Shane Blackman and Secretary, Department of Social Services

[2014] AATA 638

[2014] AATA 638 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/0648
Re	Shane Blackman
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member R W Dunne
Date	4 September 2014
Place	Adelaide

The Tribunal affirms the decision under review.

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

Senior Member R W Dunne

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension – physical, intellectual or psychiatric impairment – whether impairment rating of 20 points or more existed under the Impairment Tables – whether "continuing inability to work" – Job Capacity Assessment reports – reports of treating general practitioner – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth), cl 4 of Schedule 2

SECONDARY MATERIALS

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

Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member R W Dunne

4 September 2014

INTRODUCTION

1. Shane Blackman is the applicant in this case.  On 24 January 2014, the Social Security Appeals Tribunal (“SSAT”) affirmed an earlier decision made by an Authorised Review Officer (“ARO”) of the respondent on 25 November 2013 to reject the claim for disability support pension (“DSP”) lodged by the applicant on 26 October 2012.  The applicant has applied to this Tribunal for review of the decision of the SSAT.

2. At the hearing, Mr Blackman was self-represented and the respondent was represented by Mr C Visser (from the Program Litigation and Review Branch, Department of Human Services).  I admitted into evidence the T Documents[1] lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, together with the following exhibits:

   ·medical report for DSP from Dr Gary Clothier dated 24 October 2012;[2] and

   ·letter from Dr Gary Clothier dated 7 April 2014.[3]

   [1] Exhibit R1.

   [2] Exhibit A1.

   [3] Exhibit A2.

   ISSUE FOR THE TRIBUNAL

3. The legislation that applies in this case is contained in the Social Security Act 1991 (“Act”) and the Social Security (Administration) Act 1999 (“Administration Act”).

4. The issue for the Tribunal, in relevantly considering s 94 of the Act, is whether Mr Blackman was qualified to receive DSP on the date of his claim, being 26 October 2012, or within 13 weeks, that is by 25 January 2013 (“Claim Period”).

5. In respect of the Claim Period, the respondent accepted that Mr Blackman had a physical, intellectual or psychiatric impairment.  The respondent did not accept:

   (a)that the impairment attracted an impairment rating of at least 20 points under s 94(1)(b) of the Act; and

   (b)that Mr Blackman had a “continuing inability to work”, because of his impairment, within the meaning of s 94(1)(c)(i) and ss 94(2), (3), (3B) and (3C) of the Act.

6. The respondent also accepted that Mr Blackman had actively participated in a program of support for at least 18 months as required by s 94(2)(aa) of the Act.

   LEGISLATION

7. The criteria for the grant of DSP are set out in the provisions of s 94 of the Act, which relevantly read:

   “Qualification 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

   (d)   the person has turned 16; and

   (da) in a case where the following apply:

   (i)the person is under 35 years of age;

   (ii)the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;

   (iii)if the person has one or more dependent children—the youngest dependent child is 6 years of age or over;

   the person meets any participation requirements that apply to the person under section 94A; 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

   (ii)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;

   and the person becomes an Australian resident while a dependent child of an Australian resident; and

   (ea) one of the following applies: 

   (i)    the person is an Australian resident;

   (ia)the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

   (ii)the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

   Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

   Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.

   Continuing inability to work

   (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that: 

   (aa) in a case where a 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).

   (3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to: 

   (a)   the availability to the person of a training activity; or

   (b)   the availability to the person of work in the person's locally accessible labour market.

   (3A) If:

   (a)     a person is receiving disability support pension; and

   (b) the Secretary gives the person a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension;

   then paragraph (2)(aa) if this section does not apply in relation to that assessment.

   Severe impairment

   3(B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

   Example 1:A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.

   Example 2:A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.

   Example 3:A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.

   Active participation in a program of support

   3(C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

   (3D) The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).

   (3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).

   Doing work independently of a program of support

   (4)A 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 such a program of support provided occasionally; or

   (c)   is likely to need such a program of support that is not ongoing.

   (5)   Other definitions

   In this section: 

   program of support means a program that:

   (a)     is designed to assist persons to prepare for, find or maintain work; and

   (b)     either:

   (i)is funded (wholly or partly) by the Commonwealth; or

   (ii)is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.

   training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments: 

   (a)   education;

   (b)   pre-vocational training;

   (c)   vocational training;

   (d)   vocational rehabilitation;

   (e)   work-related training (including on-the-job training).

   work means work: 

   (a)   that is for at least 15 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.”

