Thompson and Secretary, Department of Social Services (Social services second review)
[2023] AATA 3611
•8 November 2023
Thompson and Secretary, Department of Social Services (Social services second review) [2023] AATA 3611 (8 November 2023)
Division:GENERAL DIVISION
File Number(s): 2022/9825
Re:Peter Thompson
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member Professor Ann O'Connell
Date:8 November 2023
Place:Melbourne
The Tribunal sets aside the decision of the Social Services and Child Support Division
of the Administrative Appeals Tribunal dated 8 November 2022 and substitutes a decision that the Applicant met the eligibility requirements of section 94 of the Social Security Act 1991 (Cth) and was qualified for the Disability Support Pension at the date of his claim on 23 March 2022..............................[sgd]...........................................
Senior Member Professor Ann O'Connell
Catchwords
SOCIAL SECURITY – refusal of disability support pension – whether applicant's medical conditions were fully diagnosed, treated, and stabilised – whether impairments rated 20 points or more under the Impairment Tables – whether the impairments rated 20 points or more under a single heading of the Impairment Tables – whether there was a continuing inability to work – decision under review set aside
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth) Sch 2 Cl 4
Cases
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Secretary, Department of Social Services v Doherty [2022] FCA 1242
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023
REASONS FOR DECISION
Senior Member Professor Ann O'Connell
8 November 2023
INTRODUCTION
This case involved an application for a Disability Support Pension (‘DSP’) by the Applicant, Mr Peter Thompson. Mr Thompson lodged a claim for a DSP on 23 March 2022, in which he referred to several physical conditions that impacted his ability to work. The claim was rejected by Centrelink on 1 June 2022 and, on 3 August 2022, this decision was affirmed by an Authorised Review Officer (‘ARO decision’) at Centrelink. Mr Thompson’s appeal to the Social Services and Child Support Division of this Tribunal (‘AAT1 decision’) was heard on 8 November 2022 and was unsuccessful. On 30 November 2022, the Applicant lodged a further appeal with the General Division of this Tribunal.
The hearing was conducted on 20 October 2023 by videoconference. Mr Thompson was self-represented and gave evidence under affirmation. The Respondent (Secretary) was represented by Ms Claire Campbell of HWL Ebsworth Lawyers.
For the following reasons, the Tribunal sets aside the decision under review and substitutes a decision that the Applicant met the eligibility requirements of section 94 of the Social Security Act 1991 (Cth) (‘the Act’) and was qualified for DSP at the date of his claim on 23 March 2022.
BACKGROUND
The Applicant is 66 years old. He came to Australia from England as a child and according to his application for a DSP, he is a permanent resident of Australia. The Applicant lives alone in regional Victoria and is in receipt of Jobseeker. He will qualify for the age pension in April 2024 when he turns 67. Prior to making the claim for a DSP he had worked for approximately 6 months as a truck driver for an abattoir and prior to that for approximately 5 years as a forklift driver.[1]
[1]T docs, 142.
LEGISLATIVE FRAMEWORK
The qualifying requirements for DSP are set out at s 94(1) of the Act. It must be established, inter alia, that:
(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;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system.
The Applicant also satisfies the age requirement (s 94(1)(d)) and the residency requirements (s 94(1)(e) and (ea)). In this regard, the Applicant claims to hold a permanent residency visa which brings him within the definition of Australian Resident under the Act (s 7). The Secretary has not challenged the Applicant’s residency status. As the Applicant is not under 35 years of age, he was not required to meet the participation requirements in s 94(1)(da).
The Impairment Tables referred to in s 94 of the Act are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the 2011 Determination’).[2] The Impairment Tables assign ratings reflecting the level of functional impact a condition has on an applicant. Subsection 6(3) of the 2011 Determination states that an impairment rating can only be assigned if a condition causing an impairment is ‘permanent’ (s 6(3)(a)) and the impairment is ‘more likely than not, in light of available evidence, to persist for more than two years’ (s 6(3)(b)). Subsection 6(4) further states that a condition is permanent if the condition has been ‘fully diagnosed by an appropriately qualified medical practitioner’, has been ‘fully treated’, has been ‘fully stabilised’ and ‘is more likely than not, in light of available evidence, to persist for more than two years’.
