Danial Woods and Secretary, Department of Social Services

[2014] AATA 627

[2014] AATA 627  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/4039
Re	Danial Woods
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr P Wulf, Member
Date	3 September 2014
Place	Brisbane

The Tribunal affirms the decision under review.

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Mr P Wulf, Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Impairment tables – Conditions not fully treated and stabilised – Conditions not permanent – No impairment rating – Decision under review affirmed

LEGISLATION
Social Security Act 1991 (Cth) ss 94

SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Mr P Wulf, Member

3 September 2014

INTRODUCTION

1. Mr Danial Woods[1] seeks review of decisions made by Centrelink on 19 September 2012[2] to reject his claim for disability support pension (“DSP”). This related to a claim lodged with Centrelink on 2 September 2012.[3] An authorised review officer (“ARO”) affirmed the decision of 7 May 2013.[4] The ARO’s decisions were affirmed by the

   
   

   Social Security Appeals Tribunal (“SSAT”) on 17 July 2013.[5] On 12 August 2013, the applicant applied to the Tribunal for review of the SSAT’s decision.

   [1] Exhibit 1, pp 1.

   [2] Exhibit 1, pp 113-114.

   [3] Exhibit 1, pp 54-79.

   [4] Exhibit 1, pp 133-139.

   [5] Exhibit 1, pp 2-5.

2. For the reasons that follow, the Tribunal finds that at the time of the original application for DSP, while Mr Woods had conditions that were fully diagnosed, treated and stabilised, he did not have conditions that attracted 20 impairment points and therefore the decision is affirmed.

   ISSUES FOR THE TRIBUNAL

3. The issues for the Tribunal to determine are:

   (a)Whether, at 31 August 2012 when the applicant first discussed his claim, or within 13 weeks of that date (“the relevant period”), he had a condition that was fully diagnosed, treated and stabilised; and, if so

   (b)

   Did the applicant, as a result of his condition, attract an impairment rating of at least 20 points under the Impairment Tables (“the Impairment Tables”) contained in s 6 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

   
   

   (“the Determination”); and, if so

   (c)Did the applicant have a “continuing inability to work”, because of his impairment, within the meaning of s 94 of Social Security Act 1991 (“the Act”).

   LEGISLATION

4. The relevant qualification provisions for DSP are contained within s 94 of the Act, which states:

   (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;

   …

   (2) A person has a continuing inability to work because of an impairment if the

   Secretary is satisfied that:

   (aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and

   (a) in all cases—the impairment is of itself sufficient to prevent the person from 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.

   Note:     For work see subsection (5)

   (3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

   (a)         the availability to the person of a training activity; or

   (b) the availability to the person of work in the person’s locally accessible labour market.

   (3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

   (3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

   (4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:

   (a)       is unlikely to need a program of support; or

   (b)       is likely to need a program of support provided occasionally; or

   (c)       is likely to need a program of support that is not ongoing.

   (5)       In this section:

   program of support means a program that:

   (a) is designed to assist persons to prepare for, find or maintain work; and

   (b)          either:

   (i)        is funded (wholly or partly) by the Commonwealth; or

   (ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.

   training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

   (a)          education;

   (b)         pre‑vocational training;

   (c)          vocational training;

   (d)         vocational rehabilitation;

   (e)          work‑related training (including on‑the‑job training).

   work means work:

   (a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

   (b) that exists in Australia, even if not within the person’s locally accessible labour market.

   IMPAIRMENT TABLES

5. The Impairment Tables, under which impairment point ratings appear, are contained in s 6 of the Determination. The introduction to those Tables relevantly states:

   (6)       Applying the Tables

   …

   (2) The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.

   Note: For additional information that must be taken into account in applying the Tables see section 7.

   Impairment ratings

   (3)        An impairment rating can only be assigned to an impairment if:

   (a) the person’s condition causing that impairment is permanent; and

   Note: For permanent see subsection 6(4).

   (b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   ….

   Permanency of conditions

   (4)       For the purposes of paragraph 6(3)(a) a condition is permanent if:

   (a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

   (b)       the condition has been fully treated; and

   Note: For fully diagnosed and fully treated see subsection 6(5).

