Douglas and Secretary, Department of Social Services (Social services second review)
[2017] AATA 1811
•20 October 2017
Douglas and Secretary, Department of Social Services (Social services second review) [2017] AATA 1811 (20 October 2017)
Division:GENERAL DIVISION
File Number: 2016/6657
Re:Carl Douglas
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D K Grigg
Date:20 October 2017
Place:Brisbane
The Tribunal affirms the decision under review.
.........................[Sgd]...............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – cancellation – whether 20 points or more under the impairment tables during the relevant period – 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
20 October 2017
INTRODUCTION AND CLAIMS HISTORY
Mr Douglas was a recipient of the Disability Support Pension (“DSP”) from 17 August 2001 for a musculoskeletal disorder.[1] However, on 24 June 2016, after a medical review, Mr Douglas’ DSP was cancelled by the Department of Human Services (“Centrelink”).[2]
[1] Exhibit 1, T Documents, T 31, page 181, Centrelink records.
[2] Exhibit 1, T Documents, T 25, pages 153 – 154, Letter from Centrelink to Mr Douglas dated 24 June 2016.
Mr Douglas sought a review of Centrelink’s decision to cancel his DSP by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mr Douglas’ medical conditions did not attract 20 points or more under the Impairment Tables.[3]
[3] Exhibit 1, T Documents, T 26, pages 155 – 162, Decision of ARO dated 28 July 2016.
Mr Douglas then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD rejected Mr Douglas’ claim and affirmed the ARO’s decision on 10 November 2016.[4]
[4] Exhibit 1, T Documents, T2, pages 3 - 9, SSCSD’s Decision and Reasons for Decision dated 10 November 2016.
Mr Douglas has sought a review of the SSCSD’s decision by this Tribunal.[5]
[5] Exhibit 1, T Documents, T1, pages 1 – 2, Mr Douglas’ Application for Review dated 7 December 2016.
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 Douglas must have a physical, intellectual or psychiatric impairment;
(b)Mr Douglas’ 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”).[6]
(c)Mr Douglas must have a continuing inability to work.
[6] A legislative instrument made under the Act: see s 26(1).
Pursuant to section 80 of the Social Security (Administration) Act 1999 (Cth) (the “Administration Act”) the Secretary may cancel a person’s social security payment if that person was not qualified for the payment.
A decision made under section 80 is an “adverse determination” within the meaning of section 118(13) of the Administration Act, which provides that such a decision “takes effect on the day on which it is made”.[7]
[7] See also Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342.
Therefore, in order to qualify for the DSP, Mr Douglas must have met the Section 94 Requirements at the date of the decision to cancel the DSP, that is, on 24 June 2016 (“Qualification Date”).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Douglas’ impairments after the Qualification Date can be considered if it “casts light on” the functional impact of the impairment/s as at the Qualification Date.[8]
DID MR DOUGLAS HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[8]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; and 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”.[9]
[9] Determination, s 3.
Mr Douglas’ Medical Conditions
The Medical Reports completed by Mr Douglas and Dr Hew in April 2016 as part of Centrelink’s review, listed Mr Douglas’ medical conditions as:[10]
·grade 1 anterolisthesis - arthritis/chronic osteo
·spina bifida – L5/S1
·no disc between L5/S1 compressed spinal cord
·insomnia/depression
[10]Exhibit 1, T Documents, T 22 page 134, DSP Report completed by Mr Douglas dated 26 April 2016; T 23, page 139, medical report of Dr Hew dated 26 April 2016.
Spinal Condition
In November 2001 Dr Douglas, General Practitioner, reported that Mr Douglas had:[11]
(a)lumbar spondylolisthesis and that it had worsened since he was assaulted in November 2000;
(b)constant pain requiring high-dose analgesia; and
(c)lost ¼ rotation of movement (“ROM”) of his lumbar spine.
[11] Exhibit 1, T Documents, T 11, page 71, Medical assessment report of Dr Douglas dated 8 November 2001.
