TESTAR and Secretary, Department of Social Services
[2015] AATA 322
•14 May 2015
[2015] AATA 322
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/5067
Re
Peter TESTAR
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Ion Alexander, Member Date 14 May 2015 Place Sydney The reviewable decision is affirmed.
...............................[sgd]....................................
Dr Ion Alexander, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Requirements and Guidelines- Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Ion Alexander, Member
14 May 2015X May 2015
BACKGROUND
On 24 February 2014 Mr Testar lodged a claim for Disability Support Pension (DSP) on the basis that he suffered medical conditions that had an impact on his ability to function. His claim was rejected by Centrelink on the basis that he had a compensation preclusion period that ended on the 18 August 2014. After review by the SSAT it was decided that the preclusion ended on the 10 April 2014 and he was invited to lodge a new claim.
Mr Testar submitted a new claim for DSP on 21 May 2014. His claim was supported by a Centrelink Medical Report completed by his general practitioner, Dr Capa, dated 20 May 2014.
Dr Capa listed “Rotator cuff tendonitis L>R and cervical disc disorder” as medical conditions with the most impact on ability to function. Dr Capa also listed “low back pain, depression, COPD and left knee arthropathy” as medical conditions that cause minimal or limited functional impact.
Mr Testar claims that he also suffers from hypertension, ischaemic heart disease and gastro-oesophageal reflux and an undiagnosed condition which causes him to be breathless on exertion.
Mr Testar’s claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (SSAT) on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act), in particular, he did not satisfy s 94(1)(b) in that his rating under the Impairment Tables was less than 20 points.
ISSUES
In order to qualify for DSP Mr Testar must satisfy the requirements of s 94 of the Act at the date of the claim or within the following 13 weeks (the claim period), in accordance with the requirements of the Social Security (Administration) Act 1999 (the Administration Act). The relevant period is 21 May 2014 to 20 August 2014.
Section 94(1) of the Act states that a person is qualified for DSP 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;
…
It is agreed that Mr Testar suffers several medical conditions and therefore satisfies the requirements of s 94(1)(a) of the Act.
The respondent contends that during the claim period Mr Testar did not satisfy the requirements of s 94(1)(b) in that his impairment was not rated at 20 points or higher under the Impairment Tables.
Therefore the first issue is to determine Mr Testar’s rating under the Impairment Tables which are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination).
Alternatively the respondent contends that if the Tribunal is satisfied that Mr Testar’s medical conditions attract a combined rating of 20 points or more he does not satisfy s 94(1)(c) in that he does not have a continuing inability to work.
As Mr Testar does not have a “severe impairment” as defined by s 94(3B) of the Act, the respondent contends he is required to have actively participated in a program of support. If he has not completed this requirement, he cannot be found to have a continuing inability to work: s 94(2)(aa) of the Act.
Section 94(3B) provides that a person’s impairment is a severe impairment if the person’s impairment attracts a rating of 20 points under the Impairment Tables, of which 20 points or more are under a single Table.
The Social Security (Requirements and Guidelines- Active Participation for Disability Support Pension) Determination 2011 (the POS Determination) sets out the requirements for active participation.
Part 2 of the POS Determination states that a person must actively participate in a program of support for 18 months within the three years prior to date of claim, but also provides for certain exceptions to this requirement.
It is agreed that Mr Testar did not actively participate in a program of support prior to the date of his claim. However, he did commence a program of support during the claim period on 6 June 2014.
Therefore if Mr Testar’s combined rating under the Impairment Tables is found to be 20 points or more the definitive issues are whether he has a “severe impairment” or whether he falls within any of the exceptions in the POS determination.
MR TESTAR’S IMPAIRMENT RATING
Paragraph 6(3)(a) of the Impairment Determination stipulates that that an impairment can only be assigned a rating if the condition causing the impairment is “permanent”.
For the purposes of paragraph 6(3)(a) a condition is permanent if:
·the condition has been fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and
·the condition has been fully treated (paragraph 6(4)(b)); and
·the condition has been fully stabilised (paragraph 6(4)(c)).
