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

[2016] AATA 656

Bagorski and Secretary, Department of Social Services (Social services second review) [2016] AATA 656 (31 August 2016)

Division	GENERAL DIVISION
File Number	2015/6231
Re	Anthony Bagorski
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Member D K Grigg
Date	31 August 2016
Place	Brisbane

The decision under review is affirmed.

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Member D K Grigg

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

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

CASES

Freeman v Secretary, Department of Social Security[1988] FCA 294; (1988) 19 FCR 342.

Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404

Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534

Gallacher v Secretary, Department of Social Services [2015] FCA 1123.

REASONS FOR DECISION

Member D K Grigg

31 August 2016

INTRODUCTION

1. Mr Bagorski is 33 years old. He had been a recipient of the Disability Support Pension (“DSP”) since 21 November 2011.[1] However, on 9 June 2015, after a medical review, Mr Anthony Bagorski’s DSP was cancelled by the Department of Human Services (Centrelink).[2]

   [1]           Exhibit 2, Respondent’s Statement of Facts and Contentions dated 26 May 2016, para 3.

   [2]           Exhibit 1, T Documents, T4, pages 37-38, Letter from Centrelink to Mr Bagorski dated 9 June 2015.

   Claim History

2. Mr Bagorski sought a review of that decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mr Bagorski’s impairment did not attract 20 points or more under the Impairment Tables.[3]

   [3]           Exhibit 1, T Documents, T5, pages 39-42, Decision of ARO dated 23 June 2015.

3. On 2 July 2015, Mr Bagorski lodged an application for review with the Social Services and Child Support Division (“SSCSD”).[4] The SSCSD rejected Mr Bagorski’s claim and affirmed the ARO’s decision on 20 October 2015.[5]

   [4]           Exhibit 1, T Documents, T6, pages 45-46, SSCSD Request.

   [5]           Exhibit 1, T Documents, T2, pages 3-9, SSCSD’s Decision and Reasons for Decision dated 20 October 2015.

4. Mr Bagorski has sought a review of the SSCSD’s decision by this Tribunal.[6]

   [6]           Exhibit 1, T Documents, T1, pages 1-2, Mr Bagorski’s Application for Review dated 18 November 2015.

   ISSUES FOR DETERMINATION

5. The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).

6. Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-

   (a)Mr Bagorski must have a physical, intellectual or psychiatric impairment;

   (b)Mr Bagorski’s impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[7]

   (c)Mr Bagorski must have a continuing inability to work.

   [7] A legislative instrument made under the Act: see s 26(1).

7. Pursuant to section 80 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) the Secretary may cancel a person’s social security payment if that person was not qualified for the payment.

8. A decision made under section 80 is an “adverse determination” within the meaning of s 118(13) of the Administration Act, which provides that such a decision “takes effect on the day on which it is made”.[8]

   [8]           See also Freeman v Secretary, Department of Social Security[1988] FCA 294; (1988) 19 FCR 342.

9. Therefore, in order to qualify for the DSP, Mr Bagorski must have met the Section 94 Requirements at the date of the decision to cancel the DSP, that is, on 9 June 2015 (“Qualification Date”).

10. It is important to keep in mind that medical evidence concerning the functional impact of Mr Bagorski’s impairments after the Qualification Period can be considered if it “casts light on” the functional impact of the impairments during the Qualification Period.[9]

    DID MR BAGORSKI HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?

    [9]           See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on

    appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97

    ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].

    What is an Impairment

11. The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[10]

    [10] Determination, s 3.

    Mr Bagorski’s medical condition

12. Mr Bagorski was diagnosed as suffering from “migraines with aura” in August 2008.[11] Mr Bagorski says his medical conditions are “head pain, brain pain, migraine”.[12]

    [11]         Exhibit 1, T Documents, T10, page 68, Medical Certificate of Dr Sidya Raghavan dated 9 August 2011 and T11,

    page 69, Medical Certificate of Dr Sidya Raghavan dated 19 October 2011.

    [12]         Exhibit 1, T Documents, T16, pages 91-94, Medical Review Form dated 13 February 2015.

13. Dr Sidya Raghavan, Mr Bagorski’s general practitioner in 2011, described Mr Bagorski’s functional symptoms at that time as “headaches and visual disturbances”.[13]

    [13]         Exhibit 1, T Documents, T10, page 68, Medical Certificate of Dr Sidya Raghavan dated 9 August 2011 and T11,

    page 69, Medical Certificate of Dr Sidya Raghavan dated 19 October 2011.

