Cutts and Secretary, Department of Social Services (Social Services Second Review)

Cutts and Secretary, Department of Social Services (Social services second review) [2018] AATA 36 (16 January 2018)
Division:GENERAL DIVISION
File Number: 2017/5256
Re:Winston Cutts
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:16 January 2018
Place:Brisbane

The Tribunal affirms the decision under review.
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Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether conditions permanent - whether 20 points or more under the impairment tables– decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Member D K Grigg
16 January 2018
INTRODUCTION AND CLAIMS HISTORY

On 27 May 2015 Mr Cutts lodged a claim for Disability Support Pension (“DSP”), listing his medical conditions as:[1]
·Symptomatic Schmorl’s Node;
·Chronic Back Pain Disorder;
·Depression; and
·Post-traumatic stress disorder.
[1] Exhibit 1, T Documents, T8, pages 67-94, Mr Cutts’ Claim for DSP dated 27 May 2015.
Mr Cutts claims these conditions impact on his ability to function as follows:
·He can only walk for 15 minutes;
·He can stand/sit for small periods only;
·He suffers from mental blackouts and irritability; and
·He can only lift up to 2kg with each arm.
Following a Job Capacity Assessment (“JCA”) Mr Cutts’ claim was rejected by a Centrelink officer on 15 July 2015.[2] The JCA concluded that Mr Cutts’ impairments were not fully diagnosed, fully treated and not fully stabilised.[3]
[2] Exhibit 1, T Documents, T11, pages 111-112, Centrelink Decision dated 15 July 2015.
[3] Exhibit 1, T Documents, T10, pages 106-110, Job Capacity Assessment report dated 13 July 2015.
Mr Cutts sought a review of that decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mr Cutts’ impairments were not fully treated and not fully stabilised.[4]
[4] Exhibit 1, T Documents, T12, pages 113-118, ARO Decision dated 30 September 2015.
Mr Cutts then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD rejected Mr Cutts’ claim and affirmed the ARO’s decision on 11 February 2016.[5]
[5] Exhibit 1, T Documents, T2, pages 5-9, SSCSD’s Decision and Reasons for Decision dated 11 February 2016.
Mr Cutts has sought a review of the SSCSD’s decision by this Tribunal.[6]
[6] Exhibit 1, T Documents, T1A, pages 1-4, Application for Review of Decision dated 1 September 2017.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):
(a)Mr Cutts must have a physical, intellectual or psychiatric impairment;
(b)Mr Cutts’ impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[7]
(c)Mr Cutts must have a continuing inability to work.
[7] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Cutts meets the Section 94 Requirements is the date of the claim (in this instance as at 27 May 2015), unless Mr Cutts becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[8] Therefore, in order to qualify for DSP, Mr Cutts must have met the Section 94 Requirements between 27 May 2015 and 26 August 2015 (“Qualification Period”).
[8] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Cutts’ impairments after the Qualification Period cannot be considered, unless it “cast[s] light on” the functional impact of the impairments in the Qualification Period.[9]
DID MR CUTTS HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[9] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1];
and on appeal, Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[10]
[10] Determination, s 3.
Mr Cutts’ Medical Conditions
The Medical Report completed by Dr Taylor in association with Mr Cutts’ DSP claim listed Mr Cutts’ medical conditions as back pain and depression.[11]
[11] Exhibit 1, T Documents, T9, pages 95-105, DSP Medical Report completed by Dr Taylor dated 26 May 2015.
Lower Back Condition
In October 2014 Mr Cutts had an MRI of his lumbar spine performed which showed:[12]
No acute lumbar spine abnormality or cause for ongoing back pain identified. Schmorl’s node at L3 vertebral body appears likely longstanding given the lack of any associated oedema
[my emphasis]
[12] Exhibit 1, T Documents, T4, page 47, MRI Report dated 9 October 2014.
Between November 2014 and April 2015 Dr Taylor reported that Mr Cutts had continuing back pain and was unfit for work.[13]
