Post by Banjo on Dec 24, 2014 11:43:51 GMT 7
Morton and Secretary, Department of Social Services [2014] AATA 949 (16 December 2014)
Last Updated: 19 December 2014
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal
Senior Member CR Walsh
Date
16 December 2014
Place
Perth
The Tribunal affirms the decision under review.
....(Sgd) CR Walsh.......................
Senior Member CR Walsh
CATCHWORDS
SOCIAL SECURITY – unlimited portability period for disability support pension – none of applicant’s impairments (spinal disorder, lower limb deficiencies and shoulder and upper arm disorder) is a “severe impairment” – decision under review affirmed
LEGISLATION
Social Security Act 1991 – s 94(3B) – s 1218AAA(1)
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 – Table 2 – Table 3 – Table 4
CASES
Scrivener and Secretary Department of Social Services (2014) AATA 537
REASONS FOR DECISION
Senior Member CR Walsh
16 December 2014
INTRODUCTION
This application concerns whether Mr Morton is eligible for unlimited portability of his disability support pension (DSP) under s 1218AAA of the Social Security Act 1991 (SSA). This turns on whether any of Mr Morton’s medical conditions (comprising a spinal disorder, lower limb deficiencies and a shoulder and upper arm disorder) is a “severe impairment” within the meaning of s 94(3B) of the SSA, which requires that the relevant condition attracts 20 points or more under a single Table in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables).
Specifically, Mr Morton seeks a review of a decision of the Social Security Appeals Tribunal (SSAT), dated 17 March 2014, which affirmed a decision of a Centrelink authorised review officer (ARO), dated 14 January 2014, to reject Mr Morton’s claim for unlimited portability of his DSP.
FACTUAL & PROCEDURAL BACKGROUND
Mr Morton is 59 years of age.
On 16 September 2009, Mr Morton was granted DSP for the following “permanent” conditions: spinal disorder and osteoarthritis of the right knee.
On 30 January 2013, Mr Morton contacted Centrelink to advise it that he was intending to go overseas on 30 April 2013. He also enquired about unlimited portability of his DSP and requested a medical assessment of his conditions.
On 11 February 2013, Mr Morton completed “Section A” of a Centrelink “Medical Report Disability Support Pension Review for Portability” form (DSP Portability Form).
In the DSP Portability Form, Mr Morton stated that his:
“disabilities, illnesses or injuries” are hypertension; hypothyroidism; diabetes type II; arthritis right knee, spondylolisthesis L5/S1, spina bifida occulta L5, scoliosis T6; and
current “treatment” includes Thyroxin 150mg, Olmotic 20 mg daily.
On 11 February 2013, Mr Morton signed a Centrelink “Work Capacity – Customer Information” form (Work Capacity Form).
In the Work Capacity form, Mr Morton reported that:
his “disabilities, illnesses or injuries” make it difficult for him to climb stairs, lift, bend and operate everyday appliances or machinery all the time;
in a workplace his disabilities, illnesses or injuries make it difficult for him to persist at tasks without unscheduled breaks, physically complete tasks and move safely around the workplace all the time;
he has not participated in any programs to help him find work, stay in a job, return to work, manage his injury or help him with vocational rehabilitation, gaining new skills, work experience or training; and
he cannot do rehabilitation in the future because there is no surgery available for back injuries.
On 17 July 2013, a Centrelink officer rejected Mr Morton’s claim for unlimited portability of his DSP (Original Decision).
On 29 July 2013, Mr Morton requested a review of the Original Decision.
On 9 August 2013, Mr Morton signed an amended version of a Centrelink “Work capacity-Customer Information” form (Amended Work Capacity Form).
In the Amended Work Capacity Form, Mr Morton reported that:
his “disabilities, illnesses or injuries” make it difficult for him to sit, stand, walk, climb stairs, drive a car, use public transport, lift, carry, bend, operate everyday appliances or machinery and sleep all the time;
in a workplace his disabilities, illnesses or injuries make it difficult for him to persist at tasks without unscheduled breaks, physically complete tasks and move safely around the workplace all the time;
he has not participated in any programs to help him find work, stay in a job, return to work, manage his injury or help him with vocational rehabilitation, gaining new skills, work experience or training; and
he cannot do rehabilitation in the future because there is no surgery available for back injuries.
On 14 January 2014, an ARO affirmed the Original Decision (ARO Decision).
In the ARO Decision, the ARO found that:
Mr Morton was granted DSP from 16 September 2009 for spinal disorder and osteoarthritis of the right knee;
on 30 January 2013, Mr Morton requested a medical assessment to determine if he could be paid DSP for more than 6 weeks of an overseas absence;
the latest medical evidence reports that Mr Morton has spinal disorder, right shoulder pain and osteoarthritis of the right knee conditions;
Mr Morton’s total impairment rating is 20 points; and
Mr Morton does not have a “severe impairment”.
On 28 January 2014, Mr Morton applied to the SSAT for a review of the ARO Decision.
On 17 March 2014, the SSAT affirmed the ARO Decision.
On 3 April 2014, Mr Morton applied to the Administrative Appeals Tribunal (AAT) for a review of the SSAT Decision.
MEDICAL EVIDENCE
Job Capacity Assessment
On 14 March 2013, Mr Morton attended a job capacity assessment for a DSP portability medical review at Centrelink. The assessment was carried out by a registered psychologist, assisted by another registered psychologist and occupational therapist (JCA Assessors).
The JCA Assessors reported that Mr Morton has the following permanent conditions which are “fully diagnosed,” “fully treated” and “fully stabilized:” a spinal disorder, lower limb deficiencies and a shoulder and upper arm disorder (JCA Report).
(i) Spinal disorder
In respect of the spinal disorder condition, the JCA Assessors remarked that the condition consisted of three back conditions: L5 bilateral chronic pars defects with grade 2 anterolisthesis of L5 and S1, scoliosis thoracic spine and cervical spine.
The JCA Assessors remarked that as Mr Morton gets older he is likely to get a worsening of his spinal pain as it is a degenerative condition that gets worse with increasing age.
The JCA Assessors assessed the spinal disorder as having a “moderate” functional impact on activities involving spinal function and noted that Mr Morton is able to sit or drive a car for at least 30 minutes but that he would be unable to sustain overhead activities. Consequently, the JCA Assessors gave Mr Morton’s spinal disorder condition a recommended rating of 10 points under Table 4 of the Impairment Tables.
(ii) Lower limb deficiencies
In respect of the lower limb deficiencies, the JCA Assessors remarked that:
the arthritis right knee condition is due to occupational wear and tear;
Mr Morton had some knee pain at times particularly when walking up stairs; and
it would appear that Mr Morton usually does not have problems with pain in his (right) knee when walking on an even surface.
The JCA Assessors assessed the lower limb deficiencies condition as having a “mild” functional impact on activities using the lower limbs and noted that Mr Morton has some difficulties walking around a shopping mall without a rest and has some difficulties climbing stairs. Accordingly, the JCA Assessors gave Mr Morton’s lower limb deficiencies condition a recommended rating of 5 points under Table 3 of the Impairment Tables.
