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

[2016] AATA 846

Evans and Secretary, Department of Social Services (Social services second review) [2016] AATA 846 (27 October 2016)

Division	General Division
File Number	2016/3567
Re	Larry Evans
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member T Tavoularis
Date	27 October 2016
Place	Brisbane

The decision under review is affirmed.

........................[sgd].................................

Senior Member T Tavoularis

Catchwords

SOCIAL SECURITY – DISABILITY SUPPORT PENSION – Whether condition(s) fully treated, diagnosed and stabilised – whether Applicant has 20 points under tables – Applicant only has 10 points - decision under review affirmed.

Legislation

Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth),

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

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Secondary Materials

The Guide to Social Security Law

REASONS FOR DECISION

Senior Member T Tavoularis

27 October 2016

INTRODUCTION

1. On 21 September 2015, Mr Larry Evans (“the Applicant”) lodged a claim for Disability Support Pension (“DSP”) listing his medical conditions as Gastro Oesophageal Reflux Disease (GORD), Hepatitis C, fatty liver, high blood pressure, vascular disease, depression, insomnia, inflammatory bowel disease, neck  fusion, diabetes type 2, double hernia, arthritis, degenerative spine and blackouts.[1]

   [1] Exhibit 8:  T Documents: T5, page 115.

1. To support his claim, the Applicant provided a medical certificate from Dr Paul Baggaley.[2] Dr Baggaley listed the Applicant’s diagnosed medical conditions as osteoarthritis, vascular disease and depression.

   [2] Exhibit 8: T documents: T6, page 132.

2. The balance of the Applicant’s medical evidence comprises a number of letters and medical certificates ranging from 2009 to 2016.  As noted by the Respondent,[3] there is a dearth of medical evidence contemporaneous with the Applicant’s claim.  The consequences of this reality emerge later in this decision.

   [3] Exhibit 5:  Respondent’s Statement of Facts, Issues and Contentions:  page 2, paragraph 4.3.

HISTORY OF THE MATTER

1. The matter has evolved thus:

   (i)On 15 February 2016: Centrelink referred the matter to the Health Professional Advisory Unit (“HPAU”) for opinion.  The principal question before the HPAU was whether the Applicant’s disclosed conditions of hypertension and ulcerative colitis could be considered fully diagnosed, treated and stabilised to be allocated impairment ratings.   The HPAU opined:

   In summary, regarding the two conditions that the referrer specifically requested advice on, unfortunately there is insufficient evidence on file regarding the customer’s symptoms of ulcerative colitis to meet the requirements for attaching FDTS status to the condition.   With regards to the hypertension, there is nothing in the medical evidence to suggest that the condition is not well-managed or having greater than a minimal impact and should be assessed as such.[4]

   [4] Exhibit 8:  T Documents:  T12, page 249.

   (ii)On 19 February 2016:  a Job Capacity Assessor (“JCA”) prepared a report[5] and looked at each of the Applicant’s stated conditions and, for each condition, concluded:

   [5] Exhibit 8:  T Documents:  T14, pages 252 – 263.

   ·Irritable bowel syndrome (ulcerative colitis):  was fully diagnosed but it was not possible to consider the condition fully treated and stabilised.  Therefore, no impairment points could be allocated;

   ·Anxiety: not fully diagnosed, treated and stabilised. Therefore, no impairment points could be allocated;

   ·Osteoarthritis:  although diagnosed, the condition was not fully treated and stabilised.  Therefore, no impairment points could be allocated;

   ·Neck disorder:  this condition was fully diagnosed, treated and stabilised and received an impairment rating of 10 points pursuant to Table 4 “Spinal Function”;

   ·Peripheral vascular disease:  assessed as fully diagnosed but not treated or stabilised.  Therefore, no impairment points could be allocated;

   ·Non-insulin dependent diabetes:  was fully diagnosed but not fully treated and stabilised. Therefore, no impairment points were allocated;

   ·Hypertension:  assessed as fully diagnosed, treated and stabilised but with minimal ongoing impact.  Therefore, no impairment points were allocated;

   ·Skin disorder:  assessed as fully diagnosed treated and stabilised but with no ongoing impact. Therefore, no impairment points could be allocated;

   ·Gastroenterological condition: although assessed as fully diagnosed, treated and stabilised, the assessor thought the condition had minimal functional impact and, accordingly, allocated nil impairment points to this condition;

   ·Hepatitis C: assessed as fully diagnosed but not fully treated or stabilised because:

   (a)  Treatments that could assist or alleviate this condition have been delayed pending stabilization of the ulcerative colitis; and

   (b)  The Applicant had not engaged in the recommended monitoring of his condition even in the absence of more aggressive treatments.

