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

[2016] AATA 850

Baker and Secretary, Department of Social Services (Social services second review) [2016] AATA 850 (28 October 2016)

Division	GENERAL DIVISION
File Number	2015/6782
Re	Scott Baker
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Conrad Ermert, Member
Date	28 October 2016
Place	Melbourne

The Tribunal affirms the decision under review.

[sgd]........................................................................

Conrad Ermert, Member

SOCIAL SECURITY - Disability Support Pension - physical, intellectual and psychological impairments - whether conditions fully diagnosed, treated and stabilised - whether a rating of 20 impairment points - decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

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)

REASONS FOR DECISION

Conrad Ermert, Member

INTRODUCTION

1. Mr Baker, the Applicant, received a Disability Support Pension (DSP) from 27 January 2009 to 12 March 2010.  The payments ceased as a result of a compensation settlement.  Mr Baker lodged claims for DSP on 28 November 2013 and 5 November 2014, both of which were rejected.

2. On 26 May 2015 Mr Baker lodged another claim for DSP.  In his application he listed the following as his disabilities:

   ·Chronic pain;

   ·Memory loss;

   ·Damaged L4-L5 spine;

   ·Depression;

   ·Trouble breathing;

   ·Chronic knee pain; and

   ·Chronic thigh pain.

3. On 13 July 2015 an officer of Centrelink rejected the claim.  Centrelink is the service provider for the Department of Human Services, now the Department of Social Services, the Respondent.  Mr Baker sought a review of the decision.  In a notice dated 1 September 2015, an Authorised Review Officer (ARO) of Centrelink affirmed the decision to reject the claim, as the claimed conditions were still under treatment and could not be assigned a disability rating.

4. Mr Baker sought a review of the ARO’s decision.  On 13 November 2015 the Social Services and Child Support Division of this Tribunal (AAT1) affirmed the ARO decision.

5. This matter is an application for review of the AAT1 decision.

   HEARING

6. Mr Baker did not appear at the hearing.  The Tribunal contacted him by telephone however he chose to not continue the telephone call and hung up.

7. Ms Ailsa Bramley, of the Department of Human Services, represented the Respondent and appeared at the hearing.  Ms Bramley submitted that the matter should be decided on the documents already available to the Tribunal, or, in the alternative, to dismiss the application.

8. As I have no knowledge of Mr Baker’s circumstances at the time of the telephone call I have decided to determine the matter on the available documentation.

9. I have before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (“the T-documents”). 

10. Mr Baker provided no documentation additional to that contained in the T-Documents.

11. For the Respondent I took in for consideration the Secretary’s Statement of Facts and Contentions undated but received by the Tribunal on 23 May 2016.

    LEGISLATION

12. The relevant legislation is contained in the Social Security Act 1991 (the Act), and the Social Security (Administration) Act 1999 (the Administration Act).

    ISSUES

13. Subsection 94(1) of the Act details the requirements for qualification for DSP as follows:

    (a)The person has a physical, intellectual or psychiatric impairment; and

    (b)The person’s impairment is of 20 points or more under the Impairment Tables; and

    (c)One of the following applies:

    (i)     The person has a continuing inability to work…

14. The issues I must determine are whether:

    ·Mr Baker has physical, intellectual or psychiatric impairments; and if so

    ·The impairments attract a rating of at least 20 points under the tables contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and if so

    ·He has a continuing inability to work.

    TRIBUNAL CONSIDERATIONS

    Relevant Period

15. Schedule 2, subclause 4(1) of the Administration Act requires Mr Baker’s qualification for DSP to be determined from the date of his claim to a date 13 weeks thereafter. In this case the relevant period is 26 May 2015, the date of the claim, to 25 August 2015, that being a period of 13 weeks.

    Impairments

16. The Respondent concedes that Mr Baker satisfies subsection 94(1)(a) of the Act in that he has chronic pain disorder and chronic adjustment disorder with depressed and anxious mood as evidenced by the medical report of Dr Sacks dated 21 May 2015. From the medical evidence I accept the concession and find accordingly.

