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

[2016] AATA 145

Walton and Secretary, Department of Social Services (Social services second review) [2016] AATA 145 (11 March 2016)

Division	GENERAL DIVISION
File Number(s)	2015/3780
Re	Peter Walton
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President Dr P McDermott  RFD
Date	11 March 2016
Place	Brisbane

The decision under review is affirmed.

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

Deputy President Dr P McDermott RFD

CATCHWORDS

SOCIAL SECURITY – disability support pension – continuing inability to work – where applicant has not participated in a program of support – whether condition permanent – whether impairment rating can be assigned

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

CASES

Fanning and Secretary, Department of Social Services (2014) 144 ALD 133

SECONDARY MATERIALS

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

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

11 March 2016

BACKGROUND

1. On 24 December 2014, Mr Peter Walton (‘the Applicant’) lodged a claim for a Disability Support Pension (‘DSP’).[1] The claim form listed his medical conditions as being: “2 worn out knees (requires replacement), hernia, tendon damages to RH shoulder, arthritis in both hands, back degeneration, Diabetes type 2, unrepairable sternum break, pain management”.[2] The Applicant claimed that he was receiving treatment for these in the form of medications and that it affected his ability to work or study.[3] The Applicant declared that he had not participated in a program of support in the three years prior to lodging the claim, and additionally could not do any activities that would prepare him for work for more than two years.[4]

   [1] Exhibit A, T-docs, T12, pages 102-129.

   [2] Exhibit A, T-docs, T12, page 114.

   [3] Exhibit A, T-docs, T12, page 114.

   [4] Exhibit A, T-docs, T12, page 115.

2. On 29 January 2015 Centrelink rejected the applicant’s claim for DSP.[5] That decision was affirmed by an Authorised Review Officer (‘ARO’) on 10 March 2015,[6] and the Social Security Appeals Tribunal (‘SSAT’) on 11 June 2015.[7]

   [5] Exhibit A, T-docs, T15, page 150-151.

   [6] Exhibit A, T-docs, T16, page 152-158.

   [7] Exhibit A, T-docs, T2, page 13-19.

3. On 24 July 2015 the Applicant sought a review of the decision by this Tribunal.

   LEGISLATIVE FRAMEWORK

4. Section 94 of the Social Security Act 1991 (Cth) (‘the Act’) provides that to qualify for DSP an applicant must have: a physical, intellectual or psychiatric impairment; an impairment rating of 20 points or more under the Impairment Tables; and a continuing inability to work. I have to consider the eligibility of an applicant during the relevant claim period, namely from the time of the claim until 13 weeks thereafter.[8] There is no issue that the relevant claim period is from 24 December 2014 to 25 March 2015.

   [8] Social Security (Administration) Act 1999 (Cth) Schedule 2, Part 2, Clause 4; see also Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 140 [33] (Deputy President Handley).

5. The Impairment Tables are now set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘Cth’) (‘the Determination’). Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the condition causing the impairment is: “permanent”; and more likely than not, in light of the available evidence, to persist for more than two years.[9] In order for a condition to be considered “permanent” it must have been: fully diagnosed by an appropriately qualified medical practitioner; fully treated; fully stabilised; and more likely than not, in light of the available evidence, to persist for more than two years.[10]

   [9] See s 6(7) Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (‘Determination’).

   [10] See s 6(4) Determination.

6. To satisfy the criteria in s 94(2) of the Act of having a continuing inability to work, an applicant must:

   (a)Have actively participated in a program of support (unless they have a “severe impairment” within the meaning of s 94(3B)); and

   (b)Be unable to work for at least 15 hours per week independently of a program of support; and

   (c)Be unable to participate in a training activity, or if the impairment does not prevent the applicant from undertaking a training activity, that such activity is unlikely (because of the impairment) to enable them to work independently of a program of support within the next two years.

7. A person’s impairment will only be considered “severe” if the impairment attracts 20 points or more under a single Impairment Table.[11]

   [11] See s 94(3B) Social Security Act 1991 (Cth).

