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

Clarke and Secretary, Department of Social Services (Social services second review) [2019] AATA 5525 (20 December 2019)
Division:GENERAL DIVISION
File Number(s): 2018/0533
Re:Jason Clarke
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:20 December 2019
Place:Sydney

The decision under review is affirmed.
..............................[sgd]....................................
Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – whether applicant qualified for DSP during qualification period – whether conditions fully diagnosed, treated and stabilised – spinal condition – back and neck conditions – upper and lower limb conditions – depression – erectile dysfunction – reasonable treatment – whether impairment attracts 20 points or more under the Impairment Tables – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 26, 94
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6, Tables 2, 3, 4, 5, 10
SECONDARY MATERIALS
Gabrielle Campbell, How is Australia responding to the pharmaceutical opioid problem?, National Drug & Alcohol Research Centre < Institute on Drug Abuse, Opioid Overdose Crisis (January 2019) < Brown and Anthony Morgan, ‘The opioid epidemic in North America: Implications for Australia’ (Paper No 578, Australian Institute of Criminology, July 2019)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
20 December 2019

Mr Jason Clarke (the Applicant) seeks a review of a decision made by the Social Services and Child Support Division of this Tribunal (AAT1) on 9 January 2018 affirming a decision by the Secretary, Department of Social Services (the Respondent) to refuse his application for the Disability Support Pension (DSP).
CHRONOLOGY
In February 2000, the Applicant (born in 1969) suffered a workplace injury arising from his lifting of certain heavy materials and, as a result, suffering injuries to his neck, back, arms and left leg. The workplace incident was the subject of an application for compensation through the Workers Compensation Commission which was resolved with the Applicant receiving a compensation payment.
The Applicant subsequently made several claims to the Department for payment of the DSP. There were claims lodged on 26 August 2014 and 11 September 2015 followed by a further claim on 8 August 2016.
The August 2014 claim was subject to a Job Capacity Assessment (JCA) report which, on 4 November 2014, found that the Applicant’s condition rated only a total of 5 points (see below) under two Impairment Tables dealing with Spinal Function (Table 4) and Lower Limb Function (Table 3). Based upon the JCA report the Applicant’s claim for the DSP was rejected on 4 November 2014 and this decision was affirmed by an Authorised Review Officer (ARO) of the Department on 18 December 2014.
The Applicant sought a review of the ARO’s decision before the AAT1 which, on 27 February 2015, upheld that decision.
On 11 September 2015, the Applicant lodged a further application for the DSP. This claim was rejected on 17 October 2015 and that rejection was again affirmed by an ARO review on 15 December 2015.
The Applicant again sought a review by the AAT1 of that latest decision which, on 29 February 2016, upheld the ARO’s determination.
The Applicant lodged a third claim for DSP on 8 August 2016, which was rejected on 5 January 2017 and affirmed by another ARO review on 20 November 2017.
The Applicant sought review by the AAT1 of that decision which, on 9 January 2018, upheld the rejection decision. On that occasion, the AAT1 gave its reasons for rejection orally at the end of the hearing and subsequently presented those in written form.
It is from that January 2018 decision of the AAT1 that this appeal lies and is presently being reviewed, in these hearings, by the General Division of the Tribunal (AAT2).
In determining this matter, the Tribunal must approach the review de novo and, subject to the qualifications outlined below, must take into account any material presented to it up until the date of hearing, including any material which may not have been before earlier decision-makers.
For the sake of completeness, the Tribunal notes that the Applicant has also lodged a further application for the DSP dated 26 November 2018. The status of that application is indicated to be rejected at paragraph 24 of the Respondent’s Statement of Facts and Contentions (SFIC) dated 6 November 2019 but in any event, regardless of its status, it is not a relevant matter to consider in the present proceeding.
THE DISABILITY SUPPORT PENSION SCHEME AND RELEVANT LEGISLATION
The relevant claim for the DSP, presently under review by the AAT2, was made on 8 August 2016, which triggered an assessment process to determine the eligibility of the Applicant for the DSP. That process must assess the Applicant’s medical conditions as of the date of the claim or within 13 weeks thereafter. That is, any time between 8 August 2016 and 7 November 2016.
