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

[2021] AATA 524

Evans and Secretary, Department of Social Services (Social services second review) [2021] AATA 524 (18 March 2021)

Division:              GENERAL DIVISION

File Number(s):      2020/1432

Re:Steven Evans

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R Maguire

Date:18 March 2021

Place:Brisbane

The decision under review is affirmed

...........................[SGD].............................................

Member R Maguire

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – DSP – whether condition is fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables during the Qualification 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)

CASES

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

REASONS FOR DECISION

Member R Maguire

18 March 2021

1. On Friday 21 April 2019, Steven Evans, (“the Applicant”) lodged an online claim for Disability Support Pension (“DSP”)[1] under s. 94 (1) of the Social Security Act 1991 (the Act). The applicant listed his medical conditions as “back”.[2]

   [1] Exhibit 1, T Documents T22, pages 104 – 105.

   [2] Ibid, page 104.

2. On 22 April 2019, a Registered Nurse, completed a DSP Medical Eligibility Assessment (DSPMEA) report,[3] in respect of the following conditions:

   (a)Anxiety and depression;

   (b)Alcohol dependence;

   (c)Emphysema;

   (d)Osteoporosis;

   (e)Left bicep rupture;

   (f)Reflux; and

   (g)Hypertension.

   [3] Ibid, T23 pages 106 – 107.

3. The report concluded that the Applicant’s anxiety and depression was not fully diagnosed, treated and stabilised. It also concluded that his alcohol dependence was not fully treated and stabilised. With regards to emphysema, osteoporosis, left bicep rupture, reflux and hypertension, the report concluded that there was insufficient evidence to assess medical eligibility at that point in time.

4. The claim for DSP was rejected on 26 April 2019.[4]

   [4] Exhibit 1, T Documents T24, page 108 – 109, Rejection of DSP Claim.

5. Following the receipt of further medical evidence, a further DSPMEA was conducted on 19 August 2019, and concluded that the earlier recommendation dated 22 April 2019 remained current.[5]  

   [5] Ibid, T32 page 122.

6. The claim for DSP was again rejected on 22 August 2019.[6]

   [6] Ibid, T33 pages 124 – 125, Rejection of your claim for DSP Claim.

7. The decision was reviewed by an Authorised Review Officer (“ARO”) who affirmed the decision to refuse the application for DSP on 20 November 2019.[7]

   [7] Ibid, T39 pages 134 – 140, Decision and Notes of ARO.

8. The Applicant sought a first tier review of that decision by the Social Services and Child Support Division (“SSCSD”) of this Tribunal which affirmed the decision of the ARO on 25 February 2020,[8] on the basis that whilst the applicant satisfied s. 94 (1)(a) of the Act, he did not satisfy s. 94 (1)(b). Having made this finding, the SSCSD did not address the issue of the applicant’s continuing ability to work.

   [8] Ibid, T2 pages 5 – 11, Decision of Social Services and Child Support Register (“AAT1”).

9. Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal by way of an Application for Review received on 10 March 2020.[9]

   [9] Exhibit 1, T documents T1 pages 1-4.

10. On 11 November 2020, the Respondent consented to the Tribunal determining this application on the material before it. The Applicant did likewise on 1 December 2020.[10].

    [10] Exhibit 17, Written consent of the Respondent; Exhibit 18, Written consent of the Applicant.

11. The question for this Tribunal to determine is limited to whether the Applicant was entitled to DSP during the period from 21 April 2019 to 21 July 2019.  It is not for the Tribunal to determine if the Applicant became eligible after this period.

12. THE LAW

13. The relevant law in assessing a person’s qualification for DSP is found in the Social Security Act 1991 (Cth) (“the Act”), the Social Security (Administration) Act 1999 (“the Administration Act”) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Determination”).

14. The Administration Act requires that in order to receive DSP payments, an Applicant must be qualified for DSP either on the date of application or become so qualified at some stage within the period of 13 weeks following,[11] (“the qualificationperiod”).

    [11] Clause 4 of Part 2 of Schedule 2 of the Administration Act, discussed by Besanko J in Gallacher v Secretary, Department of Social Services [2015] FCA 1123, and cases cited therein.

15. Section 94 of the Act prescribes the criteria that must be met during the qualification period in order to receive payment of DSP. For present purposes, the relevant part of this section is:

    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 20 points or more under the Impairment Tables; and

    (c) one of the following applies:

    (i) the person has a continuing inability to work;

    (ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;

16. The Impairment Tables referred to in section 94 of the Act are set out in the Determination made under section 26 of the Act, and which came into force on 1 January 2012.

17. The Determination defines “impairment” thus:[12]

    “impairment means a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”

    [12] Section 3 of the Determination

18. Section 5(2) of the Determination provides:

    (2)     The Tables:

    (a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and

    (b)are function based rather than diagnosis based; and

    (c)describe functional activities, abilities, symptoms and limitations; and

    (d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.