   Therefore, no impairment points were allocated to this condition;

   ·Shoulder and upper arm disorder:  assessed as not fully diagnosed, treated and stabilised. Therefore, no impairment points were allocated to this condition.

   ·Hernia: not verified by the JCA or confirmed by the treating General Practitioner, Dr Baggaley.

   (iii)Under cover of a letter dated 20 February 2016,[6]  the Applicant was notified of the Respondent’s rejection of the claim for DSP. This rejection was based on the JCA’s assessment that the asserted conditions did not attract at least 20 impairment points.

   (iv)The Respondent’s decision was reviewed and affirmed by an Authorized Review Officer (“ARO”) on 23 March 2016.[7]  The ARO adopted the findings of the JCA in respect of all the Applicant’s conditions.

   (v)On 9 June 2016, this Tribunal upon first review[8] affirmed the Respondent’s abovementioned decision dated 20 February 2016.

   (vi)The present application for second review was filed on 7 July 2016.

   [6] Exhibit 8:  T Documents: T15, pp 264 – 265.

   [7] Exhibit 8: T Documents: T17, pp 268 – 277.

   [8] Exhibit 8:  T Documents: T2 – Social Security and Child Support Division Decision, pp 2 – 17.

THE LEGISLATIVE FRAMEWORK

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

1. The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 21 September 2015). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[9]  Therefore, the relevant period for considering whether Mr Evans qualified for DSP is between 21 September 2015 and 21 December 2015 (“the Relevant Period”).

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

2. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Determination”), a legislative instrument made under the Act.[10] The Tables are function based rather than diagnostic based; and describe functional activities, abilities, symptoms and limitations.  They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[11]  The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[12]

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

   [11] See s 5(2) of the Determination.

   [12] See s 6(1) of the Determination.

3. Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[13] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[14]

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

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

4. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following facts are to be considered:  whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[15]

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

10.  A condition is “fully stabilised” if:

a)    either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

b)    the person has not undertaken reasonable treatment for the condition and:

i.significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

ii.there is a medical or other compelling reason for the person not to undertake reasonable treatment.[16]

[16] See s 6(6) of the Determination

11.  “Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[17]

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

12.  An impairment rating can only be assigned in accordance with the rating points in each Table.  A rating cannot be assigned between two consecutive impairment ratings.  If the impairment is considered as failing between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.  A rating cannot be assigned in excess of the maximum rating specified in each Table.[18]

[18] See s 11(1) of the Determination.

13. In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in s 94(2) of the Act need to be satisfied.

ISSUES FOR THE TRIBUNAL

14.  Based on the medical evidence that has been provided during the life of the claim and, as conceded by the Respondent, there is no doubt that Mr Evans suffers from a number of medical conditions and has physical, intellectual or psychiatric impairments.[19] Consequently, the first of the requirements under s 94(1) of the Act is satisfied.

[19] Exhibit 5, Respondent’s Statement of Facts and Contentions filed 3 August 2016, paragraph 5.5.

15.  The remaining issues for me to consider are therefore:

a)    Whether, at the relevant time, Mr Evans’ impairments attracted 20 impairment points or more under the relevant Impairment Tables; and

b)    If so, whether Mr Evans had a continuing inability to work.

CONSIDERATION

Did Mr Evans’ impairments attract 20 points or more under the Impairment Table?

16.  I propose to deal with this issue by reference to Mr Evans’ various medical conditions.

Cervical spine / neck disorder

17.  The Applicant’s Statement of Facts, Issues and Contentions[20] appears to only address the issue of impairment points to this particular condition and to no other.

