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

Chapman and Secretary, Department of Social Services (Social services second review) [2019] AATA 2714 (19 August 2019)
Division:GENERAL DIVISION
File Number(s): 2018/5658
Re:Paul Chapman
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:19 August 2019
Place:Sydney

The decision under review is affirmed.
.................[sgd].......................................................
Mr S Evans, Member
CATCHWORDS
SOCIAL SECURITY – eligibility for disability support pension – whether impairments fully diagnosed, fully treated and stabilised – whether applicant has an impairment rating of 20 points or more under the Impairment Tables – mental health condition – bilateral epicondylitis and tendonitis – angina pectoris – diabetes – hypertension – hyperlipidaemia – applicant unable to satisfy the qualification criteria under s 94 of Social Security Act 1991 – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Fanning and Secretary Department of Social Services [2014] AATA 447
SECONDARY MATERIALS
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr S Evans, Member
19 August 2019
INTRODUCTION

Paul Chapman is the applicant in these proceedings. On 12 December 2017 Mr Chapman, made a claim for the disability support pension (DSP).
In his DSP application, Mr Chapman stated he is suffering from the following conditions:
(i)Anxiety and depression
(ii)Epicondylitis
(iii)Personality disorder
(iv)Angina pectoris
(v)Coronary artery disease
(vi)Hyperlipidaemia
(vii)Hypertension
Mr Chapman’s claim was rejected by the Department of Human Services (also known as “Centrelink”) on 2 March 2018 on the grounds that his conditions were not fully treated and stabilised. That decision was affirmed on internal review on 2 July 2018. Mr Chapman applied to have the matter considered by the Social Services & Child Support Division of the Tribunal (AAT1) which affirmed the decision on 4 September 2018.
Mr Chapman seeks a review of the decision of the Social Services & Child Support division.
This matter was heard by the Tribunal in Sydney on 24 June 2019. Mr Chapman attended the hearing in person and provided oral evidence to the Tribunal; he did not have legal representation.
For the reasons that follow, the decision under review is affirmed.
BACKGROUND
Mr Chapman was a recipient of DSP between 12 November 2002 and 2 January 2014 when he was precluded due to periodic compensation from WorkCover. Mr Chapman’s worker’s compensation benefits ceased on 25 December 2017[1]. In anticipation of his compensation payments ceasing Mr Chapman made an application for DSP.
[1] T-documents, p. 143.
Mr Chapman testified before the Tribunal and his articulate and self-aware testimony included background to his current circumstances. He explained to the Tribunal that he was injured in a workplace accident in 1993. He was working at Fort Denison carrying sheets of plywood. During his shift the wind caught a piece of the wood he was carrying and pulled it away from his arms. Mr Chapman’s arms were pulled forward through this motion. He continued working throughout the day but when he went to work the following day he said that ‘things just weren’t right’ with his arms. Mr Chapman was placed on light duties for three days and received physiotherapy and cortisone injections on his arms.
In 1998 he ceased using drugs and alcohol and became sober. He saw a counsellor for a long period and was provided support in his sobriety by other people over a period of 15 years. He used to go to group recovery meetings but does not attend these regularly any longer.
He is firmly of the view that his combined physical and mental impairments mean he is unable to work. Mr Chapman’s most recent work experience was a brief trial as a service station attendant in 1996.
LEGISLATIVE FRAMEWORK
Qualification for disability support pension
DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week. In order to qualify for the DSP, Mr Chapman must first have one or more physical, intellectual or psychiatric impairments. Second, these impairments must be rated at least 20 points or more under the Impairment Tables contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables). Third, Mr Chapman must have a continuing inability to work.
In the interests of completeness I will detail the relevant sections of the Social Security Act 1991 (Cth) (the Act), but in these terms the eligibility criteria can be daunting and complicated. Noting that the complexity of the eligibility criteria means that any summary risks a degree of oversimplification, in essence to be eligible for DSP, at the time of qualification, normally from the date of application and for 13 weeks after, an applicant must:
(i)Have had conditions which are “permanent”. Permanent in this context means the conditions were fully diagnosed by an appropriate medical practitioner, fully treated, fully stabilised and likely to persist for more than two years.
(ii)For a condition to be “fully stabilised”, generally the person must have undertaken reasonable treatment for the condition and there is no expectation that significant improvement to a level enabling to person to undertake work in the next two years is not expected.
(iii)If a condition meets these requirements, (meaning it is deemed permanent as it has been diagnosed, treated and stabilised), the medical conditions can be assigned a rating against the Impairment Tables which are designed to determine the level of functional impact of an impairment.
(iv)If an applicant is assigned an impairment rating of 20 points or more against the relevant Impairment Tables, they may qualify for the DSP.