19. 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.[13]

    [13] Section 6(1) of the Determination.

20. The Impairment 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.[14]

    [14] Section 6(2) of the Determination.

21. An impairment rating can only be assigned to an impairment if the condition causing that impairment is permanent,[15] and the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than two years.[16]

    [15] Section 6(3)(a) of the Determination.

    [16] Section 6(3)(b) of the Determination.

22. Section 8 of the Determination is headed “Information that must not be taken into account in applying the Tables.” Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[17] Moreover, unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.[18]

    [17] Section 8(1) of the Determination.

    [18] Section 8(2) of the Determination.

23. The determination provides that a condition is regarded as permanent, if it has been fully diagnosed by an appropriately qualified medical practitioner; and has been fully treated; and the condition has been fully stabilised; and the condition is more likely than not in light of available evidence to persist for more than two years.[19]

    [19] Section 6(4) of the Determination.

24. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must 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 planned in the next two years.[20]

    [20] Section 6 (5) of the Determination.

25. A condition is considered to be fully stabilised if: [21]

    (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 two 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 two 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.

    [21] Section 6 (6) of the Determination.

26. Reasonable treatment is treatment that is: available at a location reasonably accessible to the person; is at 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.[22]

    [22] Section 6(7) of the Determination.

27. The Determination sets out that, in selecting the applicable Table,[23] it is necessary to:

    (a)identify the loss of function; then

    (b)refer to the table related to the function affected; then

    (c)identify the correct impairment rating.

    [23] Section 10 of the Determination.

28. In assessing impairments where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table. Where more than one table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[24]

    [24] Section 10(3) and (4) of the Determination.

29. Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[25]

    [25] Section 10(5) and (6) of the Determination.

30. An impairment rating can only be assigned in accordance with the rating points in each impairment table; cannot be assigned between consecutive impairment ratings; if an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all of the descriptors for that level of impairment are satisfied, and a rating cannot be assigned in excess of the maximum rating specified in each table.[26]

    [26] Section 11 of the Determination.

31. In order to have a continuing inability to work which is required to satisfy section 94 (1)(c) of the Act a person must meet the criteria of section 94(2), which requires that a person must:

    (a)if they do not have a severe impairment, have actively participated in a program of support; and

    (b)be unable to work for at least 15 hours per week independently of a program of support; and

    (c)be unable to participate in a training activity during the next 2 years or 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.

32. A person’s impairment is considered to be a severe impairment if the person’s impairment is 20 points or more under the Impairment Tables, of which 20 points or more are under a single impairment table.[27]

    [27] Section 94(3B) of the Act.

33. The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings is to be determined at the date of claim, or where a 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.[28]

    [28] Sections 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.

    CONSIDERATION

34. The Respondent accepts that the Applicant had impairments and that section 94(1)(a) of the Act was satisfied during the qualification period.[29]

    [29] Exhibit 2, Secretary’s Statement of Issues Facts and Contentions at paragraph 38.

35. It is therefore necessary to consider section 94(1)(b) of the Act, i.e. whether, during the qualification period, the Applicant suffered impairments arising from fully diagnosed, treated and stabilised medical conditions that attract an impairment rating of at least 20 impairment points under the impairment tables.

36. In order to do this, the Tribunal turns to a consideration of the individual conditions suffered by the Applicant.

    Anxiety and Depression

37. The Tribunal has had regard for a statement of counselling report dated 5 February 2019, in which clinical social worker David Ward advised that he saw the Applicant for 15 sessions in the period July 2017 to December 2017 and that “there had been no contact since that time”.[30] The Tribunal notes that this report relates to a period some 21 months prior to the commencement of the qualification period, and records that “No formal or psychometric testing was completed.”  The Tribunal regards this report as being of little assistance in determining the applicant’s medical condition during the qualification period and gives it little weight.

    [30] Exhibit 1, T Documents T16 page 97.

38. The Tribunal has also had regard for a letter[31] from Apollo Specialist Centre dated 5 October 2019, and signed by Dr Jatinder Randhawa, Psychiatrist who reported:

    “I confirm I have seen Mr Evans for his mixed anxiety and depression since 5/7/19 and I have seen him on four occasions. He has been commenced on treatment with Lexapro 20 mg daily and Diazepam 5 mg twice a day. His mental state is improving with treatment. He requires further treatment and follow-up.”

    [31] Ibid, T34 page 126.

39. Whilst this report shows that the psychiatrist saw the Applicant during the qualification period, it is quite clear that the Applicant was intended to receive further treatment and follow-up well after the qualification period. The Tribunal gives weight to this report.

