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

[2018] AATA 973

Chapman and Secretary, Department of Social Services (Social services second review) [2018] AATA 973 (18 April 2018)

Division:GENERAL DIVISION

File Number:           2017/1988

Re:Phillip Chapman

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member L M Gallagher
Member C Edwardes

Date:18 April 2018

Place:Perth

The decision under review is affirmed.

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

Member L M Gallagher

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant had conditions that were fully diagnosed, fully treated and fully stabilised – whether applicant had 20 impairment points - whether applicant had severe impairment – spinal condition – lower limb condition – mental health condition -  decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) – ss 4(2), ss 94(1) s 94(2), ss 94(3B)

Social Security (Administration) Act 1999(Cth) - Sch 2, Cl 4(1)

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – s 3, ss 5(2), ss 6(1), ss 6(3)–(8), s 8(1), Tables 1, 3, 4, 5

REASONS FOR DECISION

Member L M Gallagher
Member C Edwardes

18 April 2018

INTRODUCTION

1. On 6 January 2016, Mr Chapman lodged an application for Disability Support Pension (“DSP”) with the Department of Human Services (“the Department”) (T68 and T85, page 419).  On his claim form, Mr Chapman left blank the response field to question 168 asking him to “[l]ist any disabilities, illnesses or injuries” (T68, page 349).  No medical evidence appears to have been filed in support of Mr Chapman’s claim form.

2. On 27 January 2016, a Job Capacity Assessment (“JCA”) (face to face) was undertaken by a Registered Psychologist, with contribution from a Registered Occupational Therapist and a report was produced on 17 March 2016 (T69).  The JCA report states its findings,  which relevantly include:

   (a)Low back pain with foot drop – Mr Chapman’s condition of low back pain with foot drop was fully diagnosed, fully treated and fully stabilised and it was recommended it be rated:

   (i)10 impairment points under Table 4 (spinal function); and

   (ii)5 impairment points under Table 3 (lower limb function).

   (b)Hypertension and asthma – Mr Chapman’s hypertension and asthma conditions were fully diagnosed, fully treated and fully stabilised and it was recommended they each be rated zero points under Table 1 (functions requiring physical exertion and stamina) on the basis that those conditions were well managed with current treatment.

   (c)Gastro-oesophageal reflux – Mr Chapman’s gastro-oesophageal reflux condition was fully diagnosed, but not fully treated and not fully stabilised and therefore could not be rated under the Impairment Tables.

   (d)Depression – Mr Chapman’s depression condition was fully diagnosed, but not fully treated and not fully stabilised and therefore could not be rated under the Impairment Tables.

   (e)Mr Chapman’s total impairment rating was 15 impairment points.

   (f)Mr Chapman did not have a continuing inability to work (“CITW”) on the basis that he was assessed as having a future work capacity within two years with intervention of 15 – 22 hours per week (T69, page 360).

3. On 6 April 2016, Mr Chapman’s claim for DSP was rejected on the basis that Mr Chapman was “assessed as not having an impairment rating of 20 points or more” (T70).

4. On 22 June 2016, Mr Chapman requested a review of the Department’s decision dated 6 April 2016 on the basis of new medical evidence lodged with the Department (T85, page 420).

5. On 15 August 2016, a further JCA (by telephone) was conducted by a Registered Psychologist, with contribution from a Registered Occupational Therapist.  The resulting report was produced on 22 August 2016 (T73) and reached the same conclusions as the first JCA with respect to Mr Chapman’s impairments arising from his various conditions and to his work capacity (as set out in paragraph 2 above).

6. On 31 October 2016, an Authorised Review Officer of the Department (“ARO”) affirmed the Department’s decision dated 6 April 2016, reaching the same conclusions as the Department with respect to Mr Chapman’s impairments arising from his various conditions and to his work capacity (as set out in paragraph 2 above) (T76).

