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

[2016] AATA 9

Bell and Secretary, Department of Social Services (Social services second review) [2016] AATA 9 (15 January 2016)

Division	GENERAL DIVISION
File Number	2015/3095
Re	Shane Bell
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	15 January 2016
Place	Brisbane

The decision under review is affirmed.

..............................[Sgd]..........................................

Senior Member A C Cotter

CATCHWORDS

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

LEGISLATION

Social Security Act 1991 (Cth), ss 26, 27, 94

Social Security (Administration) Act 1999 (Cth), ss 63, 80

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

REASONS FOR DECISION

Senior Member A C Cotter

15 January 2016

INTRODUCTION

1. In September 2014, Mr Shane Bell lodged a claim for Disability Support Pension (“DSP”), listing his medical conditions as “back, lungs, kidneys, blood condition, mental health”.[1]

   [1] Exhibit 1, T Documents, T 17, page 115, Mr Bell’s claim for DSP dated 3 September 2014.

2. In support of that claim, his general practitioner, Dr Masud Haque, completed a medical report, describing Mr Bell’s haemochromatosis and lower back pain as the conditions having a significant impact on his ability to function. Depression was noted as a condition which was generally well managed and that caused minimal or limited impact on Mr Bell’s functional ability.[2] A number of other medical reports were also provided.

   [2] Exhibit 1, T Documents, T 15, pages 103-113, Medical report of Dr Masud Haque dated 1 September 2014.

3. Following Mr Bell’s assessment by a Job Capacity Assessor (“JCA”) later in September,[3] his claim was rejected on the basis that his impairments did not attract 20 points or more under the Impairment Tables.[4]

   [3] Exhibit 1, T Documents, T 20, pages 119-123, Job Capacity Assessment report dated 23 September 2014.

   [4] Exhibit 1, T Documents, T 6, pages 63-64, Centrelink letter dated 24 September 2014.

4. Mr Bell first sought a review of that decision by an Authorised Review Officer (“ARO”). In support of that review, he provided a medical report, dated 17 November 2014, from a new general practitioner, Dr Robert Green, which identified different medical conditions to those nominated by Dr Haque.: severe chronic obstructive airways disease/emphysema and psychological (current major depressive disorder with previous multi-substance abuse). Dr Green also listed lumbosacral spondylosis as having a significant functional impact. He thought that Mr Bell’s haemochromatosis caused minimal impact, as it was controlled by venesection.[5] Mr Bell also provided a number of other medical reports. However, the review by the ARO was unsuccessful.[6]

   [5] Exhibit 1, T Documents, T 22, pages 125-135, Medical report of Dr Robert Green dated 17 November 2014

   [6] Exhibit 1, T Documents, T 8, pages 66-71. Authorised Review Officer’s letter and decision dated 8 December. 2014.

5. A review by the then Social Security Appeals Tribunal (“SSAT”) was subsequently sought. Again, additional medical reports were provided in support of that review. Dr Green provided another report, dated 13 May 2015, nominating severe emphysema, COAD (chronic obstructive airways disease) and asthma as the condition having the greatest impact on Mr Bell. Lumbosacral spondylosis/chronic back pain was also listed by him as having a significant impact. Mr Bell’s haemochromatosis was said to be generally well managed and having minimal or limited impact on his ability to function.[7] Notwithstanding the further material provided, the SSAT affirmed the ARO’s decision.[8]

   [7] Exhibit 1, T Documents, T 29, pages 149-159, Medical report of Dr Robert Green dated 13 May 2015.

   [8] Exhibit 1, T Documents, T 2, pages 3-9, SSAT’s Decision and Reasons for Decision dated 21 May 2015.

6. Dissatisfied with the outcome of those earlier reviews, Mr Bell has sought a review of the SSAT’s decision by this Tribunal. Before I outline the issues for my consideration, it is timely to summarise the key legislative provisions relevant to this claim.

   THE LEGISLATIVE FRAMEWORK

7. Section 94 of the Social Security Act 1991 (Cth) (“Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the applicant has a physical, intellectual or psychiatric impairment; that the applicant’s impairment is of 20 points or more under the Impairment Tables; and that the applicant has a continuing inability to work

8. The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 3 September 2014). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[9] Therefore, the relevant period for considering whether Mr Bell qualified for DSP is between 3 September 2014 and 3 December 2014.

