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

[2017] AATA 1539

Bowes and Secretary, Department of Social Services (Social services second review) [2017] AATA 1539 (22 September 2017)

Division:GENERAL DIVISION

File Number(s):  2016/3914

Re:Jimmy Bowes  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:22 September 2017

Place:Brisbane

I affirm the decision under review.

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

Deputy President Dr P McDermott RFD

CATCHWORDS

SOCIAL SECURITY – cancellation of disability support pension on reassessment of impairment conditions – application for portability – physical and psychiatric impairments – alcohol addiction - whether applicant’s conditions are permanent – whether applicant’s impairment is of 20 points or more under the Impairment Tables –– decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94, 94(1), 94(1)(a), 94(1)(b)
Social Security (Administration) Act 1999 (Cth) s 80

CASES

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48

SECONDARY MATERIALS

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

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

22 September 2017

INTRODUCTION

1. The applicant seeks a review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) that was given on 7 July 2016.

2. That decision affirmed a previous decision of the Department to cancel the applicant’s disability support pension.

BACKGROUND

1. In July 2014 the applicant was granted disability support pension (DSP).

2. On 16 June 2015 the applicant advised the Department that he was travelling to the Philippines for 6-13 weeks.

3. On 25 June 2015 the applicant made an application for the review of his medical conditions as he sought portability of his DSP by completing a Centrelink form titled Medical Report – Disability Support Pension – Review for portability.[1] In that form the applicant listed his disabilities, illnesses or injuries as “anxiety/deppresive [sic] disorder spinal damage – cyrosys [sic] of liver – gout”.[2] The applicant’s general practitioner Dr Bankole Sotade completed the second part of that form.[3] Dr Sotade lists the “depression/anxiety” as the condition with the most impact. Dr Sotade lists Condition 2 as cirrhosis of liver and hepatic steatosis and other conditions are later listed as “gout, lower back pain, loose stool – change in bowel habit – under investigation”.[4]

   [1] Exhibit A, T-documents, T38 at p.191

   [2] Ibid at p.193

   [3] Exhibit A, T-documents, T36

   [4] Ibid at p.180

4. On 7 January 2016 the applicant attended an assessment with a Job Capacity Assessor (JCA).[5] The JCA requested more information from Dr Sotade, the applicant’s General Practitioner, and Mr Greg Jones the applicant’s psychologist, which was provided to the JCA by the health practitioners over the phone.[6]

   [5] Exhibit A, T-documents, T41

   [6] Exhibit A, T-documents, T39; T40; T41 at p.204

5. The JCA assessed the Applicant’s conditions as follows:

   a)    Spinal disorder – recommended rating 0

   b)    Psycho/Psychiatric Disorder – Other  - recommended rating 5

The JCA concluded the applicant’s total impairment rating was 5 points. The JCA opined the applicant has a Baseline Work Capacity of 8-14 hours per week with an increased capacity of 15-22 hours per week with intervention.

The JCA summarised their findings as

“The previous Job Capacity Assessment dated 28.7.14 indicated an Impairment rating of (10) points from Table 4 – Spinal function and (10) points on Table 5 – Mental Health function with a work capacity with intervention of 8-14 hours per week with intervention.

Current medical evidence and inconsistencies between client’s reported symptomology and functional capacities required for overseas travel indicated reduced severity of symptoms with an increased expected potential work capacity. The conditions are now assessed under Table 4 – Spinal Function with (0) points and under Table 5 – Mental Health function with (5) points. The client’s With Intervention work capacity has therefore increased to 15-22 hours per week.”[7]

[7] Exhibit A, T-documents, T41 at p.207

1. In a letter to the applicant dated 1 February 2016, the Department notified the applicant that he is not eligible for the DSP as he has been assessed as having an impairment rating of less than 20 points.[8] The applicant sought a review of the Department’s decision to cancel his DSP. An Authorised Review Officer wrote to the applicant on 15 March 2016 outlining their reasons for finding that the decision to cancel the applicant’s DSP was the correct decision.[9]  