[13] Exhibit 1, T Documents, T15, page 124, DSP Medical certificate completed by Dr Taylor dated 14 November
2014; page 126, Medical certificate completed by Dr Taylor dated 14 January 2015; page 127, Medical certificate completed by Dr Taylor dated 2 February 2015; page 130, Medical certificate completed by Dr Taylor dated 10 March 2015; page 131, Medical certificate completed by Dr Taylor dated 30 March 2015; page 132, Medical certificate completed by Dr Taylor dated 26 April 2015
In March 2015 Dr Kieran Bairstow recorded that Mr Cutts had symptomatic schmorl’s node with chronic pain.[14]
[14] Consultation Notes of Dr Bairstow dated 16 March 2015 and 30 March 2015.
In May 2015 Dr Taylor reported that:[15]
(a)Mr Cutts:
(i)had back pain associated with long periods of sitting, standing or lifting and bending;
(ii)was treating his back pain with physical therapy, analgesics and nonsteroidal anti-inflammatory drugs;
(iii)had not been assessed by a specialist; and
(b)the impact of the condition on Mr Cutts’ ability to function was expected to persist for more than 24 months and remain unchanged for the next two years.
[15] Exhibit 1, T Documents, T9, pages 98-100, DSP Medical Report completed by Dr Taylor dated 26 May 2015.
Between June and July 2015 Dr Taylor reported that Mr Cutts had continuing back pain and was unfit for work.[16]
[16] Exhibit 1, T Documents, T15, page 134, Medical certificate completed by Dr Taylor dated June 2015; page 135,
Medical certificate completed by Dr Taylor dated 27 July 2015.
A JCA was conducted face-to-face with Mr Cutts in July 2015 by a Rehabilitation Counsellor and Registered Psychologist. The JCA concluded that Mr Cutts spinal condition was not fully diagnosed, fully treated or fully stabilised because there was no definitive diagnosis and he had not been assessed by a specialist.[17]
[17] Exhibit 1, T Documents, T10, pages 106-107, JCA Report dated 13 July 2015.
In December 2015 Dr Russell Davies, General Practitioner, reported that Mr Cutts had low back pain and stiffness for which he was taking medication.[18]
[18] Exhibit 1, T Documents, T14, page 123, Medical Certificate of Dr Davies dated 13 December 2015.
Depression
In early and mid-May 2015 Mr Cutts presented to Mental Health Services at Princess Alexander Hospital due to an inability to sleep, concerns he may harm himself and flash backs regarding a truck accident he was involved in in February 2014. According to the PA Hospital records, Mr Cutts lost control of a truck and only just managed to regain control prior to driving off a cliff. He injured his back in the truck accident.[19]
[19] Exhibit 1, T Documents, T6, pages 52-60, PA Hospital Records dated 9 May 2015 and T7, pages 61-66, PA
Hospital Records dated 13 May 2015.
The PA Hospital records record that:
(a)Mr Cutts was diagnosed with depression by a general practitioner in November 2014 and commenced taking antidepressants;
(b)The plan developed by the Mental Health Services was for Mr Cutts to:
(i)change or increase his antidepressant medication; and
(ii)obtain a referral to a psychologist from his general practitioner.
In May 2015 Dr Taylor reported that Mr Cutts:[20]
(a)had a presumptive diagnosis of depression which he was treating with anti-depressants;
(b)had not seen a specialist for the condition;
(c)had difficulty interacting; and that
(d)the impact of the condition on Mr Cutts’ ability to function was expected to persist for 13- 24 months and fluctuate over the next two years.
[20] Exhibit 1, T Documents, T9, pages 101-103, DSP Medical Report completed by Dr Taylor dated 26 May 2015.
The JCA concluded that Mr Cutts’ mental health condition was not fully diagnosed, fully treated or fully stabilised because he had not yet had any psychological counselling and his medications were still being uptitrated. Further, the JCA noted Dr Taylor’s prognosis that his symptoms may resolve within 24 months.[21]
[21] Exhibit 1, T Documents, T10, pages 107-108, JCA Report dated 13 July 2015.
In December 2015 Dr Davies reported that Mr Cutts had anxiety and depression and PTSD for which he was taking medication.[22]
[22] Exhibit 1, T Documents, T14, page 123, Medical Certificate of Dr Davies dated 13 December 2015.
Conclusion on Impairment
