Hadzich and Secretary, Department of Social Services (Social services second review)
[2020] AATA 2655
•5 August 2020
Hadzich and Secretary, Department of Social Services (Social services second review) [2020] AATA 2655 (5 August 2020)
Division:GENERAL DIVISION
File Number:2020/0831
Re:Mr Muhidin Hadzich
APPLICANT
Secretary, Department of Social ServicesAnd
RESPONDENT
DECISION
Tribunal:B. Pola, Senior Member
Date:5 August 2020
Place:Brisbane
The decision under review is affirmed.
.............................[SGD]...............................................
Senior Member B.Pola
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – DSP – whether condition is fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables during the Qualification Period - decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration Act) 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409
Easterbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 810
Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133; [2014] AATA 447
Faulkner and Comcare [2007] AATA 1541
Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404
REFERENCE MATERIAL
Social Security Guide, 3.6.3.40, version 1.270, 1 July 2020.
REASONS FOR DECISION
B. Pola, Senior Member
5 August 2020BACKGROUND
On 10 January 2019[1] the Applicant, Mr Muhidin Hadzich, notified the Department of Human Services (the ‘Agency’) of an intention to claim the Disability Support Pension (‘DSP’), which was received by the Agency on 30 January 2019[2].
[1] Exhibit 1, T47, page 301.
[2] Exhibit 1, T33, page 194; and T47, page 302.
On 2 May 2019[3], the Applicant was advised by the Agency that their claim for the DSP was rejected.
[3] Exhibit 1, T39, page 243.
The decision to reject the Applicant’s claim for the DSP was again affirmed by an Authorised Review Officer (‘ARO’) after an internal review by the Agency on 20 September 2019[4].
[4] Exhibit 1, T42, page 247.
The Applicant applied to the Social Services and Child Support Division (‘SSCSD’) of the Administrative Appeals Tribunal (the ‘Tribunal’) to review the Department’s decision to reject their claim for the DSP, and on 17 January 2020 the SSCSD of the Tribunal affirmed the decision to reject the Applicant’s claim for the DSP[5].
[5] Exhibit 1, T2, page 2.
The Applicant applied to the Tribunal for a second review of this decision on 12 February 2020[6].
[6] Exhibit 1, T1, page 1.
JURISDICTION
This is an application to review a decision of the SSCSD of the Tribunal which affirmed a decision to reject the Applicant’s claim for the DSP.
The Applicant’s claim of 30 January 2019 has been reviewed in accordance with s135 of the Social Security (Administration Act) 1999 (Cth) (the ‘Administration Act’) by an ARO, and subsequently reviewed by the SSCSD of the Tribunal.
In accordance with s179(1) of the Administration Act, the Tribunal has jurisdiction to hear the Applicant’s DSP claim of 30 January 2019.
ISSUES
The issue before the Tribunal for consideration is whether the Applicant was qualified to receive the DSP in relation to their claim lodged on 30 January 2019, and ending 13 weeks later on 1 May 2019[7].
[7] The Qualification Period is discussed in later paragraphs of these reasons.
For the purposes of this application and the evidence submitted and provided orally to the Tribunal, it is clear the Applicant had impairments during the Qualification Period in accordance with s94(1)(a) of the Social Security Act 1991 (Cth) (‘the Act’). Indeed, the Respondent accepted that the Applicant had impairments for the purposes of s94(1)(a) of the Act[8].
[8] Exhibit 2, page 6, paragraph 37.
The issue for the Tribunal to resolve in respect of the Applicant’s claim for the DSP is:
(a)whether the Applicant’s impairments attract 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Determination’) within the Qualification Period; and
(b)if so, did the Applicant have a continuing inability to work?
RELEVANT LEGISLATIVE PROVISIONS
The medical qualification criteria regarding eligibility for the DSP are set out in paragraphs (a), (b) and (c) of s94(1) of the Act:
94 Qualification for disability support pension
(1)A person is qualified for disability support pension if:
(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;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
…
To be medically qualified for a DSP, a person must therefore have a physical, intellectual or psychiatric impairment that has a rating of 20 points or more under the Impairment Tables; and a continuing inability to work which, in some circumstances, includes participation in a program of support (‘PoS’).