   [8] Exhibit A, T-documents,  T9 at p.59

   [9] Exhibit A, T-documents, T12 at p.65

2. The applicant applied to the Social Services and Child Support Division of this Tribunal (AAT1) for a review of the decision on 19 March 2016.[10] A hearing of the application took place on 5 July 2016. The decision under review was affirmed on 7 July 2016. The Member found that the impairment rating that could be assigned for the applicant’s back condition was 5 points.[11] The Member found that the applicant’s mental health, alcohol addiction and other conditions were not fully treated and stabilised and therefore could not be assigned an impairment rating.[12]

   [10] Exhibit A, T-documents, T15 at p.77

   [11] Exhibit A, T-documents, T2 at p.13 [23]

   [12] Exhibit A, T-documents, T2 at p.15 [34]-[35]

RELEVANT LEGISLATION

1. The legislation I must administer is the Social Security Act 1991 (the SSA), the Social Security Administration Act 1999 (the SSAA) and the Social (Security Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).

2. Section 80 of the SSAA provides that the Secretary is required to cancel or suspend a social security payment where the Secretary is satisfied that a person is not qualified for the payment.

3. Section 94 of the SSA prescribes the qualification criteria for disability support pension.[13]

   [13] Exhibit A, T-documents, T3 at p.19

4. Section 94(1) of the SSA provides that a person qualifies for DSP if the person has a physical, intellectual or psychiatric impairment, the person’s impairment is 20 points or more under the Impairment Tables and the person has a continuing inability to work.

5. The relevant Impairment Tables which were in force at the time of cancellation of DSP are in evidence.[14]

   [14] Exhibit A, T-documents, T4 at pp.20-29

6. In assigning an impairment rating to a condition, I am required to apply the rules in section 6 of the Determination.[15] A condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, the condition has been fully treated and the condition has been fully stabilised and the condition is more likely than not, in light of the available evidence, to persist for more than two years.

   [15] Exhibit A, T-documents, T4 at p.21

7. I will now proceed to consider the requirements under section 94 of the SSA.

IMPAIRMENT

1. Section 94(1)(a) of the SSA imposes a requirement that a person has a physical, intellectual or psychiatric impairment. There is no issue that the applicant has an impairment for the purpose of section 94(1)(a) of the SSA. Certainly, his mental health and alcohol addiction condition are impairments.

ASSESSMENT OF IMPAIRMENTS

1. I now consider section 94(1)(b) of the SSA. That provision requires me to consider whether a person’s impairment is 20 points or more under the Impairment Tables at the time of cancellation of DSP.

Spinal Condition

1. Dr Todman, a neurologist has provided a report in relation to the applicant sustaining a fracture to vertebra in his lumbar spine in a car accident in 2007.[16] Dr Tonakie, confirms the fractured lumbosacral spine vertebra in a report dated 26 May 2009 following an MRI scan of the applicant’s spine.[17] On receiving the MRI scans and the report of Dr Tonakie, Dr Todman provided a supplementary report dated 11 June 2009. In the supplementary report Dr Todman notes “[t]he MRI scan confirms a previous compression fracture at L1, but there is no other complication. Based on this there is no role for surgery.”[18]

   [16] Exhibit A, T-documents, T19

   [17] Exhibit A, T-documents, T20

   [18] Exhibit A, T-documents, T21 at p.114

2. On 12 January 2016 the JCA contacted Dr Sotade for more information on the applicant’s spinal condition.[19] Dr Sotade reported that since 2013 he had not seen the applicant in relation to reported back pain.[20] Dr Sotade has listed the spine condition as a condition that has minimal impact.[21]

   [19] Exhibit A, T-documents, T41 at p.202

   [20] Ibid

   [21] Exhibit A, T-documents, T36 at  p.180

3. In view of Dr Sotade’s comments that the condition causes a limited impact on the applicant’s functional ability, I rely upon his comments to assign an impairment rating of five (5) points under Table 4 – Spinal Function. This rating is warranted as it applies where there is a mild functional impact on activities involving spinal function.