This is what may be referred to as the “qualification period”.
It is not possible for the Tribunal to take into account anything which occurred after the qualification period in terms of the claimed deterioration of the Applicant’s health, changes in his status or acquisition of additional medical or psychological conditions.
These may be material factors in any future application/claim made but they are not germane to the present assessment based on the specific qualification period.
Whereas in other matters before the Tribunal decisions are to be based on the facts at the time of the Tribunal hearing, that is not the case in relation to the review of DSP matters. The Tribunal can consider only matters relevant to the qualification period and it has no legislative authority to do otherwise.
In order to qualify for the DSP an applicant must fulfil certain criteria which are set out in section 94 of the Social Security Act1991 (Cth) (the Act) and in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables Determination) which is a Determination made on 6 December 2011 under section 26(1) of the Act and effective from 1 January 2012 establishing the Impairment Tables and the rules for applying those Tables.
In essence these requirements or criteria are:
(a)the person has a physical, intellectual or psychiatric impairment.
(b)the person’s impairment attracts 20 points or more on the Impairment Tables. Points may be accumulated for a variety or number of conditions or in certain circumstances awarded directly for one condition of particular severity.
(c)the person has a continuing inability to work or the Secretary is satisfied that the person is participating in a program known as the supported wage system.
(d)the person has turned 16.
(e)the person is an eligible citizen or qualifying resident.
Failure to meet any one of these requirements is fatal to the application and the Tribunal has neither the power nor the authority to disregard any such failure.
In assessing whether points can be assigned to an impairment, the condition (however defined) giving rise to the impairment must be permanent, that is:
·fully diagnosed by an appropriately qualified medical practitioner and documented;
·fully treated; and
·fully stabilised.
These terms are defined in the Impairment Tables Determination itself.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (Impairment Tables Determination) sub-ss 6(4)-6(6).
Again, each of these criteria must be met before any points under an Impairment Table(s) can be awarded.
A continuing inability to work is also defined in the legislation. In effect, it means that the impairment prevents the person from:
·doing any work independently of a program of support within the next 2 years, and
·undertaking a training activity within the next 2 years, or
·“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”.[2]
[2] Social Security Act 1991 (Cth) s 94(2)(b)(ii).
It is against this legislative background that the Tribunal must consider each application coming before it, taking into account the particular circumstances and facts of each case, but making sure that the rules are applied equally to each case.
For the sake of completeness, the immediately relevant parts of section 94 of the Act are set out below:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(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;
THE CLAIMED IMPAIRMENTS
The Applicant submits that he suffers a number of impairments as follows:
·Spinal condition and associated pain including loss of strength in left leg and hand, and continuing back and neck pain;
·Depression; and
·Erectile dysfunction.
It is necessary to consider each of these claimed impairments, in the first instance, to establish whether they meet the statutory requirement of being fully diagnosed, treated and stabilised. In the event that they do, it is then necessary to assign them a rating under the relevant Impairment Table(s). In order to progress to the next step in establishing eligibility for the DSP an Applicant must have an impairment rating of 20 points or more.
Erectile Dysfunction
The Respondent disputes any claim made by the Applicant in relation to issues of erectile dysfunction. At paragraph 56 of the Secretary’s SFIC she states:
Reproductive organs
The Secretary contends this condition cannot be considered fully diagnosed, treated and stabilised in circumstances where there is no evidence regarding diagnosis, treatment and prognosis. There is also no recent evidence about the functional impact of this condition.
