Stephen Martin and Secretary, Department of Social Services

[2015] AATA 432

[2015] AATA 432  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/2713
Re	Stephen Martin
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	The Hon. Brian Tamberlin QC, Deputy President
Date	19 June 2015
Place	Sydney

The Tribunal affirms the decision under review.

..................................[sgd]......................................

The Hon. Brian Tamberlin QC, Deputy President

CATCHWORDS

SOCIAL SECURITY – pensions - Disability Support Pension – whether applicant’s conditions were fully diagnosed, treated and stabilised - whether applicant has 20 points under the Impairment Tables – whether applicant has participated in a program of support – whether applicant has a continuing inability to work – decision under review affirmed

LEGISLATION

Social Security Act 1991 ss 94(1), 94(2)

Social Security (Administration) Act 1999

SECONDARY MATERIALS

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

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

REASONS FOR DECISION

The Hon. Brian Tamberlin QC, Deputy President

19 June 2015

1. This is an application to review a decision of the Social Security Appeals Tribunal (“SSAT”) of 20 May 2014 which decided to affirm a decision not to grant disability support pension (DSP) to the applicant on the basis that he did not satisfy criteria set out in s 94 of the Social Security Act 1991 (Cth) (“the Act”) as at the date of his claim on 22 January 2014, or within 13 weeks thereafter.

   ISSUE

2. The issue before the Tribunal is whether the applicant was qualified to receive a DSP as at 22 January 2014 or within 13 weeks thereafter (the relevant period). This, in turn, involves a consideration of whether between 22 January 2014 and 23 April 2014 the applicant had an impairment rating of at least 20 points under the Social Security (Tables For The Assessment Of Work Related Impairment For The Disability Support Pension) Determination 2011 (the Impairment Tables) and a continuing inability to work as defined in s 94 of the Act.

   BACKGROUND

3. The Applicant, Mr Martin was born in May 1960 and was 53 years old at the date of claim.

4. He contacted Centrelink on 22 January 2014 to notify his intention to claim DSP, and on 3 February 2014 he lodged a claim for the pension. He listed the following conditions in his claim namely heart, left kidney, left shoulder, 4 discs in back, GORD, abdominal hernia, asthma, gout and an enlarged liver.

5. With his claim the applicant lodged a medical report dated 3 February 2014 from Dr Sharma who is a general practitioner. He reported that the condition impacting most on the applicant was “atrial fibrillation”. The symptoms of his condition were reported as palpitations, sweating and chest discomfort. He recorded that the applicant had ongoing palpitations, shortness of breath, fatigability, (unknown), and limited mobility. He expressed that the condition was likely to persist for more than 24 months and the impact on the patient’s ability to function was uncertain.  The report also stated that the applicant suffered from renal calculi which caused recurrent urine infection, back pain and issues with passing urine. The applicant suffered from urgency, frequency and pain with kidney stones and this was reported as likely to persist for more than 24 months, with an uncertain impact on the patient’s ability to function. The record also indicated that the applicant suffered from asthma, but that this caused minimal or limited impact on his ability to function. There was also reference to the applicant suffering from ongoing left shoulder pain but no diagnosis was offered as to the cause of this condition.

6. On 14 February 2014 the applicant had a job capacity assessment (JCA) conducted by a rehabilitation counsellor. The JCA found that the applicant’s atrial fibrillation was fully diagnosed, treated and stabilised and warranted an impairment rating of 5 points under Table 1 of the Impairment Tables. It also found that his asthma, left shoulder, back pain and kidney disorder were not fully diagnosed, treated or stabilised and no impairment rating was given for these conditions. A total impairment rating of 5 points was assigned to the applicant on this assessment.

7. The applicant was assessed as having a baseline work capacity assessment of 8-14 hours per week, and it was noted that with intervention this work capacity was likely to increase to 15-22 hours per week within the following two years. A number of interventions were recommended as well as continued participation with a disability employment services provider.

