Edwards and Secretary, Department of Social Services

[2013] AATA 704

[2013] AATA  704

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/1265
Re	Kyle Edwards
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr M Denovan, Member
Date	2 October 2013
Place	Brisbane

The Tribunal affirms the decision under review.

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Dr M Denovan, Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Less than 20 points under the Impairment Tables – Decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 23, 26, 94

Social Security (Administration) Act 1999 (Cth) s 13, Sch 2 cl 4

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr M Denovan, Member

2 October 2013

INTRODUCTION

1. Mr Kyle Edwards, the applicant, is 46 years old. His claim for disability support pension (“DSP”), lodged on 18 March 2012, was rejected. He believes the decision to reject his claim was incorrect and he has applied to this Tribunal to have that decision reviewed. Mr Edwards was employed at the time he lodged his claim for DSP.[1] He claims impairment, due to back pain and depression, prevent him from working, and on

   
   

   23 April 2012, Mr Edwards resigned from his employment. Mr Edwards claims to have additional impairment due to asthma, sinusitis and hay fever, and hiatus hernia. However, he accepts that impairment due to these conditions does not prevent him from working.

   [1] Exhibit 1, T-Document 6, p. 49.

   ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION

2. The Social Security Act 1991 (Cth) (“the Act”) sets out the qualification criteria for DSP. Insofar as it is relevant for present purposes, s 94 of the Act (as it appeared at the relevant date) provides that the applicant must:

   ·have a physical, intellectual or psychiatric impairment;

   ·have an impairment of 20 points or more under the Impairment Tables;[2] and

   ·have a continuing inability to work.

   [2] See s 23 of the Act, whereby “Impairment Tables” means the tables determined by an instrument made under s 26(1) of the Act.

3. A person has a continuing inability to work under s 94 of the Act if:

   ·     They have an inability to work, due to their accepted impairments for 15 hours or more a week, and

   ·     they have a severe impairment of 20 points or more under a single Table, or they have actively participated in a program of support.

4. Under Sch 2 cl 4(1) of the Social Security (Administration) Act 1999 (Cth), an applicant must qualify for a social security payment, in this case DSP, on the day on which the person made the claim or within 13 weeks of that date (“the relevant period”).

   
   

   If a person advises Centrelink of their intention to make a claim and subsequently lodges a claim within 14 days, as Mr Edwards did, they are deemed to have made the claim at the first date of contact.[3] The relevant period in which Mr Edwards must satisfy all the criteria to qualify for DSP was from 9 March 2012 to 8 June 2012.

   [3] Social Security (Administration) Act 1999 (Cth) s 13.

5. Before an impairment rating can be assigned under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”),[4] it is necessary to determine whether Mr Edwards’ conditions can be regarded as being permanent and the impairment resulting from the conditions is likely to persist for more than two years.[5] A condition will be considered permanent where it has been fully diagnosed, treated and stabilised.[6]

   [4] Which was made by the Minister pursuant to s 26(1) of the Act.

   [5] s 6(3) of the Determination.

   [6] Ibid s 6(4).

6. Mr Burgess, for the respondent, contends that none of Mr Edwards’ conditions, with the exception of hiatus hernia, were fully treated and stabilised within the relevant period, and therefore can not be allocated an impairment rating. In relation to the hiatus hernia condition, Mr Burgess contends that this condition, although fully diagnosed, treated and stabilised within the relevant period, attracts nil impairment points.

7. The issues that I must determine are:

   1.   which of Mr Edwards’ medical conditions, if any, can be assigned an impairment rating;

   2.   what rating those conditions can be assigned;

   3.   if he has 20 impairment points or more; and

   4.   whether he has a continuing inability to work.

   CONSIDERATION

   Which of Mr Edwards’ medical conditions, if any, can be assigned an impairment rating?

   Spinal condition – L5/S1 disc protrusion

8. Mr Edwards underwent surgery on his lumbar spine to treat a prolapsed disc in 1999. Mr Edwards’ back condition was aggravated as the result of two accidents. He was in a motor vehicle accident in June 2011, and was injured when he fell in a property he was renting in March 2012.

