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

Cameron and Secretary, Department of Social Services (Social services second review) [2017] AATA 1383 (28 August 2017)
Division:GENERAL DIVISION
File Number: 2017/0409
Re:Craig Cameron
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:28 August 2017
Place:Brisbane

The Tribunal affirms the decision under review.
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Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Member D K Grigg
28 August 2017
INTRODUCTION

Mr Cameron has been a recipient of the Disability Support Pension (“DSP”) since 2008 for lower limb deficiencies, fractures and crush injuries.[1] However, on 25 May 2016, after a medical review, Mr Cameron’s DSP was cancelled by the Department of Human Services (Centrelink).[2]
[1] Exhibit 1, T Documents, T9, page 82, Centrelink records.
[2] Exhibit 1, T Documents, T5, page 50, Letter from Centrelink to Mr Cameron dated 25 May 2016.
Claim History
Mr Cameron sought a review of that decision by an Authorised Review Officer (“ARO”).[3] The subsequent review by the ARO was unsuccessful on the grounds that Mr Cameron’s medical conditions did not attract 20 points or more under the Impairment Tables and that he did not have a continuing inability to work.[4]
[3] Exhibit 1, T Documents, T8, page 66, Centrelink records.
[4] Exhibit 1, T Documents, T6, pages 52 – 60, Decision of ARO dated 16 June 2016.
Mr Cameron then lodged an application for review with the Social Services and Child Support Division (“SSCSD”).[5] The SSCSD rejected Mr Cameron’s claim and affirmed the ARO’s decision on 17 January 2017.[6]
[5] Exhibit 1, T Documents, T7, pages 61 – 62, AAT first review request dated 6 July 2016.
[6] Exhibit 1, T Documents, T2, pages 2 – 9, SSCSD’s Decision and Reasons for Decision dated 17 January 2017.
Mr Cameron has sought a review of the SSCSD’s decision by this Tribunal.[7]
[7] Exhibit 1, T Documents, T1, page 1, Mr Cameron’s Application for Review dated 23 January 2017.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mr Cameron must have a physical, intellectual or psychiatric impairment;
(b)Mr Cameron’s impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[8]
(c)Mr Cameron must have a continuing inability to work.
[8] A legislative instrument made under the Act: see s 26(1).
Pursuant to section 80 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) the Secretary may cancel a person’s social security payment if that person was not qualified for the payment.
A decision made under section 80 is an “adverse determination” within the meaning of s 118(13) of the Administration Act, which provides that such a decision “takes effect on the day on which it is made”.[9]
[9] See also Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342.
Therefore, in order to qualify for the DSP, Mr Cameron must have met the Section 94 Requirements at the date of the decision to cancel the DSP, that is, on 25 May 2016 (“Qualification Date”).
DID MR CAMERON HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[10]
Mr Cameron’s medical conditions
[10] Determination, s 3.
Knees and Hips and Back
Mr Cameron had a hip replacement in December 2000.[11]
[11] Exhibit 1, T Documents, T10, p.185 and T21, page 139.
Mr Cameron was diagnosed with osteoarthritis in his right knee in February 2008.[12]
[12] Exhibit 1, T Documents, T12, page 95, x-ray report dated 4 February 2008.
In April 2008 an x-ray of Mr Cameron’s left wrist, pelvis and hips found that there was an un-united fracture in the left wrist, and, some ossification and small rounded calcification of Mr Cameron’s pelvis.[13]
[13] Exhibit 1, T Documents, T 13, page 96, x-ray report dated 1 April 2008.
In May 2008 Mr Cameron informed Centrelink that he had:[14]
(a)broken his wrist in the past;
(b)a total hip replacement;
(c)bad knees;
(d)depression; and
(e)bad pain.
[14] Exhibit 1, T Documents, T 15, pages 99 – 106, medical information from DSP claim dated 26 May 2008.
Dr Devadason provided a medical report in May 2008 confirming that Mr Cameron had osteoarthritis in his right knee.[15] No other medical conditions were listed in that report.
[15] Exhibit 1, T Documents, T 16, pages 107 – 114, medical report by Dr Devadason dated 26 May 2008.
On 30 May 2008, a Job Capacity Assessment (“JCA”) report concluded that Mr Cameron’s lower limb deficiencies, relating to his hip replacement and osteoarthritis in the right knee, attracted an impairment rating of 20 points and was a severe impairment.[16]
[16] Exhibit 1, T Documents, T 17, pages 115 – 120, JCA report dated 17 June 2008.
In April 2009 Mr Cameron commenced chiropractic treatment for his chronic low back pain and chronic right midthoracic pain. Ms Mary Bausbacher, Doctor of Chiropractic, reported that his response to treatment was favourable with most of the thoracic pain resolved.[17]
[17] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 7 June 2017, attachment A, report of
Mary Bausbacher dated 1 September 2009.
In November 2014 Dr Benjamin Omowaire, General Practitioner, reported that Mr Cameron was in hospital suffering from temporary mechanical lower back pain which was causing severe lower back pain, low back muscle spasm and a profound restriction on movement.[18]
[18] Exhibit 1, T Documents, T19, page 127, Medical certificate of Dr Omowaire dated 11 November 2014.
Mental Health
