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

[2017] AATA 394

Vaalele and Secretary, Department of Social Services (Social services second review) [2017] AATA 394 (28 March 2017)

Division:GENERAL DIVISION 

File Number(s):2016/2228      

Re:Talavou Vaalele  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:28 March 2017

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

Catchwords

SOCIAL SECURITY – Disability Support Pension – cancellation – whether applicant qualified at date of cancellation – lower limb condition – whether severe functional impairment – back condition – whether fully diagnosed, treated and stabilised – decision under review affirmed

Legislation

Social Security Act 1991 s 94(1)

Secondary Materials

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

REASONS FOR DECISION

Senior Member A Poljak

28 March 2017 

1. Mr Vaalele seeks review of a decision made by the Social Services & Child Support Division of this Tribunal (“SSCSD”) on 13 April 2016. The SSCSD affirmed a decision of an Authorised Review officer (“ARO”) made on 4 February 2016, cancelling Mr Vaalele’s disability support pension (“DSP”) on 2 December 2015 (“date of cancellation”).

2. Mr Vaalele’s DSP was cancelled on the basis that at the date of cancellation, he did not satisfy the eligibility criteria set out in s 94 of the Social Security Act 1991 (Cth) (“the Act”). Section 94 of the Act provides that to qualify for payment, a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of Work-related Impairment and Disability Support Pension) Determination 2011 (“the Impairment Tables”); and a continuing inability to work as defined in the Act.

3. The Secretary contends that the medical evidence does not support a finding that Mr Vaalele was qualified for DSP at the date of cancellation.

4. The Secretary accepts that Mr Vaalele suffered from a number of conditions at the date of cancellation and he therefore satisfies section 94(1)(a) of the Act.

   IMPAIRMENT TABLES

5. The first issue for determination in these proceedings is whether the conditions were fully diagnosed, treated and stabilised at the date of cancellation, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.

6. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in s 3 to mean “a loss of functional capacity affecting a person’s ability to work that result from the person’s condition”. 

7. Subsections 6(3) and 6(4) provide that impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated; fully stabilised; and it will more likely than not, persist for more than two years. 

8. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, sub-s 6(5) instructs that a decision- maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.

9. For the purposes of the Impairment Tables, sub-s 6(6) defines fully stabilised to mean:

   (a)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 two 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 two 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.

10. Reasonable treatment is defined in sub-s 6(7) as 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.

11. Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each Table and a rating cannot be assigned between consecutive impairment ratings. Significantly, s 11(1)(c) provides:

    (c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (emphasis added)

    Lower Limb Condition (Right hip)

12. The Secretary accepts that Mr Vaalele’s hip condition was fully diagnosed, treated and stabilised at the date of cancellation. This is supported by the evidence of Dr Patu and imaging reports dated 5 December 2015, 12 December 2015 and 28 January 2016; which confirmed a history and diagnosis of “septic arthritis” and “destruction of the right hip”.

13. The question then remains, what level of functional impairment Mr Vaalele suffers as a result of his lower limb condition. There is a level of discrepancy between what Mr Vaalele reports and that which is reported in the medical evidence in regards to his functional ability. Some of which I have relevantly summarised below.

14. In a Medical Review Form for DSP dated 28 May 2015, Dr Patu stated that Mr Vaalele had chronic right hip pain and that it resulted in “difficulty with prolonged standing and walking”.

15. In a Job Capacity Assessment Report (“JCA”) dated 18 September 2015, it is noted that Mr Vaalele reported that he could walk up to an hour at a slow pace, that he walks daily around the block, that he measures his steps with an app on his phone and that he regularly reaches 6,000 steps on a given day and that he could use public transport without much difficulty. Mr Vaalele reported during the assessment that if he has to walk up stairs he can, but avoids stairs if possible. It is noted in the JCA that he was observed to walk without any assistance or aids and was unaccompanied, although he was observed to walk with a limp.

16. In a letter dated 22 December 2015, Dr Patu said that Mr Vaalele was “able to walk but not very far because of chronic pain”. He stated that he was “functionally limited to very few and limited activities due to chronic pain” and “gets fatigued easily doing minimal activities and this limits his capacity to do any significant work he is skilled to do”.

17. Dr Khatib, Orthopaedic Surgeon, says in a letter dated 12 January 2016, that Mr Vaalele has “significant leg length discrepancy which is also causing him back pain. He is unable to work and is unable to mobilise for any significant distance”. A total hip replacement appears to be discussed as an option for Mr Vaalele; this is also so in a later letter of Dr Khatib dated 18 April 2016. In the letter dated 18 April 2016, it is noted that “it is possible for him to have a total hip replacement” however “with a total hip replacement some of his leg length discrepancy may be corrected but my ability to achieve absolute correction is limited by the degree to which his sciatic nerve could be stretched”.

18. In a letter dated 23 July 2016, Dr Patu reported that Mr Vaalele had chronic right hip pain and back pain caused by osteoarthritis, and the condition is fully treated and stabilised at the date of cancellation. He opined that Mr Vaalele’s combined hip and back conditions were estimated at 20 points. He notes that Mr Vaalele “has difficulty with prolonged standing, walking and lifting things above shoulder height and below knee level… Is unable to walk or stand longer than five minutes without having to stop because of ongoing severe pain in his lower back and right hip”.

19. Having regard to all of the evidence before me, particularly the evidence detailed above, and the descriptors in Table 3 of the Impairment Tables, I find that Mr Vaalele has a mild functional impact resulting from his hip condition. This equates to a maximum of 5 impairment points.

    Back Condition

20. The Secretary contends that Mr Vaalele’s back condition was not fully diagnosed at the date of cancellation. I agree for the following reasons.

21. I do not have before me in evidence any medical reports providing a formal diagnosis, nor any details of treatment undertaken by Mr Vaalele in relation to his back condition. It appears that the first mention of Mr Vaalele’s back condition is in the Medical Review for DSP form completed by Dr Patu on 28 May 2015. In that report Dr Patu states that Mr Vaalele had lower back pain but that it was a condition which is generally well managed and causes minimal impact on ability to function.

22. Mr Vaalele provided a number of additional medical reports at hearing. One of which is a radiology report from Dr Nguyen dated 28 January 2016, which was conducted to assess for residual infection prior to hip replacement. The report notes a clinical history of “lower back pain” and reports “lumbar scoliosis with tilting of the pelvis” and “mildly active left L5/S1 facet arthritis”. I note however that the radiological assessment was conducted after the date of cancellation.

23. Having carefully considered all of the evidence before me, I am not satisfied that at the date of cancellation Mr Vaalele’s back condition was fully diagnosed, treated and stabilised. It follows that no impairment rating can be given for this condition.

    CONCLUSION

24. Since Mr Vaalele’s conditions do not attract 20 or more points under the Impairment Tables, it is not necessary for me to consider whether he had a continuing inability to work. It follows that he was not entitled to DSP at the date of cancellation. Notwithstanding the decision in this Tribunal, Mr Vaalele may apply for DSP again at any time.

25. I affirm the decision under review. 

I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 28 March 2017

Date(s) of hearing:	23 January 2017
Applicant:	In person
Solicitors for the Respondent:	Clayton Utz