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

[2017] AATA 240

Towner; Secretary, Department of Social Services and (Social services second review) [2017] AATA 240 (24 February 2017)

Division:GENERAL DIVISION

File Number:2016/1759           

Re:Secretary, Department of Social Services 

APPLICANT

Christopher TownerAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member  

Date:24 February 2017

Place:Sydney

The reviewable decision of the Social Security and Child Support Division of the Tribunal dated 1 March 2016 is set aside and in substitution, the Tribunal decides that Mr Christopher Towner did not satisfy subsection 94(1)(b) of the Social Security Act 1991 (Cth) at the date of cancellation on 4 November 2015.

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

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – multiple conditions – whether applicant’s impairments are rated 20 points or more under the Impairment Tables – whether Applicant has a continuing inability to work – spine condition – upper limb condition – other conditions - decision set aside and substituted

LEGISLATION

Social Security Act 1991 (Cth) sections 27(3)(4), 94(1)

Social Security (Administration) Act 1999 (Cth) sections 80(1), 118(13)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr L Bygrave, Member

24 February 2017

1. The Respondent, Mr Christopher Towner, was granted the disability support pension from 15 September 2010.

2. On 4 November 2015, the Department of Human Services (Centrelink) decided to cancel Mr Towner’s disability support pension. Mr Towner applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal for review of the decision.

3. On 1 March 2016, the SSCSD set aside the decision made by Centrelink. The basis of the SSCSD decision was that Mr Towner satisfied the requirements of subsections 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth) (the Act) at the date of cancellation on 4 November 2015.

4. The Secretary of the Department of Social Services (Secretary) applied to the General Division of the Administrative Appeals Tribunal on 6 April 2016 for a review of the SSCSD decision.

5. The matter was heard in Sydney on 6 February 2017. Mr Towner attended the hearing by telephone and was assisted by his partner.

   RELEVANT LEGISLATION AND ISSUES

6. The power for the Secretary to cancel Mr Towner’s disability support pension is contained in section 80(1) of the Social Security (Administration) Act 1999 (Cth) (Administration Act). Pursuant to section 118(13) of the Administration Act, the cancellation decision takes effect on the day on which it was made, in this case on 4 November 2015 (date of cancellation).

7. In assessing whether Mr Towner qualified for the disability support pension in 2015, Centrelink was required to apply the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination), pursuant to sections 27(3) and (4) of the Act.

8. Section 94(1) of the Act provides that a person qualifies for the disability support pension 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)the person has a continuing inability to work as defined by the Act.

9. Mr Towner had to satisfy these criteria at the date of cancellation.

10. The Secretary concedes and the Tribunal agrees that Mr Towner suffers medical conditions that cause impairment and therefore, satisfied subsection 94(1)(a) of the Act at the date of cancellation.

11. It follows that the determinative issues in this matter are whether, at the date of cancellation, Mr Towner had:

    (a)an impairment rating of 20 points or more under the Impairment Tables; and

    (b)a continuing inability to work as defined in section 94(2) of the Act.

    Does Mr Towner have medical conditions that can be rated at 20 points or more under the Impairment Tables?

12. The Impairment Tables Determination requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. As set out in paragraph 6(4) of the Impairment Tables Determination, a condition is permanent if it:

    ·has been fully diagnosed by an appropriately qualified medical practitioner; and

    ·has been fully treated; and

    ·has been fully stabilised; and

    ·is more likely than not to persist for more than two years.

13. The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.

14. The Introduction to each relevant Table requires that ‘[s]elf-report of symptoms alone is insufficient’ and ‘[t]here must be corroborating evidence of the person’s impairment’.

15. The medical conditions of Mr Towner set out in the disability support pension medical report completed by Dr L D Edema (General Practitioner) on 6 July 2015 are:[1]

    ·degenerative disc disease of spine – spine condition; and

    ·arthritis of hands – upper limb condition.

    [1] Exhibit T1-T14, p 140.

16. I now consider Mr Towner’s medical conditions and their relevant rating under the Impairment Tables.

    Spine condition

17. In the disability support pension medical report dated 6 July 2015, Dr Edema diagnosed Mr Towner with degenerative disc disease of the spine; he had symptoms of chronic back pain that restricts mobility and is treated with analgesics.[2]

    [2] Exhibit T1-T14, pp 140-142.

18. A whole body bone scan of Mr Towner by Dr Quyen Nguyen on 25 March 2015 concluded there was ‘[n]o scan evidence of significant active lumber facet arthritis, lumbar stress fracture, sacroiliac arthritis, or other focal bony abnormality in the lumbar spine, hips or pelvis.’[3]

    [3] Exhibit T1-T10.

19. An MRI of Mr Towner’s lumbosacral spine performed by Dr Yogesh Thakkar on 3 May 2015 found:

    The bony alignment is normal.

    There is disc dehydration at L1/2 level. Mild disc bulges are identified at L1/2 and L3 to S1 levels. No significant thecal sac compression or canal stenosis seen. No significant narrowing of the exit foramina identified…[4]

    [4] Exhibit T1-T12.

20. Dr David Spencer (Rheumatic Diseases) stated on 17 April 2015 that Mr Towner had:

    … no muscle wasting in either leg. All spinal movements were tentative but smooth and restricted to about fifty per cent of normal. Shoulders moved normally, all other joints of the upper limbs moved normally as also did those in the lower limbs. Reflexes in upper and lower limbs were equal and symmetrical …

    I viewed the CT of the spine which I thought was unremarkable as also was a bone scan of the spine …[5]

    [5] Exhibit A2.