   [9] See ss 41 and 42, and cll 3 and s 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).

9. The Impairment Tables are contained in the Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (“Determination”), a legislative instrument made under the Act.[10] The Tables are function, rather than diagnostic, based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[11] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[12]

   [10] See s 26(1) of the Act.

   [11] See s 5(2) of the Determination.

   [12] See s 6(1) of the Determination.

10. Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[13] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[14]

    [13] See s 6(3) of the Determination.

    [14] See s 6(4) of the Determination.

11. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following factors are to be considered: 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.[15]

    [15] See s 6(5) of the Determination.

12. 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 reason for the person not to undertake reasonable treatment.[16]

    [16] See s 6(6) of the Determination.

13. “Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[17]

    [17] See s 6(7) of the Determination.

14. An impairment rating can only be assigned in accordance with the rating points in each Table. A rating cannot be assigned between two consecutive impairment ratings. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. A rating cannot be assigned in excess of the maximum rating specified in each Table.[18]

    [18] See s 11(1) of the Determination.

15. As regards the requirement that the applicant have a continuing inability to work, all the criteria in s 94(2) of the Act need to be satisfied. Essentially, they are that the applicant must:

    (a)have actively participated in a program of support (if he or she does not have a “severe impairment” as defined in s 94(3B)); and

    (b)be unable to work for at least 15 hours per week independently of a program of support; and

    (c)be unable to participate in a training activity, or if the impairment does not prevent the applicant from undertaking a training activity, such activity is unlikely (because of the impairment) to enable him or her to do any work independently of a program of support within the next two years.

    ISSUES FOR THE TRIBUNAL

16. Based on the significant amount of medical evidence that has been provided during the life of the claim, there is no doubt that Mr Bell suffers from a number of medical conditions and has physical, intellectual or psychiatric impairments.[19] Consequently, the first of the requirements under s 94(1) of the Act is satisfied.

    [19] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 27 October 2015, paragraph [19].

17. The remaining issues for me to consider are therefore:

    (a)Whether, at the relevant time, Mr Bell’s impairments attracted 20 impairment points or more under the relevant Impairment Tables; and

    (b)If so, whether Mr Bell had a continuing inability to work.

    CONSIDERATION

    Did Mr Bell’s impairments attract 20 points or more under the Impairment Tables?

18. I deal with this issue by reference to Mr Bell’s various medical conditions.

    Lower back pain

19. There is no doubt that Mr Bell has a long standing back condition, dating back to an injury he sustained in 2007.[20] The Secretary conceded that this condition was fully diagnosed, treated and stabilised and could attract impairment points.[21] Having regard to the large volume of medical evidence relating to this condition, I believe that concession was appropriate.

    [20] Exhibit 1, T Documents, T15, page 109.

    [21] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 27 October 2015, paragraph [38].

20. The question therefore is what impairment rating should be assigned under the relevant table, Table 4 (Spinal Function).

21. In his supporting report of 1 September 2014, Dr Haque described Mr Bell’s symptoms from this condition as “back pain with radiculopathy”. He said that it affected Mr Bell’s lifting, bending and carrying capacity.[22] Dr Green noted in his later report of 13 May 2015 that Mr Bell’s chronic low back pain was aggravated by prolonged sitting and standing and light activity.[23]

    [22] Exhibit 1, T Documents, T 15, pages 110 and 111.

    [23] Exhibit 1, T Documents, T 29, page 156, Medical report of Dr Robert Green dated 13 May 2015.

22. At the SSAT hearing, Mr Bell gave the following evidence:

    (a)he is able to ride his Harley Davidson motorbike (and does so every day);

    (b)he can drive a drive a car around 100 kilometres but said he would be moving around a little bit while doing so;

    (c)he has tightness in his spine all the time;

    (d)he is able to look over his shoulder to drive “because he has to do it” and also uses mirrors for reversing;

    (e)he does stretches every day and can bend to touch his knees if he does so slowly;

    (f)he lives alone and although he finds it difficult, he does the housework – he can do the dishes and washes his own clothes;

    (g)he goes to the shops because he has to; and

    (h)he can walk okay and walks his dogs for about 20 minutes.[24]

    [24] Exhibit 1, T Documents, T 2, page 8, SSAT’s Decision and Reasons for Decision dated 21 May 2015, paragraph [26].