Section 26(1) of the Act provides that “[t]he Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.
It is the Tribunal’s role to stand in the shoes of the original decision-maker[9] and determine whether the decision was the correct or preferable one on the material before the Tribunal[10]. Given this, the Tribunal must make its decision in accordance with the Determination which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination.
[9] Faulkner and Comcare [2007] AATA 1541 [27].
[10] Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409, 419 per Bowen CJ and Deane J.
Section 6 of the Determination provides that “[t]he impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person”[11]. Further, the Impairment Tables in the Determination may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered[12].
[11] Section 6(1) of the Determination.
[12] Section 6(2) of the Determination.
An Impairment Rating may only be assigned to an impairment if[13]:
(a)the person’s condition causing the impairment is permanent; and
(b)the impairment that results from that condition is more likely than not, in light of evidence, to persist for more than 2 years.
[13] Section 6(3) of the Determination.
Further, for a condition to be considered permanent under s6(3)(a) of the Determination, the condition must also[14]:
·be fully diagnosed by an appropriately qualified medical practitioner; and
·be fully treated; and
·be fully stabilised; and
·be more likely than not, in light of available evidence, to persist for more than 2 years.
[14] Section 6(4) of the Determination.
When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[15]:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[15] Section 6(5) of the Determination.
A condition is considered fully stabilised if[16]:
(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:
(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.
[16] Section 6(6) of the Determination.
Reasonable treatment is a treatment that[17]:
(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.
[17] Section 6(7) of the Determination.
Section 6(8) of the Determination provides that “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. While s6(9) of the Determination sets out circumstances to be considered in relation to pain.
Sections 7 through to 11 of the Determination provide guidance as to how Impairment Tables should be used to assess information and evidence, and how to assign Impairment Ratings.
In particular, s8(1) of the Determination provides that “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.
While s11(1)(c) of the Determination provides that in assigning an Impairment Rating “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”.
Continuing inability to work
As previously detailed in paragraph 12 of this decision, s94(1)(c)(i) of the Act states that in order to qualify for DSP, a person must have a “continuing inability to work”. Section 94(2) of the Act requires that:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases—either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
A severe impairment is defined in s94(3B) of the Act:
A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Section 94(3C) of the Act states that:
A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the ‘Participation Determination’) came into effect from 3 January 2015, and sets out the requirements for active participation for those people required to demonstrate they have actively participated in a PoS.
QUALIFICATION PERIOD
Schedule 2, Part 2, clause 4(1) of the Administration Act outlines that the Qualification Period for a social security payment occurs within the 13 weeks after the day on which the claim is made. Where a person subsequently becomes qualified after the lodging of the claim, the commencement date for DSP is the date on which the claimant becomes qualified[18].
[18] Schedule 2, part 2, clause 4(1)(d) of the Administration Act.
For the purposes of this decision, the day which the Applicant’s claim for the DSP was lodged with Centrelink was 30 January 2019[19], and concluded 13 weeks after that day. The Tribunal finds the 13 week period ended on 1 May 2019.
[19] Exhibit 1, T33, page 194; and T47, page 302.
This means that for a claim to be successful, the person must be qualified for the DSP during this Qualification Period, noting that changes in medical conditions which occur later are not relevant to this claim, but may be relevant to a separate future claim. Further evidence (medical or other) provided outside the Qualification Period may be considered, however only if it is referable to the Applicant’s condition during the Qualification Period[20].
[20] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404 [1]; Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133; [2014] AATA 447 [31].
CONSIDERATION
The application was heard in Brisbane on 14 July 2020, with the Applicant, and the Respondent (represented by Mr Andrew Summers) both appearing by telephone. The Tribunal considered oral submissions made by the Applicant and Respondent, in addition to submitted written evidence, as outlined in the Exhibit Register (Annexure 1).