8. On 25 February 2014 Centrelink decided to reject the applicant’s claim for DSP and he requested a review. This was conducted by an Authorised Review Officer (ARO) who on 28 March 2014 affirmed the decision to reject the applicant’s claim and found that the atrial fibrillation warranted an impairment rating of 5 points under Table 1; the applicant’s shoulder condition warranted an impairment rating of 0 under Table 2; the applicant’s back condition warranted an impairment rating of 5 points under Table 4; that the applicant’s knee condition was not fully diagnosed, treated and stabilised and finally that there was insufficient medical information to assign any further impairment points under any Tables. The ARO also found that the applicant did not have a continuing inability to work. The applicant was dissatisfied with this decision and applied for review by the SSAT which considered further medical information. The SSAT as noted earlier affirmed the decision that the applicant did not qualify for the DSP.

   LEGISLATION

9. The relevant legislative provisions concerning qualification for the DSP are contained within the Act; the Social Security (Administration) Act 1999 (Cth); the Impairment Tables; and the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the Determination).

10. During the hearing before me, the applicant relied on a report by Dr Le, a general practitioner dated 30 September 2014, and there was also a series of supplementary s 37 documents that were filed which contained reports and documents from both parties in the period between 8 April 2014 and 14 November 2014.

    ATRIAL FIBRILLATION

11. It is accepted that the applicant suffers from atrial fibrillation, and that the condition was fully diagnosed, treated and stabilised during the relevant period. The issue is the appropriate rating to be applied.

12. The evidence is that the fibrillation leads to heart palpitations and this has an impact on the applicant’s stamina and endurance. During the hearing before me the applicant indicated he could walk two kilometres to the shop, but that this caused great fatigue and that he had to obtain transport to return to his home. He was able to climb three flights of stairs to his apartment with a rest. On 25 August 2014 Dr Le reported that the applicant could walk up to 20 minutes. The relevant table for assessment is Table 1 which relates to impacts upon a person’s physical exertions or stamina. It is common ground that the applicant has an impairment rating of at least 5 points under Table 1.

13. However the applicant contends that he should be assessed with a 10 point rating. This requires, among other things, that he should be unable to walk far outside the home, and needs to drive or get transport to local shops. I do not think that the applicant satisfies this requirement. There is no evidence that the applicant has difficulty performing day to day household activities such as changing sheets on a bed or sweeping paths. In a JCA dated 14 February 2014 the applicant claimed that he could walk 15 minutes and this is consistent with the records of Dr Le that he was able to walk for not more than 20 minutes. Having regard to the above evidence, I am satisfied that an impairment rating of 5 points is correct in relation to the atrial fibrillation claim within Table 1.

    BACK PAIN

14. This is covered by Table 4 which is concerned with impairment of spinal function. Dr Le in his report of 30 September 2014 assigns 10 points in respect of the applicant’s impairment. It is accepted that the applicant suffered from a protruding disc during the relevant period, which has been fully diagnosed, treated and stabilised and can therefore be assigned an impairment rating.

15. Dr Basta in a report of 11 October 2010 stated that the applicant had back pain which worsens when he bends, and on 16 August 2012 Dr Zhang reported the applicant had difficulty bending and squatting. While there is no medical evidence concerning functional impairment during the relevant period, it is accepted that due to the nature of his condition, the applicant continued to be impaired by the condition during the relevant period.

16. The respondent accepts that 5 points could be awarded for this condition under Table 4, but submits that the 10 point rating cannot apply because it has not been established that the applicant’s impairment causes functional impacts such as being unable to sustain overhead activities or being unable to bend to pick up a light object or that he has difficulties moving his head to look in all directions. Dr Le noted in his report dated 30 September 2014 that the applicant could bend to knee level and rise from a chair without difficulty, although he had “some difficulty” with activities above the head.

17. In my view the evidence does not support an assessment of 10 points and the condition comes within the descriptor for a 5 point mild functional impact, in that the applicant has some difficulty with activities overhead requiring him to look upwards and he can bend to knee level and straighten up again without difficulty. I therefore accept the submission of the respondent that 5 points is appropriate under Table 4 in respect of this condition.

