BRIAN PYLE and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 771
•6 November 2012
[2012] AATA 771
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/2324
Re
BRIAN PYLE
Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
Decision
Tribunal Dr K S Levy, RFD, Senior Member
Date 6 November 2012 Place Brisbane The Tribunal affirms the decision under review.
.............................[sgd]..................................
Dr K S Levy, RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Relevant period – Impairment Tables – No impairment rating of 20 points or more – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94, Sch 1B
Social Security (Administration) Act 1999 (Cth) Sch 2
REASONS FOR DECISION
Dr K S Levy, RFD, Senior Member
6 November 2012
INTRODUCTION
The applicant, Brian Pyle, has had a number of occupations, including employment as a taxi driver for eight years until 2009 when he ceased work to become a full-time carer for his father. That role ceased on 28 October 2011. He then applied for disability support pension (DSP).
The application for DSP commenced with an inquiry to Centrelink on 31 October 2011 and was followed by a formal application, received by Centrelink on 10 November 2011 (although it was signed “12/11/11”). The medical conditions claimed in that application were:[1]
·Lumbosacral spine
·Osteoarthritis facets
·Diabetic
[1] Exhibit 1, T-document 6, folio 49, question 73.
A determination was made by Centrelink on 5 December 2011 that Mr Pyle's application was not successful because his medical conditions did not satisfy prescribed criteria. Mr Pyle has since then sought multiple reviews of that decision:
(a)A review by Centrelink on 4 January 2012. That review affirmed the original decision on 20 January 2012;
(b)
A further review by an authorised review officer (ARO) on 25 January 2012.
On 23 February 2012, the ARO also affirmed the original decision; and
(c)
An application for review by the Social Security Appeals Tribunal (SSAT) on 6 March 2012. On 26 April 2012, that Tribunal affirmed the original decision
as well.
Mr Pyle has now sought further review to this Tribunal by application dated 31 May 2012.
ISSUES
The issues for determination are:
(1)Does Mr Pyle have a medical condition or conditions which have an impairment rating of 20 points or more under the Impairment Tables pursuant to the relevant legislation; and
(2)If the answer to question (1) is “yes”, does he have a “continuing inability to work”?
EVIDENCE
Mr Pyle was self-represented at the Tribunal. There was a history of previous applications and evidence by recognised medical and allied health practitioners which
the Tribunal had the benefit of considering.
Mr Pyle gave sworn oral evidence as follows:
(a)He was recognised as being a full-time carer for his father from 2009 until 2011.
(b)His father had been put in a nursing home in late 2011 and died on 28 January 2012.
(c)
He then went to Tweed Heads on 27 February 2012 and consulted a general practitioner. He was advised to go to a psychiatrist and get physiotherapy.
The applicant admitted that he did not follow that advice at that time.
(d)
He has since had a consultation about his “mental state” and he has also seen
a physiotherapist who has said his condition is degenerative and any physiotherapy may only give temporary relief.
(e)He gets some assistance from his brother who lives a short distance from him at Tweed Heads.
MEDICAL EVIDENCE
At the time of the hearing, the following conditions were claimed and some independent evidence of each of these conditions had been provided.
1. Osteoarthritis of the lower spine
A report of an x-ray of the applicant's spine was provided by radiologist Dr G Khera, dated 20 October 2011.[2] That report indicated Mr Pyle had lumbar spondylosis.
[2] Exhibit 1, T-document 7, folio 51.
Three reports by Dr A. Araba were provided. In his report dated 9 November 2011,[3]
[3] Exhibit 1, T-document 8, folios 52-59.
Dr Araba indicated the applicant was being treated for his osteoarthritis with analgesia and indicated that the applicant may have physiotherapy as part of future treatment.
He noted the then impact of the condition was that Mr Pyle would not be able to stand or sit for prolonged periods. Dr Araba then provided another report, dated
12 December 2011,[4] and advised that this condition was a “permanent condition”.
In a further report dated 11 June 2012,[5] Dr Araba confirmed his previous reports and then stated that the condition was being treated with medication, including analgesics.
