Fitzpatrick and Secretary, Department of Social Services (Social services second review)
[2022] AATA 348
•2 March 2022
Fitzpatrick and Secretary, Department of Social Services (Social services second review) [2022] AATA 348 (2 March 2022)
Division:GENERAL DIVISION
File Number: 2021/4635
Re:Craig Fitzpatrick
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member S Barton
Date:2 March 2022
Place:Perth
The Reviewable Decision, being the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 8 June 2021, is affirmed.
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Member S Barton
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether the Applicant met the eligibility requirements for a disability support pension – fully treated and stabilised – Qualification Period – assigning impairment ratings – Applicant’s chronic lumbar back pain fully diagnosed – Applicant’s chronic lumbar pack pain not fully treated and stabilised – Applicant found not to meet eligibility requirements – Reviewable Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 23(1), 26, 94(1), 94(1)(a), 94(1)(b), 94(1)(c)
Social Security (Administration) Act 1999 (Cth) – ss 80(1), 179
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 3, 5, 6(1), 6(3), 6(4), 6(5), 6(6), 6(7), 10
CASES
Baum and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1066
Freeman v Secretary, Department of Social Security (1988) 15 ALD 671
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
Shi v Migration Agents Registration Authority (2008) 235 CLR 286REASONS FOR DECISION
Member S Barton
2 March 2022
BACKGROUND
The Applicant seeks review of a decision made by the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (the Tribunal), dated 8 June 2021 (Reviewable Decision) which affirmed a decision to reject the Applicant’s claim for a disability support pension (DSP).
FACTS
The Applicant is 50 years of age.
On 3 December 2020, the Applicant lodged a claim for a DSP with Services Australia (Centrelink). He listed in his application the condition of chronic lumbar back pain (T15/155).
On 22 December 2020, the Applicant’s claim for a DSP was rejected because he was assessed as not having an impairment rating of 20 points or more under the Impairment Tables, being the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (T17/161) (Original Decision).
The Applicant requested a review of the Original Decision, which was referred to an Authorised Review Officer (ARO). However, on 30 April 2021, an ARO of Centrelink wrote to the Applicant to advise him that the ARO had found the Original Decision to be correct, and that his review was unsuccessful (T23/170-174) (ARO Decision).
The ARO found that the Applicant’s condition had not been fully treated and stabilised and therefore, it could not be assigned an impairment rating (T23/171).
On 30 April 2021, the Applicant lodged an application seeking review of the ARO Decision in the AAT1 (T24). The Applicant was also unsuccessful at the AAT1, with the AAT1 affirming the ARO Decision on 8 June 2021 (T2/6-12).
On 12 July 2021, the Applicant lodged an application for second review in the General Division (AAT2) of this Tribunal.
JURISDICTION
The application for review was made in accordance with s 179 of the Social Security (Administration) Act 1999 (Cth) (the AdministrationAct). Therefore, the Tribunal is satisfied that it has jurisdiction to review the Reviewable Decision.
MATERIAL BEFORE THE TRIBUNAL
The application was heard on Tuesday 1 February 2022. The Applicant was
self-represented. The Applicant gave oral evidence and was cross-examined. The Respondent was represented by Ms Amy Simpson of Services Australia. Both the Applicant and Ms Simpson appeared by telephone.
The Tribunal admitted the following documents into evidence at the hearing:
·Letter from Mr Narula – Neurosurgeon, dated 9 June 2021 (Exhibit A1);
·Letter from Southside Health Clinic, dated 12 July 2021 (Exhibit A2);
·Medicare Claims History for Craig G Fitzpatrick between 8 June 2018 and 8 June 2021 (Exhibit A3);
·Section 37 T-Documents, labelled T1-T29, consisting of pages 1-212 (Exhibit R1); and
·Respondent's Statement of Facts, Issues and Contentions, dated 10 November 2021 (Exhibit R2).
ISSUES
The overall issue for determination by this Tribunal is whether, during the Qualification Period, the Applicant met the qualification criteria for a DSP in s 94(1) of the Social Security Act 1991 (Cth) (the Act), including:
(a)whether the Applicant had a physical, intellectual or psychiatric impairment or impairments for the purpose of s 94(1)(a) of the Act;
(b)if so, whether the impairment(s) were fully diagnosed, treated and stabilised and attracted a rating of at least 20 points under the relevant Impairment Tables; and
(c)whether the Applicant had “a continuing inability to work” for the purposes of s 94(1)(c) of the Act.
LEGISLATION
The legislation applicable to this matter is contained in:
(a)the Act;
(b)the Administration Act; and
(c)the Impairment Tables.
