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

[2016] AATA 968

Campbell and Secretary, Department of Social Services (Social services second review) [2016] AATA 968 (30 November 2016)

Division	GENERAL DIVISION
File Number	2016/3284
Re	Noel Campbell
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A Poljak
Date	30 November 2016
Place	Sydney

The reviewable decision, being the decision of the Social Security and Child Support Division of the Administrative Appeals Tribunal dated 25 May 2016, is affirmed.

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

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – disability support pension – eligibility – relevant period – physical intellectual or psychiatric impairments – whether impairments rate 20 points under Impairment Tables – whether conditions fully diagnosed, treated and stabilised – depression and anxiety - bilateral shoulder pain - osteoarthritis - back pain - ischaemic heart disease - decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) s 42

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member A Poljak

30 November 2016

INTRODUCTION

1. Mr Campbell seeks review of a decision made by the Social Services and Child Support Division of this Administrative Appeals Tribunal (“SSCSD”) on 25 May 2016. The SSCSD affirmed a decision to reject Mr Campbell’s claim for the disability support pension (“DSP”) which was lodged on 7 August 2015.

2. Mr Campbell’s claim for DSP was rejected on the basis that he did not satisfy the eligibility criteria set out in section 94 of the Social Security Act 1991 (Cth) (“the Act”). Section 94 of the Act provides that to qualify for payment, a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”); and a continuing inability to work as defined in the Act.

3. For Mr Campbell to qualify for DSP, he had to satisfy these criteria on 7 August 2015, when he applied for the DSP, or within the following 13 weeks, that is, by 6 November 2015 pursuant to section 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (“the relevant period”).

4. The Secretary contends that the medical evidence does not support a finding that Mr Campbell was qualified for DSP during the relevant period.

5. The Secretary accepts that Mr Campbell suffered from a number of conditions during the relevant period. He therefore satisfies section 94(1)(a) of the Act.

6. The issue for determination in these proceedings is whether the conditions were fully diagnosed, treated and stabilised during the relevant period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.

   IMPAIRMENT TABLES

7. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in section 3 to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”. 

8. Subsections 6(3) and 6(4) provide that impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has being fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated; fully stabilised; and it will more likely than not, persist for more than two years.

9. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, subsection 6(5) instructs that a decision- maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.

10. For the purposes of the Impairment Tables, subsection 6(6) defines fully stabilised to mean:

    (a)...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; or

    (ii)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.

11. The Macquarie Dictionary defines undertaken as, inter alia, committing oneself to, taking on, and promising to do a particular thing. I am of the view that to undertake something, there is a level of commitment to see it through.

12. Reasonable treatment is defined in subsection 6(7) as treatment that:

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

13. Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each table and a rating cannot be assigned between consecutive impairment ratings. Significantly, section 11(1)(c) provides:

    (c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (emphasis added)

    Mental Health Condition

14. Table 5 of the Impairment Tables is to be used when a person has a permanent mental health condition resulting in functional impairment. Self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment.

15. The Introduction to Table 5 of the Impairment Tables provides (inter alia):

    The diagnosis of the 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). (emphasis added)

16. In other words, before functional impact is to be assessed I must be satisfied that the condition is fully diagnosed, fully treated and fully stabilised during the relevant period.

17. In these proceedings, Mr Campbell provided a number of additional medical reports in support of his application for DSP. Significantly, in regards to his mental health condition, Mr Campbell provided a psychological assessment report, performed by Mr Paul Gertler, a clinical psychologist, dated 24 April 2003. The assessment report specifies that Mr Campbell is diagnosed with Acute Adjustment Disorder, with Anxiety and Depressed Mood. The Secretary cavils with the specific wording of the diagnosis and says that it cannot be accepted because it differs from the wording used by other medical practitioners. However, in her report dated 28 April 2016 Silvana Giorgi, a clinical psychologist, opines that Mr Campbell has a diagnosis of Major Depressive Disorder and Generalised Anxiety Disorder. Based on this evidence I am satisfied that Mr Campbell’s mental health condition (depression and anxiety) was fully diagnosed during the relevant period.

18. I am not, however, satisfied that his mental health condition was fully treated and fully stabilised during the relevant period for the following reasons.

19. Silvana Giorgi, in her report dated 28 April 2016, states that Mr Campbell:

    reported an increase in his symptoms of depression over the last year due to multiple stressors including health issues, relationship breakdown and financial difficulties. He has been treated by antidepressant medication which has been increased and he is currently undergoing psychological counselling with Mr Adam Wiseman, Psychologist.

20. Dr Marsh stated in her report dated 10 September 2016, that:

    subsequent to the marital separation in early August 2015 he required increased dosage of medication and referral for psychological treatment.

21. It is plain from this evidence that during the relevant period Mr Campbell’s symptoms increased or changed and required further treatment. Since I’m not satisfied that his mental health condition (depression and anxiety) was fully treated and stabilised during the relevant period, it cannot be assigned an impairment rating under the Impairment Tables.

