Taylor and Secretary, Department of Social Services (Social services second review)

[2017] AATA 1986

Taylor and Secretary, Department of Social Services (Social services second review) [2017] AATA 1986 (27 October 2017)

Division:GENERAL DIVISION

File Number(s):      2016/6395

Re:Lyndon Taylor

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Ms A F Cunningham, Senior Member

Date:27 October 2017

Place:Hobart

The decision under review is affirmed.

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Ms A F Cunningham, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – permanent conditions of carpal tunnel syndrome and osteoarthritis – failure to satisfy impairment rating – decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth) s 94(1)(b) & (c)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Ms A F Cunningham, Senior Member

27 October 2017

REASONS FOR DECISION

Background

1. The Applicant, Lyndon Taylor, sought the review of a decision of the Social Services and Child Support Division of the AAT (first-tier review) which affirmed a decision not to grant his claim for disability support pension (DSP). The first-tier review decision was made on the basis that the Applicant failed to meet the qualification requirements for a DSP and in particular, that his conditions rated a total of 10 points under the Impairment Tables which is less than the required 20 points.

2. Mr Taylor appeared by videolink at the hearing before the AAT and represented himself. The respondent was represented by Brian Sparkes. During the course of the hearing Mr Taylor advised that he was having difficulty hearing the Tribunal member and Mr Sparkes. Mr Taylor also contended that he had not received the supplementary T documents. No difficulty was experienced with the videolink in Hobart and Mr Taylor was afforded the opportunity to present his case. 

3. Directions were made at the conclusion of the hearing that the supplementary T documents be forwarded to Mr Taylor by registered mail; that Mr Taylor provide any further evidence and written submissions in response within three weeks; and that Mr Sparkes provide any further written submissions within two weeks of receipt of Mr Taylor’s written response. The Tribunal would then decide whether to reconvene hearing.

4. Following the receipt of the further documentation submitted by Mr Taylor, Mr Sparkes advised that he saw no need to respond to the Applicant’s submission. The Tribunal decided it was not necessary to reconvene the hearing. The further documents submitted by Mr Taylor included written submissions requesting the calling of further witnesses by the Tribunal, a bilateral hand assessment from a physiotherapist dated 20 July 2017, and copies of correspondence including that from the Applicant’s solicitor dated 2015 regarding a firearms issue and allegations against Centrelink employees.

5. Prior to the hearing Mr Taylor forwarded a written submission advising that he wished to call Dr Karl Bright as a witness via telephone. Dr Bright was not called to give evidence at the hearing and no prior application had been made to adjourn the hearing on the basis of his unavailability. The Tribunal had before it the T documents and supplementary T documents tendered pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and written submissions filed on behalf of the Respondent.

6. At the hearing Mr Taylor stated that he rejected the medical evidence from Dr Mahapatunage on the basis that it was outdated and not relevant to his claim for DSP. No further evidence was provided by Mr Taylor in support of his application for review.

7. Mr Sparkes advised that the Respondent adopted the findings of the Job Capacity Assessor (JCA) and that of the first-tier reviewer.  Accordingly, the Respondent submitted that the decision under review should be affirmed on the basis that Mr Taylor did not meet the qualification requirements for DSP.

8. Mr Taylor’s application for DSP was dated 16 May 2016 and accordingly, the relevant qualification period is between 16 May 2016 and 16 August 2016. In his claim for DSP, the Applicant listed his disabilities as bilateral carpal tunnel syndrome, osteoarthritis, joint pain and dyslipidaemia.  Bilateral carpal tunnel syndrome, osteoarthritis and chronic neck pain were the medical conditions accepted by the first-tier reviewer as being permanent, in that they had been fully diagnosed, fully treated and fully stabilised such to attract an impairment rating under the Impairment Tables.

9. On the basis of the available medical evidence, the JCA found that the Applicant’s dyslipidaemia had not been fully diagnosed, treated and stabilised. The JCA commented that Mr Taylor had not provided consent for his doctor to be contacted for further information.

10. The JCA noted that, with respect to the carpal tunnel syndrome, Mr Taylor had engaged in appropriate specialist treatment and that no additional treatment was proposed which was likely to result in significant functional improvement within the next two years.  The condition was considered to be fully diagnosed, treated and stabilised. However, because Mr Taylor had not given permission for his doctor to be contacted to confirm the reported functional impacts of the condition, no impairment rating could be assigned.

11. On the basis of the available medical reports the JCA found Mr Taylor’s joint pain and osteoarthritis to be permanent.  However, because Mr Taylor had not given permission for his doctor to be contacted to confirm his reported functional impacts from the condition, no impairment rating was assigned.