   ISSUES FOR THE TRIBUNAL

8. I am satisfied from my examination of the medical reports that the Applicant had physical impairments, and satisfies s 94(1)(a) of the Act. The Applicant concedes that he has not adequately participated in a program of support.[12] Therefore, in order to be deemed as having a continuing inability to work, and qualify for DSP, an impairment of the Applicant must be assigned an impairment rating of at least 20 points under one of the Impairment Tables in respect of the relevant claim period. During the hearing I stated that the issue to be resolved was whether the Applicant had an impairment that could be assigned 20 points under one of the Impairment Tables.

   [12] Exhibit A, T-docs, T12, page 115.

9. The issues the Tribunal must consider are:

   (a)Whether the Applicant’s sternum condition is permanent (and can therefore be assigned an impairment rating); and

   (b)Whether any of the Applicant’s impairments attract a rating of at least 20 points under one of the Impairment Tables.

   CONSIDERATION

   Was the Applicant’s sternum condition permanent?

10. In order for a condition to be considered “permanent”, it must have been: fully diagnosed by an appropriately qualified medical practitioner; fully treated; fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years. The Applicant and his GP, Dr Chao contend that the sternum condition is permanent, and therefore should attract a rating of at least 20 points under Impairment Table 1.

11. The Applicant informed the Tribunal that his sternum condition is a consequence of his coronary bypass surgery when the wires used to put his sternum back together snapped. The x-ray evidence provided shows that there is a degree of loosening of sternal wires. In his oral evidence the Applicant asserted that he was in “continual bad pain all the time”. However, a fair reading of the report of Dr Chao indicated that the Applicant would be in chronic pain if he was to lift anything greater than 5kg.[13]

    [13] Exhibit A, T-docs, page 135.

12. The original Job Capacity Assessment (‘JCA’) Report, dated 27 January 2015, concluded that treatment for the sternum condition consisted of pain medication and surgery.[14] This is based upon Dr Chao’s original report, dated 22 December 2014, which listed the planned treatment of surgery.[15] Further, in evidence is a medical certificate provided by Dr B Louie, dated 3 March 2015, which contained the statement that the Applicant’s planned treatment was a chest reconstruction.[16] During his oral evidence, the Applicant asserted that in the week after that report was made, the consulting surgeon no longer considered surgery a viable option for him. Dr Chao’s supplementary report, dated 23 July 2015, stated that the Applicant’s future treatment is limited to pain management.[17]

    [14] Exhibit A, T-docs, pages 141-149.

    [15] Exhibit A, T-docs, page 134.

    [16] Exhibit A, T-docs, page 162.

    [17] Exhibit A, T-docs, page 8.

13. I am required to have regard to whether reasonable treatment for the sternum condition is available. After having reviewed all the evidence before me I cannot be satisfied that the chest reconstruction procedure is not reasonable treatment. Although Dr Chao in his supplementary report, dated 23 July 2015, has confirmed that a plastic surgeon had reviewed the Applicant and found that surgery was no longer an option, no reasons were provided for the conclusion. That report was not accompanied by any report from the surgeon. During the hearing the Applicant asserted that there was a risk if he were to undergo the chest reconstruction procedure.

14. While I appreciate the Applicant is concerned about undertaking a surgical procedure, there is no cogent medical evidence of what degree of risk there is to the chest reconstruction procedure. This is relevant as to whether reasonable treatment is available in terms of s 6(7) of the Determination. During the hearing the Applicant remarked that he realised that whether or not he should undergo surgery was what he referred to as “a contentious point”. He advised that he had to go through the legal department of the hospital to get the latest advice as to the chest reconstruction operation. He states that he had not yet “gotten it back yet”.

