De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2014] FCA 368
•11 April 2014
FEDERAL COURT OF AUSTRALIA
De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368
Citation: De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368 Appeal from: De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 691 Parties: ERIC DE VRIES v SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS File number: VID 1081 of 2013 Judge: MORTIMER J Date of judgment: 11 April 2014 Catchwords: SOCIAL SECURITY – Appeal from decision of Administrative Appeals Tribunal, affirming decision of Social Security Appeals Tribunal and the Minister to refuse the applicant’s claim for a disability support pension – whether the AAT erred in finding that the applicant’s spinal disorder was not “fully diagnosed” and therefore not a “permanent” impairment – no identifiable error by the AAT – appeal dismissed with costs. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)
Legislative Instruments Act 2003 (Cth)
Social Security Act 1991 (Cth) s 94
Social Security Administration Act 1999 (Cth) s 39(3)Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 3, 6, 11(4))
Cases cited: Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314
Politisv Federal Commissioner of Taxation (1988) 16 ALD 707
De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 691Date of hearing: 28 March 2014 Date of last submissions: 28 March 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 37 Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondent: Mr A Shelley of Sparke Helmore Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1081 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: ERIC DE VRIES
Applicant
AND: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
JUDGE:
MORTIMER J
DATE OF ORDER:
11 APRIL 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The applicant pay the respondent’s costs of and incidental to the appeal.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1081 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: ERIC DE VRIES
Applicant
AND: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
JUDGE:
MORTIMER J
DATE:
11 APRIL 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
INTRODUCTION
On 21 May 2012, the applicant, Mr De Vries, lodged a claim for a disability support pension under the Social Security Act 1991 (Cth) (the Act), in relation to what he described on the claim form as “lower back pain chronic stenosis”. On 13 June 2012, the applicant’s claim was rejected by a Centrelink officer, on the basis that the applicant did not meet the impairment rating of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth).
On 19 June 2012, the applicant sought internal review of this decision by an authorised review officer (ARO) who, on 14 February 2013, affirmed the Centrelink officer’s decision. The applicant applied to the Social Security Appeals Tribunal (SSAT) for review of the ARO’s decision on 13 March 2013. A hearing before the SSAT was conducted on 10 May 2013, where the SSAT affirmed the ARO’s decision. The applicant then lodged an application with the Administrative Appeals Tribunal (the Tribunal), dated 6 June 2013, for review of the SSAT decision.
On 4 September 2013, the Tribunal held a review hearing on the application and gave oral reasons at the end of the review hearing affirming the decision of the SSAT. After a request from the applicant, it then delivered written reasons approximately three weeks later: De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 691.
By way of a notice of appeal filed with this Court on 2 October 2013, the applicant appeals the decision of the AAT under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth).
For the reasons that follow, the appeal must be dismissed.
RELEVANT ASPECTS OF LEGISLATIVE SCHEME
Section 94 of the Act sets out the circumstances in which a person will qualify for a disability support pension. Relevantly, it provides:
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;
…
Section 23 provides for the making of the “Impairment Tables” referred to in s 94(1)(b): the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for a disability support pension (s 26(1)) and make rules to be complied with when applying them (s 26(3)).
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination) sets out Impairment Tables as determined by the Minister and, at Part 2, the rules for providing them. The Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (Cth).
Relevantly for this case, s 6 of the Determination provides:
6 Applying the Tables
Assessing functional capacity
(1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
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.
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
(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
(c)the condition has been fully stabilised; and
(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) 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;
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
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.
Section 11 of the Determination sets out the rules relevant to assigning an impairment rating. Relevantly, s 11(4) provides the following in relation to “Episodic and fluctuating conditions”:
Episodic and fluctuating conditions
(4) When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
In s 3 of the Determination, “condition” is defined as “a medical condition”, and “impairment” is defined to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”. Further, “appropriately qualified medical practitioner” is defined to mean “a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition”.
By s 39(3) of the Social Security Administration Act 1999 (Cth), where a person makes a claim for a social security payment but is not on the day of the claim qualified for the payment, but becomes qualified within a period of 13 weeks, the claim is taken to have been made on the day on which the person becomes qualified. Implicit in this provision is an acceptance that a person may become qualified for a pension within 13 weeks of having made a claim for it. Therefore, the requirement in s 6(3)(a) that a condition must be “permanent” is a requirement which applies as at the date the claim for a pension is lodged, or a period up to 13 weeks thereafter.
Condition
Table 4 of the Determination deals with Spinal Function. The introduction provides:
· Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
· The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
· Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
· Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:
o a report from the person’s treating doctor;
o a report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
o a report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
· In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.