In April 2013 Mr Cameron was admitted to hospital pursuant to an Involuntary Treatment Order and a “working diagnosis” of “paranoid psychosis…possibly due to amphetamine use [or] due to [a] first episode of schizophrenia”.[19] Hospital records also indicate a “principal diagnosis” of “paranoid schizophrenia/delusional disorder/multidrug abuse” and that Mr Cameron had had ongoing paranoid delusions since 2010.[20]
[19] Exhibit 1, T Documents, T 18, pages 121 – 122, report of Dr Alistair Gilbert, Staff Specialist Psychiatrist, dated 26
November 2013.
[20] Exhibit 1, T Documents, T 18, pages 123 – 124, hospital records dated 23 August 2013.
At Centrelink’s request, a medical review of Mr Cameron was conducted in 2016. Dr Omowaire, Mr Cameron’s general practitioner at that time, reported that:[21]
(a)Mr Cameron was symptomatically in remission at that time and that the future planned treatment was ongoing special psychiatric care and that he may need rehabilitation in hospital;
(b)Mr Cameron suffers from paranoia and erratic symptomology and he is easily troubled with delusions of persecution;
(c)Mr Cameron’s mental health conditions were expected to persist for more than 24 months;
(d)the disorder is categorized with a cycle of remission and relapse; and
(e)the effect of this condition on Mr Cameron’s ability to function within the next 2 years is expected to fluctuate.
[21] Exhibit 1, T Documents, T 21, pages 133 – 142, medical review report by Dr Omowaire dated 24 February 2016.
Subsequent to the cancellation of Mr Cameron’s DSP, Dr Omowaire provided a further medical report. Dr Omowaire reports that Mr Cameron’s paranoid psychosis and schizophrenia was fully diagnosed, treated and stabilised since 2013 according to psychiatrist report of Dr Gilbert dated 26 November 2013.[22]
[22] Exhibit 2, Secretary's statement of facts issues and contentions dated 7 June 2017, attachment a, report of Dr
Omowaire dated 29 December 2016.
Conclusion on Impairment
The Secretary accepts that Mr Cameron suffers from impairments for the purposes of section 94(1)(a) at the Qualification Date.[23]
[23] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 7 June 2017, para [21].
Considering the above evidence, I conclude that at the Qualification Date Mr Cameron suffered Impairments, namely a Mental Health Impairment (paranoid schizophrenia, delusional disorder and multi drug use) and polyarticular degeneration (knees and hips), for the purposes of the Act and that the requirement in section 94(1)(a) has been met.
At the hearing, Mr Cameron told the Tribunal he also has sleep apnoea and a broken wrist.
There is an x-ray report and hospital record indicating that Mr Cameron is suffering from wrist pain because of an old scaphoid fracture.[24] However, the hospital records indicate that at the time of the fracture Mr Cameron was offered wire treatment but he declined and was then lost to follow-up.[25] Hospital records also indicate that despite the shooting pain up his arm and worsening wrist pain, Mr Cameron is still able to move his wrist normally. An Employment Services Assessment conducted in December 2015 reported that Mr Cameron said he is going to have surgery on his left wrist in the future but that he was not currently on any waiting list.[26] However there is no corroborating medical evidence to indicate what treatment, if any, is recommended and if that treatment would result in any improvement, or rather lessen the pain,that Mr Cameron experiences. Therefore, this condition cannot be considered for the purpose of this DSP application.
[24]         Exhibit 2, Secretary's statement of facts issues and contentions dated 7 June 2017, pages 16-17, X-ray report
dated 3 April 2017 and Medical Certificate of Dr Taylor dated 2 May 2017.
[25]         Exhibit 2, Secretary's statement of facts issues and contentions dated 7 June 2017, page 15, Hospital records.
[26]         Exhibit 1, T Documents, T-20, page 129, employment services assessment report dated 22 December 2015
In relation to the sleep apnoea, there is no corroborating medical evidence regarding this condition. Further, Dr Omawaire makes no reference to sleep apnoea in his December 2016 report. Without any corroborating evidence, this condition cannot be considered for the purpose of this DSP application.
DOES MR CAMERON’S IMPAIRMENT ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[27] They are function based[28] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[29]
[27] Determination, s 4(2) and 5(2)(a).
[28] Determination, s 5(2)(b) and (c).
[29] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[30]
(a)Mr Cameron’s condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[30] Determination, see s 6(3).
Mr Cameron’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[31]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[31] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[32] the following must be considered:[33]
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[32] For the purposes of ss 6(4)(a) and (b) of the Determination.
[33] Determination, see s 6(5).
A condition is fully stabilised[34] if:[35]
(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 2 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 2 years is not expected to result, even if the person undertakes reasonable treatment[36]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[34] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[35] Determination, see s 6(6).
[36] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
