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

[2017] AATA 1553

Gardner and Secretary, Department of Social Services (Social services second review) [2017] AATA 1553 (12 September 2017)

Division:GENERAL DIVISION

File Number(s):      2016/5676

Re:Paul Gardner

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr D. J. Morris, Member

Date:12 September 2017

Place:Melbourne

The Tribunal affirms the decision under review.

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

D. J. Morris, Member

SOCIAL SECURITY – Disability Support Pension – Impairment – Impairments to be assigned 20 or more impairment points – No impairment points assigned in claim period – Conjunctive nature of qualification criteria in Act – application fails – decision affirmed

Legislation

Acts Interpretation Act 1901 (Cth) s 36(1)
Administrative Appeals Tribunal Act 1975 (Cth), s 37
Social Security Act 1991 (Cth) ss 94(1)(a)-(c), 94(2), 94(3B), 94(5)
Social Security Administration Act 1999 (Cth), s 13, sch 2 cl 4(1)

Social Security (Tables for the Assessment of Work-related impairment for Disability Support Pension) Determination 2011, s 6(5), (7), s11(5), Table 5

REASONS FOR DECISION

Mr D. J. Morris, Member

12 September 2017

1. Mr Paul Gardner contacted the Department of Human Services (the Department) about lodging a claim for Disability Support Pension (DSP) on 9 February 2016. He subsequently lodged a claim form with the Department on 19 February 2016. Under section 13 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), if a person contacts the Department in relation to a social security payment, and the person is on the day on which the Department is contacted qualified for the payment, and the person lodges a claim for the social security payment within fourteen days after the Department was contacted, the person is taken to have made a claim for the payment on the day on which the Department was contacted. The form signed by Mr Gardner was dated 22 February 2016 but Department records show it was actually lodged on 19 February 2016. Applying these provisions of the Administration Act, the deemed claim for DSP is taken to have been made on 9 February 2016.

2. On 29 April 2016 the Department made a decision to reject Mr Gardner’s claim on the basis that his medical conditions did not attract the required 20 or more impairment points to qualify for the benefit under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Determination’).

3. Mr Gardner sought a review by an Authorised Review Officer (ARO), an officer of the Department not involved in the original decision. On 20 June 2016 the ARO affirmed the decision to reject Mr Gardner’s claim for DSP. The ARO considered that none of Mr Gardner’s medical conditions could be considered permanent in the terms set out in the Determination. As such, they could not be assigned impairment points in order for Mr Gardner to be qualified for DSP. The ARO also found that Mr Gardner did not have a continuing inability to work as he had not met the program of support requirements and had a work capacity of between 15 and 22 hours a week within two years.

4. Mr Gardner sought a review of the ARO’s decision by the Social Services and Child Support Division of the Tribunal (‘AAT1’).  That hearing was held on 15 September 2016 and the Tribunal affirmed the decision.

5. Mr Gardner has now sought a review by the General on of the Tribunal.  The hearing was held on 6 July 2017 by telephone.  Mr Gardner represented himself, gave evidence under affirmation and was cross-examined by the legal representative of the Respondent, Mr Kelvin Defranciscis.

6. Mr Gardner’s treating general practitioner, Dr Eeshara Vithana of Dromana Family Doctors, gave evidence by telephone, on the Applicant’s medical history and treatment.

7. The Tribunal had before it documents submitted by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), which were admitted into evidence.  The Tribunal also admitted into evidence a medical report dated 3 April 2017 and annexures from Dr Vithana (Exhibit A1).

8. After the hearing, the Tribunal made a direction for the Applicant to provide a medical letter dated 22 March 2016 from Mr John Choi to Dr Vithana, detailing physiotherapy reports from December 2015 to May 2016 and gave leave for the Respondent to make submissions in reply.  On 28 July 2017 the Respondent made a written submission in response to the additional material provided by Mr Gardner.