7. On 7 November 2016, Mr Chapman applied to the Administrative Appeals Tribunal (“Tribunal”) for a first review of the ARO decision dated 31 October 2016 (T2).

8. On 23 March 2017, the Tribunal’s Social Services & Child Support Division (“AAT1”) affirmed the ARO decision dated 31 October 2016 (T2) on the basis that:

   (a)it reached the same conclusions as the ARO with respect to Mr Chapman’s impairments arising from his low back pain with foot drop and depression conditions;

   (b)Mr Chapman’s problem with alcohol misuse was fully diagnosed, but not fully treated or fully stabilised and therefore could not be rated under the Impairment Tables; and

   (c)Mr Chapman’s reflux disease with Barrett’s oesophagitis had minimal functional impact and attracted no impairment points.

9. Given the AAT1’s findings at paragraph 8 above, it did not go on to consider whether Mr Chapman had a CITW.

10. On 6 April 2017, Mr Chapman applied to the Tribunal’s General Division for a second review of the AAT1 decision dated 23 March 2017, claiming that the AAT1 decision is wrong because (T1, page 2):

    In my opinion my disability condition and my inability to obtain suitable employment as [sic] not been fully considered.

    I will be submitting further documentation (medical) to “ATT” [sic] at the earliest convenience.

    RELEVANT LEGISLATION AND GENERAL PRINCIPLES

11. The statutory provisions relevant to the present matter are contained in the Social Security Act 1991(Cth) (“the Act”) and the Social Security (Administration) Act 1999(Cth) (“the Administration Act”). 

12.     Section 94 of the Act sets out the qualification criteria for the DSP. For present purposes, the three primary requirements are that a person has a physical, intellectual or psychiatric impairment (subsection 94(1)(a) of the Act); that the person’s impairment is of 20 points or more under the Impairment Tables (refer to paragraph 14 below and subsection 94(1)(b) of the Act); and that person has a CITW (subsection 94(1)(c) of the Act).

1. In accordance with subclause 4(1) of Schedule 2 to the Administration Act, the Tribunal is required to determine Mr Chapman’s eligibility for DSP on 6 January 2016, being the date the claim was lodged.

2. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”) contains the Impairment Tables. The Impairment Tables set out the rules about when an impairment rating can be assigned as well as a rating system for impairment. The Impairment Tables are based on function rather than diagnosis (“impairment” is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition (section 3 of the Determination)) and they describe functional activities, abilities, symptoms and limitations (subsection 5(2) of the Determination).

3. Subsection 6(1) of the Determination requires that a person’s impairment be assessed on the basis of what the person can or could do, not on the basis of what the person chooses to do or what others do for the person. To be given a rating under the Impairment Tables, the impairment must be permanent and be more likely than not, in light of available evidence, to persist for two years (subsection 6(3) of the Determination).

4. For the purposes of the Impairment Tables, “permanent” does not have its usual meaning. To be a permanent condition, the condition must be fully diagnosed by an appropriately qualified medical practitioner, be fully treated, be fully stabilised and be more likely than not, in light of available evidence, to persist for more than two years (subsection 6(4) of the Determination).

5. In determining whether a condition has been “fully diagnosed and fully treated”, the following facts are 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.

   (subsection 6(5) of the Determination).

6. 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.

   (subsection 6(6) of the Determination).

7. “Reasonable treatment” is treatment that is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person (subsection 6(7) of the Determination).

8. The existence of a diagnosed condition will not necessarily result in a rating being assigned under the Tables. If an impairment has no functional impact, then no rating will be assigned (subsection 6(8) of the Determination).

9. Self-reporting of symptoms in relation to a person’s condition can only be taken into account where there is corroborating evidence as defined in each table in the Impairment Tables (subsection 8(1) of the Determination).

10. The Introduction to Impairment Table 3 (Lower Limb Function) and Impairment Table 4 (Spinal Function) respectively state that the diagnosis of each condition must be made by an appropriately qualified medical practitioner.