In September 2003 Dr Hew reported that Mr Douglas had chronic low back pain and leg pain and that he was unable to sit or stand for long periods or do heavy work. Dr Hew reported that this condition was likely to impact on Mr Douglas’ ability to function for more than 24 months and the effect on Mr Douglas’ ability to function was expected to fluctuate over the next 2 years.[12]
[12] Exhibit 1, T Documents, T 14, pages 82 – 83, Treating Doctor's Report of Dr Hew dated 12 September 2003.
In 2006 a CT scan of Mr Douglas’ lumbar spine showed a “grade 2 anterolisthesis of L5 on S1 due to bilateral spondylosis” and “a near complete desiccation of the intervertebral disc with vacuum phenomenon” at L5 – S1.[13]
[13]Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 8 September 2017, Attachment A, CT report dated 22 May 2006.
In April 2007 Dr Hew reported that Mr Douglas had chronic low back pain and leg pain and that he was unable to sit for long periods or do heavy work. Dr Hew reported that this condition was likely to impact on Mr Douglas’ ability to function for more than 24 months and the effect on Mr Douglas’ ability to function was expected to fluctuate over the next 2 years.[14]
[14] Exhibit 1, T Documents, T 16, pages 102 – 103, Treating Doctor's Report of Dr Hew dated 20 April 2007.
In February 2014 a CT scan of Mr Douglas’ lumbosacral spine found “spondylosis in L5 with grade 1 spondylolisthesis and advanced L5/S1 disc degeneration with narrowing of the L5 foramina”.[15]
[15] Exhibit 1, T Documents, T 28, page 169, CT scan dated 4 February 2014.
In January 2015 Mr Douglas presented to a multidisciplinary pain clinic in relation to his constant lower back pain and had a physiotherapy assessment. Ms Karen Drew, physiotherapist, reported that:[16]
[16] Exhibit 1, T Documents, T20, page 128, Report of Dr Wagner dated 5 February 2015.
(a)Mr Douglas’ standing posture “demonstrated an increased thoracic kyphosis, bilateral scapular winging and erector spinae spasm at rest”;
(b)there is evidence of wastage of his gluteals and calf muscles on both legs;
(c)his active range of motion in his lower back is reduced in rotation and lateral flexion to the left;
(d)Mr Douglas would benefit from:
(i)Reading the “Manage Your Pain” book and beginning to employ the strategies in the book into his everyday life;
(ii)physically starting to pace his activity again and that using a pedometer would be helpful for this; and
(e)Mr Douglas may be a candidate for the IMPACT pain management program in the future if he still required ongoing input the management of his pain.
In March 2016 a CT scan of Mr Douglas’ lumbosacral spine found “grade 1 anterolisthesis at L5 – S1 associated with bilateral spondylosis”.[17]
[17] Exhibit 1, T Documents, T 28, page 167, CT scan dated 3 March 2016.
In April 2016 Dr Hew reported that Mr Douglas had seen a specialist more than 10 years ago[18] and that he was treating the condition conservatively using Panadeine Forte and Valium as needed. Dr Hew reported that this condition was likely to impact on Mr Douglas’ ability to function for more than 24 months and that, being a degenerative condition, the effect of this condition on Mr Douglas’ ability to function was expected to deteriorate over the next 2 years.[19]
[18] There is no report from any lumbar spine specialist.
[19] Exhibit 1, T Documents, T 23, pages 137 – 146, Treating Doctor's Report of Dr Hew dated 26 April 2016.
In January 2017 an x-ray showed mild degenerative disc disease in the midthoracic spine.[20]
[20]Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 8 September 2017, Attachment A, x-ray report dated 25 January 2017.
Shoulder Condition
In 2009 an ultrasound of Mr Douglas’ right shoulder showed a small partial thickness SST tear, subdeltoid bursitis and evidence of impingement.[21]
[21] Exhibit 1, T Documents, T 28, page 173, X-ray and CT scan dated 7 July 2009.
In September 2013 an x-ray and ultrasound of Mr Douglas’ right shoulder showed a bursal surface tear of supraspinatus with evidence of bursitis.[22]
[22] Exhibit 1, T Documents, T 28, page 171, X-ray and CT scan dated 6 September 2013.