[2]Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 came into force on 1 April 2023, but it was accepted that the 2011 Determination was the applicable Determination to deal with the Applicant’s claim.
In relation to whether an impairment is permanent i.e. ‘fully diagnosed and fully treated’ and ‘fully stabilised’, s 6 of the 2011 Determination relevantly states:
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7)For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Section 94(1)(c) of the Act provides that a person (who is not participating in a program as part of the supported wage system) must have a ‘continuing inability to work’. Under s 94(2) a person has a continuing inability to work if:
(a)they have an inability to work due to their accepted impairments for the next 2 years; and
(b)in circumstances where the person does not have a severe impairment, they have actively participated in a Program of Support (‘POS’).
‘Work’ is defined in s 94(5) as 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.
Under s 94(3B) of the Act, a person has a severe impairment if the impairment is 20 points or more under a single Impairment Table. Where a person has a severe impairment under a single Impairment Table, it is still necessary to consider if they have an inability to work for at least 15 hours per week due to their impairment. Where a person’s impairment is not a severe impairment under a single Impairment Table, they must have an inability to work and have actively participated in a POS under s 94(3C) of the Act.
EVIDENCE
The Tribunal took into evidence documents lodged by the Secretary numbering 208 pages and also considered oral evidence given by Mr Thompson at the hearing. Mr Thompson did not tender any additional documents.
The Tribunal considered the medical evidence provided which included the following:
(a)A report from Mr Thompson’s GP, Dr Sarah Hancock of the Carrier Street Clinic, Benalla dated 18 March 2022 which she noted was in support of Mr Thompson’s application for DSP. She noted that she had been treating him since 2014 and that his health had been in decline since 2018. She noted that he had been diagnosed with autoimmune hepatitis in 2019 and that ‘the disease itself and its treatment had left him increasingly frail’. She noted significant fatigue with simple tasks such as shopping for groceries and removing washing from the clothesline. She noted multiple musculoskeletal conditions which cause some impairment to his activities. She noted that left arm rotator cuff issues meant he could only lift up to 2 kg. She noted he could only stand less than 10 minutes due to right knee and left ankle conditions and was limited in bending to knee height due to low back pain. She noted that he ‘very much struggles to pick anything up off the floor’.
(b)A further report from Dr Hancock, dated 7 June 2022 (i.e. following the rejection of the application), again saying she writes in support of the application, repeating the description of Mr Thompson’s conditions and then offering an opinion on the application of the Impairment Tables. She noted:
· [t]here is a moderate functional impact on activities requiring physical exertion or stamina. Peter usually experiences symptoms (shortness of breath and fatigue) when performing light physical activities at home and in the community; due to these symptoms he is unable to walk far outside the home and needs to drive to local shops and community facilities; and has difficulty performing day to day household activities (including his own laundry)
= 10 points
· [t]here is a mild functional impact on activities using hands or arms. He is unable to handle more than 2kg in his left hand
= 5 points
· [t]here is mild functional impact on activities using lower limbs. He is unable to stand unaided for more than 10 minutes
= 5 points
· [t]here is a moderate functional impact on activities involving spinal function. Peter is able to sit in or drive a car for at least 30 minutes, and he is unable to bend forward to pick up a light object placed at knee height
= 10 points.
(c)A report from Dr David Rodgers, also from Carrier Street Clinic dated 29 August 2022. He noted that Mr Thompson has multiple medical problems, which are deteriorating. He noted that he has ‘limited capacity for work including limitations on bending and lifting’; that he is immunosuppressed with significant risk of infections and has ‘a team of health practitioners he needs to see for maintenance, including a general physician, a gastroenterologist, physiotherapist, diabetes educator, podiatrist and optometrist’. He noted that Mr Thompson ‘currently has worsening of his joint pain, particularly in his hands’. He concluded, ‘In my professional opinion, [Mr Thompson] is unfit for work, and will not be able to improve to a degree allowing him the capacity to resume work.’ He then included a list of diagnosed conditions, including:
(i)Haemochromatosis – 1997
(ii)Diabetes Mellitus, Type 2 – 2012
(iii)Autoimmune hepatitis – 2019
(iv)Chronic left hip osteoarthritis - 2019
The Tribunal notes that the report by Dr Rogers is dated 29 August 2022 and so is outside the relevant qualifying period. However, the Tribunal is satisfied that the report relates to the Applicant’s condition during the qualifying period and therefore can be taken into account.[3]
(d)A medical certificate from Dr Rodgers also dated 29 August 2022 that lists the conditions of Mr Thompson as autoimmune hepatitis (primary) and haemochromatosis, diabetes, osteoarthritis hands, knees (secondary). His prognosis is that the symptoms will affect his capacity for work for more than 24 months. In response to the question, ‘Can the patient do any other work for 8 hours or more per week?’, he responded ‘No’.