However, before applying the Tables I must first consider Mr Cameron’s medical history, in relation to the condition causing the Impairments.[37]
[37] Determination, see s 6(2).
IS MR CAMERON’S MENTAL HEALTH IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
Table 5 of the Determination, which relates to mental health function, specifically provides that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist with evidence from a clinical psychologist, if the diagnosis has not been made by a psychiatrist). Without such a diagnosis no Impairment Rating can be assigned.
On 10 May 2016, a Job Capacity Assessment (“JCA”) was conducted face-to-face with Mr Cameron by a Mental Health Nurse and Registered Occupational Therapist (“2016 JCA”). The JCA assessors’ report states that Mr Cameron’s paranoid schizophrenia and delusional disorder was not fully treated, diagnosed and stabilised because of an absence of any recent psychiatric information regarding the confirmed diagnosis and treatment.[38]
[38] Exhibit 1, T Documents, T22, pages 143-148, JCA Report dated 17 May 2016.
The Secretary submits that Mr Cameron’s mental health conditions were not fully diagnosed, fully treated and fully stabilised at the Qualification Date because Dr Gilbert’s report only refers to a working diagnosis and is not a full diagnosis of Mr Cameron’s condition.[39] Further, the Secretary contends that Dr Gilbert clearly recommends management of Mr Cameron’s medication regime when he states that “is he is to continue on the Involuntary Treatment Order as he is weaned completely off paliperidone”.[40] Secretary submits that without further evidence of psychiatric review or additional evidence of a clinical psychologist the Secretary contends the condition has not been fully diagnosed fully treated and stabilised as at the Qualification Date.[41]
[39]         Exhibit 2, Secretary’s Statement of Facts Issues and Contentionsdated 7 June 2017, para 24.
[40]         Exhibit 2, Secretary’s Statement of Facts Issues and Contentions dated 7 June 2017, para 25.
[41]         Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 7 June 2017, para 26.
Mr Cameron told the Tribunal that Dr Gilbert conducted a further assessment a few months ago and that Dr Omawaire had referred him to a clinical psychologist. However, there is no corroborating evidence of this. I also note that any diagnosis made by Dr Gilbert a few months ago would also be approximately one year after the Qualification Date.
Dr Omawaire reported in February 2016 that Mr Cameron’s paranoid schizophrenia was long-standing but that seems to be based on the “working diagnosis” of Dr Gilbert.[42]
[42]Exhibit 1, T Documents, pages 133-142, Medical Review Report by Dr Omowaire dated 24 February 2016.
In December 2016 Dr Omawaire reported that Mr Cameron:[43]
(a)has “angered mood disturbance issues” which have resulted in a few hospital attendances “with no change in management”; and
(b)was weaned off all treatment (as recommended by Dr Gilbert) in 2013.
[43] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 7 June 2017, page 2, Report of Dr
Omawaire dated 29 December 2016.
There is evidence, in April 2017, that Mr Cameron has been prescribed anti-depressants.[44]
[44] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 7 June 2017, page 15, Hospital Records
dated 3 April 2017.
There is no indication of any final or conclusive diagnosis of Mr Cameron’s mental health issues. Nor has there been any treatment for the conditions since 2013. In the circumstances, the Tribunal is unable to find that Mr Cameron’s mental health issues have been fully diagnosed, treated and stabilized. This is not to diminish Mr Cameron’s condition or the impact these conditions must be having on his day-to-day existence.
Based on a lack of corroborating medical evidence, I find that as at the Qualification Date Mr Cameron’s Impairment was not permanent for the purpose of the Act and no impairment rating can be assigned.
IS MR CAMERON’S POLY ARTICULAR DEGENERATION (KNEES AND HIPS) IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
The medical evidence supports a finding that Mr Cameron’s osteoarthritis in his right knee, and united fracture in his left wrist, and ossification and calcification of his pelvis were fully diagnosed in 2008.[45]
[45] Exhibit 1, T Documents, T12, page 95, x-ray report dated 4 February 2008; T 13, page 96, x-ray report dated 1 April
2008.
On 2016 JCA report states that Mr Cameron’s lower limb deficiencies are not fully treated, diagnosed, and stabilised because there is insufficient information to determine whether the condition has been optimally and reasonably managed. The JCA noted that Dr Omawaire reported that his current treatment was analgesics, physiotherapy and chiropractic treatment and that the future treatment was conservative management. However, Mr Cameron had previously reported that he may need another hip replacement but that he was not currently on a waiting list to see an Orthopaedic Surgeon.[46]
[46] Exhibit 1, T Documents, T22, pages 143-148, JCA Report dated 17 May 2016.
Dr Omowaire reports that Mr Cameron’s lower limb deficiencies are fully diagnosed, treated and stabilised but that his lower limb deficiencies have led to persisting chronic spinal musculoskeletal pain (due to leg length inequality resulting after the total hip replacement surgery).[47]
[47] Exhibit 2, Secretary's statement of facts issues and contentions dated 7 June 2017, attachment a, report of Dr
Omowaire dated 29 December 2016.