The Introduction to each Table states that self-report of symptoms alone is insufficient and “there must be corroborating evidence of the person’s impairment”.
It is not disputed that during the claim period Mr Testar’s upper limb conditions and cervical spine condition were fully diagnosed, fully treated and fully stabilised and that an impairment rating under the Impairment Tables could be assigned.
In respect of Mr Testar’ s other claimed medical conditions the respondent contends that during the claim period these conditions were not fully diagnosed, fully treated and fully stabilised and that a rating under the Impairment Tables could not be assigned.
After having reviewed all the medical evidence provided to the Tribunal I am satisfied that during the claim period Mr Testar’s lower back condition, left knee condition, and “COPD”(breathing difficulties) were not fully diagnosed and that a rating under the Impairment Tables could not be assigned..
The claimed mental health condition, “depression”, has not been diagnosed by a psychiatrist or clinical psychologist and, therefore, in accordance with the requirements set out in Table 5, an impairment rating cannot be assigned.
Ischaemic heart disease and chronic obstructive pulmonary disease
A CT coronary angiogram performed on 30 January 2014 is reported as showing mild coronary artery disease.
In a letter dated 3 February 2014, Dr Mortada, cardiologist, noted that the CT coronary angiogram demonstrated non obstructive calcified plaque in the left main coronary artery and no significant disease elsewhere.
Dr Mortada also noted that the stress echocardiogram was terminated due to dyspnoea and suggested that Mr Testar’s symptoms of dyspnoea might be related to poor physical fitness but that pulmonary embolism needed to be ruled out.
In a letter dated 4 February 2014, Dr Mortada noted that a CT pulmonary angiogram performed on 3 February 2014 demonstrated no evidence of pulmonary embolus but demonstrated changes in the lung bases suggestive of some pulmonary congestion.
Dr Mortada prescribed a trial of small doses of Lasix twice daily but made no definitive diagnosis.
In his oral evidence Mr Testar stated that the Lasix was of no benefit and that his breathing symptoms remain undiagnosed.
There is no evidence of any functional impairment in respect of Mr Testar’s mild coronary artery abnormalities and there is no diagnosis to explain his symptom of “dyspnoea”. Therefore I am satisfied that a rating under the Impairment Tables cannot be assigned .
Gastro-oesophageal reflux and hypertension
Mr Testar was diagnosed with gastro-oesophageal reflux and hypertension in 2009. As there is no evidence of ongoing treatment or any functional impairment with respect to these conditions I am satisfied that a rating under the Impairment Tables cannot be assigned.
Cervical spine and shoulder conditions
In 2009 Mr Testar injured his left shoulder at work and after the failure of conservative treatment an arthroscopic rotator cuff repair was performed in January 2010.
In July 2011 Mr Testar was reviewed by Dr Cusi, sports physician, because of left sided facial, neck, shoulder and arm pain. An MRI revealed multi-level cervical spondylosis and Cusi concluded that Mr Testar’s symptoms were more likely to be caused by the cervical spondylosis rather than the left shoulder.
In October 2011, Mr Testar presented with right shoulder pain. He was examined by Dr Sher, orthopaedic surgeon, who noted that Mr Testar had difficulty with forward elevation and overhead activities and that an MRI scan confirmed a partial thickness supraspinatus tear.
On 31 October 2011, Mr Testar was examined by Dr McGee-Collett, neurosurgeon, who concluded that Mr Testar’s neck pain was explained by degenerative change and the upper limb pain was probably due to C6 radiculopathy.
On 11 January 2012, Mr Testar was examined by Dr Bodel , orthopaedic surgeon, for the purpose of worker’s compensation assessment .
Dr Bodel confirmed the diagnosis of disc pathology in the cervical spine with non-verifiable radicular complaints in the left upper limb and rotator cuff pathology in both shoulders.
In assessing Mr Testar’s impairment under the WorkCover Guidelines Dr Bodel noted the following :
·asymmetry of movement and guarding and non-verifiable radicular complaints in the left upper limb
·activities of daily living have been minimally compromised
·degenerative changes at C5/6 and C6/7 is contributing to overall impairment
·restricted range of movement in the right and left upper extremity with the left more restricted than the right.
