Wade Davis and Secretary, Department of Social Services

[2013] AATA 933

[2013] AATA 933  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/4803
Re	Wade Davis
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	23 December 2013
Place	Brisbane

The Tribunal affirms the decision under review.

..................[Sgd]......................................................

Mr R G Kenny, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Relevant period for assessment – Physical impairment – Impairment Tables – Evidence of conditions being fully diagnosed, treated, stabilised and permanent – Overall impairment rating of 10 points – Qualifying requirements for disability support pension not met during the relevant period – Decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 26, 27, 94

Social Security (Administration) Act 1999 (Cth) ss 13, Sch 2

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 63

SECONDARY MATERIALS

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

Guide to Social Security Law s 3.6.3.20

REASONS FOR DECISION

Mr R G Kenny, Senior Member

23 December 2013

BACKGROUND

1. On 5 February 2013, Wade Davis (“the applicant”) claimed disability support pension (“DSP”) under the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”). After a consideration of his circumstances, his claim was rejected by Centrelink on 18 March 2013. That decision was affirmed by an authorised review officer from Centrelink on 1 August 2013 and, in turn, by the Social Security Appeals Tribunal on 28 August 2013.

   LEGISLATION, ISSUES AND SUBMISSIONS

2. The qualifications for DSP are set out in s 94 of the Act. It is common ground that the applicant meets the age and residency requirements of that provision and has a physical impairment in relation to a left shoulder condition. The remaining requirements in s 94 of the Act, and the matters in issue, are:

   ·whether the applicant has an impairment rating of 20 points or more which is calculated under the Impairment Tables[1] in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”) as required by s 94(1)(b) of the Act; and, if so

   ·whether he has a continuing inability to work as required by s 94(1)(c)(i) of the Act.

   [1] See ss 26 and 27 of the Act.

3. To qualify for DSP, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the initial claim or in the period 13 weeks from the day of the claim[2] (“the relevant period”).

   [2] See Sch 2 cl 3 and cl 4 of the Administration Act.

4. The requirements to be followed in applying the Impairment Tables are set out in Pt 2 s 6 of the Determination which is headed Rules for applying the Impairment Tables (“the Rules”). That section reads:

   6 Applying the Tables

   Assessing functional capacity

   (1) The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.

   Applying the Tables

   (2) The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.

   Note: For additional information that must be taken into account in applying the Tables see section 7.

   Impairment ratings

   (3) An impairment rating can only be assigned to an impairment if:

   (a) the person’s condition causing that impairment is permanent; and

   Note: For permanent see subsection 6(4).

   (b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.

   Permanency of conditions

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

   (a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

   (b) the condition has been fully treated; and

   Note: For fully diagnosed and fully treated see subsection 6(5).

   (c) the condition has been fully stabilised; and

   Note: For fully stabilised see subsection 6(6).

   (d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   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.

   Impairment has no functional impact

   (8) The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.

   Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.

   Assessing functional impact of pain

   (9) There is no Table dealing specifically with pain and when assessing pain the following must be considered:

   (a) acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and

   (b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and

   (c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).

5. Mr Nicholas Warren, for the respondent, conceded that the applicant’s left shoulder condition was fully diagnosed, treated and stabilised such as to attract a rating of 10 points under Table 2 of the Impairment Tables. He submitted that this meant that

   
   

   s 94(1)(b) of the Act was not met. Further, he submitted, even though the applicant had undertaken a program of support, the Tribunal would be unable to determine that the applicant had a continuing inability to work as required by s 94(1)(c)(i) of the Act.

   
   

   In summary, he submitted that s 94 of the Act was not satisfied in the applicant’s case.

   EVIDENCE

   The applicant

6. In his evidence, the applicant was critical of the manner in which his DSP decision was made in particular because reference had not been made to the opinion of orthopaedic specialist Dr Hans Lombard. This was particularly in relation to the report of a job capacity assessor completed in February 2013 who, he noted, was not medically qualified.

7. In his claim form, the applicant listed his disabilities as: “shoulder injury, Inability to use left arm for any tasks, day to day living, work, study etc”.[3] In his evidence, he described the limitations imposed by his left shoulder condition and said that he is now having problems with his right shoulder. He is unable to use his arms above shoulder height and is unable to perform routine actions with his hands. The limitations extend to the use of a standard computer keyboard, the moving of light objects, opening a drink bottle, doing up buttons, reading a book and holding a pencil. However, he conceded that he could do those things for short periods. For example, he could complete half a page of writing with a pencil and, instead of a computer keyboard, he prefers to use his smart phone which he can operate with one hand. He also conceded that, if he were stuck, he would be able to use a computer keyboard. He is able to operate the buttons on his TV remote control and is able to prepare basic meals for himself provided he uses pre-packed items. He lives with the mother of his children who takes responsibility for preparation of some of his meals. She also undertakes the household shopping duties but, as she does not drive a car, he assumes responsibility for driving her to the local shopping centre. The applicant said that he spends much of his day lying down and resting because he finds moving positions too painful.

   [3] Exhibit 1, p. 99.

   Dr Wayne Herdy

8. Dr Herdy was the applicant’s treating doctor in the relevant period. He completed a report on 2 February 2013.[4] He diagnosed a “L shoulder injury” which was supported by opinion from orthopaedic specialist Dr Hans Lombard, He listed the applicant’s symptoms as “pain, globally impaired L upper limb function”.

   [4] Exhibit 1, pp. 78-88.