4. In evidence is the self-report of the applicant in 2015 and 2016 concerning the functional limitation of his spine which in my assessment cannot be relied upon.[22] This is because the self-report is not consistent with the recent advice that Dr Sotade provided to the JCA. The self-report is also not corroborated by any evidence in accordance with s 8(1) of the Determination.  Having regard to the note to s 8(1) of the Determination it is important to have regard to the Introduction to Table 4 which lists the type of medical evidence that can be used to corroborate the self-report of the applicant.[23]

   [22] Exhibit A, T-documents, T13 at p.70; T37 p.184; T41 p.206

   [23] Exhibit A, T-documents, T4 at p.22

Mental Health Disorder and Alcohol Addiction

1. Dr Paul McQueen, clinical psychologist, assessed the applicant in 2014. Dr McQueen diagnosed the applicant in 2014 with Panic Disorder, Agoraphobia, Major Depressive Disorder, mild severity.[24]

   [24] Exhibit A, T-documents, T35 at p.168

2. The applicant has provided two reports from Dr McQueen dated 1 March 2016 and 1 September 2016.[25] The report of 1 March 2016 states that the applicant’s mental health conditions appear to have improved with regard to the applicant’s functional impairment by the conditions. Dr McQueen reported:

   “On interview it was my impression that there has been functional in a number of areas in relation to Mr Bowes mental health conditions. Most notably there are indication of some reductions in the level of functional impairment due to Panic Disorder and Agoraphobia. This is evidenced by having been able to travel to Thailand early in 2015, and by having been on a cruise in November 2015. He described his Panic Disorder and Agoraphobia as well-controlled on both occasions. He reported he last experienced a full panic attack in December 2015.

   Subjectively, however, Mr Bowes continues to experience symptoms of anxiety and depression as extremely severe…This is not uncommon during the treatment stages of depression and anxiety disorder, as reductions in symptoms allow for improved functioning which, in turn, temporarily contributes to the experience of further symptoms. The DASS-42 was completed again shortly after Mr Bowes saw me on February 22. Scores indicate very little change in symptoms across any scale compared to Mr Bowes initial assessment with me in 2014.”[26]

   [25] Exhibit C, Dr McQueen report dated 1 September 2016; Exhibit D, Dr McQueen report dated 1 March 2016

   [26] Exhibit D, Dr McQueen report dated 1 March 2016

3. The report of Dr McQueen dated 1 September 2016 states that the applicant was re-assessed for his mental health conditions. As a result of that reassessment, Dr McQueen diagnosed the applicant with Panic Disorder and Agoraphobia. He opined that “[i]n terms of severity, there was no evidence of functional improvement in Mr Bowes’ condition since he was last assessed by me in February.”[27]

   [27] Exhibit C, Dr McQueen report dated 1 September 2016

4. It is apparent that when Dr McQueen wrote his report on 1 March 2016 that there was a functional improvement in the mental health condition of the applicant. This report was written a month after the cancellation decision. The later report of Dr McQueen reports on the condition of the applicant more than six months after the cancellation decision and does not focus on the time of the cancellation decision. One matter of concern is that in Dr McQueen’s reports there is no mention of the alcohol condition. I presume that Dr McQueen is not aware of this; however, he could not be questioned on this as he was not called as a witness.

5. The respondent has submitted that the applicant’s mental health conditions cannot be fully treated and stabilised due to the applicant’s self-medication with alcohol. The applicant contends that the respondent cannot assert that the alcohol dependence prevents the mental health conditions being fully treated and stabilised.

6. There is no question that the applicant has an alcohol addiction. Indeed the applicant’s treating psychologist in a letter to the Department dated 16 February 2016 states that the applicant “has features of Panic Disorder and Major Depressive Disorder (Chronic) along with problems [sic] alcohol addiction”.[28]       Mr Jones has reported that the applicant’s mental health problems and his addiction to alcohol requires long term treatment.[29]

   [28] Exhibit A, T-documents, T42 at p.212

   [29] Exhibit A, T-documents, T42 at p.212

7. Before the AAT1 the applicant acknowledged that his psychologist considers that he drinks too much. The applicant informed the AAT1 that he has about six beers and some wine each night and has no alcohol free days.[30]

   [30] Exhibit A, T-documents, T2 at p.14

8. There is no evidence before the Tribunal to indicate that the applicant has undertaken further reasonable treatment for his alcohol addiction and for his mental health problems as recommended by his treating psychologist Greg Jones. The Guidelines to the Rules for Applying the Impairment Tables provide that “medical or other compelling and acceptable reasons” may exist which would negate the requirement for a DSP applicant to undertake reasonable treatment for a diagnosed condition.[31]

   [31] Exhibit A, T-documents, T5 at pp.30-40

9. I do not consider the applicant has provided any compelling or acceptable reasons for not pursing reasonable treatment of his mental health and alcohol addiction conditions. The applicant’s treating psychologist has recommended further treatment for both the alcohol addiction and mental health conditions.[32] I consider the applicant’s treating psychologist is in a position to make such an informed assessment and I rely on his assessment that the applicant requires treatment for his alcohol addiction condition and mental health condition.