(iii) Shoulder and upper arm disorder
In respect of the shoulder and upper arm disorder, the JCA Assessors remarked that:
the condition affects Mr Morton’s right shoulder;
an ultrasound confirms a partial thickness tear of the supraspinatus tendon; and
Mr Morton is on a waiting list for surgery.
The JCA Assessors gave Mr Morton’s shoulder and upper arm disorder a “fully diagnosed,” “fully treated” and “fully stabilized” recommendation on the basis that waiting lists for shoulder surgery in the public system are so long and that surgery does not always result in return of full function of the shoulder.
The JCA Assessors assessed Mr Morton’s shoulder and upper arm disorder as having a “mild” functional impact on activities using the hands or arms and noted that Mr Morton can manage most daily activities requiring the use of the hands and arms but has some difficulties with picking up heavier objects such as a full shopping bag and reaching up or out to pick up objects. Therefore, the JCA Assessors gave Mr Morton’s shoulder and upper arm disorder a recommended rating of 5 points under Table 2 of the Impairment Tables.
(iv) Additional conditions
The JCA Assessors reported that Mr Morton has the following additional conditions:
“‘diabetes’ – non insulin dependent” and they described this condition as “permanent” and “fully diagnosed”; and
“liver disorder ie cirrhosis but not hep” and they described this condition as “temporary” and “verified by medical evidence”.
The JCA Assessors considered Mr Morton’s fully diagnosed, fully treated and fully stabilised baseline, with intervention, work capacity as 8-14 hours per week.
Evidence before the SSAT
The SSAT noted the following evidence of Mr Morton concerning his medical conditions:
Right knee pain, hypertension, hypothyroidism and type 2 diabetes
.....
28. Mr Morton told the Tribunal:
None of these conditions have any significant influence on his ability to function. He understands that for his DSP to be allowed indefinite portability at least one condition must be ‘serious’, i.e. generating 20 points from a single impairment table. He accepts that none of the above conditions fall into that [severe impairment] category.
In addition to these issues he has recently started on anti-depressant medication and has been referred for counselling with a psychologist.
Neck and low back pain
29. Mr Morton told the Tribunal that:
Much of his working life had been spent driving commercial vehicles, mainly buses and trucks.
He had experienced back pain for about 20 years but put up with it as he had a family to support. His GP had arranged X rays which showed a spondylolisthesis in the lower back and a mild scoliosis higher up.
Treatment was with anti-inflammatory drugs and pain killers.
Over time the back pain got slowly worse and he also started to get pain in his neck.
In 2009 he injured his right shoulder. This stopped him working and he has not worked since then. He was scheduled for surgery to the shoulder but it was delayed.
Although the shoulder has improved somewhat, its presence, together with back and neck pains, were the reason he applied for DSP in 2009.
Since being granted the DSP he has made regular trips to Thailand where he has a long-term relationship with a local person. He only ever goes for six weeks, which is the maximum time permitted under the portability rules. If granted indefinite portability he will be able to go for longer periods.
In Australia he lives with his elderly parents. Following a marriage break up he lost his house. His children have all grown up.
Hi parents are very reliant on him. They have a single storey house with a garden. He does the gardening, all the cooking and shopping and some of the cleaning. Vacuuming is painful after 10 minutes.
Hi back is painful most of the time and he has to perform tasks slowly.
He drives a car and can manage 30-40 minutes before feeling stiff. Turning his head to see traffic is difficult, but his experience as a truck driver makes the use of wing-mirrors easy. He drives to the shopping centre and gets around using a trolley. Transferring items into the car is no problem.
Walking is painful after 10 minutes. He had to walk uphill from the Esplanade station to the [SSAT] which was a struggle.
Sitting is not too bad. He can hang washing on the line and wash his hair in the shower. He squats to pick things off the floor, but manages things at the table height with no trouble.
He copes with the regular flights to Thailand with difficulty. He flies in economy class and walks around the aeroplane a lot.
He takes paracetamol for pain together with Naprosyn now and then. He has never seen a specialist about his neck and back problems.
After his claim for indefinite portability was rejected in July 2013 his GP arranged for further X rays and CT scan of the neck and lower back. These showed possible nerve impingement. His GP has not discussed possible referral to a neurosurgeon.
Evidence before the AAT
Mr Morton confirmed that the evidence he gave at his hearing before the SSAT (as set out above) was correct, except for the fact that he no longer lived with his parents and he now shared a home with his brother in Rockingham, Western Australia.
Mr Morton explained to the Tribunal that in the house he currently shared with his brother, he shared the daily household chores. Mr Morton stated that his brother cooked and that he washed the dishes, they took turns sweeping and mopping the floors and they shared the gardening. Mr Morton said that he washed his own clothes, could wash his own hair and could easily reach the kitchen cabinets in his home as they are at head height. Mr Morton said that he travelled by train to the Tribunal for the hearing of his application and that he had walked from the train to the Registry (being about a 5 to 10 minute walk). Mr Morton said that the train trip to the Tribunal took about 30 minutes, during which time he remained seated – but that he had taken pain killers to assist him with any pain during the trip.
Mr Morton stated that he still flew regularly to Thailand and he was, in fact, flying to Thailand tomorrow (i.e. on 12 December 2014). Mr Morton described the flight to Thailand as taking approximately 7 hours (he normally took a direct flight) and that his checked in luggage was luggage on wheels, he had no carry-on luggage, he took pain killers for the flight, he moved around the cabin every hour or two during the flight, that flying could be extremely painful at times, that he used the arm rests to get in and out of his seat on the plane and that he never went to the toilet during a flight. Mr Morton explained that when he arrived in Thailand he generally took the airport bus to his destination, which was about a 1 hour and 20 minute trip from the airport. Mr Morton said that he generally sat for the duration of the bus trip and that he received help lifting his luggage on and off the bus. Mr Morton described the 1 hour and 20 minute bus trip to and from the airport in Thailand as “cramped”. Mr Morton said that he otherwise used taxis and private cars to travel around Thailand.
In addition, Mr Morton told the Tribunal that:
He was still waiting to get in to see a neurosurgeon;
He took anti-inflammatory drugs and pain killers every couple of hours – but that he didn’t like to take them too often for fear of building up a resilience to them;
He was responsible for his own daily self-care tasks; and
When he bent over and then straightened back up he felt twinging in his back.
Mr James Report
By report dated 29 July 2014, Mr Kerry James, Occupational Therapist, stated:
Despite the history of shoulder bursitis, Mr Morton’s upper limb movements were spontaneous and unimpeded in activity;
Examination of cervical movement revealed end range limitation in extension whilst both rotation and lateral flexion in either direction were limited to around 50% normal range and that flexion was unremarkable;
Hip pain, thought possibly to have an inflammatory component, has it appears been medically excluded and diagnosed as back pain;
Mr Morton has reduced straight leg raise, right 45 degrees, left 60 degrees with evident bilateral posterior leg pain consistent with radicular signs;
Mr Morton was placed to lie on his back and stomach with symptomatic response (lower back and mid shoulder blade pain);
Lower limb function was remarkable in that power was intact. However, movement was pain inhibited and accentuated when over pressure was applied to oppose movement of the lower limbs;
Mr Morton is limited in transitional movements such as crouching and kneeling and requires support of stable objects to stabilise posture;
Despite his pain, Mr Morton retains a good level of daily function commensurate with his personal care, mobility and community access demands. Mr Morton transfers independently from bed, chair (preferable with arms to support), car and toilet;
Limitation of pain appears more intrusive in activity in which static posture is prevalent, namely walking over distance, standing at a bench surface, sitting including driving over distance, manual handling;
Activity appropriate to Mr Morton’s evident capacity would, from a manual handling point of view, be confined to sedentary activity with occasional light manual handling up to five kilograms;
Mr Morton would require external domestic assistance were he responsible for his own home;
Mr Morton does not exercise and this contributes to his physical demise; and
Mr Morton’s pain management is now in a chronic state (Mr James Report).