Section 94(1)(a) of the Act (physical, intellectual or psychiatric impairment)
The Tribunal is satisfied after review of the evidence before it that the Applicant suffered impairments during the Qualification Period in terms of s94(1)(a) of the Act, a point which was accepted by the Respondent[21]. On review of the evidence before the Tribunal, the Tribunal finds the following impairments relevant to this application:
(a)Spinal condition;
(b)Mental health condition;
(c)Upper limb (shoulder) condition; and
(d)Hypertension condition.
Section 94(1)(b) of the Act (Is a person’s impairment 20 points or more under the Impairment Tables)
[21] Exhibit 2, page 6, paragraph 37.
The Tribunal will consider each impairment identified in the abovementioned paragraph in accordance with s94(1)(b) of the Act, in particular whether they meet the relevant provisions contained within the Determination.
(a)Spinal condition
In relation to the Applicant’s spinal condition, the Tribunal notes the more recent submitted medical evidence:
(a)A medical imaging report of 23 August 2013 by Dr Phelim Doyle which concluded, “Prominent posterior/left paracentral disc protrusion is demonstrated at L4-5 with multilevel changes as described. I note the report on examination of 08/01/09, mentions a focal left paracentral disc protrusion at L4-5…”[22].
(b)A medical imaging report by Dr Denis Gribbin of 22 January 2019, which concluded, “1. Large broadbased L4/5 disc protrusion compressing the thecal sac and likely compromise of the L5 nerve root buds. 2. Mild posterior annular disc bulge at L5/S1 but no compression of the thecal sac or nerve roots. 3. Bilateral L5/S1 facet joint osteoarthritis”[23].
(c)A medical certificate by Dr Cormac Carey (the Applicant’s treating General Practitioner) of 20 March 2019, stating, “In my opinion he is suffering from multilevel degenerative disc disease of his lumbar spine as evidenced on his recent ct scan. This is compromising his L5 NERVE ROOTS and having a major negative impact on his ability to perform any gainful employment”[24]. [Emphasis in original]
(d)A letter from the Applicant’s treating Physiotherapist, Mr Brendan Dolan of 2 April 2019, stating the Applicant, “… has been treated for symptomatic relief of chronic lower back pain due to multi-level degenerative disc disease of the lumbar spine, resulting in compromise of the L5 nerve root; Spondylitis of the Cervical and Thoracic spine resulting in stiffness and pain; and pain in the left shoulder, arm & hand due to impingement syndrome. Due to the chronic nature of these conditions, [the Applicant] will suffer exacerbation of pain and dysfunction, particularly with aggravating activities. It is my opinion that due to the above injuries, that the above named is unlikely to be able to work in a job that requires bending, prolonged standing or sitting; or repetitive lifting/arm positioning; or moderate to heavy lifting/carrying/work above his head, from the time of my first contact 13th July 2018”[25]. [Tribunal insertion for clarity]
[22] Exhibit 1, T19, page 120.
[23] Exhibit 1, T32, page 193.
[24] Exhibit 1. T36, page 229.
[25] Exhibit 1, T37, page 230.
The Tribunal notes that the Respondent in their submission, “accepts that the Applicant’s spinal condition was fully diagnosed, fully treated and fully stablised in the qualification period”[26].
[26] Exhibit 2, page 6, paragraph 38.
The Tribunal notes that medical evidence in relation to the Applicant’s spinal condition has been submitted as far back as 27 August 2007[27]. The medical evidence outlined in the earlier paragraph was the more recent evidence regarding the Applicant’s spinal condition.
[27] Exhibit 1, T 4, page 61.
The relevant Impairment Table within the Determination for the Applicant’s spinal condition would be Table 4 – Spinal Function[28]. The Introduction to this Table requires that, “The diagnosis of the condition must be made by an appropriately qualified medical practitioner. Self-report of symptoms alone is insufficient. There must be corroborating evidence of the person’s impairment”.
[28] The Determination, pages 20 and 21.