(e)Medical certificates from Dr Hancock dated 25 March 2022 and 7 June 2022 documented the autoimmune hepatitis, haemochromatosis, diabetes mellitus and osteoarthritis.
(f)Various medical certificates: from Dr Emily Clark dated 8 October 2013 documenting tibial plateau facture (knee) as a result of a motor cycle accident; from Dr Archie Collyer, Carrier Street Clinic, dated 11 June 2019 and 26 June 2019 documenting haemochromatosis; from Dr Sarah Hancock dated 23 July 2019, 30 December 2019 and 25 March 2022 documenting autoimmune hepatitis; from Dr Tim Shanahan, gastroenterologist, dated 20 August 2019, documenting treatment for autoimmune hepatitis; from Dr David Rogers dated 27 November, 6 January 2020 and 16 August 2022 documenting autoimmune hepatitis.
(g)A report from gastroenterologist Dr Lindsay Chow dated 6 December 2021 documenting history of autoimmune hepatitis now in remission, treated with prednisolone and azathioprine. Liver function tests were noted to have normalised and a plan to further decrease medications was proposed.
(h)A musculoskeletal assessment provided by physiotherapist Mr Josh Rankin dated 25 May 2022 documenting past treatment in 2020 for left shoulder pain. He also noted the presence of low back pain aggravated by bending and lifting, and right knee and left ankle pain and also right hand pain.
(i)Various radiological reports including: a lumbar spine X-ray dated 11 May 2012 documenting moderate degeneration at T11/12 and T12/L1; a CT scan of abdomen and pelvis dated 23 May 2019 which also demonstrated facet joint arthritis at L5/S1 (as well as periportal liver oedema); a left ankle X-ray dated 13 March 2013 demonstrating early osteoarthritis of that ankle and an X-ray and ultrasound of the left shoulder dated 15 February 2022 demonstrating degeneration of the acromioclavicular joint and supraspinatus tendinopathy.
[3]Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29].
The Tribunal has also considered the Job Capacity Assessment report (JCAR) on behalf of Centrelink dated 11 May 2022. The assessment was carried out by telephone despite the report noting that a face-to-face assessment had been requested. The report considered Mr Thompson’s medical issues as follows:
(a)In relation to autoimmune hepatitis, it was reported that the condition was verified by a medical practitioner; fully diagnosed, fully treated and fully stabilised;
(b)In relation to haemochromatosis, it was reported that the condition was verified by a medical practitioner; fully diagnosed, fully treated and fully stabilised;
(c)In relation to diabetes, it was reported that the condition was verified by a medical practitioner, fully diagnosed, fully treated and fully stabilised;
(d)In relation to osteoarthritis, it was reported that the condition was verified by a medical practitioner and fully diagnosed but not fully treated or stabilised. The report noted that Mr Thompson reported pain in right knee, left ankle, back, left wrist, right hand and left shoulder;
(e)The report also noted that Mr Thompson’s medical conditions do not prevent him from using public transport without assistance, but it is not clear if this was based on comments by Dr Hancock in her report of 25 March 2022 and if so, whether the question was put to Mr Thompson.
The JCAR includes recommendations as follows:
(a)in relation to autoimmune hepatitis (immunodeficiency) the report recommended a rating of 10 points – moderate functional impact;
(b)in relation to haemochromatosis the report recommended a zero rating on the basis that the impact of fatigue is already captured under the immunodeficiency condition;
(c)in relation to diabetes the report recommended a zero rating on the basis that the fatigue is already captured under the immunodeficiency condition; and
(d)in relation to osteoarthritis no recommendation was made on the basis that the condition had not been fully treated or stabilised.
The JCAR therefore recommended a total rating of 10 points.