   Qualification for DSP under the Act

9. The law applicable to the grant of DSP is the Social Security Act 1991 (Cth) (the Act) and in particular section 94 of that Act.

10. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied.  For this reason, it must be established that the person applying has –

    (a)a physical, intellectual or psychiatric impairment; and

    (b)impairment of 20 points or more under the Impairment Tables; and

    (c)a continuing inability to work.

11. The Impairment Tables referred to in section 94(1)(b) are to be found in the Determination, which came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.

12. The applicable provision relating to the Applicant’s ability to “work” under section 94(1) (c) and section 94(5) of the Act is work that is for at least 15 hours a week.

13. For a person to be qualified for DSP, the person must have an impairment within the meaning of the Act.  Secondly, the impairment or impairments must be assigned a rating of 20 or more points under the relevant Impairment Tables.  Thirdly, the person must have a continuing inability to work.

14. An important additional requirement is, if a person is assigned 20 or more points under one Impairment Table, this means the person’s impairment is then assessed under section 94(3B) to be a ‘severe impairment’. If a person is assigned 20 or more points under more than one Impairment Table, then the provisions of section 94(2) of the Act are applicable, which relate to a person participating in an approved program of support.

    What is the period for considering the claim?

15. The Administration Act provides, at clause 4(1) of Schedule 2, as follows:

    If:

    (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

16. Section 36(1) of the Acts Interpretation Act 1901 (Cth) (the Interpretation Act) sets out in a table how a period of time is to be calculated in legislation where there is no express contrary meaning. Item 5 in the table in section 36(1) of the Interpretation Act states that if the period of time is expressed to begin from a specified day, it does not include that day.

17. This means that the Tribunal must consider whether Mr Gardner was eligible for DSP on the date he is deemed to have made his claim (9 February 2016) or in the thirteen week period after that date; that is by 10 May 2016. This is called the claim period.

    Does the Applicant have a physical, intellectual or psychiatric impairment?

18. The Tribunal had before it a medical report dated 18 February 2016 from Dr Vithana.  Dr Vithana listed four medical conditions: Lumbar/cervical spinal osteoarthritis; transient ischemia attack (TIA); depression/anxiety; and severe allergy and asthma.

19. The Respondent submitted that he accepted these four conditions as impairments that Mr Gardner had at the time he lodged his claim for DSP.

20. After considering the medical reports before the Tribunal, and taking into account the Respondent’s concessions on this point, I find that Mr Gardner did have impairment at the time he made his claim for DSP – namely a lumbar/cervical spinal osteoarthritis condition, a TIA condition, an anxiety and depressive condition and allergy and asthma conditions and so I find he satisfied section 94(1)(a) of the Act in the claim period.

21. Having made this finding, the Tribunal must now consider the functional impact of these medical conditions on Mr Gardner.

    Lumbar/cervical spinal osteoarthritis condition

22. Dr Vithana gave evidence that Mr Gardner had been diagnosed with osteoarthritis of his cervical spine and that this had been confirmed by MRI reports which had been referred to Mr Choi, orthopaedic surgeon.  The Tribunal had before it a medical letter from Mr Choi to Dr Vithana dated 2 May 2016, stating that he saw Mr Gardner on 22 March 2016 at his rooms and which went on to say:

    In essence, the MRI of the cervical spine revealed foraminal narrowing on the left side which probably does contribute to some of the left sided tension headaches symptoms but does not involve the overall presentation that he has come to me for and I cannot explain the presentation in his neck and his head as being attributed to the cervical spine degeneration. 

    I don’t believe any operation in the cervical spine would be of benefit and I would like to explore an opinion from a vascular surgeon as well as neurologist regarding his presentation.

23. At the hearing, Dr Vithana mentioned a report from Mr Choi dated 22 March 2016 which the Tribunal did not have, but which Mr Gardner subsequently provided.  Mr Choi wrote in that report:

    As expected the MRI demonstrates L5/S1 segment degeneration with ruptured disc and disc protrusion affecting the left L5 nerve root.  This no doubt explains his back pain and the left leg pain he experiences.  I have explained to Paul the imaging findings and discussed the definitive treatment option.

