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

[2016] AATA 1088

Bell and Secretary, Department of Social Services (Social services second review) [2016] AATA 1088 (23 December 2016)

Division	GENERAL DIVISION
File Number(s)	2016/3575
Re	Anthony Bell
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal:Professor R McCallum AO, Member

Date:23 December 2016

Place:Sydney

The decision under review is affirmed

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

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – application rejected by Centrelink – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairments are rated 20 points or more under the Impairment Tables – continuing inability to work – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) Sch 2

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Fanning and Secretary, Department of Social Services [2014] AATA 447

Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

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

REASONS FOR DECISION

Professor R McCallum AO, Member

23 December 2016

INTRODUCTION

1. The Applicant, Mr Anthony Bell, lodged a claim for Disability Support Pension (DSP) on 28 September 2015.

2. On his claim form, Mr Bell stated that he suffers from cervical spine damage, carpal tunnel (both hands), nerve damage, knee replacement left & right required, and depression. Mr Bell also wrote that he was expecting knee replacement operations.

3. Mr Bell did not mention arthritis in his right hand on the claim form.

4. On 30 September 2015, Mr Bell wrote a letter to Centrelink attaching detailed medical reports going back to 1999. These medical reports and other documents were forwarded to the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth).

5. On 9 December 2016, Mr Bell provided to the Tribunal several further medical reports.

6. On 7 January 2016, Mr Bell attended a face to face Job Capacity Assessment (JCA) examination which was conducted by a registered occupational therapist.

7. In the JCA report dated 7 January 2016, the assessor held that Mr Bell’s neck disorder, shoulder and upper arm disorder were fully diagnosed. However, they had not been fully treated and stabilised. The assessor further held that Mr Bell’s depression, carpal tunnel syndrome and osteoarthritis, had not been fully diagnosed, treated and stabilised. Therefore, none of the impairments could be assessed under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables).

8. The assessor further held  that Mr Bell’s baseline work capacity was 8 to 14 hours per week and 15 to 22 hours per week within two years with intervention.

9. On 7 January 2016, the Department of Human Services, which is better known as Centrelink, rejected Mr Bell’s application.

   MR BELL SEEKS REVIEWS

10. Mr Bell sought an internal review by an Authorised Review Officer (ARO).

11. On 8 March 2016, the ARO affirmed the decision under review.

12. The ARO found that Mr Bell did suffer from shoulder injury, cervical nerve injury, osteoarthritis and knee problems. However, the ARO further held that none of these impairments were fully treated and stabilised during the claim period.  The ARO also held that Mr Bell had not completed his Program of Support (POS) requirements and that he had the capacity to work for at least 15 hours a week in the next two years.

13. Mr Bell sought a further review from the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) which is known as an AAT first review (AAT1).

14. In its decision dated 30 May 2016, which was posted on 8 June 2016, the AAT1 affirmed the decision of the ARO. The AAT1 did not discuss whether Mr Bell had a continuing inability to work.

15. The AAT1 commented as follows:

    18. Having considered the matter the tribunal was of the view that there is ample evidence that Mr Bell has a long standing neck and shoulder injury that has been subject to a wide range of treatments and specialist medical reviews. The evidence demonstrates that after treatment Mr Bell was able to participate in the workforce again.

    19. Mr Bell had claimed disability support pension after a worsening of his neck and shoulder condition. The contemporary medical evidence in respect of his current level of impairment is:

    ·     A medical certificate completed by Dr Collogan on 28 October 2015 describing Mr Bell’s impairment as left shoulder dysfunction, possibly a rotator cuff injury, which was reported to be a temporary exacerbation  of a permanent condition.

    ·     A medical certificate completed by Dr Collogan on 26 November 2015 describing Mr Bell’s impairment as adhesive capsulitis of the left shoulder, which was reported to be a temporary exacerbation of a permanent condition.

    ·     A letter from Dr Collogan to Centrelink dated 27 November 2015 noting that Mr Bell was receiving treatment for adhesive capsulitis and cervical root irritation or nerve root compression. The letter noted that Mr Bell had commenced physiotherapy and medication for neuropathic pain and was on a waiting list for a neurosurgeon consultation.

    ·     A medical certificate completed by Dr Collogan on 12 March 2016 describing Mr Bell’s cervical root irritation and adhesive capsulitis as a permanent condition.

    ·     A medical certificate completed by Dr Collogan on 29 March 2016 describing Mr Bell’s cervical root irritation and adhesive capsulitis as a permanent condition.

