Stark and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 76

[2012] AATA 76

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2012] AATA 76

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/2027

GENERAL ADMINISTRATIVE DIVISION		)
Re		DAVID STARK

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr A Frazer,  Member

Date10 February 2012

PlacePerth

Decision The Tribunal affirms the decision under review.

..........[sgd A Frazer]........

Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – qualification requirements– applicant has impairments – applicant’s impairments not considered permanent –applicant not qualified for disability support pension – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth), s 94 and Sch 1B

REASONS FOR DECISION

10 February 2011                Dr A Frazer,  Member

Introduction

1.      Mr David Stark, (“the applicant”), who is 45 years of age, lodged a claim for the disability support pension (“DSP”) on 7 October 2010 in respect of osteoarthritis of the knees, lower back pain and depression.

2.      On 8 February 2011, after some ongoing communication with the applicant, a Centrelink Authorised Review Officer (“ARO”) affirmed the decision to reject the claim for DSP on the basis the applicant’s impairments did not rate at least 20 points on the Impairment Tables.

3.      On 29 April 2011 the Social Security Appeals Tribunal (“SSAT”) affirmed the ARO’s decision.

4.      On 25 May 2011 the applicant made an application to this Tribunal for review of the SSAT’s decision.

The Relevant Legislation

5. The conditions which must be satisfied before a person is qualified for DSP are set out in paras (a) – (f) of s 94(1) of the Act. It is common ground that the applicant satisfies the conditions set out in paras (d) – (f) of s 94(1). Section 94 of the Act otherwise relevantly provides:

“ 94(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;

…

94(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a)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)       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).

…

94(5) In this section:

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.

…”

6. The “Impairment Tables” referred to in para (b) of s 94(1) are set are set out in Schedule 1B to the Act.

The Evidence

7.The evidence before the Tribunal comprised:

·the “T Documents” (T1-T13, pp 1- 260) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”);

·Exhibit A1 - CT Lumbar Spine Report, dated 3 August 2011, by Dr McNearnie, Radiologist.

The applicant’s evidence

·The applicant told the Tribunal he lives alone and independently in a house in Fremantle.  The applicant said the Homes West home is now too large for him after his father passed away about 4 years ago and he is happy to move.

·The applicant said his problem is osteoarthritis of both knees and low back pain.

·The applicant said his knee pain affects his walking and he cannot squat.  Walking up stairs is a problem however walking downstairs is not as bad.  He will take stairs though if he does not wish to wait for a lift.  The applicant is able to walk to do his shopping however he needs to stop and rest every 10 minutes or so. The applicant said he is a “stubborn person” and that he will still do things such as moving furniture however he suffers after.  The applicant said he uses knee braces every day which do help.

·The applicant said he has had back pain off and on for the last 10 years.  He is unsure of the diagnosis.   He can still get in and out of a car but this causes some discomfort.

·The applicant said he last worked in April 2010 driving a school bus for 2 hours in the morning and 2 hours in the afternoon.  The applicant said that his knees would ache after about 90 minutes sitting.

·The applicant said he may use Panadol for his knee and back pain however he would prefer not to use medications at all.

·The applicant said he saw his GP, Dr Turner, about 6 weeks ago and his back and knees are now going to be assessed by an Orthopaedic Surgeon. The applicant said he was recently seen by the Fremantle Hospital Pain Clinic but he has not seen the surgeon yet.  The applicant said that over the last few weeks he is on a plan and is now seeing a physiotherapist and taking regular exercise.

The applicant told the Tribunal that he was very down when his father passed away and that the first 2 years were very hard.  He said he has been supported and helped though by his friends, particularly those that knew his father.  The applicant said he is a social person and regularly goes to the East Fremantle Football Club on Friday evenings and is involved in other events. The applicant has been involved in football since he was 16 years old and was a sports trainer for 18 years.

·The applicant said he also benefitted from ongoing counselling after his father passed away with a counsellor, Ms Ryan.  The applicant said he has not seen her over the last few months however he will make a time as he wants to update her around the HomesWest issue. The applicant said he did not need to see a Psychiatrist or take medications over this time.

The relevant medical evidence

8.      Report by Dr Roche, Orthopaedic Fellow, dated 16 June 2010.  Dr Roche states the applicant has early osteoarthritis of both knees and states the applicant is “advised to remain active and possibly find a sedentary job whereby his knees would be put under less strain.”

9.      Report by Dr McNearnie, Radiologist., CT lumbar spine, dated 3 August 2011.  Dr McNearnie states there is mild degenerative changes within the lumbar spine with no other abnormality seen.

10.     Letter by Ms Ryan, dated 2 March 2011, Psychologist.  Ms Ryan states the applicant suffers from “significant depressive symptoms which prevent him working.”

The Impairment Tables

11. Schedule 1B to the Act is headed: “Tables for the assessment of work-related impairment for disability support pension”. The tables themselves are preceded by an “Introduction“ in which it is relevantly stated:

“1.These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work. …

2.These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. …

…

4.A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. …

5.The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

6.In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

·what treatment or rehabilitation has occurred;

·whether treatment is still continuing or is planned in the near future;

·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

In this context, reasonable treatment is taken to be:

·treatment that is feasible and accessible ie, available locally at a reasonable cost;

·where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person.  In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.

In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:

·evaluate and document the probable outcome of treatment and the main risks and or (sic) side effects of the treatment; and

·indicate why this treatment is reasonable; and

·note the reasons why the person has chosen not to have treatment.

…”

Analysis

Impairments

12. It is common ground that, at all material times, the applicant has osteoarthritis of both knees, low back pain and a history of depressed mood which are impairments within the meaning of para (a) of s 94(1) of the Act.

13. The first matter for the Tribunal’s determination is whether the applicant, when he applied for the DSP in October 2010, had a total impairment, by reason of his impairments, of at least 20 points under the Impairment Tables, for the purposes of para (b) of s 94(1) of the Act.

14.     The Tribunal accepts the applicant’s evidence that he is now undertaking a Pain Management Path which includes regular review by a physiotherapist and a regular exercise programme.  The Tribunal notes the applicant is soon to be reviewed by an Orthopaedic Surgeon with respect to his knee and back impairments. Therefore, the Tribunal considers these impairments are not adequately treated and stabilised, such that they could be considered permanent.  These impairments do not therefore attract a rating under the Impairment Tables.

15.     The Tribunal accepts the applicant’s evidence that he was very down after the loss of his parents some years ago however his mood and social interactions have improved with ongoing support. The applicant is still receiving ongoing psychological counselling and this impairment has not been fully treated and stabilised such that it could be considered permanent. This impairment therefore does not attract a rating under the Impairment Tables.

16.The applicant therefore does not satisfy para (b) of s 94(1) of the Act.

17. As the applicant does not satisfy para(b) of the s 94(1) of the Act it is unnecessary to consider whether the applicant satisfies para (c) of s 94(1) of the Act.

Decision

18.For the above reasons the Tribunal affirms the decision under review.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Dr A Frazer, Member

SignedSigned:           [sgd D Brodie]
  ...................................................................

Associate

Date of Hearing  2 December 2011
Date of Decision  10 February 2012
Representative of the Applicant         Self-represented

Representative for the Respondent          Ms M Conlon

Centrelink