The relevant period in this case is thus between 1 July 2013 and 4 October 2013.

   IMPAIRMENT RATING

10. The requirements set out in subsection 94 (1) are conjunctive and a failure to satisfy any one will result in a failure to qualify. The Secretary concedes that Mr Connlley satisfies the provisions of subsections (a), (d), (e) and (ea) but contends that he fails to meet the qualification criteria set out in subsection (b) with respect to impairment rating and (c) continuing inability to work.

11. The Job Capacity Assessment undertaken on 10 July 2013 with respect to Mr Connlley’s claim made on 1 July 2013, assessed an impairment rating of 10 points for his shoulder and upper arm disorder but did not consider his spinal disorder to be fully diagnosed, treated and stabilised such as to attract an impairment rating.

12. Part 2 of the Determination contains the rules for applying the Impairment Tables. Clause 6 (3) states that an impairment rating can only be assigned to an impairment if :

    “(a) the person’s condition causing that impairment is permanent; and

    (b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than two years.”

13. Sub-clause (4) provides that for a condition to be considered permanent it must be fully diagnosed by an appropriately qualified medical practitioner, be fully treated, fully stabilised and in light of available evidence, is more likely than not to persist for more than two years.

14. Sub-clause (5) states that in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, corroborating evidence of the condition should be provided.  In addition, evidence of treatment or rehabilitation and whether the treatment is continuing or is planned in the next two years.

15. Sub-clause (6) states that for a condition to be fully stabilised, either the 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, or, the person has not undertaken reasonable treatment for the condition and significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or there is a medical or other compelling reason for the person not to undertake reasonable treatment.

16. Sub-clause (7) contains an explanation of the term “reasonable treatment”. 

    Back condition

17. In the medical report accompanying Mr Connlley’s application for DSP completed by Dr Zohaib Pervaiz, it is stated that the date of onset of Mr Connlley’s L5/S1 disc prolapse was 2012 and that a referral had been made to Dr Edis. The condition was diagnosed on 17 April 2013. In the meantime treatment included OxyContin medication and physiotherapy. Dr Pervaiz reported that the impact on Mr Connlley’s ability to function was expected to persist for more than 24 months and that within that time his functionality would deteriorate.

18. Tendered in evidence was a copy of a letter dated 28 January 2014 written by Dr Pervaiz to Mr Connlley confirming that he had been referred to Dr Edis for the care of sciatica L5/S1 disc prolapse and that the usual waiting time to see Dr Edis in the public system was between 12 and 18 months.

19. The Job Capacity Assessment Report states that Mr Connlley reported injuring his back getting off a couch in March 2013. Whilst the condition was accepted as permanent the Job Capacity Assessor did not consider that the condition was fully diagnosed, treated and stabilised because significant improvement was likely to occur with ongoing or appropriate medical treatment within the next two years.

20. It is not apparent from the medical information accompanying Mr Connlley’s application for DSP how ongoing treatment was expected to result in a significant improvement in his back condition. Nevertheless I accept that at the time when Mr Connlley made his application for DSP in July 2013 there was insufficient medical information to confirm that his back condition which was only diagnosed in April 2013, had at that stage or within 13 weeks from the date of his application, been fully treated and fully stabilised. Mr Connlley had been referred to a specialist for further assessment and opinion and although the result has seen little if any improvement in Mr Connlley’s back condition, at the time of assessment of the claim, the outcome of further treatment was essentially unknown. For these reasons the original decision maker found that Mr Connlley’s back condition was not fully diagnosed, treated and stabilised such as to attract an impairment rating.

    Frozen shoulder

21. Dr Pervaiz reported that the date of onset of Mr Connlley’s frozen shoulder was on 2 December 2011 and that he was being treated with OxyContin and Panamax medication, cortisone injections and hydrodilation in 2012 at the Northwest Regional Hospital. Future planned treatment consisted of physiotherapy and pain management. Mr Connlley had consulted an orthopaedic surgeon on 11 October 2012. The impact of the condition and Mr Connlley’s ability to function was reported as expected to persist for more than 24 months and during that time, the effects would fluctuate.

22. The Job Capacity Assessor accepted that Mr Connlley’s left frozen shoulder was permanent and had been fully treated and stabilised as no significant improvement was likely to occur within the next two years. An impairment rating of 10 points was assessed under Table 2 for a moderate functional impact on activities. These activities include picking up a 1 L carton full of liquid; picking up a light but bulky object requiring the use of two hands together (e.g. a cardboard box); holding and using a pen or pencil; doing up or tying shoelaces; using a standard computer keyboard; and unscrewing a lid on a soft drink bottle.

23. These findings are consistent with the evidence given by Mr Connlley at the appeal hearing during cross-examination by Mr Sparkes and I accept that an impairment rating of 10 points is appropriate with respect to the impact of Mr Connlley’s frozen shoulder on his activities.

    CONCLUSION AND FINDINGS

24. Mr Connlley indicated that he was seeking a review of Centrelink’s decision on the basis that there has been no change in his lower back condition since it was first diagnosed shortly prior to his claim for DSP. Mr Connlley is now in receipt of DSP following a review of another decision that had initially rejected his claim. At the time of the claim which is the subject of this review, Mr Connlley had not seen a specialist and his treating GP had indicated that the effect of his condition on his ability to function was expected to deteriorate within the next two years. Subsequent CT and MRI scans have confirmed his condition and Mr Connlley contends that his referral to a specialist was only for a second opinion.

25. In the review of a decision the Tribunal is required to assess and weigh up the evidence that was available to the original decision maker. Evidence that subsequently confirms a claim cannot generally be considered. The Impairment Tables provide that evidence of symptoms as reported by a claimant can only be taken into account where there is corroborating evidence, generally from a medical practitioner.

26. The only medical evidence available to the original decision maker was the medical report accompanying Mr Connlley’s claim for DSP dated 25 June 2013. Mr Connlley’s back condition was only medically diagnosed on 17 April 2013 and he had yet to see a specialist at the time of lodging his claim.  In my view there was insufficient evidence upon which a decision could be made that at that time that Mr Connlley’s back condition was fully treated and stabilised. On the basis of this finding the condition could not be said to be permanent such as to attract an impairment rating.

27. In the absence of a permanent impairment rating of 20 points or more under the Impairment Tables, Mr Connlley failed to meet the qualification provisions for DSP and the decision under review must be affirmed.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision

herein of Ms A F Cunningham (Senior Member)

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Administrative Assistant

Dated   

Date(s) of hearing	27 August 2014
Applicant	In person
Solicitors for the Respondent	Brian Sparkes - Litigation and Review Branch