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

Ware and Secretary, Department of Social Services (Social services second review) [2018] AATA 5288 (9 October 2018)
Division:GENERAL DIVISION
File Number: 2018/0508
Re:William Ware
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson
Date:9 October 2018
Date of written reasons: 21 January 2019
Place:Brisbane

The decision under review is affirmed.
...............................[SGD].................................
Senior Member P J Clauson
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – refusal – severe degenerative arthritis of both knees, lumbar pain, arthritis in shoulders and hands, obesity, asthma, deep vein thrombosis, depression, high blood pressure and kidney problems – whether conditions are fully diagnosed, treated and stabilised – whether impairments are of 20 points of more under the Impairment Tables –– decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Senior Member P J Clauson
10 January 2019
INTRODUCTION

On 17 February 2017, Mr William Ware (“the Applicant”) applied for the Disability Support Pension (“DSP”).[1]
[1] Exhibit 1, T Documents, T11, Claim for DSP dated 17 February 2017.
On 15 June 2017, the Department of Human Services (“Centrelink”) advised the Applicant that his application had been rejected.[2]
[2] Exhibit 1, T Documents, T15, DSP rejection dated 15 June 2017.
The Applicant then sought a first tier review of the decision by the Social Services & Child Support Division (“SSCSD”) of this Tribunal and on 18 December 2017 the original decision was once more affirmed.[3]
[3] Exhibit 1, T Documents, T2, SSCSD decision dated 18 December 2017.
Following this, the Applicant sought a second tier review of his matter by the General Division of this Tribunal, by way of an application dated 1 February 2018.[4]
[4] Exhibit 1, T Documents, T1, Application for review dated 1 February 2018.
The finding from these abovementioned decisions is that the Applicant did not have an Impairment Rating of at least 20 points under the Impairment Tables to qualify for the DSP and did not have an inability to work.
On 9 October 2018, a hearing was held for this application. The Applicant attended the hearing by telephone.
The issue for this Tribunal to determine is whether the Applicant qualified for DSP at the date of his claim, 17 February 2017, or within 13 weeks thereafter, being up until 19 May 2017 (“Relevant Period”).
BACKGROUND
On the Applicant’s DSP Claim Form he listed the following disabilities, illnesses or injuries:[5]
1“ASTHMATIC
2HIGH BLOOD PRESSURE
3BOTH KNEE’S WORN OUT RELY ON AID OF WALKING STICK ON WALKER
4WORN OUT DISC’S IN LOWER BACK AND SPUR’S IN HIGHER BACK.
5ARTHRITIS IN SHOULDER’S AND HAND’S
6STARTING TO HAVE KIDNEY PROBLEM’S”
[5] Exhibit 1, T Documents, T11, Claim for DSP dated 17 February 2017.
On 21 March 2017, the Applicant attended an assessment by telephone with a Job Capacity Assessor (“JCA”), who produced a report dated 22 March 2017.[6] The JCA assessed the Applicant’s conditions as “Chronic Pain”.[7]
[6] Exhibit 1, T Documents, T13, JCA report dated 22 March 2017.
[7] Exhibit 1, T Documents, T13, JCA report dated 22 March 2017, at p. 100.
The total Impairment Rating recommended by the JCA for this condition was 0 points.
Additionally, the Applicant’s Baseline Work Capacity was assessed by the JCA as being 15 – 22 hours per week with a predicted capacity of 15 – 22 hours per week within 2 years with intervention.[8]
[8] Exhibit 1, T Documents, T13, JCA report dated 22 March 2017, at p. 102.
The ARO, upon review of relevant evidence provided to Centrelink, made the following findings of fact:[9]
[9]           Exhibit 1, T Documents, T19, ARO decision dated 1 September 2017, at pp. 120-121.
“Findings of Fact
After careful consideration of the evidence, I have made these key findings:
oYou have the following conditions:
·         Severe degenerative arthritis of both knees
·         Lumbar pain
·         Arthritis in shoulders and hands
·         Obesity
·         Asthma
·         High blood pressure
·         Kidney problems
oYour conditions cannot be accepted as having been fully diagnosed, treated and stabilised at the time of your claim, which means that an impairment rating cannot be assigned.
oYou therefore did not have an impairment rating of 20 points of more.
oYou do not have a ‘severe impairment’ (as defined in social security law)…”
The SSCSD, at first review, affirmed the decision under review and found that the Applicant could be allocated 10 points under Table 3 for his knee condition.[10]
[10] Exhibit 1, T Documents, T2, SSCSD decision dated 18 December 2017, at p. 9.
ISSUES
The issues for this Tribunal to consider are:
(a)whether, during the Relevant Period, the Applicant had a medical impairment which was fully diagnosed, fully treated and fully stabilised;
(b)whether, at the Relevant Period, the Applicant’s conditions caused a functional impairment that attracts an Impairment Rating of 20 points or more under the Impairment Tables, and if so;
(c)whether the Applicant had a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and
(d)whether the Applicant has a continuing inability to work.
THE LEGISLATIVE FRAMEWORK
The governing legislation, unless otherwise quoted, is the Social Security Act 1991 (Cth)