15. I gave him an opportunity to tender further medical evidence in support of his application. The Applicant subsequently filed the medical report of Dr Nicholas Cocks, dated 12 January 2016.[18] The report stated that treatment for this particular sternum condition is pain medication. However, that report did not contain any discussion of whether surgery was no longer a viable option for the Applicant. The report in any event concerns the capacity of the Applicant to work or study in the period of 12 January 2016 to 12 April 2016, it does not discuss the Applicant’s condition during the relevant claim period.   

    [18] Exhibit D.

16. I find that the Applicant’s sternum condition was not permanent during the relevant claim period, and cannot therefore be assigned an impairment rating under the Impairment Tables. This is because that condition was not fully treated by the end of the relevant claim period.

    Do any of the Applicant’s impairments attract a score of 20 points under a single impairment table?

17. The Job Capacity Assessor concluded on 27 January 2015 that the Applicant had a combined total of 20 points under the Impairment Tables, but none of the impairments attracted a score of 20 points under a single table. These findings were confirmed by the ARO on 10 March 2015. The SSAT made slightly different findings on 11 June 2015, however the SSAT also found that none of the Applicant’s impairments attracted a score of 20 points or more under a single table.

18. The impairment ratings that were assigned at each level of review in respect of the impairments of the Applicant are shown in the table below. 

Impairment	Relevant table	Points awarded by JCA[19]	Points awarded by ARO[20]	Points awarded by SSAT[21]
Shoulder & Upper Arm Disorder	Table 2	10 Points	10 points	5 points
Spinal Disorder	Table 4	5 points	5 points	5 points
Ischaemic Heart Disease	Table 1	5 points	5 points
Sternum condition	Table 1	-	-	10 points
Knee condition	Table 3	-	-	5 points
Total	20 points	20 points	25 points

[19] Exhibit A, T-docs, T14, pages 141-149.

[20] Exhibit A, T-docs, T16, page 154-155.

[21] Exhibit A, T-docs, T2, pages 15-18.

I have reviewed the medical evidence in respect of the impairments of the Applicant. There is no medical evidence which in my opinion would warrant that any of these impairments being assigned a rating of at least 20 points under a single impairment table. The 20 point rating that was recommended by Dr Chao in his report of 23 July 2015 appears to be based on an aggregation of various functional impairments that may be assigned an impairment rating under separate Tables. However, s 10(2) of the Determination provides that the Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise. Whilst the shoulder condition has been rated 5 points, the impairment may not be regarded as fully treated as there is evidence that there is a need to operate on the nerve endings of the shoulder. There is a medical condition which one is not shown in the table. Dr Chao has stated that the diabetes condition is generally well managed and controlled and cannot be assigned an impairment rating greater than 0 points.

1. The tribunal was informed that the Applicant was advised to put in a new claim if his condition had worsened. However the Applicant has elected not to do so, and insists on his right to have the present claim determined. There is information provided in the most recent medical report of Dr Chao which may indicate a marked deterioration in the condition of the Applicant although much in that report is based on the self-report of the Applicant. For example, that report indicated that the Applicant has back and knee troubles. This was not reported in the medical specialist examination that was referred to in the Job Capacity Report. That report contains the following remarks: “Specialist examination noted client was able to bend to the knees without difficulty with nil other significant limitation in ROM of lumbar spine observed.”[22] Dr Chao in his earlier report stated that the back condition causes minimal or limited impact on the ability of the Applicant to function. If indeed the condition of the Applicant has deteriorated then to fairly assess the condition of the Applicant it would be necessary for this to be verified by a specialist report.

   [22] Exhibit A, T-docs, T14, page 143.

   CONCLUSION

2. The Applicant has not satisfied the Tribunal that any of his impairments attract a rating of at least 20 points under a single impairment table, and therefore did not qualify for DSP during the relevant claim period.

   DECISION

3. I affirm the decision under review.

   I certify that the proceeding 21 paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD.

   ………[sgd]………………..

   Associate

   Dated 11 March 2016

   Date of hearing  9 December 2015

   Date final submissions received       15 January 2016

   Applicant  By phone

   Advocate for Respondent                  Ms C Campbell, Department of Human Services