11. The Introduction to Impairment Table 5 (Mental Health Function) states that the required diagnosing medical practitioner includes a psychiatrist, with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

12. In respect of the requirement that a person have a CITW, unless a person is specifically exempted from this requirement, all the criteria in subsection 94(2) of the Act need to be satisfied, including participation in a recognised program of support and being unable to work for 15 hours or more per week.

    ISSUES

13. The issues which arise in this case are:

    (a)whether Mr Chapman suffered from a physical, intellectual or psychiatric impairment or impairments; and if so,

    (b)whether those impairments receive an impairment rating of 20 points or more under the Determination; and if so,

    (c)whether Mr Chapman has a CITW, which includes the requirement to have actively participated in a program of support.

14. As the Tribunal has concluded below (refer to paragraph 54) that Mr Chapman’s impairments do not receive an impairment rating of 20 points or more, the Tribunal has not addressed in considerable detail the evidence, the legislation nor the issues relevant to whether Mr Chapman has a CITW.  In these circumstances, the Tribunal is not required to do so.

    EVIDENCE

15. The matter was heard in Perth on 21 February 2018.  Mr Chapman appeared in person with the support of Mr George Cole and was self-represented.  The Secretary was represented by Mr Christopher Bishop from Mills Oakley Lawyers.

16. The Tribunal received the following evidence:

    ·a 422 page set of T documents (T1 – T85) (“R1”);

    ·the Secretary’s Statement of Issues, Facts and Contentions dated 20 October 2017, with list of authorities (“R2”);

    ·Annexure A to R2, being a report by Dr Jamaluddin Jalaluddin, General Practitioner, dated 30 May 2017 (“R3”);

    ·Annexure B to R2, being the document tendered as R3 excluding Mr Chapman’s medical history (“R4”);

    ·Annexure C to R2, being a JCA Report relating to Mr Chapman dated 26 September 2017 (“R5”);

    ·Annexure D to R2, being program of support information relating to Mr Chapman (“R6”);

    ·the Secretary’s Supplementary Submissions, dated 8 February 2018, with Annexures (“R7”);

    ·a letter from Dr Sam Shales, Orthopaedic Registrar, dated 30 September 2016 (“R8”); and

    ·the Applicant’s additional investigative reports from St John of God Hospital (various dates) including Glycated HB Test, Random Glucose Test, Liver Function test, Holo-Transcobalamin II Test and Full Blood Count Test (“R9”).

17. Having reviewed all of the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence.  Relevant aspects of the evidence are referred to below, including Mr Chapman’s affirmed oral evidence at hearing.

    Alcoholism, hypertension, asthma and gastro-oesophageal reflux disease

18. At hearing, when asked by the Tribunal, Mr Chapman stated that his alcoholism, hypertension, asthma and gastro-oesophageal reflux disease conditions were “not really” of concern to him for the present application and rather, his focus was on his lower back, foot drop and mental health conditions.

    Low back pain and foot drop condition

19. In relation to the four activities listed in the 20 point descriptor for severe functional impairment under Table 4 (Spinal Function) of the Impairment Tables, Mr Chapman said for the last four or five years he has been unable to and remains unable to “do any of the things in point 1”.

20. When taken through each of the four activities (listed in the 20 point descriptor under Table 4) by Mr Bishop and asked whether he could perform those activities, Mr Chapman agreed that he could (although in relation to overhead tasks it was with some difficulty), perform them.

21. Mr Chapman said that in 2016, on referral from Dr Jalaluddin (refer to R8) further testing was explored in relation to the impact his spinal injury has had on his ability to work, the purpose of the testing being to investigate the numbness in his feet.  Mr Chapman said that those investigations were now complete.

