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

Blackford and Secretary, Department of Social Services (Social services second review) [2018] AATA 755 (6 April 2018)
Division:GENERAL DIVISION
File Number: 2017/4224
Re:Glen Blackford
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member P E Nolan
Date:6 April 2018
Place:Brisbane

The Tribunal affirms the decision under review.
..........................[SGD]..............................................
Senior Member P E Nolan
CATCHWORDS
SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant had conditions that were fully diagnosed, treated and stabilised during relevant period – whether Applicant had 20 impairment points – mental health condition – spinal condition – right wrist condition
LEGISLATION
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
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
REASONS FOR DECISION
Senior Member P E Nolan
6 April 2018
INTRODUCTION

On 15 September 2016, Glen Blackford (the “Applicant”) applied for a Disability Support Pension (“DSP”). In the portion of the DSP claim form where the Applicant was to list his disabilities, illnesses or injuries, he wrote:
(a)Spinal disc disease;
(b)Depression;
(c)Anxiety;
(d)Fracture in scaphoid; and
(e)Bone with avascular necrosis.[1]
The application was rejected.[2] The Applicant now seeks a review of that decision.
[1] Exhibit 1, T-documents, T17, page 98, Claim for DSP, dated 15 September 2016.
[2] Exhibit 1, T-documents, T20, pages 111-112, Rejection of claim for DSP, dated 25 October 2016.
The central issue for the Tribunal to determine is whether the Applicant qualified for DSP at the date of his claim, 15 September 2016 or within 13 weeks thereafter, being up until 15 December 2016 (“the Relevant Period”).
HISTORY OF THE MATTER
The Applicant lodged an application for DSP on 15 September 2016.[3] On
[3] Exhibit 1, T-documents, T17, pages 70-102, Claim for DSP, dated 15 September 2016.
[4] Exhibit 1, T-documents, T20, pages 111-112, Rejection of claim for DSP, dated 25 October 2016.
25 October 2016, the Applicant’s claim was rejected.[4]
The Applicant sought review by a Centrelink authorised review officer (“ARO”); the decision to reject the claim was affirmed.[5] The Applicant sought further review by the Social Security and Child Support Division of the Tribunal (“SSCSD”), on 14 June 2017 the decision to reject the application was again affirmed.[6]
[5] Exhibit 1, T-documents, T24, pages 121-126, Authorised Review Officer decision and notes, dated
14 February 2017.
[6] Exhibit 1, T-documents, T2, pages 4-10, Decision of the Social Services & Child Support Division,
dated 14 June 2017.
On 14 July 2017, the Applicant sought review of the decision by the General Division of this Tribunal.[7]
[7] Exhibit 1, T-documents, T1, pages 1-3, Application for Review, dated 14 July 2017.
ISSUES FOR THE TRIBUNAL
The issues for me to consider are:
(a)whether, during the Relevant Period, the Applicant had a physical, intellectual or psychiatric impairment which was fully diagnosed, treated and stabilised;
(b)whether, at the Relevant Period, the Applicant’s conditions warranted an Impairment Rating of 20 points or more under the Impairment Tables, and if so;
(c)whether the Applicant had a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and
(d)whether the Applicant has a continuing inability to work.
Before determining the above, it is convenient to set out the relevant legislative framework.
LEGISLATIVE FRAMEWORK
Section 94 of the Social Security Act 1991 (Cth) (“the 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.
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, 29 January 2016). 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.[8] Therefore, the Relevant Period for considering whether the Applicant qualified for DSP is between 29 January 2016 and 29 March 2016. The Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period.[9]
[8] See ss 3, 4(1), 41 and 42, Schedule 2, Part 2 of the Administration Act; see Fanning and Secretary,
Department of Social Services [2014] AATA 447 at [33].
[9] See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous
Affairs [2012] AATA 922 at [34].
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).[10] The Tables are function based 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 chose 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.
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 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 to persist for more than two years.[14]
[13] See s 6(3) of the Determination.
[14] See s 6(4) of the Determination.
In determining whether a condition has been fully diagnosed and fully treated, the following facts are to be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.[15]
[15] See s 6(5) of the Determination.
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:
(c)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
(d)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.
“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] An Impairment Rating can only be assigned in accordance with the rating points in each Table.
[17] See s 6(7) of the Determination.
In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.
