Secretary, Department of Social Services and Matthew Cox

[2015] AATA 183

[2015] AATA 183  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/6893
Re	Secretary, Department of Social Services
APPLICANT
And	Matthew Cox
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	27 March 2015
Place	Sydney

The Tribunal affirms the decision under review.

...........................................................

Senior Member J F Toohey

SOCIAL SECURITY – disability support pension – shoulder dislocations – chronic lymphoedema of right arm – scoliosis – ischaemic heart disease – whether left hand fully diagnosed – lymphoedema of right arm fully diagnosed treated and stabilised – whether rated 20 points – whether respondent had continuing inability to work – Tribunal satisfied respondent qualified for disability support pension during claim period – decision under review affirmed

Legislation

Social Security Act 1991 s 94

Social Security (Administration) Act 1999 s 42 and Sch 2

Secondary Materials

Guide to Social Security Law
Australian Oxford Dictionary

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

REASONS FOR DECISION

Senior Member J F Toohey

Introduction

1. Mr Matthew Cox is 43.  As a young man he suffered recurrent dislocations of both shoulders.  He underwent a reconstruction of his left shoulder when he was 19 and of his right shoulder when he was 22.  In about 2000, he developed metastatic melanoma.  In 2001, he underwent surgery to remove the lymph nodes under his right armpit followed by radiotherapy.  He now has chronic, painful lymphoedema of the right arm.  He also suffers from scoliosis and ischaemic heart disease. 

2. In February 2013, Mr Cox applied for a disability support pension (DSP).  Centrelink decided he did not qualify for the payment.

3. On 20 November 2013, the Social Security Appeals Tribunal (SSAT) decided that Mr Cox qualified for DSP and set aside Centrelink’s decision.  The Secretary seeks review of the SSAT’s decision.  For convenience, I will refer to the Secretary as “Centrelink”.

   Who qualifies for DSP?

4. The legislation concerning DSP is in the Social Security Act 1991 (the Act).  Section 94 provides that, to qualify for DSP, a person must have:

   (i) a physical, intellectual or psychiatric impairment, or impairments, which rated at 20 or more points according to the Impairment Tables in the Act; and

   (ii) a continuing inability to work as defined in the Act.

5. To qualify for DSP, Mr Cox had to satisfy these criteria on 11 February 2013 when he applied for DSP, or within 13 weeks, that is by 13 May 2013: s 42 and Sch 2 of the Social Security (Administration) Act 1999.  I will call this the claim period.

   The Impairment Tables

6. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. They comprise 15 Tables by which the functional impact of impairment is rated as nil, mild, moderate, severe or extreme, corresponding to zero, five, ten, twenty and thirty points.  Ratings are assigned according to descriptors in each Table.

7. A rating can only be given to an impairment if the condition causing it is permanent: cl 6(3)(a).  Permanent means that a condition is fully diagnosed by an appropriately qualified medical practitioner, is fully treated and fully stabilised, and is more likely than not to persist for more than two years: cl 6(4).

8. When deciding whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, consideration must be given to: whether there is corroborating evidence of the condition; what treatment or rehabilitation the person has had for the condition; and whether treatment is continuing or is planned in the next two years: cl 6(5).

9. Fully stabilised in cl 6 means either:

   (a) 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

   (b)       the person has not undertaken reasonable treatment for the condition and:

   (i) 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

   (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

   Mr Cox’s scoliosis and ischaemic heart disease

10. Mr Cox told Centrelink and the SSAT that his scoliosis was diagnosed 20 years ago, he has had physiotherapy in the past but otherwise no treatment; he cannot sit for long and his back has been “clicking a lot”.  Reports from his doctors show that, during the claim period, his scoliosis was “generally well managed” and had “minimal or limited impact” on his ability to function. 

11. Considering the descriptors in Table 4 (Spinal Function), Centrelink says that, assuming Mr Cox’s scoliosis was fully diagnosed treated and stabilised during the claim period, his condition has no functional impact, and rates nil points.

12. In relation to his ischaemic heart disease, reports from his doctors show that Mr Cox had a stent inserted after a myocardial infarct in 2008.  He takes Lipitor and other medications.  Considering the descriptors in Table 1 (Functions requiring Physical Exertion and Stamina), Centrelink says his ischaemic heart disease has no functional impact, and rates nil points.

