Sharp and Secretary, Department of Social Services (Social services second review)
[2017] AATA 65
•25 January 2017
Sharp and Secretary, Department of Social Services (Social services second review) [2017] AATA 65 (25 January 2017)
Division:GENERAL DIVISION
File Number(s): 2016/4598
Re:Martin Sharp
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D K Grigg
Date:25 January 2017
Place:Brisbane
The Tribunal affirms the decision under review.
...................................[sgd]......................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period - whether program of support completed – whether continuing inability to work - decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)CASES
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368
REASONS FOR DECISION
Member D K Grigg
25 January 2017
INTRODUCTION
On 29 December 2015 Mr Sharp lodged a claim for Disability Support Pension (“DSP”).[1]
[1] Exhibit 1, T Documents, T26, pages 104-135, Mr Sharp’s Claim for DSP dated 29 December 2015.
To date Mr Sharp’s claim for DSP has been rejected. Mr Sharp seeks a further review by this Tribunal.
Claim History
A Job Capacity Assessment (“JCA”) was conducted on 11 March 2016 (“2016 JCA”) and reported that Mr Sharp suffers from a musculo-skeletal disorder, Chronic Obstructive Pulmonary Disease (COPD), osteoarthritis of both hips and Hiatus Hernia.[2] The 2016 JCA concluded that Mr Sharp’s impairments were either not fully treated or not fully stabilised or did not attract an impairment rating of at least 20 points.[3] Mr Sharp’s claim was then rejected by a Centrelink officer on 1 April 2016.[4]
[2] Exhibit 1, T Documents, T30, pages 141-146, Job Capacity Assessment Report dated 15 March 2016.
[3] Exhibit 1, T Documents, T30, pages 141-146, Job Capacity Assessment Report dated 15 March 2016.
[4] Exhibit 1, T Documents, T32, pages 158-159, Centrelink Decision dated 1 April 2016.
Mr Sharp then sought a review of that decision by an Authorised Review Officer (“ARO”).[5] The subsequent review by the ARO was unsuccessful on the grounds that Mr Sharp’s conditions were either not fully treated or not fully stabilised or did not attract an impairment rating of at least 20 points.[6]
[5] Exhibit 1, T Documents, T33, page 160, Mr Sharp’s application for review dated 11 April 2016.
[6] Exhibit 1, T Documents, T36, pages 165-171, Authorised Review Officer decision and notes dated 3 June 2016.
Mr Sharp then lodged an application for review with the Social Services and Child Support Division (“SSCSD”). The SSCSD determined that Mr Sharp’s conditions were permanent, however it rejected Mr Sharp’s application on the grounds that his impairments did not attract an impairment rating of 20 points.[7]
[7] Exhibit 1, T Documents, T2, pages 3-13, SSCSD’s Decision and Reasons for Decision dated 3 August 2016.
Mr Sharp has sought a review of the SSCSD’s decision by this Tribunal.[8]
[8] Exhibit 1, T Documents, T1, pages 1-2, Mr Sharp’s application for review dated 29 August 2016.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mr Sharp must have a physical, intellectual or psychiatric impairment/s.
(b)Mr Sharp’s impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work‑related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[9]
(c)Mr Sharp must have a continuing inability to work. [my emphasis]
[9] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Sharp meets the Section 94 Requirements is the date of the claim (in this instance as at 29 December 2015), unless Mr Sharp becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[10] Therefore, in order to qualify for DSP Mr Sharp must have met the Section 94 Requirements between 29 December 2015 and 29 March 2016 (“Qualification Period”).
[10] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration)
Act 1999 (Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Sharp’s impairments after the Qualification Period cannot be considered unless it “casts light on” the functional impact of the impairments in the Qualification Period.[11]
DID MR SHARP HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[11] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]
and on appeal, Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
What is an Impairment
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[12]
[12] Determination, s 3.
