Brian Wright and Secretary, Department of Social Services

Case [2014] AATA 498

[2014] AATA 498

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/2633

Re

Brian Wright

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal

Mr R G Kenny, Senior Member
Date 21 July 2014
Place Brisbane

The Tribunal sets aside the decision under review and substitutes its decision
that the applicant is qualified for the disability support pension with effect from
27 September 2012.

.........................Sgd...............................................

Mr R G Kenny, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Relevant period for assessment – Physical impairment from facial pain condition fully diagnosed, treated, stabilised and permanent – Depression not permanent – Impairment Tables – Ratings allocated for chronic pain under Tables 1, 7 and 8 of the Impairment Tables – Overall impairment rating more than 20 points – Program of support completed by applicant – Continuing inability to work – Applicant qualified for disability support pension during the relevant period – Decision under review set aside and substituted 

LEGISLATION

Social Security Act 1991 (Cth) ss 26, 27, 94

Social Security (Administration) Act 1999 (Cth) Sch 2, cls 3 and 4

CASES

Crossland and Secretary Department of Family and Community Services [2004] AATA 864
Re Hamal and Secretary Department of Social Security (1993) 30 ALD 517
Li and Secretary Department of Employment and Workplace Relations [2007] AATA 1606
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secretary Department of Family and Community Services v Michael (2001) 116 FCR 500
Secretary Department of Social Security v Pusnjak (1999) 56 ALD 444

Woodiwiss and Secretary Department of Family and Community Services [2003] AATA 846

SECONDARY MATERIALS

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

The Guide to Social Security Law

REASONS FOR DECISION

Mr R G Kenny, Senior Member

21 July 2014

BACKGROUND

  1. Brian Wright (“the applicant”) experienced an anaphylaxis reaction to a spider bite to the right side of his face in January 2011. On 27 September 2012, he completed a claim for the disability support pension which is payable under the terms of the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth).


    His claim was rejected by a Centrelink delegate on 29 October 2012. That decision was affirmed by an authorised review officer on 18 January 2013 and by the Social Security Appeals Tribunal on 30 April 2013.

    ISSUES AND SUBMISSIONS

  2. The qualifications for disability support pension are set out in s 94 of the Act. It is common ground that the applicant meets the age and residency requirements of that provision and has a physical impairment in relation to right sided facial pain.


    The remaining requirements in s 94 of the Act, and the matters in issue, are:

    ·whether the applicant has an impairment rating of 20 points or more which is calculated under the Impairment Tables[1] in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Details
AGLC
Brian Wright and Secretary, Department of Social Services [2014] AATA 498
Case
[2014] AATA 498
Decision Date

CaseChat Overview and Summary

The case involves Brian Wright, the applicant, and the Secretary, Department of Social Services, as the respondent. The applicant sought a disability support pension, and the dispute centred on whether he was entitled to the pension during the relevant period. The Administrative Appeals Tribunal (AAT) was the court that reviewed the case. The primary legal issue was whether the applicant was qualified for a disability support pension under section 94 of the Social Security Act during the relevant period. This involved determining if the applicant's impairments, due to his facial pain condition and depression, were permanent and if his overall impairment rating was more than 20 points.

The Tribunal carefully examined the applicant's medical history, which included diagnoses of trigeminal neuralgia and severe facial pain. Dr Matthew Steel's clinical summary noted a temporary reduction in pain after a neurosurgical procedure, but the pain returned. Dr Catherine Moore, a Medical Advisor with the Health Professional Advisory Unit, concluded that the applicant's facial pain condition was permanent, though his depression was not due to a lack of a formal diagnosis by a clinical psychologist or psychiatrist. The Tribunal also considered the appropriate use of the Impairment Tables in assessing the applicant's condition, particularly Tables 1, 7, and 8. The Tribunal found that the applicant's overall impairment rating exceeded 20 points and that he had a continuing inability to work.