(“the Act”) and the Social Security (Administration) Act 1999 (Cth) (“Administration Act”).
In order for the Applicant to qualify for the DSP, certain relevant criteria set out in section 94 of the Act must be met:
(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.
The Administration Act provides that qualification for DSP and assessment of the relevant Impairment Rating is to be determined as at the date of claim. The exception to this arises where the Applicant has not met the qualifying conditions as at the date of the application for the DSP, but became qualified within the 13 weeks following the date of claim.[11] There has been consensus by the Tribunal and the Federal Court that there is a requirement to assess the Applicant during this specific period of time, unless material outside of this period can be considered referable to the period.[12]
[11] Administration Act, ss 41, 42; cl 3 and cl 4(1), Schedule 2, Part 2.
[12]Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1, at [25]-[28].
Pursuant to section 26 of the Act, the Impairment Ratings are determined under a legislative instrument located in the Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension)Determination 2011 (Cth)

(“the Impairment Determination”).
The Impairment Determination provides a general set of principles that must be considered when applying the Impairment Tables.[13] Essentially, the Tables are function based, rather than diagnostic based, and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[14] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[15]
[13]        Impairment Determination, s 5(1) – (2).
[14]        Impairment Determination, s 5(2).
[15]        Impairment Determination, s 6(1).
Section 6(3) of the Impairment Determination provides that an Impairment Rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the resulting impairment from that condition is more likely than not, on the available evidence, to persist for more than two years.
For a condition to be considered permanent it must be “fully diagnosed”, “fully treated”, “fully stabilised” and, more likely than not, going to persist for more than two years.[16]
[16] Impairment Determination, s 6(4).
When determining whether a condition has been fully diagnosed and fully treated, the Tribunal must consider whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred in relation to the condition and whether treatment is continuing or planned in the next two years.[17]
[17] Impairment Determination, s 6(5).
A condition will be considered 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.[18]
[18] Impairment Determination, s 6(6).
“Reasonable treatment” is defined in the Impairment Determination as being treatment that would be considered:
(a)available at a location reasonably accessible to the Applicant;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the Applicant.[19]
[19] Impairment Determination, s 6(7).
An Impairment Rating is only able to be assigned in accordance with the rating requirement for each section of each Table. If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[20]
[20] Impairment Determination, s 11(1)(a) and (c).
A person's impairment is a severe impairment if it attracts 20 points or more under a single Impairment Table.[21]
[21] The Act, s 94(3B).
In order to assess whether an Applicant has a continuing inability to work, all criteria set out in section 94(2) of the Act must be met.
CONSIDERATION
The Applicant suffers from severe degenerative arthritis of both knees, lumbar pain, arthritis in shoulders and hands, obesity, asthma, deep vein thrombosis, depression, high blood pressure and kidney problems, and it is not in dispute that he had impairments for the purposes of section 94(1)(a) of the Act during the Relevant Period.[22] The questions to be determined by this Tribunal are, however, whether or not during the Relevant Period those impairments attracted an impairment rating of 20 points or more under the Impairment Tables,[23] and if so, whether or not the Applicant has met one of the criteria set out in section 94(1)(c) of the Act to qualify for DSP.
[22]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 29 June 2018, at para 30.
[23] The Act, s 94(1)(b).
I will now consider whether the Applicant’s Impairments can attract Impairment Ratings under the Impairment Tables.
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables?
Severe degenerative arthritis of both knees
The Secretary accepts that the Applicant suffers from severe degenerative arthritis and requires a bilateral knee replacement. The condition is set out in Dr Hatcher’s report of 15 February 2017 where he states:
“Severe degenerative arthritis, generalised pain, shoulders and knees, requires total knee replacement bilaterally”.[24]
[24] Exhibit 1, T Documents, T9, Report of Dr Hatcher.
The Secretary contends that the condition was not fully treated and stabilised during the Relevant Period. The JCA Report of 22 March 2017 noted that the Applicant had ceased taking anti-inflammatories and had not participated in home exercises or hydrotherapy. At that time he stated he was to see a specialist on 14 July 2017.[25] The JCA Report also noted that the Applicant was to undertake a specialist review and that surgery was planned. The Applicant had, up to that point, undertaken a fairly low level of conservative treatment for this condition.
[25] Exhibit 1, T Documents, T13, Job capacity assessment report, at p. 100.
Dr Journeaux, in a letter dated 30 May 2017, suggested a treatment of steroid local anaesthetic injections and a review of the Applicant’s condition after eight weeks.[26] A report from Dr Hatcher dated 24 January 2018 discussing the Applicant’s knee condition stated:[27]
“Orthopaedic Surgeon is concerned regarding operation / anaesthetic… he is trying non-operative measures … recent (illegible) injections have helped, however, no long term solution. Depends on medical problems as to whether he will (have) surgery within two years - unlikely”
[26] Exhibit 1, T Documents, T26, Report of Dr Journeaux, at p. 143.
