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

[2017] AATA 2561

Grogan and Secretary, Department of Social Services (Social services second review) [2017] AATA 2561 (7 December 2017)

Division:GENERAL DIVISION

File Number:           2017/0214

Re:Christopher Grogan

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member P E Nolan

Date:7 December 2017

Place:Brisbane

The decision under review is affirmed.

..............................[Sgd]......................................

Senior Member P E Nolan

CATCHWORDS

SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant had conditions that were fully diagnosed, treated and stabilised during relevant period – whether Applicant had 20 impairment points – lower limb Condition – L5 innervated dermatome – spinal condition – mental health conditions – PTSD – depression –  Applicant has 5 points under the Tables – decision under review is affirmed

LEGISLATION

Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447

REASONS FOR DECISION

Senior Member P E Nolan

7 December 2017

INTRODUCTION

1. On 4 January 2016, Christopher Grogan (the “Applicant”) applied for a Disability Support Pension (“DSP”). In the portion of the DSP claim form where the Applicant was to list his disabilities, illnesses or injuries, the Applicant stated that he had:

   PTSD, Depression, Anxiety, Back Injury, Knee Injury & Ankle Injury.[1]

   [1] Exhibit 1, T Documents, T22, pages 139-168, DSP claim form, dated 3 January 2016.

2. In a previous claim (of which an extract was included in the evidence presented to the Tribunal) the Applicant listed:

   Severe Anxiety;

   Severely Depressed ([reason]);

   Severe limp due to badly broken ankle.[2]

   [2] Exhibit 1, T Documents, T9, pages 76-77, earlier DSP claim form, dated 3 August 2010.

3. The central issue for the Tribunal to determine is whether the Applicant qualified for DSP at the date of his claim, 4 January 2016 or within 13 weeks thereafter, being up until

   
   

   5 April 2016.

   HISTORY OF THE MATTER

4. The Applicant contacted Centrelink on 21 December 2015 about the DSP, and lodged his application for DSP on 4 January 2016. On 20 April 2016 the Applicant’s claim was rejected.[3]

   [3] Exhibit 1, T Documents, T33, pages 192-193, Rejection of DSP, dated 20 April 2016.

5. The Applicant sought review by an authorised review officer (“ARO”); the decision to reject the claim was affirmed.[4] The Applicant sought further review by the Social Security and Child Support Division of the Tribunal (“SSCSD”), on 22 December 2016 the decision to reject the application was again affirmed.[5]

   [4] Exhibit 1, T Documents, T36, pages 196-202, ARO decision, dated 27 June 2016.

   [5] Exhibit 1, T Documents, T3, pages 8-13, SSCSD decision, dated 22 December 2016.

6. On 12 January 2017, the Applicant sought review of the General Division of this Tribunal.[6]

   [6] Exhibit 1, T Documents, T2, pages 3-7, Application for Review, dated 12 January 2017.

   ISSUES FOR THE TRIBUNAL

7. The issues for me to consider are:

   (a)whether, during the relevant period, the Applicant had a physical, intellectual or psychiatric impairment which was fully diagnosed, treated and stabilised;

   (b)whether, at the relevant time, the Applicant’s conditions warranted an impairment rating of 20 points or more under the Impairment Tables, and if so;

   (c)whether the Applicant has a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and

   (d)whether the Applicant has a continuing inability to work.

8. Before determining the above, it is convenient to set out the relevant legislative framework.

   LEGISLATIVE FRAMEWORK

9. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; the Applicant’s impairment is of 20 points or more under the Impairment Tables; and the Applicant has a continuing inability to work.

10. The Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 4 January 2016). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[7]  Therefore, the relevant period for considering whether the Applicant qualified for DSP is between 4 January 2016 to 5 April 2016 (“the Relevant Period”). The Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period.[8]

    [7] See ss 3, 4(1), 41 and 42, Schedule 2, Part 2 of the Administration Act; see Fanning and Secretary,  Department of Social Services [2014] AATA 447 at [33].

    [8] See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

11. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).[9] The Tables are function based rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[10] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[11]

    [9] See s 26(1) of the Act.

    [10] See s 5(2) of the Determination.

    [11] See s 6(1) of the Determination.

12. Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results is more likely than not, in light of the available evidence, to persist for more than two years.[12] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not to persist for more than two years.[13]

    [12] See s 6(3) of the Determination.

