Tony BEE and Secretary, Department of Social Services

[2015] AATA 303

[2015] AATA 303

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/3601
Re	Tony BEE
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	7 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

REASONS FOR DECISION

Dr Ion Alexander, Member

7 May 2015

BACKGROUND

1. On 18 March 2013 and 18 December 2013 Mr Bee lodged claims for Disability Support Pension (DSP) on the basis that his medical conditions were having an impact on his ability to function.

2. Mr Bee did not describe his medical conditions in the claim forms and relied on two Centrelink medical reports dated 14 March 2013 and 17 December 2013 provided by his GP, Dr Saeed.  For present purposes the relevant conditions listed by Dr Saeed are a spinal condition (cervical and lumbosacral), a lower limb condition (left ankle), an upper limb condition (left shoulder) and a mental health condition (depression).

3. Mr Bee’s claims were 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, s 94(1)(b) of the Act in that his impairment rating under the Impairment Tables was not 20 points or more.

4. In this proceeding Mr Bee seeks review of the SSAT’s decision on 24 June 2014.

5. At the hearing Mr Bee was self-represented and was able to give oral evidence. Mr Bee was offered the services of an interpreter in the Turkish language but he declined.

6. I note that Mr Bee lodged a further claim for DSP on 10 December 2014 which was rejected by Centrelink on 22 December 2014.

   ISSUES

7. In order to qualify for DSP Mr Bee had to satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between either 18 March 2013 and 17 June 2013 (claim period 1) or between 18 December 2013 and 19 March 2014 (claim period 2).

8. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

9. For the purposes of paragraph 6(3)(a) a condition is permanent if the condition is:

   ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)), and

   ·fully treated (paragraph 6(4)(b)), and

   ·fully stabilised (paragraph 6(4)(c)).

10. Table 5 of the Determination is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition. The Introduction to Table 5 states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.

11. It is agreed that Mr Bee suffers various medical conditions and therefore satisfies s 94(1)(a) of the Act.

12. It is also agreed that during both claim periods all the conditions suffered by Mr Bee, as noted above, were permanent for the purposes of the Act and that a rating under the Impairment Tables could be applied for each of the conditions.

13. The Respondent contends that during the claim periods Mr Bee’s spinal condition warranted a rating of five points under Table 4 and his mental health condition a rating of five points under Table 5.

14. The Respondent also contends that during the claim periods Mr Bee’s upper limb and lower limb conditions each warranted a rating of zero points under the Impairment Tables and that as the composite impairment rating was only 10 points he did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.

15. Alternatively, the Respondent contends that if the Tribunal were to find that Mr Bee did have a rating of 20 points or more under the Impairment Tables, he did not satisfy s 94(1)(c) in that he did not have a continuing inability to work on the basis that he did not satisfy the requirements in s 94(2)(aa) with respect to active participation in a program of support.

16. Therefore, the definitive issues in this proceeding are whether during either claim period Mr Bee’s composite rating under the Impairment Tables was 20 points or more and if so, whether he had a continuing inability to work.

    Mr Bee’s Spinal Condition

17. Mr Bee has had several radiological studies which demonstrate various abnormalities in his cervical and lumbo-sacral spine with no evidence of nerve root compression.

18. Mr Bee told the SSAT that he has pain in his lower back and neck all the time, sleeps poorly and gets numbness in his fingers. When driving a car he is able to turn his head and neck from side to side and up and down but has some difficulties with taking things from a shelf or cupboard and bending down to pick up things from the floor.

19. In a Job Capacity Assessment (JCA) report submitted on 11 June 2013 it was noted that Mr Bee “reported experiencing pain that increases after prolonged sitting or with activities such as taking out the rubbish or physical activities”.

20. In a JCA report submitted on 23 January 2014 it was noted the Mr Bee explained that “he is able to manage all ADL’s [Activities of Daily Living] and drive despite this condition. He is independent of self care activities, bend down to pick up objects, negatiate [sic] stairs, lift/carry no more than 2 kilograms each hand, and reach for overhead items if not too high”.

21. At the hearing Mr Bee did not provide any additional information apart from confirming that his main problem is pain, particularly in his lower back, which is worse after prolonged sitting but does improve with mobilisation.

22. The two reports by Dr Saeed are somewhat illegible and provide no additional useful information in respect of the functional impact of Mr Bee’s spinal condition.

23. On consideration of the evidence and the relevant descriptors in Table 4 I am satisfied that there is a mild functional impact on Mr Bee’s activities which involve spinal function and that a rating of five points can be applied.

    Mr Bee’s Upper Limb Condition

24. In his oral evidence Mr Bee told the Tribunal that he injured his left shoulder about thirty years ago after falling from a horse and since then he has suffered intermittent pain and restriction of movement, particularly when raising his left arm above shoulder height.

25. An MRI examination of the left shoulder on 17 February 2013 revealed some abnormalities in the rotator cuff tendons.

26. Mr Bee told the SSAT that he is able to handle small objects such as coins, can do up buttons and “can reach up and out to pick up objects”.