Mr Sharp’s Medical Conditions
In his DSP claim Mr Sharp:
(a)records his medical conditions as (Claimed Medical Conditions):[13]
Lumbar facet joint arthritis
Degenerative disc disease
Avascular necrosis
COPD
(b)says his Claimed Medical Conditions affect his functional ability as follows:[14]
Can only walk 50 – 100 mtrs before I have to sit…painful both sitting and walking…cannot even lift a baby… I cannot walk at all without a walking stick
[13] Exhibit 1, T Documents, T26, pages 104-135, Mr Sharp’s Claim for DSP dated 29 December 2015.
[14] Exhibit 1, T Documents, T26, pages 104-135, Mr Sharp’s Claim for DSP dated 29 December 2015.
Dr Sean Farotimi, general practitioner, described Mr Sharp’s conditions in his report supporting Mr Sharp’s DSP claim as “Avascular necrosis of the left hip” and “Asthma”.[15] Dr Farotimi reported that Mr Sharp is in “severe pain” and that these conditions affect Mr Sharp as follows:-[16]
unable to fully weight bear on left leg
Severe impairment in mobility, difficulty with standing from sitting, difficulty with balance, inability to lift/carry objects, need for cane support in daily living
[15] Exhibit 1, T Documents, T31, pages 147-157, Medical report form completed by Dr Farotimi received by
Centrelink on 26 March 2016.
[16] Exhibit 1, T Documents, T31, pages 147-157, Medical report form completed by Dr Farotimi received by
Centrelink on 26 March 2016.
An MRI scan conducted in March 2015 and an X-ray, conducted in January 2016, of Mr Sharp’s pelvis and both hips indicated avascular necrosis of the left hip.[17]
[17] Exhibit 1, T Documents, T15, page 77, MRI Report of Dr Jean Haddad dated 7 March 2015 and T27, page 136,
X-ray report of Dr R. Langford, Radiologist dated 21 January 2016.
The 2016 JCA, conducted face-to-face with Mr Sharp by a Registered Psychologist and Registered Occupational Therapist, reported that Mr Sharp suffered from:[18]
·Avascular necrosis of the left hip which was fully diagnosed. However, because, at that time Mr Sharp was not accessing any treatment, the condition was assessed as not fully treated and not fully stabilised.
·COPD which was found to be fully diagnosed, fully treated and fully stabilised.
·Osteoarthritis of both hips which was found to be fully diagnosed, fully treated and fully stabilised.
·Hiatus Hernia which was found to be fully diagnosed but not fully treated and not fully stabilised.
[18] Exhibit 1, T Documents, T30, pages 141-146, Job Capacity Assessment Report dated 15 March 2016.
In relation to the Hernia, I note that there is a brief reference in Mr Sharp’s patient summary of his suffering from a hiatus hernia in 2012.[19] The 2016 JCA refers to this condition but notes that there is no date of onset or treatment details provided. However, I note that Mr Sharp reported at the 2016 JCA that this condition does not impact on his functional capacity.[20] Mr Sharp confirmed before me that the hernia does not impact on his functional capacity and does need to be considered in relation to his DSP claim.
[19] Exhibit 1, T Documents, T28, page 137, full patient summary as at 22 January 2016.
[20] Exhibit 1, T Documents, T30, page 143, Job Capacity Assessment Report dated 15 March 2016.
The Secretary accepts that Mr Sharp had Impairments which satisfied section 94(1)(a) during the Qualification Period, namely a hip and spinal condition and COPD.[21] I am satisfied on the medical evidence that that is correct and that Mr Sharp had Impairments which satisfied section 94(1)(a) during the Qualification Period.
DO MR SHARP’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
[21] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 12 December 2016, at para 22.
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[22] They are function based[23] and designed to assign ratings to determine the level of functional impact of impairment (Impairment Rating) and not to assess conditions.[24]
[22] Determination, ss 4(2) and 5(2)(a).
[23] Determination, s 5(2)(b) and (c).
[24] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[25]
(a)Mr Sharp’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 2 years.
[25] Determination, see s 6(3).
The requirement that a condition must be “permanent” is a requirement which applies as at the date the claim for a pension is lodged, or during the Qualification Period.[26]
[26] De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA
368, at [12].
Mr Sharp’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[27]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[27] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[28] the following is to be considered:[29]
(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.