[27] Exhibit 1, T Documents, T28, Report of Dr Hatcher, at p. 147.
The Tribunal notes that both of these medical reports are outside of the Relevant Period, but do serve to cast light upon the Applicant’s progress of treatment for this condition when considered with his evidence to the Tribunal that he was told at age 60 that he was too young for a knee replacement procedure and that, as the replacements lasted about 10 years, he was better to wait until he was older before receiving a replacement knee.
The Applicant also gave evidence that he was not yet on a waiting list and that he was to see his surgeon again in three months for a review. He told the Tribunal that in addition to the correct timing for the operations being assessed, he needed to work on reducing his obesity before the two operations were undertaken. The Applicant’s evidence to the Tribunal was that he still anticipated that he could be a candidate for the double procedure if these concerns could be met. In light of the Applicant’s evidence that he is still being assessed and monitored in readiness for a bilateral future knee replacement, this Tribunal considers it reasonable to accept that, at the Relevant Period, Mr Ware’s severe degenerative arthritis of both knees had been fully diagnosed but had not been fully treated and stabilised. Therefore, in light of the evidence before this Tribunal, Mr Ware’s condition of severe degenerative arthritis of both knees cannot be assigned a rating under the Tables.
Lumbar Pain
The Secretary contends that this condition is fully diagnosed but was not fully treated and stabilised during the Relevant Period.
The Tribunal accepts the medical evidence contained in the x-ray report of Dr Yeo of 2 November 2015[28] which confirmed mild straightening of the lumbar lordosis, and the report of Dr Rouse[29] which concluded, by way of a CT scan, that fairly advanced degenerative changes were evident, but there was no significant central canal stenosis at any level. The report also noted bilateral femoral stenosis with considerable impingement of the exiting nerve roots at all of these levels. The Applicant’s Patient Summary[30] noted that the Applicant’s bilateral foraminal stenosis was “active in 2017”.
[28]          Exhibit 1, T Documents, T7, X-ray findings of Dr Yeo.
[29]          Exhibit 1, T Documents, T8, CT findings of Dr Rouse.
[30]          Exhibit 1, T Documents, T14, Medical certificate of Dr Hatcher.
Although Dr Hatcher refers to the lumbar condition as commencing in June 2017, the Applicant’s evidence to the Tribunal was that he had been suffering from it for four years prior to seeing Dr Hatcher in 2017. Up until then, he had been employed as a kitchen hand and had been working eight hour days, and was controlling the pain with anti-inflammatory tablets. Mr Ware also gave evidence that he was discontinued on the anti-inflammatories by the doctor as they were adversely affecting his kidneys and it was at this time his back became an issue.
The Applicant was then prescribed a new painkiller, Palexia, which he was started on at 50 milligrams per day, then 100 milligrams, and is now on 250 milligrams twice a day.
At the Relevant Period, the condition had been controlled by medication and the Applicant told the Tribunal he had not received or been referred for specialist assessment of his back condition by his treating General Practitioner. The Applicant also told the Tribunal that Dr Hatcher had told him in regard to his back, in the Applicant’s words, “He was getting old and try to look after it”. He also told the Tribunal that Dr Hatcher told him to see a chiropractor, but he had not yet done so as he was in too much pain.
Dr Hatcher provided a report which appears incorrectly dated on 15 May 2017[31] referring to the Applicant’s condition as “lumbar pain with foraminal narrowing - permanent - severe lumbar pain at times associated with sciatica” with date of onset shown as 23 June 2017.
[31] Exhibit 1, T Documents, T14, Medical certificate of Dr Hatcher.
The Tribunal accepts that the lumbar condition is fully diagnosed but was not fully treated and stabilised at the Relevant Period and therefore cannot attract a rating under the Tables.
Arthritis in shoulders and hands
The Tribunal notes that the Applicant also suffers from arthritis in the shoulders and hands. The Tribunal, however, has no medical evidence before it which would facilitate the assignment of a rating to the condition under the Tables as at the Relevant Period. The only evidence available to the Tribunal is the Medical Certificate of Dr Hatcher dated 4 January 2018,[32] and the associated medical questionnaire dated 24 January 2018 where Dr Hatcher mentions the condition as being diagnosed and that it was unlikely to get better and more likely to get worse, and was related to age and obesity. No functional impact can be assigned to the condition and the report was well outside the Relevant Period.
[32] Exhibit 1, T Documents, T27 and T28, at p. 149.
Obesity
The Secretary agrees that the condition is fully diagnosed but not fully treated and stabilised at the Relevant Period. Dr Hatcher’s Medical Certificates of 15 May 2017 and 23 June 2017 refer to the condition as permanent, however there is no evidence from Dr Hatcher as to what treatment was undertaken or whether significant improvement was expected within the next two years. The Applicant’s own evidence to the Tribunal was that he had not been referred for any treatment for the condition, that he had consulted a dietician when he was still working and had not seen a dietician since that time.
He told the Tribunal that he was attempting to diet on his own guidance and that he had received no referrals to experts to help with his obesity. He stated that he had to lose weight before he had his knee operation. Given the lack of evidence that this condition has been fully treated and stabilised, the Tribunal is unable to assign it an Impairment Rating under the Tables as at the Relevant Period.
Asthma