In its decision, the Tribunal set aside the original decision and substituted its own, ruling that the applicant qualified for the disability support pension from 27 September 2012. The Tribunal reasoned that the applicant's chronic pain condition was permanent, and despite the absence of a formal diagnosis of depression, the applicant's symptoms were consistent with a depressive disorder. The Tribunal also noted that the applicant's functional impairments warranted a rating under multiple Tables, provided that separate losses of function were identified for each Table. This approach aligned with the instructions in the Determination and the Guide to Social Security Law, despite Dr Moore's differing interpretation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The applicant’s work history includes that of a car and boat salesman, fire prevention training and work with Wormald Australia, manager of a produce shed on a potato farm and as a job development and job search officer with the disability sector. Medical evidence Prior to the relevant period, the applicant was seen by doctors at the Gladstone Hospital. On 12 October 2011, consultant physician, Dr Basim Nona doubted that the applicant’s condition was trigeminal neuralgia and considered that it was most likely related to his right sphenoid sinusitis. Dr Matthew Allen referred him to neurosurgeon, Dr Sarah Olsen, who reported, on 10 February 2012, that she was uncertain of the diagnosis. She sought a further opinion from neurologist, Dr Richard Boyle, who reported, on 29 May 2012, that the symptoms did not suggest trigeminal neuralgia but, rather, cluster headache. On 26 September 2012, Dr Debra Scott, general practitioner (“GP”), completed a report for Centrelink in relation to the applicant’s claim in which she diagnosed trigeminal neuralgia and noted that the applicant’s ability to sit for long periods or stand was impaired, that his endurance was very poor and that, sometimes, it prevented him from speaking. On 18 December 2012, towards the end of the relevant period, Dr Kamlesh Das, the applicant’s usual GP, reported to Centrelink that the applicant had persistent right sided facial pain which was initially like trigeminal neuralgia but which had since worsened. He wrote that the applicant had “persistant [sic] unbearable R facial pain” which caused an “inability to function normally” and for which he was taking “high doses of narcotics”. Dr Das also noted that the applicant had a depressed mood, had no motivation, was fatigued, had lost interest in hobbies, had excessive sleepiness and had poor concentration. Neurologist, Dr Geoffrey Boyce, reported on 3 October 2013. He described the applicant as suffering from severe facial pain which was not really trigeminal neuralgia and for which he recommended that a neurosurgical approach be taken. Another GP, Dr Suzi Teasdale, wrote to Centrelink on 18 October 2013 referring to the difficulties that the various specialists had in reaching a precise diagnosis for the applicant’s condition. Dr Matthew Steel, from the Nambour Hospital, completed a clinical summary on 9 December 2013, noting that a balloon compression was undertaken by Dr Olsen on 26 November 2013 which resulted in a reduction of the applicant’s pain for five days before it returned. Dr Catherine Moore is a GP and is a Medical Advisor with the Health Professional Advisory Unit[5] (“HPAU”) in the Department of Human Services. After receiving a referral on 23 October 2013, she completed a report for the respondent noting that the first purpose of the report was to advise whether, during the relevant period, the applicant’s chronic pain from his facial condition and his depression were “permanent” as required under the Determination. Dr Moore’s opinion was that the applicant’s condition was permanent and, as noted above, this has been conceded by the respondent. Dr Moore concluded that the applicant’s depression could not be considered permanent because of an absence of a diagnosis by a clinical psychologist or a psychiatrist which is a requirement under the Impairment Tables.[5] For the role of the HPAU, see the Guide to Social Security Law at s 1.1.H.60. For use of the Guide, see paragraph 20 (below).

Decision

Reasons for decision

The applicant was qualified under s 94 of the Act for the disability support pension during the relevant period.DECISION The Tribunal sets aside the decision under review and substitutes its decision that the applicant is qualified for the disability support pension with effect from 27 September 2012.

Ratio Decidendi

Legal Principle Established

C’s opinion was that, within two years, the applicant would have a capacity to work for 30+ hours per week with medical interventions as well as DES and DMS services which would increase his capacity to manage the functional impact of his condition.CONSIDERATIONImpairment In the Determination, the meaning of “impairment”, the reference to “chronic pain” and the steps for selecting the appropriate Table read:3 Interpretation…Impairment means a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.…6 Applying the Tables…Assessing functional impact of pain(9) There is no Table dealing specifically with pain and when assessing pain the following must be considered:…(b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and…10 Selecting the applicable Table and assessing impairmentsSelection steps(1) Table selection is to be made by applying the following steps:(a) identify the loss of function; then(b) refer to the Table related to the function affected; then(c) identify the correct impairment rating.(2) The Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise.Single condition causing multiple impairments(3) Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.Example: A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function (Tables 2 and 3); brain function (Table 7); communication function (Table 8); and visual function (Table 12).(4) When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table. The Guide to Social Security Law (“the Guide”) provides case examples of table use for permanent conditions. The Guide is published by the respondent to provide assistance to those who administer the Act. While not bound to apply policy instructions of the kind referred to in the Guide, the Tribunal will usually apply the guidelines unless, unlike the situation here, there are cogent reasons in a particular case for not doing so.[6] Relevant to the assessment of chronic pain is s 3.6.3.07 of the Guide which reads:3.6.3.07 Case Examples of Table Use for Permanent Conditions[6] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645. Of the Tables identified therein, those of relevance in this matter are Tables 1 and 7. The selection of Tables comprises examples and does not purport to be exhaustive. I am also satisfied that Table 5 is relevant in this matter. Clearly, a rating may be allocated under either Table 1 or Table 7 but I am also reasonably satisfied that a rating may be allocated from both Tables provided that a separate loss of function is identified for each of those Tables.[7] That is in conflict with Dr Moore’s understanding of the operation of Tables 1 and 7 which would seem to be contrary to the clear wording of the Rules in the Determination. Dr Moore referred to a set of guidelines but these were not produced in evidence and their status is unknown. [7] See s 10(3) of the Determination (above).