13. Mr Cox does not take issue with Centrelink’s position in respect of his scoliosis and ischaemic heart disease.  I am satisfied that Centrelink’s position is correct and that both conditions rate nil points. 

    The issues

14. The requirements of a continuing inability to work are set out below at [79]. They include the requirement that a person actively participate in a program of support for at least 18 months in the 36 months immediately before claiming DSP: ss 94 (2) and (3B).  A person who has a severe impairment, meaning one that rates 20 points or more under a single Impairment Table, is not required to have actively participated in a program of support.

15. It is common ground that Mr Cox has not actively participated in a program of support.  It follows that, unless his right arm lymphoedema rated 20 points or more during the claim period, his claim for DSP cannot succeed.

16. Table 2 (Upper Limb Function) provides there is a moderate functional impact (10 points) on activities using hands or arms if the person has difficulty with most of the following:

    (a)       picking up a 1 litre carton full of liquid;

    (b)picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

    (c)       holding and using a pen or pencil;
    (d)       doing up buttons or tying shoelaces;
    (e)       using a standard computer keyboard;
    (f)        unscrewing a lid on a soft-drink bottle.

17. Centrelink agrees that Mr Cox has difficulty with most of these activities.

18. There is a severe functional impact (20 points) on activities using hands or arms if most of the following apply to the person:

    (a)the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;

    (b)the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;

    (c)the person has difficulty using a computer keyboard despite appropriate adaptations;

    (d)       the person has severe difficulty using a pen or pencil;

    (e)the person has severe difficulty turning the pages of a book without assistance.

19. The key issue in these proceedings is whether Mr Cox’s right arm lymphoedema rated 20 or more points during the relevant period.  If it did, it will remain to determine whether Mr Cox satisfied the other requirements of a continuing inability to work.

20. The SSAT was satisfied that Mr Cox’s lymphoedema of the right arm rated 20 points and that he had a continuing inability to work.  Centrelink contends that his right arm rated no more than 10 points and Mr Cox did not have a continuing inability to work.

    Information before the Tribunal

21. Centrelink has provided documents including claims by Mr Cox for DSP in 2009 and 2013, medical reports, reports of Job Capacity Assessments in March 2013 and December 2013, and internal Centrelink documents. 

22. Dr Dale Kong, occupational physician, and Dr Stephen Ng, consultant physician in occupational, environmental and musculoskeletal medicine, saw Mr Cox for assessment in March 2014 and June 2014 respectively.  They have provided written reports and gave oral evidence concurrently.

23. Following the hearing, Mr Cox saw Dr Phil Allen, orthopaedic surgeon, for assessment of his left shoulder, arm and hand.  Parties have provided written submissions in respect of his report.

24. Mr Cox gave evidence before the Tribunal.  He impressed as a truthful witness and no one suggests otherwise.

    Mr Cox’s claims

25. There were complications following the surgery in 2001 to remove the lymph nodes under Mr Cox’s right arm and he developed lymphoedema after the radiotherapy that followed.  He has had four serious infections in his right arm since.  He has constant pain from his shoulder through his elbow and wrist in his right arm and down into his fingers.  He has chronic swelling in his right arm and it frequently becomes severely swollen for up to a week.

26. Mr Cox has difficulty lifting with his right arm and using it for daily activities.  He compensates by using his left arm for activities such as showering and using a telephone; as best as he could recall, he uses his right hand to operate an ATM.  He says his left shoulder is gradually deteriorating and “clicks” as if the ligaments are snapping.  He says he has had a “constant tingling” sensation of pins and needles in “the bottom half” of both hands, mainly in the “bottom three fingers” ever since his shoulders first dislocated which he attributes to the reconstructions.  He gets pins and needles in the palm of his left hand and his hands go numb if he holds an object such as a telephone for too long.  He has “major problems” sleeping on either shoulder and can’t sleep on his stomach for fear of dislocating his left shoulder. 

27. Other than the fact that he has undergone a left shoulder reconstruction, Mr Cox makes little if any mention of his left arm and hand to Centrelink officers and he did not mention it in his claim for DSP.  He says his doctor who completed the report in support of his claim told him that the lymphoedema should be sufficient to secure the DSP.