CONSIDERATION
Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?
The Respondent accepts that the Applicant has impairments for the purposes of subsection 94(1)(a) of the Act.[18] However, the Respondent contends that the Applicant’s impairments did not attract a rating of 20 points or more under the Impairment Tables and therefore did not satisfy subsection 94(1)(b) of the Act during the Relevant Period.[19] Based on the medical evidence before me, I am satisfied that the Respondent’s concession is appropriate.
[18] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 30 November 2017 at
[30].
[19] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 30 November 2017 at
[31]-[32].
I will now consider whether the Applicant’s impairments can attract impairment points under the Tables.
Spinal condition
The Respondent accepts that the Applicant’s spinal condition was fully diagnosed, but contends that it was not fully treated and not fully stabilised during the Relevant Period.[20] Accordingly, the Respondent contends that the spinal condition cannot be assigned an Impairment Rating under Table 4 of the Impairment Tables. Based on the following medical evidence, I am satisfied that the Applicant’s spinal condition was not fully treated and fully stabilised during the Relevant Period:
(e)Dr Harvey’s medical report, dated 24 November 2014;[21]
(f)Dr Noordink’s medical report, dated 11 July 2014;[22]
(g)Dr Harvey’s management plan, dated 24 July 2014;[23]
(h)Matthew Parrish’s (“exercise physiologist”) medical report, dated 12 December 2014;[24] and
(i)Dr Havey’s medical certificate, dated 26 April 2016.[25]
[20]          Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 30 November 2017 at
[33].
[21]          Exhibit 1, T-documents, T9, pages 52-62, Medical report by Dr Matthew Harvey, dated 24 November
2014.
[22]          Exhibit 1, T-documents, T6, pages 45-46, Medical report by Dr Noordink, dated 11 July 2014.
[23]          Exhibit 1, T-documents, T7, pages 47-50, GP management plan by Dr Harvey, dated 24 July 2014.
[24]          Exhibit 1, T-documents, T10, page 63, Medical report by Matthew Parrish, dated 12 December 2014.
[25]          Exhibit 1, T-documents, T11, page 64, Medical certificate by Dr Harvey, dated 26 April 2016.
In a medical report completed by Dr Harvey dated 24 November 2014, the Applicant’s spinal condition symptoms were described as ‘variable and unremitting’, he further stated that the Applicant was unable to stand, sit, walk or drive for extended periods of time.[26] Dr Harvey stated that the Applicant had sought a specialist opinion from an orthopaedic surgeon in ‘2005-2013’ and there were no surgical options available; he described the future treatment options as limited.[27] Dr Noordink listed in a medical report dated 11 July 2014 that the Applicant has chronic back pain due to spinal protrusion and degeneration.[28] The Applicant spoke with Dr Noordink about his inability to find a job that ‘would require a less painful back experience’.[29] In July 2014, the Applicant had a GP Management Plan created by Dr Harvey.[30] Dr Harvey noted that the Applicant had received a referral to an exercise physiologist, but that he was not interested in returning to the pain clinic or to an orthopaedic surgeon as they ‘were a waste of time’.[31]
[26]          Exhibit 1, T-documents, T9, page 56, Medical report by Dr Matthew Harvey, dated 24 November
2014.
[27]          Exhibit 1, T-documents, T9, page 57, Medical report by Dr Matthew Harvey, dated 24 November
2014.
[28]          Exhibit 1, T-documents, T6, page 45, Medical report by Dr Noordink, dated 11 July 2014.
[29]          Exhibit 1, T-documents, T6, page 46, Medical report by Dr Noordink, dated 11 July 2014.
[30]          Exhibit 1, T-documents, T7, pages 47-50, GP management plan by Dr Harvey, dated 24 July 2014.
[31]          Exhibit 1, T-documents, T7, page 48, GP management plan by Dr Harvey, dated 24 July 2014.
Following the referral, the Applicant received an Exercise Care Plan from an exercise physiologist.[32] The exercise physiologist noted that the Applicant sporadically adhered to the prescribed care plan, but when he adhered to the plan the Applicant experienced ‘improved mobility and pain reduction’.[33] Dr Harvey issued a medical certificate for the Applicant for his spinal condition, noting that there was planned physiotherapy treatment.[34]
[32]          Exhibit 1, T-documents, T10, page 63, Medical report by Matthew Parrish, dated 12 December 2014.
[33]          Exhibit 1, T-documents, T10, page 63, Medical report by Matthew Parrish, dated 12 December 2014.
[34]          Exhibit 1, T-documents, T11, page 64, Medical certificate by Dr Harvey, dated 26 April 2016.
At the hearing, the Applicant reported that Dr Noordink recommenced further pain management sessions and he did not attend those. He also stated that he had been recommended to attend a pain management program at St Vincent’s Hospital as an outpatient in 2013 but he did not attend as he only wanted to do this as an inpatient and it was extremely difficult for him to get to. When the Applicant was assessed by the Job Capacity Assessor (“JCA”) he reported that when he saw the pain specialist at St Vincent’s Hospital in August 2013 he was offered to attend a pain management program as an outpatient.