    [13] See s 6(4) of the Determination.

13. In determining whether a condition has been fully diagnosed and fully treated, the following facts are to be considered:

    (a)whether there is corroborating evidence of the condition;

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or is planned in the next two years.[14]

    [14] See s 6(5) of the Determination.

14. 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:

    (c)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

    (d)there is a medical or other compelling reason for the person not to undertake reasonable treatment.[15]

    [15] See s 6(6) of the Determination.

15. “Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[16] An impairment rating can only be assigned in accordance with the rating points in each Table.

    [16] See s 6(7) of the Determination.

16. In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.

    CONSIDERATION

    Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?

17. The Respondent accepted that the Applicant has impairments for the purposes of section 94(1)(a) of the Act.[17] I am satisfied that concession is appropriate in light of the medical evidence.

    [17] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 30 June 2017 at [5.1].

18. I will now consider whether the Applicant’s impairments can attract impairment points under the Tables.

    Lower limb condition

19. The Respondent concedes the Applicant’s ankle/knee condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. I accept that is so. This means that the impairment caused by this condition can attract an Impairment Rating. The relevant table is Table 3 – Lower Limb Function. The Respondent contends that the resulting impairment attracts 5 points under Table 3.[18]

    [18] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 30 June 2017 at [6.3].

20. To be assigned the higher rating of 10 points, the Applicant would need to have demonstrated that during the relevant period he was:

    (a)unable to walk far outside his home and would drive or use public transport to local facilities; or

    (b)unable to use stairs or steps without assistance; or

    (c)unable to stand for more than 5 minutes.

21. The evidence before me, and given at the hearing, indicates that the Applicant is not restricted by the condition from walking outside the house. The medical report of Dr Jonathan Baily indicated that the effect of the condition was “limited mobility.”[19] This view is supported by the medical report of Dr Mike Belich which stated that the Applicant would have moderate difficultly walking 400 metres.[20] Accordingly, the evidence before the Tribunal does not appear to support a finding that the applicant is unable to walk far outside his home. Indeed the Applicant’s GP management plan put in place by Dr Atul Bhatnager on 4 January 2016 indicated that it was the Applicant’s goal to walk for “30 minutes or equivalent, 5 or more days a week.”[21]

    [19] Exhibit 1, T Documents, T13, page 104, Report of Dr Bailey, dated 16 April 2013.

    [20] Exhibit 1, T Documents, T14, page 108, Report of Dr Belich, dated 22 May 2013.

    [21] Exhibit 1, T Documents, T23, page 170, GP Management Plan, dated 4 January 2016.

22. The position in relation to the Applicant’s ability to stand and use steps is less clear. The medical report of Dr Belich indicated that the Applicant had serious difficulty standing on public transport and negotiating steps in or out of public transport.[22] While the applicant may require assistance to use stairs the evidence before the Tribunal does not indicate that he is unable to use them without assistance.  The period for which the Applicant to able to stand is uncertain. However, the medical certificates of Dr Guang Qin on 8 March 2016 and of Dr Lakshmi Kadaba on 6 April 2016 indicate that the Applicant is unable to stand longer than 10 minutes. 

    [22] Exhibit 1, T Documents, T14, page 108, Report of Dr Belich, dated 22 May 2013.

23. For completeness, the Tribunal notes the comment of Dr Neil Cleaver, in a letter dated 20 January 2016, that the Applicant’s broken ankle has resulted in an “altered gait” and this has contributed to pain in both legs and in his back (the Applicant’s spinal condition is addressed below).[23]

    [23] Exhibit 1, T Documents, T25, page 173, Report of Dr Cleaver, dated 20 January 2016.

24. In all the circumstances, I am not satisfied the applicant should be assigned more than 5 points under Table 3. As it happens, even if I were to assign the applicant 10 points it would not make any difference to the outcome of this application in light of my other findings (see below). I would add there is no evidence to suggest the applicant is entitled to 20 points or more under Table 3.

    Spinal condition

25. The Respondent concedes that the Applicant has been diagnosed with ‘L5 innervated dermatome’.[24] However, the Respondent contends that the condition has not been fully treated or fully stabilised, and thus should not be assigned an impairment rating under the Tables.[25]

    [24] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 30 June 2017 at [6.13].

    [25] Ibid.