    20. The picture that this evidence painted to the tribunal is one where Mr Bell has suffered an exacerbation of a previously treated and stabilised neck and shoulder injury. During the period relevant to determining Mr Bell’s qualification for disability support pension (28 September 2015 to 28 December 2015) it appears that the injuries were considered temporary (Dr Coliogan; 28 October 2015 and 26 November 2015). Mr Bell was referred for physiotherapy and prescribed neuropathic pain medication (which it was his evidence at hearing that he could not afford to obtain) and was on the waiting list for a neurosurgical consultation.

    21. It was not until 12 March 2016 (which is after the period during which Mr Bell's qualification for disability support pension is assessed), that Dr Collogan indicated that Mr Bell’s current level of impairment is likely to continue for at least two years.

    22. In light of this evidence, the tribunal was not persuaded that during the period 28 September 2015 to 28 December 2015 that Mr Bell’s neck and shoulder injuries can be considered fully treated and fully stabilised. Therefore, it is not possible to consider assigning an impairment rating for these conditions.

16. Mr Bell now appeals to the General Division of the AAT which is known as an AAT second review (AAT2).

    THE LEGISLATION

17. The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

18. The criteria for DSP are set forth in section 94 of the SS Act. In Mr Bell’s circumstances subsection 94(1) relevantly provides:

    (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;

    …

19. Put simply, I must be satisfied, first, that Mr Bell has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the Impairment Tables. Finally, I must be satisfied that Mr Bell has a continuing inability to work.

20. The phrase "continuing inability to work" is defined in subsection 94(2) of the SS Act. In Mr Bell’s circumstances, it relevantly provides as follows:

    A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa)in a case where the person's impairment is not a severe impairment within     the meaning of subsection (3B)...the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b)in all cases—either:

    (i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii)if the impairment does not prevent the person from undertaking a training activity-such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

    …

21. “Work” is defined in subsection 94(5) as follows:

    work means work:

    (a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

    (b)that exists in Australia, even if not within the person’s locally accessible labour market.

22. These definitions are complex, but in essence, unless a person has a severe impairment, the person must have participated in a program of support. A severe impairment is defined in subsection 94(3B) of the SS Act as follows.

    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.

23. This means that in Mr Bell’s circumstances, if any of his impairments are assessed at 20 points under one of the Impairment Tables, that impairment will be a severe impairment. If none of Mr Bell’s impairments are severe impairments, he will be required to have participated in a program of support.

24. "Program of support" is defined in subsection 94(5) as follows:

    program of support means a program that:

    (a)       is designed to assist persons to prepare for, find or maintain work; and

    (b)       either:

    (i)        is funded (wholly or partly) by the Commonwealth; or

    (ii)is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.

    …

25. Under subsection 94(3C) of the SS Act, a person has actively participated in a program of support if the person satisfies the requirements set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the POS Determination).

26. It is not necessary to set out subsections 7(1) and 7(2) of the POS Determination. Suffice to write that these provisions specify persons must participate in programs of support for 18 months in the three years before lodging their claims for DSP.

27. Finally, Mr Bell’s impairments must be sufficient to prevent him from doing any work independently of a program of support for 15 hours a week within the next 2 years.

    THE 13 WEEK QUALIFYING PERIOD

28. Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. It is not necessary to set out this clause, suffice to write the following. Clause 4(1) is worded in a complex manner, however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine Mr Bell’s eligibility for DSP in the 13 week period commencing on the day on which Mr Bell’s claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. Therefore, I must determine whether Mr Bell qualified for DSP between 28 September 2015 and 28 December 2015.

29. The date of the AAT2 hearing was 15 December 2016 which is more than 11 months after the end of the claim period.

30. In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen said at [34]:

    In the Tribunal's consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

31. In Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said:

    31.In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.

    32.This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.

    33.The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.

    THE CONCESSIONS OF THE RESPONDENT

32. In the Respondent’s Statement of Facts, Issues and Contentions, the Respondent has made two concessions.

33. The first concession concerns paragraph (a) of subsection 94(1) of the SS Act. Paragraph 46 of the Statement of Facts, Issues and Contentions provides as follows:

    The Secretary accepts that during the relevant period the Applicant suffered from the following medical conditions:

    (a)       Shoulder condition;

    (b)       Cervical nerve (spinal) condition;

    (c)       Osteoarthritis and knee condition.

