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

[2023] AATA 718

Gilbertson and Secretary, Department of Social Services (Social services second review) [2023] AATA 718 (6 April 2023)

Division:GENERAL DIVISION

File Number(s):      2022/4250

Re:Ronald Gilbertson

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member K Millar

Date:6 April 2023

Place:Adelaide

The decision under review is affirmed.

..............[sgnd]................................

Senior Member K Millar

Catchwords

SOCIAL SECURITY – pensions, benefits and allowances – claim for Disability Support Pension rejected – whether applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period – whether applicant’s conditions attracted an impairment rating of at least 20 points – decision under review affirmed.

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

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

Secondary Materials

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

REASONS FOR DECISION

Senior Member K Millar

6 April 2023

APPLICATION

1. Mr Gilbertson applied for a disability support pension on 19 October 2021, listing chronic pain and insomnia as the conditions that affect his ability to work. 

2. On 23 October 2021, Mr Gilbertson’s application was refused on the basis that he did not have 20 points of more under the Impairment Tables, which is a requirement to qualify for disability support pension.

3. On 14 February 2022, an Authorised Review Officer (“ARO”) affirmed the decision to refuse his claim. On 16 February 2022, Mr Gilbertson applied for a further review of the ARO’s decision in the Social Services and Child Support Division (“AAT1”), where his application was also refused. AAT1 found that his conditions were not yet fully treated and fully stabilised, and as a result he did not meet the requirement to have an impairment rating of 20 points.

4. Mr Gilbertson has applied for a further review of this decision, emphasising that he has a report from a Mental Health Social Work Practitioner in relation to his mental health and that the report of Dr Bastian, a Consultant in Rehabilitation Medicine, was that he had a “virtual total incapacity for work”. 

5. This application is about whether Mr Gilbertson qualified for a disability support pension.  This requires, among other things, that he has a physical, mental or psychiatric impairment that attracts 20 points or more on the Impairment Tables, and that he has a continuing inability to work. 

   BACKGROUND

6. Mr Gilbertson is a former boxer who had seven professional bouts. He said he prefers physical work to intellectual work and has worked as a labourer doing jobs such as stacking timber and concreting. He lives with his partner and four children outside a regional centre. He does not drive and does not have access to public transport.   

7. Mr Gilbertson said he was first told by an orthopaedic surgeon that he could not work in 2015 following investigation and surgery on his left knee. At this time, he was told he would need a knee replacement in the future. His knee has deteriorated since, with osteoarthritis in his knee and ongoing pain.  He claimed workers compensation for the injury to his knee and eventually settled his claim, but this process was not straightforward and has caused him considerable frustration. 

8. Mr Gilbertson also has problems with both shoulders, in particular his left shoulder, which he said causes him pain if he moves it the wrong way. 

9. For pain relief he uses cannabis as his research has shown there is no toxicity to his liver and kidney unlike conventional pain relief. He says cannabis reduces stress, which in turn reduces inflammation and helps him sleep. He has not had any medical investigation of his liver or kidney, but considers he has a fatty liver from stress and a bad diet. He cannot drive because of his cannabis use. Mr Gilbertson said he is unwilling to use other forms of pain relief due to his concerns about his liver and kidney. A reason he does not want to have surgery on his knee or his shoulder is because he does not want to use the pain relief medication this would require. He also expressed concern about there being no guarantee that of knee replacement surgery will be successful, and that 25% of people are unhappy with a knee replacement.

10. Mr Gilbertson states he can be on edge and if aggravated he must be careful not to vent his frustrations. He said he doesn’t know if he is depressed but does get frustrated.   

11. Mr Gilbertson and his family live on an acre of land. He uses a ride on mower to care for the property, with mowing the lawns taking approximately one hour. He chops firewood in winter and can chop wood for 45 minutes to an hour. He said he works through pain as his boxing career has taught him how to keep going even when in pain. He walks his dogs with his children for approximately 20 minutes a day and can manage the three steps in his property if he is careful. He walks with his mother for 20 minutes to assist her mobility and to keep his knee moving. Mr Gilbertson travelled for 7 hours on a bus from a country area to attend the hearing in person.

12. Mr Gilbertson does household tasks such as cooking, washing and looking after the property and the children to reduce the stress to his partner. In caring for the household, he is able to lift cooking ingredients such as oil or milk and unscrew a lid from a bottle. He can reach into overhead cupboards and hang out washing, but this may cause pain. He is able to dress himself including doing up buttons, but finds that some morning his hands do not work due his boxing injuries.