Qualification for DSP
The qualification requirements for a DSP are set out in s 94(1) of the Act:
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; …
The criteria contained within s 94(1) of the Act are conjunctive, meaning for a DSP application to be successful, an applicant must satisfy each sub-section.
Impairment Tables
Section 23(1) of the Act defines “Impairment Tables” to mean “the tables determined by an instrument under subsection 26(1)”.
Section 26 of the Act states:
Impairment Tables
(1)The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.
(2)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.
Rules for applying Impairment Tables
(3)The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).
(4)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.
The Minister has determined tables as contemplated by s 26 of the Act in the form of the Impairment Tables. The Impairment Tables also set out rules as to how to apply the Impairment Tables.
Section 5 of the Impairment Tables sets out their purpose and general design principles, being to describe the functional impacts associated with certain types of conditions, and to assign ratings to determine the level of functional impact of impairments on applicants.
“Impairment” is defined in s 3 of the Impairment Tables as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.
Section 6(1) of the Impairment Tables states that “[t]he impairment of the 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 …” (emphasis added). An impairment rating can only be assigned if the condition is permanent (s 6(3) of the Impairment Tables).
With regard to the permanency of conditions, ss 6(4), 6(5) and 6(6) state:
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and …
(c)the condition has been fully stabilised; and …
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(Notes omitted.)
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully Stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) 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.
Reasonable treatment, defined in s 6(7), is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Section 10 of the Impairment Tables outlines how to identify the applicable Impairment Table to apply when assessing impairments. It is first necessary to identify the loss of function and refer to the Impairment Tables related to that function, and then to identify the correct impairment rating.
Qualification Period
Section 80(1) of the Administration Act provides that where the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for the payment, the Secretary is to determine that the payment is to be cancelled or suspended.
The qualifying period for assessing whether or not a person is qualified for a payment has been the subject of a number of decisions in both the Federal Court and the High Court. In Freeman v Secretary, Department of Social Security (1988) 15 ALD 671, the Court found, at 674:
The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is therefore less than would be the jurisdiction of the Tribunal in respect to a refusal to grant a pension or benefit or a decision suspending the payment of a pension or benefit. In the latter cases, there may well be an ongoing entitlement to a pension or benefit which the Tribunal should recognise when formulating its decision. However, if the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal’s consideration. Any entitlement of the applicant to a pension or benefit at a subsequent time must be the subject of a further claim which, having been made, would only become the subject of review within the Tribunal’s jurisdiction once a decision with respect to it had been made by an officer of the Department of Social Security and that decision had been the subject of appeal and reconsideration in accordance with s 19.
Referring to this decision, in Shi v Migration Agents Registration Authority (2008) 235 CLR 286, the High Court found, at [144]:
In Freeman, Davies J identified the importance of the nature of the decision under review, in determining what facts the Tribunal might take into account…
The Tribunal was entitled to take into account all the facts placed before it, but the issue was whether the decision it was reviewing, to cancel the pension, was the correct or preferable decision when it was made. It was not whether Mrs Freeman had an entitlement to a widow’s pension at the date of the Tribunal’s decision.
(Footnotes removed.)
The effect of these decisions is described by Deputy President Forgie in Baum and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1066, at [48]:
Applying these principles to the decision I am required to review, it seems to me that the inherent nature of the decision and the statutory context in which it is made confine me to evidence that relates to Mr Baum’s condition, impairment and work capacity during that 13 week period. That does not mean that all of the evidence in the form of reports, assessments or records had to be generated in that period. What it means is that they must relate to that period.
Following these established precedents, the Tribunal is restricted in its consideration of the Applicant’s condition at the date of his claim, or within 13 weeks of that claim, which provides the Tribunal with a qualification period of 3 December 2020 to 4 March 2021 (Qualification Period).
Following the practice in Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139 at [31], cited with approval in Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1, medical reports generated after a qualification period must be relevant to that period.
CHRONIC LUMBAR BACK PAIN
As detailed above, the Applicant applied for the DSP on 3 December 2020, stating that he had chronic lumbar back pain (T15/155).
The Applicant worked as a truck driver and injured his back in January 2015 in a motor vehicle accident. He subsequently reported experiencing ongoing lower back pain (T5/104).
On 12 May 2015, in a consultation with neurosurgeon Mr Soni Narula, the Applicant complained of significant soreness which prevented him from bending forward, describing pain in his buttocks, pains in his right side and tingling down the left lower limb (T5/104). Mr Narula noted that his MRI scans showed Modic changes at L4-L5, with some disc protrusion. He recommended the Applicant undertake physiotherapy, reduce his weight, as well as an injection, before assessing what effect that may have on the Applicant’s condition (T5/104).