(v)If the impairment rating included at least 20 points under a single Impairment Table, the applicant has a “severe” impairment.
(vi)If the impairment rating is of 20 points or more but from more than one Impairment Table, the applicant may be required to have completed a program of support (POS) or have actively participated in such a program for at least 18 months in order to qualify for the DSP.
Legislation
The qualifying requirements for the DSP are set out in section 94(1) of the Act. It must be established that:
(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;
ii.the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;
In relation to section 94(2) of the Act, a person has a ‘continuing inability to work’ if the impairment prevents the person from:
(a) …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.
Under section 94(3B) of the Act, participation in a POS is not required if the person has a severe impairment of 20 points or more under a single impairment table. The examples provided in this section encompass three scenarios:
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.
Where a person’s impairment is not a severe impairment, however, they must have actively participated in a POS. Active participation in a POS generally means participation for 18 months in the 36 months immediately before the applicant made the claim for DSP.
Impairment Tables
The Impairment Tables referred to in section 94 of the Act are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth). The Impairment Tables assign ratings reflecting the level of functional impact a condition has on an applicant. Only medical conditions that are permanent can be allocated points under the Impairment Tables.
A condition is “permanent” if it is “fully diagnosed” by an “appropriately qualified medical practitioner”, “fully treated”, “fully stabilised” and is likely to persist for more than 2 years. An “appropriately qualified medical practitioner” is a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition.
The phrases “fully diagnosed” and “fully treated” are defined in s 6(5) of the Impairment Tables as follows:
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraph 6(4)(a) and (b), the following is to be considered:
(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.
The phrase “fully stabilised” is defined in s 6(6) of the Impairment Tables as follows:
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(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; or
(ii)   there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Relevantly, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborative evidence.
A diagnosed condition which results in no impairment should be assessed as having no functional impact and an impairment rating of zero must be assigned: s 11(5) of the Impairment Tables.
ISSUES FOR THE TRIBUNAL
The key issues for determination for the Tribunal are:
(a)What is the relevant period for Mr Chapman’s claim?
(b)Did Mr Chapman have a physical, intellectual or psychiatric impairment(s) as defined under the Act during the relevant period?
(c)If yes, were his impairment(s) capable of being assigned 20 or more points under the Impairment Tables during the relevant period?
(d)If Mr Chapman’s impairment(s) is/are of 20 points or more under the Impairment Tables, are 20 points assigned under a single Impairment Table (in which case it qualifies as ‘severe’)?
(e)If Mr Chapman did not have a severe impairment during the relevant period, but his impairment(s) attract a rating of 20 points or more, does he have a continuing inability to work or has he participated in a POS?
What is the relevant period for Mr Chapman’s claim?
Mr Chapman’s application for DSP was made on 12 December 2017 and that triggers the assessment process to determine the eligibility of the Applicant. Mr Chapman must qualify for DSP on the date of the claim or within 13 weeks thereafter to 13 March 2018. I will refer to this as ‘the relevant period’.
Did Mr Chapman have a physical, intellectual or psychiatric impairment during the relevant period?
The term “impairment” is not defined in the Act. However s 3 of the Impairment Tables defines “impairment’ to mean:
A loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
Medical reports in the T-documents confirm that Mr Chapman suffers from some long standing medical conditions including bilateral epicondylitis and tendonitis and mental health issues depression and anxiety.
The Secretary concedes, and based on the information before it the Tribunal agrees, that the Applicant suffers medical conditions that cause impairment and therefore he satisfied section 94(1)(a) of the Act during the qualification period.
Therefore, the first issue I am required to decide is whether any of Mr Chapman’s impairments were fully diagnosed, treated and stabilised during the qualification period. If I find that one or more of Mr Chapman’s impairments were fully diagnosed, treated and stabilised during the qualification period, I am required to assess them under the relevant Impairment Tables.
MR CHAPMAN’S IMPAIRMENTS
An impairment can only be assigned a rating under the Impairment Tables in accordance with the provisions in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), which contains the Impairment Tables and rules for applying them when deciding if a person is qualified for the DSP.
The Impairment Tables may only be applies to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