In May 2015 an x-ray and ultrasound of Mr Douglas’ left shoulder showed mild left subacromial bursitis but no significant impingement.[23]
[23] Exhibit 1, T Documents, T 28, page 172, X-ray and CT scan dated 14 May 2015.
In January 2017 an x-ray of Mr Douglas shoulders showed early left acromioclavicular joint osteoarthritis and an ultrasound showed that the “left subacromial bursa is mildly thickened and the right subacromial bursa is moderately thickened and consistent with bursitis”.[24]
[24]Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 8 September 2017, Attachment A, X-ray report dated 25 January 2017.
Knee Condition
In July 2013 an MRI of Mr Douglas’ right knee showed a medial meniscus tear and a moderate Baker’s cyst.[25]
[25]Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 8 September 2017, Attachment A, MRI report dated 17 July 2013.
In January 2017 an x-ray of Mr Douglas’ knees showed osteoarthritis of the patellofemoral compartment’s.[26]
[26]Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 8 September 2017, Attachment A, X-ray report dated 25 January 2017.
In April 2017 Dr Hew reported that Mr Douglas has degenerative osteoarthritis of both knees.[27]
[27]Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 8 September 2017, Attachment A, Report of Dr Hew dated 21 April 2017.
Hand Condition
In January 2017 an x-ray of Mr Douglas’ hands showed mild symmetric osteoarthritis of the first CMCJ’s with mild joint space narrowing and small marginal osteophytes. The remaining joints in the hands and wrist appeared unremarkable, no bone abnormality was seen and there was no evidence of an erosive arthropathy.[28]
[28]Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 8 September 2017, Attachment A, X-ray report dated 25 January 2017.
In April 2017 Dr Hew reported that Mr Douglas has degenerative osteoarthritis of both wrists.[29]
[29]Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 8 September 2017, Attachment A, Report of Dr Hew dated 21 April 2017.
Mental Health Condition
In September 2001 Dr Hew, General Practitioner, reported that Mr Douglas had had anxiety and depression for 4 months. Dr Hew noted that Mr Douglas was taking antidepressants and that the condition was likely to be temporary.[30]
[30] Exhibit 1, T Documents, T9, page 52, Treating Doctor's Report of Dr Hew dated 17 September 2001.
In November 2001 Dr Douglas, General Practitioner, reported that Mr Douglas developed depression in 1999 following the death of his mother, a relationship breakup, and other stresses but that he was responding to an antidepressant medication although not yet fit for work (and was unfit for work for the next 12 months).[31]
[31] Exhibit 1, T Documents, T 11, page 71, Medical assessment report of Dr Douglas dated 8 November 2001.
In April 2007 Dr Hew reported that Mr Douglas still had depression which was affecting his sleep, his mood and his ability to concentrate and that he was currently taking sedatives. Dr Hew reported that this condition was likely to impact on Mr Douglas’ ability to function for 3 – 24 months and the effect on the on Mr Douglas’ ability to function was expected to fluctuate over the next 2 years.[32]
[32] Exhibit 1, T Documents, T 16, pages 104-105, Treating Doctor's Report of Dr Hew dated 20 April 2007.
In October 2014 Mr Douglas was referred by his general practitioner for counselling under a mental health care plan. Ms Grainne O’Brien, Accredited Mental Health Social Worker, confirms that Mr Douglas attended 7 counselling sessions with her between October 2014 and February 2015. Ms O’Brien reports that Mr Douglas’ presenting issues included “complex grief reactions pertaining to circumstances which happened after the death of his mother, emotional reactivity and suicidal ideation”.[33]
[33] Exhibit 1, T Documents, T 30, page 180, Report of Ms O'Brien dated 17 October 2016.