8. Also relevant in these proceedings is cl 4(1) of Schedule 2 to the Administration Act, which reads:

   “4  Start day—early claim

   (1)   If:

   (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

   (b)the person is not, on the day on which the claim is made, qualified for the payment; and

   (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

   (d)the person becomes so qualified within that period;

   the claim is taken to be made on the first day on which the person is qualified for the social security payment.

   …”

   SOCIAL SECURITY (TABLES FOR THE ASSESSMENT OF WORK-RELATED IMPAIRMENT FOR DISABILITY SUPPORT PENSION) DETERMINATION 2011 (“Impairment Tables”)

9. The Impairment Tables were previously set out in Schedule 1B to the Act. They are now contained in the above Determination, which relevantly reads:

   “Part 2 - Rules for applying the Impairment Tables

   …

   6        Applying the Tables

   Assessing functional capacity

   (1)   The impairment of a person must 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.

   Applying the Tables

   (2)   The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.

   Note:  For additional information that must be taken into account in applying the Tables see section 7.

   Impairment ratings

   (3)   An impairment rating can only be assigned to an impairment if:

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

   Note:  For permanent see subsection 6(4).

   (b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   Example:      A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.

   Permanency of conditions

   (4)   For the purposes of paragraph 6(3)(a) a condition is permanent if:

   (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

   (b)the condition has been fully treated; and

   Note:     For fully diagnosed and  fully treated see subsection 6(5).

   (c)the condition has been fully stabilised; and

   Note:     For fully stabilised see subsection 6(6).

   (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   Fully diagnosed and fully treated

   (5)    In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

   (a)whether there is corroborating evidence of the condition; and

   (b)what treatment or rehabilitation has occurred in relation to the condition; and

   (c)whether treatment is continuing or is planned in the next 2 years.

   Fully stabilised

   (6)   For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

   (a)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 2 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 2 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.

   Note:          For reasonable treatment see subsection 6(7).

   Reasonable treatment

   (7)   For the purposes of subsection 6(6), reasonable treatment is treatment that:

   (a)is available at a location reasonable accessible to the person; and

   (b)is at a reasonable cost; and

   (c)can reliably be expected to result in a substantial improvement in functional capacity; and

   (d)is regularly undertaken or performed; and

   (e)has a high success rate; and

   (f)carries a low risk to the person.

   …”

10. The above Determination describes the various Tables and the descriptors relating to the functional impact on activities relating to the medical condition in each Table.  Table 4 relates to activities involving spinal function, and reads:

    “Part 3 – The Tables

    …

    Table 4 – Spinal function

Introduction to Table 4

·   Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.

·   The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·   Self-report of symptoms alone is insufficient.

·   There must be corroborating evidence of the person’s impairment.

·   Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:

• a report from the person’s treating doctor;
• a report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
• a report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.

·   In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.

Points

Descriptors

0

There is no functional impact on activities involving spinal function.

(1)   The person can:

(a)   bend down to pick a light object off the floor (e.g. a piece of paper); and

(b)   turn their trunk from side to side; and

(c)   turn their head to look to the sides or upwards.

5

There is a mild functional impact on activities involving spinal function.

(1)   The person has some difficulty in:

(a)   activities over head 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).

10

There is a moderate functional impact on activities involving spinal function.

(1)   The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)   the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)   the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)   the person is unable to bend forward to pick up a light object placed at knee height; or

(d)   the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

20

There is a severe functional impact on activities involving spinal function.

(1)   The person is unable to:

(a)   perform any overhead activities; or

(b)   turn their head, or bend their neck, without moving their trunk; or

(c)   bend forward to pick up a light object from a desk or table; or

(d)   remain seated for at least 10 minutes.”

SOCIAL SECURITY (REQUIREMENTS AND GUIDELINES – ACTIVE PARTICIPATION FOR DISABILITY SUPPORT PENSION) DETERMINATION 2011

1. This Determination sets out what must be taken into account in determining whether a person has actively participated in a program of support for the purposes of determining whether the person in qualified for DSP.  The Determination relevantly reads:

   “Part 1          Preliminary

   …

   3.        Interpretation

   In this Determination:

   Act means the Social Security Act 1991.

   designated provider means any of the following:

   (a)a Job Services Australia provider;

   (b)a Disability Employment Service;

   (c)an Australian Disability Enterprise;

   (d)a provider authorised by a State or Territory government to conduct a transition to work program;

   (e)a provider authorised by the relevant workers’ compensation authority of the Commonwealth, or of a State or Territory, as a result of a claim made under the relevant legislation of the Commonwealth, State or Territory;

   (f)a provider authorised by an insurer as a result of a claim under a contract of insurance for an accident (including a motor vehicle accident), sickness or other trauma;

   (g)a provider that provides a program that satisfies paragraph (a) and subparagraph (b)(ii) of the definition of program of support in subsection 94(5) of the Act.

