Brad Livermore and Secretary, Department of Social Services
[2013] AATA 747
[2013] AATA 747
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0829
Re
Brad Livermore
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 18 October 2013 Place Sydney The Tribunal affirms the decision under review.
.....................[sgd]...................................................
Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – disability support pension – back condition – post traumatic stress disorder – gallstones – hepatitis C – whether conditions fully diagnosed, treated and stabilised –– decision under review affirmed
LEGISLATION
Social Security Act 1991 s 94
Social Security (Administration) Act 1999 s 42, Sch 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member J F Toohey
18 October 2013
BACKGROUND
Mr Brad Livermore suffers from a disc prolapse in his lower back, post traumatic stress disorder, hepatitis C and gallstones. He seeks review of a decision to refuse his application for disability support pension (DSP).
Mr Livermore attended a hearing at the Tribunal on 4 October 2013. His carer, Ms Sarah Meudell, assisted him at the hearing. At the end of the hearing, I explained to Mr Livermore why I agreed with Centrelink and the Social Security Appeals Tribunal that he did not qualify for DSP. These written reasons summarise the reasons I gave at the end of the hearing.
Mr Livermore applied for DSP on 22 May 2012. For his application to succeed, he had to qualify for DSP on 22 May 2012 or within 13 weeks, that is by 21 August 2012: s 42 and Sch 2 of the Social Security (Administration) Act 1999. I will refer to this period as the relevant period.
To qualify for DSP during the relevant period, Mr Livermore had to satisfy the following criteria in s 94 of the Social Security Act1991 (the Act):
(i)a physical, intellectual or psychiatric impairment, or impairments, which are rated at 20 or more points according to the Impairment Tables in the Act; and
(ii)a continuing inability to work as defined in the Act.
The first question, therefore, is whether Mr Livermore’s conditions rated 20 or more points on the Impairment Tables during the period 22 May 2012 to 21 August 2012. If not, then his application cannot succeed. For the following reasons, I find that Mr Livermore’s conditions cannot be given a rating on the Impairment Tables because, during the relevant period, they were not fully diagnosed, treated and stabilised.
It is possible that Mr Livermore would qualify for DSP now, or sometime in the future but, when he made his application on 22 May 2012, his conditions were still being investigated or treated.
The Impairment Tables
The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
An impairment rating can only be assigned if:
(a)the condition causing that impairment is permanent; and
(b)the impairment is more likely than not to persist for more than two years.
A condition is considered permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, it has been fully treated and fully stabilised, and it is more likely than not to persist for more than two years: cl 6(4).
In deciding whether a condition has been fully diagnosed and fully treated, the following must 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.
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 two 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 two 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 means treatment that:
(a)is available at a location reasonably accessible to the person;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the person.
EVIDENCE ABOUT MR LIVERMORE’S MEDICAL CONDITIONS
Mr Livermore has provided the following reports about his medical conditions:
(i)Dr Zaid Ali, general practitioner, 28 May 2012;
(ii)Dr Renata Bazina, neurosurgeon, 10 August 2012, 12 June 2012, 13 August 2012 and 29 August 2012
(iii)Dr Jim Jarrett, radiologist, 5 May 2012;
(iv)Dr Brendan Steinfort, radiologist, 18 May 2012;
(v)Dr Jay Ives, radiologist, 14 June 2012;
(vi)Debora Felman, 9 July 2012;
(vii)Dr M A Chaudhary, psychiatrist, 19 November 2012 and 4 October 2013; and
(viii)Dr Ali Sarfraz, general practitioner, 12 September 2013, and an undated report.
Centrelink has also provided a report of a Job Capacity Assessor dated 22 August 2012 following an interview that day with Mr Livermore.
I will deal with each of Mr Livermore’s medical conditions in turn.
Lower back
Mr Livermore suffered a serious injury to his back when he fell into a hole on 1 May 2012. He suffers from lower back pain and severe left-sided sciatica as a result of his fall.
In his application for DSP, Mr Livermore stated that he had had an MRI and CT scans and physiotherapy, and he was to undergo surgery at Westmead hospital.
On 12 June 2012, Dr Bazina reported to Dr Ali that she recommended Mr Livermore have an epidural injection and, if that was not successful, that she would consider surgery and microdiscectomy. On 13 August 2012, she reported that there had been little improvement after the epidural, and she recommended Mr Livermore undergo surgery. He was placed on the waiting list at Liverpool Hospital.
Mr Livermore underwent surgery at Bankstown Hospital on 17 October 2012. Unfortunately, his back did not improve. He is still having physiotherapy and is to see another neurosurgeon about more surgery.
