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

[2016] AATA 737

Woinar and Secretary, Department of Social Services (Social services second review) [2016] AATA 737 (23 September 2016)

Division	GENERAL DIVISION
File Number	2016/1528
Re	Barry Woinar
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	D. J. Morris, Member
Date	23 September 2016
Place	Perth

The Tribunal affirms the decision under review.

........[Sgd]..D Morris................

D. J. Morris, Member

CATCHWORDS

SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – injury after claim lodged – whether impairments fully diagnosed, fully treated and fully stabilised – no impairment points able to be assigned – not qualified for DSP – decision affirmed

LEGISLATION

Social Security Act 1991 – s 94 – s 94(1) – s 94(1)(b) – s 94(1)(c) – s 94(2) – s 94(5)

Social Security (Administration) Act 1999 – Schedule 2 Clause 4(1)

SECONDARY MATERIALS

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

REASONS FOR DECISION

D. J. Morris, Member

23 September 2016

BACKGROUND

1. Mr Barry Woinar lodged an application for Disability Support Pension (DSP) on 27 May 2015. 

2. On 29 May 2015, the Applicant’s general practitioner, Dr Helko Schenk, provided a medical report which stated that Mr Woinar was diagnosed with spondylarthritis, cervical thoracic disc prolapse L3/4; right shoulder tendinopathy and right shoulder bursitis.  This was the condition Dr Schenk said had the most impact on the Applicant.  Dr Schenk also listed other conditions which he said were well-managed and caused minimal or limited impact on Mr Woinar’s ability to function, namely: NIDDM [non-insulin dependent diabetes mellitus], hypothyroidism, high blood pressure and anxiety.

3. On 25 June 2015, the Applicant fell while visiting Bali. He fractured his right ankle as a result of the fall and had open reduction and internal fixation surgery, with the installation of a syndesmotic screw.

4. On 5 August 2015, Mr Woinar underwent a face to face Job Capacity Assessment, which concluded that none of his medical conditions was fully diagnosed, fully treated and fully stabilised, in the terms required for assigning an impairment rating.

5. On 7 August 2015, the Department of Social Services (the Department) rejected the Applicant’s claim for DSP.

6. Mr Woinar requested a review of this decision, which was conducted by an Authorised Review Officer (ARO), an independent officer employed within the Department.

7. The ARO affirmed the original decision on 27 November 2015.

8. On 10 December 2015 Mr Woinar applied for a review by the Social Services and Child Support Division of this Tribunal (AAT1). AAT1 held a hearing on 17 February 2016 and affirmed the Department’s original decision.

9. On 21 March 2016, the Applicant applied for a further review by the General Division of this Tribunal. That is this hearing.

10. The hearing was held by telephone on 31 August 2016. The Applicant was self-represented. The Respondent was represented by counsel Ms Sharon Sangha. Mr Woinar was affirmed and gave evidence, and was cross-examined by counsel for the Respondent.

11. The Respondent tendered documents submitted under section 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ documents).

12. The Applicant tendered additional documents:

    ·Medical report dated 14 April 2016 from Dr Andre Bourgeois of the Department of Pain Management, Sir Charles Gairdner Hospital, Nedlands (Exhibit A1); and

    ·Medical report dated 22 April 2016 from Dr Henko Schenk, consultant physician practising in Geraldton (Exhibit A2).

    What are the qualifications for DSP?

13. The law applicable to the grant of DSP is the Social Security Act 1991 (the Act) and in particular section 94 of that Act.

14. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied. For this reason, it must be established that the person has –

    (a)         a physical, psychological or mental impairment; and

    (b) the impairment or impairments must attract a rating of 20 or more points under the Impairment Tables; and

    (c)         a continuing inability to work.

15. The Impairment Tables referred to in section 94(1)(b) of the Act are to be found in subordinate legislation, namely a ministerial determination called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.

16. The applicable provision relating to the Applicant’s ability to “work” under subsection 94(1)(c) and section 94(5) of the Act is work that is for at least 15 hours a week.

17. Section 94 is a conjunctive section of the Act. Accordingly, for a person to be qualified for DSP, the person must have: First, impairment within the meaning of the Act. Secondly, the impairment, or impairments if there is more than one, must be assigned a rating of 20 or more points under the Impairment Tables. Thirdly, the person must have a continuing inability to work.