9. Neurosurgeon, Dr Scott Campbell interviewed Mr Edwards and provided a medico-legal report dated 23 March 2013.[7] Dr Campbell opined that Mr Edwards has been appropriately treated with painkillers, physiotherapy and a lumbar support brace. Dr Campbell noted at the time of his interview with Mr Edwards that it had been 12 months since his last accident. He opined that the condition had likely reached the maximum improvement, and it was unlikely there would be any significant alteration of his symptoms in the future.

   [7] Exhibit 3.

10. On the basis of Dr Campbell’s report and the absence of any evidence of earlier stabilisation, I find that Mr Edwards’ spinal condition was not fully stabilised until after the relevant period, in March 2013. The condition cannot, for this claim, be allocated a rating from the impairment tables.

11. Although Dr Campbell reported Mr Edwards had difficulties with sitting, standing and mobilising, he estimated the percentage of whole person impairment was only 8%. Significantly, 6% of which was due to pre-existing injury, 1% due to the motor vehicle accident and 1% due to the injury in March 2012. Two months after the motor vehicle incident, Mr Edwards returned to his job, and was able to work his usual 15-20 hours a week, until March 2012 when he was again injured.

12. Mr Burgess advised me at the hearing that Mr Edwards lodged an additional claim for DSP, which has been granted with effect from 22 May 2013. Mr Burgess provided a copy of the job capacity report dated 29 July 2013,[8] prepared in response to

    
    

    Mr Edwards’ most recent claim. Considering Mr Edwards recent employment, and the fact that the long term effect of the accident in March 2012 increased his whole body impairment by only 1%, I find it very surprising the job capacity assessor who prepared that report, concluded that Mr Edwards’ prolapsed disc has a severe impact on activities involving spinal function, and allocated 20 points from the impairment tables.

    [8] Exhibit 6.

    Depression

13. Table 5 of the Determination is used to assess impairment due to conditions that affect a person’s mental health. The introduction to that Table lists the requirements necessary to allocate a rating. One of those requirements is that either a psychiatrist, or a medical practitioner with evidence from a clinical psychologist, must make a diagnosis of a mental health condition.

14. Dr Sonny Feng, Mr Edwards’ general practitioner since 2003, made no mention of a mental health condition in the first medical report that accompanied the claim for DSP, or in any of the other reports he provided in 2012. The first mention of depression by

    
    

    Dr Feng in the evidence before me, is in a report dated 3 April 2013.[9] In that report,

    
    

    Dr Feng listed the condition as one which is generally well managed and that causes minimal or limited impact on his ability to function. Although Mr Edwards claims to have been receiving regular treatment from psychologist, Matt Horan, Dr Feng makes no reference to evidence from a clinical psychologist.

    [9] Exhibit 1, T-Document 16, p. 94.

15. I find that the condition of depression was not fully diagnosed, treated and stabilised during the relevant period, and therefore cannot be allocated a rating from the impairment tables.

    Asthma

16. In his report dated 2 May 2012, Dr Feng indicated this condition causes minimal impact on function and was expected to significantly improve.[10] I find therefore, this condition was not fully stabilised during the relevant period and cannot be allocated a rating from the impairment tables.

    [10] Exhibit 1, T-Document 9, p. 57.

    Hiatus hernia / sinusitis and hay fever

17. Dr Feng made no mention of these conditions in any of his reports. There is one medical report from Dr Richard Laherty, dated 5 October 2012.[11] Dr Laherty indicated

    
    

    Mr Edwards had been a patient at his surgery since 4 September 2012, about one month.

    [11] Exhibit 1, T-Document 13, pp. 68-75.

18. Dr Laherty indicated these conditions are generally well managed and cause minimal impact on the applicant’s ability to function. The doctor provided little evidence about these conditions, and there is insufficient evidence to assess whether the conditions have been fully diagnosed, treated and stabilised. As the conditions cause minimal impact on the applicant’s capacity to function, even if they were capable of being allocated a rating, the rating would be nil.

19. Mr Edwards does not have a condition which can be rated for the relevant period. As such, it is unnecessary to consider whether he had a continuing inability to work

    DECISION

20. Mr Edwards had no conditions that can be rated for the relevant period. He therefore does not satisfy s 94(1)(b) of the Act and does not qualify for DSP, during the relevant period. The Tribunal affirms the decision under review.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

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Associate

Dated 2 October 2013

Date of hearing	11 September 2013
Applicant	In person
Solicitor for the Respondent	Mr Ashley Burgess, Departmental Advocate