Caita-Mandra and Secretary, Department of Social Services (Social services second review)

[2020] AATA 1971

Caita-Mandra and Secretary, Department of Social Services (Social services second review) [2020] AATA 1971 (25 June 2020)

Division: GENERAL DIVISION

File Number:           2019/4458

Re:Simon Caita-Mandra  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R West

Date:25 June 2020  

Place:Melbourne

The decision under review is affirmed.

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

Catchwords

SOCIAL SECURITY – disability support pension - effect of compensation preclusion period – program of support not undertaken – whether applicant has a severe impairment - chronic lower back pain - mental health condition - partial hearing loss -  obstructive urinary symptoms – whether conditions fully treated and stabilised in the qualification period – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Covenden and Secretary, Department of Social Services [2018] AATA 353
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
Negri v Secretary, Department of Social Services (2016) 246 FCR 1

Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

REASONS FOR DECSION

Member R West

25 June 2020

BACKGROUND

This matter concerns a review of the decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) dated 10 May 2019 affirming the decision of the Respondent to refuse the Applicant’s claim for the Disability Support Pension (DSP).

The relevant history of the matter is as follows:

·The Applicant made his original application for DSP on 30 August 2018.

·The Respondent assessed and refused the application on 16 September 2018. (Initial Decision).

·

An authorised review officer (ARO) affirmed this decision on

22 January 2019 (ARO Decision).

·A review of the ARO Decision was conducted by the Administrative Appeals Tribunal (Social Services & Child Support Division) (AAT1) and a decision affirming the ARO Decision was handed down on 10 May 2019.

·The Applicant applied for a Second Tier Review on 24 July 2019.

1. A hearing in relation to the Second Tier Review was held by telephone on 23 April 2020.  The Applicant was self-represented and had the assistance of a Romanian interpreter.  The Respondent was represented by Ms Voigt, a solicitor with Services Australia.

2. The hearing was conducted in the context of restrictions placed on the community in response to the COVID–19 virus pandemic.  These restrictions necessitated that the hearing not be conducted in person.  The Applicant and the Respondent each consented to the hearing proceeding on 23 April 2020 on the basis that it was conducted by telephone.

   LEGISLATION

3. The Tribunal has had regard to the following relevant legislation in making its decision:

   ·Social Security Act 1991 (the Act);

   ·Social Security (Administration) Act 1999 (the Administration Act);

   ·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) : a determination made by the Minister under s 26(1) of the Act which came into effect on 6 December 2011;

   ·Social Security (Active Participation for Disability Support Pension) Determination 2014; and

   ·Administrative Appeals Tribunal Act 1975.

   QUALIFICATION PERIOD

   A decision in relation to the granting of DSP must be made having regard to the Applicant’s condition in the period commencing on the day the application is lodged and the 13 weeks thereafter.  This is called the qualification period.[1]

   [1] See ss 37 and 42 and cls 3 and 4 of Schedule 2 of the Social Security (Administration) Act 1999.

   In this case the qualification period commenced on 30 August 2018 and ended on

   
   

   29 November 2018.

   In assessing whether a condition has stabilised and is likely to persist in the future, the Tribunal must look at the situation during the qualification period, having regard to the evidence.  Evidence of the Applicant’s condition subsequent to the qualification period is not relevant, save as to the weight the Tribunal might give to competing prognostications made about the Applicant’s condition during the qualification period.[2]

   [2] See Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 992 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133 at [33] and Re Covenden and Secretary, Department of Social Services [2018] AATA 353 at [7].

   DSP QUALIFICATION

   To qualify for a DSP an applicant must satisfy the requirements set out in s.94(1) of the Act as assessed during the qualification period.

   In essence s.94(1) of the Act requires that:

   ·the Applicant have a physical, intellectual or psychiatric impairment; and

   ·the Applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years; and

   ·the Applicant has a severe impairment (an impairment rating of at least 20 points on a single Impairment Table) or the Applicant’s impairments together rate at least 20 points on the Impairment Tables; and

   ·the Applicant has a continuing inability to work or the Secretary is satisfied that the Applicant is participating in the supported wage system.

   Section 94(2) of the Act provides that a person has a continuing inability to work because of an impairment if the person has a severe impairment or has actively participated in a program of support and the impairment is of itself sufficient to prevent the person from doing any work independently of the program of support or undertaking a training activity within the next two years.

   Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 provides that a person has actively participated in a program of support if they have participated in a program for at least 18 months in the three years immediately prior to the date of claim.

   CONSIDERATION OF THE EVIDENCE AND SUBMISSIONS

   In conducting the Second Tier Review the Tribunal has had regard to the documents produced by the Respondent pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T-Documents) and the oral evidence of the Applicant.

