Bodnar and Secretary, Department of Social Services (Social services second review)
[2017] AATA 774
•22 May 2017
Bodnar and Secretary, Department of Social Services (Social services second review) [2017] AATA 774 (22 May 2017)
Division:General Division
File Number(s): 2016/6052
Re:Benjamin Bodnar
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:22 May 2017
Place:Sydney
I affirm the decision under review.
...............................[sgd].....................................
Senior Member A Poljak
CATCHWORDS
SOCIAL SECURITY – disability support pension – Impairment Tables – whether the applicant has physical, intellectual or psychiatric impairments – whether the applicant's condition is fully diagnosed, treated and stabilised – whether the impairments attract 20 points or more – Impairment Tables – Table 5 Mental Health Function – decision affirmed
LEGISLATION
Social Security (Administration) Act 1999 (Cth) Sch 2, s 42
Social Security Act 1991 (Cth) s 94
SECONDARY MATERIALS
Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member A Poljak
22 May 2017
Mr Bodnar seeks review of a decision made by the Social Security and Child Support Division of this Administrative Appeals Tribunal (“SSCSD”) on 17 October 2016. The SSCSD affirmed a decision made by the Department of Social Services (“the Department”) on 10 March 2016, and affirmed by an Authorised Review officer (“ARO”) on 27 June 2016, refusing Mr Bodnar’s claim for the disability support pension (“DSP”) which was lodged on 18 December 2015.
Mr Bodnar’s claim for DSP was rejected on the basis that he did not satisfy the eligibility criteria set out in s 94 of the Social Security Act 1991 (Cth) (“the Act”). Section 94 of the Act provides that to qualify for payment, a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of Work-related Impairment and Disability Support Pension) Determination 2011 (“the Impairment Tables”); and a continuing inability to work as defined in the Act.
For Mr Bodnar to qualify for DSP, he had to satisfy these criteria on 18 December 2015, when he applied for the DSP, or within the following 13 weeks, that is, by 18 March 2016 pursuant to s 42 and Sch 2 of the Social Security (Administration) Act 1999 (Cth) (“the relevant period”).
The Secretary contends that the medical evidence does not support a finding that Mr Bodnar was qualified for DSP during the relevant period.
The Secretary accepts that Mr Bodnar suffered from a number of conditions during the relevant period. He therefore satisfies s 94(1)(a) of the Act.
The issues to be determined in these proceedings is whether Mr Bodnar’s conditions rate 20 or more points under the Impairment Tables and whether he has a continuing inability to work as defined in the Act.
IMPAIRMENT TABLES
The first issue for determination in these proceedings is whether the conditions were fully diagnosed, treated and stabilised during the relevant period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.
The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in s 3 to mean “a loss of functional capacity affecting a person’s ability to work that result from a person’s condition”.
Sections 6(3) and 6(4) provide that impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has being fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated; fully stabilised; and it will more likely than not, persist for more than two years.
In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, s 6(5) instructs that a decision-maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.
For the purposes of the Impairment Tables, section 6(6) defines fully stabilised to mean:
(a)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.
Reasonable treatment is defined in subsection 6(7) as treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each Table and a rating cannot be assigned between consecutive impairment ratings. Significantly, s 11(1)(c) provides:
(c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (Emphasis added)
Lower Back Condition – Chronic Lower Back Pain
The Secretary accepts that Mr Bodnar’s chronic lower back pain with disc protrusions at L1/2 and disc bulge at L5/S1, was fully diagnosed at the relevant period by Dr van Niekerk but contends that it was not fully treated and stabilised at that time.
In various medical certificates provided by Dr van Niekerk, dated from 9 August 2014 to 8 October 2015, indicate that the prognosis for Mr Bodnar’s lower back condition was “uncertain” and that he may require surgery and spine/steroid injections. The medical certificates dated 23 April 2015, 16 July 2015 and 8 October 2015, indicate that Mr Bodnar may require assessment at a pain clinic.
In the medical certificate dated 2 November 2015, Dr van Niekerk reports that Mr Bodnar “is currently undergoing a course of osteopathy treatment. He will attend the Liverpool Hospital Pain Clinic if osteopathy he is unsuccessful”.
The last report of Dr van Niekerk, that is, within the relevant period, is a medical certificate dated 9 March 2016. In that report, Dr van Niekerk advises that Mr Bodnar completed a 5 month course of osteopathy treatment without any benefit and that he “needs to attend the Liverpool Hospital Pain Clinic for assessment and then commence an intensive multidisciplinary management program”.
I have before me a number of reports provided by Dr van Niekerk which fall outside of the relevant period. It appears from these reports that Mr Bodnar attended the Liverpool Hospital Pain Clinic for assessment on 9 May 2016. In a report dated 12 May 2016, Dr van Niekerk advised that Mr Bodnar “was assessed by Dr Renata Bazina (head of the Department of Pain Medicine) who told him that he would not benefit from neurosurgery and that a steroid spinal injection would be unlikely to help. She has advised him to study structured gym core strengthening program under the guidance of an exercise physiologist”. In a later report dated 9 June 2016, it is noted that Mr Bodnar will commence an intensive multidisciplinary management program on 28 June 2016 and that he started a structured gym core strengthening program under the guidance of an exercise physiologist on 17 May 2016.