   Dr Hans Lombard

9. Orthopaedic specialist, Dr Lombard completed a report on 7 February 2013.[5] He described an arthroscopic stabilisation for recurrent anterior instability in the left shoulder in May 2012. He noted that the applicant still experiences anterior subluxation even though he regained full range of motion. He referred to the dislocations which happen with forward elevation in mid-abduction such as when lifting bottles of milk out of the refrigerator. He wrote that the applicant is able to relocate the joint himself.

   
   

   Dr Lombard described ongoing grating in the shoulder and constant discomfort.

   
   

   The applicant has been listed for further surgery and is on a hospital waiting list.

   [5] Exhibit 1, pp. 114-115.

   Job Capacity Assessment (“JCA”) report

10. A JCA report was completed on 22 February 2013 by a registered nurse and a registered occupational therapist.[6] The assessors listed the condition in the applicant as a “left shoulder injury” and included a reference to “recurrent shoulder dislocation”.

    
    

    They considered that the condition was fully diagnosed, treated and stabilised.

    
    

    Their report was completed on the basis of Dr Herdy’s report and without reference to that of Dr Lombard. They noted that the limitations experienced by the applicant were in the matters listed at the 10 points level in Table 2 of the Impairment Tables. They wrote that he has difficulty getting into and out of chairs due to decreased strength in his left shoulder and has impaired strength in his left hand, noting that he is right hand dominant. They noted that he has difficulty in holding a 300ml bottle with his left hand and that he uses adaptive behaviours with a knife and fork when eating. Difficulty with dressing was noted as it was with lifting heavy items such as a large cooking pot.

    
    

    He was also recorded as having an aching shoulder after prolonged driving and that he avoids raising his left arm above shoulder height.

    [6] Exhibit 1, pp. 117-122.

11. The assessors recommended an impairment rating of 10 points under Table 2 of the Impairment Tables. They also considered that he had a temporary work capacity of 8-14 hours per week and a baseline work capacity of 15-22 hours per week in light, less skilled work. An Employment Services Assessment report was completed by a different assessor on 7 May 2013 in which only work capacity was considered, the same work capacity as in the previous JCA report was recommended.[7]

    [7] Exhibit 1, pp. 126-129.

    Dr Farhat Malik

12. The applicant’s current treating doctor is Dr Malik. He has completed reports since August 2013 in which he has implicated the applicant’s right arm as now presenting the applicant with difficulties.[8] Dr Malik also provided reports in relation to a more recent claim by the applicant for DSP.[9]

    CONSIDERATION

    [8] Exhibit 1, p. 143.

    [9] See Exhibit 1, pp. 144-151; and exhibit 3.

    Impairment

13. As noted above,[10] the requirements to be followed in applying the Impairment Tables are set out in s 6 of the Rules. There is evidence that the applicant’ left shoulder condition has been fully diagnosed, treated and stabilised and, as such, is permanent for the purposes of allocating ratings under the Impairment Tables. Some of the limitations described by the applicant are referable to his right arm. Medical reports relating to that limb post-date the relevant period and are unable to be considered for the purposes of allocating an impairment rating in the relevant period. I have noted the applicant’s concern that the assessors did not consider Dr Lombard’s report in assessing the applicant’s impairment. I have taken that report into account under Table 2 of the Impairment Tables which reads:

    The Table 2 – Upper Limb Function

    [10] See Para 4 (above).

Points

Descriptors

0

There is no functional impact on activities using hands or arms.

(1) The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.

5

There is a mild functional impact on activities using hands or arms.

(1) The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

(a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

(b) handling very small objects (e.g. coins);

(c) doing up buttons;

(d) reaching up or out to pick up objects.

10

There is a moderate functional impact on activities using hands or arms.

(1) The person has difficulty with most of the following:

(a) picking up a 1 litre carton full of liquid;

(b) picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box)

(c) holding and using a pen or pencil;

(d) doing up buttons or tying shoelaces;

(e) using a standard computer keyboard;

(f) unscrewing a lid on a soft-drink bottle.

20

There is a severe functional impact on activities using hands or arms.

(1) Most of the following apply to the person:

(a) the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;

(b) the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;

(c) the person has difficulty using a computer keyboard despite appropriate adaptations;

(d) the person has severe difficulty using a pen or pencil;

(e) the person has severe difficulty turning the pages of a book without assistance.

30

There is an extreme functional impact on activities using hands or arms.

(1) The person is unable to perform any activities requiring the use of both hands or both arms.

1. I am satisfied that, in relation to his left shoulder condition, the applicant does not satisfy paragraphs (a), (b) or (d) at the 20 points level. Under Table 2, this is three of the five factors and, therefore, more than half of them.[11] However, I am satisfied that his circumstances would equate to the 10 point level on that Table. This means that the applicant does not meet the requirements of s 94(1)(b) of the Act and is not qualified, in the relevant period, for DSP. The evidence also leaves me satisfied that he did not have a continuing inability to work under s 94(1)(c) of the Act during the relevant period.

   [11] See the Guide to Social Security Law s 3.6.3.20 which provides: “Where the descriptor refers to most of the following, most is taken to be more than half”. For use of the Guide, see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645.

   DECISION

2. The Tribunal affirms the decision under review.

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

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Associate

Dated 23 December 2013

Date of hearing	17 December 2013
Applicant	In person
Solicitor for the Respondent	Mr Nicholas Warren, Departmental Advocate