ISSUES
The issues for the tribunal to determine are:
(a)the relevant period for Mr Thompson’s claim;
(b)whether Mr Thompson has a physical, intellectual or psychiatric impairment under s 94(1)(a) of the Act; and, if so,
(c)whether Mr Thompson has a physical, intellectual or psychiatric impairment rating of 20 points or more under the Impairment Tables as required by s 94(1)(b) of the Act; and, if so,
(d)whether Mr Thompson also has a ‘continuing inability to work’ as defined in the Act as required by s 94(1)(c) of the Act.
The relevant period
The Social Security (Administration) Act 1999 (‘Administration Act’) relevantly provides, at cl 4(1) of sch 2:
If:
(a) a person … makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
[emphasis added]
The relevant period in all prior proceedings in that matter has been assumed to be the date on the claim form submitted by Mr Thompson (22 March 2022) or within 13 weeks thereafter i.e. ending on 21 June 2022. At the hearing, the representative for the Secretary submitted that as the claim was submitted on the following day i.e. 23 March 2022, the appropriate qualification period was 23 March to 22 June 2022.
The Tribunal notes that in AAT1, the period was assumed to run from 22 March 2022. The Tribunal accepts that the relevant period is 23 March to 22 June 2022, but notes that nothing particular would turn on this as it is not apparent that circumstances differed between the two dates.
Does Mr Thompson have a physical, intellectual or psychiatric impairment?
Mr Thompson has a number of physical impairments. At the relevant time of this claim he had been diagnosed with:
(a)Autoimmune hepatitis;
(b)Haemochromatosis;
(c)Diabetes mellitus;
(d)Various musculoskeletal conditions including osteoarthritis causing lower back pain, right knee and left ankle pain; and
(e)Left shoulder rotator cuff injury.
The Secretary accepts that during the qualification period Mr Thompson suffered from these impairments such that s 94(1)(a) is satisfied. Having considered the evidence before it in the medical reports provided and Mr Thompson’s evidence, the Tribunal finds that he has these conditions. The Tribunal therefore finds that Mr Thompson satisfies s 94(1)(a) of the Act.
Does Mr Thompson have an impairment rating of 20 or more points under the Impairment Tables?
Under s 94(1)(b) of the Act, Mr Thompson’s medical conditions must also attract an impairment rating of at least 20 points according to the Impairment Tables set out in the 2011 Determination. Different decision-makers have reached different conclusions about the appropriate ratings under the Impairment Tables. The original decision maker appears to accept the JCAR recommendation of a total of 10 points; the ARO assigns 20 points (i.e. 10 points under two Tables) and the AAT1 assigns a total of 25 (10 points under two Tables and 5 points under another Table). By contrast Dr Hancock, in her report dated 7 June 2022, suggested a total of 30 points.
To apply the Impairment Tables, s 6(3)(a) of the 2011 Determination provides that the condition must be considered ‘permanent’. For a condition to be permanent it must have been fully diagnosed by an appropriately qualified medical practitioner and been fully treated and stabilised (ss 6(4), (5) and (6) of the 2011 Determination) during the relevant period. The impairment that results from the condition must also be ‘more likely than not, in light of available evidence, to persist for more than two years’ (s 6(3)(b)).
It is necessary to consider each of Mr Thompson’s medical conditions and then consider which, if any, Tables apply. It is then necessary to assess the level of functional impact under the relevant Table.
Haemochromatosis, diabetes mellitus and autoimmune hepatitis
The medical certificate from Dr Hancock dated 30 December 2019 and 25 March 2022 document haemochromatosis since 1997 and treatment by venesections. Those medical certificates also document diabetes and document treatment by insulin. A report from Dr Hancock on 25 March 2022 documents autoimmune hepatitis diagnosed in 2019. A report from Dr Chow, gastroenterologist, dated 6 December 2021 noted that Mr Thompson’s liver condition was completely normal reflecting remission and indicating that the medication (prednisolone) would be reduced over time with a view to cessation.
The Secretary accepts, and the Tribunal finds, that each of these conditions is permanent i.e. fully diagnosed, fully treated and fully stabilised. The Secretary also accepts, and the Tribunal finds, that these conditions are more likely than not to continue for 2 years or more. It is therefore necessary to consider the Impairment Tables to assess the level of functional impairment.