In January 2015 Mr Douglas presented to a multidisciplinary pain clinic for an initial psychological assessment. At the assessment Ms Waddell (Provisional Psychologist, supervised by Ms Borislavsky, a Clinical Psychologist) reported that Mr Douglas told them he:[34]
·had a low mood, related to the concerns around his relationship with his daughter, and that he had felt that way for some time
·was irritable and had low energy levels, insomnia and a loss of interest in activities he previously enjoyed;
·experienced difficulties with this decision making at times but that his memory and concentration are good
·had seen a counsellor in 2013 in relation to his pain and issues with his daughter;
·receives support from his general practitioner and takes Valium as a means of managing his anxiety;
·had experienced two panic attacks;
·had experienced fleeting suicidal ideation in the past but had no current ideation, intent or plan
·had a good support network of friends
[34] Exhibit 1, T Documents, T 20, pages 126 – 130, Report of Dr Wagner dated 5 February 2015.
The result of Mr Douglas’ psychological assessment by the pain clinic in January 2015 suggested that he had a “high tendency to catastrophise about the meaning of his pain” and a “mild impairment in his ability to manage his pain when compared to other patients with chronic pain conditions”. In addition a measure of emotional functioning “suggested” he had “extremely severe symptoms of depression, moderate symptoms of anxiety and severe symptoms of stress when compared to the general population”. The psychologists noted that Mr Douglas’ “affect at the time of the assessment was euthymic [i.e. non-depressed], engaged and somewhat incongruent with [the] psychometric results”.[35]
[35]Exhibit 1, T Documents, T 20, page 129, Report of Dr Wagner – Psychological Assessment dated 5 February 2015.
The pain clinic recommended that Mr Douglas would benefit from participating in a pain management program which would provide him with evidence-based strategies useful for managing his pain and improving his physical function.[36]
[36] Exhibit 1, T Documents, T 20, pages 126 – 130, report of Dr Wagner dated 5 February 2015.
In August 2016 Dr Hew reported that Mr Douglas still had depression and that in the past he had had counselling and taken antidepressants but there was no planned treatment.[37]
[37] Exhibit 1, T Documents, T 29, page 179, Medical certificate of Dr Hew dated 8 August 2016.
In November 2016 Dr Hew referred Mr Douglas to a Clinical Psychologist, Ms Lucy Davey, for an opinion and management of his depressive illness.[38]
[38]Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 8 September 2017, Attachment A, Letter from Dr Hew dated 7 November 2016.
In January 2017 Ms Davey reported that:[39]
(a)she had consulted with Mr Douglas on 6 occasions for treatment under the suicide prevention service;
(b)Mr Douglas meets the criteria for “major depressive disorder with anxious distress according to the DSM V”;
(c)his depressive disorder onset around 2001, during which time he received antidepressant treatment by his General Practitioner Dr Hew and psychotherapy treatment with social worker Ms O’Brien;
(d)the 6 treatment sessions Mr Douglas has had [with Ms Davey] “would be considered reasonable and appropriate evidence-based treatment for his condition”;
(e)Mr Douglas’ condition is stable and unlikely to change significantly with further treatment;
(f)Mr Douglas is not expected to make significant functional improvement over the next 2 years that would enable him to work even with further treatment; and
(g)Mr Douglas’ functional capacity is moderate to severe.
[39]Exhibit 2, Secretary’s Statement of Facts and Contentions dated 8 September 2017, Attachment A, Report of Ms Davey dated 31 January 2017.
Ms Davey also noted that with regard to the treatment provided by the multidisciplinary pain clinic that “this service was not a mental health treatment service and therefore not appropriate for treatment of any mental illness. The service provides a paid management program for chronic pain conditions, which is also aimed at symptom management not cure”.
In March 2017 Dr Hew confirmed that the initial diagnosis of depression had been made by him and that it was when his depression had exacerbated in October 2014 that they trialled antidepressants and more recently counselling.[40]
[40]Exhibit 2, Secretary’s Statement of Facts and Contentions dated 8 September 2017, attachment A, report of Dr Hew dated 1 March 2017.
In April 2017 Dr Hew reported that Mr Douglas started medication to help with his chronic depression in October 2016.[41]
[41]Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 8 September 2017, Attachment A, report of Dr Hew dated 21 April 2017.