28. In October 2002, Dr Wassenaar undertook a whole person assessment for Health Services Australia.  He recorded that Mr Cox had undergone two shoulder reconstructions and “now has occasional looseness of the left shoulder with certain reaching movements”.  He observed that Mr Cox “cannot lift the arm above shoulder height and has been advised to avoid heavy work with this arm”.

29. Given the evidence of the history of left shoulder dislocations and surgery, I accept Mr Cox’s explanation and am satisfied that the absence of reference to the left shoulder and arm does not mean he has no symptoms in that limb.

    Job Capacity Assessment

30. On 25 March 2013, Mr Cox saw a Job Capacity Assessor engaged by Centrelink.  The assessor recommended a rating of five points for his right shoulder and upper limb disorder.  She assessed his “baseline work capacity” and his capacity within two years with intervention as 15 to 22 hours.  She noted that the severity and chronicity of his symptoms was anticipated to remain unchanged but access to services was expected to “assist in sustaining the work capacity.”  Suitable work was identified as “light less skilled” work such as “light process work, ticket collector.”

31. On 29 August 2013, an Authorised Review Officer (ARO) sought an opinion from Centrelink’s Health Professional Advisory Unit as to the rating of Mr Cox’s right upper limb.  The Unit’s opinion, on the basis of the file, was that an appropriate rating for Mr Cox’s right arm was five or 10 points.  It noted the absence of medical evidence to support a finding in relation to his left upper arm. 

    Authorised Review Officer decision

32. On 29 August 2014, the ARO spoke to Mr Cox by telephone.  Her notes show that Mr Cox said he had constant pins and needles in his right arm due to nerve damage.  He said he had difficulties using a pen and his hands start to shake; he gets bad cramps in his wrist and forearm and is limited to about 20 words; he cannot tie his shoelaces or do up buttons; he has no strength in his left arm to open jars and is unable to use his right arm due to swelling; he cannot type more than five minutes and experiences pain while doing so; he is unable to turn pages in a book; he cannot pick up a one litre carton with his right hand and is awkward with his left and regularly drops items as he has no strength.

33. On 4 September 2013, the ARO decided that Mr Cox’s lymphoedema rated five points and that he had work capacity of 15 to 22 hours per week.  The basis for the work capacity decision is not clear though she might have thought it unnecessary to consider this question in detail given the rating she had assigned.

    SSAT decision

34. On 20 November 2013, the SSAT decided that Mr Cox qualified for DSP.

    Further Job Capacity Assessment

35. On 10 December 2013, a further assessment was undertaken by two job capacity assessors on the basis of the information on file.  They rated Mr Cox’s right shoulder and upper arm disorder as 20 points and stated:

    There is a severe functional impact on activities using hands and arms in that his right dominant arm is effectively non-functional and that he consequently has severe difficulty handling most objects and using a pen or pencil.

36. The assessors considered that Mr Cox had a “baseline work capacity” of 0 to 7 hours per week and his capacity within two years “with intervention” would be 8 to 14 hours per week.  They considered it “possible that with the assistance of an ESS provider to identify and access suitable work options, [his] work capacity could increase to a maximum of 14 hours per week.”  They identified suitable work as “light less skilled” and examples as “customer service”.

37. It is not clear what Centrelink made of this assessment but the current application indicates it was not accepted.

38. These varying opinions as to the rating of Mr Cox’s impairment and his capacity for work underline to some extent the difficulty in assessing his claim for DSP.

    Was Mr Cox’s left upper limb fully diagnosed treated and stabilised during the claim period?

39. Because the focus of Mr Cox’s claim was on his right arm lymphoedema, less attention was given by the doctors to his left arm and hand.  However, descriptors (a) and (c) of a severe rating under Table 2 require consideration, in different ways, of both limbs.  Descriptor (c) requires consideration in particular of both hands.  It is necessary, therefore, to consider whether any left upper limb impairment was fully diagnosed, treated and stabilised during the claim period. 

40. Dr Kong gave evidence that his discussion with Mr Cox about the use of his left arm was limited and he did not recall asking him about symptoms in that limb, or any numbness or tingling or pins and needles.  Given that he was asked to assess Mr Cox’s right arm lymphoedema, that is not surprising. 

41. Dr Ng gave evidence that he considered both Mr Cox’s upper limbs when assessing his functional capacity.  He was not specifically asked, for the purpose of his report or oral evidence, whether Mr Cox’s left arm and hand were fully diagnosed, treated and stabilised.  However, he found identical conditions in both shoulders, being “residual instability … following open reconstruction surgery for recurrent dislocation 24 [and 21] years ago with somatic referred symptoms of pain and paraesthesia in his left [and right] distal upper limb”.