The Secretary accepts that the appropriate Table to consider with respect to haemochromatosis; diabetes and autoimmune hepatitis is Table 1 – Functions requiring Physical Exertion and Stamina. Like the other Tables, Table 1 lists 5 possibilities:
(a)No functional impact (0 points);
(b)Mild functional impact (5 points);
(c)Moderate functional impact (10 points)
(d)Severe functional impact (20 points); and
(e)Extreme functional impact (30 points).
For the categories that attract points (mild, moderate, severe and extreme), the Table contains a number of descriptors that consider symptoms (shortness of breath, fatigue, cardiac pain) and what the person is able to do and not do as a result of the symptoms.
The Secretary argues that the appropriate rating is moderate functional impairment = 10 points. This is consistent with the original decision-maker who rejected the application on the basis that Mr Thompson had a total rating of less than 20 points and the JCAR that assigned 10 points under Table 1. It is also consistent with the decision of the ARO and the Tribunal in AAT1.
Table 1 of the Impairment Tables relevantly provides in relation to a moderate functional impairment and severe functional impairment:
Table 1 - Functions requiring Physical Exertion and Stamina
10
There is a moderate functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii) perform work-related tasks of a clerical, sedentary or stationary nature (i.e. tasks not requiring a high level of physical exertion).
20 There is severe functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii) use public transport without assistance; or
(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
In arguing that the appropriate rating is ‘moderate’ = 10 points, the Secretary relies in part on the fact that Dr Hancock referred to the Impairment Tables in her report dated 7 June 2022, i.e. after the application had been rejected by Centrelink. No doubt she was trying to assist Mr Thompson given that she had recommended that he apply for DSP. In the absence of evidence as to whether she had detailed knowledge of the Tables and whether she had formed a view that the Applicant did not fall with the severe rating, no real weight should be attached to this part of the report.
The Secretary also relied on the fact that prior to the application, Mr Thompson had been working full-time as a truck driver as evidence that he retained reasonable functional capacity during the relevant period. The Tribunal does not accept that this prior work history can inform functional capacity during the relevant period because it was precisely because Mr Thompson was not coping with this employment that, according to evidence given my Mr Thompson, his doctor advised him to cease work and apply for DSP.
It is therefore necessary for the Tribunal to consider afresh the appropriate rating. In relation to symptoms, the oral evidence from Mr Thompson was that he usually experiences fatigue when performing day to day activities. He can shower and dress himself, prepare light meals and perform some basic household tasks. However, he relies on two friends who alternate with helping him with shopping and with household tasks such as changing sheets on his bed and doing washing.
Table 1 list a number of activities and asks whether the person is able/unable to do those tasks. In relation to severe functional impact the activities are: shopping (is the person unable to walk around a shopping centre or walk from the carpark into a shopping centre or supermarket without assistance?); use of public transport (is the person unable to use public transport without assistance?); performing day to day household activities (is the person unable to perform day to day household activities e.g. folding and putting away laundry or light gardening?) (Table 1, Severe, item 1(a)(i)-(iv)).
In relation to shopping, Mr Thompson gave oral evidence that he can drive to local shops and, relying on the supermarket trolley, can do a small shop but that he relies on friends to do a bigger shop. The representative for the Secretary contended that the fact that Mr Thompson needed to walk with the assistance of a supermarket trolley was irrelevant as the reference to ‘without assistance’ only refers to assistance from another person. This argument has been considered in a number of cases, most recently in Secretary, Department of Social Services v Doherty [2022] FCA 1242. The argument is that because s 9 states that a person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has or usually uses, the words in the Tables ‘without assistance’ mean without the assistance of another person. In Doherty for example, the person’s impairment was to be assessed when the person was using a wheelchair or walking frame. The Tribunal notes that s 9 refers to aids that the person usually uses and that by contrast with Doherty, reliance on a shopping trolley is not the same as using a wheelchair or walking frame. In any event, even if it is concluded that Mr Thompson can walk around a shopping centre, there are other activities that need to be considered.
Mr Thompson was asked about whether he can use public transport and he responded that he would if there was any but that there was no public transport available in Benalla. In this regard, it is not possible to conclude whether Mr Thompson is able or unable to use public transport.