14. Dr Phillip Burrell (General Practitioner) described Mr Bagorski’s condition as “migraines daily” in his 2015 Medical Review Report.[14] Dr Burrell reported that this condition affects Mr Bagorski’s endurance, concentration, decision making, memory, problem solving, behaviour and ability to lift and carry.[15]

    [14]         Exhibit 1, T Documents, T15, pages 81-90, Medical Review Report of Dr Burrell dated 13 February 2015.

    [15]         Exhibit 1, T Documents, T15, pages 81-90, Medical Review Report of Dr Burrell dated 13 February 2015.

15. A JCA was conducted face-to-face with Mr Bagorski on 5 May 2015 by a Registered Psychologist and Registered Nurse. The JCA assessors’ report states that Mr Bagorski suffered from:[16]

    ·Migraine which was found to be fully diagnosed, fully treated and fully stabilised

    [16]         Exhibit 1, T Documents, T17, pages 95-100, Job Capacity Assessment report dated 5 May 2015.

16. The Respondent accepts that Mr Bagorski had a physical impairment arising from his migraine headaches for the purposes of section 94(1)(a) at the Qualification Date.[17]

    [17] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 26 May 2016, para [27].

    Conclusion on Impairment

17. In light of the above evidence I conclude that at the Qualification Date Mr Bagorski suffered an Impairment for the purposes of the Act and that the requirement in section 94(1)(a) has been met:

    DOES MR BAGORSKI’S IMPAIRMENT ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?

    How are Impairment Ratings Assessed?

18. The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[18] They are function based[19] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[20]

    [18] Determination, s 4(2) and 5(2)(a).

    [19] Determination, s 5(2)(b) and (c).

    [20] Determination, s 5(2)(d).

19. I can only assign an Impairment Rating to an impairment if:[21]

    (a)Mr Bagorski’s condition causing that impairment is “permanent”; and

    (b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

    [21] Determination, see s 6(3).

20. Mr Bagorski’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[22]

    (a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;

    (b)the condition has been fully treated;

    (c)the condition has been fully stabilised; and

    (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

    [22] Determination, see s 6(4).

21. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[23] the following must be considered:[24]

    (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.

    [23] For the purposes of ss 6(4)(a) and (b) of the Determination.

    [24] Determination, see s 6(5).

22. A condition is fully stabilised[25] if:[26]

    (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[27]; or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

    [25] For the purposes of ss 6(4)(c) and 11(4) of the Determination.

    [26] Determination, see s 6(6).

    [27]         For reasonable treatment see s 6(7) of the Determination.

23. Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.

24. However, before applying the Tables I must first consider Mr Bagorski’s medical history, in relation to the condition causing the impairment.[28]

    [28] Determination, see s 6(2).

25. I will now consider Mr Bagorski’s migraine Impairment.

    Migraine Impairment

    Are Mr Bagorski’s migraines permanent and likely to persist for at least 2 years?

26. The JCA reported that Mr Bagorski:

    (a)was treating his migraines with Atenolol (commenced January 2015) and Topomax (commenced February 2015) and his pain with Panadeine Forte and Endone;

    (b)stopped taking the taking the Topomax at the end of April 2015 due to the side effects; and

    (c)had also commenced trialling physiotherapy.

27. On 10 June 2015 Dr Burrell reported that:[29]

    (a)since 1 June 2014 Mr Bagorski has been suffering from “severe paroxysms of migraine unresponsive to all treatments so far trialled”; and

    (b)the condition was “temporary” with an “uncertain prognosis”.

    [29]         Exhibit 1, T Documents, T18, page 101, Medical Certificate of Dr Burrell dated 10 June 2015.

28. On 25 August 2015 Dr Burrell reported that:[30]

    (a)since 1 June 2014 Mr Bagorski was suffering from “severe paroxysms of migraine unresponsive to all treatments so far trialled” which needed “further investigation”;

    (b)Mr Bagorski was getting these migraines “two to three times a week;

    (c)they were waiting on a neurologist opinion; and

    (d)the condition was “temporary” with an “uncertain prognosis”.

    [30]         Exhibit 1, T Documents, T24, page 115, Medical Certificate of Dr Burrell dated 25 August 2015.

29. Mr Bagorski had a CT scan of his brain on 6 February 2015 which showed no abnormality.[31]

    [31]         Exhibit 1, T Documents, T21, page 106, Radiology Report of Dr Ratanjee dated 6 February 2015.

30. In March 2016 Dr Burrell reported that:[32]

    (a)there was no further investigation he could offer;

    (b)Mr Bagorski needs a specialist opinion; and

    (c)he referred Mr Bagorski to a neurologist on 27 July 2015 but he is still waiting for an appointment.