42. Dr Ng gave evidence that Mr Cox’s left shoulder and arm has an underlying condition as a result of the past surgery, and that “potentially secondary neurological sequelae” would affect the function of his left arm “to a quite significant extent”.  In his view, Mr Cox would find it too difficult to retrain his left hand to be his dominant hand because his underlying left shoulder condition had caused increasing instability in that shoulder and he had residual pain and paraesthesia down his left arm and into his hand and weakness in his hand.

    Dr Allen’s report

43. At the conclusion of the hearing on 8 December 2014, it was agreed that further information should be sought about whether Mr Cox’s left upper limb was fully diagnosed, treated and stabilised.  It was agreed that Mr Cox would see Dr Phil Allen, orthopaedic surgeon, for assessment. 

44. Dr Allen saw Mr Cox on 23 January 2015.  He noted that Mr Cox had undergone surgery on his left shoulder at the age of 19 that appeared to have been successful in preventing further dislocations but he still had “ongoing subluxation (partial dislocation) in the left shoulder” with external rotation and abduction and overhead activity with the left arm, and a feeling of “catching and clicking” and discomfort on movement and when the shoulder partially dislocates.  Dr Allen recorded that Mr Cox had become quite accustomed to the instability in his shoulder and was able to relocate it himself. 

45. Dr Allen found reduced range of motion in Mr Cox’s left shoulder on abduction, forward elevation, internal and external rotation, adduction and extension, and it could not be subluxed anteriorly or inferiorly during examination.  He noted some clicking, apparently in the anterior part and subacromial areas of the shoulder.  He diagnosed “old recurrent left shoulder dislocation, treated surgically and now with early degenerative changes”.  He considered Mr Cox’s left shoulder condition was fully diagnosed.  He did not specifically state that it was also fully treated and stabilised but it is reasonable to read that inference from his report.

46. In relation to Mr Cox’s left hand, Dr Allen reported that Mr Cox had paraesthesia affecting the middle, ring and little fingers of his hand which also occurs on the contralateral side.  He said Mr Cox could not give him a clear account of when the paraesthesia started but he believed it was following the procedure on his left shoulder.  He told Dr Allen it is worse at night and wakes him from sleep; he has to flex his fingers to overcome the symptoms. 

47. Dr Allen thought the pattern of reported neurological abnormality in Mr Cox’s lower arm did not fit with either ulnar nerve entrapment at the elbow or a median nerve entrapment at the wrist, and he thought it possible Mr Cox had a longstanding traction injury to the brachial plexus.  He concluded that Mr Cox’s left hand was not yet fully diagnosed “and therefore not considered fully treated at this point”.  Referring to the fact that the condition had been “stable and stationary for more than a number of years now”, he thought it could be “considered fully stabilised but should further treatment be considered then this will need to be re-evaluated”.

    Consideration

48. I am satisfied that Dr Ng, Dr Kong and Dr Allen are all appropriately qualified for the purpose of diagnosing Mr Cox’s left upper limb condition.

49. Considering the requirement of the Impairment Tables that a condition be fully diagnosed, treated and stabilised before it can be considered permanent, there is apparent contradiction in Dr Allen’s assessment of Mr Cox’s left hand as not fully diagnosed but yet fully stabilised.  However, I am satisfied that his opinion is that it is not yet fully diagnosed.

50. Dr Allen came to the same diagnosis of Mr Cox’s left shoulder condition as Dr Ng and Dr Kong.  He had questions about his hand symptoms because they did not fit with nerve entrapment of the elbow or the wrist but he does not appear to have considered the explanation suggested by Dr Ng. 

1. On balance, I prefer Dr Ng’s opinion that Mr Cox’s left arm and hand symptoms are due to the recurrent dislocations and reconstruction of his left shoulder.  I accept that Mr Cox has experienced symptoms of numbness and pins and needles in his left hand since that time.  They may have become worse since he has been more dependent on his left arm but the nature of his symptoms has remained the same.  I accept that he has the same symptoms in his right hand.

2. There is no suggestion that further treatment would improve the condition of Mr Cox’s left upper limb.  I am satisfied that Mr Cox’s left arm and hand conditions were fully diagnosed, treated and stabilised during the claim period.