Dr Wilson Reports
By report dated 23 July 2014, Dr Nick Wilson, of the Pinjarra Medical Centre, confirmed that Mr Morton has loss of half normal range of movement of his cervical spine and lumbar sacral spine which was confirmed in 2009. Dr Wilson also reported that Mr Morton now has back pain with most physical activities and has difficulty standing/sitting for long periods.
By report dated 12 June 2014, Dr Wilson confirmed that Mr Morton has problems performing any overhead activities due to his ongoing neck condition. Dr Wilson stated that Mr Morton has reduced neck mobility due to pain with limited flexion/extension and rotation.
By report dated 15 August 2013, Dr Wilson stated:
Mr Morton suffers from gross degenerative changes L5 spine, degenerative changes C spine;
Future/planned treatment includes referral to pain management if so desire(d), re cervical pain;
Impact on ability to function includes difficulty with prolonged sitting, difficulty with bending, lifting and carrying,
Mr Morton’s spinal condition is expected to deteriorate with time; and
Mr Morton has other conditions which are generally well managed.
By report dated 6 February 2013, Dr Wilson reported the following in relation to Mr Morton’s medical conditions:
Condition 1
the condition with most impact suffered by Mr Morton is L5 bilateral chronic pars defects with grade 2 anterolisthesis of L5 or S1 (Condition 1);
Condition 1 is currently being treated with analgesia, NSAIDs;
further assessment of Condition 1 is required with CT / MRI of lumbar spine;
the impact on ability to function of Condition 1 is reduced endurance – decreased (ability for) standing long periods, reduced mobility at times and decreased (ability for) bending, sitting, long periods; and
the current impact of Condition 1 on Mr Morton’s ability to function is expected to persist for more than 5 years.
Condition 2
Mr Morton also suffers from scoliosis thoracic spine (Condition 2);
Condition 2 is currently being treated with analgesia and NSAIDs;
future / planned treatment of Condition 2 will be to monitor symptoms and (administer) analgesia as required;
the impact on ability to function of Condition 2 is reduced movement thoracic spine; and
the current impact of Condition 2 on Mr Morton’s ability to function is expected to persist for more than 5 years.
Other medical conditions
Mr Morton suffers from the following medical conditions that are generally well managed and that cause minimal or limited impact on his ability to function: arthritis knees; hypertension; hypothyroidism; type 2 diabetes; liver cyst (Dr Wilson Reports).
Dr Srivastava Report
In his radiological report dated 9 August 2013, Dr R Srivastava stated that there are minimal degenerative changes in the cervical spine with gross facet joint arthropathy in the right C5/C6 and that there is narrowing of the right C4/C5 and C5/C6 neural foramen due to osteophytes impinging upon the exiting nerve at these levels (Dr Srivastava Report).
Dr Dave Report
In his radiological report dated 2 August 2013, Dr Dave reported on an x-ray of Mr Morton’s cervical spine and right knee that:
There is some cortical thickening adjacent to the posterior aspect of the C2 vertebral body with a lucency along its endplate. There is mild disc height reduction at C6/7 levels with endplate osteophytes. The pre-vertebral soft tissues are unremarkable. There is some osteoarthritis at the articulation between the anterior arch of atlas and odontoid process. There is osseous encroachment on the left C6 exit neural foramen as a result of unconvertebral osteophytes. No cervical rib is evident.
There is C7-T1 facet arthropathy.
There is mild medial compartmental tibiofemoral joint space reduction.
There is no knee joint effusion (Dr Dave Report).
Dr Moore Report
In summary, by report dated 5 April 2013, Dr Catherine Moore, of the Department of Human Services’ Health Professional Advisory Unit reported:
(i) in relation to Mr Morton’s spinal pain:
as Mr Morton gets older he is likely to get a worsening of his spinal pain as it is a degenerative condition that gets worse with increasing age;
under the Impairment Tables she would consider a score of 10 points on Table 4; and
whilst Mr Morton has difficult with turning his head or bending his neck without turning his trunk or performing overhead activities the Impairment Tables require him to be unable to do these activities to achieve a rating of 20 points on Table 4; and
(ii) in relation to Mr Morton’s knee osteoarthritis:
this condition is exerting a mild impairment in function and could score a 5 point rating under Table 3; and
it would appear that Mr Morton does not have problems with pain in his knee when walking on an even surface; and
(iii) in relation to Mr Morton’s shoulder pain:
this condition could be allocated 5 points under Table 2 of the Impairment Tables.
Dr Moore also reported that Mr Morton is unlikely to be able to work more than 14 hours per week in the future (Dr Moore Report).
Other medical reports
The following medical reports were also before the AAT:
a report of Dr DG Bentley, dated 8 January 1993;
a report of Dr Young, dated 25 November 1995;
a report of Dr Lagerberg, dated 20 February 1996;
a report of Dr Leaver, dated 6 December 1999;
a report of Dr Elms, dated 27 May 2004;
a report of Dr Kumar, dated 2 December 2004;
a report of Dr Chawla, dated 10 June 2009; and
a report of Dr Dayanandan, dated 22 June 2009.
ANALYSIS
Section 1218AAA(1) of the SSA, titled “Unlimited portability period for disability support pension – severely impaired disability support pensioner”, states:
The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is receiving disability support pension;
(b) the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d) the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years. [Emphasis added]
Self-evidently, the requirements in s 1218AAA(1)(a) to (d) of the SSA are cumulative, such that all of them must be satisfied before the discretion to grant a person unlimited portability of his or her DSP can be exercised. This is because s 1218AAA(1) of the SSA states that “all of the following circumstances” (i.e. in s 1218AAA(1)(a) to (d) of the SSA) must exist.
The Secretary contends that the relevant date for the purposes of s 1218AAA(1) of the SSA is the date on which Mr Morton advised Centrelink that he was considering travelling overseas, namely 30 January 2013. This contention is based on what the Tribunal said in Scrivener and Secretary, Department of Social Services [2014] AATA 537 at [6]. I do not accept with this contention. There is nothing in s 1218AAA of the SSA, the other provisions of the SSA, associated legislation or relevant extrinsic materials to support this proposition. As the High Court made clear in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 103 ALD 467; BC200806838, subject to any indication to the contrary, the task of the AAT is to make the correct and preferable decision based on the facts and circumstances as they exist at the time of its decision.