18. Importantly, if a person is assigned 20 or more points under one Impairment Table, that assignment means the impairment is assessed to be a ‘severe’ impairment. If a person is assigned 20 or more points under more than one Impairment Table, then the provisions of section 94(2) of the Act apply to their claim. Section 94(2) sets out the requirements for a person to participate in an approved program of support.

    What is the relevant period for considering this claim?

19. The Social Security (Administration) Act 1999 provides, at clause 4(1) of Schedule 2, as follows:

    (1)         If:

    (a)  a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)  the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)  assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)       the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

20. Applying this provision, if Mr Woinar is found not to have been qualified for DSP on the date he lodged his claim, 27 May 2015, but he became eligible on a date within the thirteen week period thereafter, ending on 26 August 2015, then his claim is deemed to have been made on the date the Applicant became so qualified.

21. This period is called ‘the relevant period’ and a person must be qualified in this relevant period for his or her claim to be successful. Changes in medical conditions that occur later are not relevant to this claim, but they may be relevant to a future claim.

    APPLYING THE LAW

    Does the Applicant have a physical, intellectual or psychiatric impairment?

22. On the medical report dated 29 May 2015 of Dr Schenk referred to above, the Applicant has a number of impairments. The Respondent also conceded that Mr Woinar suffered from the following medical conditions: right ankle open reduction, internal fixation, arthritis, shoulder and upper arm disorder, diabetes, hypothyroidism, hypertension and anxiety.

23. There is corroborated medical evidence of each of these conditions, and also a Lumbar condition. The historical medical material before the Tribunal illustrated that Mr Woinar has had a history of indifferent health, with fluctuating conditions.

24. The Tribunal, having considered the medical evidence, finds that the Applicant did have impairments in the relevant period, and so he satisfied the requirements of section 94(1)(c) of the Act.

    If so, what is the correct rating of his impairment or impairments under the Impairment Tables?

25. When considering how the Impairment Tables apply in a particular person’s case, the Tribunal must do so with reference to the Rules for applying the Impairment Tables set out in Part 2 of the Minister’s Determination.

26. In particular, Rule 6(3) provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than 2 years.

27. In considering whether a condition is “permanent”, Rule 6(4) requires that a condition must be fully diagnosed by an appropriately qualified medical practitioner, and the condition must be fully treated and fully stabilised.

28. I now consider the Applicant’s current medical conditions, in turn.

    Right ankle open reduction, internal fixation condition

29. Mr Woinar had a fall while in Bali, Indonesia at the end of June 2015.  The result was a badly fractured ankle.  He had surgery in Indonesia.  On returning to Australia, he saw Mr Daniel Fick, orthopaedic surgeon.  Mr Fick examined the Applicant and in a medical letter dated 30 July 2015, noted a Weber C ankle fracture, and that a diastasis screw would have to be removed “in six weeks’ time.”

30. There is no doubt that this injury has had a significant impact on the Applicant’s daily life.  The problem for Mr Woinar is that it cannot be assessed in evaluating his qualification for DSP.  The injury occurred after his claim was lodged and within the thirteen week relevant period, but he was also receiving on-going treatment and the injury was mending.  Therefore, it cannot be found to be fully stabilised in the relevant period.

    Shoulder disorder

31. The Applicant gave evidence that he was involved in a truck crash in 2014. He was driving an articulated vehicle which overturned, and he said his ribs, shoulder and neck were damaged.  He was hospitalised at the time.  He said that the effect of his injuries has ‘come back’.

32. He gave evidence of rib pain and that he had undergone a nuclear x-ray and had had dye injected into his spine.  He informed the Tribunal that he was scheduled for surgery on his shoulder on 30 September 2016. Dr Ray Cockerill, general practitioner, said in his medical report dated 23 November 2015 that the Applicant’s shoulder condition was “likely to show considerable improvement within 2 years.”

33. Given that on his own evidence, Mr Woinar was continuing to have treatment in the relevant period, I find that his shoulder condition cannot be assigned impairment points.  It is not a fully treated or fully stabilised condition.