The Secretary accepts that Mr Cutts suffered from impairments for the purposes of section 94(1)(a) at the Qualification Date.[23]
[23] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 30 August 2017, para 5.10.
The Tribunal finds that Mr Cutts suffered from a mental health impairment for the purposes of section 94(1)(a) during the Qualification Period. However, the Tribunal is unable to assign an Impairment Rating for this impairment. Table 5 of the Determination, which relates to mental health function, specifically provides that the diagnosis of a mental health condition must be made by an “appropriately qualified medical practitioner”[24] (this includes a psychiatrist with evidence from a clinical psychologist, if the diagnosis has not been made by a psychiatrist). Without such a diagnosis, no Impairment Rating can be assigned. There is no evidence that Mr Cutts has been diagnosed with a mental health impairment by either a clinical psychologist or psychiatrist. As a result, no Impairment Rating can be assigned in relation to Mr Cutts’ mental health condition. Further, there is no evidence of any psychological counselling treatment or evidence regarding whether the antidepressant medication Mr Cutts was taking during the Qualification Period had been stabilised.
[24] See Determination, s 3.
In relation to Mr Cutts’ back pain, there is no evidence of any spinal or pain specialist review. The Tribunal notes that the MRI of Mr Cutts’ spine raises doubts as to whether Mr Cutts is still suffering from a spinal condition, or alternatively, something else might be causing Mr Cutts’ reported back pain. Further, Mr Cutts informed the JCA that he was on a waiting list to see a specialist and had a referral to a pain clinic but had not yet commenced as he was waiting for a place.[25] Therefore, even if there was a definitive diagnosis of Mr Cutts’ spinal condition, he had clearly not been “fully treated”[26] during the Qualification Period. In the circumstances the Tribunal is unable to consider this condition for the purposes of this application. Once this condition has been fully treated and is “fully stabilised”[27] it is open to Mr Cutts to lodge a new DSP claim with corroborating evidence.
[25] Exhibit 1, T Documents, T10, page 107, JCA Report dated 13 July 2015.
[26] For the purposes of ss 6(4)(a) and (b) of the Determination.
[27] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
At the hearing Mr Cutts was given leave to provide any additional medical evidence he wished to rely on. The further material was received on 2 January 2018 and consisted of consultation notes of Mr Bairstow, an Exercise Physiologist; a physiologist’s health assessment template form; client case notes by Ms Nicholson, an Exercise Physiologist; a discharge summary from the Mater Adult Hospital Emergency Department; and a photograph of a CT scan of Mr Cutt’s spine.
The additional material, as submitted by the Secretary, does not assist Mr Cutts’ in his application. The material:
(a)contains no evidence of any diagnosis of a mental condition by an appropriately qualified medical practitioner as required by Table 5 of the Determination;
(b)does not shed any additional light on the status of Mr Cutts’ spinal condition during the Qualification Period; and
(c)provides evidence that Mr Cutts attended hospital complaining of pain in the throat but there is no evidence of a definitive diagnosis and no evidence of treatment or evidence of how this condition, even if permanent, impacted on Mr Cutts’ ability to function.
DECISION
Mr Cutts’ claim fails. His conditions did not satisfy the requirements of section 94 of the Act during the Qualification Period.
The decision under review is affirmed.

I certify that the preceding 31 (thirty - one) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

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Associate
Dated: 16 January 2018

Date of hearing: 17 November 2017

Date final submissions received: 2 January 2018

Applicant: In person

Solicitors for the Joined Party: Department of Human Services

[2018] AATA 36

16 January 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Date of hearing:	17 November 2017
Date final submissions received:	2 January 2018
Applicant:	In person
Solicitors for the Joined Party:	Department of Human Services