Wayne Ireland and Secretary, Department of Social Services

[2014] AATA 383

[2014] AATA 383

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/0447
Re	Wayne Ireland
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

WRITTEN REASONS FOR DECISION

Tribunal	Senior Member R W Dunne
Date	5 June 2014
Date of written reasons	19 June 2014
Place	Adelaide

1.    On 5 June 2014, the Tribunal in an oral Decision affirmed the decision of the Social Security Appeals Tribunal made on 17 January 2014 (which affirmed the decision of an authorised review officer of the respondent made on 4 December 2013) that the applicant’s disability support pension was correctly cancelled on 19 November 2013 because he no longer met the medical requirements for payment.

2.    The Tribunal undertook to provide written reasons for the Tribunal’s Decision.

3.    The written reasons are attached.

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

Senior Member R W Dunne

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – whether applicant medically qualifies to receive disability support pension – whether impairment rating of 20 points or more exists under the Impairment Tables – Job Capacity Assessment, Functional Capacity Evaluation, report of medical adviser from Health Professional Advisory Unity – applicant travelled to Cambodia – decision made that applicant was no longer qualified for disability support pension – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), ss 94(1), (2), (3A), (3B), (3C), (3D), (3E), (4) and (5)

SECONDARY MATERIALS

Introduction to the Impairment Tables

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

REASONS FOR DECISION

Senior Member R W Dunne

19 June 2014

INTRODUCTION

1. The applicant in this case is Mr Wayne Ireland.  He was granted disability support pension (“DSP”) from 30 June 2008.  In May 2013, he advised the respondent that he intended to go overseas and in September 2013 he travelled to Cambodia.  On 19 November 2013, a decision was made by the respondent that the applicant was no longer qualified for DSP.  When an authorised review officer affirmed the decision, the applicant applied to the Social Security Appeals Tribunal (“SSAT”) for review and when the SSAT affirmed the decision he applied to this Tribunal for review of the decision of the SSAT.

2. At the hearing by telephone to Cambodia, Mr Ireland represented himself and the respondent was represented by Mr C Visser (from the Program Litigation and Review Branch, Department of Human Services). I admitted the T documents, lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, into evidence.[1]

   [1] Exhibit R1.

   ISSUE FOR THE TRIBUNAL

3. The issue for the Tribunal, in relevantly considering s 94 of the Social Security Act 1991 (“Act”), is whether as at 19 November 2013 the applicant was medically qualified to receive DSP.

4. In relation to the question of whether the applicant was medically qualified to receive DSP, the respondent accepted that the applicant had a physical, intellectual or psychiatric impairment. The respondent did not accept that the impairment attracted an impairment rating of at least 20 points as required under s 94(1)(b) of the Act.

   LEGISLATION

5. Entitlement to DSP is to be found in the provisions of s 94 of the Act and those provisions are reproduced relevantly as follows:

   “94  Qualification for disability support pension

   (1) A person is qualified for disability support pension if:

   (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) one of the following applies:

   (i) the person has a continuing inability to work;

   …

   (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (aa) in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B)--the person has actively participated in a program of support within the meaning of subsection (3C); and

   (a) in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b) in all cases--either:

   (i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii) if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

   (3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

   (a) the availability to the person of a training activity; or

   (b) the availability to the person of work in the person's locally accessible labour market.

   (3A)     If:

   (a) a person is receiving disability support pension; and

   (b) the Secretary gives the person a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person's qualification for that pension; then paragraph (2)(aa) of this section does not apply in relation to that assessment.

   Severe impairment

   (3B)A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

   (3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

   (3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).

   (3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).

   Doing work independently of a program of support

   (4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:

   (a) is unlikely to need a program of support; or

   (b) is likely to need a program of support provided occasionally; or

   (c) is likely to need a program of support that is not ongoing.

   Other definitions

   (5)       In this section:

   "program of support" means a program that:

   (a) is designed to assist persons to prepare for, find or maintain work; and

   (b) either:

   (i) is funded (wholly or partly) by the Commonwealth; or

   (ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.

   "training activity" means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

   (a) education;

   (b) pre-vocational training;

   (c) vocational training;

   (d) vocational rehabilitation;

   (e) work-related training (including on-the-job training).

   "work" means work:

   (a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

   (b) that exists in Australia, even if not within the person's locally accessible labour market.

   …”

   BACKGROUND

6. The material facts in this case are not in dispute and are largely taken from the respondent’s statement of facts, issues and contentions.

7. On 28 May 2013, Mr Ireland made an enquiry with the respondent concerning whether he could be paid DSP with indefinite portability under s 1218AAA of the Act. On 30 May 2013, the formal application process for indefinite portability was started. On 30 May 2013, Mr Ireland was sent a notice informing him of the medical review that could be undertaken. This notice advised him that he would be assessed under the new Impairment Tables that applied from 1 January 2012 and that this “may mean you are no longer assessed as qualified for Disability Support Pension”. 