On 1 May 2012, Mr Testar was examined by Dr Bye, orthopaedic surgeon, for the purpose of worker’s compensation assessment.
Dr Bye noted that Mr Testar complained of constant neck ache which radiates to the left shoulder and left arm and intermittent pins and needles in the left hand which can be reproduced by left lateral tilt of the neck, ongoing ache in both shoulders with poor power and limited range of movement, especially in circumduction and overhead movements. Mr Testar indicated to Dr Bye that he does his own self-care but does nothing in the way of home duties, can drive an automatic power steering car for up to one hour but has no recreational activities.
In his report of 20 May 2014, Dr Capa does not provide sufficient information to assist in the assessment of Mr Testar’s impairment under the Impairment Tables.
In the Job Capacity Assessment report submitted on 6 June 2014 the assessor noted that Mr Testar reported bilateral shoulder range motion restrictions and some restrictions in self-care (e.g. wearing a tie and overhead activities), reduced upper limb endurance, intermittent left upper limb numbness and shooting pains and a preference to carry or lift items with the right upper limb. The assessor noted that he observed discrepancies in Mr Testar’s cervical spine range of movement and self-reported tolerances.
The assessor concluded that Mr Testar suffered mild functional impact on upper limb activities on the basis that he can manage most daily activities requiring the use of hands and arms but has some difficulty with picking up heavier objects, handling very small objects and reaching up or out to pick up objects. The assessor applied a rating of five points under Table 2.
The assessor also concluded that Mr Testar suffered mild functional impact on activities involving spinal function on the basis that he had some difficulty in activity over head height or moving his head and applied a rating five points under Table 4.
Mr Testar told the SSAT that he could lift a large carton of milk with his right hand but not with his left hand, he could carry a full shopping bag but not for very long and he had difficulty opening a screw top bottle but not using a pen and pencil or computer key board.
The SSAT concluded that Mr Testar suffered only mild impairment due to his shoulder condition and applied a rating of five points under Impairment Table 2.
In respect of Mr Testar’s cervical spine condition the SSAT concluded that he had moderate functional impairment on the basis that he can drive a car for at least 30 minutes but cannot sustain overhead activities and applied a rating of 10 points under Table 4.
CONSIDERATION
At the hearing Mr Testar was not able to provide the Tribunal with a reasonable understanding of the nature or severity of the functional impairment caused by his cervical spine and shoulder conditions.
Mr Testar did explain that he is right handed and as the impairment in his right shoulder is significantly less than the left shoulder there is a reduced functional impact on various daily activities.
I am not satisfied that the relevant questions raised by the Impairment Tables have been adequately addressed by the documentary evidence and that there has been sufficient corroboration of Mr Testar’s claimed functional impairment.
A further difficulty arises as a result of suggestions in the medical evidence that the symptoms related to the left arm could be caused by either the left shoulder condition or the cervical spine condition and it is not entirely clear which condition is causing the claimed impairment.
I note that paragraph 10(5) of the Impairment Determination states that when two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single table.
Nevertheless, despite these difficulties, I am satisfied that the evidence supports a conclusion that there is a moderate functional impact on Mr Testar’s activities involving spinal function with the understanding that the left shoulder condition is probably contributing to the impairment particularly with respect to pain and overhead activities. I am satisfied that that the correct rating under Impairment Table 4 is 10 points.
I am also satisfied that the evidence supports a conclusion that there is mild functional impact on activities on hands and arms and that a rating five points under Impairment Table 2 can be applied.
It follows that during the claim period Mr Testar’s combined rating under the Impairment Tables was 15 points which means that he did not satisfy s 94(1)(b) and therefore did not qualify for DSP.
As Mr Testar did not satisfy section 94(1)(b) I do not have to consider the issues in respect of the continuing inability to work.
DECISION
The reviewable decision is affirmed.
58. I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member.
....................[sgd].................................................
Associate
Dated 14 May 2015
Date of hearing 8 April 2015 Applicant In person Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Social Security – pensions – disability support pension
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Impairment Rating
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Functional Impairment
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