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

[2015] AATA 734

Davies and Secretary, Department of Social Services (Social services second review) [2015] AATA 734 (21 September 2015)

Division	GENERAL DIVISION
File Number	2015/2235
Re	Neville Davies
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	21 September 2015
Place	Brisbane

The Tribunal affirms the decision under review.

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

Senior Member A C Cotter

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – value of medical evidence – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), ss 26, 27, 94
Social Security (Administration) Act 1999 (Cth), ss 63, 80
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Senior Member A C Cotter

21 September 2015

INTRODUCTION

1. For approximately 30 years, Mr Neville Davies worked as a concreter.  He ceased work in about August 2014.

2. On 13 November of that year, he lodged a claim for Disability Support Pension (“DSP”), listing as his disabilities, illnesses and injuries osteoarthritis and prostate cancer.[1] 

   [1] Exhibit 1, T Documents, T 6, pages 74, 89.

3. A medical report[2] completed by his general practitioner, Dr Kyaw Zin Tun, on 6 November 2014, confirmed that Mr Davies suffered from advanced osteoarthritis in both knees and prostate cancer, both being conditions that had a significant impact on his ability to function. The date of diagnosis of the osteoarthritis was noted as 22 October 2014 (with a reference to an x-ray of the same date confirming the diagnosis). Current treatment was described as Panadol Osteo, which had commenced in November 2014; future treatment was listed as “orthopaedic review”. The prostate cancer was described as “asymptomatic”. The current treatment was stated as “monitoring PSA level; needs specialist review at some stage”, while future treatment was shown as “planned to refer to specialist”. Besides those conditions, Dr Tun also noted that Mr Davies suffered from moderate osteoarthritis in the left foot, but that condition was generally well managed and caused minimal or limited impact on his ability to function.

   [2] Exhibit 1, T Documents, T 7, pages 90-100.

4. The claim was rejected on the basis that Mr Davies did not have impairments of 20 points or more under the Impairment Tables. That decision was reviewed and affirmed by an Authorised Review Officer.[3] Mr Davies then sought a review by the Social Security Appeals Tribunal (“SSAT”).

   [3] Exhibit 1, T Documents, T13, page 123.

5. Before the matter was heard by the SSAT, Mr Davies provided a further medical certificate by Dr Tun dated 16 February 2015, stating that Mr Davies was “suffering from acute anxiety and symptoms of depression for 3 weeks”.[4]

   [4] Exhibit 1, T Documents, T 10, page 111.

6. At the SSAT hearing, Mr Davies told the Tribunal that his arthritis was also then affecting his hands, particularly the left hand.[5]

   [5] Exhibit 1, T Documents, T 2, pages 6, paragraph [18].

7. The SSAT affirmed the decision under review. Dissatisfied with the outcome, Mr Davies has sought a review by this Tribunal.

8. Before I deal with the issues to be considered, it is convenient to set out the key legislative provisions relevant to Mr Davies’ claim.

   THE LEGISLATIVE FRAMEWORK

9. Section 94 of the Social Security Act 1991 (Cth) (“Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the applicant has a physical, intellectual or psychiatric impairment; that the applicant’s impairment is of 20 points or more under the Impairment Tables; and that the applicant has a continuing inability to work.

10. The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 13 November 2014). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[6] Therefore, the relevant period for considering whether Mr Davies qualified for DSP is between 13 November 2014 and 12 February 2015.

    [6] See ss 41 and 42, and Schedule 2, cll 3 and s 4(1) of the Social Security (Administration) Act 1999 (Cth).

11. The Impairment Tables are contained in the Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (“Determination”), a legislative instrument made under the Act.[7]  The Tables are function, rather than diagnostic, based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.

    [7] See s 26(1) of the Act.

12. Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[8] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[9]

    [8] See s 6(3) of the Determination.

    [9] See s 6(4) of the Determination.

13. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following factors are to be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[10]

    [10] See s 6(5) of the Determination.

14. 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.[11]

    [11] See s 6(6) of the Determination.

15. “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.[12]

    [12] See s 6(7) of the Determination.

16. In the case of Mental Health Function, the Introduction to the relevant table, Table 5, makes it clear that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner …with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.

    ISSUES FOR THE TRIBUNAL

17. The issues which I am to determine are as follows:

    whether, at the relevant time, Mr Davies suffered impairments as a result of his conditions, namely osteoarthritis in both knees, prostate cancer, acute anxiety and depression, and arthritis in his hands;

    (b)whether, at the relevant time,  Mr Davies  had an impairment rating totalling 20 points or more under the Impairment Tables; and

    (c)if so, whether he had a continuing inability to work at the relevant time.

18. I deal with these issues below.

    CONSIDERATION

    Osteoarthritis in both knees

19. The Secretary concedes that this condition caused a physical impairment[13]and that it was fully diagnosed at the relevant time.[14] It is disputed, however, that the condition was fully treated and stabilised at the time. If it was not, the impairment could not be assigned a rating under the Impairment Tables.

