Stephen Yates and Secretary, Department of Social Services

[2014] AATA 20

[2014] AATA 20  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/2818
Re	Stephen Yates
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	The Hon R J Groom AO (Deputy President)
Date	20 January 2014
Place	Hobart

The decision under review is affirmed.

[Sgd Hon R J Groom]

Deputy President

SOCIAL SECURITY – disability support pension – rotator cuff tear/arthritis/depression – whether the conditions attract 20 points under the Impairment Tables – attract 15 points only – applicant not qualified for disability support pension – decision under review affirmed

Social Security Act 1991, ss 94(1), (a), (b), (c), (d), (e), (ea)

Social Security (Administration) Act 1999, ss 41, 42

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

Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension (the Tables)

REASONS FOR DECISION

The Hon R J Groom AO (Deputy President)

20 January 2014

1. The applicant has applied to this Tribunal for a review of a decision of the Social Security Appeals Tribunal (“SSAT”) made on the 14 May 2013.  That decision affirmed an earlier decision by Centrelink rejecting Mr Yates’ claim for a Disability Support Pension (“DSP”). 

2. The law relating to the application is set out in the Social Security Act 1991 (“the Act”), the Social Security (Administration) Act 1999 (“the Administration Act”) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 and the Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension (the Tables).

3. The requirements for DSP are described in section 94 of the Act.

4. The Administration Act provides that the qualification for DSP must be determined as at the date of the claim or within 13 weeks of that date. (See sections 41 and 42 of the Administration Act).

5. The respondent concedes that Mr Yates satisfies section 94(1)(a), (d), (e) and (ea) of the Act but does not concede that Mr Yates has a combined impairment rating of 20 points or more as required (section 94(1)(b) or that he has a continuing inability to work (section 94(1)(c).

   THE ISSUES

6. The principal issues to be determined are:

   (a)Does the applicant have a total impairment rating of at least 20 points under the Impairment Tables? And

   (b)If so, does the applicant have a continuing inability to work?

   DOES THE APPLICANT HAVE A TOTAL IMPAIRMENT RATING OF 20 POINTS OR MORE?

7. The Tribunal is satisfied that the applicant suffers from several medical conditions including “rotator cuff tear right shoulder”, “arthritis in multiple joints” and a temporary condition of “depression”.

   Rotator Cuff Tear Right Shoulder

8. Mr Yates suffered this injury in 2007.  In 2008 he underwent surgery for the condition but this proved to be unsuccessful.  He takes anti-inflammatory medication to ease the constant pain.

9. The Tribunal found Mr Yates to be a credible witness.  He explained that the constant pain in his shoulder makes sleeping very difficult.  He wakes every couple of hours.  Washing and dressing is very difficult.  He has difficulties shaving and holding a cup in his right hand.  He uses his left hand.  He has palsy in his left hand.  It is most difficult for him to pick up items.  If he goes shopping he carries light bags only.  His wife carries the heavier bags.  In order to dress himself he has to lean up against a wall.  Reaching up is particularly difficult and he believes this would make it very difficult for him to hold down a job.  He can, with some difficulty unscrew a soft drink bottle.  He can tie up his shoe laces.

10. The Tribunal agrees with the authors of the Job Capacity Assessment Report (T11) that this condition is “verified by medical evidence” and is “fully diagnosed, fully treated and fully stabilised”. 

11. The Tribunal agrees with the SSAT that a rating of 10 points under Impairment Table 2 is an appropriate rating for this condition.  Evidence of the degree of functional impact resulting from this condition does not justify a 20 point rating.

    Arthritis in Multiple Joints

12. Mr Yates suffers arthritis in the hips, knees, wrist, feet, toes, shoulders and arms.  He has suffered this condition in multiple joints for several years.  The report from radiologist Dr S Broadhurst indicates “advanced osteoarthritic degenerative changes” in several joints (T13).

13. Because of its nature it is reasonable to conclude that the arthritis is permanent.  It causes Mr Yates difficulty in standing for more than a few minutes.  He also has some difficulty climbing stairs and in walking distances.

14. The Tribunal concludes that the appropriate rating for this condition is 5 points under Impairment Table 3.  The evidence of the functional impact from Mr Yates’ arthritis does not justify a higher rating.

    Depression

15. A medical certificate issued by Dr Anthony Popiel of the Smithton Medical Centre (T15) on 24 June 2013 (which is after the 13 week qualification period had expired) indicated a diagnosis of depression.  The certificate stated that “this condition is temporary”.  This diagnosis has not been confirmed by a psychiatrist or clinical psychologist.  This condition is not considered to be “fully diagnosed, fully treated and fully stabilised” and therefore cannot be assigned an impairment rating under the Tables.  (See page 35 of the Guidelines to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension Relating to the Assessment of Mental Health Function).

    CONCLUSION

16. Mr Yates suffers from the abovementioned medical conditions which clearly have an adverse impact on his normal functioning. That impact results in a rating of 10 points for the rotator cuff tear right shoulder and 5 points for the arthritis in multiple joints. No points can be assigned to the condition of temporary depression. The total impairment rating is therefore 15 points. As Mr Yates has a total impairment rating of less than 20 points he does not satisfy section 94(1)(b) of the Act and therefore does not qualify for the disability support pension. As section 94(1)(b) of the Act is not satisfied it is not necessary for the Tribunal to proceed to determine whether Mr Yates has a continuing inability to work.

    DECISION

17. The decision under review is affirmed.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom AO (Deputy President)

[Sgd]

Administrative Assistant

Dated:  20  January 2014

Date(s) of hearing	11 November 2013
Date final submissions received	21 November 2014
Applicant	In person
Solicitors for the Respondent	Mr B Sparkes, Program Litigation and Review Branch