   (c)       the condition has been fully stabilised; and

   Note: For fully stabilised see subsection 6(6).

   (d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   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 paragraphs 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.

   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.

   Note: For reasonable treatment see subsection 6(7).

   Reasonable treatment

   (7) For the purposes of subsection 6(6), reasonable treatment is treatment that:

   (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.

   ANALYSIS AND FINDINGS

   Background

6. Mr Woods is a 38 year old man who is currently receiving DSP following the granting of a pension on 27 September 2013. He was, prior to his accident, a roof plumber and carpenter. He had been working in Gladstone until the accident which resulted in him sustaining a torn meniscus in his right knee and reflective pain dystrophy.

7. The results of this injury are threefold. Firstly, Mr Woods is unable to work in his previous role. Mr Woods had undergone an arthroscopy for his injury; however this had not rectified the issue and his knee gives way at times without warning.[6] Further,

   
   

   Mr Woods indicated that he was suffering from depression as a result of the pain and his inability to cope with his situation. He further stated that he had arthritis of the joint and that he has issues with his ankle seizing up.

   [6] Exhibit 1, pp 80-87.

8. Following his injury, Mr Woods was placed on medication that proved to be either inadequate or incorrect for his conditions. Mr Woods admitted that at times he can be aggressive in nature which comes from his injury, depressed at being unable to handle the pain, and being frustrated that he is not improving at the speed he would obviously like. Mr Woods is acutely aware of this issue and is undertaking the appropriate actions to assist him with this behaviour that would not have eventuated except for the pain and discomfort. Mr Woods is also doing everything he can in relation to his conditions and this is noted in his medical reports which indicate that he is very compliant in relation to the recommended treatment.[7]

   [7] Exhibit 1, 120-128; report dated 8 March 2013.

9. Mr Woods contends that his conditions give rise to a claim for DSP as they are permanent in nature and he should therefore receive at least 20 points under the Tables of Assessment. In contrast, the respondent concedes that the injury to the knee and the psychiatric conditions including the depression are fully diagnosed, treated and stabilised as required under s 94(1)(a) of the Act; but the respondent argues that at the time of his original application for DSP, Mr Woods did not have conditions that would attracted 20 impairment points. Accordingly, it is not necessary to discuss aspects related to the actual conditions as to whether they were fully diagnosed, treated and stabilised. However, it is necessary to assess whether Mr Woods attracts enough impairment points in the mind of the Tribunal and the flow on aspects related to his condition.

   Section 94(1)(b) of the Act: Impairment Rating

10. The Impairment Tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. In using the Tables, ratings can only be assigned for conditions where there is an associated current loss of function or where prolonged loss of function would be expected in most work situations (see paragraph 3 of the Introduction).

11. Mr Wood has two primary conditions: the issues with his knee, and his depression. There was no specific evidence as to the arthritis that the Tribunal could assess and therefore, the basis of the following is made in relation to the knee and depression only.

    Impairment Rating for Lower Limb

12. When making its original decision, the job capacity assessor found that Mr Wood’s right knee warranted ten points under the Impairment Tables.[8] To achieve ten impairment points, Mr Wood’s needed to have a moderate functional impact. To achieve greater than ten points, Mr Woods would have to have either a severe or extreme functional impact of the lower limbs.

    [8] Exhibit 1, 106-112; see generally, Social Security (Tables for the Assessment of Work related Impairment for Disability Support Pension) Determination 2011, Table 3.

    To have a severe functional impact on activities using the lower limbs,

    (1)Mr Woods:

    (a)is unable to do any of the following:

    (i)walk around a shopping centre or supermarket without assistance;

    (ii)walk from the car park into a shopping centre or supermarket without assistance;

    (iii)      stand up from a sitting position without assistance; and

    (b)requires assistance to use public transport.

    (2)This impairment rating level includes a person who requires assistance to:

    (a)move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or

    (b)move around using walking aids (e.g. a quad stick, crutches or walking frame) i.e. the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.