In relation to Table 4 – Spinal Function, the Social Security Guide provides the following, “The diagnosis of the condition must be made by an appropriately qualified medical practitioner. This includes a general practitioner or medical specialists such as orthopaedic specialists, a rheumatologist or rehabilitation physician”[29].
[29] Social Security Guide, 3.6.3.40 Guidelines to Table 4 – Spinal Function, version 1.270, 1 July 2020.
The Applicant’s treating General Practitioner, Dr Carey provided a medical certificate on 20 March 2019 with a diagnosis that the Applicant, “is suffering from multilevel degenerative disc disease of his lumbar spine as evidenced on his recent ct scan. This is compromising his L5 NERVE ROOTS…”[30]. [Emphasis in original]
[30] Exhibit 1. T36, page 229.
The evidence before the Tribunal indicates that the Applicant’s spinal condition is permanent, and given this, an Impairment Rating can be assigned.
The Applicant gave evidence to the Tribunal that they:
· lived alone[31];
· were independent with their activities of daily living (for example, they were able to hang washing on their clothes line, prepare their own meals, retrieve items from cupboards at head height)[32];
· were able to undertake some activities such as gardening (modifying this by using a cushion when kneeling, depending on their back pain that day)[33];
· did rely on assistance from their children with respect to more laborious activities around the house (for example, mowing the lawn)[34];
· had their own drivers licence and were able to drive independently (additionally they were able to turn their neck to check mirrors and get themselves in and out of their car)[35]; and
· had independently travelled internationally to Bosnia[36].
[31] Transcript, page 12, line 15; and page 14, lines 25 to 45.
[32] Transcript, page 13, lines 30 and 35; page 14, lines 5 and 35; and page 15, line 25.
[33] Transcript, page 12, lines 25 to 45.
[34] Transcript, page 12, lines 15 to 20; and page 15, lines 10 to 15.
[35] Transcript, page 13, lines 15 to 25.
[36] Transcript, page 16, lines 10 to 20.
The Applicant did qualify their evidence that they are not always able to do these activities on a regular basis as their spinal condition fluctuated in its severity, and depending how they were feeling on the day, pain could prevent them from undertaking activities[37].
[37] Transcript, page 12, lines 30 to 40.
The Tribunal notes that no corroborating medical evidence was submitted which verifies that the Applicant’s spinal condition fluctuates in severity. The Determination is very clear, self-reported symptoms from the Applicant is insufficient, and claims made by the Applicant need to be substantiated with corroborating evidence.
Based on the corroborated evidence before the Tribunal, the Tribunal is of the view that the Applicant meets the descriptor for a “mild” Impairment Rating in accordance with Table 4 – Spinal Function within the Determination prior to the Qualification Period for this application.
The Tribunal has transposed this portion of the Impairment Table within the Determination for reference:
5
There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).
The Tribunal notes the previously referenced evidence from the Applicant’s Physiotherapist, Mr Dolan, who in their letter of 2 April 2019 stated the Applicant would have difficulty sustaining overhead activities in any future employment. In light of this evidence, the descriptor for Item 1(a) would be met.
The Tribunal is of the view that the Applicant did not meet the descriptor for a “moderate” Impairment Rating, which has been transposed below from the Impairment Table within the Determination for reference:
10
There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
A medical report completed on 23 November 2017 by an Assessment Services branch in Toowoomba notes additional comments provided by the Applicant’s treating General Practitioner, Dr Carey in relation to the Applicant’s lower back pain. It was noted that the Applicant[38]:
“… would have difficulty performing manual lifting or heavy work, mobility is not impaired and no walking aids required, no difficulties with range of movement, would be able to turn his head without restriction and bend forward to pick up light object at knee level, does not need assistance to get out of chair and would be able to perform overhead activities as pain towards lower back as per scans”.
[38] Exhibit 1, T26, page 169.
The evidence before the Tribunal is that the Applicant is able to access items over head height (eg. hanging washing, or getting items from a cupboard at head height), and is able to turn their neck (while driving). Given this evidence, Item (1)(a) and (b) of the “moderate” descriptor in Table 4 – Spinal Function are not met.