THE TRIBUNAL’S DECISION AND REASONS
The Tribunal set out the material which was before it, in addition to the applicant’s oral evidence. That material consisted of a report by Ms Kathy Burt, a physiotherapist, dated 26 June 2013, and two plain x-rays (with accompanying reports) of the applicant’s spine, one dated 7 November 2008 and one dated 14 May 2012. The Tribunal also had before it the medical report from the applicant’s treating doctor which accompanied his claim in May 2012.
At [14] of its reasons, the Tribunal summarised the effect of that medical certificate in the following way:
Mr De Vries’ claim for DSP lodged on 21 May 2012 was accompanied by a treating doctors’ report from his then general practitioner, Dr Manjunath Nadiger. Dr Nadiger stated that Mr De Vries had been diagnosed with L5/S1 congenital spinal canal stenosis that gave rise to low back pain and limited both his standing and walking times. Subsequent reports and certificates from Dr De Vries’ general practitioners provided to Centrelink have all been to the same effect. Mr De Vries has only sought further advice from Ms Burt and his mother, who is registered nurse with many years of experience.
It noted subsequent certificates by Dr Nadiger to Centrelink were to the same effect.
At [16]-[17] of its reasons, the Tribunal set out the findings from the plain x-rays, and its own finding about the difference between them.
The report of 7 November 2008 (Exhibit A2) states:
Findings: Reduced lumbar lordosis is present with moderate narrowing of the L5/S1 intervertebral disc with anterior osteophytes. Mild congenital canal stenosis is present at this level. No spondylolisthesis is seen and the other lumbar intervertebral discs are of normal height.
This report is signed by Dr Ross Breadmore.
The second x-ray was performed on 14 May 2012 (Exhibit A3) and included both a plain x-ray of the thoracic spine and the lumbar spine. The findings in the thoracic spine were entirely normal. The lumbar spine x-ray is reported as showing:
Alignment satisfactory. The vertebral body height are preserved. No fracture. Mild narrowing of the L5-S1 disc space.The facet joints are aligned normally. No pars defect. Conclusion: Mild narrowing of the L5-S1 disc space. No scoliosis.
This is signed by radiologist Dr Karen Fink. Apparently, both x-rays were performed at the same radiological facility in Bacchus Marsh. The Tribunal notes that in the most recent x-ray there is no reported finding of spinal canal stenosis.
Having dealt with the applicable legislative provision, s 94(1) of the Act, the Tribunal then set out its reasons as to why it concluded the applicant did not qualify for a disability support pension:
The only objective evidence presented to the Tribunal is the reduced range of movement of Mr De Vries’ lumbar spine, it being 60 to 70 per cent of the normal range, and two plain x-rays of his lumbar spine. The latest of these x-rays is reported as showing relatively minor disease and there is no reference to spinal canal stenosis. It is well known in the medical profession that plain x-rays frequently underestimate or do not reveal the exact underlying pathology in the spine. For the sake of his health and for any further claim for the DSP that Mr De Vries might decide to lodge, he requires more detailed radiological imaging, preferably an MRI (magnetic resonance imaging) scan as this is regarded currently as the gold standard.
Depending on the MRI findings, any treatment could then be directed to the underlying cause of Mr De Vries’ back pain. Where indicated, referral to a neurosurgeon or orthopaedic surgeon for further advice and opinion would also be appropriate.
Mr De Vries has noted these requirements and says he will consult his current general practitioner to organise a referral for MRI scanning.
As Mr De Vries’ back pain is not fully diagnosed let alone treated and stabilised, the Tribunal cannot assign an impairment rating to the condition. Section 94(1)(b) of the Act has therefore not been met. Section 94(1)(a) of the Act is satisfied. However, given that Mr De Vries does not have any impairment points, let alone 20 points of impairment, it is not necessary for the Tribunal to consider whether there is a continuing inability to work (section 94(1)(c) of the Act).
The Tribunal affirms the decision under review.
(Emphasis in original.)
THE NOTICE OF APPEAL
Although there was some suggestion by the applicant that he had received, informally, the assistance of a qualified legal practitioner in preparing for his appeal, the applicant is not legally represented and appeared in person both at the directions hearing and the substantive hearing of his appeal. The applicant’s notice of appeal sets out the question of law arising from the Tribunal’s decision in the following way:
Definition of sections 6(4)C & subsection 11(4) & paragraph 6(7) of Social Security Act and why they were not applied at AAT hearing.