   …”

   “Part 2          Requirements for active participation

   5.        Requirements for active participation

   (1) A person has actively participated in a program of support if:

   (a)       the person has:

   (i)        complied with the requirements of the program of support; and

   (ii)participated in a program of support during the 36 months ending immediately before the relevant date of claim; and

   (b)subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support; and

   (c)       subsection (6) is satisfied in relation to the person and the program of support.

   (2) This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months.

   (3) This subsection is satisfied in relation to a person and a program of support if:

   (a)       the duration of the program of support was less than 18 months; and

   (b)       the person completed the program.

   (4) This subsection is satisfied in relation to a person and a program of support if:

   (a)       the program of support was terminated before the relevant date of claim; and

   (b)the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to find, gain or remain in employment through continued participation in the program.

   (5) This subsection is satisfied in relation to a person and a program of support if:

   (a)at the relevant date of claim, the person is participating in the program of support; and

   (b)the person is prevented, solely because of his or her impairment, from improving his or her capacity to find, gain or remain in employment through continued participation in the program.

   (6) This subsection is satisfied in relation to a person and a program of support if the person provides the Secretary with the following in relation to the program of support:

   (a)the details of the designated provider of the program;

   (b)the dates when the person began the program and, if applicable, ceased the program;

   (c)the reason for ceasing the program (if any);

   (d)any period of non-participation in the program including exemptions, reliefs, or suspensions from the program;

   (e)the reason for any period of non-participation in the program;

   (f)the terms of the program that were specifically tailored to address the person’s level of impairment, individual needs, barriers to employment and capacity to work;

   (g)the terms with which the person had to comply in order to satisfy the program requirements and the level of compliance with those terms;

   (h)the vocational, rehabilitation or employment activities the person participated in as a part of the program;

   (i)the frequency of contact that the person had with the designated provider of the program.

   Part 3  Guidelines

   6.        Program of support

   In deciding whether the Secretary is satisfied that a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act, the Secretary must consider whether the program of support:

   (a)was provided by a designated provider; and

   (b)was specifically tailored to address the person’s level of impairment, individual needs and barriers to employment; and

   (c)provided vocational, rehabilitation or employment services with a particular focus on developing skills the person requires to improve the person’s capacity to find, gain or remain in employment (including self-employment); and

   (d)includes at least one of the following activities;

   (i)job search;

   (ii)job preparation;

   (iii)education and training;

   (iv)work experience;

   (v)employment;

   (vi)return to work;

   (vii)vocational or occupational rehabilitation;

   (viii)injury management;

   (ix)an activity designed to assist the person to return to, maintain or obtain employment.

   7.        Material to be taken into account

   In deciding whether the Secretary is satisfied that a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act, the Secretary may take into account any material or document that:

   (a)relates to the person’s participation in a program of support; and

   (b)relates to a program of support undertaken in the 36 months prior to the relevant date of claim.”

   BACKGROUND

1. The material facts in this case are not in dispute and are largely extracted from the respondent’s statement of facts and contentions.

2. In his claim for DSP,[4] Mr Blackman listed his sole impairment as “Back condition”.[5]  He also indicated that he received “Newstart allowance”.[6]  As part of his claim for DSP, he also lodged a “Medical Report – Disability Support Pension” completed by Dr Gary Clothier and dated 24 October 2012.[7] 

   [4] Exhibit R1, T9.

   [5] Exhibit R1, T9 page 119.

   [6] Exhibit R1, T9 page 127.

   [7] Exhibit R1, T18.

3. A Job Capacity Assessment (“JCA”) was conducted by Mr Matthew Mitchell, registered psychologist, on 1 November 2012 to assess the applicant’s qualification for DSP.[8] The JCA assessed the applicant’s impairments as “spinal disorder”, “neck disorder” and “hypertension”. The JCA found that the spinal disorder and the neck disorder were fully diagnosed, fully treated and fully stabilised and could be assigned impairment points under the Impairment Tables. The applicant’s spinal condition was rated at zero under Impairment Table 4, as was the applicant’s neck condition.[9]  A decision was made to reject the applicant’s claim for DSP and an ARO reviewed and affirmed the decision.  The SSAT affirmed the decision of the ARO and found that the applicant should be assigned zero impairment points under Impairment Table 4.

   [8] Exhibit R1, T24.

   [9] Exhibit R1, T24 pages 258 & 259.