The Applicant told the Tribunal he had suffered asthma since he was a two-year-old child and that it was well-controlled with Ventolin and other medication which he was using once per day. No evidence was produced by the Applicant to this Tribunal relating to the functional impact that his asthma condition may have had upon him at the Relevant Period. Therefore, no rating can be assigned to it.
Other conditions
The applicant also claims to suffer from deep vein thrombosis (DVT) and depression.
The Secretary contends that there is no evidence that the Applicant’s DVT and depression conditions were fully diagnosed, fully treated and stabilised during the Relevant Period and that these conditions cannot therefore be considered in relation to the Applicant’s claim lodged on 17 February 2017.
In a radiologist’s report of Dr Rouse dated 12 September 2017,[33] the first instance of the applicant suffering from deep vein thrombosis is mentioned. It must be noted that this is well outside of the Relevant Period and therefore, in the opinion of this Tribunal, the condition cannot be considered as being fully diagnosed, fully treated and fully stabilised as at the Relevant Period.
[33] Exhibit 1, T Documents, T20, left leg Doppler scan findings of Dr Rouse.
In relation to the Applicant’s depression condition, there is a Medical Record Summary from the Roma Clinic dated 6 November 2017 in which it is noted under ‘Past History’ that the Applicant was diagnosed with major depression on 23 June 2017.[34] Therefore, the condition of major depression cannot be considered to be fully diagnosed, fully treated and fully stabilised as at the Relevant Period and cannot attract any rating under the Table.
[34] Exhibit 1, T Documents, T25, Report of Dr Hatcher, at p. 139.
High blood pressure
In relation to the matter of high blood pressure there is insufficient material and evidence before the Tribunal to accord this condition with a rating under the appropriate table.
Kidney problems
In relation to the Applicant’s kidney problems, it would seem that these issues are related to the anti-inflammatory treatments the applicant was receiving. However, there is insufficient evidence before the Tribunal to note whether the kidney problems are ongoing, and fully diagnosed, treated and stabilised. Accordingly, the Tribunal is unable to rate the kidney problems under the appropriate tables.
CONCLUSION
The Tribunal concludes that the Applicant had an Impairment Rating of zero points as at the Relevant Period and therefore did not satisfy s 94(1)(b) of the Act at that time. Accordingly, the Tribunal does not need to address the issues of whether the Applicant had a continuing inability to work. The Applicant was not qualified for DSP at the time of the claim.
DECISION
The decision under review is affirmed.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson

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Associate
Dated: 21 January 2019

Date of hearing: 9 October 2018

Applicant: By phone

Advocate for the Respondent: Ms Jasmine Forsyth

Solicitors for the Respondent: Department of Human Services

[2018] AATA 5288

9 October 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	9 October 2018
Applicant:	By phone
Advocate for the Respondent:	Ms Jasmine Forsyth
Solicitors for the Respondent:	Department of Human Services