    Application of Impairment Tables

17. Subsection 6(3)(a) of the Impairment Tables states that an impairment rating can only be assigned to an impairment if the impairment is permanent.  Subsection 6(4) provides that a condition is permanent if the condition:

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

    (b)has been fully treated;

    (c)has been fully stabilised; and

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

18. I will consider each condition in turn.

    Chronic Pain Disorder

19. In his report dated 21 May 2015 Dr Sacks records a diagnosis of Chronic Pain Disorder associated with both psychological factors and a general medical condition with a date of onset of 8 May 2002.  Dr Sacks is recorded as being a Consultant Psychiatrist and Consultant in Addiction and Pain Medicine.  I am satisfied that the condition is fully diagnosed by an appropriately qualified medical practitioner and find accordingly.

20. In his report Dr Sacks includes as future/planned treatment: Referral to a Rehabilitation Medicine specialist.  Dr Sacks also records that within the next two years he expects that significant functional improvement may occur if Mr Baker attends a formal rehabilitation program and is an active participant, however his low back pain is likely to persist indefinitely. 

21. I am satisfied that, as at the date of the report, Mr Baker’s condition was not fully treated and had the prospect of significant functional improvement over the next two years.  Accordingly, I find that in the relevant period the condition was not fully treated, nor fully stabilised.  As a result the condition is not permanent in the terms of the Impairment Tables and consequently an impairment rating cannot be applied.

    Chronic Adjustment Disorder

22. In his report dated 21 May 2015 Dr Sacks records a diagnosis of Chronic Adjustment Disorder with depressed and anxious mood.  He records the onset as May 2002.

23. The Introduction to Table 5 (Mental Health Function) of the Impairment Tables requires that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner which includes a psychiatrist.  Dr Sacks is a qualified psychiatrist.  I accept that the condition is fully diagnosed in the terms of the Impairment Tables and find accordingly.

24. Dr Sacks records his proposed future/planned treatment as; Ongoing psychotherapy focussed on pain self-management, reduced reliance on opioid analgesics.  He records also that he expects the condition to significantly improve within the next two years.

25. As the condition is expected to significantly improve I cannot accept that the condition is fully stabilised.  I find that during the relevant period the condition is not fully stabilised.  As a result the condition is not permanent in the terms of the Impairment Tables and I am unable to assign an impairment rating to the condition.

    Other Conditions

26. In his report of 21 May 2015 Dr Sacks also records the condition of testicular cancer.  In his report dated 22 August 2014 Dr Cheng records a diagnosis of Large testicular tumour – non seminomatous germ cell tumour.  The diagnosis was supported by Dr Newell, a specialist urologist and Dr Pook, medical oncologist.  I am satisfied that the condition was fully diagnosed.

27. Dr Cheng recorded the treatment of the condition comprising hospitalisation and left radical orchidectomy in July 2014 followed by a program of chemotherapy, commencing in August 2014.  Dr Sacks records the condition as treated with chemotherapy.  There is no evidence that the condition was subject to further treatment or was not stable following the treatment.  I accept that, in the relevant period, the condition was fully treated and stabilised and I find accordingly.

28. In considering the functional impact of the condition I note the report of Dr Sacks dated 21 May 2015 which records side effects include reduced pulmonary function and some sensory impairments.  However there is no indication of the extent of the impairment.  I note also the report of Dr Cheng in which he recorded that he expected the condition to resolve in three to 12 months. 

29. Absent evidence regarding the degree of functional impairment resulting from the condition, and noting that Mr Baker did not list it as a disability, illness or injury in his DSP application, I am satisfied that there is minimal functional impairment resulting from this condition.  Accordingly I assign zero impairment points for this condition.

    Total Impairment Rating

30. For Mr Baker’s conditions at the time of relevant period I have found the following:

    (a)Chronic pain disorder – not fully treated, not fully stabilised and unable to assign a rating;

    (b)Chronic adjustment disorder – not fully stabilised and unable to assign a rating; and

    (c)Testicular cancer – zero impairment points.

31. The total impairment rating at the time of the relevant period is zero impairment points. 

32. As Mr Baker’s impairments do not attract an impairment rating of 20 points or more he does not satisfy the requirements of subsection 94(1)(b) of the Act. Accordingly he cannot satisfy all of the requirements of subsection 94(1) of the Act and there is no need for me to consider the other requirements of subsection 94(1) of the Act. I find that, in the relevant period, Mr Baker was not qualified for DSP.

    DECISION

33. The Tribunal affirms the decision under review.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Conrad Ermert, Member

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Associate

Dated  28 October 2016

Date of hearing	19 September 2016
Applicant	By telephone
Advocate for the Respondent	Ms Ailsa Bramley