He further commented that lifestyle modification was a necessary part of the treatment and rehabilitation for the applicant. Dr Araba also said that the planned treatment included weight loss and physiotherapy.
[4] Exhibit 1, T-document 11, folio 68.
[5] Exhibit 1, T-document 16, folios 85-92.
A report, dated 21 November 2011,[6] was also provided by two job capacity assessors (“JCA report”). The assessors were a registered psychologist and a registered nurse. Comments by the assessors in relation to this condition were that physiotherapy or any other form of physical treatment had not been carried out and that pain was managed by analgesics and Celebrex. Mr Pyle told the assessors that he goes to the local pool each day where possible as that provided some pain relief for him. The assessors also noted that the GP had indicated physiotherapy may be part of the treatment in future.
The assessors further noted an aggravating factor for this condition had been that Mr Pyle had been a carer for his elderly father which required him to do a lot of lifting due to his father's frequent falling during the previous two years. They noted that the applicant's father had moved to a nursing home and so that aggravating factor had been removed and, as such, he was then in a position to pursue further treatment.
[6] Exhibit 1, T-document 9, folios 60-65.
2. Diabetes and Hyperglycaemia
Dr Araba commented in his report of 9 November 2011[7] that Mr Pyle suffered from
non-insulin dependent diabetes and that this condition was well controlled and caused minimal impact on his daily function. Dr Araba also noted that the current and future treatment at that time was lifestyle modification by the applicant and medication.
On 11 June 2012, Dr Araba reported again and confirmed that this condition had minimal impact on the applicant's functionality.
[7] Exhibit 1, T-document 8, folios 52-59.
3. Anxiety and Depression
Two reports were provided to the Tribunal about these conditions.
Mr Harry Theodore, clinical psychologist, reported on 5 June 2012 that the applicant had a provisional diagnosis of panic disorder and agoraphobia.[8] He also noted features of posttraumatic stress disorder (PTSD) and that there were symptoms of bereavement.
He noted treatment at that time had not been completed.
[8] Exhibit 1, T-document 15, folio 84.
A report by a general practitioner at Kingscliffe NSW, Dr Baguley,
dated 21 August 2012,[9] was provided to the Tribunal. Dr Baguley stated the applicant had panic disorder with agoraphobia and PTSD and it was likely to affect him for more than two years.
THE EVIDENCE OF IMPACT OF CONDITIONS
[9] Exhibit 3.
1. Osteoarthritis of the lower spine
This is a permanent condition and has been so since 12 December 2011. Dr Araba also noted that the condition was likely continue for more than two years and that in that period this condition was likely to deteriorate.
It is noted that physiotherapy commenced on 13 June 2012 (report by Adam Lees, physiotherapist, dated 13 July 2012).[10]
[10] Exhibit 3.
2. Diabetes and Hyperglycaemia
The report by Dr Araba of 11 June 2012 notes that this condition has minimal impact on the applicant's functioning. It indicates that the condition is fully diagnosed, treated and stabilised.
3. Job Capacity Assessors Report
The JCA report shows that the applicant's capacity for work was zero to seven hours
per week for a temporary period up to the end of 21 March 2012. Beyond that period the assessment states that the applicant's capacity for work is as follows:
(a)He should have capacity for eight to fourteen hours per week after 21 March 2012.
(b)He would have capacity for 15 to 22 hours per week within two years of 10 November 2011 with intervention of training or support. That report also noted that the applicant should be able to move to lighter work in the future with DMS assistance. It was noted, however, that motivation was at that time a “big barrier” for the applicant's potential to return to work.
CROSS EXAMINATION
Under cross examination by Ms Forsyth, Mr Pyle agreed that documentary evidence of Dr Araba in his report dated 9 November 2011, shows:
(a)
For osteoarthritis of the lower spine, the date of diagnosis was October 2011
(T-document 8, folio 53).
