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

[2017] AATA 26

Grainger and Secretary, Department of Social Services (Social services second review) [2017] AATA 26 (18 January 2017)

Division:GENERAL DIVISION

File Number(s):      2016/1438

Re:Wayne Grainger

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:18 January 2017

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – disability support pension – Impairment Tables – whether conditions fully diagnosed, treated and stabilised – back and neck conditions – right shoulder condition – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member A Poljak

18 January 2017

INTRODUCTION

1. Mr Grainger seeks review of a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (“SSCSD”) on 27 January 2016. The SSCSD affirmed a decision made by the Department of Social Services (“the Department”) refusing Mr Grainger’s claim for the disability support pension (“DSP”) which was lodged on 20 July 2015.

2. Mr Grainger’s claim for DSP was rejected on the basis that he did not satisfy the eligibility criteria set out in s 94 of the Social Security Act 1991 (Cth) (“the Act”). Section 94 of the Act provides that to qualify for payment, a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011 (“the Impairment Tables”); and a continuing inability to work as defined in the Act.

3. For Mr Grainger to qualify for DSP, he had to satisfy these criteria on 20 July 2015, when he applied for the DSP, or within the following 13 weeks, that is, by 19 October 2015 pursuant to s 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (“the relevant period”).

4. The Secretary contends that the medical evidence does not support a finding that Mr Grainger was qualified for DSP during the relevant period.

5. The Secretary accepts that Mr Grainger suffered from a number of conditions during the relevant period. He therefore satisfies s 94(1)(a) of the Act.

6. The issue for determination in these proceedings is whether the conditions were fully diagnosed, treated and stabilised during the relevant period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.

   IMPAIRMENT TABLES

7. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in s 3 of the Act to mean “a loss of functional capacity affecting a person’s ability to work that result from a person’s condition”. 

8. Subsections 6(3) and 6(4) provide that an impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has being fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated; fully stabilised; and it will more likely than not, persist for more than two years. 

9. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, subsection 6(5) instructs that a decision- maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.

10. For the purposes of the Impairment Tables, subsection 6(6) defines fully stabilised to mean:

    (a)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.

11. The Macquarie Dictionary defines undertaken as, inter alia, committing oneself to, taking on, and promising to do a particular thing. I am of the view that to undertake something, there is a level of commitment to see it through.

12. Reasonable treatment is defined in subsection 6(7) as treatment that:

    (a)is available at a location reasonably assessable 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.

13. Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each table and a rating cannot be assigned between consecutive impairment ratings. Significantly, section 11(1)(c) provides:

    (c) if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (emphasis added)

    Osteoarthritis of the Lumbar and Cervical Spine (Back and Neck Pain)

14. The Secretary accepts that Mr Grainger’s osteoarthritis was fully diagnosed during the relevant period but contends that it was not fully treated and fully stabilised. I agree with the Secretary’s position for the following reasons.

15. Mr Grainger has a long history of back and neck pain since he suffered a work-related accident in 1988. In a referral to a physiotherapist dated 16 February 2007, Dr Thong reports “x-ray osteoarthritis” with complaints of “back pain (thoracic and lower)”. The medical history records that osteoarthritis of the spine was diagnosed in 2005.

16. In a referral to the same physiotherapist on 16 October 2007, Dr De Silva reports “mid to lower back pain secondary to osteoarthritis. He had trial of physio in the past with good effect.”

17. Based on this evidence I am satisfied that Mr Grainger has undertaken physiotherapy in the past for his osteoarthritis with good effect.

18. Dr Vijayakumar, Mr Grainger’s GP, confirms the diagnosis of osteoarthritis of the lumbar and cervical spine in a medical report dated 19 November 2010. I also note that in this report Dr Vijayakumar opines that this condition will not affect Mr Grainger’s ability to work.

19. In a medical certificate dated 15 July 2015, Dr Vijayakumar reports that Mr Grainger has an exacerbation of his back pain. The prognosis is recorded as uncertain. Dr Vijayakumar says that further investigation is required including a CT and x-ray of the spine. This medical certificate is dated five days prior to Mr Grainger lodging his claim for DSP.

20. Based on this evidence I am satisfied that Mr Grainger has suffered some form of exacerbation of his existing condition and requires further investigation and possibly treatment. It follows that I cannot be satisfied that his osteoarthritis was fully treated and fully stabilised during the relevant period. No impairment rating may be given for this condition under the Impairment Tables.

    Right Shoulder Pain

21. The Secretary contends that Mr Grainger’s upper impairment arising from right shoulder pain was fully diagnosed during the relevant period but was not fully treated and fully stabilised. Once again I agree with the Secretary’s position for the following reasons.

22. In a medical certificate dated 15 July 2015, Dr Vijayakumar reports that Mr Grainger has an exacerbation of his right shoulder pain. The prognosis is recorded as uncertain. Dr Vijayakumar says that further investigation is required including an ultrasound of the right shoulder. As already stated, this medical certificate is dated five days prior to Mr Grainger lodging his claim for DSP.

23. I am satisfied that Mr Grainger has suffered some form of exacerbation of his existing condition and requires further investigation and possibly treatment. It follows that I cannot be satisfied that his right shoulder pain was fully treated and fully stabilised during the relevant period. No impairment rating may be given for this condition under the Impairment Tables.

    Other Medical Conditions

24. It is noted that Mr Grainger has other medical conditions including gastro-oesophageal reflux disease (“GORD”), hyperlipidaemia and generalised anxiety.

25. The Secretary accepts that Mr Grainger was diagnosed with GORD in 2005. The applicant confirmed at hearing that he has not had any related symptoms, namely heartburn, since 2011 when he ceased his prescription medication. He said that he may occasionally suffer heartburn but that it is easily managed by over-the-counter medication. There is no evidence before me to suggest that Mr Grainger suffers any functional impairment as a result of this condition as it no longer causes him ongoing problems.

26. In regards to the hyperlipidaemia, the Secretary accepts that Mr Grainger was diagnosed in 2005. In the report by Dr Vijayakumar dated 19 November 2010, it is recorded that the hyperlipidaemia was treated with fish oil and Vytorin. In the same report, it is reported that significant improvement is expected and the impact on function as a result of this condition is nil. I have no evidence before me to the contrary.

27. In a medical certificate of 2 April 2012, Dr Vijayakumar records that Mr Grainger is diagnosed with generalised anxiety but that the condition is temporary. The prognosis is listed as uncertain and the treatment is recorded as Endep 25mg.

28. Table 5 of the Impairment Tables is to be used when a person has a permanent mental health condition resulting in functional impairment. Self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment.

29. The Introduction to table 5 of the Impairment Tables provides (inter alia):

    A diagnosis of a condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist). (emphasis added)

30. There is no evidence before me from a clinical psychologist or psychiatrist diagnosing Mr Grainger’s generalised anxiety. It follows that I cannot be satisfied that this condition was fully diagnosed, fully treated and fully stabilised during the relevant period.

31. Based on the above evidence, I am satisfied that the medical conditions of GORD, hyperlipidaemia and generalised anxiety cannot be given an impairment rating under the Impairment Tables.

    CONCLUSION

32. Since Mr Grainger’s conditions do not rate 20 or more points under the Impairment Tables, it is not necessary for me to consider whether he had a continuing inability to work during the relevant period.  It follows that his claim for DSP cannot succeed.

33. I affirm the decision under review. 

34. Mr Grainger may apply for DSP again at any time.

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 18 January 2017

Date(s) of hearing:	8 December 2016
Applicant:	By telephone
Solicitors for the Respondent:	Department of Human Services