    [13] See Exhibit 4, Secretary’s Statement of Facts and Contentions dated 28 August 2015, paragraph [20].

    [14] See Exhibit 4, Secretary’s Statement of Facts and Contentions dated 28 August 2015, paragraph [33].

20. As mentioned earlier, Dr Tun provided a diagnosis of osteoarthritis on 22 October 2014, about three weeks before the claim was lodged. The current treatment was listed as Panadol Osteo, which had only commenced in November, although an orthopaedic review was shown as future or planned treatment.

21. Mr Davies’ new general practitioner, Dr Ken Treichel, provided a report dated 18 August 2015[15] in response to a “Dear Doctor” letter that had been prepared by the Secretary’s representative. He confirmed the diagnosis of osteoarthritis, not only in both knees, but also in the hands and lumbar spine. He considered that Mr Davies had symptoms of each of those conditions for greater than five years, with more frequent complaints in the preceding two years.  He said there was no specific treatment for the osteoarthritic symptoms beyond avoidance of aggravating activities and use of non-steroidal anti-inflammatory medication and pain killers; physiotherapy would have only limited, short term usefulness. He went on to say that medication would only contain the pain and stiffness, and with time, Mr Davies would need increasing dosing and/or joint replacement.

    [15] See Exhibit 4, Secretary’s Statement of Facts and Contentions dated 28 August 2014, Annexure 1, Report of Dr K Treichel dated 18 August 2015.

22. Mr Davies told me that his condition was worsening. He said that when he was required to attend a functional capacity assessment in Maryborough, he found he had to negotiate a flight of stairs. Already having difficulties with stairs, he said that he had not been right since. He is unable to do the gardening and the shopping; he is unable to have a good night’s sleep, managing at best four hours a night. He needs a stick to walk and is close to needing a walker. He does not believe that physiotherapy or hydrotherapy could assist, as he was told the arthritis was “in (his) bones”.

23. While there is no doubt that Mr Davies suffers from an impairment arising from this condition, the question I have to determine is whether that condition was fully treated and stabilised (as those terms are understood under the Impairment Tables) at the relevant time. Based on the material before me, I have difficulty in reaching that conclusion. I say that for several reasons.

24. First, Mr Davies had been working as a self-employed concreter until about three months prior to the lodging of his claim and the initial diagnosis by Dr Tun. Apart from starting him on Panadol Osteo a matter of days before the claim, no other treatment (such as physiotherapy or hydrotherapy) appears to have been undertaken or discussed.

25. Second, Dr Tun himself appears to have appreciated the need for specialist evaluation by suggesting “orthopaedic review” as future/planned treatment.

26. The need for further review and evaluation was also highlighted by both the Employment Services Assessor and the Job Capacity Assessor who saw Mr Davies or reviewed his file respectively. In her report of 13 November 2014, the former noted that Mr Davies had “yet to gain optimal management of his bilateral knee pain”; it was considered best that he gain a temporary medical exemption to “allow him time to undertake physiotherapy and to arrange for a referral to orthopaedic surgeon”.[16] The Job Capacity Assessor noted that “further specialist interventions are consider [sic] likely to assist with improved function”.[17]

    [16] Exhibit 1, T Documents, T 8, page 103, Employment Services Assessment Report dated 13 November 2014.

    [17] Exhibit 1, T Documents, T 9, page 106, Job Capacity Assessment Report dated 15 December 2014.

27. Dr Treichel also confirmed that Mr Davies did not have any aids, equipment or assistive technology, nor had they been recommended to him to use.[18]

    [18] Exhibit 4, Annexure 1 to the Secretary’s Statement of Facts and contentions dated 28 August 2014, Report of Dr K Treichel dated 18 August 2015, paragraph [7].

28. Based on those views, I do not consider it possible to say that Mr Davies’ condition could be said to have been fully treated and stabilised at the relevant time; until he underwent a specialist assessment and undertook any recommended interventions or rehabilitation, it was impossible to reach a concluded view on the functional impact of his condition.

29. I appreciate that Mr Davies believes that physiotherapy and hydrotherapy will be of no assistance and that the SSAT shared his view that such conservative treatments would be unlikely to result in significant functional improvement. That could prove to be right. However, I think it appropriate that assessment be made after consultation with an appropriately qualified specialist. Likewise, I note that the SSAT concluded that this condition was fully treated and stabilised because the prospect of Mr Davies having knee replacement surgery (which the SSAT thought might result in significant improvement) through the public health system inside two years of the claim was remote.[19] Again, I think such a conclusion is premature until Mr Davies has at least been evaluated by an orthopaedic specialist.

    [19] Exhibit 1, T Documents, T 2, paragraph 16

30. Because Mr Davies’ condition is not fully treated and stabilised, I do not believe that any impairment rating could be assigned at the relevant time.