The “Introduction” to the Impairment Tables makes clear that an impairment rating can only be allocated to an impairment if the condition causing the impairment is “permanent” and the impairment is likely to persist for more than 2 years.
Mental health condition
Mr Chapman has provided the Tribunal with a report from consultant psychiatrist Dr Carne dated 22 November 2017[2] which is a letter to Mr Chapman’s General Practitioner Dr Wiren. Dr Carne recommends Mr Chapman ‘be placed on Disability Support Pension’. He writes:
In my assessment of Mr. Chapman I learnt that he is essentially incapable of working physically because of physical illnesses and intellectually because of his depression and anxiety.
[2] T-documents, p.100.
Dr Wiren subsequently writes that Mr Chapman, whom he has known for almost 15 years, has a mental state which ‘remains significantly impaired’ as a consequence of being a ‘heavy substance abuser’[3] which ‘likely produced a degree of alcohol related brain damage’.[4]
[3] T-documents, p. 102.
[4] Ibid.
No evidence from a suitably qualified medical professional is before the tribunal to demonstrate that Mr Chapman has the condition of alcohol related brain damage, but Mr Chapman did state he suffers from short-term memory problems which is indicative of alcohol induced brain damage videos he has seen on YouTube.
Dr Wiren continues:
In particular, he has a poor memory, poor concentration, is amotivated [sic], is highly disorganized, is slow, suffers from chronic depression, is anxious, is irritable, is isolative and withdrawn, ruminates excessively, has a degree of poor self care and lacks some judgement.
In relation to depression, Mr Chapman testified in strong terms that he was not interested in being medicated for the condition. This is perhaps understandable in light of his testimony that his mother abused prescription medicines and given his own history of substance abuse.
Other treatments may be possible but Mr Chapman told the AAT1 that he had not seen a psychologist for over 20 years prior to seeing Dr Henson, Consultant Psychiatrist, on five occasions between October 2018 and February 2019.
Dr Hanson reported on 8 February 2019:
I am of the opinion that he [Mr Chapman] has a decrease in abilities including memory and cognitive tasks and understanding that there is also a significant loss of ability that limits his ability to work. I am of the opinion that he has had longstanding and recurrent Anxiety Disorder and Major Depressive Episode which is also of long standing.
This is well outside the relevant period, but as noted by the Respondent in [48] of the Secretary’s Statement of Issues, Facts & Contentions, this may be of assistance for a future claim.
Dr Hanson writes again on 15 March 2019 stating that he has seen Mr Chapman on two more occasions since writing on 8 February 2019:
Mr. Chapman remains unchanged in relation to his physical health state and his psychological/psychiatric state. He remains unwell and unfit for work and he is likely to remain unable to work in coming years.
Unfortunately Dr Henson’s letter does not provide a clearer understanding of Mr Chapman’s mental health conditions and beyond ‘seeing him’ it provides no detail as to what treatment he may be receiving.
On the evidence before the Tribunal I can only conclude the applicant had not, during the qualification period, completed appropriate trials of pharmacological treatment or completed psychotherapy.
Mr Chapman’s sole treatment was consulting with Dr Wiren who is his General Practitioner. I accept that as noted in the Job Capacity Assessment Report (JCA)[5] ‘this condition is considered fully diagnosed, but not fully treated and stabilised due to lack of pharmacotherapy and therapy by the qualified psychologist, which would be expected to improve his symptoms’.
[5] T-documents, p. 152.
I also note that in his letter to Centrelink of 7 March 2018 Dr Wiren writes under the subject heading ‘his current treatment includes’ and states ‘Anti-depressant therapy is UNLIKELY to be of benefit’.
I place minimal weight on the report of Dr Wiren as he is not a psychologist and the Tribunal must have evidence from an appropriately qualified medical practitioner in order to make an assessment.
I find that Mr Chapman’s mental health conditions depression and anxiety have been fully diagnosed. However, I find that as Mr Chapman has not pursued reasonable treatment during the qualification period and the conditions cannot be considered ‘fully treated and fully stabilised’. Consequently I cannot allocate an impairment rating to Mr Chapman for this condition.
Bilateral epicondylitis and tendonitis
Mr Chapman’s Job Capacity Assessment (JCA) Report[6] references Sports Physician Associate Professor Dr Parras’ ‘WorkCover NSW certificate of capacity’ which indicates a diagnosis of bilateral medial and lateral epicondylitis (elbows) and tenosynovitis on his right arm, with a date of onset on 12/12/1993. The JCA also notes that no treatment is indicated.
[6] T-documents, p. 150.
Dr Parras writes on 12 April 2018[7], shortly after Centrelink informed Mr Chapman that his application for the DSP was unsuccessful, that Mr Chapman ‘had a longstanding history of bilateral medial and lateral elbow pain that began in 1993’.
[7] T-documents, p. 163.
Dr Parras details the circumstances in which Mr Chapman sustained these injuries which were consistent with Mr Chapman’s testimony at the hearing. Dr Parras reports that ‘MRI left and right elbows confirm medial and lateral epicodylosis with tendon degradation’. He notes that ‘a disability support pension is indicated’ but does not provide any details of treatment for the condition.