With reference to the recorded notes of Dr Carey in the medical report of 23 November 2017[39], the Applicant is able to bend forward to pick up an object at knee level and doesn’t require assistance to get out of a chair. Given this, Item (1)(c) and (d) of the “moderate” descriptor in Table 4 – Spinal Function are not met.
[39] Exhibit 1, T26, page 169.
Accordingly, the Tribunal assigns the Applicant 5 points in accordance with a “mild” Impairment Rating in Table 4 – Spinal Function within the Determination, in accordance with s94(1)(b) of the Act.
(b) Mental health condition
In relation to the Applicant’s mental health condition, the Tribunal notes the following submitted medical evidence:
(a)A letter from Dr Henry Aghanwa of 8 May 2019, stating, “I confirm that I am [the Applicant’s] treating psychiatrist. I have been managing [the Applicant] for Recurrent Depressive Disorder since 2013. He has been on the following mediations: Fluvoxamine 200mg mane and Quetiapine 12.5mg nocte. Underlying this depression is a degenerative spinal condition, which gives rise to pain. His physical health issues continue to impact negatively on his mental health. Consequently his depressive symptoms remain persistent in spite of good treatment adherence. As a result of his ongoing depression, he is significantly impaired socially and occupationally. It is unlikely that [the Applicant] will be able to functional occupationally in the foreseeable future”[40]. [Tribunal insertions for clarity]
(b)A letter from Dr Ashar Imam, Consultant Psychiatrist, of 20 July 2018, stating that the Applicant “…has a long history of depression and I have previously treated hm as an inpatient at the Toowoomba Base Hospital Mental Health Unit. When unwell [the Applicant’s] functional decline becomes exacerbated which impacts on his daily routine and personal life. I speculate that ongoing financial constraints and an inability to work due to his depression, as well as an increased use of medication, along with physical co-morbidities, have been a contributing factor of this current relapse… I will continue to follow [the Applicant] closely for ongoing improvement in his mental state and optimisation of his medications”[41]. [Tribunal insertions for clarity]
(c)A medical report completed on 23 November 2017 by an Assessment Services branch in Toowoomba notes additional comments provided by the Applicant’s treating General Practitioner, Dr Carey, stating, “Condition is relatively stable but does fluctuate, continuing to attend psychiatrist. [The Applicant] is independent with living and self care and does not require any support, he has become fairly reclusive and has had difficulty sustaining relationships, would find it difficult to concentrate due to current high dose of medications which would cause sedation and lack of energy which would also impact on planning, he might have some difficulty interacting with others in a work situation due to his low mood…”[42]. [Tribunal insertions for clarity]
[40] Exhibit 1, T40, page 245. The Tribunal notes this letter is dated 8 May 2019, but as it relates to treatment received by the Applicant since 2013, consideration was given on this basis. Refer to Easterbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 810 (16 November 2011) [28].
[41] Exhibit 1, T29, page 190.
[42] Exhibit 1, T26, page 169.
Table 5 – Mental Health Function of the Determination expressly stipulates that the diagnosis of a mental health condition (or impairment) “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]
On the basis of submitted evidence before the Tribunal, the Tribunal is satisfied that the Applicant’s mental health condition was fully diagnosed, fully treated and fully stabilised prior to the Qualification Period of this application in accordance with the Determination. The Tribunal notes that the Respondent also accepted this[43].
[43] Exhibit 2, page 7, paragraph 42.
The evidence before the Tribunal indicates that the Applicant’s mental health condition is permanent, and given this, an Impairment Rating can be assigned.
On review of the evidence before it, the Tribunal is satisfied that the Applicant’s mental health condition meets the descriptor for a “moderate” Impairment Rating in accordance with Table 5 – Mental Health Function within the Determination prior to the Qualification Period for this application. The Tribunal has transposed this portion of the Impairment Table within the Determination for reference:
10
There is a moderate functional impact on activities involving mental health function.