40. The Tribunal has also had regard to the handwritten note of Dr Paul McCarthy dated 23 May 2020, which outlined a session which the Applicant had with Dr Ziukelis, Psychiatrist, in early April 2020. The Tribunal notes that this consultation occurred about nine months after the end of the qualification period. The Tribunal considers that the report of Dr Randhawa provides a better insight into the Applicant’s condition at the end of the qualification period and outweighs other evidence.

41. The Tribunal considers that there is insufficient evidence before it to establish that the Applicant’s anxiety and depression conditions were fully treated or stabilised during the qualification period. Therefore, no impairment points can be assigned in respect of these conditions under Table 5.

    Left bicep tear

42. The evidence in relation to this condition is found in a report dated 9 August 2016[32] as well as a Medical certificate[33] dated 20 August 2016 which stated that the symptoms would impact the Applicant’s capacity to work or study for less than 3 months, and an earlier certificate dated 20 August 2014[34] which offered the same prognosis.

    [32] Exhibit 1, T Documents T6 page 79.

    [33] Ibid, T7 page 80.

    [34] Ibid, T8 page 81

43. There is no evidence pertaining to the current status, treatment, or prognosis of this condition at or about the qualification period.

44. The Tribunal considers that there is insufficient evidence before it to establish that the applicant’s left bicep tear was fully treated or stabilised during the qualification period. Therefore, no impairment points can be assigned in respect of this condition under Table 2.

    Osteopenia

45. Evidence before the Tribunal in respect of this condition is found in the bone mineral densitometry report from Queensland X-Ray dated 14 February 2019[35] and two associated scan results[36] which show the existence of the condition in accordance with World Health Organisation (“WHO”) criteria in the lumbar spine, femoral neck, and the total hip.  There is also a report from Dr McCarthy dated 28 February 2018 which the Tribunal accepts as fully diagnosing osteoporosis in the Applicant.[37] The Tribunal accepts that the condition of Osteopenia was fully diagnosed as at 14 February 2019, and therefore as at the commencement of the qualification period.

    [35] Ibid, T21 page 103.

    [36] Ibid, T20 pages 101-102.

    [37] Exhibit 1, T Documents, T14, page 95.

46. What is absent from the evidence is any enlightenment as regards to treatment and prognosis for the condition as at the qualification period.

47. There is therefore insufficient evidence before the Tribunal so as to enable it to conclude that this condition was fully treated and stabilised as at the qualification period.

48. In this circumstance no impairment rating can be assigned to this condition under Table 3 or Table 4 for any resulting impairment.

    Hip and back pain

49. In considering this condition, the Tribunal has had regard for the statement by Mr Steve Koster dated 19 March 2020[38] as well as the undated “Consent information – patient copy total hip arthroplasty (hip replacement)” form provided.[39]

    [38] Exhibit 2, Secretary’s Statement of Issues Facts and Contentions Attachment B, page 7.

    [39] Ibid, Attachment C pages 8-11.

50. The Tribunal has also had regard for a CT scan report of Queensland X-Ray dated 7 May 2019 and made by Dr Frans van Troder which reported:

    There are features of avascular necrosis in the right femoral head that are stable and longstanding.

51. The Tribunal has also had regard for a Discharge Summary recording the Applicant’s discharge from the care of the Logan Hospital on 1 November 2019[40] which was well past the qualification period. The summary recommended “Refer to Orthopaedics for F/U of ?avascular necrosis.”

    [40] Exhibit 1, T Documents, T38 pages 130- 133.

52. The Tribunal has also had regard for documents which appear to indicate consultations with orthopaedic specialists between November 2019 and January 2020.[41]

    [41] Ibid, T45 pages 148-150

53. The Tribunal has had regard for the report of Dr Shamimudeendated 19 June 2020,[42] which includes the statement

    “Patient states that he has reduced drinking to once per week, however he has not completely ceased.

    At last review in December 2019, it was stressed to patient that complete alcohol cessation was required before considering surgery.”

    [42] Further Medical Reports lodged by the Applicant on 14 January 2021 attachment 4, Report of Dr Shamimudeen dated 19 June 2020

54. The Tribunal has also had regard for the report of Dr Salmon dated 17 July 2020,[43] which includes the statement:

    “Reviewed with Dr Shami

    -happy to offer patient a THR [total hip replacement] as long as patient has ceased drinking.

    -Requires a repeat blood test to ensure downtrend in LFT’s

    [43] Ibid, attachment 3, Report of Dr Luke Salmon 17 dated July 2020.

55. The Tribunal has also had regard for the report of Dr Chan dated 13 August 2020,[44] which records in part “Happy to proceed with surgery.”

    [44] Ibid, attachment 2, Report of Dr Emma Chan dated 13 August 2020.