22. In relation to each of the four activities listed in the 20 point descriptor for severe functional impairment under Table 3 (Lower Limb Function), Mr Chapman said that he can do all of the things listed with the assistance of an aid.  Mr Chapman said, for example, that he uses a shopping trolley to aid his walking around a shopping centre and uses a table to aid his standing from a sitting position.  As to public transport, Mr Chapman said that he could walk 20 metres to a bus stop with the use of a walking aid.

    Depression condition

23. In relation to his depression condition, Mr Chapman stated that he doesn’t want to take pills or different medications and that he doesn’t like Lyrica or Cymbalta.

24. In terms of treatment for his depression, Mr Chapman said that since ceasing Cymbalta in 2015 (as recorded by the JCA, refer to T69, page 357), which he said was initially prescribed to him for nerve relief (however he discontinued it because “it wasn’t working,”) he has not undertaken any form of treatment.  Mr Chapman said he was undertaking counselling at the time of his DSP claim.

25. As to the reference in the JCA report that “[c]lient reported he consumes between 4 and 15 standard drinks daily.  He reported no treatment till date” (T69, page 357), Mr Chapman stated that he was cured in any event in that he didn’t drink anymore because he couldn’t afford it.

    CONSIDERATION

    Whether Mr Chapman suffered from a physical, intellectual or psychiatric impairment or impairments

26. It is not in dispute, and the Tribunal finds on the evidence that at the date of claim, Mr Chapman suffered from lumbar spinal stenosis causing right foot drop and underlying disc prolapse stenosis L2 to L4 (“low back pain with foot drop condition”), depressive disorder (“depression”) and alcoholism, which were of significant impact (refer to report of Dr Jalaluddin dated 25 August 2015 at T66, pages 313-316).

27. Dr Jalaluddin’s report also notes Mr Chapman’s hypertension, asthma and gastro-oesophageal reflux disease which in his view were generally well managed and of minimal or limited impact (T66, page 319).

28. As such, the Tribunal finds that Mr Chapman satisfies subsection 94(1)(a) of the Act.

    Whether Mr Chapman’s impairments receive an impairment rating of 20 points or more

    Low back pain with foot drop condition

29. In relation to Mr Chapman’s low back pain with foot drop condition, it is not in dispute and the Tribunal finds on the evidence that Mr Chapman suffered from this condition on the date of claim and that it was fully diagnosed, fully treated and fully stabilised on this date.  The Tribunal refers to the evidence summarised at paragraph 37 of the Secretary’s Statement of Issues, Facts and Contentions (R2) in this regard.

30. As to the appropriate ratings of impairment points under Table 4 (Spinal Function) and Table 3 (Lower Limb Function), the Tribunal understands Mr Chapman’s position to be that he achieves the 20 point rating under either or both tables.  Under cross-examination by Mr Bishop, Mr Chapman conceded that he was able to perform the activities listed under the 20 impairment point descriptors in those tables (refer to paragraphs 32 and 34 above). In his closing submissions, Mr Chapman was still of the view that his impairments ought to be rated as “severe.”

31. With respect to Mr Chapman’s low back pain, the Secretary contends that a rating on 10 points under Table 4 is appropriate (R2, paragraphs 38 and 49), relying on Mr Chapman’s oral evidence at hearing (refer to paragraphs 32 and 42 above) and the available medical evidence summarised at paragraphs 39 to 48 of its Statement of Issues, Facts and Contentions (R2).

32. Based on the available evidence, including Mr Chapman’s oral evidence at hearing, the Tribunal considers there is no evidence to support any of the descriptors at the date of claim for a “severe” or “20 point” functional impairment rating under Table 4 and rather, the overall level of Mr Chapman’s impairment under Table 4 is moderate, generating 10 impairment points.

33. Regarding Mr Chapman’s foot drop, the Secretary initially contended that a rating of 5 impairment points under Table 3 was appropriate (R2, paragraph 50) on the basis of the available medical evidence (summarised in R2, paragraphs 51 to 59).  However, given Mr Chapman’s evidence at hearing regarding investigations into the numbness he experienced in his feet which took place in late 2016 (refer to paragraph 33 above), the Secretary took the view that Mr Chapman’s foot drop condition was still under investigation at the date of claim and hence it was impossible to assign the condition an impairment rating.