[20] Exhibit 4.

18. The Respondent accepts that at the Relevant Period (ie. 21 September 2015 to 21 December 2015), the Applicant had an impairment for the purpose of s 94(1)(a) of the Act.[21] The Respondent also accepts that the Applicant’s cervical spine/neck disorder is fully diagnosed and that it is unlikely it could be improved by further treatment.  Further, that the condition is a permanent impairment which has been fully diagnosed, appropriately treated and stabilised.[22]

[21] Exhibit 5:  Respondent’s Statement of Facts and Contentions, page 4, paragraph 5.5.

[22] Ibid:  page 11, paragraph 6.43.

19.  The parties agree that the appropriate Impairment Table to be applied to an assessment of impairment points for this injury is Table 4 – Spinal Function.

20. It was contended on behalf of the Applicant that the appropriate impairment rating is 20 points because this impairment has a severe functional impairment on his activities involving spinal function. Any finding of a severe impairment (and thus 20 impairment points) is very important for present purposes because it would relieve the Applicant of the requirement to meet the provisions of s 94(1)(c) of the Act, specifically, that he has a continuing inability to work.

21.  This contention seems primarily based[23] on:

a)    the opinion of Dr Stewart Lloyd dated 11 December 2013; and

b)    the statutory declaration of the Applicant sworn 10 August 2016.

[23] Exhibit 4:  Applicant’s SFIC, page 4, paragraph 22.

22.  To my mind, there are two fundamental difficulties with the stated basis of this contention.  First, my assessment of the Applicant’s condition(s) must be undertaken at the Relevant Period, that being 21 September to 21 December 2015.  Second, the question as to the level of evidentiary weight that can be given to the unscientific evidence of the Applicant.

23.  It is well established (and, indeed, mandatory in a legislative sense) that the Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period.  This has been made clear by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]:

“the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues).  This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused.  In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application.  It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances”.  [my emphasis]

24.  It is an unfortunate feature of the Applicant’s case that none of his medical evidence is contemporaneous with or otherwise probative of his condition(s) during the Relevant Period. I therefore agree with the Respondent’s contention that:

“The most probative evidence applicable to the Relevant Period is that of the HPAU (HPAU Opinion dated 18 February 2016, T12, p.248) and JCA Report (dated 19 February 2016, assessed 11 February 2016, T14,pp.252-263), which immediately post-date it”.[24]

[24] Exhibit 6: Secretary’s Response to the Applicant’s Statement of Facts, Issues and Contentions, page 6, paragraph 29.

25.  At the hearing Counsel for the Applicant submitted that little weight should be afforded to the JCA Report because the primary assessor was a registered psychologist who does not have the appropriate qualifications to assess the functional impact of an injury of this type. Counsel for the Applicant conceded that an occupational therapist and exercise physiologist were consulted for the purposes of the report but did not physically examine the Applicant. In response to this submission, it should be noted the Guide to Social Security Law provides that:

A job capacity assessor's qualifications generally align with the Impairment Table/s relevant to an individual's primary medical condition. In situations where they do not align, a secondary contributing assessor holding a professional qualification that aligns with the relevant Impairment Table/s reviews the medical evidence and assessment recommendations.[25]

[25] Guide to Social Security Law, paragraph 1.1.J.20 – Job Capacity Assessor.

26.  In this case the Applicant listed depression as one of his conditions. Therefore it was not inappropriate that a registered psychologist acted as the assessor. It should also be noted that three other additional contributing assessors were consulted for the purposes of preparing the report, including (i) a registered nurse, (ii) registered occupational therapist, and (iii) an accredited exercise physiologist / registered occupational therapist. Additionally, I accept the Respondent’s submission to the effect that if the Applicant had genuine concerns about the JCA’s capacity to adequately report on these conditions, the Applicant was at liberty to call any of the primary and/or contributing JCA assessors for cross-examination at the hearing to challenge their credibility or credentials. The Applicant did not do so.