13. Mr Woods indicated that while it was difficult and he would not normally do it out of choice, Mr Woods was able to go to the supermarket and undertake activities as defined within the relevant section of Table 3 related to severe functional impact. Accordingly, on this basis, the Tribunal is of the opinion that this disability achieves ten impairment points and this determination is supported by the medical evidence

    Impairment Rating for Depression

14. Mr Wood’s functional impairment in relation to his depression originally achieved no impairment points but was subsequently upgraded to five impairment points.[9] The five impairment points were awarded by the ARO on the basis that Mr Woods had moderate depression. This was based on a number of assessments including reports from

    
    

    Dr McGree,[10] Dr Prasad[11] and Dr Lingeswaran.[12]

    [9] Exhibit 1, 106-112; see generally, Social Security (Tables for the Assessment of Work related Impairment for Disability Support Pension) Determination 2011, Table 5.

    [10] Exhibit 1, 80-87; report dated 3 September 2012.

    [11] Exhibit 1, 120-128; report dated 8 March 2013.

    [12] Exhibit 1, 129-132.

15. Dr McGree indicated that the depression fluctuated but would impact Mr Woods for more than 24 months. Dr Prasad indicated that Mr Woods’ depression would significantly improve over the two years following the medical report (outside the relevant period). Dr Lindeswaran, a Psychiatry Registrar, diagnosed Mr Woods as having moderate depression and suggested appropriate treatment that would assist Mr Woods to improve. Based on these assessments, it is understandable as to the rationale for the ARO’s determination that Mr Woods should accrue five impairment points for his depression.

16. During the hearing, the respondent tendered a number of exhibits including two

    
    

    Job Capacity Assessments undertaken of Mr Woods in November 2013[13] and

    
    

    December 2013.[14] The November 2013 assessment indicated that Mr Woods should be granted ten impairment points for his knee and 20 impairment points for his depression. By contrast, in the December 2013 assessment, Mr Woods only accrued ten impairment points for his depression. The November 2013 was the basis for Mr Woods being granted immediate access to DSP as he qualified with 20 impairment points for a single condition.

    [13] Exhibit 6.

    [14] Exhibit 7.

17. During the hearing, there was discussion as to Mr Wood’s attendance with

    
    

    Ms Desley Fraser, Psychologist. Mr Woods met with Ms Fraser on approximately 13 occasions. The Tribunal subpoenaed the medical records of Ms Fraser with respect to

    
    

    Mr Woods on the basis that they might have been of some assistance in determining

    
    

    Mr Woods’ state of mind and the level of depression during the relevant period. Regrettably, the records provided by Ms Fraser were of little assistance to Mr Woods’ case. The medical records contained very few notes, which is somewhat concerning given that Mr Woods attended Ms Fraser’s rooms on 13 occasions.

18. As such, the Tribunal unfortunately is unable to increase the impairment rating above moderate depression as there is no medical evidence to support such a finding. The Tribunal is acutely aware of Mr Woods’ own submissions and sympathises with him; however the Tribunal must rely on medical evidence in making a determination. The assessment reports indicate that Mr Woods’ depression has worsened with time.

    
    

    Dr Lindeswaran’s report is the only medical document that specifically determines what the level of depression was during the relevant period. Without any additional medical evidence that was prepared during the relevant period and/or close to the relevant period, which it was hoped Ms Fraser’s records would have provided, the Tribunal is constrained in its ability to make an alternate finding other than Mr Woods had moderate depression. Therefore, the Tribunal can only grant Mr Woods five impairment points for his depression.

19. Based on this assessment, the Tribunal finds that Mr Woods accrues 15 impairment points in total and therefore, does not meet the requirement of 20 impairment points to gain DSP.

    Section 94(1)(c) of the Act: Continuing Inability to Work and Program of Support

20. As Mr Woods did not have a condition that accrued 20 impairment points at the time of the original application, it is not necessary to discuss this limb of the test.  Moreover, it is noted that Mr Woods had not completed a continuing ability to work program of support, this being undertaking a program of 18 months over three years.

    DECISION

21. For the reasons set out above, the Tribunal affirms the decision under review.

I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member

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Associate

Dated 3 September 2014

Date(s) of hearing	23 May 2014
Applicant	In person, by phone
Advocate for the Respondent	Rick McQuinlan, Department of Human Services