12. With respect to Mr Taylor’s spinal disorder the JCA noted that Mr Taylor’s orthopaedic surgeon, Mr Prisell, supported further investigation and had recommended assessment by a spinal neurosurgeon. Accordingly, the condition was not considered to be fully treated or stabilised.

13. Included in the T documents are a number of historical medical reports regarding Mr Taylor’s conditions. In his written submissions to the Tribunal, Mr Taylor asked that the following medical evidence be considered: a report of Dr Bright dated 23 March 2016; a report of Mr Prisell dated 10 May 2016; a report of S Watt dated 30 June 2016; a report of Ryan Carroll, sports physiotherapist, dated 24 March 2016 and a functional assessment dated 23 September 2016; and a functional assessment of Dr Bright dated 19 October 2016. Mr Taylor submitted that these reports should be considered in preference to those from Dr Mahapatunage whose reports were out of date.

14. In a medical certificate dated 20 January 2016, Dr Bright lists Mr Taylor’s carpal tunnel syndrome as being permanent (that it is likely to persist for two years or more) but states that the symptoms are likely to affect the patient’s capacity to work or study for a period between three and twelve months. In a medical certificate dated 23 March 2016, Dr Bright similarly lists Mr Taylor’s carpal tunnel syndrome as being permanent and notes previous operations with no significant improvement and that current treatment is physiotherapy and medications with no planned treatment. That medical certificate covered the period between 23 March 2016 and 23 June 2016. 

15. In a later report dated 13 April 2016, Dr Bright referred to Mr Taylor’s osteoarthritis and noted that his symptoms of arthralgia, stiffness, difficulty walking at times due to pain and difficulty lifting things. He did not give an estimate as to how long the symptoms would affect the patient’s capacity to work but stated that the condition was permanent in that it is likely to persist for two years or more.

16. In a report from Mr Prisell following a consultation on 10 May 2016, it was noted that Mr Taylor was suffering from aches and pains from the neck, back, shoulders and both hands, that he had aches and pains in the hands and dysfunction moving his fingers with no strength. Mr Prisell requested a nerve conduction test because he was curious about Mr Taylor’s persistent carpal tunnel syndrome.

17. In Mr Carroll’s letter to Dr Bright dated 24 March 2016, he referred to Mr Taylor’s neck and bilateral wrists problems and noted that:

    he was severely limited in range of motion at both wrists due to increased stiffness through his radio-ulnar and carpal joints. These were also quite painful to mobilise. Lyndon was also very tight through his forearm muscles, both extensor and flexor sides.

    Treatment targeted these areas while also working on massage and mobilising through his neck.

18. Further documentation submitted to the Tribunal by Mr Taylor pursuant to the Tribunal directions included a report from Kim Stojs, physiotherapist, who is also an accredited rehabilitation provider. The report however is dated 20 July 2017 and does not refer to the relevant Impairment Tables for an assessment of Mr Taylor’s functional capacity with respect to the qualification period.

    Consideration and findings

19. The qualification requirements for DSP are contained within s 94(1) of the Social Security Act (the Act).  Subsection (1)(b) requires an impairment rating of 20 points or more under the Impairment Tables. Subsection (1)(c) further requires that a person has a continuing inability to work and that they have participated in a programme of support.

20. Whilst the Tribunal is satisfied that Mr Taylor satisfies s 94(1)(a) in that he has one or more physical impairments, for the following reasons the Tribunal is unable to conclude that he has a total impairment rating of 20 points or more as required by s 94(1)(b).

21. The Impairment Tables were issued pursuant to the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Determination). The Determination contains the Tables in Part 3 and rules for applying those Tables in Part 2. The Determination provides, inter alia, that an impairment rating can only be assigned if the condition causing the impairment is permanent and the impairment that results from that condition is more likely than not to persist for more than two years: Part 2, cl (6)(3).

22. A condition is permanent if it has been fully diagnosed (by an appropriately qualified medical practitioner), fully treated and stabilised, and the condition is likely to persist for more than two years: Part 2, cl (6)(4).

23. The Tables provide that self-reporting of symptoms alone is insufficient. The relevant table for assessment of Mr Taylor’s carpal tunnel syndrome is Table 2. The Introduction to Table 2 states that there must be corroborating evidence of the person’s impairment and that examples of corroborating evidence include a report from the person’s treating doctor or specialist, allied health practitioner including physiotherapist, occupational therapist or exercise physiologist confirming the functional impact, results of diagnostic tests and results of physical tests or assessments.

24. The Secretary accepts an impairment rating of 5 points under Table 2 for a mild functional impact on activities using hands or arms. The descriptors for this impairment rating are as follows: 

    (1)The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

    (a)  picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

    (b)  handling very small objects (e.g. coins);

    (c)  doing up buttons;

    (d)  reaching up or out to pick up objects.