The term “impairment” is not defined in the SSA. However, s 3 of the Impairment Tables defines “impairment” to mean:
A loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
The expression “severe impairment” is defined for the purposes of s 1218AAA of the SSA in s 94(3B) of the SSA as follows:
(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. [Emphasis added]
A person’s level of impairment 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: s 6(1) of the Impairment Tables.
The Impairment 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: s 6(2) of the Impairment Tables.
The introduction to the Impairment Tables sets out that an impairment rating can only be allocated to an impairment if the condition causing the impairment is “permanent” and the impairment is likely to persist for more than 2 years: s 6(3) of the Impairment Tables.
A condition will be permanent if it is “fully diagnosed” by an “appropriately qualified medical practitioner”, “fully treated”, “fully stabilised” and is likely to persist for more than 2 years: subsection 6(4) of the Impairment Tables.
An “appropriately qualified medical practitioner” is a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition: s 3 of the Impairment Tables.
The phrases “fully diagnosed” and “fully treated” are defined in s 6(5) of the Impairment Tables as follows:
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 paragraph 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. [Emphasis added]
The phrase “fully stabilised” is defined in s 6(6) of the Impairment Tables as follows:
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. [Emphasis added]
The phrase “reasonable treatment” is defined, for the purposes of s 6(6) of the Impairment Tables, in s 6(7) of the Impairment Tables as treatment that is available at a location reasonably accessible to the person, is at a reasonable cost, can reliably be expected to result in a substantial improvement in functional capacity, is regularly undertaken or performed, has a high success rate and carries a low risk to the person.
It is common ground, for the purposes of s 1218AAA(1) of the SSA, that Mr Morton:
(i) was granted DSP on 16 September 2009 and he is currently receiving DSP; and
(ii) has “permanent” impairments, being a spinal disorder, lower limb deficiencies and a shoulder and upper arm disorder.
What is in dispute is whether any of Mr Morton’s “permanent” impairments constitute a “severe impairment” within the meaning of s 94(3B) of the SSA and for the purposes of s 1218AAA(1)(b) of the SSA. As stated above, this requires that the relevant condition (impairment) attract 20 points or more under a single Impairment Table.
Whether Mr Morton’s spinal disorder, lower limb deficiencies or shoulder and upper arm disorder is, based on the available medical evidence, a “severe impairment”, as defined in s 94(3B) of the SSA, is considered below.
Spinal disorder
Mr Morton’s spinal disorder is required to be assessed under Table 4 of the Impairment Tables, titled “Spinal Function”.
In order to attract at least 20 points under Table 4 of the Impairment Tables, Mr Morton’s spinal disorder must have “severe functional impact on activities” involving his spinal function. This will be the case where:
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
Based on the medical evidence, Mr Morton’s spinal disorder does not constitute a “severe impairment” as defined in s 94(3B) of the SSA because Mr Morton’s spinal disorder does not have “severe functional impact on activities” involving his spinal function. In reaching this conclusion, the AAT notes, in particular, the JCA Report, the Mr James Report, the Dr Wilson Reports, the Dr Srivastava Report, the Dr Dave Report, the Dr Moore Report and Mr Morton’s evidence before the SSAT and the AAT, as set out above.
In particular, in the Dr Moore Report, Dr Moore notes that:
to score a 20 point rating the customer has to be ‘unable to perform any overhead activities, unable to bend forward to pick up an object at desk height or unable to remain seated for at least 10 minutes or unable to turn their head or bend their neck without moving their trunk.
Dr Moore reported that whilst Mr Morton would have difficulties with all of these tasks the MIFE records suggest that he would still be able to do these activities with difficulty.
As Mr Morton’s spinal disorder is not a “severe impairment” within the meaning of s 94(3B) of the SSA, it follows that the requirements of s 1218AAA(1)(b) of the SSA is not satisfied in relation to Mr Morton’s spinal disorder. In such circumstances, it is unnecessary to consider whether the requirements in s 1218AAA(1)(c) and (d) of the SSA have been satisfied in relation to Mr Morton’s spinal disorder.
Lower limb deficiencies
Mr Morton’s lower limb deficiencies are required to be assessed under Table 3 of the Impairment Tables, titled “Lower Limb Function”.
In order to attract at least 20 points under either Table 3 of the Impairment Tables, Mr Morton’s lower limb deficiencies must have “severe functional impact on activities” using his lower limbs. This will be the case where:
(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) The impairment rating level includes a person who requires assistance to:
(a) Moves around in, or transfer to and from a wheelchair (e.g. the person who 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.
Based on the medical evidence, Mr Morton’s lower limb deficiencies do not represent a “severe impairment” as defined in s 94(3B) of the SSA because Mr Morton’s lower limb deficiencies do not have “severe functional impact on activities” using his lower limbs. In reaching this conclusion, the AAT notes, in particular, the JCA Report, the Mr James Report, the Dr Wilson Reports, the Dr Dave Report, the Dr Moore Report and Mr Morton’s evidence before the SSAT and the AAT, as set out above.
As Mr Morton’s lower limb deficiencies are not a “severe impairment” within the meaning of s 94(3B) of the SSA, it follows that the requirements of s 1218AAA(1)(b) of the SSA is not satisfied in relation to Mr Morton’s lower limb deficiencies. In such circumstances, it is unnecessary to consider whether the requirements in s 1218AAA(1)(c) and (d) of the SSA have been satisfied in relation to Mr Morton’s lower limb deficiencies.
Shoulder and upper arm disorder
Mr Morton’s shoulder an upper arm disorder is to be assessed under Table 2 of the Impairment Tables, titled “Upper Limb Function”.
In order to attract at least 20 points under either Table 2 of the Impairment Tables, Mr Morton’s shoulder and upper arm disorder must have “severe functional impact on activities” using his hands or arms. This will be the case where:
(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.
Based on the medical evidence, Mr Morton’s shoulder and upper arm disorder does not constitute a “severe impairment”, as defined in s 94(3B) of the SSA, because Mr Morton’s shoulder and upper arm disorder does not have “severe functional impact on activities” using his hands or arms. In reaching this conclusion, the AAT notes, in particular, the JCA Report, the Mr James Report, the Dr Moore Report and Mr Morton’s evidence before the SSAT and the AAT, as set out above.
As Mr Morton’s shoulder and upper arm disorder is not a “severe impairment” within the meaning of s 94(3B) of the SSA, it follows that the requirements of s 1218AAA(1)(b) of the SSA is not satisfied in relation to Mr Morton’s shoulder and upper arm disorder. In such circumstances, it is unnecessary to consider whether the requirements in s 1218AAA(1)(c) and (d) of the SSA have been satisfied in relation to Mr Morton’s shoulder and upper arm disorder.
Other medical conditions
Based on the available medical evidence (and, in particular, the JCA Report the Dr Wilson Reports), Mr Morton’s hypertension, hypothyroidism and type 2 diabetes conditions cannot be considered “permanent” as none of these conditions has been “fully diagnosed”, “fully treated” and “fully stabilised”. As such, none of these conditions can be assigned an impairment rating under the Impairment Tables.
Further, based on the JCA Report, Mr Morton’s liver condition is “temporary” (and not “permanent”) and it follows cannot be assigned an impairment rating under the Impairment Tables.
