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

[2015] AATA 888

Alex and Secretary, Department of Social Services (Social services second review) [2015] AATA 888 (20 November 2015)

Division	GENERAL DIVISION
File Number	2015/3565
Re	Grant Alex
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President PE Hack SC
Date	20 November 2015
Place	Brisbane

The decision under review is affirmed.

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Deputy President PE Hack SC

CATCHWORDS

SOCIAL SECURITY – disability support pension – upper back condition – whether applicant’s impairment fully diagnosed, treated and stabilised – applicant’s condition referred for further investigation – not fully treated and fully stabilised – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), s 94

SECONDARY MATERIALS

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

REASONS FOR DECISION

Deputy President PE Hack SC

20 November 2015

1. Mr Grant Alex suffers from chronic pain in his upper back. Additionally he demonstrates symptoms of depression. On 23 September 2014, he lodged an application for disability support pension. On 9 October 2014, Centrelink determined that he did not satisfy the statutory criteria for disability support pension. That decision was affirmed on internal review (on 25 November 2014) and by the Social Security Appeals Tribunal (on 30 June 2015).

2. Mr Alex now seeks review in this Tribunal.

3. The statutory qualifications for disability support pension are set out in s 94 of the Social Security Act 1991 (Cth). It will suffice for present purposes to say that a person is qualified for disability support pension if the person has a physical, intellectual or psychiatric impairment (or impairments), if the impairment warrants a rating of 20 points or more under the Impairment Tables and if the person has a continuing inability to work (as that expression is used in the Act). Those criteria must be demonstrated at the time of the claim or within 13 weeks of it. That means in the present circumstances the period between 23 September 2014 and 22 December 2014 is the relevant period.

4. There is no doubt that Mr Alex has impairments. They will need to be examined in greater detail but it is sufficiently accurate to describe them as a cervical spine impairment and depression.

5. The Impairment Tables referred to in s 94 of the Act appear in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 made by the then Minister pursuant to s 26 of the Act. Part 2 of that Determination specifies rules for applying the Impairment Tables that are set out in Part 3 of it. Before an impairment rating may be assigned to an impairment the condition causing the impairment must be permanent, and the impairment resulting from the condition more likely than not to persist for more than two years.[1] A condition is to be regarded as permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, fully treated and fully stabilised.

   [1]           Clause 6(3).

6. The expressions “fully diagnosed and fully treated” and “fully stabilised” are defined in clause 6(5) and 6(6) of the Determination in these terms:

   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 reasons for the person not to undertake reasonable treatment.

   Note: For reasonable treatment see subsection 6(7).

7. Thus the effect of those parts of the Determination is that no rating may be assigned to a condition unless the condition is fully diagnosed, fully treated and fully stabilised. And, of course, the time at which that must be considered is at the time of the claim and the 13 weeks thereafter.

8. The issue of depression may be readily disposed of. I do not doubt that it troubles Mr Alex and affects his capacity to function. It is plain however that it does not satisfy the criteria to enable it to be afforded a rating. It is mentioned in passing in some of the material including by Dr Aston Wan, a specialist pain physician, in June 2015. Self-evidently it was not fully diagnosed, fully treated and fully stabilised in the period of 13 weeks after 23 September 2014.

9. Mr Alex’s upper back condition is variously described in the material. His general practitioner, Dr Ian McMillan, described the condition as degenerative neck disease and cervical radiculopathy[2] although Dr Michael Coroneos, a consultant neurosurgeon who saw Mr Alex in June 2014, did not consider verifiable cervical radiculopathy to be present. In any event the effect of the condition, not its medical description, is important.

   [2]           Exhibit 1, page 123.

10. The condition appears to have originated from a workplace injury in 2012 and, on Mr Alex’s account, it causes him constant pain in his neck and left shoulder, radiating to the fingers on his left hand. Seemingly, in connection with a common law claim, Mr Alex was seen by Dr John Pentis, an orthopaedic surgeon, in June 2013. That doctor’s report of 29 June 2013 is before me. It is of no particular assistance in the present case because it predates the relevant period by some 15 months. But as well, it would seem on the basis of the assessment of the work capacity assessors, Mr Alex’s condition worsened after June 2013. Dr Pentis speaks of a good range of movement in the shoulder joints, good flexion and extension in the neck and decreased lateral flexion and decreased rotation to the left.

11. In connection with his claim Mr Alex was seen by two Centrelink job capacity assessors, a rehabilitation counsellor and an occupational therapist, on 7 October 2014. They concluded that the cervical spine impairment was fully diagnosed but that it was not fully treated or fully stabilised. However the condition be described, it caused Mr Alex considerable pain in September 2014 such that Dr McMillan referred him to a pain clinic.[3] That consultation was apparently not undertaken until June 2015 when he was referred for nerve conduction studies. In those circumstances it seems to me that, in the period between September and December 2014, it was not possible to describe the condition as fully treated and fully stabilised because the investigations were still, and are still, being undertaken to determine the underlying cause of the pain. The conclusion that the condition was not fully treated and not fully stabilised in the period September 2014 to December 2014 is inescapable.

    [3]           Exhibit 1, page 134.

12. It is understandable that Mr Alex and Mrs Alex are frustrated at the progress that the condition is making in the medical investigations but the statute requires that a condition have reached a particular level in order for it to be assigned an impairment rating. It is not sufficient that there simply be symptoms or diagnosis of pain; what must be shown is that the condition is permanent and it has been optimally treated. In the circumstances, I am satisfied that it was not fully treated and not fully stabilised at the time of the claim or in the 13 weeks thereafter.

13. That being so it is unnecessary to consider the issue of continuing inability to work. The decision under review is correct. It will be affirmed.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC

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Associate

Dated 20 November 2015

Date of hearing	9 November 2015
Applicant	In person
Solicitors for the Respondent	Mr R McQuinlan, Program Litigation and Review Branch, Department of Human Services