21. The Secretary referred Mr Towner for an independent clinical assessment, which was undertaken by Dr Peter Cook (Occupational Physician). On 29 June 2016, Dr Cook summarised Mr Towner’s spine condition as follows:

    Mr Towner has had low back pain for over five years. He has constant pain with intermittent increases. At times the pain radiates to his hips. He has been treated with physiotherapy and analgesia. He has not had any injections or surgery. At various times in the past he has tried baclofen, tramadol and Endone. He had ceased these and now only takes Panadol Osteo or Nurofen. His symptoms have been stable for a prolonged period of time and no further treatment is planned.[6]

    [6] Exhibit A4, p 5.

22. At the Tribunal hearing, Mr Towner said he has constant pain in his back. He undertakes few household chores; he is unable to wash, hang or fold clothes, vacuum, or garden. He is only able to lift and carry light grocery items. He occasionally cleans some dishes or makes himself a sandwich. He is able to shower and wash his hair but sometimes requires assistance from his partner to dress himself, tie his shoelaces or get out of bed. He occasionally drives short distances to his parent’s home (approximately 700 metres distance) or the local shopping centre (approximately 900 metres distance). He is also able to walk to his parent’s home, although this takes him about 20 minutes and he needs to stop and rest. He does not require a walking stick or aid to walk.

23. Mr Towner is in the process of completing a Diploma of Digital and Interactive Games, which he studies from home between 10 to 15 hours per week. He told the Tribunal he is only able to sit at a computer for short periods; he sits for about 15 minutes before resting for 15 to 20 minutes. The impact of his back pain is episodic, which varies the functional impact of his spine condition and level of assistance he requires.

24. Based on the medical evidence before the Tribunal, I am satisfied that Mr Towner’s spine condition was fully diagnosed, fully treated and fully stabilised at the date of cancellation. In accordance with the information at Table 4 – Spinal Function, I find that Mr Towner’s condition had a moderate functional impact on activities involving spinal function at the date of cancellation and assign an impairment rating of 10 points for this condition. In making this assessment, I have regard to paragraph 11(4) of the Impairment Tables Determination, which states that episodic and fluctuating conditions should reflect ‘the overall functional impact of those impairments’.

    Upper limb condition

25. In the disability support pension medical report dated 6 July 2015, Dr Edema stated Mr Towner had arthritis of hands and chronic hand pain.

26. On 25 March 2015, Dr Nguyen reported on the whole body bone scan of Mr Towner. In relation to Mr Towner’s hands condition, he concluded:

    In the clinical setting, the scan appearances are most in keeping with mild degenerative arthritis in the MCP and PIP jonts [sic] of both hands ... No scan evidence of significant active synovitis.[7]

    [7] Exhibit T1-T10.

27. Dr Spencer noted in his report dated 17 April 2015 that ‘the uptake in [Mr Towner’s] hands was fairly normal’.[8]

    [8] Exhibit A2.

28. The report of Dr Cook dated 29 June 2016 opined that Mr Towner’s hands condition was not fully diagnosed, fully treated and fully stabilised at the date of cancellation because the condition ‘had not at that stage been fully investigated in order to determine the diagnosis’. He further noted that,

    before concluding he had a permanent condition having a major impact on his ability to work I think it would have been reasonable to exclude all possible diagnoses which may have allowed further treatment.[9]

    [9] Exhibit A4, p 8.

29. A report by Dr Mark Liew (Rheumatologist) dated 17 August 2016 diagnosed Mr Towner with ‘[e]arly osteoarthritis small joints of the hands’; his fist formation was complete but his grip strength was diminished bilaterally.[10] However, I note that the date of this report was more than nine months after the date Mr Towner’s disability support pension was cancelled.

    [10] Exhibit R1.

30. Mr Towner told the Tribunal that his condition in his hands has worsened. He is able to use a computer, including typing on a keyboard and using a mouse, although he requires periods of rest after about 15 minutes. He is able to open a jar using a tool and use the TV remote. He drives a car, which involves turning a key and holding a steering wheel.

31. Having regard to Dr Cook’s report and the medical evidence before me, I am not satisfied that Mr Towner’s hands condition was fully diagnosed, fully treated and fully stabilised at the date of cancellation. As I am not satisfied that his condition was permanent at the date of cancellation, I cannot assign an impairment rating.

    Other conditions

32. The Job Capacity Assessment Report dated 13 August 2015 noted that Mr Towner has been diagnosed with asthma, a condition that is fully diagnosed, fully treated and fully stabilised.[11] At the Tribunal hearing, Mr Towner stated his asthma condition did not affect his ability to function. I therefore do not assign an impairment rating to this condition.

    [11] Exhibit T1-T16, pp 155-156.

    CONCLUSION

33. For the reasons set out above, I am satisfied that Mr Towner did not meet the requirements of subsection 94(1)(b) of the Act at the date of cancellation as his impairments were not 20 points or more under the Impairment Tables.

34. As I find that Mr Towner did not qualify for the disability support pension at the date of cancellation, it is not necessary for me to consider whether he had a continuing inability to work.

35. If Mr Towner’s circumstances change, he is entitled to submit a new application for the disability support pension at any time.

    DECISION

36. The reviewable decision of the SSCSD dated 24 November 2015 is set aside and in substitution, the Tribunal decides that Mr Towner did not satisfy subsection 94(1)(b) of the Act at the date of cancellation on 4 November 2015.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated:            24 February 2017

Date of hearing:	6 February 2017
Advocate for the Applicant:	Ms T Shannon
Solicitors for the Respondent:	Dr S Thompson and Ms G Heggen, Department of Human Services