    If he continues to lose a little bit more weight he will definitely become a suitable candidate for an OLIF [oblique lateral interbody fusion] and I think this will be much more cosmetically procedure [sic] and MIS procedure that will give him faster recovery and an ideal outcome.

    I am going to see Paul in another three months’ time and see if he has lost another 20kg to get below 100 kg and then will proceed to surgery later in the year.

24. In a previous medical report dated 2 December 2015, Mr Choi advised that Mr Gardner need to lose weight and undertake a conditioning programme for his lower back muscles with core strength training.  At the hearing, Dr Vithana said that he provided similar advice to his patient by recommending a weight-reduction diet and exercises.

25. Based on the medical evidence before me, I am not persuaded that Mr Gardner’s spinal condition was fully treated and fully stabilised at the time of his DSP claim. There is no doubt on the objective evidence that he has a degenerative condition that causes him pain, but just prior to, during, and after the claim period, he was receiving treatment and advice to better position him for future surgery. Dr Vithana said one option might be spinal fusion but “it will be up to the neurosurgeon to decide”. Therefore, I do not find that this condition was permanent in the terms required in the Determination; and so it cannot be assigned impairment points in the claim period in relation to this claim.

    Transient ischemic attack (TIA) condition

26. The Tribunal had before it a TIA Clinical Assessment report dated 5 September 2014 from Peninsula Health.  The doctor’s notes recorded observations including speech slurring and some left side weakness and said that Mr Gardner described chronic headaches “which have resolved since this episode.”

27. Mr Gardner underwent a computer tomography of the brain conducted, by Dr Graham Peace on 5 December 2014.  Dr Peace recorded:

    The brain and ventricular system are normal in appearance.  No intra-cerebral or subdural haemorrhage is detected.  No contusion is seen.  Skull vault appears intact.  There is mild incidental mucosal thickening in the paranasal sinuses.

28. Dr Peace conducted a further brain tomography on 24 July 2015 which reported:

    The brain and ventricular system are normal in appearance.  No haemorrhage, infarct or space occupying lesion is detected.  Mild incidental mucosal thickening is present in the para-nasal sinuses.

29. In Dr Vithana’s medical report of 18 February 2016, Dr Vithana recorded “he suffers from hypertension which resulted him recent mini stroke [sic].  Reason for min stroke [sic] has not yet been identified.”

30. In his evidence at the hearing, Dr Vithana said Mr Gardner had been diagnosed with atrial fibrillation in 2016, and confirmed that his atrial fibrillation is linked with his previous TIA.  He said that Mr Gardner was taking anticoagulant medication, has high blood pressure and high cholesterol levels and would soon undergo a sleep test to see if he was suffering from sleep apnoea.

31. The Tribunal concludes that, given Dr Vithana’s evidence about the date of diagnosis, it is clear that the TIA condition was not fully diagnosed on 9 February 2016 or within the claim period. 

32. Accordingly, this condition cannot be considered further in terms of assigning impairment points under the Determination.

    Anxiety and depressive condition

33. Mr Gardner gave evidence that he had been seeing psychiatrists and psychologists “all my life”.  He said that he had been working as a tree surgeon and injured his back.  He was prescribed Effexor, an antidepressant medication, to “calm me down”. 

34. Dr Vithana said that Mr Gardner had been bullied at school and ill-treated by his parents and his mental health challenges stemmed from this background.  Dr Vithana said that he had prescribed Effexor and, in February 2017, prescribed a mood stabiliser.  He said that Mr Gardner had been seeing a clinical psychologist, Mr Steven Kent.

35. Dr Vithana said that before February 2016 he did not believe that Mr Gardner had seen a psychologist but that he was taking antidepressants at that time.