    Prostate Cancer

31. Mr Davies was diagnosed with Prostate Cancer in 2010. Dr Tun described it at the time of his report as asymptomatic. Mr Davies’ PSA levels were being monitored, and Dr Tun thought he would need specialist review “at some stage”.[20] Dr Treichel remarked that the condition would soon require “extensive intervention probably as radiotherapy”.[21]

    [20] Exhibit 1, T Documents, T 7, page 96.

    [21] Exhibit 4, Annexure 1 to Secretary’s Statement of Facts and Contentions, Report of Dr K Treichel dated 18 August 2015, paragraph 1(d).

32. In light of those comments, I do not believe that it could be said that this condition caused any physical impairment at the time of claim. Even if it did, I do not think that the condition could be considered to be fully treated and stabilised at the relevant time. Consequently, no rating can be assigned under the Impairment Tables.

    Anxiety and Depression

33. The only evidence of this condition is what is contained in Dr Tun’s letter of 16 February 2015, to the effect that Mr Davies was suffering from acute anxiety and symptoms of depression, and had been for three weeks.[22]

    [22] Exhibit 1, T Documents, T 10, page 111.

34. No basis for the diagnosis was given, nor was it supported by evidence from a clinical psychologist, as required by the Introduction to the relevant Impairment Table, Table 5.  The condition could therefore not be said to be fully diagnosed at the relevant time.

35. Nor was any treatment recommended or prescribed by Dr Tun. Mr Davies told the SSAT that Dr Tun had not suggested any medication, although he was aware that Mr Davies was wary of medication. Rather, Dr Tun was monitoring Mr Davies and was proposing to refer him to a psychologist or psychiatrist if warranted.[23] In those circumstances, I do not believe the condition could be accepted to be fully treated and stabilised.

    [23] See SSAT Reasons for decision dated 21 April 2015, paragraph [25]. T Documents, T2, page 7.

36. As the condition was not fully diagnosed, treated and stabilised, no impairment rating can be assigned in respect of any impairment that arises from it.

    Upper limb conditions

37. The first reference to this condition was at the SSAT hearing on 21 April 2015, when Mr Davies told that tribunal that his arthritis was affecting his hands, particularly the left hand. However, he described only mild effects at that stage.[24] The SSAT rightly concluded that it could not assign any rating under the Impairment Tables because of the absence of any corroborating medical evidence as required by s 8(1) of the Determination.

    [24] See SSAT Reasons for decision dated 21 April 2015, paragraph [18]. T Documents, T2, page 6.

38. In his report of 18 August 2015, Dr Treichel confirmed a diagnosis of osteoarthritis to the hands, saying that Mr Davies had symptoms for greater than five years, with more frequent complaints in the preceding two years.[25] He said that the osteoarthritis limited Mr Davies’ dexterity and any attempts at fine tool manipulation. Lack of strength limited his ability to use more robust tools such as hammers or saws.[26]

    [25] Exhibit 4, Annexure 1 to Secretary’s Statement of Facts and Contentions dated 28 August 2015, paragraph [1].

    [26] Exhibit 4, Annexure 1 to Secretary’s Statement of Facts and Contentions dated 28 August 2015, paragraph [8(iii)].

39. While Dr Treichel’s evidence provides the corroborating medical evidence of the condition that was previously missing, there is still little or no evidence that this condition was fully treated and stabilised at the relevant time. There was no mention of this condition by Mr Davies at the time of making his claim. Similarly, Dr Tun’s report was silent on this aspect. Nor were there any specific references to this condition recorded by either the Employment Services Assessor or the Job Capacity Assessor.

40. I therefore consider that the condition could not be said to have been fully diagnosed, treated and stabilised at the relevant time. Accordingly, no impairment rating can be assigned in respect of any impairment arising from it.

41. Even if a rating could be assigned, I believe it would have attracted zero points, given that Dr Tun made no mention of the condition in his report.

    Summary

42. It follows from what I have said that, at the relevant time, Mr Davies did not have impairments attracting 20 points or more under the Impairment Tables. I therefore do not consider that he qualified for DSP at the relevant time, since he was unable to satisfy the second criterion under s 94 of the Act. It is therefore unnecessary for me to consider the question of whether he had a continuing inability to work at the relevant time.

    CONCLUSION

43. On the material before me, Mr Davies did not qualify for DSP as at the relevant time he did not have impairments which would attract an impairment rating of 20 points or more under the Impairment Tables.

44. I appreciate that this decision will be both disappointing and frustrating to Mr Davies, especially in light of the recent deterioration in his condition. However, it should not discourage him from considering making a further claim for DSP in the future.

45. In the meantime, the decision under review is affirmed.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

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Associate

Dated    21 September 2015

Date of Hearing	4 September 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services