In a report dated 8 November 2016, Dr van Niekerk advised that Mr Bodnar has “tried all available treatment options including physiotherapy, hydrotherapy, osteopathy, chiropractic, acupuncture and exercise physiology with associated structured gym program. He has tried all available analgesic and anti-inflammatory agents…He is currently attending the Liverpool Hospital Pain Clinic for a multidisciplinary approach to pain management. This is not expected to “cure” his pain but rather help him cope and function better. I believe his chronic pain is stabilised as it is not improving or deteriorating although the severity fluctuates from day to day”. [Emphasis added]
The medical evidence suggests that during the relevant period, Mr Bodnar was pursuing further treatment options including spinal injections, surgery, assessment, a pain clinic and a multidisciplinary management program. The evidence indicates that both cortisone injections and surgery were considered as potential treatment options during the relevant period. It is only after Mr Bodnar was assessed at the Liverpool Hospital Pain Clinic on 9 May 2016 that these treatment options appear to have been ruled out.
It is also plain on the evidence of Dr van Niekerk, in his report dated 8 November 2016, that he considered Mr Bodnar’s attendance at the Liverpool Hospital Pain Clinic may help him “function better”. While evidence of Mr Bodnar’s attendance at the pain clinic and the subsequent outcomes of attendance may assist with any future applications for DSP, the evidence does not assist in these proceedings. As already stated, Mr Bodnar attended the Liverpool Hospital Pain Clinic for assessment on 9 May 2016, after the relevant period.
Accordingly, I am not satisfied that Mr Bodnar’s lower back condition was fully treated and stabilised during the relevant period. No impairment rating may be assigned to this condition.
Mental Health Condition
Table 5 of the Impairment Tables is to be used when a person has a permanent mental health condition resulting in functional impairment. Self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment.
The Introduction to Table 5 of the Impairment Tables provides (inter alia):
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist). (Emphasis added)
Before functional impact is to be assessed, I must be satisfied that the condition is fully diagnosed, fully treated and fully stabilised. The Secretary accepts that Mr Bodnar’s mental health condition was fully diagnosed during the relevant period but concedes that it was not fully treated and fully stabilised.
I am satisfied that Mr Bodnar’s mental health condition was fully diagnosed during the relevant period and this is supported by the evidence of Dr van Niekerk and Mr Boyce, a clinical psychologist. The issue that remains is whether the condition was fully treated and stabilised at that time.
Mr Boyce advised in his report dated 10 September 2015, that Mr Bodnar attended six sessions to assist with his depressed mood in the “context of ongoing difficulties with his back and other psychosocial challenges”. He states they “are continuing to work on plans that allow him to afford attention to adaptive activity, as opposed to unhelpful rumination and otherwise focusing solely on his pain”.
In a report dated 1 December 2016, Mr Boyce confirms that throughout the period he saw Mr Bodnar, he filled the criteria for Major Depressive Disorder (MDD) and that “usual CBT strategies were engaged to ameliorate his symptoms, to limited effect”. He states:
My impression then, as per Benjamin’s, was that his MDD symptoms were consequence of and perpetuated by his injury/pain, the details of which you are already aware.
Given this, and our limited progress, a decision was made in January this year that Benjamin psychological therapy was best attended to by a specialist multidisciplinary team at the Liverpool Hospital Pain Clinic.[Emphasis added]
Given this evidence, I am not satisfied that Mr Bodnar’s mental health condition was fully treated during the relevant period. His mental health condition is a consequence of and perpetuated by his lower back condition; they coexist. It appears from the evidence that Mr Bodnar’s mental health condition cannot be considered stabilised until his lower back condition is such. As already stated, I do not consider that his lower back condition was fully treated and stabilised during the relevant period. It follows that no impairment rating can be given for his mental health condition.
Neck Pain and Headaches
In the medical certificates of Dr van Niekerk dated 23 April 2015, 16 July 2015 and 8 October 2015, neck pain and headaches are listed as a temporary condition and it is indicated that the condition is likely to show considerable improvement within two years.
There is insufficient evidence before me to determine whether the neck pain and headaches were fully diagnosed, treated and stabilised during the relevant period. As noted from the medical certificates of Dr van Niekerk, the condition was not expected to persist for more than two years, and it follows that an impairment rating is unable to be assigned to this condition.
Chest Wall pain
Mr Bodnar attended Liverpool Hospital on 23 August 2015 for chest wall pain. In the ED discharge referral letter of the same date, it provides that the applicant experienced this pain after increasing his nocte tramadol dose from 100 mg 150 mg.
There is no further evidence which indicates that Mr Bodnar experienced any additional chest wall pain after the date of this report. Accordingly, I am satisfied that this condition is temporary and not expected to persist for more than two years. No impairment rating may be assigned to this condition.
Right Wrist pain
Dr van Niekerk’s medical certificate of 25 January 2017, diagnosed Mr Bodnar with a right wrist injury requiring hand surgery. This condition arose and was diagnosed well after the relevant period and cannot be considered in relation to this claim. It follows that no impairment rating maybe given for this condition.
CONCLUSION
Since Mr Bodnar’s conditions do not rate 20 or more points under the Impairment Tables, it is not necessary for me to consider whether he had a continuing inability to work during the relevant period. It follows that his claim for DSP cannot succeed.
I affirm the decision under review.
Mr Bodnar may apply for DSP again at any time.
I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
...............................[sgd].....................................
Associate
Dated: 22 May 2017
Date(s) of hearing: 6 April 2017 Applicant: In person Solicitors for the Respondent: Ms E Ulrick, Department of Human Services
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