The Tribunal does not accept this statement as being entirely accurate. The Applicant provided the Tribunal with a full copy of the Medical Assessment Certificate: Assessment of Degree of Permanent Impairment prepared by the Workers Compensation Commission dated 5 May 2006, which appears at pages 241 to 247 of the Supplementary Section 37 Documents (Supplementary T Documents). The Applicant has also provided the Tribunal with part of another Medical Assessment Certificate: Assessment of Degree of Permanent Impairment prepared by the Workers Compensation Commission, which appears at Supplementary T Documents pages 248 to 249. Within this report there appears a discussion of the extent to which the Applicant should be compensated for “loss of use of his sexual organs” as a result of his compensable accident. Although there is some disagreement between a variety of medical examiners, the majority accept that such an injury was sustained as a result of the accident and the report concludes: “I certify that the impairment is permanent and that the degree of permanent impairment is fully ascertainable”.[3] The loss of sexual organs use thus determined was included in the calculation of the final workers compensation payment.
[3] Supplementary Section 37 Documents (Supplementary T Documents) at p 249.
The Applicant himself claimed in oral evidence that, as a result of his accident and the resultant surgery, he has been unable to engage in sexual intercourse or obtain an erection and, in his words “I can’t feel my penis. It does nothing except for wees”.
The Tribunal thus arrives at the conclusion that the impairment, herein described as erectile dysfunction, was fully diagnosed. The Applicant told the Tribunal that this condition is, for him, a continuing one.
However, it has to agree with the Respondent that there is no evidence to show that the condition has then been the subject of any treatment. There are a variety of treatments available to address issues of erectile dysfunction which include both pharmaceutical and physical interventions. There is no evidence that the Applicant has sought to avail himself of any such interventions.
As such this impairment, real as it apparently is, cannot be assessed for any score under the relevant Impairment Table (Table 10 – Digestive and Reproductive Function).
Depression
At paragraph 55 of the Secretary’s SFIC she states:
Depression
In the Applicant’s claim for DSP, he makes reference to depression (T19, 181). The Secretary contends this condition cannot be considered fully diagnosed, treated and stabilised in circumstances where this condition has not been diagnosed by a psychiatrist or a clinical psychologist. Further, there is no evidence of treatment and prognosis. There is also no evidence about the functional impact of this condition.
In this regard, the Secretary relies upon the criteria set out in the relevant Impairment Table (Table 5 – Mental Health Function) which requires that:
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).[4]
[4] Impairment Tables Determination at Table 5 – Mental Health Function, Introduction to Table 5.
This requirement precludes such a diagnosis being made solely by a general practitioner without further corroborative support from an appropriately qualified psychologist or psychiatrist.
The Applicant, in his oral testimony, told the Tribunal that his diagnosis of “depression” had been made by such qualified practitioners, but apart from that unsubstantiated testimony there is no evidence before the Tribunal to this effect. Were any such evidence to have been presented, this matter could have been considered further but, in its absence, it cannot be considered for assessment under the relevant Impairment Table.
Spinal condition and associated back, neck, upper and lower limb conditions
There is no doubt that the Applicant suffers significant impairment as a result of the workplace accident and injury he sustained in 2000. The nature of this injury and the degree of impairment was considered in detail in the proceedings before the Workers Compensation Commission.
However, it was not until August 2014 that this matter was raised within the context of an application for the DSP.
At paragraph 43 of the Secretary’s SFIC she states:
Spinal condition and associated pain
The Secretary accepts that the Applicant’s spinal condition has been fully diagnosed (T8, 117; T7, 108, 111). However, the Secretary contends this condition was not fully treated and stabilised. In particular, there is no evidence of recent treatment and the Applicant has declined further surgery.
The gravamen of the Respondent’s position is that the Applicant’s general practitioner (Dr Khoo) has provided evidence to the effect that:[5]
(a)the Applicant’s treatment included “home physio exercises” and confirmed the Applicant had not been referred to a specialist [for both his spinal condition and neck pain].[6]