As Mr Livermore was still awaiting surgery during the relevant period, his back condition was not fully treated and stabilised during that time, and it cannot be given a rating on the Impairment Tables.
Post traumatic stress disorder
In 2009, Mr Livermore was the victim of a serious assault by a number of men. He spent several days in hospital recovering from his injuries. On 7 July 2012, he was assessed by Debora Felman, a registered psychologist, for the purposes of an application for victims’ compensation. Ms Felman reported that he “developed many psychological symptoms that fulfil diagnostic criteria” for post traumatic stress disorder (PTSD) and he would benefit from counselling in order to gain skills to manage his condition. She said “I strongly recommend the remaining eight hours of further counselling with the possibility of a review”.
Ms Felman was not a clinical psychologist and did not treat Mr Livermore.
On 21 July 2012, Mr Livermore saw Dr A Chaudhury, psychiatrist. Dr Chaudhury diagnosed him as suffering from PTSD. In a report dated 19 November 2012, he reported that in July 2012 he had commenced Mr Livermore on the anti-depressant Pristiq ER, Aloderm to help him sleep, and “CBT & psychotherapy” by which I understand him to mean cognitive behaviour therapy and psychotherapy.
Dr Chaudhury reported in November 2012 that Mr Livermore’s condition was chronic, fully diagnosed, treated and stabilised; he was permanently unfit for work and unlikely to improve in the next two years.
In his report dated 4 October 2013, Dr Chaudhury stated that Mr Livermore was still on Pristiq ER; he stopped taking Aloderm in June 2013 and is now on Xanax and Aropax (both anti-depressants) and still having cognitive behaviour therapy and psychotherapy. He restated his view that his condition was chronic, fully diagnosed, treated and stabilised; he was permanently unfit for work and unlikely to improve in the next two years.
Although he started treatment with Dr Chaudhury during the relevant period, Mr Livermore saw him only once or twice during that time. It was not until November 2012 that Dr Chaudhury reported that his condition was fully treated and stabilised. Also, as Mr Livermore said at the hearing, Dr Chaudhury has been adjusting his medication so it can be as effective as possible.
Based on Dr Chaudhury’s reports, I find that Mr Livermore’s PTSD was not fully treated and stabilised during the relevant period. That means it cannot be given a rating on the Impairment Tables.
Hepatitis C
In his report dated 28 May 2012, Dr Ali wrote that Mr Livermore had hepatitis C for which he had “nil” treatment, and the impact on his ability to function was “none”.
Mr Livermore says he has a lot of problems with his liver which is visibly swollen. He has been on a list awaiting treatment with Interferon. He is due to start treatment in about two weeks. If the treatment is successful, his condition should improve a good deal.
I find that Mr Livermore’s hepatitis C was not fully treated and stabilised during the relevant period. As a result, it cannot be given a rating on the Impairment Tables.
Gallstones
In his report dated 28 May 2012, Dr Ali wrote that Mr Livermore was diagnosed with gallstones on 13 April 2012; he suffered from recurrent abdominal pain which had become more severe in the preceding four to five months, and was awaiting laparoscopic cholecystectomy at Mt Druitt Hospital. Dr Ali wrote that the condition was expected to persist for 3 to 24 months, and to significantly improve.
Mr Livermore underwent surgery to remove his gallbladder in April 2012. Unfortunately, he is now experiencing similar symptoms again and he has been told that, even though his gallbladder has been removed, stones can form in his kidneys.
It appears that Mr Livermore’s gallstones may have been fully treated and stabilised during the relevant period. If so, it appears his condition was temporary in the sense that it recovered with surgery before the relevant period. I note that Dr Sarfraz’s report of 12 September 2013 makes no mention of gallstones. If that is so, then it was not a permanent condition and cannot be given a rating.
It is possible, as Mr Livermore believes, that his current symptoms are related to his liver condition. He is waiting on the tests he is to undergo in connection with his treatment for his liver. In any event, his symptoms are currently undiagnosed and so cannot be given a rating.
CONCLUSION
As Mr Livermore’s conditions were not fully treated during the relevant period, they cannot be given ratings on the Impairment Tables. As a result, the claim he made for DSP on 22 May 2012 cannot succeed because he did not qualify at that time.
I have not considered whether Mr Livermore had a continuing inability to work during the relevant period because, even if he had, his claim fails the points tests.
As I have said, even though the claim that Mr Livermore made on 22 May 2012 cannot succeed, he may still qualify for DSP now or in the future.
I affirm the decision under review.
I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. ...............................[sgd].........................................
Associate
Dated 18 October 2013
Date(s) of hearing 4 October 2013 Applicant In person Advocate for the Respondent Ms P Sharma, Department of Human Services
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