13. Mr Gilbertson told the Tribunal that he has been told by his doctors not to work. He was considered permanently incapacitated for work for the purposes of his workcover claim and for the purposes of accessing his superannuation. Mr Gilbertson considers he has a duty of care to others not to work when he has been found to be incapacitated. He previously held a high-risk work license and has worked on steam pressure equipment and heavy machinery. In these jobs he needs to be able to move quickly if something happens. He considered he would be failing his duty of care if he returns to this type of work when he cannot move well and has problems because he cannot sleep. He says he will be unable to work unless he can use cannabis, which in turn means he can’t drive and would fail to meet occupational health and safety standards.

14. Mr Gilbertson can use a computer but states he could not do sedentary work because he is accustomed to moving. He also said his inability to sleep and the need to use cannabis would affect his ability to do a sedentary job. 

    QUALIFICATION FOR DISABILITY SUPPORT PENSION

15. To qualify for a Disability Support Pension a person must meet the requirements in subsection 94(1) of the Social Security Act 1991 (Cth) (“the Act”). The qualification requirements include at subsection 94(1) of the Act that:

    (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;

    …

16. In looking at whether Mr Gilbertson meets these requirements, the Tribunal must look at Mr Gilbertson’s circumstances as they were at the time of the claim and the period of 13 weeks after the claim was lodged (“the assessment period”).[1]  

    [1] Sections 41 and 42 of the Administration Act, Clause 4 of Schedule 2 of the Administration Act; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.

17. Mr Gilbertson lodged his application for a disability support pension on 19 October 2021, and the assessment period ends 18 January 2022. 

    Does Mr Gilbertson have a physical, intellectual or psychiatric impairment?

18. Mr Gilbertson provide medical certificates showing he has physical impairments to his knee and shoulders and has or had a psychiatric impairment. The requirements of s 94(1)(a) are met. 

    Does Mr Gilbertson have an impairment of 20 points or more under the impairment tables?

19. The Impairment Tables set out rules for when an impairment rating can be assigned and provide a rating system. To be given a rating under the Impairment Tables, the condition causing the impairment must be permanent, and the impairment must be more likely than not, in light of available evidence, to persist for more than two years.[2]

    [2] Clause 6(3) of the Impairment Tables.

20. To be a permanent condition, the condition must be fully diagnosed by an appropriately qualified medical practitioner and be fully treated, fully stabilised and more likely than not to persist for two years.[3]

    [3] Clause 6(4) of the Impairment Tables.

21. In deciding if a condition is fully diagnosed and treated, corroborating evidence of the condition, the treatment and rehabilitation that has occurred and whether treatment is continuing or planned in the next 2 years is to be considered.[4]

    [4] Clause 6(5) of the Impairment Tables.

22. The Impairment Tables set out at clause 6(6) when a condition is considered fully stabilised.  A condition is fully stabilised if the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in a significant functional improvement to a level enabling the person to undertake work in the next two years.[5] 

    [5] Clause 6(6)(a) of the Impairment Tables.

23. Reasonable treatment is defined in clause 6(7) of the Impairment Tables as 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.

    Which of Mr Gilbertson’s conditions were fully diagnosed, fully treated and fully stabilised and likely to persist for two years in the assessment period?

    Knee Osteoarthritis Condition

24. Mr Gilbertson provided medical certificates regarding a left knee injury from 25 July 2014. There is a report dated 28 October 2014 of an MRI of his left knee, which reports a large lateral meniscus tear. 

25. On 18 February 2015, an orthopaedic surgeon performed a left knee arthroscopy and reports a complex tear of his lateral meniscus. It is reported this was settling but that he has quite severe degeneration of the lateral compartment of his knee and he will eventually need arthroplasty and that “[h]opefully this can be delayed for as long as possible given his young age”.

26. A further report dated 10 March 2017 from the orthopaedic surgeon records a diagnosis of lateral compartment degenerative or osteoarthritis of the left knee. It is stated this will eventually require knee replacement, which would best be avoided as long as possible given his young age. 

27. Dr Bastian provided a reported dated 8 January 2018. Dr Bastian reports Mr Gilbertson has not undertaken any active physical rehabilitation and a referral to a pain physician was not actioned. 