34. Therefore, as Mr Bell has impairments he satisfies paragraph (a) of subsection 94(1) of the SS Act.

35. The second concession concerns the requirement to participate in a Program of Support (POS). Paragraph 104 of the Statement of Facts, Issues and Contentions provides as follows:

    The Secretary accepts that the Applicant has actively participated in a POS within the meaning of subsection 94(3C) of the Act for at least 18 months during the 36 months ending immediately before 28 September 2015.

    THE ISSUES BEFORE THE TRIBUNAL

36. Given the Respondent's first concession, Mr Bell complies with subsection 94(1) paragraph (a) of the SS Act as he has impairments. Therefore, the first issue which I am required to decide is whether any of the impairments of Mr Bell have been fully diagnosed, treated and stabilised during the claim period. If I find that any impairments have been fully diagnosed, treated and stabilised, I am required to assess them under the Impairment Tables.

37. The second issue which I am required to decide is whether Mr Bell has a continuing inability to work pursuant to subsection 94(1) subparagraph (c)(i) and subsection 94(2) and attendant provisions of the SS Act.

38. Given the second concession of the Respondent, Mr Bell has fulfilled the POS requirements pursuant to subsection 94(3C) of the SS Act.

    THE IMPAIRMENT TABLES

39. Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of Mr Bell are worth 20 points under the Impairment Tables. This requires a few words of explanation.

40. In Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the Impairment Tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:

    [5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to 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 Determination.

    [6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

41. Importantly, impairments can only be assigned ratings under the Impairment Tables when the medical condition is permanent within the meaning of the term in the Impairment Tables and the impairment resulting from the condition is likely to persist for more than two years. The Impairment Tables provide at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and is likely to persist for more than two years.

42. Subsection 6(5) of the Impairment Tables provide that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years. Subsection 6(6) provides, in part, that a condition is fully stabilised where a 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 two years.

43. It is also important to appreciate that under subsection 10(5), if two or more conditions cause a common or combined impairment, then “a single rating should be assigned in relation to that common or combined impairment under a single Table”. However, subsection 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, “it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once”.

    THE HEARING

1. Mr Bell attended the hearing and he represented himself.

2. Mr Bell gave sworn evidence.

3. Mr Bell explained that when employed in 1998, he suffered a workplace injury when a shelf collapsed on his head and shoulders. He received workers’ compensation.

4. Mr Bell said that he was terminated in 2000 and that he did not work again until 2010. Since then, he said that he estimates he has only worked for about 22 months.

5. Mr Bell was asked if he is capable of completing 15 hours of work a week. He said he could over a period of 60 hours. He said no employer is going to let him work for 10 to 15 minutes then have a break.

6. Mr Bell explained his limitations as follows. He cannot straighten his left arm. He can drive his car a short distance to the shops for his weekly shop. He can dress himself and hang out light washing.

7. Mr Bell said that he drove his car to the railway station and travelled by train to the hearing. Mr Bell had no difficulty in carrying a bag in his right hand. He did sit at the hearing for at least one hour, though he said he had some pain.

8. Mr Bell said that in 2012 he was working casually in telephone sales.

9. Mr Bell said that from December 2014 to August 2015, he worked for Here International doing computer work relating to mapping. He said that he drove in three or four times a week to pick up the maps and did the bulk of his IT work at his home.

   CONSIDERATION

10. There are two issues which I am required to decide.

11. The first issue is whether any of Mr Bell’s impairments have been fully diagnosed, treated and stabilised during the claim period. If so, I am required to assess them in accordance with the Impairment Tables.

12. The second issue is whether Mr Bell has a continuing inability to work.

    Mr Bell’s Impairments

13. It is easiest to examine Mr Bell’s left shoulder condition and cervical spine condition together. Much of the cervical spinal condition concerns Mr Bell’s lack of neck movements.

14. From the medical evidence before me, I find that Mr Bell’s left shoulder condition and cervical spine condition were fully diagnosed during the claim period.

15. The more difficult issue is whether either or both of these impairments were fully treated and stabilised during the claim period.

16. There are several medical certificates from Mr Bell’s general practitioner, Dr Melissa Collogan.

17. In the certificate dated 28 October 2015, Dr Collogan wrote that the shoulder condition was a temporary exacerbation of an existing condition.

18. In his evidence, Mr Bell said that from time to time his shoulder condition was exacerbated by, for example, sleeping the wrong way on it.

19. Dr Collogan recommended a treatment plan of analgesia for pain relief, together with ultrasound and x-rays.

20. In a medical certificate dated 6 November 2015, Dr Collogan stated that the cervical spine condition was also an exacerbation of an existing condition. Dr Collogan recommended analgesia, physiotherapy and steroid injections.