(b)the Applicant is “still on (sic) constant pain and is being treated conservatively only as further treatment and investigations are not being considered”.[7]
(c)the Applicant [as at the date of Dr Khoo’s letter of January 2019] was “not on any regular analgesia as he has had a lot of analgesics in the past, has not had any significant relief from them and is quite weary of getting addicted to such”[8] and further [as at the date of Dr Khoo’s letter of April 2019], “other than taking analgesics as required, he has not had any other treatment…He has not had any other active treatment…There have been no investigations or specialist referrals or treatment as at the date of claim or within 13 weeks”.[9]
(d)the Applicant has “L upper arm weakness with inco-ordination due to cervical spinal stenosis”[10] but that “diagnosis of the Applicant’s neck pain is not supported by further specialist opinion”[11] and “there is no other evidence of specialist assessment, treatment or prognosis of this aspect of the applicant’s condition”.[12]
[5] Respondent’s Statement of Facts and Contentions dated 6 November 2019 (SFIC) at paras 44-46 and 48.
[6] Report dated 2 October 2014 in Section 37 Documents (T Documents) at pp 108-109 and 112.
[7] Letter dated 19 December 2016 in T Documents at p 188.
[8] Letter dated 8 January 2019 in Supplementary T Documents at p 237.
[9] Letter dated 30 April 2019 in Supplementary T Documents at p 259.
[10] Letter dated 19 December 2016 in T Documents at p 188.
[11] Report dated 2 October 2014 in T Documents at p 111.
[12] Respondent’s SFIC at para 48.
Mr Clarke reported to this Tribunal during oral evidence that he experiences problems with his left leg which constantly “collapses” under him causing him both pain and serious inconvenience. While this is undoubtedly the case because it was indicated that he had a further injury in March 2001 because his “left leg gave way”[13] and that “he had several falls since the original back injury [in 2000]”,[14] there is no evidence indicating that this condition was fully treated and fully stabilised during the qualification period which is the period in regard to which the Tribunal must make its current assessments.
[13] Medical Assessment Certificate: Assessment of Degree of Permanent Impairment dated 5 May 2006 in Supplementary T Documents at p 242; Letter dated 8 January 2019 in Supplementary T Documents at p 237. See also letter dated 30 April 2019 in Supplementary T Documents at p 259.
[14] Letter dated 8 January 2019 in Supplementary T Documents at p 237.
The Tribunal notes that the JCA report of November 2014 came to the conclusion that the Applicant had an impairment rating of 5 (five) points in relation to his “spinal disorder” (using Impairment Table 4) and based this upon Dr Khoo’s report of October 2014 and the Applicant’s own evidence,[15] thereby suggesting that this condition may in fact have been fully diagnosed during the relevant qualification period.
[15] T Documents at p 119.
After reviewing the evidence which was before it at the time, the AAT1 concluded in January 2018 (refer to paragraph 9 above) that:
…the current symptoms of low back pain and left leg pains are likely to be secondary to degenerative spinal problems, and agreed that further surgery should not be considered at this stage but that Mr Clarke should be reviewed by a specialist (orthopaedic, neurosurgical, pain specialist or a neurologist) followed by further physiotherapy, hydrotherapy and consistent home exercises aiming to restore core spinal strength, which is likely to improve pain.[16]
[16] Ibid at p 6[16].
In a letter dated 19 June 2015, that is, at a time before the qualification period in this instance but relevant to the appeal before the AAT1 as mentioned in paragraph 7 above, Dr Khoo indicated that the Applicant:
…since [his injury and subsequent surgery in 2000 had] not be (sic) able to: perform any overhead activities; turn his head or bend his neck without discomfort; bend forward to pick up an object without discomfort or remain seated for any length of time.[17]
[17] Ibid at p 137.
That Tribunal, whose decision is dated 29 February 2016, gave little weight to this evidence, noting rather that it amounted to little more than a direct quote from the relevant section of the Impairment Tables[18] and in any event, as the Secretary points out:[19]
…this letter is inconsistent with the Applicant’s self-reporting and other available medical evidence. In particular, the Applicant told the JCA that he has some difficulty performing overhead activities, bending to knee level and straightening up again, and turning his trunk or head. This analysis was confirmed before the AAT1 as set out in the decision records, dated 27 February 2015 and 29 February 2016.
[18] Ibid at p 153[28].
[19] Respondent’s SFIC at para 51. Citations omitted.

