Garry Matthews and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 413
[2013] AATA 413
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0783
Re
Garry Matthews
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 19 June 2013 Place Canberra The decision under review is affirmed.
.................................[sgd].......................................
Mr S. Webb, Member
SOCIAL SECURITY – Disability Support Pension – impairments not permanent – not fully treated and stabilised – no impairment rating assigned – decision affirmed
Social Security Act 1991 (Cth), s 94
Social Security (Administration) Act 1999 (Cth), ss 13, 37, Schedule 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr S. Webb, Member
19 June 2013
Craig Matthews claimed a Disability Support Pension. His claim was rejected. Successive reviews affirmed this decision. He is not happy with this result and applied for review.
The issue to be decided is whether Mr Matthews qualified for a Disability Support Pension under s 94 of the Social Security Act 1991 (Cth) (the Social Security Act).
Mr Matthews first contacted Centrelink about claiming Disability Support Pension on 24 April 2012. He was sent a notice confirming this contact[1]. The Centrelink computer records reveal that on 24 April 2012 an officer decided that Mr Matthews did not qualify for grant of a Disability Support Pension and that he had 13 weeks in which to provide additional information[2]. Two things flow from these events.
[1] T5 folio 92.
[2] T13 folio 163.
Firstly, under s 13(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), Mr Matthews is taken to have made his claim on the date of his first contact, as notified, on 24 April 2012.
Secondly, under s 37 and s 4 of Part 2 of Schedule 2 of the Administration Act, for a Disability Pension to be payable, it must be established that Mr Matthews qualified for the Pension on the day he is taken to have made his claim, 24 April 2012, or within 13 weeks of the following day. Thus it follows that the period in which he must qualify for Disability Support Pension to be payable is from 24 April 2012 to 25 July 2012 (the qualification period).
In order to qualify for Disability Support Pension on the day he lodged his claim or during the qualification period thereafter, it must be established that Mr Matthews suffered from one or more impairments that warrant a rating of 20 or more points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) and result in him having a continuing inability to work.
There is no dispute that Mr Matthews suffers from impairments relating to depression, recurrent right shoulder dislocation and epilepsy. The medical report of Dr Mohtaji dated 2 May 2012 supports this conclusion[3]. It follows that Mr Matthews satisfied s 94(1)(a) of the Social Security Act.
[3] T6.
In order to determine whether he satisfies s 94(1)(b) of that Act, it is necessary to consider and apply the rules for applying the Impairment Tables under the Determination.
Under rule 6(3) an impairment rating may only be assigned to an impairment if the medical condition causing it is ‘permanent’ and the impairment is more likely than not to persist for more than two years. A condition is taken to be ‘permanent’ only if it has been ‘fully diagnosed by an appropriately qualified medical practitioner’, and it has been ‘fully treated’, ‘fully stabilised’ and it is likely to persist for more than two years. The terms ‘fully diagnosed’ and ‘fully treated’ are explained in rule 6(5), and ‘fully stabilised’ is explained in rule 6(6).
As can be seen, when determining whether a condition has been ‘fully treated’, it is necessary to consider, inter alia, what treatment has occurred and whether treatment is continuing or is planned within the next two years. Where further reasonable treatment is unlikely to result in significant functional improvement, or there is a compelling reason for the person not to undertake such treatment, the condition may be taken to be ‘fully stabilised’.
Depression
On 2 May 2012, Dr Mohtaji, a general practitioner, reported that Mr Matthews had a confirmed diagnosis of depression with a history of symptoms over several months[4]. The Doctor reported that the “symptoms has [sic] reduced after taking medication” in the form of Pristiq, an antidepressant medication. Previous counselling treatment is noted, but what this entailed is not clear. It appears that no future treatment was planned. Nonetheless, Dr Mohtaji reported that the current impact of Mr Matthews’ depression on his ability to function was expected to fluctuate and persist for more than 24 months. Why the Doctor formed this opinion is not clear. He was not called and this aspect of his evidence could not be tested. On the materials before me, it is not established that Dr Mohtaji’s diagnosis was formed on the basis of evidence from a clinical psychologist or psychiatrist as required by the Introduction to Table 5 concerning mental health function.
[4] T6 folio 94.
Considering the Job Capacity Assessment report at T8 it appears that, as of 12 June 2012, Mr Matthews had not been referred for psychological or psychiatric treatment although he had previously attended two sessions of “counselling via workplace at approx[imately] end of 2011”[5].
[5] T8 folio 132.
Without an assessment by a clinical psychologist or a psychiatrist, for the purposes of Table 5, Mr Matthews’ depression has not been ‘fully diagnosed by an appropriately qualified medical practitioner’. For this reason it is not established that Mr Matthews’ depression is permanent. That being so, the functional impact of the condition cannot be assessed under the Impairment Tables.
Right shoulder condition
With regard to Mr Matthew’s right shoulder condition, the evidence of Dr Mohtaji is that Mr Matthews requires and is awaiting surgical treatment[6]. On the Doctor’s evidence, Mr Matthews is expected to recover from his right shoulder condition after surgery. It appears that on 16 November 2012 Mr Matthews was on a waiting list for the surgical treatment[7] and that treatment had not taken place during the qualification period.
[6] T6 folio 97.
[7] ST3 folio 178.
On that basis, it appears that his right shoulder condition has not been fully treated or fully stabilised. It follows, that functional impairments arising from this condition cannot be assessed under the Impairment Tables.
Epilepsy
As to Mr Matthews’ epilepsy, the evidence of Dr Mohtaji is that this is well managed and it causes minimal or limited impact on Mr Matthews’ ability to function. It appears that this condition is treated with Valproate and, on Dr Mohtaji’s report, significant improvement is expected[8]. Why the Doctor formed this opinion is not clear on the present evidence.
[8] T6 folio 98.
The Job Capacity Assessment report on 12 June 2012 indicates that Mr Matthews had been taking his current medication for 10 years, but he had not seen a specialist. It appears that he experienced three seizures in the preceding two years, with the most recent being in November 2011, and that his recovery from each seizure lasted one to two days[9].
[9] T8 folio 132.
Even if it is accepted, contrary to Dr Mohtaji’s report, that Mr Matthews’ epilepsy is a permanent condition, it does not follow that his claim is made out. There is but little evidence to establish the impact of the condition on his ability to function. Proceeding on the basis of the Job Capacity Assessment report, if Mr Matthews experiences less than two seizures each year, his epilepsy condition might warrant a rating of five points under Table 15. This is not sufficient to meet the test set out in s 94(1)(b), requiring 20 or more impairment points.
It follows that Mr Matthews’ claim cannot succeed on the present evidence and the decision under review must be affirmed. It is not necessary to proceed further to determine whether his impairments cause him to have a continuing inability to work under s 94(1)(c). Mr Matthews is not qualified for grant of a Disability Support Pension for the claim he is taken to have lodged on 24 April 2012.
Decision
The decision under review is affirmed.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member ................................[sgd]........................................
Associate
Dated 19 June 2013
Date of the hearing on the papers 17 June 2013 Applicant Self-Represented Advocate for the Respondent Ms Biljana Salaji Solicitors for the Respondent Department of Human Services, Program Litigation and Review Branch
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