8. On 4 July 2013, a Job Capacity Assessment was conducted to assess the applicant’s level of impairment under the new Impairment Tables.  The finding of the assessment was that the applicant scored 10 impairment points under Impairment Table 3 – Lower Limb Function.[2]  On 25 July 2013, exercise physiologist (Mr Damian Torrisi) conducted a “Functional Capacity Evaluation” of the applicant.[3]  On 7 August 2013, Dr Arnel Polong of the respondent’s Health Professional Advisory Unit reviewed the applicant’s case and produced a report.[4]  Dr Polong concurred with the allocation of a total of 10 impairment points for the applicant.[5]

   [2] Exhibit R1, page 45.

   [3] Exhibit R1, T8.

   [4] Exhibit R1, T9.

   [5] Exhibit R1, T9 page 59.

9. On 13 September 2013, the applicant travelled to Cambodia.  On 19 November 2013, a decision was made that the applicant was no longer medically qualified for DSP under the new Impairment Tables. 

10. When the applicant’s review by the SSAT was not successful and he appealed to this Tribunal, ultimately on 16 May 2014 the implementation of the decision of the SSAT was stayed until 5 June 2014 or until further order of this Tribunal. 

    EVIDENCE

    Evidence of Mr Ireland

11. It was Mr Ireland’s evidence that he had been suffering lower limb problems for many years.  He had sustained a compound fracture of the right tibia and fibula in 1978 which led to deformity and associated arthritis in his right ankle and knee.  He had suffered a broken leg when, riding in the rain, he had fallen from a motorbike.  He was also suffering a Bakers cyst behind his left knee.  His walking conditions were not good and he now found that he was not able to move without a mobility scooter, which was not available in Cambodia.  He complained that he could not get assistance regarding evidence that was required in relation to his medical conditions.  He also complained that, before he left Australia to travel to Cambodia, he had not been advised that he needed medical reports relating to his conditions in order to show that he had an impairment rating of more than 10 points. 

12. When it was suggested that he would need to return to Australia to obtain the necessary medical reports to support his claim for DSP, he said that it would not be possible to travel to return to Australia in order to seek the medical reports he required.  Such travel would probably not be possible for at least three months.  He said that in July 2008, in relation to his lower limb deficiencies, he had obtained an impairment rating of 30 points.  As his pain had since increased, he could not understand why his impairment rating presently could not exceed 10 points.

    Evidence of Mr Robert Bateman

13. Mr Bateman was a friend of the applicant.  His evidence was that the applicant was suffering severe pain from his medical conditions, particularly the injury to his leg which required him to wear a leg brace.  He said the applicant needed help shopping and often hired carers to assist him.  Because of the problems with his lower limbs and his back ache, it was impossible for him to move around.

    Evidence of Mr Raymond Scott

14. Mr Scott was also a friend of the applicant.  He said that the applicant had damaged his leg when he was young, but he had continued to work with considerable pain.  As a result, his other joints had become injured.  He also referred to the bike accident that damaged the applicant’s leg.  This injury was such that he should not have continued working. 

    CONSIDERATION

    As at 19 November 2013, was the applicant medically qualified to receive DSP?

15. In giving his evidence, Mr Ireland referred to the Job Capacity Assessment that was undertaken on 14 July 2008.[6]  Accompanying the assessment was a medical report from Dr G Sivasambu dated 3 July 2008.[7]  At that time, Mr Ireland’s medical condition (lower limb deficiencies) was found to be permanent and regarded as fully diagnosed, treated and stabilised.  As a result, the medical condition was given a recommended rating of 30 points under Impairment Table 4 that existed at that time.  When a further Job Capacity Assessment was undertaken on 4 July 2013,[8] accompanied by a medical report from Dr J Viljoen dated 17 June 2013,[9] the lower limb deficiencies were assessed as having a recommended rating of nil (under Impairment Table 3, existing at that time) and the fractures and crush injuries to the lower limb function was given a recommended rating of 10 points under Table 3 of the Impairment Tables.

    [6] Exhibit R1, T13.

    [7] Exhibit R1, T12.

    [8] Exhibit R1, T7.

    [9] Exhibit R1, T6.

16. Mr Ireland was advised by letter on 30 May 2013 that the assessment on 4 July 2013 would be under the new Impairment Tables that applied from 1 January 2012.  He acknowledged he had received that letter from the respondent.  This would have explained to him why, since 2008, his impairment rating for lower limb function under Table 3 had reduced, although his pain had increased.  In this regard, I note that the “Introduction to Table 3 – Lower Limb Function” (which in my view applies to the applicant’s condition(s)) relevantly reads:  

    Table 3 – Lower Limb Function

Introduction to Table 3

·           Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.