After a further MRI scan in August 2017, Dr Elizabeth Dillon noted the Applicant had disc degeneration, also present in previous examinations, Modic changes that had progressed and a paucity of cerebrospinal fluid in the Applicant’s lower back (T6/105).
These conditions are consistent with lower back pain. The Tribunal is satisfied that the Applicant’s condition was diagnosed and that he had a physical impairment, thus satisfying paragraph 94(1)(a) of the Act.
Is the condition fully treated and stabilised?
In his application for a DSP, the Applicant stated that he was not currently receiving treatment (T15/155). He drew the Tribunal’s attention to correspondence from his general practitioner Dr Jaswinder Mudhar on 16 February 2021. Dr Mudhar wrote (T18/163):
He has had MRI done in 2015 and 2017 which shows degenerative changes in the lumbar spine discs especially L4/5 with disc protrusion
He has undergone treatment and his condition is stabilised
His condition is ongoing and is going to last for more than 2 years and it is unlikely to have any further improvement with any other treatment. He will be unable to undertake any work in the next 2 years
There is severe functional impact on activities involving the spinal function. He is unable to perform any overhead activities and is unable to sit for 10 minutes at a time
In pointing to this letter, the Applicant told the Tribunal (transcript/7):
I have provided the evidence. Just based on that, it meets the criteria put forward by the Act, the Disability Services Act that I meet.
In reviewing the decision to deny the Applicant’s application for the DSP, the ARO sought additional medical evidence, noting that ‘Lumbar spinal injuries do not usually cause functional impacts of being unable to perform any overhead activities (T22/168). The ARO spoke to Dr Mudhar regarding the letter dated 16 February 2021. Dr Mudhar reportedly advised the ARO of the following (T22/169):
Permanent but would improve with treatment of weight loss and exercise program
Cannot sit for 10 minutes
Inability to perform overhead activities is not a result of lumbar spine condition but rather is a result of weight and lack of activity.
Neurosurgeon recommended injection in spine in 2015. Neurosurgeon recommended weight loss program and exercise program to improve function. None of these recommendations have been undertaken by [the Applicant] apart from exercise with a physiotherapist.
When the Applicant’s attention was drawn to this report, he stated (transcript/13):
…I think she's mistaken there, so I think she was meant to put there, you know what I mean - because I have undertaken those, apart from exercise - from exercise - she might have mistaken me because she might have mistaken me there saying that like, it's not worked. Because I've definitely gone to them because she's recommended me to go to them.
… I think she's meant to say there that none of those recommendations have ever been successful.
The Applicant also later told the Tribunal (transcript/27):
…this officer [the ARO] has called Dr Mundha which, you know what I mean, when I told Dr Mundha about this and I gave her, she was outraged, right.
She said like, you know what I mean, there's only hearsay there. You know what I mean, there's only - you know what I mean, it says - you know what I mean, it says here that like Dr Mundha has provided further medical evidence but social services have failed to provide that evidence.
So you can't rely on a record that's from like a telephone conversation which is just from one side, it's coming from the side of social services which don't want to pay you anyway, it's totally biased. As far as where my claim is, I am absolutely adamant that my condition has been fully diagnosed, fully treated and fully stabilised.
Whether or not the Applicant’s condition was fully treated and fully stabilised is contested. Since his injury in 2015, the Applicant has had various treatments recommended. On 6 May 2015, general practitioner Dr Ademola Davies-Hakeem recommended physiotherapy (T4/102).
On 12 May 2015, Mr Narula recommended physiotherapy, weight loss and an injection (T5/104). On 18 August 2017, Mr Narula reiterated the recommendation that the Applicant lose weight, noting that he had ‘put on a lot of weight’ (T9/115).
On 22 August 2018, on a medical certificate, Dr Mudhar reported that past treatments had included ‘physio/chiropract’ and current treatment included losing weight and back exercises (T12/119). On 7 September 2018, on another medical certificate, general practitioner Dr Chris Pepulani, described his past treatment as weight management and ‘self managed physiotherapy’, planned treatment included physiotherapy and ‘enhanced weight management’ (T12/121). On 5 November 2018, on another medical certificate, Dr Mudhar described the same past and planned treatment, as did Dr Pepulani once again on 5 December 2018 (T12/124; T12/125). This is reiterated in a further seven medical certificates (T12/126-132).
The Tribunal also notes two Employment Service Assessment Reports dated 29 March 2019 and 7 May 2019, which detailed current treatment of weight management and self managed physiotherapy and following up specialist involvement for further treatment (T13/145; T14/151).