[28] For the purposes of ss 6(4)(a) and (b) of the Determination.
[29] Determination, see s 6(5).
A condition is fully stabilised[30] if:[31]
(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;[32] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[30] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[31] Determination, see s 6(6).
[32] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it then has to be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an impairment rating using the Impairment Tables can be assigned.
Before applying the Impairment Tables I must first consider Mr Sharp’s medical history, in relation to the condition causing the Impairments.[33]
[33] Determination, see s 6(2).
I will now consider each of Mr Sharp’s Impairments.
Avascular necrosis of the left hip
Is Mr Sharp’s left hip impairment permanent and likely to persist for at least 2 years?
The Chronic Disease Management Plan prepared by Dr Farotimi on 10 March 2015 sets out that the required treatment for Mr Sharp’s left hip impairment was “analgesia and hip replacement” and that he needs to be reviewed by an orthopaedic team.[34]
[34] Exhibit 1, T Documents, T16, pages 78-80, Chronic Disease Management Plan prepared by Dr Farotimi dated 10
March 2015.
Dr Nielson, from the Department of Orthopaedics at Cairns Base Hospital, provided a Medical Certificate on 29 April 2015 describing Mr Sharp’s left hip condition as permanent and that the treatment for the condition was ongoing orthopaedic review.[35]
[35] Exhibit 1, T Documents, T19, page 89, Medical Certificate provided by Dr Nielson dated 29 April 2015.
In May 2015 Dr Farotimi described Mr Sharp’s left hip condition as “temporary” and that the treatment for the condition was ongoing orthopaedic review, analgesia and rehabilitation.[36]
[36] Exhibit 1, T Documents, T21, page 92, Medical Certificate provided by Dr Farotimi dated 18 May 2015.
In June 2015 Dr Ben Parkinson, an orthopaedic surgeon, reported that Mr Sharp told him he was not keen on having surgery. Dr Parkinson said there is no rush but he suspected that he “will end up with a total hip replacement in the future”. Dr Parkinson says “once his pain becomes bad enough we will then do the hip replacement”.[37]
[37] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 12 December 2016, Attachment C,
Medical Report of Dr Parkinson 11 June 2015.
In October 2015 Dr Jamie Crowe reported that Mr Sharp may require a left hip replacement to treat this condition.[38]
[38] Exhibit 1, T Documents, T23, page 98, Medical Certificate provided by Dr Crowe dated 8 October 2015.
Dr Crowe confirmed, at an Employment Services Assessment, that as at October 2015 a total hip replacement was not planned but that Mr Sharp may undergo treatment within the next 2 years to significantly improve the condition.[39]
[39] Exhibit 1, T Documents, T25, page 100-103, Employment Services Assessment Report dated 7 December 2015.
In Mr Sharp’s DSP claim form he writes “I do not believe I can get an operation within the next 6 years”.[40]
[40] Exhibit 1, T Documents, T26, page 130, Mr Sharp’s Claim for DSP dated 29 December 2015.
The 2016 JCA reported that Mr Sharp had declined an orthopaedic review and does not take any pain medication for this impairment. As a result, the JCA concluded that Mr Sharp’s left hip impairment was not fully treated and not fully stabilised.[41]
[41] Exhibit 1, T Documents, T30, pages 141-146, Job Capacity Assessment Report dated 15 March 2016.
As at November 2016 Mr Sharp was (and he still is) waiting for further orthopaedic review. Cairns Hospital has notified Mr Sharp that his referral for review has been categorised as Category 2 and that he will be notified as soon as an appointment becomes available.[42] No surgery is currently scheduled.
[42] See Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 12 December 2016, Attachment A,
Letter from Cairns Hospital to Mr Sharp dated 4 November 2016.
There is no doubt that Mr Sharp’s left hip impairment has been fully diagnosed. However, other than past use of analgesics, the recommended surgical treatment has not taken place. The Secretary submits that the hip replacement surgery is reasonable treatment and because he has not had this treatment his left hip Impairment was not fully treated and fully stabilised in the Qualification Period.[43]
[43]See Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 12 December 2016, para 36.
