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

[2018] AATA 2665

Troendle and Secretary, Department of Social Services (Social services second review) [2018] AATA 2665 (7 August 2018)

Division:GENERAL DIVISION

File Number:           2018/2070

Re:John Troendle

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:7 August 2018

Place:Sydney

The decision under review is affirmed.

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

Bill Stefaniak AM RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant qualified for disability support pension – diabetes – lower limb condition – whether applicant’s conditions rated at 20 points or more under the Impairment Tables – whether applicant has a continuing inability to work – decision affirmed

LEGISLATION

Social Security Act 1991 s 94

Social Security (Administration) Act 1999 s 42, sch 2

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

REASONS FOR DECISION

Bill Stefaniak AM RFD, Senior Member

7 August 2018

BACKGROUND

1. The applicant left school after completing year 10 and then undertook an apprenticeship as an electrician. He completed his apprenticeship in 1979. From 1975 until July 2013 he worked as an electrician.

2. The applicant was laid off in 2013 and as he was experiencing problems with his feet, especially his right foot, diabetes and other ailments he was unable to return to work.

3. The applicant had superannuation and work insurance through his superannuation scheme and so he received a monthly wage for two years after he ceased work. At the end of that period, in April 2017, he received a lump sum of $110,000 and he has been living off that since.

4. He has been advised that due to his super scheme and the fact that he is not affected by any settlement payments he can claim a disability support pension (DSP) provided he meets the criteria. That advice appears correct and at any rate there is no dispute about his right to claim a pension. The dispute is in relation to whether he satisfies the criteria.

5. On 16 March 2017, the applicant lodged a claim for DSP. The claim was initially rejected by the Department of Human Services on 13 September 2017, and by an Authorised Review Officer (ARO) on 12 December 2017.

6. The applicant then appealed to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). The AAT1 affirmed the decision to reject the applicant’s claim for DSP on 8 March 2017.

   QUALIFICATION FOR DISABILITY SUPPORT PENSION

7. To qualify for DSP, the applicant must satisfy the criteria set out in subsection 94(1) of the Social Security Act 1991, which are that:

   (a)the applicant has a physical, intellectual or psychiatric impairment; and

   (b)the impairment is of 20 points or more under the Impairment Tables; and

   (c)the applicant has a continuing inability to work.

8. The “continuing inability to work” criterion is satisfied either by the applicant having a “severe impairment” (i.e. an impairment of 20 points or more, including 20 points or more under a single Impairment Table) or having actively participated in a program of support.[1]

   [1] Social Security Act 1991, subsection 94(2).

9. The applicant must satisfy these criteria on the day he applied for DSP or within the following 13 weeks, that is 16 March 2017 to 15 June 2017 (the claim period).[2]

   [2] Social Security (Administration) Act 1999, section 42 and schedule 2.

10. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. For a condition to be assigned an impairment rating, it must be permanent[3] i.e. it must be fully diagnosed, fully treated, fully stabilised and likely to persist for more than two years.[4]

    [3] Subsection 6(4).

    [4] Subsection 6(5).

    THE CONDITIONS

11. There is no dispute that the applicant suffered from a number of conditions that were fully diagnosed, treated and stabilised during the claim period. Those conditions were diabetes mellitus, Charcot’s foot (right foot) with an ulcer in the left foot, diabetes retinopathy and hypertension. It was also uncontested that he had eye issues which were diagnosed, although at the time of the claim period were not a problem but may in future result in the need to have a cataract removed.

12. Both parties were really in furious agreement in this case as to the ailments and the status of those ailments, both as at the claim period and as at now. The respondent did not cross-examine the applicant as such and relied on the previous findings except for one.

13. It was accepted by the parties that all the conditions except the lower limb condition (Charcot’s foot and the ancillary lower limb conditions) and possibly diabetes in general were not capable of being awarded points under the Impairment Tables as at the claim period and perhaps even now. The conditions were well managed and would have resulted in an allocation of zero points. The Tribunal accepts that there was no evidence before it that would justify the allocation of points for any condition except the lower limb condition (Table 3) and possibly under Table 1 for functions requiring physical exertion and stamina.