23. At the hearing before me, Mr Bell sought to clarify or qualify some of the evidence he gave to the SSAT. He said that he had not ridden his Harley Davidson for months, nor had he driven a car for some time. However, he was asked by that tribunal if he could ride his bike or drive a car a distance of 100 kilometres, to which he replied that he could. He said that he did not cook for himself or do the housework; he would rarely wash the sheets or mop the floors. Mr Bell said that he was able to walk and in particular, that he could walk to the butcher and supermarket (although it might take him longer). He confirmed that he would have ticked the “no” boxes to the questions in the DSP application form as to whether his disabilities made it difficult for him to use public transport or to care for himself.

24. Since impairment is assessed on the basis of what a person can or could do, and not on what they choose to do, I do not think Mr Bell’s explanation takes the matter very far. While I believe that Mr Bell satisfies the requirements for mild functional impairment (five points), I have doubts as to whether there is sufficient evidence to enable him to meet the descriptors for moderate (10 points) impairment.  There is no evidence that he was unable to sit in a car for at least 30 minutes. Nor is there any suggestion that he was unable to sustain overhead activities, that he had difficulty in moving his head, or that he was unable to get out of his chair unassisted.  While he had difficulty bending, there is no evidence that he was unable to bend forward to pick up a light object placed at knee height. I therefore consider that this impairment attracts a rating of five impairment points.

    COAD and emphysema

25. While Dr Haque’s initial report in support of the claim made no mention of this condition, his later medical certificate of 19 September 2014 confirmed that Mr Bell was suffering from COAD; it noted extensive bulbous change in both lungs.[25]

    [25] Exhibit 1 T Documents, T 19, page 118, Medical certificate by Dr Masud Haque dated 19 September 2014.

26. Dr Green’s report of November 2014 noted that while Mr Bell had experienced a gradual onset of this condition over many years, the diagnosis was awaiting confirmation following a specialist review at the respiratory clinic of Mackay Base Hospital. In the meantime, he observed that Mr Bell suffered shortness of breath on minimal exertion, such as prolonged or fast walking, negotiating stairs and showering. He had poor exercise tolerance.[26] He also noted that Mr Bell’s FEV (Forced Expiratory Volume) on the day of his report was only 1.08L compared with an expected flow of 3.13L.

    [26] Exhibit 1 T Documents, T 22, pages 125-135, Medical report of Dr Robert Green dated 17 November 2014.

27. Subsequent medical reports from the Mackay Base Hospital confirmed that Mr Bell suffered from severe emphysema.[27]

    [27] Exhibit 1, T Documents, T 28, page 148, Medical Imaging Report (Mackay Base Hospital) dated 6 March 2015.

28. While acknowledging that, on a strict reading, Mr Bell’s condition was arguably not fully diagnosed at the relevant time, the Secretary conceded for the purposes of the hearing that it was fully diagnosed, treated and stabilised, such that impairment points could be assigned points under the tables.[28] Having regard to the medical evidence produced, I consider that was a reasonable and appropriate concession.

    [28] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 27 October 2015, paragraph [28].

29. The relevant table is Table 1 (Functions requiring Physical Exertion and Stamina). Besides Mr Bell’s own self-report to the SSAT (as summarised in paragraph 22 above), there is the evidence of Dr Green as to Mr Bell’s poor exercise tolerance.  Considering that evidence together, I am satisfied that Mr Bell meets the descriptors for moderate functional impact (10 points). However, I do not consider there is sufficient evidence to support a finding that Mr Bell meets the descriptors for severe functional impact (20 points). He is able to walk around a shopping centre without the assistance of another person; he can use public transport without assistance; and is able to perform light day to day household activities (such as washing and putting away laundry).

30. For those reasons, I think that 10 points should be assigned to Mr Bell’s impairment.

    Haemochromatosis

31. While Dr Haque reported that Mr Bell experienced fatigue as a result of his haemochromatosis,[29] Dr Green considered that the condition had minimal impact on Mr Bell’s ability to function and that it was controlled by venesection.[30] Mr Bell apparently agreed with that assessment, telling the SSAT that he had a venesection every three months and considered his condition to be under control, and that he was not as tired as he was at the time of the claim.[31]

    [29] Exhibit 1, T Documents, T 15, page 107, Medical report of Dr Masud Haque dated 1 September 2014.