The Secretary pointed out that Mr Sharp has had no orthopaedic review since June 2015. In June 2015 Mr Sharp was reviewed by Dr Parkinson, orthopaedic surgeon, and he reported that he would like to review Mr Sharp again in 8 weeks time. Mr Sharp did not have any subsequent review.
Mr Sharp explained that the reason he had not attended any further review and had not sought further review until late 2016 was for several reasons. First, at the time he saw Mr Parkinson he was still recovering, and was heavily medicated with morphine, from having suffered a spontaneous secondary pneumothorax in April 2015 (related or resulting from his COPD).[44] He says he was not, as a result in a position to contemplate or undertake surgery at that time. Second, he was homeless and he was concerned about how/where he would recover from such surgery as a result. There is evidence to corroborate that Mr Sharp informed Centrelink that he was homeless in January 2016,[45] although I note that Dr Parkinson made no reference to this in his report of June 2015.[46] However, there is no evidence of Mr Sharp having been prescribed morphine. It is not listed in the Queensland Health Discharge Summary; further, the hospital recommended that Mr Sharp should no longer require opioid analgesia.[47] Mr Sharp says it was prescribed by his general practitioner but again there is no corroborating evidence of that.
[44] Exhibit 1, T Documents, T18, Pages 85-88, Queensland Health Discharge Summary for hospital admission from
17 April 2015 to 23 April 2015.
[45] Exhibit 1, T Documents, T37, pages 174-175, Documented contact between Centrelink and Mr Sharp on 12 and
13 January 2016.
[46] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 12 December 2016, Attachment C,
Medical Report of Dr Parkinson 11 June 2015.
[47] Exhibit 1, T Documents, T18, Pages 85-88, Queensland Health Discharge Summary for hospital admission from
17 April 2015 to 23 April 2015.
A further reason Mr Sharp said he had not sought surgery and review until recently was because he had no confidence in Cairns Base Hospital and was reluctant to have surgery there.
It is clear from the medical evidence available that the recommended medical treatment is for a total hip replacement to be performed. Mr Sharp acknowledged before me that he requires this treatment. Until that has occurred Mr Sharp’s left hip impairment cannot be taken to have been fully treated or stabilised during the Qualification Period. Therefore, during the Qualification Period, this impairment was not permanent (as defined in section 6(4) of the Determination) and no Impairment Rating can be assigned.
Mr Sharp submitted that in paragraph 41 of the Secretary’s Statement of Facts, Issues and Contentions dated 12 December 2016, the Secretary had accepted this condition was permanent and should be assigned an Impairment Rating of 10 points. However, as was explained by me and Ms Smith for the Secretary, that submission was only an alternative submission made in the event that the Tribunal found this condition was permanent.[48]
Chronic Obstructive Pulmonary Disease (COPD)
[48] See Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 12 December 2016, paras 38-39.
Is Mr Sharp’s COPD impairment permanent and likely to persist for at least 2 years?
In 2012 Dr Crowe reported that Mr Sharp’s COPD impairment was permanent.[49]
[49] Exhibit 1, T Documents, T7, page 54, Medical Certificate provided by Dr Crowe dated 12 November 2012.
In 2013 Dr Lapenga, General Practitioner, reported that Mr Sharp’s COPD, and associated emphysema, was being treated with Spiriva and Ventolin and the condition was likely to have an uncertain impact on Mr Sharp’s ability to function for more than 24 months.[50] Dr Lapenga reported that the condition affected Mr Sharp’s endurance, increased his fatigue and decreased his exertion capacity.
[50] Exhibit 1, T Documents, T9, pages 56-66, Medical Report of Dr Lapenga dated 28 August 2013.
Dr Monks provided a medical certificate for Mr Sharp on 2 September 2014 which provided that the condition was permanent and stabilised.[51]
[51] Exhibit 1, T Documents, T11, page 72, Medical Certificate provided by Dr Monks dated 2 September 2014.
The Chronic Disease Management Plan prepared by Dr Farotimi on 10 March 2015 sets out that the required treatment for Mr Sharp’s COPD impairment was to “ensure control of symptoms”.[52]
[52] Exhibit 1, T Documents, T16, pages 78-80, Chronic Disease Management Plan prepared by Dr Farotimi dated 10
March 2015.