34. Given the available evidence regarding the continued investigation of Mr Chapman’s foot drop condition in late 2016, the Tribunal finds that this condition was not fully treated and fully stabilised at the date of claim (refer to paragraphs 17 and 18 above), and therefore was not permanent (as defined, refer to paragraph 16 above) and no impairment points can be assigned.

    Depression and alcoholism conditions

35. It is not in dispute and the Tribunal finds on the evidence that Mr Chapman suffers from long standing depression, a condition which was fully diagnosed at the date of claim.  The Tribunal refers, for example, to the letter from Mr Tony Schneider, Clinical and Educational Psychologist, dated 30 March 2010 (T10, page 134) in this regard.

36. With regard to Mr Chapman’s alcoholism condition, it is not in dispute and the Tribunal finds on the evidence that this condition was fully diagnosed at the date of claim.  The Tribunal relies on Dr Jalaluddin’s report dated 25 August 2015 (T66, page 316) in making this finding.

1. As to whether Mr Chapman’s depression and alcoholism conditions were fully treated and fully stabilised at the date of claim, the Tribunal has had regard to the following evidence:

   (a)Mr Chapman’s oral evidence at paragraphs 35 to 37 above, to the effect that he ceased medication for depression in 2015 but that he was undertaking counselling at the time of his claim and that he had not undergone any treatment for his alcoholism but had ceased to drink alcohol in any event;

   (b)evidence summarised at paragraphs 61 to 64, 66 and 68 to 75 of the Secretary’s Statement of Issues, Facts and Contentions (R2); and

   (c)evidence summarised at paragraphs 5 to 10 of the Secretary’s Supplementary Submissions (R7).

2. Having considered the available evidence, the Tribunal considers there is no basis upon which it can find that Mr Chapman’s depression and alcoholism conditions were fully treated and fully stabilised at the date of claim and his functional impairment for these conditions cannot be rated under the Impairment Tables.

   Hypertension, asthma and gastro-oesophageal reflux conditions

3. The extent of the evidence regarding Mr Chapman’s hypertension, asthma and gastro-oesophageal reflux conditions are that they are generally well managed and of minimal or limited impact on Mr Chapman’s ability to function (T66, page 319).  Mr Chapman has not sought to contend otherwise, including that these conditions ought to be deemed permanent and in turn be assigned a rating under the Impairment Tables.

4. Therefore the Tribunal finds that on the date of claim, Mr Chapman’s hypertension, asthma and gastro-oesophageal reflux conditions were not fully diagnosed, not fully treated or fully stabilised and his functional impairment in relation to these conditions cannot be rated under the Impairment Tables.

   Whether Mr Chapman has a continuing inability to work

5. Based on paragraphs 38 to 52 above, the Tribunal finds Mr Chapman’s claimed conditions achieve 10 points under the Impairment Tables (Table 4) and that he therefore fails to satisfy subsection 94(1)(b) of the Act. Given this finding, the Tribunal is not required to consider whether Mr Chapman had, at the date of his claim, a CITW in satisfaction of subsection 94(1)(c) of the Act.

   CONCLUSION

6. Mr Chapman does not qualify for DSP as his conditions can only be assigned 10 impairment points as at the date of claim.

   DECISION

7. The decision of the AAT1 dated 23 March 2017, which affirmed a decision of an ARO of the Department dated 31 October 2016 to reject Mr Chapman’s application for DSP lodged on 6 January 2016, is affirmed.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher, Member C Edwardes

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

Associate

Dated: 18 April 2018

Date of hearing:	21 February 2018
Applicant:	In person
Counsel for the Respondent:	Mr Christopher Bishop
Solicitors for the Respondent:	Mills Oakley Lawyers