The Applicant provided a Basic Rights Questionnaire that was completed by Dr Hales’ on 11 April 2017, however, as this questionnaire was completed outside the Relevant Period and in parts contradicts previous reports of Dr Hales, I have not attributed any weight to it.[35] Based on the above medical evidence, I find that the Applicant’s spinal condition could not be said to have been fully treated and fully stabilised during the Relevant Period as the Applicant has not undergone all reasonable treatment. As such I am unable to assign an Impairment Rating to the condition under the Tables.
[35] Exhibit 1, T-documents, T27, pages 131-136, Basic Rights Queensland Questionnaire by Dr Hales’,
dated 11 April 2017.
Right Wrist Condition
The Respondent accepts that the Applicant’s right wrist condition was fully diagnosed, but contents that it was not fully treated or fully stabilised during the Relevant Period.[36] Accordingly, the Respondent contends that the right wrist condition cannot be assigned an Impairment Rating under Table 2 of the Impairment Tables. Based on the following medical evidence, I am satisfied that the Applicant’s right wrist condition was not fully treated and fully stabilised during the Relevant Period:
(a)Dr Harvey’s medical report, dated 24 November 2014;[37] and
(b)Dr Hales’ medical report, dated 15 September 2016.[38]
[36]          Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 30 November 2017 at
[51].
[37]          Exhibit 1, T-documents, T9, pages 52-62, Medical report by Dr Havey, dated 24 November 2014.
[38]          Exhibit 1, T-documents, T18, page 103, Medical report by Dr Hales, dated 15 September 2016.
In Dr Harvey’s report he states that the Applicant’s right wrist condition is well managed and causes minimal or limited impact on his ability to function.[39] Dr Hales stated in September 2016 that there was no further treatment for the Applicant’s right wrist condition and that it would last in excess of 2 years.[40] When the Applicant was assessed by the JCA he reported that this condition had not been investigated or treated yet.[41] The Respondent contends that in the absence of any evidence as to what recent treatment or radiological imaging has been undertaken, the condition cannot be considered fully treated or fully stabilised during the Relevant Period.[42] As such I am unable to assign an Impairment Rating to the condition under the Tables.
[39]          Exhibit 1, T-documents, T9, page 61, Medical report by Dr Havey, dated 24 November 2014.
[40]          Exhibit 1, T-documents, T18, page 103, Medical report by Dr Hales, dated 15 September 2016.
[41]          Exhibit 1, T-documents, T19, page 106, Job capacity assessment report, dated 11 October 2016
[42]          Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 30 November 2017 at
[52].
The Mental Health Condition
The Respondent contends that the Applicant’s mental health condition was not fully diagnosed, fully treated or fully stabilised.[43] The Applicant has relied on a medical report from Dr Noordink, however, the Respondent contends that Dr Noordink is not a clinical psychologist or a psychiatrist.[44] I share the view that Dr Noordink is not a clinical psychologist or a psychiatrist and therefore is unable to diagnose a mental health condition for the purposes of assigning an Impairment Rating under Table 5 of the Tables.[45] I find that the Applicant’s mental health condition could not be said to have been fully diagnosed, fully treated and stabilised during the Relevant Period.
[43] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 30 November 2017 at
[57].
[44] Exhibit 1, T-documents, T6, pages 45-46, Medical report by Dr Noordink, dated 11 July 2014.
[45] See the introduction to Table 5 of the Determination.
Conclusion on points
I have found that the Applicant’s spinal condition and right wrist condition cannot be assigned an Impairment Rating under the relevant Tables, as they were not fully stabilised and fully treated during the Relevant Period.
I have found that the Applicant’s mental health condition cannot be assigned an Impairment Rating under the relevant Table, as the condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period.
Continuing Inability to Work?
Given that the Applicant’s conditions do not attract an impairment rating of 20 points or more during the Relevant Period, it is not necessary for me to consider whether he satisfies the remaining criteria to qualify for the DSP.
CONCLUSION
For the reasons outlined above, I affirm the decision under review.

I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member P E Nolan

..............................[SGD]..........................................
Associate
Dated: 6 April 2018

Date of hearing: 21 December 2017

Applicant: In person

Advocate for the Respondent: Jacky Vetter

Solicitors for the Respondent: Department of Human Services

[2018] AATA 755

6 April 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	21 December 2017
Applicant:	In person
Advocate for the Respondent:	Jacky Vetter
Solicitors for the Respondent:	Department of Human Services