27.  At the hearing Counsel for the Applicant urged the Tribunal to prefer the opinion of the HPAU over the JCA Report. The ambit of the HPAU opinion was limited to “whether hypertension and ulcerative colitis can be considered FDTS”. I therefore find this submission unhelpful in circumstances where the only condition being agitated for the Applicant at the hearing was that relating to his cervical spine / neck disorder.

28.  I also find that the anecdotal evidence of the Applicant (and that of Ms Harrison, his former de facto spouse and that of his sister, Ms Barwick) is not of sufficient evidentiary weight for this Tribunal to safely depart from the earlier findings that this Applicant’s cervical spine/neck disorder has a moderate functional impact on activities involving spinal function, thereby attracting a rating of 10 points under Table 4.

29.  In the absence of medical evidence that is adequate and contemporaneous with the Relevant Period, regard must be had to the level of weight I can safely allocate to this Applicant’s self-reporting of his symptoms. The position is addressed by the Respondent, who cites:

The Guide to Social Security Law, 3.6.3.40 Guidelines to Table 4 – Spinal Function, provides the following guidance when determining the applicable impairment rating:

“[U]nder the 20 point descriptor in Table 4 the “or” which comes at the end of each point (a), (b) and (c) indicates that the person must be unable to do at least one of the activities listed to meet this descriptor.  The 10 point descriptor differs in that the person must be able to sit in or drive a car for at least 30 minutes plus one of either (a), (b), (c) or (d) must apply…..

Determination of the descriptor that best fits the person’s impairment level must be based on the available medical evidence including the person’s medical history, investigation results and clinical findings.  A person’s self-reported symptoms must not solely be relied on.  It would be inappropriate to apply an impairment rating based solely on a person’s self-reported functional history if this level of functional impairment is not consistent with the medical evidence available.”  (Respondent’s underlining).[26]

[26] Ibid, page 8, paragraph 8.

30.  I endorse this view. In the absence of a report from a suitably qualified medical professional (such as, for example, an occupational therapist), I have difficulty in disturbing the earlier findings of a moderate impairment rating.

31.   The Applicant seems a genuine man in apparently straightened circumstances.  He participated in the hearing by telephone and gave oral evidence via that medium.  His evidence seemed sincere and not predominantly self-serving.  For example, he gave evidence that his neck problems interfered with his capacity to load trucks and secure those loads.  He spoke of not being able to lift his hands above his head to secure the tie downs.  He said he was unable to hoist chains over a load or to otherwise tension up the chain levers. Be that as it may, in the absence of appropriate and contemporaneous (within the Relevant Period) expert medical evidence, I have difficulty in concluding he could not sustain any overhead activities.

32.  With reference to his stated difficulty with moving his head to look in all directions – without moving his trunk - I again, in the absence of adequate and contemporaneous (within the Relevant Period) expert medical evidence, have difficulty in safely finding that the level of his impairment was severe during the relevant period, such that he was unable to turn his head, or bend his neck, without moving his trunk. For the same reasons, I have difficulty in finding that at the relevant time he was unable to bend forward to pick up a light object placed at desk level height.  His day to day living arrangements surely mitigate against that. In conditions that could only be described as less than satisfactory, the Applicant told us he lives in a quite remote location on an isolated river bank in a tent like structure.  It may sound like recreational camping to a cynical outsider but that is clearly not the case.

33.  I cannot reasonably accept that the exigencies and basic requirements of everyday living prevent him from bending down or otherwise manoeuvring himself to, for example, (a) pick up an essential item (such as food, clothing or a mobile telephone) he may have inadvertently dropped or (b) secure or repair a part of the structure of his shelter to keep out the elements in dire weather or (c) to prepare even a basic meal.   He has clearly been able to sustain himself – at least in a physical sense – and this, in itself, is a credit to him.  However, it does not, in my view, take him outside the realm of the 10 point descriptor in Table 4.

34.  Similarly, I find he does have capacity to sit in or drive a car for at least 30 minutes.   He deposed to being able to drive his vehicle, but only for short distances.  He does so by looking in the rear view mirror by turning his eyes.  He says although he cannot turn his head to look to the side, he turns his body around to one side or the other. He gave evidence of driving to retail food outlets to purchase provisions.