28. Dr Bastian states Mr Gilbertson would benefit from being referred to a pain physician, and that he should undertake an exercise regime to try and improve or at least maintain his left lower limb strength and endurance. It is reported that it would be useful to follow up investigations such as MRI and X-ray of his knee, followed by review by the orthopaedic surgeon. The report notes “He is quite young, though in view of his reported level of loss of function and pain, he may need to entertain left knee replacement surgery. This is of course an orthopaedic surgical decision”. It is suggested that before this is entertained, he should undergo formal psychologic review.

29. Mr Gilbertson has a further medical certificate from his orthopaedic surgeon dated 13 November 2018, which states he has osteoarthritis of his left knee. This is the most recent review by the orthopaedic surgeon. 

30. A more recent medical report from Dr Milne dated 10 September 2020 states Mr Gilbertson has chronic osteoarthritis of his left knee and a report from Dr Myo Tun dated 26 September 2022 states Mr Gilbertson has advanced left knee osteoarthritis with a date of onset of 10 November 2020. This medical report states the planned treatment is specialist review for consideration of total knee replacement, “reported he was told too early for TKR and will be done after the age of 60”. A written report from Dr Tun dated 16 September 2022 reports that “he was previously seen by a local orthopaedic surgeon who felt that Ronald would need left knee replacement in the future, however, the surgeon wanted to avoid it as long as possible due to Ronald’s relative young age”.

31. A later medical certificate dated 16 February 2023 states “referred for specialist review for consideration of TKR [total knee replacement]. reported was told [early] and will be done after the age of 60”. The medical reports from the orthopaedic surgeon do not specify that this would only be contemplated after Mr Gilbertson turns 60, but rather state that it would best be avoided as long as possible. 

32. It has been recommended Mr Gilbertson seek the view of the orthopaedic surgeon to assess the current treatment available to improve the function of his knee. He has not been reviewed by an orthopaedic surgeon since 2018. He has not seen a pain physician, a physiotherapist or had formal psychological testing as recommended by Dr Bastian.

33. Mr Gilbertson said he cannot access a physiotherapist due to the cost, and he instead researches and does his own physiotherapy. The Tribunal accepts that if physiotherapy were not available at low or little cost, it may not be reasonable treatment for the purposes of cl 6(7) of the Impairment Tables. 

34. Mr Gilbertson also indicated he would not agree to surgery if this were recommended as he does not want to take pain medication other than cannabis due to his concern about the effect on his liver and kidney. He said he has a fatty liver due to stress and diet but has not consulted a medical practitioner about any liver or kidney problems. He states there is no guarantee of success and a rate of dissatisfaction with the outcome. These are matters which may be considered in deciding if a proposed course of treatment is reasonable treatment.

35. However, at this stage he has not been reviewed by the orthopaedic surgeon. When there is a proposed course of treatment, and if this included a knee replacement, the question of whether this course of treatment is reasonable within the meaning of clause 6(7) of the Impairment Tables will arise. Until he has consulted the relevant specialists and has a recommended course of treatment, this is yet to be determined. 

36. As Mr Gilbertson has not sought further assessment or treatment options from an orthopaedic surgeon, a pain specialist or a psychologist, his knee condition is not fully treated and stabilised, and impairment points cannot be assigned to this condition. 

    Shoulder Condition

37. The orthopaedic surgeon states in his medical certificate of 13 November 2018 that Mr Gilbertson has chronic instability of his left shoulder. 

38. The medical certificate from Dr Tun dated 26 September 2022 states Mr Gilbertson is waiting to be seen by the local orthopaedic surgeon, and he may be eligible for a shoulder replacement. The written report states his bilateral shoulder dislocation requires surgical restrengthening. It reports a recent shoulder X-ray is consistent with the level of his pain. 

39. The medical report of Dr Tun dated 16 February 2023 lists this condition as osteoarthritis of the left shoulder, however an answer to the question on past, current and planned treatment was not entered.

40. On being asked if he had seen a specialist about his shoulder condition, Mr Gilbertson said he does not want any more pain. He does not want to have surgery because he can manage his current pain with cannabis, but if he had surgery, he would need to take prescribed pain medication and he is not prepared to do so.  

41. As the planned treatment of Mr Gilbertson being reviewed by an orthopaedic surgeon is yet to occur and other treatment options may be available, this condition is not fully treated and stabilised and impairment points cannot be assigned to this condition.

    Foot condition

42. The medical report of Dr Tun dated 16 February 2023 states Mr Gilbertson has subluxation of 5^th MTP joint and synovitis of the 5^th MTP joint. The earlier written report states a right foot X-ray and ultrasound showed inflammation of the joint membrane and a partial dislocation of the right 5^th metatarso phalyngeal joint which is also a reason for his chronic foot pain. 