On 17 April 2015 Mr Sharp was admitted to hospital suffering from spontaneous secondary pneumothorax. The Discharge Summary provided that the COPD should be monitored and treated.[53]
[53] Exhibit 1, T Documents, T18, pages 85-88, Queensland Health Discharge Summary for hospital admission from
17 April 2015 to 23 April 2015.
A JCA conducted on 19 June 2015 (“2015 JCA”) reported that Mr Sharp’s COPD impairment was permanent and that there was no likely new future treatment within the next 2 years to significantly improve the condition.[54]
[54] Exhibit 1, T Documents, T22, pages 93-97. JCA Report dated 21 July 2015.
The JCA conducted on 11 March 2016 confirms the conclusions of the earlier JCA report.[55]
[55] Exhibit 1, T Documents, T30, pages 141-146, JCA Report dated 15 March 2016.
The Secretary accepts that Mr Sharp’s COPD Impairment is permanent and was fully diagnosed, fully treated and fully stabilised in the Qualification Period.[56]
[56] See Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 12 December 2016, para 30.
I find that during the Qualification Period Mr Sharp’s COPD Impairment was permanent and likely to persist for at least 2 years.
Using The Impairment Tables
I have to assess the level of impact of Mr Sharp’s COPD impairment against the descriptors[57] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[58]
[57]Determination, see ss 3 and 5(3).
[58] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of impairment.
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.[59]
[59] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[60]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[60] Determination, see s 7.
I must not take into account the following information in applying the Tables:[61]
(a)symptoms reported by Mr Sharp in relation to his condition where there is no corroborating evidence;
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Sharp’s local community.
[61] Determination, see s 8.
Which Tables are appropriate are determined by:[62]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[62] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[63]
[63]Determination, see s 10(3).
If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[64]
[64]Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[65]
[65]Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[66]
[66]Determination, see s 11(5).
Evidence Identifying The Loss Of Function
Mr Sharp reported at the 2016 JCA that his COPD impacts on his ability to function as follows:[67]
…Only able to walk short distances and relies on friends to give him lifts to community facilities.
…Independent of all daily tasks but…that he would not be able to undertake any heavy tasks.
[67] Exhibit 1, T Documents, T30, page 141-146, Job Capacity Assessment Report dated 15 March 2016.
In 2013 Dr Lapenga reported that the condition affected Mr Sharp’s endurance, increased his fatigue and decreased his exertion capacity.[68]
[68] Exhibit 1, T Documents, T9, pages 56-66, Medical Report of Dr Lapenga dated 28 August 2013.
The 2015 JCA reported that Mr Sharp’s current symptoms resulting from the COPD impairment included “shortness of breath…on exertion, reduced exercise tolerance” and that this condition did not prevent Mr Sharp from using public transport without substantial assistance.[69] The 2015 JCA concluded that the COPD was having a mild functional impact on activities requiring physical exertion or stamina.
[69] Exhibit 1, T Documents, T22, pages 93-97. Job Capacity Assessment Report dated 21 July 2015.
In December 2015, an Employment Services Assessment Report concluded that Mr Sharp’s COPD may “inhibit his ability to sustain heavy, labour intensive work options”.[70]
[70] Exhibit 1, T Documents, T25, page 100-103, Employment Services Assessment Report dated 7 December 2015.
The JCA conducted on 11 March 2016 confirms the conclusions of the earlier JCA report.[71]
[71] Exhibit 1, T Documents, T30, pages 141-146, Job Capacity Assessment Report dated 15 March 2016.
The question is what is the relevant Table to be considered and what, if any, Impairment Rating should be assigned.
Relevant Impairment Table And Impairment Rating
In light of the evidence I consider that Table 1 of the Determination, which deals with Functions requiring Physical Exertion and Stamina, is the relevant Table.
The introduction to Table 1 provides that:
·Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
·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 purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);
oa report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);
oresults of exercise, cardiac stress or treadmill testing
The Secretary submits that an appropriate Impairment Rating is 5 points.[72] Mr Sharp submitted before me that he agreed that an Impairment Rating of 5 points was the appropriate rating.