(1) The person has moderate difficulties with most of the following:
(a) self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b) social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d) concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e) behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f) work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
The evidence before the Tribunal is that the Applicant attends to their own activities of daily living, with the occasional help from family for assistance with household duties they are unable to perform (eg. mowing the yard). The Tribunal is of the view that the descriptor for Item 1(a) would be met[44].
[44] Exhibit 1, T26, page 169.
The evidence of Dr Carey of 23 November 2017 was that the Applicant, “..has become fairly reclusive and has had difficulty sustaining relationships, would find it difficult to concentrate due to current high dose of medications which would cause sedation and lack of energy which would also impact on planning, he might have some difficulty interacting with others in a work situation due to his low mood”[45]. The Tribunal is of the view that the descriptor for Item 1(b), (c), (d), (e) and (f) would be met.
[45] Ibid.
Accordingly, the Tribunal assigns the Applicant 10 points in accordance with a “moderate” Impairment Rating in Table 5 – Mental Health Function within the Determination, in accordance with s94(1)(b) of the Act.
(c) Upper limb (shoulder) condition
In relation to the Applicant’s upper limb (shoulder) condition, the Tribunal notes the following more recent submitted medical evidence:
(a)A medical report completed on 23 November 2017 by an Assessment Services branch in Toowoomba notes additional comments provided by the Applicant’s treating General Practitioner, Dr Carey, stating, “Left shoulder condition – nil current or recent treatment and nil current symptoms as far as he is aware”[46].
(b)A letter from the Applicant’s treating Physiotherapist, Mr Brendan Dolan, of 2 April 2019, stating the Applicant, “… has been treated for symptomatic relief of … pain in the left shoulder, arm & hand due to impingement syndrome. Due to the chronic nature of these conditions, [the Applicant] will suffer exacerbation of pain and dysfunction, particularly with aggravating activities. It is my opinion that due to the above injuries, that the above named is unlikely to be able to work in a job that requires bending, prolonged standing or sitting; or repetitive lifting/arm positioning; or moderate to heavy lifting/carrying/work above his head, from the time of my first contact 13th July 2018”[47]. [Tribunal insertion for clarity]
[46] Ibid.
[47] Exhibit 1, T37, page 230.
The Tribunal notes the Applicant’s submission that their upper limb (shoulder) condition was not a problem, and not as serious as their spinal condition or their mental health condition[48].
[48] Transcript, page 8, line 30; and page 9, lines 5 and 10.
The Tribunal notes that the Respondent in their submission stated, “… the Secretary accepts that the Applicant’s left should injury was fully diagnosed in the qualification period”[49].
[49] Exhibit 2, page 10, paragraph 51.
The relevant Impairment Table within the Determination for the Applicant’s upper limb (shoulder) condition would be Table 2 – Upper Limb Function[50]. The Introduction to this Table requires that, “The diagnosis of the condition must be made by an appropriately qualified medical practitioner. Self-report of symptoms alone is insufficient. There must be corroborating evidence of the person’s impairment”.
[50] The Determination, pages 15 and 16.
In relation to Table 2 – Upper Limb Function, the Social Security Guide provides the following, “The diagnosis of the condition must be made by an appropriately qualified medical practitioner. This includes a general practitioner or medical specialists such as a rheumatologist or rehabilitation physician.”[51].
[51] Social Security Guide, 3.6.3.40 Guidelines to Table 2 – Upper Limb Function, version 1.270, 1 July 2020.
The Tribunal is of the view that there is an absence of recent medical evidence confirming a diagnosis of the Applicant’s upper limb (shoulder) condition. Further, there is no corroborating medical evidence from an appropriately qualified medical practitioner, prior to or during the Qualification Period for this application which indicates:
(a)a prognosis;
(b)confirmation of whether the condition is permanent;
(c)whether the condition was more likely than not to exist for more than two years; or
(d)whether the condition had been treated and is stabilised.
In the absence of a diagnosis for the Applicant’s upper limb (shoulder) condition prior to or during the Qualification Period for the application, the Tribunal is not able to assign an Impairment Rating.