43. Mr Gilbertson told the Tribunal that he dislocated his foot in the six months before the hearing.  As this is outside the assessment period, it cannot be considered for the purposes of assessing the claim made on 21 October 2021 and cannot be assigned impairment points. 

    Mental Health Condition

44. Over the years, Mr Gilbertson has provided medical certificates to Centrelink from medical practitioners listing conditions relating to his mental health, with medical certificates listing a mental illness between October 2012 to June 2016. The conditions listed vary and include anxiety/depression, major depression, adjustment disorder, agoraphobia, stress disorder, and personality disorder. The most recent medical certificate listing a condition that relates to Mr Gilbertson’s mental health is dated 26 May 2016.

45. Current medical certificates do not list medical conditions relating to Mr Gilbertson’s mental health. 

46. According to the introduction to Table 5 of the Impairment Tables, the diagnosis of the condition must be made by an appropriately qualified medical practitioner (which includes a psychiatrist) with evidence form a clinical psychologist if the diagnosis is not made by a psychiatrist.

47. The diagnosis has been made by medical practitioners but is now a considerable period in the past with the last medial certificate listing a mental illness dated over 4 years before the claim. At that time, Mr Gilbertson said he suffered stress due to the birth and care of his children. On being asked about his mental health, Mr Gilbertson said he has issues, but didn’t know if he was depressed. He gets frustrated and annoyed because no-one cares, and he has to deal with things on his own. He suffers emotional stress by Centrelink saying he can work. Mr Gilbertson claims this Is fraudulent, and he is aware of occupational health and safety requirements. He said sleep is an issue and he needs to be aware that he cannot take his mood out on other people. 

48. There is no information to show an assessment by a psychiatrist. Mr Gilbertson has provided a letter from Mr David Gittens, an accredited Mental Health Social Work practitioner.  Mr Gittens is not a clinical psychologist. Mr Gilbertson said he saw Mr Keith Smith, who was a clinical psychologist in 2015 or 2016, but does not have and cannot obtain a report from Mr Smith, who ceased practicing around the same time. Mr Gilbertson was then referred to Mr Gittens. 

49. The Tribunal is not satisfied that past diagnoses of Mr Gilbertson’s mental illness currently apply, and a mental illness has not been listed on medical certificates in the past 4 years. It is not satisfied that a mental illness is currently diagnosed. Even if the Tribunal did accept the past medical certificates citing a diagnosis of a mental illness, as the past diagnoses of mental illness was not made by a psychiatrist or accompanied by evidence from a clinical psychologist, impairment points cannot be assigned to this condition.

    Pain

50. In his application, Mr Gilbertson lists chronic pain and insomnia as his conditions.

51. Clause 6(9) of the Impairment Tables states there are no Tables dealing specifically with pain and when assessing pain the following should be considered:

    (a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and

    (b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and

    (c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).

1. Mr Gilbertson’s pain, as it relates to his knee and shoulder has been considered above.  Mr Gilbertson has not consulted a pain specialist to consider any other available treatment for his pain. This is, in part, because he finds that cannabis manages his pain, and he is able to work through the pain to perform his daily tasks. 

   OTHER MATTERS

2. As none of Mr Gilbertson’s impairment can be assigned impairment points, he does not meet s 94(1)(b) of the Act at the time of his claim or in the thirteen weeks after his claim, and the decision must be affirmed.

3. While the application can be finalised on this basis, this does not address Mr Gilbertson’s concern that Dr Bastian’s report was not adequately considered. He points to Dr Bastian stating he suffers a virtual total incapacity for work. The report provided was in the context of Mr Gilbertson’s claim for workers compensation in the District Court of South Australia.  This is a different legal context to the social security legislation. In his report, Dr Bastian also recommends other investigations and referrals that may improve his functioning, and these investigations and consultation have not been undertaken.   

   CONCLUSION

4. As Mr Gilbertson’s impairments are not fully diagnosed, treated and stabilised, he does not meet the requirements in s 94(1)(b) of the Act and does not meet the requirements for the grant of a disability support pension.

   DECISION

5. The decision under review is affirmed.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Millar

..................[sgnd]............................

Legal Associate

Dated: 6 April 2023

Date of Hearing: 27 March 2023

Advocate for the Applicant:

Self-Represented

Advocate for the Respondent:

Ms Nadia Markov

Services Australia