    LEFT SHOULDER

18. It is accepted from the imaging reports that the applicant has suffered from bursitis of the left shoulder. Dr Sharma reports that the applicant had undergone cortisone injections and had physiotherapy, and that he only expected minimal improvement in the next two years. He did not say whether the condition was fully treated. The respondent points out that there is no evidence regarding past treatment of the condition, or any opinion as to whether further treatment may assist. In these circumstances I accept that the condition cannot be considered fully treated and stabilised on the material presently before me. In the report of Dr Le in relation to left shoulder pain, it is noted that he is being treated with steroid injections which lead to temporary relief of pain but relapse within weeks or months. There is a mild irritation in the shoulder at all times but acute problems resolved within a day or two if the injection is successful, or within a week if it is not. The applicant has been referred for a further cortisone injection.

19. In respect of this condition I am satisfied that it cannot be considered as fully treated or stabilised.

    RENAL CALCULI

20. It is accepted that the applicant suffered from renal calculi and that the condition is fully diagnosed, treated and stabilised. However, the condition did not have a functional impairment such as to warrant a rating under the Impairment Tables. Dr Le in his report accepts that the appropriate rating should be nil. I note that when assessing impairments which are episodic or fluctuating, a rating must be assigned that reflects the overall functional capacity of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate. See Part 2 of the Impairment Tables.

21. I am satisfied that a rating of nil is appropriate for this condition.

    ASTHMA

22. It is accepted that the applicant suffers from asthma and that this condition is fully diagnosed, treated and stabilised, and can therefore be the subject of an assessment. However the appropriate Table is Table 1, which has been taken into account in relation to the atrial fibrillation. Under s 10 of the rules for applying the Impairment Tables, where two or more conditions cause a common or combined impairment, a single rating must be assigned in relation to that common or combined impairment under a single Table.

23. I am satisfied that the functional impact of this condition has already been taken into account in the consideration of Table 1 above. There is no evidence to establish that an increased rating under Table 1 should be assigned.

    ANXIETY/DEPRESSION

24. There was mention in a 2012 report from Dr Zhang that the applicant suffered from anxiety. Dr Zhang considered that this condition had a minimal or limited impact on the applicant’s ability to function.

25. Diagnosis from a psychiatrist or a clinical psychologist is a mandatory requirement for assigning points under Table 5, the appropriate table concerning functional impact due to a mental health condition. In the absence of a diagnosis meeting the above requirement, no impairment rating can be assigned under Table 5.

    OTHER CONDITIONS

26. The applicant has suffered from a number of conditions in past years including reflux, hernia and knee pain. On these subjects there is insufficient evidence before me as to their treatment or impact on the applicant during the relevant period and accordingly an assessment cannot be applied.

    CONCLUSION ON IMPAIRMENT

27. Having regard to the aforementioned, I agree that the applicant has a total rating of 10 points under the Impairment Tables and therefore does not satisfy the requirements of s 94(1)(b) of the Act.

    OTHER MATTERS

28. It is accepted that the applicant has fulfilled the requirement under the Act to actively participate in a program of support. In regards to s 94(2) and whether the applicant has a continuing inability to work, the weight of the evidence as to the applicant’s work capacity is principally of that in the JCA Reports of 14 February 2014 and 3 November 2014. These reports expressed the conclusion that the applicant had a baseline work capacity of 8-14 hours per week, with an ongoing work capacity of 15-22 hours per week within two years with intervention and referral to a disability employment service provider. There is no evidence that would justify a conclusion that the applicant is unable, due solely to his impairments, to participate in any activity that would equip him to work within two years, and accordingly the applicant has not made out a case that he had a continuing inability to work in the relevant period.

    CONCLUSION

29. The applicant did not satisfy the criteria set out in s 94 of the Act to qualify for the DSP as at 22 January 2014 or within 13 weeks thereafter. I do not find that there was an impairment rating of at least 20 points under the Tables or that he has a continuing inability to work as defined in s 94(2) of the Act.

    DECISION

30. The Tribunal affirms the decision under review.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin QC, Deputy President

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Associate

Dated 19 June 2015

Date(s) of hearing	17 March 2015
Applicant	In person
Solicitors for the Respondent	Mr Davidson, Department of Human Services