   The Applicant’s claim for the DSP is in relation to four conditions:

   a.chronic lower back pain;

   b.a mental health condition;

   c.partial hearing loss;[3] and

   [3] The Applicant confirmed at the hearing that his claim did rely on this condition notwithstanding that it was not referred to in his original claim or raised at the AAT 1 review.

   d.obstructive urinary symptoms.

   Preliminary Considerations

   (a)continuing inability to work

   To be eligible for a DSP an Applicant must, among other things, meet the requirements of either of paragraphs 94(1)(c)(i) or (ii) of the Act. Paragraph 94(1)(c)(ii), which relates to the supported wage system, is not relevant in the Applicant’s case.

   Paragraph 94(1)(c)(i) requires that the Applicant have a continuing inability to work, which is further defined by s.94(2). It has three separate requirements under ss.94(2)(aa),(a) and (b). Under s.94(2)(aa), eligibility for the DSP requires applicants who do not have a severe impairment to have actively participated in a program of support (POS). Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 provides that a person has actively participated in a program of support if they have participated in a program for at least 18 months in the three years immediately prior to the date of claim.

   The Applicant has not satisfied paragraph 94(2)(aa) of the Act in that he did not actively participate in a POS at all in the period of 36 months immediately preceding his application for the DSP.[4] The Applicant conceded that he did not meet the requirements of s.94(2)(aa) of the Act.

   [4] ST13 at p.292.

   Since the Applicant did not participate in a POS as defined, the Tribunal is effectively required to be satisfied that he had a severe impairment during the qualification period which was sufficient to prevent him from doing any work independent of a POS or undertaking a training activity during the following two years.  To satisfy the definition of a severe impairment under s.94(3B) the Applicant must have an impairment rating 20 points or more under a single Impairment Table.

   Accordingly, a principal issue for determination on review is whether any of the Applicant’s impairments attract a rating of 20 points or more under a single Impairment Table.

   (b)effect of compensation preclusion period

   On 21 January 2020, the Applicant entered into a deed of release with the Victorian Workcover Authority whereby he was to receive a lump sum compensation payment of $200,000 in settlement of his claim under the Victorian Workcover system.[5]  The Respondent was advised of the payment on 23 January 2020.[6]

   [5] ST6.

   [6] ST7.

   Section 1169 of the Act provides that a compensation affected payment, which is defined in s.17 to include a DSP, is not payable to a person in relation to any days in a lump sum preclusion period. On 6 February 2020, the Respondent determined, in accordance with s.1170 of the Act and Instruction 4.13.2.60 of the Social Security Guide that, by reason of the lump sum compensation payment, the Applicant was subject to a lump sum preclusion period from 25 November 2017 until 11 October 2019. The Respondent asserted that the effect of this determination was that a DSP was not payable to the Applicant during that period, which encompasses the qualification period. The Respondent argued further that s.37 of the Administration Act requires that before granting a claim for a DSP the Respondent must be satisfied that an applicant for a DSP is eligible to receive the DSP and that the DSP is payable. The Respondent asserted that a decision of the Tribunal to determine eligibility in this case would have no utility because the Respondent is bound to reject the Applicant’s claim because the DSP is not payable in the qualification period.

   The only matter before the Tribunal in this case is the determination of the Applicant’s eligibility for the DSP, and not questions related to the lump sum preclusion period or whether the DSP is payable during that period. If the Tribunal were to find that the Applicant was eligible for the DSP, it has the power under s.43(1)(c)(ii) of the AAT Act to set aside the AAT1 Decision and remit the matter to the Respondent for reconsideration. The issue of whether payment of the DSP should then be rejected because of the preclusion period would be a matter for the Respondent. In this regard the Tribunal observes that the preclusion period has now expired and the Respondent would need to consider whether there is any impediment to the payment of the DSP, should the Applicant be eligible, in the period following 11 October 2019. Accordingly, the Tribunal is satisfied that its decision to determine eligibility in this case would not lack utility.

   Consideration of the Claim

   Chronic lower back pain

   The Respondent accepts that the Applicant was diagnosed with a lumbar disc disease and facet joint arthritis but contends that the condition was not fully treated and fully stabilised during the qualification period.

   The Impairment Tables clearly state that an impairment cannot be assessed under any of the relevant tables unless it is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years.

   The Applicant was diagnosed by Mr Craig Timms, neurosurgeon, with lumbar canal stenosis at L4 and L5 in 2016 and he underwent a lumbar laminectomy on 2 May 2016.[7] A Job Capacity Assessment (JCA) report dated 5 March 2020 notes that the Applicant’s treating doctor, Dr Teh, confirmed that following the operation the Applicant continued to suffer from chronic lower back pain.[8]  The Applicant saw a pain specialist, Dr Tim Hucker, on 8 November 2017 who recommended that he undertake a pain management program which he thought would be of benefit to the Applicant.[9]  Mr Timms, in his report of

   [7] T9 at p.73.