DECISION
For the above reasons, the Tribunal affirms the SSAT Decision.
Last Updated: 19 December 2014
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal
Senior Member CR Walsh
Date
16 December 2014
Place
Perth
The Tribunal affirms the decision under review.
....(Sgd) CR Walsh.......................
Senior Member CR Walsh
CATCHWORDS
SOCIAL SECURITY – unlimited portability period for disability support pension – none of applicant’s impairments (spinal disorder, lower limb deficiencies and shoulder and upper arm disorder) is a “severe impairment” – decision under review affirmed
LEGISLATION
Social Security Act 1991 – s 94(3B) – s 1218AAA(1)
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 – Table 2 – Table 3 – Table 4
CASES
Scrivener and Secretary Department of Social Services (2014) AATA 537
REASONS FOR DECISION
Senior Member CR Walsh
16 December 2014
INTRODUCTION
This application concerns whether Mr Morton is eligible for unlimited portability of his disability support pension (DSP) under s 1218AAA of the Social Security Act 1991 (SSA). This turns on whether any of Mr Morton’s medical conditions (comprising a spinal disorder, lower limb deficiencies and a shoulder and upper arm disorder) is a “severe impairment” within the meaning of s 94(3B) of the SSA, which requires that the relevant condition attracts 20 points or more under a single Table in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables).
Specifically, Mr Morton seeks a review of a decision of the Social Security Appeals Tribunal (SSAT), dated 17 March 2014, which affirmed a decision of a Centrelink authorised review officer (ARO), dated 14 January 2014, to reject Mr Morton’s claim for unlimited portability of his DSP.
FACTUAL & PROCEDURAL BACKGROUND
Mr Morton is 59 years of age.
On 16 September 2009, Mr Morton was granted DSP for the following “permanent” conditions: spinal disorder and osteoarthritis of the right knee.
On 30 January 2013, Mr Morton contacted Centrelink to advise it that he was intending to go overseas on 30 April 2013. He also enquired about unlimited portability of his DSP and requested a medical assessment of his conditions.
On 11 February 2013, Mr Morton completed “Section A” of a Centrelink “Medical Report Disability Support Pension Review for Portability” form (DSP Portability Form).
In the DSP Portability Form, Mr Morton stated that his:
“disabilities, illnesses or injuries” are hypertension; hypothyroidism; diabetes type II; arthritis right knee, spondylolisthesis L5/S1, spina bifida occulta L5, scoliosis T6; and
current “treatment” includes Thyroxin 150mg, Olmotic 20 mg daily.
On 11 February 2013, Mr Morton signed a Centrelink “Work Capacity – Customer Information” form (Work Capacity Form).
In the Work Capacity form, Mr Morton reported that:
his “disabilities, illnesses or injuries” make it difficult for him to climb stairs, lift, bend and operate everyday appliances or machinery all the time;
in a workplace his disabilities, illnesses or injuries make it difficult for him to persist at tasks without unscheduled breaks, physically complete tasks and move safely around the workplace all the time;
he has not participated in any programs to help him find work, stay in a job, return to work, manage his injury or help him with vocational rehabilitation, gaining new skills, work experience or training; and
he cannot do rehabilitation in the future because there is no surgery available for back injuries.
On 17 July 2013, a Centrelink officer rejected Mr Morton’s claim for unlimited portability of his DSP (Original Decision).
On 29 July 2013, Mr Morton requested a review of the Original Decision.
On 9 August 2013, Mr Morton signed an amended version of a Centrelink “Work capacity-Customer Information” form (Amended Work Capacity Form).
In the Amended Work Capacity Form, Mr Morton reported that:
his “disabilities, illnesses or injuries” make it difficult for him to sit, stand, walk, climb stairs, drive a car, use public transport, lift, carry, bend, operate everyday appliances or machinery and sleep all the time;
in a workplace his disabilities, illnesses or injuries make it difficult for him to persist at tasks without unscheduled breaks, physically complete tasks and move safely around the workplace all the time;
he has not participated in any programs to help him find work, stay in a job, return to work, manage his injury or help him with vocational rehabilitation, gaining new skills, work experience or training; and
he cannot do rehabilitation in the future because there is no surgery available for back injuries.
On 14 January 2014, an ARO affirmed the Original Decision (ARO Decision).
In the ARO Decision, the ARO found that:
Mr Morton was granted DSP from 16 September 2009 for spinal disorder and osteoarthritis of the right knee;
on 30 January 2013, Mr Morton requested a medical assessment to determine if he could be paid DSP for more than 6 weeks of an overseas absence;
the latest medical evidence reports that Mr Morton has spinal disorder, right shoulder pain and osteoarthritis of the right knee conditions;
Mr Morton’s total impairment rating is 20 points; and
Mr Morton does not have a “severe impairment”.
On 28 January 2014, Mr Morton applied to the SSAT for a review of the ARO Decision.
On 17 March 2014, the SSAT affirmed the ARO Decision.
On 3 April 2014, Mr Morton applied to the Administrative Appeals Tribunal (AAT) for a review of the SSAT Decision.
MEDICAL EVIDENCE
Job Capacity Assessment
On 14 March 2013, Mr Morton attended a job capacity assessment for a DSP portability medical review at Centrelink. The assessment was carried out by a registered psychologist, assisted by another registered psychologist and occupational therapist (JCA Assessors).
The JCA Assessors reported that Mr Morton has the following permanent conditions which are “fully diagnosed,” “fully treated” and “fully stabilized:” a spinal disorder, lower limb deficiencies and a shoulder and upper arm disorder (JCA Report).
(i) Spinal disorder
In respect of the spinal disorder condition, the JCA Assessors remarked that the condition consisted of three back conditions: L5 bilateral chronic pars defects with grade 2 anterolisthesis of L5 and S1, scoliosis thoracic spine and cervical spine.
The JCA Assessors remarked that as Mr Morton gets older he is likely to get a worsening of his spinal pain as it is a degenerative condition that gets worse with increasing age.
The JCA Assessors assessed the spinal disorder as having a “moderate” functional impact on activities involving spinal function and noted that Mr Morton is able to sit or drive a car for at least 30 minutes but that he would be unable to sustain overhead activities. Consequently, the JCA Assessors gave Mr Morton’s spinal disorder condition a recommended rating of 10 points under Table 4 of the Impairment Tables.
(ii) Lower limb deficiencies
In respect of the lower limb deficiencies, the JCA Assessors remarked that:
the arthritis right knee condition is due to occupational wear and tear;
Mr Morton had some knee pain at times particularly when walking up stairs; and
it would appear that Mr Morton usually does not have problems with pain in his (right) knee when walking on an even surface.
The JCA Assessors assessed the lower limb deficiencies condition as having a “mild” functional impact on activities using the lower limbs and noted that Mr Morton has some difficulties walking around a shopping mall without a rest and has some difficulties climbing stairs. Accordingly, the JCA Assessors gave Mr Morton’s lower limb deficiencies condition a recommended rating of 5 points under Table 3 of the Impairment Tables.