   Did Mr Cox have an impairment rating of 20 points or more?

3. Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table: cl. 10(5) of the Determination.  If both upper limbs are impaired, a single rating for their combined impairment is assigned under Table 2.

4. There is no dispute about the severity of the lymphoedema in Mr Cox’s right arm.  However, Centrelink submits that Table 2 requires a severe impairment in both hands or arms in order for 20 points to be assigned; in other words, that each of the descriptors be satisfied with respect to both arms or hands.  In my view, the structure and language of the Table is against that construction.  Descriptor (a) requires limited movement or coordination in both arms or both hands but no other descriptor requires that both be affected.  There is severe functional impact if the person has difficulty with most of the activities described.

5. It is not suggested that Mr Cox meets the descriptor for extreme functional impact (30 points).

6. Centrelink accepts that Mr Cox has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device, and that he satisfies descriptor (b).  The medical evidence supports that conclusion and I am satisfied it is correct.

7. Mr Cox agrees that he does not have severe difficulty turning the pages of a book without assistance, that he can use his left hand for this purpose, and he does not satisfy descriptor (e).  The medical evidence supports that conclusion and I am satisfied it is correct.

8. It remains to consider whether Mr Cox satisfies descriptors (a), (c) and (d).

9. Dr Ng assessed Mr Cox as having severely limited functional use of his hands; limited coordination in use of both hands for nearly all activities; severe difficulty handling, moving or carrying most objects, even when he could apply a compression bandage to his right upper limb; difficulty using a computer keyboard or performing computer related activities despite appropriate adaptations such as voice recognition; and severe difficulty using a pen or pencil with his dominant right hand. 

10. Dr Kong found Mr Cox’s lyphoedema “impacts his ability to use his right arm in any type of activity”.  He agreed he has “significant restriction in his right hand and arm in his daily activities”.  He agreed that Mr Cox tends to depend on his left hand for most activities including lifting, carrying and personal care but he did not explore this in detail with him.  He reported that Mr Cox is essentially computer illiterate and had never developed any significant computing related skills; on the rare occasions he uses a keyboard, he generally uses one finger.  Dr Kong thought it possible he could have appropriate adaptation although, given Mr Cox’s level of education and comparative illiteracy in computing skills, he doubted he would undergo such adaptation.  He thought Mr Cox capable of using a pen or pencil although he could not write for long periods.

    (a)the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional

11. In his report dated 11 March 2014, Dr Kong reported that, in his view, Mr Cox did not satisfy the descriptor for 20 points because that rating requires that “the person has limited movement or coordination in both arms or both hands, or has amputation rendering a hand or arm non-functional”.  He considered that Mr Cox’s “limitations in movement and coordination impact the right arm only.  His left arm would appear to be clinically normal.  As such the condition only impacts one arm.” 

12. Giving evidence, Dr Kong agreed that he did not undertake a clinical examination for the purpose of identifying any functional impairment of Mr Cox’s left arm and hand because he was not asked to.  He agreed that the brachial plexus, apprehension test and the grip tests used by Dr Ng were appropriate.  He agreed that his comment that his left arm “would not appear to significantly impact on his day to day living activity” was not based on any clinical examination.

13. Dr Kong’s opinion is not supported by Dr Ng or Dr Allen, both of whom found reduced range of movements in Mr Cox’s left shoulder.

14. Dr Ng reported on 24 June 2014 that Mr Cox’s left shoulder had more active forward flexion than his right, to 90°, but reduced abduction to 45°.  He had normal internal rotation but restricted external rotation to quarter of normal range.  He found residual instability of the left shoulder with somatic referred symptoms of pain and paraesthesia in his left distal upper limb.  As set out above, Dr Allen found reduced range of motion in Mr Cox’s left shoulder on abduction, forward elevation, internal rotation and extension, and it could not be subluxed anteriorly or inferiorly during examination. 

15. I accept Dr Ng’s and Dr Allen’s evidence.  I am satisfied that Mr Cox has limited movement in both arms and satisfies this descriptor.

    (c)the person has difficulty using a computer keyboard despite appropriate adaptations

16. Mr Cox gave evidence that he does not own a computer but he has used a laptop in the past.  He says he is “not computer literate”.  He says he would only have sat at the computer at home once or twice in the past couple of years.  He occasionally shows his grandchildren where keys are by pointing with his left hand.  He gets pain in his wrist if he types.