36. The Tribunal had before it a report from Mr Kent dated 18 June 2016.  It began:

    I am writing this letter in support of Paul Gardner, who has been attending psychological sessions with myself over the course of several months.  I began seeing Mr Gardner in February of this year, through a referral from his general practitioner – Dr E. Vithana.  To date we have completed six sessions.

37. Mr Kent went on to say:

    Mr Gardner presented in February troubled by a complex array of medical conditions which lead to severe and unpredictable daily pain, and which have a cumulative negative impact upon Mr Garder’s [sic] ability to cope with any specific concern.  Key psychological concerns for Mr Garner [sic], all of which stem from dealing with his medical concerns include; mood disturbance, depression, poor self-esteem, insomnia, lethargy, strong psychological agitation and symptoms of anger, anxiety, as well as significant cognitive impairment whilst in pain including memory and concentration difficulties.  The combined sum of these concerns indicate that Mr Gardner is currently experiencing severe mental health issues that create equally severe impairments in his ability to function within a work environment and within society in general.

38. The relevant impairment table of the Determination for assessing the functional impact of anxiety and depressive conditions is Table 5 – Mental Health Function. Assessment under this table requires diagnosis by an appropriately qualified medical practitioner, including psychiatrists, with evidence from a clinical psychologist if the diagnosis has not been made by a psychiatrist.

39. Dr Vithana is a general practitioner and he has recorded anxiety/depression as a condition of Mr Gardner. Notwithstanding that Mr Gardner only commenced seeing Mr Kent in February 2016, the Tribunal considers that the Respondent was correct to accept that there had been a corroborative diagnosis by a person in a category, to satisfy the mandatory requirement in the Determination.

40. However, I conclude, based on Dr Vithana’s evidence (that Mr Gardner only commenced seeing Mr Kent in the same month as he lodged his DSP claim); and based on Dr Vithana’s evidence that he commenced Mr Gardner on new mood stabilising medication in February 2017, that Mr Gardner’s mental health conditions, while diagnosed, cannot be regarded as fully treated or fully stabilised in the claim period.  He had commenced psychological counselling and his treating general practitioner was still, at that time, considering the pharmacological regimen appropriate to treat his condition.  I note that Dr Vithana said at the hearing that this condition has worsened and Mr Gardner has seen a psychiatrist in February 2017.

41. I want to make clear that Mr Gardner should not interpret this finding as the Tribunal not accepting that he has a genuine and fully diagnosed depressive condition. However, the law requires that the condition must be also be fully treated and fully stabilised, in the sense of whether treatment is continuing or is planned in the next two years (see paragraph 6(5) of the Determination). In this instance, those criteria were not met to settle the condition as fully treated and fully stabilised within the claim period. Treatment was continuing. There was no conclusive professional medical opinion before the Tribunal that there was unlikely to be a significant functional improvement to a level enabling the person to undertake work in the next two years.

42. The Tribunal therefore finds it cannot assign points for Mr Gardner’s mental health condition in the claim period.

    Allergy and asthma conditions

43. Dr Vithana recorded in his report dated 18 February 2016 that Mr Gardner suffers from “severe allergic reactions including anaphylaxis/eczema/asthma”. The Tribunal had before it a Healthscope Pathology report dated 30 October 2015 which recorded “very high” reactivity for four groupings: animal mix, mould mix, house dust and mite mix, and grass mix.

44. In his evidence at the hearing, Dr Vithana said that in October 2016 Mr Gardner had been referred to an allergist because he needed immunotherapy.  Dr Vithana said that Mr Gardner had a high reactivity to “dust and grass mix”.  Dr Vithana said that other medical problems meant that this referral did not proceed and also told the Tribunal that the allergist relocated.  It was his view that Mr Gardner’s asthma is also “part of this problem”.