(iii) Shoulder and upper arm disorder
In respect of the shoulder and upper arm disorder, the JCA Assessors remarked that:
the condition affects Mr Morton’s right shoulder;
an ultrasound confirms a partial thickness tear of the supraspinatus tendon; and
Mr Morton is on a waiting list for surgery.
The JCA Assessors gave Mr Morton’s shoulder and upper arm disorder a “fully diagnosed,” “fully treated” and “fully stabilized” recommendation on the basis that waiting lists for shoulder surgery in the public system are so long and that surgery does not always result in return of full function of the shoulder.
The JCA Assessors assessed Mr Morton’s shoulder and upper arm disorder as having a “mild” functional impact on activities using the hands or arms and noted that Mr Morton can manage most daily activities requiring the use of the hands and arms but has some difficulties with picking up heavier objects such as a full shopping bag and reaching up or out to pick up objects. Therefore, the JCA Assessors gave Mr Morton’s shoulder and upper arm disorder a recommended rating of 5 points under Table 2 of the Impairment Tables.
(iv) Additional conditions
The JCA Assessors reported that Mr Morton has the following additional conditions:
“‘diabetes’ – non insulin dependent” and they described this condition as “permanent” and “fully diagnosed”; and
“liver disorder ie cirrhosis but not hep” and they described this condition as “temporary” and “verified by medical evidence”.
The JCA Assessors considered Mr Morton’s fully diagnosed, fully treated and fully stabilised baseline, with intervention, work capacity as 8-14 hours per week.
Evidence before the SSAT
The SSAT noted the following evidence of Mr Morton concerning his medical conditions:
Right knee pain, hypertension, hypothyroidism and type 2 diabetes
.....
28. Mr Morton told the Tribunal:
None of these conditions have any significant influence on his ability to function. He understands that for his DSP to be allowed indefinite portability at least one condition must be ‘serious’, i.e. generating 20 points from a single impairment table. He accepts that none of the above conditions fall into that [severe impairment] category.
In addition to these issues he has recently started on anti-depressant medication and has been referred for counselling with a psychologist.
Neck and low back pain
29. Mr Morton told the Tribunal that:
Much of his working life had been spent driving commercial vehicles, mainly buses and trucks.
He had experienced back pain for about 20 years but put up with it as he had a family to support. His GP had arranged X rays which showed a spondylolisthesis in the lower back and a mild scoliosis higher up.
Treatment was with anti-inflammatory drugs and pain killers.
Over time the back pain got slowly worse and he also started to get pain in his neck.
In 2009 he injured his right shoulder. This stopped him working and he has not worked since then. He was scheduled for surgery to the shoulder but it was delayed.
Although the shoulder has improved somewhat, its presence, together with back and neck pains, were the reason he applied for DSP in 2009.
Since being granted the DSP he has made regular trips to Thailand where he has a long-term relationship with a local person. He only ever goes for six weeks, which is the maximum time permitted under the portability rules. If granted indefinite portability he will be able to go for longer periods.
In Australia he lives with his elderly parents. Following a marriage break up he lost his house. His children have all grown up.
Hi parents are very reliant on him. They have a single storey house with a garden. He does the gardening, all the cooking and shopping and some of the cleaning. Vacuuming is painful after 10 minutes.
Hi back is painful most of the time and he has to perform tasks slowly.
He drives a car and can manage 30-40 minutes before feeling stiff. Turning his head to see traffic is difficult, but his experience as a truck driver makes the use of wing-mirrors easy. He drives to the shopping centre and gets around using a trolley. Transferring items into the car is no problem.
Walking is painful after 10 minutes. He had to walk uphill from the Esplanade station to the [SSAT] which was a struggle.
Sitting is not too bad. He can hang washing on the line and wash his hair in the shower. He squats to pick things off the floor, but manages things at the table height with no trouble.
He copes with the regular flights to Thailand with difficulty. He flies in economy class and walks around the aeroplane a lot.
He takes paracetamol for pain together with Naprosyn now and then. He has never seen a specialist about his neck and back problems.
After his claim for indefinite portability was rejected in July 2013 his GP arranged for further X rays and CT scan of the neck and lower back. These showed possible nerve impingement. His GP has not discussed possible referral to a neurosurgeon.
Evidence before the AAT
Mr Morton confirmed that the evidence he gave at his hearing before the SSAT (as set out above) was correct, except for the fact that he no longer lived with his parents and he now shared a home with his brother in Rockingham, Western Australia.
Mr Morton explained to the Tribunal that in the house he currently shared with his brother, he shared the daily household chores. Mr Morton stated that his brother cooked and that he washed the dishes, they took turns sweeping and mopping the floors and they shared the gardening. Mr Morton said that he washed his own clothes, could wash his own hair and could easily reach the kitchen cabinets in his home as they are at head height. Mr Morton said that he travelled by train to the Tribunal for the hearing of his application and that he had walked from the train to the Registry (being about a 5 to 10 minute walk). Mr Morton said that the train trip to the Tribunal took about 30 minutes, during which time he remained seated – but that he had taken pain killers to assist him with any pain during the trip.
Mr Morton stated that he still flew regularly to Thailand and he was, in fact, flying to Thailand tomorrow (i.e. on 12 December 2014). Mr Morton described the flight to Thailand as taking approximately 7 hours (he normally took a direct flight) and that his checked in luggage was luggage on wheels, he had no carry-on luggage, he took pain killers for the flight, he moved around the cabin every hour or two during the flight, that flying could be extremely painful at times, that he used the arm rests to get in and out of his seat on the plane and that he never went to the toilet during a flight. Mr Morton explained that when he arrived in Thailand he generally took the airport bus to his destination, which was about a 1 hour and 20 minute trip from the airport. Mr Morton said that he generally sat for the duration of the bus trip and that he received help lifting his luggage on and off the bus. Mr Morton described the 1 hour and 20 minute bus trip to and from the airport in Thailand as “cramped”. Mr Morton said that he otherwise used taxis and private cars to travel around Thailand.
In addition, Mr Morton told the Tribunal that:
He was still waiting to get in to see a neurosurgeon;
He took anti-inflammatory drugs and pain killers every couple of hours – but that he didn’t like to take them too often for fear of building up a resilience to them;
He was responsible for his own daily self-care tasks; and
When he bent over and then straightened back up he felt twinging in his back.
Mr James Report
By report dated 29 July 2014, Mr Kerry James, Occupational Therapist, stated:
Despite the history of shoulder bursitis, Mr Morton’s upper limb movements were spontaneous and unimpeded in activity;
Examination of cervical movement revealed end range limitation in extension whilst both rotation and lateral flexion in either direction were limited to around 50% normal range and that flexion was unremarkable;
Hip pain, thought possibly to have an inflammatory component, has it appears been medically excluded and diagnosed as back pain;
Mr Morton has reduced straight leg raise, right 45 degrees, left 60 degrees with evident bilateral posterior leg pain consistent with radicular signs;
Mr Morton was placed to lie on his back and stomach with symptomatic response (lower back and mid shoulder blade pain);
Lower limb function was remarkable in that power was intact. However, movement was pain inhibited and accentuated when over pressure was applied to oppose movement of the lower limbs;
Mr Morton is limited in transitional movements such as crouching and kneeling and requires support of stable objects to stabilise posture;
Despite his pain, Mr Morton retains a good level of daily function commensurate with his personal care, mobility and community access demands. Mr Morton transfers independently from bed, chair (preferable with arms to support), car and toilet;
Limitation of pain appears more intrusive in activity in which static posture is prevalent, namely walking over distance, standing at a bench surface, sitting including driving over distance, manual handling;
Activity appropriate to Mr Morton’s evident capacity would, from a manual handling point of view, be confined to sedentary activity with occasional light manual handling up to five kilograms;
Mr Morton would require external domestic assistance were he responsible for his own home;
Mr Morton does not exercise and this contributes to his physical demise; and
Mr Morton’s pain management is now in a chronic state (Mr James Report).