·           The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·           Self-report of symptoms alone is insufficient.

·           There must be corroborating evidence of the person’s impairment.

·           Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

o    a report from the person’s treating doctor;

o    a report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment ;

o    a report from an allied health practitioner;

o    results of diagnostic tests ;

o    results of physical tests or assessments.

1. Accompanying the Introduction to Table 3, the relevant descriptors for moderate and severe functional impact read as follows:

Points

Description

…

10

There is a moderate functional impact on activities using lower limbs.

(1)     At least one of the following applies:

(a)   the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or

(b)   the person is unable to use stairs or steps without assistance; or

(c)   the person is unable to stand for more than 5 minutes; and

(2)    The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

(3)    This impairment rating level includes a person who can:

(a)    move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

(b)    move around independently using walking aids (e.g. quad stick, crutches or walking frame).

Note:  The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

20

There is a severe functional impact on activities using lower limbs.

(1)     The person:

(a)    is unable to do any of the following:

(i)    walk around a shopping centre or supermarket without assistance;

(ii)   walk from the carpark into a shopping centre or supermarket without assistance;

(iii)     stand up from a sitting position without assistance; and

(b)    requires assistance to use public transport.

(2)    This impairment rating level includes a person who requires assistance to:

(a)    move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or

(b)    move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.

1. As can be seen, an impairment rating of 10 points under Impairment Table 3 applies to the moderate descriptor and an impairment rating of 20 points under Impairment Table 3 applies to the severe descriptor.

2. I also note that the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”) relates to the Impairment Tables that apply from 1 January 2012. The Determination relevantly provides in Part 2:

   “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.

   …”

1. The Job Capacity Assessment report dated 4 July 2013, which was a face to face assessment with the applicant, relevantly reads:[10]

   “Information outlined in medical report completed by Dr Viljoen was very limited regarding Mr Ireland’s functional limitations.  An FCE [Functional Capacity Evaluation] was therefore arranged to provide more detailed information about his functional limitations.  Information outlined in FCE report completed by D. Torrissi indicates Mr Ireland’s lower limb condition causes significant mobility restrictions.  Accordingly, this condition must be assessed under Table 3.  More specifically, available information indicates Mr Ireland is unable to walk far (>50 meters) outside his home, would experience difficulty navigating stairs, and also has a reduced (<5 minutes) standing tolerance.  Despite this, he remains independent and can transfer without assistance.  Accordingly, he does not meet full criteria at the 20 points level under Table 3 but corresponds to an impairment rating of 10 points.”

   [10] Exhibit R1, page 45.

2. On the evidence, the Job Capacity Assessor on 4 July 2013, the respondent’s authorised review officer, Dr Arnel Polong and the SSAT have all agreed that the applicant’s medical conditions should be rated at 10 impairment points under Impairment Table 3. Though not explicitly stated, the Functional Capacity Evaluation also seems to support this allocation of impairment points. On this basis, the medical evidence in the applicant’s case points to a conclusion that the allocation of 10 impairment points under Impairment Table 3 is correct. In this regard, due to his presence overseas, Mr Ireland has not been able to provide any medical evidence relating to his current qualification for DSP. He has provided several medical reports from the Erico International Clinic in Cambodia, showing an “attending doctor”, Dmytro Barsuk. But the reports do not provide sufficient of the information required in the Determination to enable an impairment rating to be assigned. Nor do the reports provide corroborating evidence of the applicant’s present impairment or indicate whether the attending doctor is an appropriately qualified medical practitioner. In the circumstances, the applicant has been unable to show that as at 19 November 2013 he was medically qualified to receive DSP.

   The Applicant’s Position

3. The Tribunal has sympathy for the applicant’s position.  It seems clear from the available evidence and the circumstances surrounding his case that it is likely to be to the applicant’s advantage to lodge a further claim for DSP in which new evidence from his treating general practitioner, in Australia, or from an appropriately qualified medical practitioner, is available.  The Tribunal appreciates that the applicant is in difficult position while he remains overseas.  However it might be possible for suitable arrangements to be made to enable a further potentially successful claim for DSP to be lodged. 

   CONCLUSION

4. For the reasons outlined in paragraph 21 above, the stay of the decision of the SSAT dated 17 January 2014 is revoked.

   DECISION

5. The Tribunal affirms the decision under review.

I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

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

Administrative Assistant

Dated 19 June 2014

Date of hearing	5 June 2014
Applicant	In person
Advocate for the Respondent	Mr C Visser
Solicitors for the Respondent	Department of Human Services