Conclusion on Impairments
The Secretary accepts that Mr Douglas suffered from physical impairments for the purposes of section 94(1)(a) at the Qualification Date.[42]
[42] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 8 September 2017, para 33.
Given the medical evidence I find that Mr Douglas suffered from a Spinal Impairment and Mental Health Impairment for the purposes of section 94(1)(a) at the Qualification Date.
Whilst I accept that Mr Douglas has neck, knee, hand and shoulder conditions, there is no medical, or other corroborating, evidence available for the Tribunal to consider whether at the Qualification Date:
(a)these conditions were having any impact on Mr Douglas ability to function;
(b)any treatment had been recommended and undertaken in relation to these conditions;
(c)these conditions were fully stable.
Therefore, given the lack of requisite information, I cannot consider Mr Douglas’ neck, knee, hand and shoulder conditions for the purpose of this DSP application.
DO MR DOUGLAS’ IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[43] They are function based[44] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[45]
[43] Determination, s 4(2) and 5(2)(a).
[44] Determination, s 5(2)(b) and (c).
[45] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[46]
(a)Mr Douglas’ 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.
[46] Determination, see s 6(3).
Mr Douglas’ condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[47]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(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.
[47] Determination, see s 6(4).
In determining whether a condition has been “fully diagnosed” by an appropriately qualified medical practitioner and whether it has been “fully treated”[48] the following must be considered:[49]
(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.
[48] For the purposes of ss 6(4)(a) and (b) of the Determination.
[49] Determination, see s 6(5).
A condition is “fully stabilised”[50] if:[51]
(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;[52] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[50] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[51] Determination, see s 6(6).
[52] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Before applying the Tables I must first consider Mr Douglas’ medical history, in relation to the conditions causing the Impairments.[53]
SPINAL IMPAIRMENT
[53] Determination, see s 6(2).
Is Mr Douglas’ Spinal Impairment permanent and likely to persist for at least 2 years?
In May 2016, a Job Capacity Assessment (“JCA”) was conducted face-to-face with Mr Douglas by a physiotherapist. The JCA concluded that Mr Douglas’ Spinal Impairment was fully diagnosed, fully treated and fully stabilised.[54]
[54] Exhibit 1, T Documents, T 24, page 148, JCA report dated 23 May 2016.
However the Secretary contends that Mr Douglas’ Spinal Impairment was not permanent at the Qualification Date because Mr Douglas had not complied with treatment recommendations.[55]
[55] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 8 September 2017, para 35.
I find that the medical evidence supports a finding that Mr Douglas was fully diagnosed with spondyolisthesis and degenerative osteoarthritis in his lumbar spine at the Qualification Date.[56] The issue is whether the Spinal Impairment was fully treated and stabilised.
[56]Exhibit 1, T Documents, T9, page 52, Treating Doctor's Report of Dr Hew dated 17 September 2001; T5 – T7, pages 46–49, CT scan reports dated 2001.
In 2015 a multidisciplinary pain clinic recommended that Mr Douglas would benefit from reading the “Manage Your Pain “book, beginning to employ the strategies in the book into his everyday life, and physically pacing his activity using a pedometer. The clinic also recommended that he may be a candidate for the IMPACT pain management program in the future if he still required ongoing input the management of his pain.
A progress/clinical note written by the pain clinic dated 22 April 2015 indicates that Mr Douglas was continuing to take Valium but had not purchased Manage Your Pain, had not attended a pain management program (because he “feels he is able to manage his pain”) and had not purchased a pedometer, and the impression was that Mr Douglas was using “medication above the recommended daily dose [and that] other recommendations have not been commenced”. A further clinical note dated 25 January 2017 from the pain clinic indicates that he still had not progressed with the pain management program.[57]
[57]Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 8 September 2017, Attachment B, Progress/clinical notes of pain clinic completed by Dr Wagoner dated 22 April 2015 and 25 January 2017.