17. Dr Kong thought Mr Cox did not meet this descriptor.  In his view, Mr Cox had reasonable prospects of making adaptations in using his left arm because he does so already for many daily living activities and activities requiring him to lift or carry.  He thought the main barrier in terms of adaptation would be in Mr Cox using his left hand “for more technological related roles such as keyboard use”.  Given Mr Cox’s level of education and comparative illiteracy in computing skills, he doubted he would undergo such adaptation.

18. Giving evidence Dr Kong said that, although he did not clinically examine Mr Cox’s left arm, “he described enough function in the left hand in his history to say that [adaptation physically] is a possibility”.  However, he did not put it higher than a possibility and agreed that more detailed assessment would be needed in order to properly assess whether it was an appropriate adaptation to use his left hand.  He still thought it was a “realistic possibility”. 

19. Dr Ng gave evidence that he did not believe Mr Cox could use his left upper limb to adapt to the dysfunction of his right in order to operate a keyboard or mouse because of the underlying condition of the instability in his left shoulder which resulted in brachial plexus tension and somatic referred symptoms to his left hand.

20. Centrelink submits that the problem with this descriptor is that Mr Cox has never tried with his left hand and says the preponderance of the evidence is that he could adapt if he tried. 

21. On balance, I am satisfied that Mr Cox meets this descriptor.  I am not sure that use of his impaired left hand could properly be considered “appropriate adaptation” but, even allowing that it is, I am satisfied he would still have difficulty using a keyboard because of his left hand.  I accept Dr Kong’s opinion that Mr Cox’s level of education and computer illiteracy would complicate matters but I am satisfied that his physical impairment would be the principal cause of his difficulty.  I note that, although Dr Kong thought Mr Cox did not meet this descriptor, he did not put adaptation higher than “possible”.

    (d)       the person has severe difficulty using a pen or pencil

22. Mr Cox gave evidence that he “doesn’t really write that much”; he “probably filled out a couple of forms here and there”.  He uses his right hand.  He has never used his left for writing.  When he does write, he gets cramping in his wrist and fingers from just holding a pen.  He can write half a page before his hand tires and cramps.  He said he completed his claim for DSP “over a couple of days” for a combination of reasons to do with having to think about his answers and because of his writing ability.

23. Dr Ng thought Mr Cox would have severe difficulty using a pen or pencil with his dominant right hand, and his ability to adapt to his left was limited by his symptoms in his left arm.  Dr Kong disagreed and said Mr Cox is capable of using a pen or pencil although cannot write for long periods.

24. Giving evidence, Dr Kong said that, in saying Mr Cox was “capable of using a pen and pencil” he meant he was able to do so.  He accepted that Mr Cox could only write for a few minutes at a time before he experienced cramping, and that pain in cramping significantly limited his ability to write for prolonged periods.  Nevertheless, while he thought Mr Cox has difficulty writing, he did not think his difficulty was severe and he still has the capacity to write up to half a page at a time, based on his own description.  He thought that Mr Cox would have difficulty in roles where it was important that he write for prolonged periods but, if it involved more limited use, he would be able to manage it.

25. Dr Ng thought Mr Cox had severe difficulty using a pen or pencil with his right hand.  He gave evidence that, as a result of his left shoulder condition, Mr Cox has pain, sometimes paraesthesia, and weakness in his hand, all of which would contribute to his inability to adapt to using his left hand, and to retrain his left hand into fine motor skill including writing.

26. Whether Mr Cox has difficulty or severe difficulty using a pen or pencil is a matter of degree.  Severe in the Australian Oxford Dictionary means, relevantly:

    5. arduous or exacting, making great demands on energy, skill etc

27. According to the Guide to Social Security Law at 3.6.3.20:

    An activity listed under a descriptor is not taken as being able to be performed if it can only be done once or rarely, it needs to be able to be undertaken repetitively.

28. Use of a pen or pencil is usually a repetitive action, especially for work purposes.  I accept Mr Cox’s claims about his limited ability to use a pen or pencil.  On balance, I am satisfied that he has severe difficulty performing this activity.  If I am wrong about that, Mr Cox would nevertheless satisfy most of the descriptors in Table 2 for a rating of 20 points.