25. The descriptors for a moderate functional impact for a 10 point impairment rating are as follows:

    (1)The person has difficulty with most of the following:

    (a)  picking up a litre carton full of liquid;

    (b)  picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

    (c)  holding and using a pen or pencil;

    (d)  doing up buttons or tying shoelaces;

    (e)  using a standard computer keyboard;

    (f)    unscrewing a lid on a soft-drink bottle.

26. Mr Taylor referred the Tribunal to Dr Bright’s report dated 19 October 2016 in which he stated that unfortunately Mr Taylor’s symptoms from his carpal tunnel syndrome have not improved and he continues to experience moderate to severe pain in his wrists/hands. He noted that ‘Mr Taylor finds it hard to grip things, hold things, open bottle tops and lifting any weight above 5-10kg. Moreover, he struggles even to button his shirt at times.’

27. This report notably postdates the qualification period and was not considered by the JCA or the first-tier reviewer. In any event it is the Tribunal’s view that the functional impacts described by Dr Bright do not equate with the descriptors for a moderate impairment rating of 10 points but are more akin to the descriptors for a 5 point impairment rating. The Tribunal also notes the evidence given by Mr Taylor to the first-tier reviewer regarding the functional impacts of his carpal tunnel syndrome which are supportive of a 5 point impairment rating. There being no other corroborated evidence to support a moderate functional impact rating, the Tribunal accepts that a 5 point impairment rating is appropriate for Mr Taylor’s carpal tunnel syndrome.

28. The appropriate table for the assessment of functional impact with respect to Mr Taylor’s osteoarthritis which affects his knees, hands and wrists is Table 3 – Lower Limb Function. In his written submissions, Mr Taylor contends that he is also being treated for arthritis affecting his neck and shoulders. As there is no corroborating medical evidence with respect to this condition relevant to the qualification period, the Tribunal is unable to consider it in relation to this application for review.

29. The descriptors for a mild functional impact attracting a 5 point impairment rating under Table 3 are as follows:

    1At least one of the following applies:

    (a)The person has some difficulty walking to local facilities (e.g. shops or bus-stop); or

    (b)The person has some difficulty walking around a shopping mall or supermarket without a rest; or

    (c)The person has some difficulty climbing stairs; and

    2At least one of the following applies:

    (a)The person is unable to stand for more than 10 minutes;

    (b)The person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

30. The descriptors for a moderate functional impact attracting a 10 impairment rating are:

    1At least one of the following applies:

    (a)The person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or

    (b)The person is unable to use stairs or steps without assistance; or

    (c)The person is unable to stand for more than 5 minutes; and

    2The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

    3This impairment rating level includes a person who can:

    (a)Move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

    (b)Move around independently using walking aids (e.g. quad stick, crutches or walking frame.

    Note: The person may require additional time and effort to move around a workplace, may need to use disable access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

31. The Secretary accepts the assessment of the first-tier reviewer of a 5 point impairment rating for Mr Taylor’s osteoarthritis.  As noted by the first-tier reviewer, where there are multiple conditions that cause a common impairment for a particular function it is appropriate to assign a single rating under a single table.  In this case the impact of osteoarthritis on Mr Taylor’s hands and wrists has been taken into account in considering the impairment rating for carpal tunnel syndrome.

32. There was no additional corroborated evidence provided to this Tribunal regarding the functional impact of Mr Taylor’s osteoarthritis and the Tribunal notes the evidence provided by Mr Taylor to the first-tier reviewer. On this basis the Tribunal has no reason to depart from the finding of the first-tier reviewer that an impairment rating for this condition under Table 3 is 5 points.

33. For the reasons outlined by the first-tier reviewer the Tribunal accepts the finding that Mr Taylor’s chronic neck pain cannot be considered fully treated and fully stabilised during the qualification period and therefore an impairment rating for this condition cannot be assigned.

    CONCLUSION

34. In conclusion, the Tribunal finds that Mr Taylor’s accepted permanent conditions of carpal tunnel syndrome and osteoarthritis attract impairment ratings respectively of 5 points under Table 2 and 5 points under Table 3. His total impairment rating is thus 10 points and does not satisfy the requirements of s 94(1)(b) of the Social Security Act for an impairment rating of at least 20 points. On this basis, Mr Taylor does not qualify for DSP and it is therefore not necessary to consider the remaining qualification requirements.

35. The decision under review is accordingly affirmed.

I certify that the preceding 35 (thirty-five)  paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham, Senior Member

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Administrative Assistant

Dated:   27 October 2017

Date(s) of hearing:	1 August 2017
Applicant:	In person
Solicitors for the Respondent:	Mr Brian Sparkes, Department of Human Services