Dr Wilson Reports
By report dated 23 July 2014, Dr Nick Wilson, of the Pinjarra Medical Centre, confirmed that Mr Morton has loss of half normal range of movement of his cervical spine and lumbar sacral spine which was confirmed in 2009. Dr Wilson also reported that Mr Morton now has back pain with most physical activities and has difficulty standing/sitting for long periods.
By report dated 12 June 2014, Dr Wilson confirmed that Mr Morton has problems performing any overhead activities due to his ongoing neck condition. Dr Wilson stated that Mr Morton has reduced neck mobility due to pain with limited flexion/extension and rotation.
By report dated 15 August 2013, Dr Wilson stated:
Mr Morton suffers from gross degenerative changes L5 spine, degenerative changes C spine;
Future/planned treatment includes referral to pain management if so desire(d), re cervical pain;
Impact on ability to function includes difficulty with prolonged sitting, difficulty with bending, lifting and carrying,
Mr Morton’s spinal condition is expected to deteriorate with time; and
Mr Morton has other conditions which are generally well managed.
By report dated 6 February 2013, Dr Wilson reported the following in relation to Mr Morton’s medical conditions:
Condition 1
the condition with most impact suffered by Mr Morton is L5 bilateral chronic pars defects with grade 2 anterolisthesis of L5 or S1 (Condition 1);
Condition 1 is currently being treated with analgesia, NSAIDs;
further assessment of Condition 1 is required with CT / MRI of lumbar spine;
the impact on ability to function of Condition 1 is reduced endurance – decreased (ability for) standing long periods, reduced mobility at times and decreased (ability for) bending, sitting, long periods; and
the current impact of Condition 1 on Mr Morton’s ability to function is expected to persist for more than 5 years.
Condition 2
Mr Morton also suffers from scoliosis thoracic spine (Condition 2);
Condition 2 is currently being treated with analgesia and NSAIDs;
future / planned treatment of Condition 2 will be to monitor symptoms and (administer) analgesia as required;
the impact on ability to function of Condition 2 is reduced movement thoracic spine; and
the current impact of Condition 2 on Mr Morton’s ability to function is expected to persist for more than 5 years.
Other medical conditions
Mr Morton suffers from the following medical conditions that are generally well managed and that cause minimal or limited impact on his ability to function: arthritis knees; hypertension; hypothyroidism; type 2 diabetes; liver cyst (Dr Wilson Reports).
Dr Srivastava Report
In his radiological report dated 9 August 2013, Dr R Srivastava stated that there are minimal degenerative changes in the cervical spine with gross facet joint arthropathy in the right C5/C6 and that there is narrowing of the right C4/C5 and C5/C6 neural foramen due to osteophytes impinging upon the exiting nerve at these levels (Dr Srivastava Report).
Dr Dave Report
In his radiological report dated 2 August 2013, Dr Dave reported on an x-ray of Mr Morton’s cervical spine and right knee that:
There is some cortical thickening adjacent to the posterior aspect of the C2 vertebral body with a lucency along its endplate. There is mild disc height reduction at C6/7 levels with endplate osteophytes. The pre-vertebral soft tissues are unremarkable. There is some osteoarthritis at the articulation between the anterior arch of atlas and odontoid process. There is osseous encroachment on the left C6 exit neural foramen as a result of unconvertebral osteophytes. No cervical rib is evident.
There is C7-T1 facet arthropathy.
There is mild medial compartmental tibiofemoral joint space reduction.
There is no knee joint effusion (Dr Dave Report).
Dr Moore Report
In summary, by report dated 5 April 2013, Dr Catherine Moore, of the Department of Human Services’ Health Professional Advisory Unit reported:
(i) in relation to Mr Morton’s spinal pain:
as Mr Morton gets older he is likely to get a worsening of his spinal pain as it is a degenerative condition that gets worse with increasing age;
under the Impairment Tables she would consider a score of 10 points on Table 4; and
whilst Mr Morton has difficult with turning his head or bending his neck without turning his trunk or performing overhead activities the Impairment Tables require him to be unable to do these activities to achieve a rating of 20 points on Table 4; and
(ii) in relation to Mr Morton’s knee osteoarthritis:
this condition is exerting a mild impairment in function and could score a 5 point rating under Table 3; and
it would appear that Mr Morton does not have problems with pain in his knee when walking on an even surface; and
(iii) in relation to Mr Morton’s shoulder pain:
this condition could be allocated 5 points under Table 2 of the Impairment Tables.
Dr Moore also reported that Mr Morton is unlikely to be able to work more than 14 hours per week in the future (Dr Moore Report).
Other medical reports
The following medical reports were also before the AAT:
a report of Dr DG Bentley, dated 8 January 1993;
a report of Dr Young, dated 25 November 1995;
a report of Dr Lagerberg, dated 20 February 1996;
a report of Dr Leaver, dated 6 December 1999;
a report of Dr Elms, dated 27 May 2004;
a report of Dr Kumar, dated 2 December 2004;
a report of Dr Chawla, dated 10 June 2009; and
a report of Dr Dayanandan, dated 22 June 2009.
ANALYSIS
Section 1218AAA(1) of the SSA, titled “Unlimited portability period for disability support pension – severely impaired disability support pensioner”, states:
The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is receiving disability support pension;
(b) the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d) the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years. [Emphasis added]
Self-evidently, the requirements in s 1218AAA(1)(a) to (d) of the SSA are cumulative, such that all of them must be satisfied before the discretion to grant a person unlimited portability of his or her DSP can be exercised. This is because s 1218AAA(1) of the SSA states that “all of the following circumstances” (i.e. in s 1218AAA(1)(a) to (d) of the SSA) must exist.
The Secretary contends that the relevant date for the purposes of s 1218AAA(1) of the SSA is the date on which Mr Morton advised Centrelink that he was considering travelling overseas, namely 30 January 2013. This contention is based on what the Tribunal said in Scrivener and Secretary, Department of Social Services [2014] AATA 537 at [6]. I do not accept with this contention. There is nothing in s 1218AAA of the SSA, the other provisions of the SSA, associated legislation or relevant extrinsic materials to support this proposition. As the High Court made clear in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 103 ALD 467; BC200806838, subject to any indication to the contrary, the task of the AAT is to make the correct and preferable decision based on the facts and circumstances as they exist at the time of its decision.