(d) Hypertension condition
The Tribunal refers to the medical report completed on 23 November 2017 by an Assessment Services branch in Toowoomba reporting on the Applicant’s treating General Practitioner, Dr Carey, that in relation to the Applicant’s hypertension condition it was, “… well controlled with medication, nil impacts”[52].
[52] Exhibit 1, T26, page 169.
The Applicant submitted that they were not “heavily impacted” by their hypertension condition, but that their high blood pressure can impact them and cause them to be tired for three to four days following an onset of it[53].
[53] Transcript, page 11, line 25.
A Job Capacity Assessment Report dated 26 April 2019 reports the following in relation to the Applicant’s hypertension condition, “Whilst diagnosis of the condition hypertension is included in the medical evidence [the Applicant] confirmed that it has no impact on their day to day functioning and was therefore not included in the Medical Conditions section of the report. This was confirmed during a discussion with Dr Carey (GP) on 23/11/2017, stating [the Applicant’s] condition is well controlled with medication and has no functional impacts”[54].
[54] Exhibit 1, T38, page 241.
The Respondent submitted at the hearing in relation to the Applicant’s hypertension condition, that they accepted the condition was fully diagnosed, fully treated and fully stabilised[55].
[55] Transcript, page 19, line 35.
The relevant Impairment Table within the Determination for the Applicant’s upper limb (shoulder) condition would be Table 1 – Functions requiring Physical Exertion and Stamina[56]. The Introduction to this Table requires that, “The diagnosis of the condition must be made by an appropriately qualified medical practitioner. Self-report of symptoms alone is insufficient. There must be corroborating evidence of the person’s impairment”.
[56] The Determination, pages 12 to 14.
In relation to Table 1 – Functions requiring Physical Exertion and Stamina, the Social Security Guide provides the following, “The diagnosis of the medical condition causing the impairment must be made by an appropriately qualified medical practitioner. This includes a general practitioner or medical specialists such as a cardiologist, oncologist, or other specialist physician”[57].
[57] Social Security Guide, 3.6.3.40 Guidelines to Table 1 – Functions Requiring Physical Exertion & Stamina, version 1.270, 1 July 2020.
The Tribunal is of the view that the Applicant’s hypertension condition is fully diagnosed, fully treated and fully stabilised. The evidence before the Tribunal indicates that the Applicant’s hypertension condition is permanent, and given this, an Impairment Rating can be assigned.
As the medical evidence before the Tribunal from Dr Carey is that the Applicant’s hypertension condition is “… well controlled with medication, nil impacts”; the Tribunal is of the view that the Applicant’s hypertension condition meets the descriptor for “no” functional impact in accordance with Table 1 – Functions requiring Physical Exertion and Stamina within the Determination prior to the Qualification Period for this application.
The Tribunal has transposed this portion of the Impairment Table within the Determination for reference:
0
There is no functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and
(b) has no difficulty completing physically active tasks around their home and community.
Accordingly, the Tribunal assigns the Applicant 0 points in accordance with “no” functional impact as per Table 1 – Functions requiring Physical Exertion and Stamina within the Determination, in accordance with s94(1)(b) of the Act.
Summary
The Tribunal has found that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables during the Qualification Period, and therefore the Applicant does not satisfy s94(1)(b) of the Act.
Accordingly, there is no need to consider whether the Applicant met the requirements of s94(1)(c) of the Act.
(A)
DECISION
The decision under review is affirmed.
I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola
…….….…[SGD]….…………
Associate
Dated: 5 August 2020
Date of hearing: 14 July 2020
Applicant: Mr Muhidin Hadzich (telephone)
Solicitor for Respondent: Mr Andrew Summers (telephone)
(Department)“ANNEXURE 1 – EXHIBIT REGISTER”
Exhibit
Number
Description
1
Section 37 T Documents, pages 1 to 322, received on 13 March 2020.
2
Respondent’s Statement of Facts Issues and Contentions, pages 1 to 15, received on 3 June 2020.
3
Medical Repot of Dr Campbell, received on 16 March 2020.
0