Clifford and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1251

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1251

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q200600842

GENERAL ADMINISTRATIVE DIVISION		)
Re		RODNEY CLIFFORD

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member P McDermott, RFD

Date23 April 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

.................[Sgd].............................

Senior Member

CATCHWORDS

SOCIAL SECURITY - disability support pension – whether applicant has physical, intellectual or psychiatric impairment – whether applicant has impairment rating of 20 points or more – whether the applicant’s medical conditions were considered to be permanent - decision affirmed

Social Security Act 1991 (Cth) ss 94. Schedule 1B
Social Security (Administration) Act 1999 (Cth) cl 4(1) Schedule 2

Secretary, Department of Social Security v Murphy (1998) 52 ALD 268

REASONS FOR DECISION

23 April 2007   Senior Member P McDermott, RFD

Introduction

1.      I have to decide whether Mr Rodney Clifford is entitled to a disability support pension. My decision will largely turn on whether there is medical evidence that he then had medical conditions which had become permanent and which affected his ability to work.

Prior Decisions

2.      On 9 June 2006 Centrelink made a decision that Mr Clifford did not qualify for a disability support pension because his medical conditions were of a temporary nature.

3.      On 28 August 2006 the authorised review officer of Centrelink affirmed that decision. That officer considered that his medical conditions could not be considered to be permanent.

4.      On 12 October 2006 the Social Security Appeals Tribunal affirmed the decision of Centrelink.

5.      Mr Clifford has made an application to this Tribunal to review the decision of the Social Security Appeals Tribunal.

Eligibity Criteria

6. The entitlement to a disability support pension is conferred by s 94 of the Social Security Act1991 (“the Act”).

7.      A person is qualified for a disability support pension if the person has a physical, intellectual or psychiatric impairment (s 94(1)(a)); and the person’s impairment is of 20 points or more under the Impairment Tables (s 94(1)(b)); and the person has a continuing inability to work (s 94(1)(c)(i)). All of these requirements must be satisfied before a person is entitled to a disability support pension.

8. In considering whether Mr Clifford had a “continuing inability to work” I must have regard to how that expression is defined by s 94(2) of the Act. That definition requires Mr Clifford to have an impairment which is of itself sufficient to prevent a person from doing any work within the next 2 years. The term “work” is defined to be work of at least 30 hours per week on wages that are at or above the relevant minimum wage (s 94(5)).

9. I mention that there are other provisions in s 94 that Mr Clifford satisfies. He is over the age of 16 years (s 94(1)(d)) and he is an Australian resident (s 94(1)(e)(i)).

Impairment Tables

10. The Impairment Tables which I must consider are in Schedule 1B of the Act.

11.     During the hearing I outlined to Mr Clifford some important aspects of the Introduction to the Impairment Tables which have to be considered in the determination of his application [T3, folio 10].

12.     Paragraph 4 of the Introduction to the Impairment Tables provides that a rating is only to be “assigned after a comprehensive history and examination”. The paragraph states that for “a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”.

13.     Paragraph 5 of the Introduction to the Impairment Tables states that a condition must be considered to be permanent. That paragraph states that once “a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years”. The paragraph concludes with a statement that a “condition may be considered [to be] fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years”.

14.     Paragraph 6 of the Introduction to the Impairment Tables states that in order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider what treatment or rehabilitation has occurred and whether any treatment is still continuing or is planned in the near future.

Time Period For Determining Elibility

15.     During the hearing of his application I explained to Mr Clifford that for him to be qualified to receive the disability support pension, he must meet the eligibility criteria on the date of his claim or within 13 weeks of that date.

16. I am required to have regard to that time period by clause 4(1) of Schedule 2 of the Social Security (Administration) Act 1999. This provision allows a person who does not qualify for disability support pension at the date of the application to do so within a further 13 weeks.

17.     The time period for which I must determine the eligibility of Mr Clifford is the period of 13 weeks which commenced on 2 February 2006 which is the date of his claim.  I will in these reasons refer to that time period as the “relevant time period”.

History Of The Matter

18.     Mr Clifford gave evidence in support of his application. Since 1980 he has had a heroin addiction. He mentioned that he is currently on the methadone program. He stated that he is prescribed 100 mg a day from the Nambour Public Hospital. He mentioned how he is fatigued by his use of methadone. This side-effect of the use of this drug makes it difficult for him to engage in employment. Mr Clifford mentioned that he has undertaken some residential rehabilitation programmes. He attends NA twice a week. He mentioned that he still occasionally uses drugs.

19.     I asked Mr Clifford to outline his employment history. Mr Clifford stated that he has been employed for 19 months in the past 17 years. His last period of employment was in 2001 and 2002 when he undertook a government subsided traineeship as a telephone debt collector. He was employed for 6 hours a day from Monday to Friday. His period of employment lasted for fourteen months. I gained the impression that Mr Clifford found that work to be worthwhile. He unfortunately had to cease employment because of the need to undertake drug treatment.

20.     Mr Clifford has been offered counselling through some private providers. He has not availed himself of that opportunity. I accept his explanation that he is unable to afford to attend those counselling sessions. He did, however, mention that he has attended counselling sessions at the Nambour Hospital once every six weeks.

21.     Mr Clifford also has a psychiatric condition. He has not had any recent treatment for this condition.  

Treating Doctor’s Report

22.     Centrelink was provided with a Treating Doctor’s Report dated 30 January 2006 from Dr Blanco Isquierdo [T5, folio 44]. Dr Blanco Isquierdo in his report confirms a diagnosis of Mr Clifford being opiate dependent and having a depression anxiety disorder. The treating doctor indicated that the current symptoms were anxiety, insomnia and depressive mood [T5, folio 45].