The Secretary submits that Mr Cameron’s Poly Articular Degeneration (Knees And Hips) Impairment were not fully treated and fully stabilised at the Qualification Date because:[48]
(a)the chiropractor, Ms Bausbacher reported in September 2009 that Mr Cameron was to commit to some gym exercise but that he may not have undertaken any;
(b)Dr Omawaire’s oral evidence to the AAT first review was that he was not aware if Mr Cameron had any physical treatment since 2009.
[48] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 7 June 2017, para 27.
In 2008 Dr Devadason reported that the impact of Mr Cameron’s osteoarthritis in his right knee was expected to persist for more than 24 months but that the effect of the condition on the patient’s ability to function was expected to fluctuate and deteriorate and was uncertain.[49]
[49] Exhibit 1, T Documents, T 16,pages 107-114, Medical Report of Dr Devadason dated 26 May 2008.
A JCA conducted in June 2008 reported that Mr Cameron’s General Practitioner confirmed the severity of the symptoms and that no intervention was likely in the near future due to Mr Cameron’s young age and that therefore the condition was to be treated conservatively only.[50]
[50] Exhibit 1, T Documents, T 17, pages 115-120, JCA report dated 17 June 2008.
An Employment Services Assessment conducted in December 2015 reported that Mr Cameron said he needed another hip replacement and that he was waiting to see a private surgeon who performed his original replacement surgery. The JCA also reported that Mr Cameron said he was not engaged in any treatment and was not currently on a waiting list to see a surgeon.[51]
[51] Exhibit 1, T Documents, T-20, page 129, employment services assessment report dated 22 December 2015
In February 2016 Dr Omawaire reported that Mr Cameron was currently being treated with analgesics, physiotherapy and chiropractor management. Dr Omawaire indicated that the future planned treatment was conservative management and that the impact of the condition was expected to persist for more than 24 months and that its impact on Mr Cameron’s ability to function within the next 2 years was expected to be uncertain and likely to deteriorate.[52]
[52] Exhibit 1, T Documents, T 21, pages 133 – 142, Medical Review Report of Dr Omawaire dated 24 February 2016.
Other than the chiropractic treatment in 2009, there is no other evidence regarding Mr Cameron’s compliance with recommended treatment or whether he has had any physical treatment since 2009. As a result, I am unable to find that this impairment has been fully treated.
Therefore, I am unable to assign an Impairment Rating.
DID MR CAMERON HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
As I have concluded that Mr Cameron’s Impairments were not permanent at the Qualification Date it is unnecessary for me to consider whether Mr Cameron had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) at that time.
CONCLUSION
Mr Cameron’s claim fails. His impairments were not permanent at the Qualification Date and as a result, he did not qualify for DSP at the Qualification Date.
The decision under review is affirmed.
Mr Cameron can, of course, reapply for the DSP, once his mental health conditions have been fully diagnosed, treated and stabilised and are corroborated by medical evidence.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

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Associate
Dated: 28 August 2017

Date of hearing: 17 August 2017

Applicant: By Phone

Solicitors for the Respondent: Department of Human Services

[2017] AATA 1383

28 August 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Date of hearing:	17 August 2017
Applicant:	By Phone
Solicitors for the Respondent:	Department of Human Services