45. Mr Gardner told the Job Capacity Assessor on 26 April 2016 that his asthma was well controlled with a Ventolin inhaler and he reported minimal impact from this condition; this was evidence that he repeated at AAT1.  In regard to his eczema, Mr Gardner told the assessor that he takes prednisolone as required and was awaiting consultation with an allergy specialist to try and improve management of his symptoms which can cause pain and flare ups.

46. Mr Gardner’s allergies are verified by the pathology report in 2015 and by Dr Vithana’s evidence. However, in the claim period he had been recommended to see an allergist and had not yet done so. The Tribunal appreciates that Mr Gardner’s other health conditions might have affected his ability to see the allergist; as might the fact that the allergist had relocated. But I consider that Dr Vithana’s referral was reasonable treatment, in the terms that that phrase is used in paragraph 6(7) of the Determination and, as it had not been undertaken at the relevant time, I am unable to assign any impairment points for this condition.

47. Mr Gardner’s asthma may be affected by his allergies, but on his own evidence that condition does not have a significant impact on his functional abilities. Therefore, for the asthma condition alone, I assign a zero rating under paragraph 11(5) of the Determination.

    Other conditions: atrial fibrillation and possible sleep apnoea

1. The Tribunal had before it a medical letter from Dr Rodney Teperman, cardiac physician, to Dr Vithana, dated 11 August 2016.  Dr Teperman recorded:

   He had a checkup and was found to be in atrial fibrillation, the duration of this is unclear.  He does feel a few palpitations but on the whole is asymptomatic.  He denies any chest pain.  He has no symptoms of heart failure.

2. Dr Teperman goes on to advise that he has prescribed a course of medication for Mr Gardner and concludes his letter:

   I am going to place him on the waiting list at Frankston Hospital for a DC reversion. The waiting list is not too bad at the moment.  I have explained to him that atrial arrhythmias do tend to be recurrent.  Obviously, weight loss would be useful here but probably when I follow him up, I shall arrange to investigate him for sleep apnoea.

3. Given that this specialist consultation and diagnosis took place well after the claim period, these conditions are not ones that can be assessed under the Determination in regard to this claim for DSP.

   Conclusion

4. The Tribunal finds that Mr Gardner is assigned zero impairment points for his medical conditions in the claim period.  Section 94(1)(b) of the Act requires the assignment of 20 or more impairment points to a claimant at the time the person made a claim or in the 13 weeks thereafter.   Mr Gardner did not meet the requirements of section 94(1)(b) at that time, so his application for DSP cannot succeed. 

5. Each part of section 94 must be satisfied for a person to be qualified for DSP.  As this claim fails to meet the requirements of section 94(1)(b), it is not necessary for the Tribunal to address whether the Applicant had satisfied section 94(1)(c), a continuing inability to work, in the claim period. 

6. The Tribunal has found that Mr Gardner does have an impairment. He also has conditions that affected his previous occupation as a specialised tree surgeon, particularly back problems and allergies. In considering whether a person has a continuing inability to work, “work” is defined at section 94(5) of the Act to mean any work that is for at least 15 hours a week (on wages that are at or above the relevant minimum wage) and exists in Australia, even if not within the person’s locally accessible labour market. It is not restricted to work that a person used to do, or had experience, training or expertise in, or was familiar with. Mr Gardner also has conditions that were being actively treated at the time he made his DSP claim, so they could not be regarded as being fully treated or fully stabilised at that time as required by the Determination.

7. The Tribunal finds that the original decision was correct.  Mr Gardner was not qualified for DSP on the date he made his claim and he did not become qualified in the thirteen week period after that date.

   DECISION

8. The Tribunal affirms the decision under review.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Mr D. J. Morris, Member

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

Associate

Dated: 12 September 2017

Date of hearing:	6 July 2017
Date of final submission:	28 July 2017
Applicant:	By telephone
Advocate for the Respondent:	Mr Kelvin Defranciscis
Solicitors for the Respondent:	Department of Human Services, Freedom of Information & Litigation Branch