4. On 7 April 2014, Mr Blackman provided a letter from Dr Clothier[10], which included the following:

   “… With reference to the Social Security Tables for Assessment of Work-related Impairment for a Disability Support Pension, Page 21, Mr Blackman reaches 20 points; he cannot remain seated for at least 10 minutes.”

   EVIDENCE

   [10] Exhibit A1.

   Evidence of Mr Blackman

5. It was Mr Blackman’s evidence that when he lodged his claim for DSP he was suffering from an injury to his back which caused his hip to ache every day.  He had been under Dr Clothier’s care since 2007 with persistent back pain.  His MRI showed a degenerative L4/5 intervertebral disc and facet joint degeneration.  His medical condition still restricted his activity and he was unable to undertake lighter work.  In the time since then, his back pain had increased.

   Evidence of Dr Clothier

6. Dr Clothier gave his evidence by telephone.  He said that, in October 2012[11], the applicant was suffering increasing pain and had a number of injections for facet joint pain.  However, the applicant was still experiencing restrictions on his sitting ability.  Dr Clothier was referred to the JCA of Mr Mitchell dated 1 November 2012, where the assessor reported Dr Clothier as saying:

   “…

   Medical Report … lists a condition of L4/5 disc annular tear with facet joint pain stating that this was confirmed by MRI on 11/12/06.  History is outlined as ‘many years of left lbp and buttock pain’ especially when bending, lifting and twisting.  Current symptoms are reported as continuous low back pain, walking very limited, standing limited to 1 hour, sitting 1 hour, and sleep is undisturbed. …”[12]

   [11] Exhibit A1,

   [12] Exhibit A2, Letter of Dr Clothier dated 7 April 2014..

7. The Tribunal referred Dr Clothier to further extracts from the JCA, which read:

   “Client reported he undertook basic ADLs.  He went shopping, kept room tidy, did some cooking, some vacuuming, did his own washing.  He advised that chronic pain limited his social interactions.  He was able to drive a car and catch public transport.  He was able to bend and pick objects off the floor.  Self care was not affected.

   …

   with [sic] regard to impact, client reports he can no longer go fishing, cannot stand for more than 2 hours, cannot do the gardening for more than 2 hours and cannot do any digging in the grden.[sic]

   Client reports he can kneel and squat.

   Client reports driving is not preblematic [sic] and can sit for around 1 to 2 hours.

   client [sic] reports lifting tolerance of around 10-15kg

   He reports turning from side to side is okay and reported he is able to pick up object from the floor.

   Client reports he can manage stairs and overhead work, but would have difficulty walking more than 2 flights of stairs and mainly has difficulty with activities after 1 to 2 hours.”[13]

   Dr Clothier said he did not check on what activities the applicant had engaged in.  He said he could not comment as he had nothing in his notes.

   [13] Exhibit R1, T24 page 256.

8. When he was referred to his letter dated 7 April 2014, Dr Clothier said that he could not say that the applicant reached 20 points under the Impairment Tables when he lodged his claim for DSP on 26 October 2012 or in the following period to 25 January 2013. He said he had nothing in his notes. When the Tribunal referred him to his comment in his letter that the applicant could not remain seated for at least 10 minutes, the Tribunal said in passing that the applicant had actually been seated in the hearing room for more than 10 minutes. Dr Clothier said he would have to accept what the Tribunal was saying.

   Evidence of Mr Mitchell

9. Mr Mitchell also gave his evidence by telephone.  When referred to his comments in his report outlined in paragraph 14 above, Mr Mitchell said the comments were taken from an Employment Services Assessment report in September 2012.  He said contemporaneous notes would be taken and he would write his report within a day or two of the assessment.  He would take 40-45 minutes to write his report.  When questioned further, Mr Mitchell said that he was unable to assess physical impairments.  He said that these impairments were assessed by an exercise psychologist and he would confer with the psychologist in preparing his report.

10. When cross-examined by the applicant, Mr Mitchell said that there were guidelines provided to enable the assessment of ratings in the Impairment Tables. As there were different descriptors in each Table, if an impairment fell between two impairment ratings, the lower of the two would be assigned and the higher rating would not be assigned unless the descriptors for that level of impairment were satisfied.

    CONSIDERATION

    Was the applicant qualified to receive DSP during the Claim Period (from 26 October 2012 to 25 January 2013)?

11. To qualify for DSP, Mr Blackman must satisfy the relevant requirements of s 94 of the Act. In other words, he must be qualified for DSP on the date of his claim or within the period of 13 weeks following. Thus, the primary question is whether Mr Blackman satisfied the relevant criteria in s 94 at any time during the Claim Period, rather than whether he satisfied those criteria at a time after the Claim Period.

