Anthony Butler and Secretary, Department of Social Services
[2014] AATA 875
•13 November 2014
[2014] AATA 875
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/1501
Re
Anthony Butler
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 13 November 2014 Date of written reasons 26 November 2014 Place Sydney The decision under review is affirmed.
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Senior Member Bernard J McCabe
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Whether Applicant has severe impairment – Whether Applicant has continuing inability to work – No impairment attracting 20 point rating – No participation in a program of support – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth), s 94
REASONS FOR DECISION
Senior Member Bernard J McCabe
26 November 2014
The applicant, Mr Butler, applied for the disability support pension (DSP). Centrelink rejected his claim, and that decision was affirmed by the Social Security Appeals Tribunal. Mr Butler then asked this Tribunal to review the decision. A hearing was held on 13 November 2014. I affirmed the decision under review at the end of the hearing and gave oral reasons. Mr Butler subsequently asked for written reasons for that oral decision. The reasons that follow have been distilled from the transcript.
I mentioned at the outset of the hearing that there are a number of hoops one must jump through in order to qualify for the DSP. I am referring particularly here to the so-called medical criteria in section 94 of the Social Security Act 1991 (Cth). The first of these criteria require that the applicant identify at least one or more medical conditions that are a problem, and he has identified several. More have emerged since the applicant first submitted his claim.
The applicant’s heart and shoulder conditions brought him to Centrelink in the first place. His spinal condition – incorporating difficulties in the upper and lower back, including the neck – has since become much more of an issue, though that was not the presenting complaint. More recently, the applicant has experienced problems with his hand. I am satisfied the applicant has several physical impairments.
The next thing I must decide is whether the applicant has an impairment rating of 20 points or more under the Impairment Tables. There must also be a continuing inability to work: that is the third requirement. The applicant’s treating doctors have said he cannot work at least 15 hours a week, which satisfies the first part of that requirement. But one cannot be said to have a continuing inability to work unless one has completed a program of support, or is excused from attending such a program. The applicant has not attended a program of support for sufficient time before the application for DSP was lodged, so he will be unable to satisfy the requirement that he have a continuing inability to work unless he has a severe impairment, which is a single impairment that attracts 20 points or more under the Impairment Tables.
Even if a person is participating in a program of support because he or she does not have a severe impairment, the relevant disability employment services provider might still be in a position to recognise that the program will make no difference to the participant’s ability to work, and waive the requirement to participate in the program. The applicant is not in that position. The applicant is agitated about why that has not happened given the things he claims he was told and the medical evidence he has presented. While I accept he is frustrated, I am still obliged to accept the evidence that the requirement to participate in the program of support has not been waived.
The crucial thing I need to focus on in order to resolve this particular claim – that is, the claim the applicant made in June last year, not a more recent claim – is whether or not on any of his individual conditions, particularly the back condition, attract up to 20 points under there relevant impairment tables. There is an instruction in the determination which sets out the impairment tables that requires me to make an assessment having regard to objective evidence, which is why the doctor's evidence, and perhaps that of the job capacity assessor, is important.
The applicant has criticised some of the job capacity assessments on the basis the assessor considered only that evidence which was on the applicant’s file, and did not talk to the applicant himself. I have put those assessments to one side, because I do not think they are as good as evidence from the applicant’s treating doctor who is a general practitioner. The GP seems to know the applicant quite well and is intimately familiar with his condition because the GP has dealt with the applicant over a long period of time. The GP also has the backup report from a specialist. I consider that material to be the best evidence.
Dr Guirguis, the GP, described restrictions the applicant is experiencing with his neck. Dr Guirguis’ observations are completely consistent with what the applicant has told Centrelink. They are also consistent with an impairment rating of 20 points.
However Dr Guirguis made it clear that the thing that particularly impairs the applicant – that adds to his level of impairment and increases the restriction – is pain. The applicant has an underlying condition, or structural problems, which limit his movement, but Dr Guirguis says that is generating pain and it is the pain that actually debilitates Mr Butler. When I asked Dr Guirguis to go through the exercise of identifying what the applicant’s restrictions would be if the pain could be treated or managed, the doctor said Mr Butler would be less restricted. The sort of restrictions Dr Guirguis described in that event were in fact consistent with 10 impairment points on the relevant table.
The Secretary says Dr Guirguis is not alone in that opinion. Dr Al-Khawaja agrees.
Dr Al-Khawaja says the applicant has an underlying condition that is not going to change except perhaps to get a little bit worse. He says the applicant’s situation would improve with an "extensive pain management program."
This inquiry looks at what was happening in September, August and July 2013, which is the period following the application for DSP. The applicant had a referral for a pain management program but nothing has been done about that yet. Dr Guirguis says the applicant had other things going on which were more pressing complaints at the time, including his heart problem. As a consequence, there has been some delay in actually obtaining the pain management. But in any event, all the evidence suggests pain management would be worth trying. There is no guarantee it is going to work, but it is something worth trying.
In those circumstances, the Secretary says a pain management program is a reasonable treatment available at the time which has yet to be undertaken, and therefore an impairment rating should not have been assigned. If such a program did not have any effect, then an impairment rating could then be assigned. If the applicant stayed basically the same, notwithstanding the pain management treatment, then he may attract 20 points under the Impairment Tables.
I agree that is so. If I have regard to that period in 2013 after Mr Butler made the claim, there was still something that could have been done and that should have been done to help the applicant lessen the restrictions that he faced because of his spine. If that had been done he may not have experienced the level of discomfort that he experienced, or the level of discomfort that he may well experience now, or even worse. That is not to say a pain management program will fix the applicant or remove any restriction from his movement. I accept the applicant would still experience restrictions even if pain management treatment were completely successful. I am simply saying he may suffer fewer restrictions which merit a lower rating on the relevant impairment table.
CONCLUSION
I cannot be satisfied the applicant had, at the relevant time, a severe impairment within the meaning of section 94, which means he cannot be automatically excused from the program of support requirement. The disability services provider has to sign off on it and exit the applicant from the program, and that has not occurred.
The Tribunal cannot give the applicant the DSP on the original application. The fate of the fresh application remains unknown. The decision under review in these proceedings must be affirmed.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe ........................................................................
Associate
Dated 26 November 2014
Date of hearing 13 November 2014 Applicant In person Solicitors for the Respondent Ms G Heggen, Department of Human Services
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