14. The Tribunal notes that the respondent advised on the day of the hearing that it no longer agreed with the ARO and AAT1 that 10 points should be awarded under Table 3 for the lower limb conditions as there was little if any corroborative medical evidence and that accordingly only 5 points should be awarded. The only medical corroboration was to be found at page 99 of the documents filed under section 37 of the Administrative Appeals Tribunal Act 1975 (T-Documents) where endocrinologist Dr Chris Sankoorikal in his report of 5 June 2015 said under “life style” that the applicant’s exercise was “limited due to the Charcot’s foot”. The respondent told the Tribunal this should only justify an award of 5 points, the lowest score under Table 3, due to the word “limited”. The Tribunal told the parties that if that was an accurate reading of the evidence the correct rating may in fact be zero as the report did not really go into any detail.

15. However, the Tribunal notes that whilst there does not appear to be any other medical evidence in support, the applicant was a truthful, honest and open witness whose evidence was not challenged in any way by the respondent. As the ARO and AAT1 (and indeed the original decision maker) all allocated 10 points under Table 3, the Tribunal was happy to accept that as a starting point.

    Diabetes and Table 1

16. After hearing the oral evidence and looking at all the documentary evidence in the

    
    

    T-Documents, the Tribunal is of the view that there is no diagnosis by an appropriate medical professional (in this case a doctor) that would enable a rating to be made under Table 1.

17. The Tribunal notes that the applicant attributed his shortness of breath and lack of stamina to his lack of fitness caused by his lower limb problems. If this were so, it would mean that Tables 1 and 3 would really have to be taken together, in which case he would still only get 10 points as his problems would be caused by the same basic ailment.

18. It may well be that the applicant’s shortness of breath and lack of stamina is caused by his diabetes or his hypertension but this needs to be looked at and diagnosed. It may be that these are caused by something else. The Tribunal indicated to the parties at the hearing that it seems unlikely to be unfitness caused by his lower limb problems; it was too extreme for that.

19. Had there been a condition which was fully diagnosed, treated and stabilised as at the claim period, the Tribunal would have allocated it 10 points under Table 1. The applicant, on his evidence, experienced at the claim period (and continues to experience) shortness of breath and fatigue when performing day to day tasks and activities. As a result he is unable to walk far outside the home and needs to drive to local shops and facilities, but is able to walk around a shopping centre and perform tasks of a clerical, sedentary or stationery nature not requiring a high level of physical activity.

20. As the applicant could do the above without human assistance and as he could sustain a work-related task of a clerical, sedentary or stationery nature for a continuous shift of at least three hours, if he sat down and only got up when he had to, he would not be able to qualify for 20 points at the claim period.

21. It may well be that as at the present time the applicant has trouble doing the above as he needs human assistance to use public transport (although this is due to his lower limb problems and his balance) and accordingly, should this ailment be fully diagnosed, treated and stabilised now he may potentially be entitled to 20 points under Table 1.

    Lower limb condition and Table 3

22. The Tribunal indicated to the parties at the end of the hearing its observations on the case and told the parties that on the evidence it appeared the applicant was only entitled to 10 points under Table 3, but that the Tribunal would go away and further assess the documentation and evidence to see if this was the case.

23. The Tribunal has already dealt with Table 1 and the respondent’s late submission that only 5 points should be awarded for Table 3. That submission is rejected because in the Tribunal’s view it’s all or nothing: either there is insufficient medical corroboration or there isn’t, and accordingly either zero or 10 points should be allocated. It is not a case of “a bob each way”.

24. The Tribunal could not find any other corroborative medical evidence, but considering the findings of the respondent at first instance which were supported by the Job Capacity Assessment, ARO and AAT1, backed up by the strong and uncontested evidence of the applicant given under oath, a finding of a medical specialist that the applicant’s ability to exercise is “limited” because of his lower limb condition (Charcot’s foot) is sufficient medical corroboration to allocate points under the Impairment Tables. Accordingly the Tribunal is able to assess the applicant’s condition and how it affected his functioning as at the claim period.

    What could the applicant do as at the claim period?

25. The applicant gave uncontested sworn evidence that as at the claim period (and largely as at now, although he said he had got a bit worse), he lived alone but that between his younger daughter and older daughter he was visited once a week and he could manage.

26. He could shower and toilet himself, cook for himself, wash his clothes and put them on the line, vacuum, and pull his doona up each morning. His daughters would help with a more thorough clean of the house when they visited and he had a gardener who would come and do the gardening, walk his dog and pick up the dog’s faeces.