The term “impairment” is not defined in the SSA. However, s 3 of the Impairment Tables defines “impairment” to mean:
A loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
The expression “severe impairment” is defined for the purposes of s 1218AAA of the SSA in s 94(3B) of the SSA as follows:
(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. [Emphasis added]
A person’s level of impairment 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: s 6(1) of the Impairment Tables.
The Impairment 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: s 6(2) of the Impairment Tables.
The introduction to the Impairment Tables sets out that an impairment rating can only be allocated to an impairment if the condition causing the impairment is “permanent” and the impairment is likely to persist for more than 2 years: s 6(3) of the Impairment Tables.
A condition will be permanent if it is “fully diagnosed” by an “appropriately qualified medical practitioner”, “fully treated”, “fully stabilised” and is likely to persist for more than 2 years: subsection 6(4) of the Impairment Tables.
An “appropriately qualified medical practitioner” is a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition: s 3 of the Impairment Tables.
The phrases “fully diagnosed” and “fully treated” are defined in s 6(5) of the Impairment Tables as follows:
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 paragraph 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. [Emphasis added]
The phrase “fully stabilised” is defined in s 6(6) of the Impairment Tables as follows:
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. [Emphasis added]
The phrase “reasonable treatment” is defined, for the purposes of s 6(6) of the Impairment Tables, in s 6(7) of the Impairment Tables as treatment that is available at a location reasonably accessible to the person, is at a reasonable cost, can reliably be expected to result in a substantial improvement in functional capacity, is regularly undertaken or performed, has a high success rate and carries a low risk to the person.
It is common ground, for the purposes of s 1218AAA(1) of the SSA, that Mr Morton:
(i) was granted DSP on 16 September 2009 and he is currently receiving DSP; and
(ii) has “permanent” impairments, being a spinal disorder, lower limb deficiencies and a shoulder and upper arm disorder.
What is in dispute is whether any of Mr Morton’s “permanent” impairments constitute a “severe impairment” within the meaning of s 94(3B) of the SSA and for the purposes of s 1218AAA(1)(b) of the SSA. As stated above, this requires that the relevant condition (impairment) attract 20 points or more under a single Impairment Table.
Whether Mr Morton’s spinal disorder, lower limb deficiencies or shoulder and upper arm disorder is, based on the available medical evidence, a “severe impairment”, as defined in s 94(3B) of the SSA, is considered below.
Spinal disorder
Mr Morton’s spinal disorder is required to be assessed under Table 4 of the Impairment Tables, titled “Spinal Function”.
In order to attract at least 20 points under Table 4 of the Impairment Tables, Mr Morton’s spinal disorder must have “severe functional impact on activities” involving his spinal function. This will be the case where:
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
Based on the medical evidence, Mr Morton’s spinal disorder does not constitute a “severe impairment” as defined in s 94(3B) of the SSA because Mr Morton’s spinal disorder does not have “severe functional impact on activities” involving his spinal function. In reaching this conclusion, the AAT notes, in particular, the JCA Report, the Mr James Report, the Dr Wilson Reports, the Dr Srivastava Report, the Dr Dave Report, the Dr Moore Report and Mr Morton’s evidence before the SSAT and the AAT, as set out above.
In particular, in the Dr Moore Report, Dr Moore notes that:
to score a 20 point rating the customer has to be ‘unable to perform any overhead activities, unable to bend forward to pick up an object at desk height or unable to remain seated for at least 10 minutes or unable to turn their head or bend their neck without moving their trunk.
Dr Moore reported that whilst Mr Morton would have difficulties with all of these tasks the MIFE records suggest that he would still be able to do these activities with difficulty.
As Mr Morton’s spinal disorder is not a “severe impairment” within the meaning of s 94(3B) of the SSA, it follows that the requirements of s 1218AAA(1)(b) of the SSA is not satisfied in relation to Mr Morton’s spinal disorder. In such circumstances, it is unnecessary to consider whether the requirements in s 1218AAA(1)(c) and (d) of the SSA have been satisfied in relation to Mr Morton’s spinal disorder.
Lower limb deficiencies
Mr Morton’s lower limb deficiencies are required to be assessed under Table 3 of the Impairment Tables, titled “Lower Limb Function”.
In order to attract at least 20 points under either Table 3 of the Impairment Tables, Mr Morton’s lower limb deficiencies must have “severe functional impact on activities” using his lower limbs. This will be the case where:
(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) The impairment rating level includes a person who requires assistance to:
(a) Moves around in, or transfer to and from a wheelchair (e.g. the person who 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.
Based on the medical evidence, Mr Morton’s lower limb deficiencies do not represent a “severe impairment” as defined in s 94(3B) of the SSA because Mr Morton’s lower limb deficiencies do not have “severe functional impact on activities” using his lower limbs. In reaching this conclusion, the AAT notes, in particular, the JCA Report, the Mr James Report, the Dr Wilson Reports, the Dr Dave Report, the Dr Moore Report and Mr Morton’s evidence before the SSAT and the AAT, as set out above.
As Mr Morton’s lower limb deficiencies are not a “severe impairment” within the meaning of s 94(3B) of the SSA, it follows that the requirements of s 1218AAA(1)(b) of the SSA is not satisfied in relation to Mr Morton’s lower limb deficiencies. In such circumstances, it is unnecessary to consider whether the requirements in s 1218AAA(1)(c) and (d) of the SSA have been satisfied in relation to Mr Morton’s lower limb deficiencies.
Shoulder and upper arm disorder
Mr Morton’s shoulder an upper arm disorder is to be assessed under Table 2 of the Impairment Tables, titled “Upper Limb Function”.
In order to attract at least 20 points under either Table 2 of the Impairment Tables, Mr Morton’s shoulder and upper arm disorder must have “severe functional impact on activities” using his hands or arms. This will be the case where:
(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.
Based on the medical evidence, Mr Morton’s shoulder and upper arm disorder does not constitute a “severe impairment”, as defined in s 94(3B) of the SSA, because Mr Morton’s shoulder and upper arm disorder does not have “severe functional impact on activities” using his hands or arms. In reaching this conclusion, the AAT notes, in particular, the JCA Report, the Mr James Report, the Dr Moore Report and Mr Morton’s evidence before the SSAT and the AAT, as set out above.
As Mr Morton’s shoulder and upper arm disorder is not a “severe impairment” within the meaning of s 94(3B) of the SSA, it follows that the requirements of s 1218AAA(1)(b) of the SSA is not satisfied in relation to Mr Morton’s shoulder and upper arm disorder. In such circumstances, it is unnecessary to consider whether the requirements in s 1218AAA(1)(c) and (d) of the SSA have been satisfied in relation to Mr Morton’s shoulder and upper arm disorder.
Other medical conditions
Based on the available medical evidence (and, in particular, the JCA Report the Dr Wilson Reports), Mr Morton’s hypertension, hypothyroidism and type 2 diabetes conditions cannot be considered “permanent” as none of these conditions has been “fully diagnosed”, “fully treated” and “fully stabilised”. As such, none of these conditions can be assigned an impairment rating under the Impairment Tables.
Further, based on the JCA Report, Mr Morton’s liver condition is “temporary” (and not “permanent”) and it follows cannot be assigned an impairment rating under the Impairment Tables.
DECISION
For the above reasons, the Tribunal affirms the SSAT Decision.