(b)At the date of the report, Dr Araba noted that Mr Pyle may have physiotherapy in the future (T-document 8, folio 54).
(c)That in relation to non-insulin dependent diabetes mellitus, that it was "fairly well controlled" (folio 55).
The applicant also acknowledged that he only commenced physiotherapy on 13 June 2012 (vide report of Adam Lees, physiotherapist, dated 13 July 2012).
In Dr Araba's subsequent report of 11 June 2012, he notes that Mr Pyle raised with him symptoms of anxiety and depression. The Tribunal heard that the applicant probably knew of these conditions well before that date but did not admit it to himself until about that time (T-document 16, folio 90).
FINAL SUBMISSIONS
Ms Forsyth, for the Secretary, submitted that the relevant period is 31 October 2011
to 30 January 2012.
For the arthritis condition, she submitted that the only date of diagnosis is that of “October 2011” as Mr Pyle had been a full-time carer looking after his father prior to that time. Therefore, it was submitted that the applicant had not had this condition fully treated and, consequently, it should not be given an impairment rating.
In relation to the diabetes condition, it was submitted that that condition is fully diagnosed, treated and stabilised, although it has a minimal functional impact. It was submitted a zero points rating on the applicable impairment scale would be appropriate for this condition.
In relation to anxiety and depression, it was submitted that the only diagnosis is the “provisional diagnosis” of 5 June 2012. It therefore does not attract an impairment rating.
Ms Forsyth drew the Tribunal's attention to the SSAT decision and also submitted that the JCA report should be noted in relation to the applicant's capacity for work.
CONSIDERATION
I have considered all the evidence lodged with the Tribunal or presented orally at the hearing. Under the Social Security (Administration) Act 1999 (Cth), where an applicant does not qualify for DSP on the date of the application but does so within a 13 week period from that date, then the claim is deemed to have been made on the first day in which the person is qualified for a social security payment (Sch 2, cl 4(1)).
Therefore, the period for which the applicant's qualification for DSP is to be assessed is 31 October 2011 to 30 January 2012.
Relevant Legislation
The relevant statutory provisions concerned with the present application are contained in s 94 of the Social Security Act 1991 (Cth) ("the Act"). Relevantly, it reads:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person's impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
…
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B)-the person has actively participated in a program of support within the meaning of subsection (3C); and
(a) in all cases-the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases-either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity-such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
…
Severe impairment
(3B) A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Example 1: A person's impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2: A person's impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3: A person's impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
…
(5) In this section:
work means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person's locally accessible labour market.
Schedule 1B of the Act contains the Guide to the Impairment Tables. Fundamental principles in applying the impairment tables are found in its Introduction. In particular,
it states that a rating can only be assigned to a condition where it is a “fully documented, diagnosed condition which has been investigated, treated and stabilised” (see para 4).
In determining whether a condition is fully diagnosed, treated and stabilised, consideration must be given to treatment or rehabilitation which has occurred; whether it is still continuing or planned in the near future; or whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years (see para 6).
Depending on the assessment of the factors above, a condition may be considered as a permanent condition if, following a condition being fully diagnosed, treated and stabilised, that the evidence points to it being:
more likely than not that is will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years (see paragraph 5).
I now turn to consider the conditions claimed in the light of the legislative provisions and the prescriptions in the impairment tables.
Osteoarthritis of the lower spine
The evidence shows Mr Pyle has had back problems for some years. However,
the diagnosis put to the Tribunal is noted in Dr Araba's report of 10 November 2011 as well as in the earlier x-ray report of Dr G Khera, dated 20 October 2011 (in response to a referral by Dr Araba). That x-ray report concludes Mr Pyle has “lumbar-spondylosis”.
I therefore make a finding of fact that he was first diagnosed with this condition on 20 October 2011.