   [8] ST10 at p.283.

   [9] T13 at p.78.

   
   

   18 December 2018,[10] confirmed that the Applicant had ongoing pain symptoms and noted that the Applicant was to have treatment at the Caulfield Pain Clinic and that hopefully they can give him greater control of his symptoms.

   [10] T31 at p.134.

   The Applicant attended the Caulfield Pain Clinic on 8 August 2018 for an initial consultation and he was referred to the Clinic’s SMART education session for the purpose of providing him with details of the Clinic’s services,[11] but the Applicant confirmed in his evidence that he did not commence the pain management program until 17 April 2019, well after the qualification period.  The program, facilitated by an occupational therapist and a physiotherapist, involved eight sessions of 1.5 hours duration with follow up activities and a six week post program review.[12]  The Applicant also gave evidence that he subsequently completed a second course in July/August 2019. 

   [11] T23 at p.91.

   [12] T41 at p.158.

   The JCA report of 5 March 2020 notes the Applicant’s treating doctor, Dr Anna Lu, had reported on 5 March 2020 that the Applicant’s chronic lower back pain was not fully treated within the qualification period as the Applicant was awaiting approval for further intervention including occupational therapy and physiotherapy assessments as well as a pain management program.  The JCA report notes that Dr Lu had stated that the Applicant could reasonably expect significant improvement with these interventions in the proceeding two years which would enable him to engage in light suitable part-time work of at least 15 hours per week.[13]

   [13] ST10 at p. 283.

   On the basis of this evidence, the Tribunal is satisfied that the Applicant’s chronic lower back pain was fully diagnosed but not fully treated or fully stabilised during the qualification period and as a result the impairment resulting from his condition cannot be assessed under the Impairment Tables.

   Mental health condition

   The Applicant was diagnosed with depression secondary to chronic back pain by Dr Robert Kruk on 10 April 2018.[14]  He recommend that the Applicant continue medication with the antidepressant Cymbalta 180 mg/day. The Respondent accepts that the Applicant’s mental health condition was fully diagnosed at the qualification period but asserts that it was not fully treated or fully stabilised.

   [14] T19 at pp.84-85.

   The JCA Report of 5 March 2020 notes Dr Lu’s opinion that the Applicant’s mental health was expected to significantly improve from pending pain management program intervention and that his condition was not fully stabilised during the qualification period.[15] 

   [15] ST10 at p.282.

   The Respondent relied on the recommendations of the Royal Australian and New Zealand College of Psychiatrists (RANZCP) clinical practice guidelines for mood disorders[16] which states, among other things, that patients with mild-moderate depression, moderate to severe depression and chronic depressive disorders be offered psychotherapy and, for the latter two, pharmacotherapy as a first line treatment.  These guidelines were reflected in the recommendations of the psychiatrist Dr Akinsola Akinbiyi who saw the Applicant on 18 June 2019.[17]  Dr Akinbiyi referred the Applicant to a psychologist for psychotherapy with regular review by a psychiatrist and prescribed Zoloft 100mg and Seroquel 25-100mg.

   [16] ST14 at p.325.

   [17] T42 at p.161-163.

   The Applicant confirmed in his evidence that by the qualification period he had only seen Dr Kruk on two occasions for the review of his condition and had not undertaken any psychotherapy.  The Applicant also confirmed that by the qualification period he had not tried any medication other than Cymbalta for his condition.  In addition, the Applicant confirmed that he had ceased taking Cymbalta between March and December 2018[18] as a break from taking medication, contrary to the recommendation of Dr Kruk.[19]

   [18] This was also confirmed by PBS records – T44 at pp.184-185.

   [19] See Dr Kruk’s report of 22 August 2018 at T25 which confirms that he had prescribed Cymbalta 180mg/day. 

   On the basis of this evidence the Tribunal is satisfied that the Applicant’s condition of depression secondary to chronic back pain was fully diagnosed at the qualification period.  However, by the qualification period the Applicant:

   a.had  ceased to take Cymbalta as prescribed by Dr Kruk;

   b.had not tried any alternative medication as he was subsequently advised to do by Dr Akinbiyi;

   c.had not undertaken psychotherapy as recommended by the RANZCP guidelines and Dr Akinbiyi; and

   d.had not yet undertaken a pain management program to address his underlying chronic back pain.

   On the basis of this evidence the Tribunal is not satisfied that the Applicant’s mental health condition was fully treated or fully stabilised during the qualification period and accordingly it is unable to assign an impairment rating to the Applicant’s mental health condition.

   Partial hearing loss

   The Applicant’s hearing loss condition was not considered in the AAT1 review.

   The Applicant’s hearing was assessed by Associate Professor Robert Briggs on 30 July 2018[20] and a diagnosis was given of bilateral hearing difficulty…mild conductive hearing loss in the right ear with more moderate to severe conductive and sensorineural loss in the left ear.