[72] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 12 December 2016, para 32.
The 2015 JCA and 2016 JCA also concluded that the COPD Impairment warranted a total impairment rating of 5 points.[73]
[73] Exhibit 1, T Documents, T22, pages 93-97, JCA Report dated 21 July 2015 and T30, pages 141-146, JCA Report
dated 15 March 2016.
In order to assign an Impairment Rating of 5 points the evidence would need to show that there is a mild functional impact on activities requiring physical exertion or stamina.
The Descriptors for an Impairment Rating of 5 points are:
(1)The person:
(a)experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i)walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii)performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b)is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
I find that the symptoms described by Mr Sharp together with the corroborating medical reports support an Impairment Rating of 5 points.
Degenerative disc disease
Is Mr Sharp’s spinal impairment permanent and likely to persist for at least 2 years?
In March 2015 an MRI of the lumbar spine showed “degenerative change in discs and facet joints in the lower lumbar spine”.[74]
[74] Exhibit 1, T Documents, T15, page 77, MRI Report of Dr Jean Haddad dated 7 March 2015.
The Chronic Disease Management Plan prepared by Dr Farotimi on 10 March 2015 sets out that the required treatment for Mr Sharp’s osteoarthritis was to “control… [the] symptoms…improve muskuloskletal (sic) function…reduce risk deformity”. Mr Sharp was then to be referred to Philip Nollan and Judy Taylor (a physiotherapist and osteopath).[75]
[75] Exhibit 1, T Documents, T16, pages 78-80, Chronic Disease Management Plan prepared by Dr Farotimi dated 10
March 2015.
In October 2015 Dr Crowe reported that the lumbar spine impairment was causing pain and reduced mobility.[76] This was confirmed by Dr Rakesh Gilhotra, Medical Specialist at Tully Hospital.[77] Both Dr Gilhotra and Dr Crowe reported that the condition was likely to persist and should be treated symptomatically.
[76] Exhibit 1, T Documents, T23, page 98, Medical Certificate provided by Dr Crowe dated 8 October 2015.
[77] Exhibit 1, T Documents, T24, page 99, Medical Certificate provided by Dr Gilhotra dated 8 October 2015.
The Secretary contends there is insufficient evidence to determine whether Mr Sharp’s spinal condition is fully treated and fully stabilised.[78]
[78] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 12 December 2016, para 44.
Mr Sharp told me that while he had not seen Mr Nollan or Ms Taylor he had seen a physiotherapist. Mr Sharp said the physiotherapist recommended against any treatment because of his hip Impairment. While that sounds plausible, there is no corroborating medical evidence. Mr Sharp gave evidence that he treats this condition with over the‑counter pain medication as and when required. Again, there is no corroborating medical evidence of him doing this, or indeed that he needs to.
Mr Sharp declined my suggestion to adjourn the matter so that he could gather appropriate corroborating evidence.
I find that there is insufficient evidence to determine whether Mr Sharp’s spinal condition is fully treated and fully stabilised. Therefore I am unable to assign an Impairment Rating for this condition.
I note however, that even if there was sufficient corroborating medical evidence, there is no corroborating medical evidence that Mr Sharp should be assigned an Impairment Rating of 5 points and his self-report is insufficient.
CONCLUSION
I have concluded that Mr Sharp’s Impairments do not attract an Impairment Rating of more than 20 points during the Qualification Period therefore it is unnecessary for me to consider whether Mr Sharp had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) during the Qualification Period, although I note that it was not in dispute that Mr Sharp had satisfied the requirements for a program of support, as referred to in s 94(3C) and set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014.
Mr Sharp’s claim fails because he did not qualify for DSP during the Qualification Period under s 94(1)(b).
The decision under review is affirmed.
I certify that the preceding 84 (eighty-four) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
...................................[sgd].....................................
Associate
Dated: 25 January 2017
Date(s) of hearing: 18 January 2017 Applicant: By phone Solicitors for the Respondent: Department of Human Services
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Statutory Construction
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