    Did Mr Cox have a continuing inability to work?

29. One of the criteria for a continuing in ability to work is that, unless a person has a severe impairment, meaning one which rates 20 points or more under a single Impairment Table, he or she must have actively participated in a program of support: s 94(2).  As Mr Cox has a severe impairment, the fact that he has not actively participated in a program of support is no bar to his claim.

30. The other requirements of a continuing inability to work are that:

    (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.

31. After leaving school at the age of 14, Mr Cox worked as a factory hand at a furniture factory, a welder and a landscape gardener.  He got in trouble with the law and spent time living on the streets and in and out of juvenile remand centres until he was 18 years old when he moved to a new area.  He formed a relationship, which has since ended, and had two daughters.  When he was 22 he started working as an air-conditioning installer.  He worked in the air-conditioning industry on and off up until 2010 when he became self-employed and had an apprentice to help him with heavy manual handling tasks.  He gave that work away in 2012 “for personal reasons”.  He also says he could not continue because of worsening of his right upper limb as well as his left.  He spent two periods of several months in jail in 2013.  He has no other formal trades or qualifications.

32. Dr Ng gave evidence that the significant impairment in Mr Cox’s right arm and hand would prevent him from participating in a program of support or other “employment enhancing program”. He took into account that, looking at Mr Cox’s work history and that he relied on an apprentice to do “most of the manual work” in his last two years of employment, realistically there would be a significant amount of manual work involved in any employment, even as a supervisor or foreman. 

33. Dr Ng did not think Mr Cox could work for at least 15 hours a week given his impairment.  He thought the sort of work he could realistically do, even with training, would involve a significant amount of manual work. In his view, Mr Cox’s impairment:

    … does prevent him from undertaking educational, vocational training, vocational rehabilitation or work-related training within next two years because lymphoedema of his right upper limb and somatic referred symptoms to both hands following reconstructive surgery to both shoulders are restricting and will continue to restrict him from using both hands in any repetitive or prolonged use of his hands in manual handling tasks, fine manipulating activities or even computer related activities despite any adaptation such as voice recognition.

34. In relation to Mr Cox’s ability to work, Dr Kong reported on 11 March 2014:

    Mr Cox has spent his entire working life in a labouring capacity.  This has predominantly been in the areas of welding, landscape and air conditioning installation.  He has limited schooling and by his own description describes himself as only having basic arithmetic skills.  He is largely computer illiterate.  I feel that all these factors would significantly impact upon any possibility of retraining him into a more sedentary work capacity.  On the physical basis alone he has no restrictions in terms of lifting his left arm.  However in terms of his right arm he is not suitable for repetitive lifting or carrying, pushing or pulling with this arm.  He would also not be fit to lift more than 2 kg with this arm.  He would also not be fit to work above waist height with the right arm.

35. For the reasons discussed above, I do not accept Dr Kong’s assessment that Mr Cox “has no restrictions in terms of lifting his left arm”.

36. As to whether Mr Cox’s lymphoedema condition of itself was sufficient to prevent him from undertaking a training activity, Dr Kong stated:

    No.  Mr Cox’s barriers to training activities have been described [above].  In terms of his lymphoedema condition alone I feel that this would not be a barrier to vocational training.  His main barriers are generally related to his previous level of education and lack of any transferable skills at this time.

37. Dr Allen was not asked to comment on whether Mr Cox had a continuing inability to work.

38. On balance, I prefer Dr Ng’s opinion to that of Dr Kong.  Overall, I found Dr Ng’s evidence more considered and he took into account the full range of Mr Cox’s impairments.  I accept that Mr Cox’s lack of education and lack of transferable skills would make retraining difficult for him but I am satisfied that the combined impairment of his upper limbs would, of itself, have prevented him from doing any work independently of a program of support within the two years following the claim period and was of itself sufficient to prevent him from undertaking a training activity during that period.

    Conclusion

39. Taking into account all of the information before me, I am satisfied that Mr Cox qualified for DSP during the claim period and I affirm the decision of the SSAT.

1.          I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. 

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Associate

Dated 27 March 2015

Date(s) of hearing

8 and 16 December 2014

Date of further submissions

11 March 2015

Representatives for the Applicant

Ms Tracey Stevens, Counsel

Ms Geraldine Read, Legal Aid

Representatives for the Respondent

Dr Stephen Thompson, Solicitor