56. The totality of this evidence suggests that investigations and evaluation of the Applicant’s avascular necrosis and associated hip and back pain were ongoing well after the end of the qualification period. The Tribunal is therefore not satisfied that the Applicant’s hip and back pain were fully diagnosed, treated and stabilised during the qualification period, and no rating can be assigned under Table 3 or Table 4 for any resulting impairment.

    Left Ankle injury

1. Beyond the Applicant’s evidence to the Social Security and Child Support Division (“AAT1”) that he suffered third degree burns in 2015, there is no medical evidence pertaining to this claimed injury.

2. The Tribunal is therefore unable to be satisfied that it was fully diagnosed, treated and stabilised during the qualification period, and no rating can be assigned under Table 3 to any resulting impairment.

   Table 3 & 4 impairment rating

3. Having regard to the foregoing, and subsections 10(5) and (6) of the Rules in the Impairment Tables, the Tribunal assigns impairment ratings of 0 points under Tables 3 and 4.

   Emphysema

4. Evidence[45] clearly establishes that the Applicant suffered from this condition during the qualification period.

   [45] Exhibit 1, T Documents, T14 page 95; T26 page 111; Exhibit 2, Secretary’s Statement of Issues Facts and Contentions, Attachment D.

5. Medical certificates,[46] however show that specialist assessments were still being planned after the qualification period.

   [46] Ibid, T25; T26; T31; T37.

6. It is therefore not possible for the Tribunal to be satisfied that the Applicant’s emphysema was fully treated or stabilised during the qualification period, and accordingly no impairment rating can be assigned under Table 1.

   Hypertension

7. Evidence[47] before the Tribunal in respect of this condition is scant and predates the qualification period by more than one year.

   [47] Ibid, T14, page 95.

8. There is no clear evidence before the Tribunal that this condition was fully treated and stabilised as at the qualification period, and in the circumstances, the Tribunal is unable to assign an impairment rating under Table 1 in respect of it.

   Table 1 impairment rating

9. Having regard to the foregoing, and subsections 10(5) and (6) of the Rules in the Impairment Tables, the Tribunal assigns an impairment rating of 0 points under Table 1.

   Reflux

10. Evidence[48] before the Tribunal in respect of this condition is scant and predates the qualification period by more than one year, at which time the Applicant needed to take regular Nexium.

    [48] Exhibit 1, T Documents T14, page 95.

11. There is no clear evidence before the Tribunal that this condition was fully treated and stabilised as at the qualification period, and in the circumstances, the Tribunal is unable to assign an impairment rating under Table 10 in respect of it.

    Bilateral hearing loss

12. Whilst there is some evidence before the Tribunal as to the Applicant’s hearing loss,[49] there is no diagnosis either by an audiologist, or an Ear Nose and Throat specialist so as to admit of a rating in accordance with Table 11.

    [49] Ibid, T27, page 113.

13. The Tribunal is therefore unable to assign an impairment rating under Table 11.

    Alcohol dependence

14. Evidence[50] before the Tribunal in respect of this condition is scant, and predates the qualification period by more than one year.

    [50] Ibid, T14, page 95.

15. There is no clear evidence before the Tribunal that this condition was fully treated and stabilised as at the qualification period, and in the circumstances, the Tribunal is unable to assign an impairment rating under Table 6 in respect of it.

    Loss of consciousness condition

16. Evidence[51] pertaining to this condition clearly establishes that it was still under investigation well after the end of the qualification period.

    [51] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, Attachment E; Exhibit 1, T Documents T42, page 145; T2 page 7; Exhibit 15, Further Medical Reports lodged by the Applicant on 14 January 2021 Attachment 1, Report of Dr Shaun Kang dated 22 April 2020.

17. Accordingly, the Tribunal is unable to assign an impairment rating under Table 15 in respect of it.

    Vision Condition

18. Evidence[52] before the Tribunal does not satisfy the requirement of supporting evidence from an ophthalmologist as is required under Table 12.

    [52] Exhibit 1 T Documents T29, page 118; Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions Attachment F.

19. Accordingly, the Tribunal is unable to assign an impairment rating under Table 12 in respect of this condition.

    DECISION

20. Overall, the Tribunal finds that the Applicant’s total impairment rating is 0 points.

21. The evidence before the Tribunal does not establish that the Applicant’s medical conditions attract an impairment rating 20 points under a single Impairment Table.[53]

    [53] Section 94(3B) of the Act.

22. The Tribunal therefore finds that the Applicant does not satisfy section 94(1)(b) of the Act, and accordingly it is not necessary to consider section 94(1)(c).

23. The decision under review is therefore affirmed.

I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

..............................[SGD]..........................................

Associate

Dated: 18 March 2021

Date(s) of hearing:	Heard on the papers
Decision reserved:	1 February 2021
Applicant:	Mr Steven Evans
Solicitors for the Respondent:	Me Andrew Summers (Services Australia)