26. Dr Cleaver commented on the Applicant’s spinal condition, stating that “[r]adiologically, he has a pristine spine apart from L3-4 and L4-5. He has congenitally short pedicles.” [26] In Dr Cleaver’s opinion surgery for the condition is required.[27] The Applicant indicated, before the ARO, that he was awaiting spinal surgery.[28] On this basis, the spinal condition could not be said to have been fully treated and stabilised during the Relevant Period.  The condition therefore cannot be assigned an Impairment Rating under the Tables.

    [26] Exhibit 1, T Documents, T25, page 173, Report of Dr Cleaver, dated 20 January 2016.

    [27] Ibid.

    [28] Exhibit 1, T Documents, T36, page 199, Authorised Review Officer Decision, dated 27 June 2016.

    Mental health conditions

27. The Respondent accepts that the Applicant’s depression and post-traumatic stress disorder (“PTSD”) are fully diagnosed but not fully treated nor fully stabilised.[29]

    [29] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 30 June 2017 at [6.7].

28. The Tribunal was assisted by oral evidence from Dr Laurel Morris, a psychologist. Dr Morris recalled seeing the Applicant approximately six times. Most of these sessions were in 2014 and the Doctor did not see the Applicant again until 2017. Dr Morris’ evidence was that, based on her recollection of the 2014 visits, the Applicant’s PTSD symptoms were controlled and stabilised.

29. Dr Morris described the Applicant’s mental health condition(s) as “stable” and “not going to resolve itself for some time”. When asked whether it was static the doctor answer “yes” and also described the condition(s) as managed but not resolved.

30. Dr Morris was aware the Applicant did not have treatment between 2014 and 2017. When cross examined, Dr Morris noted some deterioration, when compared to 2014, in the Applicant’s mental health during the 2017 visit. Dr Morris also raised the possibility of a potential further condition.

31. The Respondent contended that the critical issue in respect of the Applicant’s mental health conditions were whether the conditions were fully treated. In particular, the Respondent relied on the medical report of Professor Dennerstein, a psychiatrist. In that report, Professor Dennerstein recommended treatment consisting of “antidepressant medication and psychological intervention including trauma centred therapy, mindfulness, cognitive behaviour therapy strategies and EMDR”.[30] In particular, Professor Dennerstein recommended a further 20 sessions on a fortnightly basis.[31]

    [30] Exhibit 1, T Documents, T16, page 164, Medical Report of Professor Lorraine Dennerstein AO, dated

    [31] Ibid.

32. Notably the Applicant indicated, during a Job Capacity Assessment in April 2016, that he was not currently receiving treatment, but was in the process of returning to treatment.[32] This is consistent with Dr Morris evidence that the Applicant did not have treatment for his mental health conditions during the Relevant Period.

    [32] Exhibit 1, T Documents, T 32, page 186, Job Capacity Assessment Report, dated 14 April 2016.

33. Accordingly, on the evidence before the Tribunal, I am satisfied the Applicant’s mental health conditions were not fully treated during the Relevant Period and therefore cannot be assigned an Impairment Rating under the Tables.

    Conclusion on points

34. I have found that the Applicant’s mental health conditions and spinal condition cannot be assigned an Impairment Rating under the relevant Tables. I have found that the Applicant’s lower limb condition is full diagnosed, fully treated and full stabilised. On the basis of the evidence before the Tribunal, I have assigned the Applicant’s lower limb condition an impairment rating of 5 points.

35. The Applicant raised a concern at the hearing in regards to, a perceived, inconsistency between the eligibility of carers’ payment for a person assisting him and a claim for the DSP. As noted by the Respondent’s representative the eligibility requirements for each of those payments is different.

    Continuing Inability to Work?

36. Given that the Applicant’s conditions do not attract an impairment rating of 20 points or more during the Relevant Period, it is not necessary for me to consider whether he satisfies the remaining criteria to qualify for the DSP.

    CONCLUSION

37. Based on the evidence before me, I do not consider that the Applicant’s conditions attracted an impairment rating of 20 points or more under the Impairment Tables during the Relevant Period. I must therefore affirm the decision under review.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member P E Nolan.

............................[Sgd]........................................

Associate

Dated: 7 December 2017

Date of hearing:	13 July 2017
Applicant:	In person
Solicitors for the Respondent:	Mr Ben Dube Sparke Helmore

[2012] AATA 922 at [34].

13 June 2013.