    Bilateral Shoulder Pain

22. The Secretary accepts that Mr Campbell’s bilateral shoulder pain was fully diagnosed, fully treated and fully stabilised during the relevant period.

23. In the Job Capacity Assessment Report (“JCA”) dated 13 November 2015, it is noted that there is no functional impact on activities using hands or arms and that Mr Campbell was able to pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.

24. In his report dated 8 February 2016, Mr Meere (physiotherapist) opines that due to the pain and stiffness in Mr Campbell shoulders “he is unable to do any lifting over 5 kg above shoulder height or any repetitive arm movements”.

25. In the proceedings before the SSCSD, it is noted that Mr Campbell can use a pen and a computer keyboard without restriction.

26. There is no evidence before me to suggest that Mr Campbell has difficulty with most of the descriptors, warranting a rating of five points, contained in Table 2 of the Impairment Tables. It follows that in regards to functional impairment as a result of Mr Campbell’s bilateral shoulder pain; I find that a rating of nil under Table 2 of the Impairment Tables is warranted.

    Osteoarthritis of both hips

27. The Secretary accepts that Mr Campbell’s osteoarthritis of both hips was fully diagnosed, treated and stabilised during the relevant period.

28. The JCA report dated 21 October 2015, records that Mr Campbell has some difficulty climbing stairs and has to use the handrail. He says he can no longer climb ladders or do any building work. It is also noted that Mr Campbell can mobilise effectively but needs to use a walking aid on occasion and can stand for about 10 to 20 minutes.

29. In the proceedings before the SSCSD, Mr Campbell reported having ongoing problems with his hips and his daily function is affected. It is noted that he could use stairs with a handrail and used a walking stick when needed to walk around. It is noted that Mr Campbell’s pain is constant and standing is limited to about 10 minutes. He can use public transport and does grocery shopping when required. He walks daily and swims up to twice per week.

30. I am satisfied that the evidence clearly indicates that there is mild functional impact arising from the lower limb condition. However I am not satisfied that Mr Campbell’s condition of osteoarthritis of both hips was fully treated and stabilised during the relevant period. This is based on the evidence of Dr Marsh, in a letter dated 10 September 2016, in which she states that Mr Campbell’s condition was not stabilised on 7 August 2015. She said:

    Mr Campbell has undergone a left total hip replacement in 2007 and revision surgery in 2011 which was necessary because of failure of the device causing severe pain and elevated levels of chromium and cobalt associated the metal on metal design of the device. Unfortunately he has ongoing pain and restriction in range of movement of left hip. He also has progressive osteoarthritis of his right hip for which he will be undergoing hip replacement shortly. It is uncertain if he can undergo a third left hip operation in the future.

31. Since I am not satisfied that Mr Campbell’s condition of osteoarthritis of both hips was fully treated and stabilised during the relevant period, it cannot be given an impairment rating under the Impairment Tables.

    Back pain

32. The Secretary accepts that Mr Campbell’s back pain was fully diagnosed, fully treated and fully stabilised during the relevant period.

33. In the JCA report dated 21 October 2015, it is recorded that Mr Campbell could turn his neck from side to side but stated that the range of motion was reduced. He said that he could look up and down and demonstrated during the assessment that he could turn his neck from side to side (but there was limitation) and that he could look up and down. It is also recorded that Mr Campbell swam regularly (a few times per week) and could do freestyle and breaststroke.

34. In the proceedings before the SSCSD, Mr Campbell stated that he had restriction on bending over and was unable to do so fully, such as to touch his toes. It is recorded that his exercise activity consisted of swimming pool laps once or twice each week and walking daily to the end of the street and back.

35. Having regard to the evidence and the descriptors in Table 4 of the Impairment Tables, I am satisfied that Mr Campbell’s back pain would warrant a nil rating under Table 4 of the Impairment Tables.

    Ischaemic Heart Disease (IHD)

36. The Secretary accepts that Mr Campbell’s IHD was fully diagnosed, treated and stabilised during relevant period.

37. There is no evidence before me to suggest that there is any functional impact on Mr Campbell’s daily activities as a result of this condition. It follows that an impairment rating cannot be assigned under Table 1 of the Impairment Tables.

    CONCLUSION

38. Since Mr Campbell’s conditions do not rate 20 or more points under the Impairment Tables, it is not necessary for me to consider whether he had a continuing inability to work during the relevant period. It follows that his claim for DSP cannot succeed.

39. I affirm the decision under review. 

40. Mr Campbell may apply for DSP again at any time.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak.

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

Associate

Dated 30 November 2016

Date of hearing	23 November 2016
Date final submissions received	23 November 2016
Applicant	By phone
Solicitors for the Respondent	Ms J Eslick; Department of Human Services