Mr Chapman testified at the hearing as to how this condition impacts his activities. He stated that the condition affects almost everything he does and that has become adept at avoiding lifting things during the course of his daily activities. He also said that often times he can perform tasks but the pain ‘comes later’.
Mr Chapman told the Tribunal that a medical assessment where his arms were manipulated as part of testing in 2016 left him unable to lift a kettle containing a litre of water in it for a year after.
This description is consistent with A/Professor Paoloni’s report of 28 February 2018 in which he took the time to go through the relevant Impairment Table (Table 2 - Upper Limb Function) and states:
Mr Chapman can physically perform some of the functions in the more severe categories in the impairment tables although he may have significant pain during these activities, he also has ongoing pain, given these aggravating activities that can persist for days, weeks, and months. There is always a price to pay for any upper limb activity.
Mr Chapman also testified that he can type for up to an hour using two fingers, that he can write with his left hand, tie his own shoelaces, unscrew a lid and use a screwdriver. He told the Tribunal that he enjoys tuning guitars which he is proficient at. He said that he has a wide interest in music and audio, including a sound working knowledge of audio equipment such as stereo systems and is able to set up audio hardware including speakers, cables and equipment. He agreed with Dr Paoloni’s assessment that a ‘moderate’ impairment rating may be appropriate for this condition.
Dr Paoloni’s assessment also identifies that Mr Chapman has ‘degenerative osteoarthritis’ in his lumbar and cervical spine. As a spinal condition does not form part of the claim being considered, this was only examined briefly by the Tribunal and Mr Chapman said his back pain was a cause of minor discomfort and that his focus was on the workplace injuries and mental health conditions.
Dr Paoloni writes in February 2019 following the receipt of a report from Mr Daher, Physiotherapist, detailing the results of a review of Mr Chapman’s condition following treatment which included exercise rehabilitation, PRP injections and eight sessions of physiotherapy. As these treatments took place after the qualification period, I find that the conditions cannot be considered ‘fully treated’ and ‘fully stabilised’ under s 5 of the Impairment Tables.
It is pertinent to consider Fanning and Secretary Department of Social Services [2014] AATA 447 [33]:
The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.
As this condition was not fully treated and fully stabilised during the qualification period it does not qualify for assignment of an impairment rating.
Angina pectoris
The Tribunal notes that AAT1 decision [23] states an angiogram has excluded coronary artery disease. As there was no further information presented to the Tribunal on the condition and I find it not to have been diagnosed, fully treated or stabilised and ineligible to be assigned an impairment rating.
Diabetes
The Tribunal was presented with no evidence regarding Mr Chapman’s diagnosis of diabetes beyond the health summary sheet of Dr Parras dated 4 December 2017[8] which indicates he suffered from non-insulin dependent diabetes mellitus since 2012 and lists his medication as Diaformin Tablet and Nesina Tables.
[8] T-documents, p. 105.
Mr Chapman testified that he ‘can’t really say’ how the diabetes affects him. He says that he ‘goes to the toilet a lot’ and his vision was occasionally blurry but now that he takes medication that does not happen as often.
I find that there is currently insufficient relevant medial evidence before the Tribunal to establish if this condition is fully treated and fully stabilised.
Hyperlipidaemia
The Tribunal has no evidence regarding Mr Chapman’s hyperlipidaemia beyond the health summary sheet of Dr Parras.[9] It is noted that he was taking Atozet in August 2017.
[9] Ibid.
As there is no evidence that this condition was fully diagnosed, treated and stabilised during the qualification period, it cannot be assigned an impairment rating.
Hypertension
There is no information regarding Mr Chapman’s hypertension beyond a notation it was diagnosed in 2012 in Dr Parras’ Heath Summary Sheet.
As there is no evidence that this condition was fully diagnosed, treated and stabilised during the qualification period, it cannot be assigned an impairment rating.
FINDINGS
The legislation is such that satisfying each of the requirements as outlined earlier is essential in order for an application for DSP to be successful. It is the Tribunal’s role to take into account the particular circumstances and facts of each case, making sure that the rules are applied equally to each case.
Whilst I find that Mr Chapman had a physical, intellectual or psychiatric impairment(s) as defined under section 94(1)(a) of the Act during the relevant period, I cannot find that his conditions were fully treated and stabilised. This being the case, they are ineligible to be assigned an impairment rating and without the requisite points, Mr Chapman’s application for DSP cannot succeed.
Further, as Mr Chapman does not meet the threshold requirement of 20 points, it is not necessary for the Tribunal to proceed to the next step of considering the Applicant’s continuing ability to work.
DECISION
For the reasons above, I am satisfied that the Applicant does not qualify for DSP under section 94(1) of the Act.

I certify that the preceding 69 (sixty -nine) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member.

.......................[sgd].................................................
Associate
Dated: 19 August 2019

Date(s) of hearing: 24 June 2019

Applicant: In person

Solicitors for the Respondent: Ms A Zinn - Department of Human Services

[2019] AATA 2714

19 August 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Statutory Construction

Standing

Date(s) of hearing:	24 June 2019
Applicant:	In person
Solicitors for the Respondent:	Ms A Zinn - Department of Human Services