    [30] Exhibit 1, T Documents, T 22, page 134, Medical report of Dr Robert Green dated 17 November 2014.

    [31] Exhibit 1, T Documents, T 2, page 7, SSAT’s Decision and Reasons for Decision dated 21 May 2015, paragraph [20].

32. Having regard to the fact that Mr Bell has already been assigned points under Table 1 and on the basis of his self-report and Dr Green’s most recent assessment, I consider that zero points should be assigned in respect of this impairment.

    Depression

33. In his report of 1 September 2014, Dr Haque identified Mr Bell as suffering from major depression. Although that was noted in the section of his report concerning the functional impact of the haemochromatosis, the notation also said that Mr Bell was very depressed due to the death of his son. However, elsewhere in the same report, the doctor listed depression as a condition that was generally well managed and which caused minimal or limited impact on the ability to function.[32]

    [32] Exhibit 1, T Documents, T 15, pages 108 and 112, Medical report of Dr Masud Haque dated 1 September 2014.

34. Dr Green’s report of 17 November 2014 identified a major depressive disorder with previous multi-substance abuse. He said that Mr Bell had previous psychological counselling and had recently commenced anti-depressant medication. Future treatment was said to include increasing the dosage of anti-depressant therapy.  Dr Green noted that the diagnosis of the condition had been confirmed by a psychiatrist or psychologist, but did not identify them, simply noting “Mackay Community Health”.[33]

    [33] Exhibit 1, T Documents, T 22, pages 131-132, Medical report of Dr Robert Green dated 17 November 2014.

35. The Introduction to Table 5 (Mental Health Function) states that, for the purpose of the table, the diagnosis of a mental health condition must be made 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).

36. Despite Dr Green’s remark in his report of 17 November 2014, there is no evidence that a depressive disorder had been diagnosed by a psychiatrist or clinical psychologist.[34] A report was provided by a Dr Pawan Chimote of the Mackay Mental Health Unit. However, it does not contain a diagnosis, but rather reports historically on Mr Bell’s attendance at that unit, saying that he “consistently presented with a moderate/major anxiety and depressive illness with co-morbid features of PTSD”.[35] In any event, inquiries made on behalf of the Secretary confirmed that Dr Chimote is neither a psychiatrist nor registered clinical psychologist.[36]

    [34] Exhibit 1, T Documents, T22, page 131.

    [35] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 27 October 2015, Attachment C.

    [36] Ibid, Attachment D.

1. At the hearing, I explored with the Secretary’s lawyer, Ms Forsyth, the possibility of Mr Bell consulting another, appropriately qualified member of the Mental Health Unit who could  review the previous material and possibly express an opinion referring back to the relevant period. However, she responded that questions still remained as to whether the condition was fully treated. In the most recent records provided by the unit, she pointed to the note “?PTSD”, with the plan to increase Mr Bell’s dose of Effexor and follow up in seven days.[37]Following further discussion on possible options, Mr Bell’s sister, Ms Agazzani (who appeared as his representative) acknowledged that it was not possible to take the consideration under Table 5 any further.

   [37] Exhibit 3(a), Clinical records from Acute Care Team, Mackay Integrated Mental Health, dated 30 June 2015.

2. In those circumstances, I do not believe it could be said that the depressive condition was fully diagnosed, treated and stabilised. Therefore, no impairment points can be assigned under Table 5.

   Summary

3. To summarise, I consider that Mr Bell’s impairments attract 15 points under the tables, being five points under Table 4 (Spinal Function) in respect of the lower back condition and 10 points under Table 1 (Functions requiring Physical Exertion and Stamina) in respect of the severe chronic airways disease and emphysema.

4. As Mr Bell does not have 20 points or more under the tables, he does not satisfy the second of the requirements for DSP. He therefore did not qualify for DSP at the relevant time.

   Continuing Inability to Work?

5. In light of my conclusion above, that Mr Bell did not qualify for DSP because he did not have 20 points or more at the relevant time, it is unnecessary to consider this question.

   CONCLUSION

6. Mr Bell’s impairments having only attracted 15 impairment points, he did not qualify for DSP at the relevant time.

7. Accordingly, the decision under review is affirmed.

I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

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Associate

Dated  15 January 2016

Date(s) of hearing	25 November 2015
Advocate for the Applicant	Ms Linda Agazzani
Solicitors for the Respondent	Department of Human Services