There is nothing to indicate that the treatment recommended by the pain clinic was not reasonable treatment. Mr Douglas gave evidence that he was followed up by the Pain Clinic about commencing a pain management program but at the time he felt others were more worthy. This is confirmed by a Clinical Note dated 25 January 2017.[58] A clinical note in April 2015 provides that Mr Douglas told the pain clinic he did not want to engage in the IMPACT program because he “felt he was able to manage his pain”.[59]
[58]Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 8 September 2017, Attachment B, Progress/clinical notes of pain clinic 25 January 2017.
[59]Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 8 September 2017, Attachment B, Progress/clinical notes of pain clinic completed by Dr Wagoner dated 22 April 2015.
Mr Douglas has not undertaken the recommended treatment from the pain clinic. At the hearing Mr Douglas confirmed that he had not undertaken the recommended treatment prior to the Qualification Date.
As a result I am unable to find that Mr Douglas is spinal impairment was fully treated and fully stabilised the qualification date. As a result an impairment rating cannot be assigned.
IS MR DOUGLAS’ MENTAL HEALTH IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
The Secretary submits that Mr Douglas’ Mental Health Impairment was not fully diagnosed, fully treated or fully stabilised at the Qualification Date.[60]
[60] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 8 September 2017, para 44.
Pursuant to the Table 5 of the Determination the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
Although Mr Douglas had a consultation under the supervision of a Clinical Psychologist prior to the Qualification Date, the Secretary contends that the findings of that assessment was not a diagnosis because the psychologists’ report only refers to self-report assessments as suggestive of a diagnosis and notes that Mr Douglas’ affect did not correspond to the self-report results.
The psychometric tests used by the psychologists in January 2015 are commonly used self-report assessment methods by practitioners to measure depression, anxiety and stress. Given that it was a self-report assessment and taking into account the comments made by the psychologist, doubt can be raised as to the accuracy of the results.
However, the Tribunal finds that it can reasonably be concluded that Mr Douglas suffered from depression during the Qualification Date because:
(a)he was diagnosed with depression by Dr Hew far in advance of the Qualification Date;
(b)he was counselled by a social worker for mental health issues;
(c)he was confirmed as suffering from a major depressive disorder and anxiety by Ms Davey some months after the Qualification Date; and
(d)the DASS-42 results are not inconsistent with the diagnosis made by Dr Hew and Ms Davey.
However, the Tribunal finds that at the Qualification Date Mr Davey’s Mental Health Impairment was not fully treated and stabilised because:
(a)Mr Douglas had not had psychological therapy in the 15 months prior to the Qualification Date, which makes it impossible for the Tribunal to assess the stability of the Impairment during the Qualification Date and whether, and to what extent, it was having an impact on Mr Douglas’ ability to function; and
(b)Ms Davey confirmed that as a result of the 6 treatment sessions Mr Douglas had had with her, Mr Douglas’ Mental Health Impairment could now be considered fully treated and fully stabilised. However, these sessions occurred 7 months after the Qualification Date.
In the circumstances, I find that Mr Douglas’ Mental Health Impairment was not fully treated and not fully stabilised as at the Qualification Date and therefore was not “permanent” for the purposes of the act. As a result, an Impairment Rating for this condition cannot be assigned. However, if this condition is now fully treated and stabilised, it is open to Mr Douglas to file a fresh DSP claim with supporting evidence.
WERE MR DOUGLAS’ IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
To qualify for DSP a minimum of 20 points is required pursuant to section 94(1)(b) of the Act. I have found that Mr Douglas’ Impairments were not permanent and therefore assigned no impairment rating.
DID MR DOUGLAS HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
As I have concluded that Mr Douglas’ Impairments were not permanent during the Qualification Date it is unnecessary for me to consider whether Mr Douglas had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of section 94(1)(c) of the Act at that time.
DECISION
Mr Douglas’ claim fails. He did not qualify for DSP at the Qualification Date.
The decision under review is affirmed.
I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
..........................[Sgd]..............................................
Associate
Dated: 20 October 2017
Date of hearing: 9 October 2017 Date final submissions received: 11 October 2017 Applicant: In person Solicitors for the Respondent: Department of Human Services
Key Legal Topics
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Statutory Interpretation
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