27. His modus operandi was to do a task for between two and four minutes, then rest for a few minutes and then continue with the task. He would cook by sitting at a bench, preparing the ingredients and then cooking them, resting every few minutes.

28. He could walk to the local store which was about 100 meters away and get the paper. He would do this twice a week and drive the other five days.

29. He would drive to the local supermarket, get out of the car then rest for a few minutes, as in the last year or so he had fallen over several times if he got up and moved off too quickly. He would then move into the supermarket, stopping every 15 to 20 metres for a breather before continuing. He could get around the shops by himself as long as he stopped regularly to rest.

30. He would drive regularly (weekly) to his elder daughter’s home to play with his grandchildren.

31. He would drive to see his father occasionally who lived 25 kilometres away, but he would never drive for more than 30 minutes. Indeed, he did not need to as his family and the health professionals he had to see were all close by.

32. His left leg also played up and he would get pins and needles up to his knees in both legs. He got ulcers easily and went to the podiatrist regularly to have his toenails cut and the calcifications on his legs shaved and attended to.

33. As at the claim period, in the Tribunal’s view the applicant was unable to walk far outside his home and needed to drive to the local shops and other facilities. He was unable to stand for more than five minutes because of his feet. He could drive and walk around shops unaided, albeit with rest periods. In the Tribunal’s view he clearly qualifies for 10 points under Table 3.

    Can the Applicant get 20 points under Table 3?

34. If the applicant is awarded 20 points under Table 3, there is no requirement for him to have completed a program of support. He has not completed a program of support as he applied directly for a DSP after his monthly insurance payments ceased.

35. As the applicant can walk around a shopping centre without assistance from another person, walk from the carpark to the shopping centre without assistance and stand up from a sitting position without assistance, he cannot qualify for 20 points as at the claim period.

    Other ailments

36. As the applicant would, on his own evidence, rate zero points for his other ailments as at the claim period, the Tribunal finds that he can only receive 10 points under Table 3 and accordingly the AAT1 decision was correct.

    WHERE TO FROM HERE?

37. The Tribunal makes some further observations that may assist the parties.

38. As indicated at the hearing and repeated now, the applicant would be well advised to see his GP and get a formal diagnosis for his fatigue and breathlessness. It may be as a result of diabetes or hypertension, but it may be something else entirely. However, it needs a formal diagnosis from a doctor before it can be taken further. In the Tribunal’s view it is separate from the lower limb condition in many aspects and thus is worthy of further investigation.

39. At the same time, the GP can also give an update on the other diagnosed conditions and can then assess them against the Impairment Tables. The applicant needs to take the

    
    

    T-Documents with the Impairment Tables in them to his GP so the doctor can express an opinion about his rating against Tables 1 and 3 and any other relevant tables.

40. It may well be that the applicant, once diagnosed properly under Table 1, may qualify now for 20 points under that table alone. He may even now qualify for 20 points under Table 3, although from the evidence that seems less likely.

41. If the applicant is awarded 20 points under any one table he does not have to satisfy the requirement of a program of support.

    OTHER ISSUES

42. It may be that the applicant could perhaps do some work, after assistance over a two year period, of more than 15 hours a week in a sedentary job, but the Tribunal believes it may be unlikely. The Tribunal is sure he would like to. Again this is something his GP should address.

43. A citizen is entitled to apply as many times as he/she likes for a DSP. It is simply a matter of satisfying the criteria as set out in section 94 of the Act and having his GP assess him in accordance with the Impairment Tables so that all the requirements are satisfied.

44. The applicant would also be well advised to apply for Newstart as he may need to undertake a program of support and at any rate this will mean he will have some money coming in. He will hopefully get some benefit from a program of support if he can’t get a DSP and maybe even get some assistance in obtaining some meaningful work. This would be the best result of all as he is a man who has contributed to his community as an electrician for some 40 years and it is a shame to see his talents go to waste when he is still in his late 50s and may be able to contribute to his community in some way through the workforce.

    DECISION

45. For the reasons given above, the decision under review is affirmed.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

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

Associate

Dated: 7 August 2018

Date of hearing:	12 July 2018
Applicant:	By telephone
Solicitors for the Respondent:	Ms K Dunlop, Department of Human Services