27. In his oral evidence Mr Bee stated that he is left handed and confirmed that he has no difficulty with writing or doing up buttons and does not require any assistance with dressing  or other self–care activities.

28. The two JCA reports and Dr Saeed’s reports provide no additional assistance on this issue.

29. On consideration of the evidence and the relevant descriptors in Table 2 I am satisfied that there is no functional impact on Mr Bee’s activities using hands or arms and that the correct rating to be applied is zero points.

    Mr Bee’s Lower Limb Condition

30. In November 2012 Mr Bee had an operation on his left ankle which was described in the JCA report of 23 January 2014 as “removal of exostosis heel” and “reattached Achilles tendon”.

31. An MRI of the left ankle performed on 18 February 2013 is reported to show “severe chronic Achilles tendinosis with a high grade partial thickness tear of the tendon localized 5cm proximal to the insertion”.

32. The JCA assessor noted that Mr Bee reported experiencing a relapse of pain in his left ankle after the operation. Nevertheless, Mr Bee explained that he was able to manage all his daily activities, drive a car, negotiate stairs and walk and stand for 10 minutes despite this condition.

33. In the course of a telephone conversation on 30 April 2014 Dr Saeed told the Authorised Review Officer that the surgeon had said there was no point in further surgery to the left ankle and that it would heal by itself.  The surgeon also said that intermittent pain may persist and that in the future injections may be required to reduce inflammation.

34. Mr Bee told the SSAT that he is able to walk from home to the nearest bus stop, can stand for 10 minutes, go up and down two flights of stairs and when at the shops he is able to collect his items and carry the shopping bags home.

35. In his oral evidence Mr Bee confirmed he gets intermittent pain in his left ankle but can negotiate stairs, walk to the bus stop which is about 200 metres from home and can stand unaided for more than 10 minutes.

36. Dr Saeed’s medical reports do not provide any additional assistance on this issue.

37. On consideration of the evidence and the relevant descriptors in Table 3 I am satisfied that there is no functional impact on Mr Bee’s activities requiring use of the lower limbs and that the correct rating to be applied is zero points.

    Mr Bee’s Mental Health Condition

38. In November 2012 Mr Bee was seen by Dr Allam, consultant psychiatrist, who diagnosed “adjustment disorder with depressive mood”.

39. In a letter dated 26 November 2012 Dr Allam noted that Mr Bee had been treated with antidepressant medication for 10 years with no apparent benefit but “he felt very much better with ecsitalopram 20mg now” and that on this current medication he is not as tearful as before and his appetite is good but that occasionally he has poor sleep because of back pain and numbness in the limbs.

40. Dr Allam recommended that treatment with ecsitalopram be continued for 12 months.

41. Mr Bee told the SSAT that he still takes medication for depression, lives alone, is able to look after himself and that on most days he goes to a “Turkish café” to meet and talk to his friends. He explained that he used to go to clubs, does not read books but does watch television and regularly sees his two sons who live with his first wife.

42. The SSAT stated that:

    Mr Bee came across as an unhappy, anxious and tearful individual who has found it difficult to integrate into his adopted country. He has some difficulty with interpersonal relationships and has been through marital breakdown. At the hearing he was unable to concentrate upon the tribunal’s questions but did not display disordered thought processes. Mr Bee has few social contacts and recreational activities. He is not psychotic.

43. The SSAT concluded that Mr Bee suffered mild functional impact on activities involving mental health function and assigned a rating of five points under Table 5.

44. In his oral evidence Mr Bee explained that he now lives in an apartment with his second wife but that they remain “separated”. He continues to care for himself but gets some assistance from his wife with domestic duties such as washing, cleaning and cooking.

45. He confirmed that he goes to the Turkish Community Centre (“cafe”) at Dulwich Hill daily where he spends time with his friends, drinks coffee, plays cards and watches Turkish television programs and news. He also confirmed that he is able to travel alone and has no difficulty with using public transport.

46. Mr Bee indicated that he has a good relationship with his two sons from his first marriage and that he sees them frequently.

47. The two JCA reports and Dr Saeed’s reports provide no additional assistance on this issue.

48. After consideration of the evidence and the relevant descriptors in Table 5 I am satisfied that during the claim periods there was a mild functional impact on Mr Bee’s activities involving mental health function and that a rating of five points can be applied.

    DECISION

49. For the reasons set out above I am satisfied that during the two claim periods Mr Bee’s rating under the Impairment Tables was not 20 points or greater and therefore he did not satisfy section 94(1)(b) of the Act and was not qualified for DSP.

50. Although I do not have to decide whether during the claim periods Mr Bee had a continuing inability to work, I note that the evidence before the Tribunal is such that even if Mr Bee did have a rating of 20 points or more under the Impairment Tables he would not have qualified for DSP because he could not satisfy the requirements of s 94(2)(aa). He did not have a “severe impairment” under one Impairment Table and he had not “actively participated” in a program of support.

51. The decision under review is affirmed.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member.

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

Associate

Dated 7 May 2015

Date of hearing	21 April 2015
Applicant	In person
Solicitors for the Respondent	Mr G Lozynsky, Department of Human Services