No grounds relied upon were identified by the applicant in the notice of appeal. To assist the Court and the respondent to identify the particulars of the applicant’s complaint about the decision of the Tribunal, at the directions hearing for this matter on 22 November 2013 I made orders requiring the applicant to file and serve an outline of his explanation of the question of law identified in his notice of appeal. The respondent was given leave to file an outline in response.
In compliance with those orders, the applicant filed a document that contended the following:
In relation to question of law, the main law being
Section 6(4)c subjection 11(4)[I]f the medical condition will not improve or not be treated with medical evidence the condition is regarded as being diagnosed treated and stabilized.
The AAT did not follow the guidelines set out in the law and used the pain not being treated to deny my DSP support pension. I brought the fact up at the hearing that the pain is not regarded as a medical condition but the AAT completely ignored that fact and the reason they up held the original decision was because the pain was not fully treated.
On page 4 paragraph 11 of the AAT decision the member admits that my condition can not be improved by physiotherapy but says the pain might be
On page 5 paragraph 14 the AAT member acknowledges that i had been diagnosed with L5/S1 congenital spinal canal stenosis and that condition gave rise to the back pain with way of my doctors report i initially under took.
On page 7 paragraph 26 the AAT admit the reason they upheld the original decision was because the pain had not been treated!! Which is entirely not what the law says, the law is very specific. It says “medical condition” pain is not a medical condition but the pain is a by product caused by the condition.
Quote from AAT report “As Mr De Vries’ back pain is not fully diagnosed let alone treated and stabilized the Tribunal cannot assign an impairment rating to the condition”
That proves that the AAT used the pain as the excuse not to grant.
On page 4 paragraph 9 the AAT also admits that the pain is being treated which relates to the second question of law
[P]aragraph 6(7) reasonable treatment is treatment that is available and affordable. The pain meds are bulk billed and i can afford, the AAT mentions I had no physiotherapy for the pain, but that is not bulk billed but cash on visit and AAT expected me to under go the treatment when the law says if the treated is not affordable it is not regarded as reasonable treatment and does not need to be undertaken and seeing as i live below the poverty line I see it as breach that the AAT exspect me to under go that treatment which is totally unaffordable to me.
The respondent accepted in its written submissions that, read as a whole and together with the explanation from the applicant filed with the Court and set out above, the notice can be said to raise two questions of law. One related to the Tribunal’s construction and application of ss 6(4)(c) and 11(4) of the Determination. The second relates to the Tribunal’s construction and application of s 6(7) of the Determination.
The existence of a question of law is the matter on which the Court’s jurisdiction under s 44(1) depends. I have set out my opinion in Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 as to how a notice of appeal drafted by a person who is not a lawyer should be read, and I need not repeat it here. Unlike the situation in Avetmiss, the applicant’s notice of appeal does raise for consideration the Tribunal’s construction and application of various aspects of the Determination, and I am satisfied that, read fairly and in context, the notice raises two questions of law.
EVIDENCE BEFORE THE COURT ON THE APPEAL
The applicant’s lack of legal training meant that he sought to refer to materials which were before the Tribunal but were not formally in evidence before the Court on the appeal. Four documents, consisting of medical information he had put before the Tribunal and the medical report which accompanied his application for a disability support pension, were accordingly received into evidence on the appeal. Also received into evidence was the report from a subsequent MRI scan the applicant obtained as a consequence, he admitted, of the remarks made by the Tribunal in its reasons for decision about the importance of such a scan. The report of the scan confirmed, at least at the date of the report (15 November 2013), a diagnosis of, amongst other conditions, “mild grade degenerative lumbar canal stenosis”. This was received on the basis that, should it become necessary for the Court to determine if there was utility in remitter of the matter to the Tribunal, this evidence might be relevant. Given the conclusions I have reached on the questions raised in the notice of appeal, the document need not be considered further.
CONSIDERATION
Section 94(1) requires the Tribunal to be satisfied of three matters. The Tribunal expressed at [26] its conclusion that the applicant satisfied s 94(1)(a), in that he had an impairment. Although the Tribunal does not expressly identify what it found the impairment to be, a fair reading of its reasons reveals that the Tribunal refers to the applicant’s “spinal disorder” (see for example at [18]-[19] of its reasons), and there is no doubt the Tribunal was satisfied for the purposes of s 94(1)(a) that the applicant had a loss of functional capacity affecting his ability to work because of his spinal disorder.
Insofar as s 94(1)(b) is concerned, s 6(3) of the Determination requires, as a first step before a decision-maker can assign an impairment rating, that the person’s condition causing the impairment must be permanent. Unless a decision-maker is satisfied on the material the condition causing the impairment is permanent, the decision-maker is not permitted by the Determination to assign any impairment rating for the purposes of s 94(1)(b).