21. In his evidence, Mr Bell said that he had five visits to the physiotherapist in late 2015, and that in 2016 he has had five further visits to the physiotherapist. He said that he had one cortisone injection before Christmas 2015, and a second cortisone injection in February 2016.

22. There are two medical reports from Dr John Christie, neurosurgeon dated 30 May 2016 and 14 June 2016. The 30 May 2016 report is five months after the end of the claim period. In that report, Dr Christie sent Mr Bell for a CT scan.  In the second report dated 14 June 2016, Dr Christie states that the CT scan shows degenerative change throughout his cervical spine, however, he did not recommend surgery.

23. Having regard to this evidence, I find that as Mr Bell was having investigations and treatment of his shoulder condition and his cervical spine condition during and after the claim period, neither of these conditions was fully treated nor stabilised during the claim period.

24. From the medical evidence, I find that Mr Bell’s osteoarthritis which is largely confined to his knees, was fully diagnosed during the claim period.

25. In his evidence, Mr Bell conceded that he is waiting for knee replacement operations, and thus his osteoarthritis has not been fully treated and stabilised.

26. In her medical report dated 27 November 2015, Dr Collogan notes that Mr Bell has a history of bilateral carpel tunnel syndrome in his hands.

27. In his evidence, Mr Bell said that he had surgery on both hands, but after six months they began to tingle again. They restrict his movements. For example, he has difficulties in washing dishes.

28. There is very little medical evidence before the Tribunal about this impairment.

29. I find that Mr Bell’s bilateral carpel tunnel impairments were not fully diagnosed, treated and stabilised during the claim period.

30. From the medical evidence, Mr Bell has suffered from depression. In his report dated 5 February 2004, Associate Professor Kleinman notes that Mr Bell has seen Dr Bhandari who is a psychiatrist.

31. In his evidence, Mr Bell said that he could not obtain any psychiatric reports because any such reports were confidential to QBE Insurance.

32. However, under Table 5 of the Impairment Tables which is titled “Mental Health Function”, mental functions must be diagnosed by an appropriately qualified medical practitioner (which includes a psychiatrist) with evidence from a clinical psychologist if the diagnosis has not been made by a psychiatrist.

33. As there is no report from a psychiatrist or from a clinical psychologist, I find that Mr Bell’s depression was not fully diagnosed, treated and stabilised during the claim period.

34. For the reasons set out above, as none of Mr Bell’s impairments were fully treated and stabilised during the claim period, they cannot be assessed under the Impairment Tables. Therefore, Mr Bell does not comply with paragraph (b) of subsection 94(1) of the SS Act.

    Continuing Inability to Work

35. As I have found that Mr Bell does not comply with paragraph (b) of subsection 94(1) of the SS Act, it is not strictly necessary for me to make findings concerning whether Mr Bell has a continuing inability to work pursuant to subparagraph (c)(i) of subsection 94(1), subsection 94(2) and attendant provisions of the SS Act. For completeness, I make the following finding.

36. As I noted above, in the JCA report of 7 January 2016, the assessor held Mr Bell’s baseline work capacity was 8 to 14 hours per week and 15 to 22 hours per week within two years with intervention.

37. As I understood Mr Bell’s evidence, which I have recorded above, he said he could not work for 15 hours a week.

38. In relation to his IT work with Here International from December 2014 to August 2015, Mr Bell said that he drove in three or four times a week to pick up maps and then he did his IT work at home.  He did not say how many hours a week he spent doing this IT work.

39. I have no independent evidence of the capacity to undertake work, other than the JCA report.

40. Having regard to the evidence before me, I find that I am not satisfied that Mr Bell has a continuing inability to work for 15 hours a week during the next two years. Therefore, Mr Bell does not comply with subparagraph (c)(i) of subsection 94(1) of the SS Act.

    CONCLUSION

41. For the reasons set out above I make the following findings.

42. First, I find that none of Mr Bell’s impairments were fully treated and stabilised during the claim period, and accordingly they cannot be assessed under the Impairment Tables. Therefore, Mr Bell does not comply with paragraph (b) of subsection 94(1) of the SS Act.

43. Second, I find that I am not satisfied that Mr Bell has a continuing inability to work for 15 hours a week during the next two years. Therefore, Mr Bell does not comply with subparagraph (c)(i) of subsection 94(1) of the SS Act.

    DECISION

44. The decision under review is affirmed.

I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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

Associate

Dated: 23 December 2016

Date(s) of hearing:	15 December 2016
Applicant:	In person
Solicitors for the Respondent:	S Thompson, Department of Human Services