In relation to household activities, Mr Thompson gave oral evidence that he can do light meal preparation and some light housework but that he relies on friends to do household tasks such as changing the bed sheets and hanging up washing. In this regard, the Tribunal finds that Mr Thompson is unable to do the types of household tasks referred to in the Table relating to severe impairment.
The ‘severe’ heading in Table 1 also requires an assessment be made about performing work related activities (i.e. is the person likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours?). In relation to work-related tasks, the Tribunal notes that Mr Thompson’s previous occupation was truck driving. The Tribunal also notes that it did not require him to load or unload the truck so the nature of the work was essentially sedentary. The Tribunal also notes that based on the evidence of Mr Thompson, his GP advised him to give up that work in 2022 and to apply for DSP.
A second doctor advised that he was ‘unfit for work’ (Dr Rogers’ report dated 29 August 2022). A medical certificate from Dr Rogers dated 16 August 2022 when asked, ‘can the patient do any work for 8 hours or more per week?’ answered, ‘No’. In his report dated 29 August 2022, Dr Rogers concluded, ‘In my professional opinion, [Mr Thompson] is unfit for work, and will not be able to improve to a degree allowing him the capacity to resume work’.
The Tribunal finds that as a result of his medical conditions namely, autoimmune hepatitis, haemochromatosis and diabetes mellitus, Mr Thompson is unable to perform day to day household activities; and that he has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours. The Tribunal concludes that the appropriate rating under Table 1 is severe functional impairment = 20 points.
Musculoskeletal conditions: left shoulder pain, low back pain, right knee pain, left ankle pain, right hand pain
The reports from Dr Hancock (18 March 2022) and from Dr Rodgers (29 August 2022) document osteoarthritis with associated functional impairments.
The report by Mr Josh Rankin, physiotherapist, on 25 May 2022 detailed the findings of restriction of function in these regions. In relation to left shoulder pain, he noted that Mr Thompson experiences pain and weakness in the left shoulder that is possibly related to an injury more than 30 years ago. He noted that the range of movement was limited to 85 degrees of elevation, and he could reach his hand behind his medial buttock. He also noted that there was resistance to external rotation and that elevation of the arm was weak and painful. In relation to lower back pain, he noted that ‘Mr Thompson’s forward trunk flexion was significantly limited and there was some difficulty lifting items from the floor’. In relation to right knee pain, he noted that Mr Thompson ‘experiences ongoing knee pain and limitation secondary to this’. In relation to left ankle pain he noted that ‘the range of motion of the ankle was heavily restricted with pain reproduced in all planes of movement’ which ’would have a direct influence on ease of walking and other functional movements such as squatting’. In relation to right hand pain, he noted ‘Mr Thompson has pain and stiffness in his right hand’ and that ‘there is bony enlargement of the 2nd-3rd metacarpophalangeal joints suggestive of osteoarthritis’. He noted that ‘making a full fist was difficult’. The report noted that Mr Thompson had had four physiotherapy treatments for left shoulder pain across April and May of 2020.
There is radiological documentation from 2012 and 2013 demonstrating degeneration in the low thoracic and lumbar spine and arthritis of the left ankle. There is a history of right knee trauma (though the X-ray undertaken on 15 February 2022 demonstrated loose bodies only and no joint effusion).
The report from Dr Hancock dated 18 March 2022 documented Mr Thompson’s multiple musculoskeletal conditions and also left arm rotator cuff pathology. She noted he could only stand less than 10 minutes due to right knee and left ankle impairment and was limited in bending to knee height due to low back pain. The medical certificates from Dr Hancock dated 25 March 2022 and 7 June 2022 documented osteoarthritis.
The report from Dr Hancock dated 7 June 2022 documented limited spinal function (‘[t]here is a moderate functional impact on activities involving spinal function: Peter is able to sit in or drive a car for at least 30 minutes, and he is unable to bend forward to pick up a light object placed at knee height = 10 points’) and mild impairment of lower limb function (‘[t]here is a mild functional impact on activities using lower limbs. He is unable to stand unaided for more than 10 minutes’).
The Tribunal has considered the available medical evidence and agrees with the AAT1 that there is documentation to support the view that the lumbar pain and lower limb joint pain has been fully diagnosed, fully treated and fully stabilised.