The Applicant told the Tribunal (transcript/11-12):
I went to physio, I went to weight management, you know what I mean, from 2015 until 2021, I had gained quite a fair bit of weight but my condition wasn't depicted on like me being overweight, that was a result of me being immobile.
So you know what I mean, like the physio actually aggravated my back worse and, you know what I mean, I tried to continue and I went and did the whole period of time with them but like, and I did the exercise plans. But you know what I mean, in the end, it was aggravating my back.
I went to a physio who recommended walking in the pool and I still do that today; I walk in my pool. But it - this doesn't - you know what I mean, it only relieves it. Like while I'm in water, there's no pressure on my back, my discs aren't grinding together, you know what I mean, I don't have that pinching, so it feels better, you know what I mean.
I can exercise in the water. But walking - getting out of the pool, you know what I mean, I just about need crutches, you know what I mean, I have to drag myself out of the pool because of the weight and the pressure it all comes back on…
… My physio I probably would've gone like every two weeks.
In terms of his weight loss, the Applicant advised the Tribunal (transcript/15):
I've been very clear. I said I had weight loss, and an exercise physician in Canning Vale and some, like government - you know what I mean, like I had to get a subsidised thing to go to it because I couldn't afford to pay the bloody people. But I had to pay for the first one which cost me $100. So I guarantee you, I definitely went to them.
… Because the rest of them were funded. And I, you know what I mean, as far as like my physio, that wasn't funded, I had to pay for that each time. And all these treatments that I am require to, like, have done, which I am sure could be many, you know what I mean, I am sure Ms Simpson will have some other things that she wishes I should've treated, done treatment for as well, to try and like renege on her obligation. But the stark reality is, no treatment is going to help what I have got.
The Applicant also provided his Medicare Claims History from 8 June 2018 to 8 June 2021 (A3). On 11 February 2021 Dietetics Health Service was provided and on 24 February 2021 an Exercise Physiology Health Service was provided (A3/8-9).
With respect to these services, the Respondent noted that (transcript/21):
…it clearly shows that a Medicare rebate has been applied for those two visits. But having said that, it's the initial consultation with these two people and that obviously, a treatment had been planned, and as [the Applicant] said, has been undertaken. But it doesn't go to support that all recommended treatments had been undertaken as at the qualification period.
The Tribunal agrees with this conclusion. Despite claims of undertaking extensive treatment, the Applicant was unable to support this contention through his Medicare Claims History. However, it is accepted that some physiotherapy treatments may not involve a Medicare claim and that some treatment may have been undertaken before 8 June 2018.
The Applicant told AAT1 that he had regular physiotherapy from a group called Spinescan (T2/10). The Applicant has not provided any documentation relating to his visits to Spinescan. The Tribunal notes AAT1’s observation that (T2/11):
The Tribunal had no records to indicate attendance at physiotherapy, no record of a spinal injection being administered, and no record of any organised attempts to achieve weight loss.
When asked about records for his treatment, the Applicant stated that (transcript/24):
Yes, so I just don't know where I am meant to go to get these like things from 2017, you know what I mean, like what do you want, how many do you want? Like bank statements or do I got to go back to those people to prove that I've been to those like - you know what I mean, those treatments, you know what I mean, like whatever - you know what I mean, everybody - you know what I mean, they all say that I've been to treatments but none of them - the outcome is still the same, I haven't been able to get any benefit from any of them.
It seems implausible that the Applicant would struggle to find the records that support his contention that he undertook the necessary treatment for his back pain, especially given his evidence that at one point he attended the physiotherapist every two weeks. While it is accepted that the Applicant may have accessed some physiotherapy treatment, the details are vague.
The singular lack of any documentation before the Tribunal from any physiotherapist, or indeed weight loss management, means the Tribunal is simply not in the position to determine, during the Qualification Period, whether his condition was fully treated or stabilised.
CONCLUSION
The Tribunal finds that during the relevant Qualification Period, the Applicant’s condition could not be assessed as fully treated and stabilised. Therefore, an impairment rating cannot be assigned under the Impairment Tables because the Applicant’s condition does not meet the requirements of being permanent. The Applicant has not satisfied s 94(1)(b) of the Act. Given this requirement is not met, it is not necessary to consider whether the Applicant had a continuing inability to work.
DECISION
The Reviewable Decision, being the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 8 June 2021, is affirmed.
I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Member S Barton
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Associate
Dated: 2 March 2022
Date of hearing: 1 February 2022 Applicant: In person Advocate for the Respondent: Ms Amy Simpson, Services Australia
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