   [32] Cf. Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48

10. The applicant’s mental health conditions and alcohol dependence have been diagnosed. However, as I consider that further treatment of the conditions is required, I am unable to make a finding on the evidence before the Tribunal that the conditions are permanent. I therefore do not have authority under the Determination to assign an impairment rating to the applicant’s mental health condition and alcohol addiction condition.

Cirrhosis Of The Liver and Hepatic Steatosis

1. The liver condition of the applicant is identified by Dr Sotade in a Centrelink Medical Report dated 7 July 2014.[33] Dr Sotade in the same report indicates that the condition was confirmed by the Ipswich Hospital Surgical Unit.[34] The JCA notes in the report dated 15 January 2016 that the cirrhosis of the liver condition is verified by medical evidence.[35] The JCA states

   “The client has been diagnosed with Cirrhosis of liver which has been confirmed by the Ipswich Hospital surgical unit. The date of diagnosis is recorded on the medical report as 19/07/13.”[36]

   [33] Exhibit A, T-documents, T33 at p.155

   [34] Ibid

   [35] Exhibit A, T-documents, T 34 at p.161

   [36] Ibid

2. The AAT1 decision found that the applicant’s cirrhosis of the liver condition has yet to be fully treated and stabilised.[37] In his evidence before the Tribunal the applicant stated that he had advice from a specialist that his liver condition is improving, this indicates that the condition has not stabilised.

   [37] Exhibit A, T-documents, T2 at p.15 [36]

3. There is no cogent evidence before me to show that the applicant’s liver condition has been fully treated and stabilised. Therefore the condition cannot be assigned an impairment rating.

Gout

1. The applicant informed the JCA on 28 July 2014 that he suffers the gout condition “in his toes, ankles and knees and that it was being well managed.”[38]

   [38] Exhibit A, T-documents, T34 at p.162

2. An email from the Health Service Manager, Marie Kelly, at Menindee Health Service dated 24 December 2013 records the applicant as being treated for gout with oral indocid and colchicne.[39]

   [39] Exhibit A, T-documents, T28 at p.143

3. Dr Sotade refers to the applicant’s gout in the Centrelink Medical Report for Disability Support Pension dated 7 July 2014 at Question 6 for conditions that cause a minimal or limited impact on ability to function.[40]

   [40] Exhibit A, T-documents, T33 at p.158

4. Dr Sotade again refers to the applicant’s gout condition in the Medical Report for Disability Support Pension Review for portability dated 29 June 2015 under Question 6 for conditions that cause minimal or limited impact on ability to function.[41]

   [41] Exhibit A, T-documents, T36 at p.180

5. The assessment of Dr Sotade that the applicant’s gout condition causes minimal functional ability impairment is unchallenged.  I accept the assessment and consider that the gout condition can be assigned an impairment rating of zero impairment points under Table 3 of the Impairment Tables which applies to the lower limb function.

Bowel condition

1. At the time when the applicant sought a review of his medical conditions, Dr Sotade stated that the applicant’s bowel condition was under investigation.[42] There is no evidence before me which would enable me to make a finding that the applicant has a permanent condition that could be assigned an impairment rating under Table 10 of the Impairment Tables.

[42] Ibid at p.180

CONCLUSION

1. My conclusion is that at the time of cancellation of DSP the applicant did not satisfy section 94(1)(b) of the Act which requires an applicant to have 20 points for their impairments. The applicant has five points for the impairments as they existed at the time of cancellation. As the applicant did not satisfy the requirements of section 94(1)(b) it is not necessary for me to consider whether the applicant satisfied the remaining requirements under section 94 of the SSA to qualify for DSP.

DECISION

1. I affirm the decision under review.

I certify that the preceding 43 (forty three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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

Associate

Dated: 22 September 2017

Date of hearing:	27 February 2017
Solicitors for the Applicant:	Emery Legal
Advocate for the Respondent:	Department of Human Services