    Diabetes, Hypertension, Hypothyroidism, Arthritis conditions

34. Mr Woinar’s other conditions are listed by his general practitioner as having minimal functional impact on his daily activities. There was no corroborative evidence of any greater than mild functional impact of these conditions.  In regard to the Applicant’s arthritis, he gave evidence that he had not engaged with physiotherapy since 2014. This inclines me to the view that, even if I were able to find that his arthritis condition did have a greater functional impact, it could not be correctly assessed under the Impairment Tables because reasonable treatment had not been undertaken as required by Rule 6(6)(b) of the Determination.

    Anxiety condition

35. There was scant information on this condition in the relevant period, other than the reference to it by Dr Schenk in his 29 May 2015 medical report.  In any event, the relevant impairment table to assess this condition is Table 5 – Mental Health Function.  The Introduction to that impairment table has a mandatory requirement, in relation to any mental health condition, of a corroborated diagnosis by a psychiatrist or a clinical psychologist (which are not specialities of Dr Schenk). Accordingly, I am unable to consider this condition in terms of the assignment of impairment points.

    Lumbar condition

36. The Applicant gave evidence of the pain his back condition gave him. He traced it to his truck crash in 2014.  He is on Pregabalin to assist with his pain. Dr Bourgeois also refers (in Exhibit A1) to the Applicant referring to an early back injury in the 1990s which resulted in facet joint injections. To the extent that the discomfort caused by the lumbar condition can be separated pathologically from the recent fall and serious ankle fracture, I note that Mr Woinar admitted he had had a fractious relationship with his physiotherapist, which saw him break off treatment. He also agreed he needed to manage his pain better.  Without doubting that the Applicant does suffer pain, there is insufficient information before me to assess the functional impact and therefore safely assign impairment points for the Applicant’s back condition. 

    Evidence at hearing

37. The Applicant told the Tribunal about the impacts of his medical conditions on his daily life. He said that he cannot undertake much exercise because the screws in his foot dig into his bones. He said walking has become painful. He says his ankle injury also causes problems with his balance and he cannot walk any great distance.

38. He told the Tribunal that he did travel to Bali in March 2016, where his wife has family, but was largely confined in what he could do, because of his foot pain.  He talked about the understandable frustration he has with his currently hampered mobility.

39. Unfortunately for Mr Woinar, almost all of his evidence at the hearing centred on his ankle injury, which is in the process of being treated. This does not assist him in his claim.

    Recent medical reports tendered by Applicant

40. The Applicant provided a report to the Tribunal from Dr Andre Bourgeois of the Department of Pain Management at Sir Charles Gairdner Hospital, dated 14 April 2016.  Dr Bourgeois made a number of recommendations to Mr Woinar: that he re-engage with physiotherapy, should reduce his weight, should change his medication, and should have further specialist follow up assessment.

41. A report from Dr Schenk dated 22 April 2016 was also provided.  Dr Schenk reported on progress in the healing of his ankle fracture saying:

    He has shown good improvement but very slow progression and we are hopeful he will eventually be fit to hold light work.

42. While the Tribunal appreciates that Mr Woinar was being open about his medical conditions, neither of these later submissions assists the Applicant in his contention that the original decision was wrong.  Quite the opposite. They independently confirm that his ankle condition is being treated and is not stabilised.

    CONCLUSION

43. For a person to be eligible for DSP, each sub-part of section 94 of the Act must be satisfied. The Tribunal has found that the Applicant had no medical conditions in the relevant period which satisfy Rule 6(4) of the Determination as being able to have impairment points correctly assigned.

44. The consequence is that, under Rule 11(5) of the Determination, I must find that zero points are correctly assigned.

45. The requirement of section 94(1)(b) of the Act of attaining 20 or more points was therefore not satisfied during the relevant period.

46. As the claim fails to satisfy this subsection, it is not necessary for me to go on to consider whether the Applicant satisfies the other provisions of the Act relating to a continuing inability to work.

47. The consequence is that the Department’s original decision that the Applicant was not qualified for DSP in the relevant period was the correct decision.

    DECISION

48. The original decision was correct and is affirmed.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of D. J. Morris, Member

........[Sgd]....A Tran...................

Administrative Assistant

Dated 23 September 2016

Date of hearing	31 August 2016
Applicant	Self-represented (by telephone)
Representative for the Respondent	Ms S Sangha
Solicitors for the Respondent	Mills Oakley Lawyers