The Tribunal agrees with AAT1 that this may be assessed as 10 impairment points under Table 4 (Spinal function) and 5 impairment points under Table 3 (Lower limb function). This warrants a total impairment of 15 impairment points under the Impairment Tables for these musculoskeletal conditions.
Left shoulder rotator cuff injury
A radiological report dated 15 February 2022 from Dr Brian Dubowitz documents degeneration of the acromioclavicular joint and supraspinatus tendinopathy. The report from Dr Hancock dated 18 March 2022 noted left arm rotator cuff pathology.
The report from Mr Josh Rankin, Peak Sports Physiotherapy, dated 25 May 2022 documented that Mr Thompson had a number of musculoskeletal complaints, including left shoulder pain.
The Tribunal has considered the available medical evidence and considers that there is documentation to confirm the diagnosis of shoulder degeneration including rotator cuff pathology. However, there is insufficient evidence to consider Mr Thompson’s shoulder degeneration as fully diagnosed, fully treated and fully stabilised at the date of claim. No assessment may be made under the Impairment Tables in relation to the rotator cuff condition.
The Tribunal finds that Mr Thompson had a total rating of 35 points under the Impairment Tables in the 2011 Determination.
Does Mr Thompson have a continuing inability to work?
The third requirement under s 94 of the Act is that the Applicant has a ‘continuing inability to work’ because of the impairment (s 94(1)(c)). The requirements under s 94(1)(c)) differ depending on whether the impairment is severe or not.
A person will have a ‘continuing inability to work’ if:
(a)in a case where the person’s impairment is not a severe impairment: the person has had an opportunity to participate in a POS (s 94(2)(aa)).;
(b)in all cases: where the impairment is of itself sufficient to prevent the person from doing any work (as defined in s 94(5) of the Act) within the next 2 years (s 94(2)a)); and
(c)in all cases: where the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years or if the impairment does not so prevent the person, the training activity must be unlikely, because of the impairment, to enable them to do any work independently of a POS within the next two years (s 94(2)(b)).
Under s 94(3B) a person’s impairment is a ‘severe impairment’ if the person’s impairment is 20 points or more under a single Impairment Table.
As the Tribunal has found that Mr Thompson does have an impairment rating of 20 points under a single Impairment Table, he does have a ‘severe impairment’. This means he does not have to have actively participated in a POS for a period of 18 months within the 36 months prior to the claim on 23 March 2022 or have been discharged from such a program prior to the claim (s 94(2)(aa)). It is however still necessary to consider the other requirements relating to a continuing inability to work, namely whether the impairment prevents him from doing any work or undertaking a training activity in the next 2 years.
It is clear from the medical evidence that Mr Thompson is significantly impacted by a range of medical conditions. He ceased work in February 2022 on the advice of his GP and made an application for DSP in March 2022.
The opinion of both his treating doctors (Dr Hancock and Dr Rodgers) was that he was unfit for any work as a result of his impairments. In the medical certificate provided by Dr Hancock on 25 March 2022 and the medical certificate from Dr Rodgers dated 16 August 2022, in response to the question ‘Estimate how long the symptoms will affect the patient’s capacity to work or study?’, both doctors respond, ‘more than 24 months’. Neither doctor addressed the issue of undertaking a training program but given the prognosis and Mr Thompson's age, it is unlikely that a training program would enable him to do any work in the next two years. As a result, the Tribunal finds that the requirements of s 94(1)(c) have been fulfilled.
The Tribunal concludes that Mr Thompson therefore does meet the requirements for a continuing inability to work.
CONCLUSION
The Applicant did satisfy ss 94(1)(a), (b) and (c) of the Act during the relevant period. As a result, Mr Thompson did meet the qualification requirements for DSP at the date of claim on 23 March 2022.
DECISION
The Tribunal sets aside the decision of the Social Services and Child Support Division
of the Administrative Appeals Tribunal dated 8 November 2022 and substitutes a decision that the Applicant met the eligibility requirements of section 94 of the Social Security Act1991 (Cth) and was qualified for the Disability Support Pension at the date of his claim on 23 March 2022.
I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member O’Connell
.................[sgd].......................................................
Associate
Dated: 8 November 2023
Date(s) of hearing: 20 October 2023 Date final submissions received: 28 September 2023 Applicant: In person Advocate for the Respondent Ms C Campbell Solicitors for the Respondent: HWL Ebsworth Lawyers
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