Furthermore, evidence by the Applicant recorded in a JCA report dated 4 November 2014 suggested that (some 14 years after his injury and surgery) he could stand for reasonable lengths of time, did not need to use a walking stick and that he could manage small tasks of lifting and fine motor activities.[20]
[20] Job Capacity Assessment Report dated 4 November 2014 in T Documents at pp 118-120.
It appears that Mr Clarke’s conditions in this regard have deteriorated since that date. For example, he told the Tribunal during oral submissions that he does not use a walking stick because he is unable to use his left hand properly and that is the side on which he would need the support of the walking aid because of the constant collapsing of his left leg. There appears little doubt that the Applicant’s condition(s) has worsened over time and that an assessment made today (with evidence directly relevant to the requisite qualification period) might come to a conclusion that he suffers a degree of impairment which would rate more highly on the Impairment Tables (Tables 2, 3 and 4 related to upper limb, lower limb and spinal functions). However, the Tribunal must repeat that its considerations are limited in this instance to the Applicant’s status (and corroborating evidence) relating to the qualification period 8 August 2016 to 7 November 2016.
A SELF-DENYING ORDINANCE
It was put to the Applicant, on several occasions during the hearing, by the Respondent’s representative that there were a variety of treatment options available to him but that he had refused to countenance or undertake them.
The Applicant agreed with this proposition.
When it was put to him that further surgical intervention had been recommended but he had declined this option, the Applicant stated that he did not want to undertake further surgery for good and cogent reasons. He found that his previous surgery left him in further pain and without a sufficient degree of relief. At the time of that initial surgery he had the physical and emotional support of his wife and two children. His personal circumstances had then changed such that this was no longer the case and he is reliant upon the kindness of one of his neighbours to help with his daily living requirements. Hence he would have no-one to assist him in a post-surgical environment.
This Tribunal notes that the AAT1 (as quoted above at paragraph 45) was supportive of the Applicant’s position in not countenancing further surgery at that stage, although that view was formed almost two years ago and Mr Clarke’s condition appears to have worsened in that period.
When it was put to the Applicant that he had declined to continue to take his prescribed medication, especially that related to pain relief, he again agreed. He stated that having been on various pain relief (opioid) medications for over ten years he was concerned that he was either becoming addicted to, or risked becoming addicted to, these medications.
Both of these arguments on the part of the Applicant are logical and rational. They have been clearly considered by him and he has arrived at a decision about the management of his own health which he considers appropriate. The Tribunal understands both his concerns about the management of his lifestyle and condition in a new post-operative environment and his legitimate concerns – expressed extensively in current literature[21] – about the personal consequences of the “opioid epidemic”.
[21] See, e.g., National Institute on Drug Abuse, Opioid Overdose Crisis (January 2019) < Gabrielle Campbell, How is Australia responding to the pharmaceutical opioid problem?, National Drug & Alcohol Research Centre < Rick Brown and Anthony Morgan, ‘The opioid epidemic in North America: Implications for Australia’ (Paper No 578, Australian Institute of Criminology, July 2019).
Unfortunately for the Applicant, the relevant legislation places upon any applicant for the DSP a requirement to submit themselves to what is described as “reasonable treatment”.
Not only does a condition need to be fully diagnosed and treated, it must also be fully stabilised as mentioned in paragraph 21 above. This criterion then enlivens the requirement that all reasonable treatment options must at least be attempted if not exhausted (unless exceptional circumstances apply for not undertaking reasonable treatment).
A condition is fully stabilised, for the purposes of paragraph 6(4)(c) and subsection 11(4) of the Impairment Tables Determination, if:[22]
(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 two 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 two 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.
[22] Impairment Tables Determination sub-s 6(6).
Reasonable treatment, for the purposes of subsection 6(6) of the Impairment Tables Determination, is treatment that:[23]
(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.
[23] Impairment Tables Determination sub-s 6(7).
The Secretary’s position is that the legislation requires that an applicant for the DSP undertake any such reasonable treatment as is available. The Applicant’s position is that he declines to do so.
The Applicant has every right to make such a decision but, in making it, he enters into a self-denying ordinance such that he excludes himself from access to the scheme and benefits which are dependent upon his undertaking such treatment and establishing that his condition(s) is fully stabilised.
CONCLUSIONS
Although, as stated above, the Tribunal must make its determinations de novo on the material currently before it, but with clear reference to the Applicant’s position at the qualification period, it is not inappropriate to note that the JCA report of 4 November 2014, the AAT1 decision of 27 February 2015 and the more recent decision of the AAT1 of 29 February 2016 all concluded that the impairment rating for all his conditions was 5 (five) points. This is consistent with the conclusion reached in the Respondent’s SFIC.
For the reasons stated above, the Tribunal in this instance comes to the same conclusion, namely that the Applicant’s spinal and neck conditions give rise to a rating of 5 (five points). This is below the 20 point threshold required to qualify for the DSP.
The evidence indicates that impairment ratings cannot be assigned in relation to either his issues of erectile dysfunction or depression.
It may well be that the further deterioration in his condition(s), provided that evidence is adduced in relation to a qualifying diagnosis of his mental health status, may well result in his outstanding application (of 26 November 2018) being assessed differently, as would any further application which Mr Clarke is entitled to make.
The finding in relation to the level of impairment relieves the Tribunal of any necessity to consider the work capacity or participation in programs of support requirements which form an integral part of section 94 of the Act. These need detailed consideration only in the event of the Applicant reaching the required threshold of 20 points which is not the case in this instance.
DECISION
The decision under review is affirmed.

I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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Associate
Dated: 20 December 2019

Date(s) of hearing: 6 December 2019

Applicant: In person

Solicitors for the Respondent: Mr A Downie, Department of Human Services

[2019] AATA 5525

20 December 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Remedies

Jurisdiction

Date(s) of hearing:	6 December 2019
Applicant:	In person
Solicitors for the Respondent:	Mr A Downie, Department of Human Services