   [20] T22 at p.90.

   Ass. Prof. Briggs noted in his report that the Applicant had had bilateral ear surgery in the past and was to undergo further surgery on his left ear in August 2018 at the Royal Victorian Eye and Ear Hospital in the hope of improving the hearing in his left ear. The Applicant gave evidence that he had surgery on his left ear in 2018, but he could not recall who conducted the surgery or precisely when it was conducted.  He also said that at the time of the hearing he was awaiting further surgery on his right ear. Dr Lu’s medical certificate of 22 May 2019 notes that surgery on the Applicant’s right ear was pending.[21] There is no record of the Applicant having undergone ear surgery in 2018 in the T-Documents, although Dr Lu’s medical certificate of 16 August 2018 records that a middle ear operation at the Royal Victorian Eye and Ear Hospital was planned for 21 August 2018.[22] Interestingly, Dr Kruck’s report of 22 August 2018 makes no mention of an ear condition or that the Applicant was recovering from surgery.[23] The Applicant’s original claim for the DSP dated 27 August 2018 states that the Applicant was currently recovering from surgery to reconstruct hearing.[24]

   [21] T37 at p.149.

   [22] T24 at p.93.

   [23] T25 at p. 94.

   [24] T26 at p.121.

   On the basis of this evidence the Tribunal finds on the balance of probabilities, that the Applicant underwent surgery on his left ear on or about the 27 August 2018, but did not have the required surgery on his right ear before May 2019.

   A DSP Medical Assessment Recommendation dated 16 June 2018[25] notes that the Applicant’s hearing loss condition is not considered fully treated and stabilised as there is no evidence which confirms that the condition had been subject to specialist review by an audiologist/ENT and there were medical reports indicating impending audiology assessment with possible hearing aids.[26] The T-Documents do not include any report of a specialist review or anything to indicate that further consideration was given to the use of a hearing aid. Dr Lu’s medical certificates after May 2018 do not mention either a specialist review or questions regarding hearing aids.

   [25] T21 at p.88.

   [26] See Dr Lu’s medical certificates of 28 May 2018 (T20), 2 March 2018 (T18) and 8 December 2017 (T14).

   The JCA report of 5 March 2020[27] records that Dr Lu advised the JCA that at the qualification period the Applicant was awaiting surgery and that the Applicant’s condition was not fully treated and stabilised during the qualification period.

   [27] ST10 – see also ST11 at p.289.

   On the basis of this evidence, the Tribunal is satisfied that the Applicant has a fully diagnosed condition of bilateral hearing difficulty…mild conductive hearing loss in the right ear with more moderate to severe conductive and sensorineural loss in the left ear, and immediately prior to the qualification period he underwent surgery to his left ear.  The Tribunal is not satisfied that during the qualification period the outcome of the Applicant’s left ear surgery was reviewed by an appropriate specialist; that issues with his right ear were addressed or that proper consideration was given to the appropriateness of a hearing aid or other treatment.

   Accordingly, the Tribunal finds that the Applicant’s hearing loss condition was not fully treated or fully stabilised during the qualification period and as a result the impairment resulting from his condition cannot be assessed under the Impairment Tables.

   Obstructive urinary symptoms

   The Applicant described his urinary problems as having arisen following back surgery in May 2016.  He said he passes only a small amount of urine at a time and needs to press on his stomach in order to urinate. Dr Lu’s medical certificates first mention a urinary condition on 6 November 2019.[28] His certificates prior to that date make no mention of it. Dr Lu described the condition as trouble passing urine, has to push his bladder to pass urine, and indicated review by a urologist. The T-Documents do not include any document to indicate that the Applicant has seen a urologist.

   [28] ST2 at p.244.

   There is no indication that the Applicant’s urinary condition was assessed or diagnosed during the qualification period, or that it has been treated at all, and as a result the condition cannot be assessed under the Impairment Tables.

   CONCLUSION

   While the Tribunal is satisfied that the Applicant satisfies s.94(1)(a) of the Act in that he has a physical, intellectual or psychiatric impairment, it is not satisfied that he meets the requirements of ss.94(1)(b) or (c) of the Act. The Applicant’s impairments cannot be assessed under the Impairment Tables, and therefore do not meet the required 20 points under s.94(1)(b). In addition, the Applicant does not satisfy the requirement under s.94(1)(c)(i) that he have a continuing inability to work.  He does not have a severe impairment within the meaning of s.94(3B) and has not participated in a POS within the meaning of s.94(3C), as required by s.94(2)(aa).

   The Tribunal therefore finds that the Applicant is not eligible for the DSP.

   DECISION

   The decision under review is affirmed.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Member R West

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

Associate

Dated: 25 June 2020

Dates of hearing:	23 April 2020
Applicant:	Self-represented
Solicitors for the Respondent:	Services Australia