Section 6(4) of the Determination sets three criteria which must all be met for a condition causing an impairment to be permanent.
The Tribunal’s principal finding was the first criterion for permanency set out in s 6(4)(a) of the Determination was not met in the applicant’s case. It found at [26] that the applicant’s condition was not fully diagnosed. As the applicant sought to emphasise, the Tribunal did use the term “back pain” rather than, for example, “back condition” or “spinal disorder” (as it had done earlier in its reasons). However, in my opinion, read fairly and in the context of its reasons as a whole (see Politisv Federal Commissioner of Taxation (1988) 16 ALD 707 at 708 per Lockhart J), the Tribunal was here referring to the condition it had described earlier in its reasons as, amongst other things, a “spinal disorder”. I do not accept the applicant’s submissions that this passage in the Tribunal’s reasons reveals any misunderstanding or misconstruction about ss 6(3) and 6(4) of the Determination, or any impermissible and mistaken reliance on the applicant’s symptoms instead of his condition. If anything, what it does reveal is the extent of uncertainty in the Tribunal’s mind about what the diagnosis of his condition really was. That kind of uncertainty supports the approach taken by the Tribunal and does not reveal any error of law.
The reasons for the Tribunal’s conclusion about the absence of a full diagnosis are apparent from what it states at [23] of its reasons. It pointed to the inconsistencies between the earlier x-ray, which identified spinal canal stenosis, and the later x-ray which did not. It pointed to the deficiencies in plain x-rays.
At [24] the Tribunal made it clear that, even if there was a diagnosis, there could be no conclusion about whether the condition had been fully treated for the purposes of s 6(4)(b) without an MRI and further consideration of the MRI by specialists. The Tribunal also made it clear at [26] that it also did not consider the final of the three criteria set out in s 6(4) had been met.
The applicant insisted many times in his written and oral submissions that his condition had been fully diagnosed, that there was no treatment for his condition, only for the pain associated with it, and therefore his condition should be found to be “fully treated” under s 6(4)(b) and also “fully stabilised” under s 6(4)(c). It is not the function of this Court to assess the evidence before the Tribunal for itself and make such findings in an appeal under s 44(1) of the AAT Act, as I have endeavoured to explain to the applicant.
Accordingly, I find there is no error of law in the Tribunal’s decision arising from its construction and application of s 6(4) of the Determination.
The applicant spent some time in his oral submission emphasising that his treating doctor, Dr Nadiger, had made a diagnosis of spinal canal stenosis in the medical report which accompanied his disability support pension application. That is, so far as it goes, a correct statement, and one the Tribunal noted expressly at [14] of its reasons. However as the respondent submitted, the Tribunal’s task was to consider whether the applicant’s condition was “fully diagnosed”. It was not bound to accept Dr Nadiger’s opinion as equivalent to a full diagnosis for the purposes of s 6(4)(a) and clearly it did not. The Tribunal had a level of uncertainty about the correct diagnosis, and it gave reasons at [23] for that. Although the applicant may believe the Tribunal should have accepted Dr Nadiger’s opinion as conclusive and as sufficient for the purposes of s 6(4), it was not obliged to do so and there is no error of law in the approach it took.
Similarly, there is no basis to the contention by the applicant that the Tribunal misconstrued and misapplied s 11(4) of the Determination. That provision was not engaged in the analysis undertaken by the Tribunal: it simply did not reach the point in the process set out in the Determination of assigning an impairment rating.
As to the second question of law, there is no basis at all to the applicant’s arguments concerning the approach he submits the Tribunal should have taken to s 6(7) of the Determination. That provision is only engaged in a situation where full consideration is given by the decision-maker to the third criterion of permanency in s 6(4): namely, whether the applicant’s condition had fully stabilised. It is only then that the decision-maker must consider whether the person has undertaken “reasonable treatment” within the meaning of ss 6(6) and 6(7) of the determination. The Tribunal did not, and did not need to, reach this point in its reasoning. It expressed no more than a preliminary view about the issue of stabilisation. Its decision was not based on that view, it was based on the applicant not meeting the first criterion of permanency, full diagnosis.
CONCLUSION
Even with a fair and contextual reading of the notice of appeal, the questions of law raised in the notice of appeal should not be answered favourably to the applicant. The Tribunal’s decision is not affected by any errors in its approach to the construction and application of s 6(4) of the Determination, and it did not need nor attempt to construe or apply s 6(7) and s 11(4) of the Determination.
The appeal must be dismissed. The respondent sought the usual order as to costs and there is no reason on the material before me to suggest that is not the appropriate order.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer. Associate:
Dated: 11 April 2014
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