35.  I have noted the Applicant’s concerns both in oral evidence and in his statutory declaration[27] about the previous Tribunal’s comments about him remaining seated for the entire one and a half hour duration of that first review hearing.  I do not think those comments were ill-intended.  Viewed another way, they perhaps could also speak to the Applicant not requiring assistance to get up out of a chair. During the hearing before me, the Applicant was “dialled into” the hearing from its commencement.  I recall that he took one break after about an hour of hearing time and that following an adjournment of ten or so minutes, he re-joined the re-commenced hearing and remained a participant to its end.

[27] Exhibit 1: Statutory Declaration of Larry Evans, page 2, paragraph 9.

36.  There was obviously no one (or at least no one visible to me) assisting him to presumably get up for the adjournment or to re-position himself for the resumption of the hearing. In all other respects, I have – in the absence of adequate and contemporaneous (within the Relevant Period) medical evidence – difficulty in finding he cannot remain seated (in one form of seated position or another) for at least ten minutes.

37.  I therefore find this Applicant’s symptoms – on the strength of medical and other evidence before me -  fall into the 10 point descriptor because, at the Relevant Period:

·he is  able to sit in or drive a car for at least 30 minutes; and

·he does have difficulty moving his head to look in all directions (including, for example, turning his head to look over his shoulder).

38.  I therefore additionally find his symptoms exclude him from the 20 point descriptor because, at the Relevant Period, they:

·     do not render him unable to sustain any overhead activities;

·     do not prevent him from turning his head or bending his neck without moving his trunk;

·     do not preclude him from bending forward to pick up a light object placed at desk level height; and

·     do not preclude him from remaining seated for more than 10 minutes.

Other conditions

39.  I note again that the Applicant’s only agitated symptoms at the hearing were those relating to his cervical spine/neck disorder impairment.  For the record, I will note my agreement with the findings of the Health Professional Advisory Unit (endorsed in total by both the Job Capacity Assessor and this Tribunal upon first review) for the remaining asserted conditions comprising: ulcerative colitis (irritable bowel syndrome), anxiety, osteoarthritis, peripheral vascular disease, non-insulin dependent diabetes, hypertension, skin disorder, gastroenterological condition, Hepatitis C and shoulder and upper arm disorder.

Summary

40.  I consider Mr Evans’ cervical spine/neck disorder impairment attracts 10 points under Table 4 of the Impairment Tables due to his having a permanent impairment resulting in functional impairment when performing activities involving spinal function.

41.  As he does not reach 20 points or more under the Tables, he does not satisfy the second of the requirements for DSP.  He therefore does not qualify for DSP via this application.

Continuing Inability to Work?

42.  Given that Mr Evans does not reach 20 points or more at the Relevant Period, it is unnecessary to consider this question.

Some additional observations

43.  I respectfully repeat two things:

a)    my observation that this Applicant seems a sincere man with a notable list of ailments; and

b)    the Court’s comments in Bobera[28] that “…… if a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application.”

[28] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34].

44.  This Applicant has failed to reach 20 points or more via this application due to a dearth of medical evidence contemporaneous with or otherwise prohibitive of his condition(s) during the Relevant Period.    

45.  His primary contended condition (cervical spine/neck disorder) may well have worsened since the Relevant Period.  Other ailments may well have manifested since the Relevant Period.  The totality of his current symptomatology, if properly analysed, reported upon and progressed through a fresh application for DSP, could conceivably result in a more favourable impairment rating.  This may or may not result in a residual issue of any continuing inability to work. It ultimately comes down to the Applicant’s capacity to endure the requirements of a fresh application.    

CONCLUSION

46.  Mr Evans does not qualify for DSP because his impairment only attracted 10 impairment points at the Relevant Period.

47.  Accordingly, the decision under review is affirmed.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member T Tavoularis

..................[sgd].....................................

Associate

Dated 27 October 2016

Date of hearing	Friday 2 September 2016
Counsel for the Applicant	K. Blackford Slack
Solicitors for the Applicant	Legal Aid
Advocate for the Respondent	C. Cameron
Solicitors for the Respondent	Clayton Utz