I note the SSAT decided that this condition should be rated as having 15 impairment points. With reference to the introduction to the impairment tables, I accept this condition has been fully diagnosed. However, some doubt must exist as to whether it has been fully investigated, treated and stabilised. The chronology of the evidence is helpful in that regard. Mr Pyle only commenced seeing a physiotherapist on 13 June 2012 (almost
five months after the completion of the relevant period to be assessed for this application). Therefore, for that period I cannot see evidence to justify a conclusion that the condition is “permanent”. That is, where some treatment has only recently commenced, it cannot be said that it is more likely than not that the condition will continue for more than two years, with or without reasonable treatment within the following two years, when the treatment has only begun after the 13 week period of assessment. I accept, however, that the physiotherapy treatment is “reasonable treatment” as discussed in the introduction to the impairment tables.
I also accept Dr Araba's report that it is likely to continue for more than two years and is likely to deteriorate, but reading his report as a whole, together with the conclusions of the job capacity assessors (which I also accept as reasonable), I am not satisfied that during the period in question the condition was fully diagnosed, treated and stabilised.
It, therefore, is not a permanent condition for the relevant period.
I find that a rating cannot therefore be assigned to this condition for the relevant period.
Non-insulin Dependent Diabetes
I have accepted Dr Araba's report of 9 November 2011 that this condition is well controlled and carries little impact on the applicant's daily functioning. Dr Araba's subsequent report of 11 June 2012 also states the condition is permanent. I have no contradictory evidence and I accept that report as a correct assessment. I note also that future treatment for this condition will involve medication and lifestyle modifications.
Based on the expert evidence of Dr Araba, I find this condition is fully diagnosed, treated and stabilised. Given the minimal impact on functioning, I find nil points is the appropriate rating for this condition.
Anxiety and Depression
I note the reports of Mr Theodore, clinical psychologist, dated 5 June 2012, and that of Dr Baguley, general practitioner, dated 21 August 2012. Mr Theodore has provided a “provisional diagnosis” and states that treatment is still continuing. Dr Baguley's report is clearly based on information provided by the patient and there is no evidence that he has referred Mr Pyle for specialist psychiatric opinion.
Both of those opinions are also well outside the relevant period for this review; that is 31 October 2011 to 30 January 2012. I therefore find that no rating can be applied to these conditions on the basis of the requirements that conditions must be fully diagnosed, treated and stabilised during the relevant period as required by Schedule 1B to the Act.
CONCLUSION
I therefore find that Mr Pyle does not have a rating of 20 points or more under the impairment tables. My answers to the issues put to the Tribunal for determination are therefore as set out below:
Issue 1
For the period 31 October 2011 to 30 January 2012, Mr Pyle does not have a condition or conditions that have an impairment rating of 20 points or more under the impairment tables. Therefore, he does not qualify for DSP. Thus, the answer to question 1 is "No".
Issue 2
In relation to whether Mr Pyle has a continuing inability to work, it is not strictly necessary to answer that question as Mr Pyle cannot qualify for DSP given that he does not have 20 points or more under the impairment table. However, even if he did, he does not have a “severe impairment” as defined in s 94(3B) and would therefore be required to be assessed as to whether a program of support or other training may assist in his returning to work. Apart from the statutory provisions under s 94(3B), there are other legal requirements for the decision maker to take into account and even factors which must be disregarded (such as those referred to in paras 34 and 35 of the Secretary's Statement of Facts and Contentions).
However, the answer to this issue, in addition to the negative answer to Issue 1, is that the report by the job capacity assessors shows that the applicant did have a capacity for work during the assessment period. Therefore, he cannot satisfy Issue 2.
DECISION
The decision under review is affirmed.
I certify that the preceding 45
(forty- five) paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, RFD, Senior Member..............................[sgd]......................................
Associate
Dated 6 November 2012
Date of hearing 19 September 2012 Applicant In person Solicitor for the Respondent Ms Jasmine Forsyth
0
0
0