23.     Dr Blanco Isquierdo mentioned that Mr Clifford was currently attending the ATODS Program at the Nambour Hospital and was undergoing treatment through the methadone programme and counselling with social workers [T5, folio 46].

24.     Dr Blanco Isquierdo remarked that the prognosis of Mr Clifford “will all depend on the patient” [T5, folio 46].

25.     Dr Blanco Isquierdo considered that the current impact of the conditions on the ability of Mr Clifford to function was expected to persist for 3-24 months. Dr Blanco Isquierdo also gave the opinion that within the next 2 years the effect of the conditions on Mr Clifford’s ability to function is expected to “fluctuate” [T5, folio 46].

Capacity For Participation Assessment Report

26.     On 7 June 2006 a Capacity for Participation Assessment Report (T13, folio 59) was completed by Ms T Treichel, a psychologist. This report was completed following a personal interview with Mr Clifford. I consider that it was important that Dr Blanco Isquierdo was consulted in the preparation of this report. Dr Blanco Isquierdo then advised Ms Treichel that if Mr Clifford ceased his substance abuse then he would be able to work. Ms Treichel was advised by Mr Clifford that he had “no desire to return to detox or rehab and no willingness to engage in further therapy” [T13, folio 63].

Findings Of Tribunal

27.     In determining this application I have considered the documented conditions of opiate dependence and depression anxiety disorder. These conditions are the subject of the claim of Mr Clifford [T4, folio 30]. I consider that these conditions constitute an impairment (s 94(1)(a)).

28.     I have to consider whether his impairment is of 20 points or more under the Impairment Tables (s 94 (1) (b)); and whether he has a continuing inability to work (s 94(1)(c)).

29.     In Secretary, Department of Social Security v Murphy (1998) 52 ALD 268 Drummond J explained, at 271, that the documented condition must also be the condition of disability that the applicant is in after that person has received appropriate treatment for the condition.

30.     I have concluded that during the relevant time period the conditions of Mr Clifford were not “considered to be permanent” in accordance with paragraph 5 of the Introduction to the Impairment Tables. I have already mentioned that paragraph 4 of the Introduction to the Impairment Tables provides that for “a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”.

31.     I have relied upon medical evidence to find that during the relevant time period the conditions of Mr Clifford were not permanent. Mr Clifford himself stated that his mental health condition has not been treated. There was no specialist medical evidence placed before me regarding the current psychiatric condition of Mr Clifford. I have already mentioned that he has not had any recent treatment for this condition.

32.     I find that during the relevant time period his conditions had not stabilised.

33.     In view of my finding that the conditions of Mr Clifford had not stabilised, I cannot assign a rating for his impairment having regard to paragraph 4 of the Introduction to the Impairment Tables which states that a rating is only to be assigned after a comprehensive history and examination.

34.     I have also had regard to paragraph 6 of the Introduction to the Impairment Tables which provides that in order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider what treatment or rehabilitation has occurred and whether any treatment is still continuing or is planned in the near future. There is no medical evidence before me in relation to what treatment or rehabilitation has occurred, whether any treatment is still continuing or is planned in the near future. I appreciate that Mr Clifford considers that his condition is stabilised. However, there is no medical evidence before me which supports a conclusion that the conditions of Mr Clifford are stabilised.

35.     I also mention that at the hearing of his application Mr Clifford had denied that Dr Blanco Isquierdo was his treating doctor. In fact Mr Clifford stated that he only saw that medical practitioner for the purpose of completing the Treating Doctor’s Report [T5, folio 44]. However, in his claim form Mr Clifford has nominated Dr Blanco Isquierdo as the doctor that he usually sees [T4, folio 32]. Whether or not Dr Blanco Isquierdo is his usual treating doctor, the evidence of this medical practitioner is before me and has not been contradicted by any other evidence.

36.     A further reason why I consider that Mr Clifford is not entitled to the disability support pension relates to the fact that there is evidence that he was capable of working for 30 hours per week within the next 2 years. This was the conclusion of Ms Treichel who reported, after having consulted with the treating doctor, that Mr Clifford would be capable of undertaking more than 30 hours of work per week with disability specific intervention within 6 to 24 months [T13, folio 66].

37.     I appreciate that Mr Clifford considers that he is not capable of working at present. However, no medical evidence has been placed before me to suggest that Mr Clifford was not capable of working for 30 hours per week within the next 2 years.

38.     I accept the evidence of Ms Treichel and find that during the relevant time period Mr Clifford was capable of undertaking more than 30 hours of work per week within 6 to 24 months.

39.     I have decided that during the relevant time period Mr Clifford was not entitled to a disability support pension.

40.     I make the observation that my decision relates to the evidence of the condition of Mr Clifford during the relevant time period and would not have any bearing upon his entitlement to disability support pension under any subsequent claim that he has now lodged or may lodge in the future.

41.     During the hearing of his application I advised Mr Clifford that he had the right to lodge a further application with Centrelink for a disability support pension. That application would then be assessed in the light of more recent medical evidence. I also add that during the hearing he was advised of the social worker support that could be made available to him by Centrelink. Mr Clifford consented to being given such support.

42.     On a number of occasions I gave Mr Clifford the opportunity to obtain medical evidence to support his application. He declined the opportunity to apply for an adjournment so that he could obtain such evidence.

Decision

43.     The Tribunal affirms the decision under review.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Mr P McDermott RFD, Senior Member

Signed:         .....................................................................................
  F. Kamst, Legal Research Officer

Date/s of Hearing  17 April 2007
Date of Decision  23 April 2007
Applicant  Mr Clifford, himself
Respondent  Mr B Hamilton, Departmental Advocate