    [32]         Exhibit 2, Respondent’s Statement of Facts and Contentions dated 26 May 2016, Attachment A, Letter from Dr

    Burrell received by the AAT on 21 March 2016.

31. In the Medical Report submitted by Dr Burrell in February 2015 Dr Burrell reported that:[33]

    (a)Mr Bagorski was being treated with Atenolol and Topomax; and

    (b)this condition would persist for more than 24 months and the effect of the condition on Mr Bagorski’s ability to function was uncertain.

    [33]         Exhibit 1, T Documents, T15, page 83-85, Medical Report Form of Dr Burrell dated 13 February 2015.

32. The JCA undertaken on 5 May 2015 concluded that Mr Bagorski’s migraine condition was fully diagnosed, fully treated and fully stabilised.[34]

    [34]         Exhibit 1, T Documents, T17, page 96, Job Capacity Assessment report dated 5 May 2015.

33. The Respondent submits that the medical evidence indicates that Mr Bagorski’s condition is not fully diagnosed and is presumptive. The Respondent points to the fact that:

    (a)Mr Bagorski has not yet had specialist review or treatment, although he is on a waiting list for specialist review;

    (b)Dr Burrell reported in February 2015 that Mr Bagorski’s condition was “presumptive”;[35]

    (c)In March 2016, Dr Burrell reports he is still “clinically exhausted for a diagnosis”.[36]

    [35]         Exhibit 1, T Documents, T15, page 85, Medical Report Form of Dr Burrell dated 13 February 2015.

    [36]         Exhibit 2, Respondent’s Statement of Facts and Contentions dated 26 May 2016, Attachment A, Letter from Dr

    Burrell received by the AAT on 21 March 2016.

34. As a result the Respondent submits that Mr Bagorski’s impairment was not fully diagnosed, not fully treated and not fully stabilised at the Qualification Date.[37]

    [37]         See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 26 May 2016, para 40.

35. In the hearing before me Mr Bagorski told me that:

    (a)the medication he had been prescribed, namely Topomax, had not worked so he ceased taking it;

    (b)Dr Burrell:

    (i)Had only been his general practitioner for a short time before he (Dr Burrell) prepared the Medical Review Report in February 2015; and

    (ii)thinks his headaches and pain may be from depression and anxiety.

36. At the time of preparing the Medical Review Report of February 2015 Dr Burrell had only been treating Mr Bagorski since 15 December 2014.[38] This may explain why he described the diagnosis as “presumptive” at that time. However by May 2015, when the JCA was conducted it is clear from the JCA report that Dr Burrell noted the primary diagnosis and informed the JCA:[39]

    (a)that Mr Bagorski was experiencing daily headaches;

    (b)that the condition was affecting Mr Bagorski’s neurological functioning; and

    (c)of Mr Bagorski’s current medicinal treatment plan for the condition.

    [38]         Exhibit 1, T Documents, T15, page 82, Medical Report Form of Dr Burrell dated 13 February 2015.

    [39]         Exhibit 1, T Documents, T17, page 96, Job Capacity Assessment report dated 5 May 2015.

37. In the referral letter to the specialist dated 27 July 2015 Dr Burrell describes Mr Bagorski’s condition as “unresolved paroxysmal headaches”.[40] That Mr Bagorski complained of regular headaches and resulting pain is certain.

    [40]         Exhibit 1, T Documents, T21, page 105, Dr Burrell referral letter dated 27 July 2015.

38. I find therefore that the medical evidence supports a finding that Mr Bagorski’s migraine Impairment had been fully diagnosed as at the Qualification Date.

39. However, Mr Bagorski has not yet had appropriate specialist review and therefore the prognosis, cause and most appropriate treatment for his condition is not yet known.

40. Mr Bagorski informed me that he has been moved up in the queue to see the neurologist, and is now category A, but he is still does not know the date for the review.

41. Even if Mr Bagorski’s condition was not fully diagnosed, I would also find that it had not been fully treated and was not fully stabilised for the reasons given in paragraphs 30, 31, 33, 35, 36, 37, 39 and 40 above.

42. Therefore, I find that during the Qualifying Period Mr Bagorski’s migraine impairment was not permanent for the purpose of the Act.

    CONCLUSION

43. I have concluded that Mr Bagorski’s impairment is not permanent therefore it is unnecessary for me to assign an impairment rating or to consider whether Mr Bagorski had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c).

44. Mr Bagorski’s impairment was not permanent at the Qualification Date and as a result he does not qualify for DSP.

45. The decision under review is affirmed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

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Associate

Dated 31 August 2016

Date of hearing	4 August 2016
Applicant	Self-represented
Solicitors for the Respondent	Department of Human Services