12. One of the relevant criteria for DSP is whether an applicant suffered an impairment (or impairments in combination) which attracted an impairment rating of 20 points or more under the Impairment Tables (see s 94(1)(b) of the Act). In this regard, the rules for applying the Impairment Tables in Part 2 of the appropriate Determination are relevant (see paragraph 9 above). Sections 6(3) to s 6(6) of Part 2 relevantly require that:

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

    (b)the condition has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and has been fully stabilised and the condition is more likely than not to persist for more than two years; and

    (c)a condition is fully stabilised if 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.

13. When Mr Blackman lodged his DSP claim, he claimed to only be suffering from “Back condition”.  In his medical report dated 27 August 2012, Dr Clothier diagnosed the back condition as degenerative L4/5 intervertebral disc and facet joint pain.[14]  In a subsequent medical report, Dr Clothier diagnosed Mr Blackman’s back condition in a similar way.

    [14] Exhibit R1, T17, page 215.

14. In his JCA report dated 1 November 2012, Mr Mitchell assessed the applicant’s spinal disorder and neck disorder as having ratings of “zero” under Table 4 of the Impairment Tables. In his JCA report, Mr Mitchell has said:

    “Client reported he undertook basic ADLs.  He went shopping, kept room tidy, did some cooking, some vacuuming, did his own washing.  …  He was able to drive a car and catch public transport.  He was able to bend and pick objects off the floor.  Self care was not affected. 

    …

    Client reports he can kneel and squat.

    Client reports driving is not preblematic [sic] and can sit for around 1 to 2 hours.

    client [sic] reports lifting tolerance of around 10-15kg

    He reports turning from side to side is okay and reported he is able to pick up object from the floor.

    Client reports he can manage stairs and overhead work …”

15. The ARO and the SSAT agreed with this assessment.  With regard to the applicant’s medical conditions of “hypertension” and “aortic stenosis”, the Tribunal notes that the applicant did not list either of these conditions in his DSP claim, writing only that he had a “back condition”.  These two other conditions are not listed as “conditions that have a significant impact” by Dr Clothier.  Only “hypertension” is listed as a condition that is “generally well managed and that cause minimal or limited impact on ability to function”.  The aortic stenosis it not mentioned at all as a medical condition of the applicant.

16. The respondent contends that, in his letter dated 7 April 2014, Dr Clothier does not indicate if he is making his assessment of the applicant’s impairment as at 7 April 2014 or at the applicant’s date of claim, namely 26 October 2012 (some 17 months earlier). In this regard, Table 4 of the Impairment Tables indicates that there is a severe functional impact on activities involving spinal function if the person is unable to:

    (a)perform any overhead activities; or

    (b)turn their head, or bend their neck, without moving their trunk; or

    (c)bend forward to pick up a light object from a desk or table; or

    (d)remain seated for least 10 minutes.

    In his evidence, Dr Clothier indicated that he could not say that the applicant had 20 points under the Impairment Tables on 26 October 2012 or following to 25 January 2013. He said he did not have anything in his notes to be able to make this assessment.

17. The respondent contends that Mr Mitchell’s finding in the JCA report that the applicant’s spinal condition should be assigned “zero” impairment points at the applicant’s date of claim is the preferable conclusion. The Tribunal agrees with this contention. As Mr Visser said, a rating of zero impairment points does not mean that the applicant does not have a medical condition affecting his spine. However, when assessed under the Impairment Tables, it is the respondent’s contention that the correct impairment rating under those Tables is a zero rating. The Tribunal agrees that the applicant’s spinal condition cannot be assigned 20 impairment points under Impairment Table 4, as such an assessment is entirely inconsistent with the applicant’s description of his impairments to Mr Mitchell (in the JCA) and to the SSAT.

    CONCLUSION

18. On the evidence and having regard to the requirements of Table 4 of the Impairment Tables, particularly the descriptors for a rating of 20 impairment points, the applicant does not satisfy the requirements of s 94(1)(b) of the Act. It follows that he was not qualified for DSP at the time he made his claim and during the Claim Period.

19. Having so decided and like the decision of the SSAT, it is not necessary for the Tribunal to consider whether the applicant also had a continuing inability to work.

    DECISION

20. The Tribunal affirms the decision under review.

I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

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Administrative Assistant

Dated  4 September 2014

Date of hearing	14 August 2014
Applicant	In person
Advocate for the Respondent	Mr C Visser
Solicitors for the Respondent	Program Litigation and Review Branch Department of Human Services