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

[2021] AATA 65

Hartwell and Secretary, Department of Social Services (Social services second review) [2021] AATA 65 (1 February 2021)

Division:GENERAL DIVISION

File Number(s):       2020/1872

Re: John Glen Hartwell

APPLICANT

And Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:         D Cremean, Senior Member

Date:              1 February 2021

Place:             Melbourne

The Tribunal affirms the decision under review.

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

D Cremean, Senior Member

Catchwords

SOCIAL SECURITY - Disability support pension – several conditions including spinal pain, lumbar pain and depression and anxiety-whether fully diagnosed, treated and stabilised—corroboration—program of support whether severe impairment-whether continuing incapacity to work - decision under review affirmed

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act1999 (Cth)

REASONS FOR DECISION

D Cremean, Senior Member 

1. The Applicant, Mr John Hartwell, seeks review of a decision of the Social Services & Child Support Division of this Tribunal (“Tier 1”) made on 26 February 2020. The Tier 1 decision affirmed a decision of the Respondent (now called “Services Australia”) made on 22 June 2019 rejecting his claim for Disability Support Pension (“DSP”), which had been affirmed by an Authorised Review Officer (“ARO”) on 5 December 2019.

2. The Applicant’s claim for DSP was made on 20 May 2019 and he claimed in respect of the same “injuries” he had claimed in 1995. It appears that the Applicant had previously been awarded DSP on 4 May 1995, but it was cancelled on 6 January 2006.

3. His application to this Tribunal is dated 31 March 2020. In his application he says he relies on three reasons which include: failure to give “due consideration “to the evidence of his physiotherapist; his ongoing “nerve pain”; and his efforts to improve his physical capacities. He does not mention depression or anxiety or diabetes, although Tier 1 did consider each of these conditions.

4. A hearing by telephone was conducted in this matter on 7 October 2020

5. At the hearing the Applicant was self-represented, and the Respondent was represented by Mr McQuinlan, a lawyer from Services Australia.

6. The Applicant gave evidence under affirmation and he was cross-examined by Mr McQuillan. The Respondent called no witnesses and relied on its Statement of Facts, Issues and Contentions (“SFIC”).

7. At the conclusion of the hearing I reserved my decision and indicated that it would be delivered in due course.

8. These are now the Reasons I give for the decision I have made.

   LEGISLATION

9. Qualification for DSP is governed by the Social Security Act 1991 (Cth) (“the Act”).

10. Section 94 (1) of the Act as far as relevant provides:

    A person is qualified for disability support pension if:

    (a)the person has a physical, intellectual or psychiatric impairment; and

    (b) (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

    …

11. The Impairment Tables referred to in s 94(1)(b) are set out in the Social Security (Tables for the Assessment of Work-related Impairment forDisability Support Pension) Determination 2011 (“Tables”). An impairment rating under the Tables is arrived at by assigning points according to the appropriate Table for the condition concerned. The Tables describe functional activities, abilities, symptoms and limitations. The points rating is function-based rather than diagnosis-based.

12. Before an impairment rating can be assigned under the Tables, qualifying criteria must be met. One of the criteria is that the condition must be permanent. For a condition to be permanent it must be fully diagnosed, treated and stabilised. Another of the criteria is that the existence of the condition must be corroborated. Further, each of ss 94 (1) (a), (b) and (c) of the Act must be separately satisfied.

    ISSUES

13. Tier 1 found that the Applicant suffers from conditions which satisfy s 94(1)(a) of the Act. Those conditions were “…cervical and lumbar spine pain, left upper limb pain, left plantar fasciitis, anxiety and depression and type 2 diabetes mellitus”.

14. In regards each of these conditions except for the type 2 diabetes mellitus, Tier 1 concluded that they were not fully diagnosed. Therefore, the Applicant could not be assigned any impairment rating under the Tables.

15. Tier 1’s findings in relation to the Applicant’s type 2 diabetes mellitus was that the condition was fully diagnosed treated and stabilised but caused the Applicant no impairment. Therefore, again, he could not be assigned any impairment rating under the Tables.

16. Tier 1 found therefore that the Applicant was not qualified to receive DSP in respect of his claim of 20 May 2019 and accordingly affirmed the decision of the ARO rejecting his claim.

17. The Applicant was disappointed with this outcome and has accordingly made application to this Division of the Tribunal to review Tier 1’s decision.

18. During the course of the hearing it became quite clear that the real issue is whether the Applicant satisfies ss 94(1)(b) and (c) of the Act in respect of a mental health condition, although he does continue to suffer other conditions. That is, whether in respect of that condition in particular, he qualifies for an impairment rating of 20 points or more under Table 5 of the Tables. He argues that he does. The Respondent argues that he does not.

19. If I should find that the Applicant does qualify for 20 points under Table 5 in respect of that condition or under another Table in respect of another of his conditions, assuming corroboration, the issue then is whether he also satisfies s 94(1)(c) of the Act.

20. Pursuant to cl 4(1) of Schedule 2 to the Social Security (Administration) Act1999 (Cth), these are all matters I must consider as at the date of his claim or within 13 weeks afterwards—that is, from 20 May 2019 until 20 August 2019. This is called the “qualification period”.

21. Further, these are all matters I must decide on the evidence which is before me. I am not restricted to the evidence which was before Tier 1.

22. Considering the evidence before me, I must decide what is the correct or preferable decision in the matter and I must proceed according to the civil standard of proof—that is, on the balance of probabilities. That means my findings must be made according to whether something is more likely than not to be so.

    CONTENTIONS

23. The Applicant contends that the decision under review should be set aside and that he has satisfied all the requirements of s 94(1) of the Act so far as they apply to him

24. The Respondent, on the other hand, contends that the Applicant does not satisfy s 94(1)(b) of the Act. However, the Respondent contends that if he does, he does not satisfy s 94(1)(c) of the Act and, accordingly, the decision under review is correct and must be affirmed. The Respondent also raises an issue of corroboration which, in effect, is one prior to the issue of s 94(1)(b)

    EVIDENCE 

25. It is unnecessary to set out verbatim what was said by the Applicant in evidence and I shall, instead, summarise the main points.

26. The Applicant advised the Tribunal that he lives in Tatura, Victoria on his own. He is aged 58 years and is divorced. There are two adult children of the marriage, one living in New South Wales and the other in Victoria.

27. The Applicant explained that he developed spinal pain out of an incident involving a tractor in 1990 when he was working in Adelaide. He described it as a “whiplash”[1] incident when the tractor “fell into a hole that was covered by long grass”.[2] He said it “flipped him off the side of the tractor” and “cracked me like a whip”.[3]

    [1] Transcript 7 October 2020, p 12.

    [2] Ibid.

    [3] Ibid.

28. He said he continued working after this incident for 18 months, but he did not seek any treatment and, as a result, has “struggled with headaches, muscle pain, back pain, and aching arms for the past 30 years”.[4]

    [4] Ibid, p 3.

29. The Applicant said he was on DSP as a result of this, but he said he withdrew from DSP because his wife’s earnings were too high.

30. After this incident, the Applicant advised that he “reskilled”[5] at his wife’s insistence. The Applicant became a financial counsellor. But this did not prove very successful, because he found it hard to obtain work. The Applicant then commenced employment with Centrelink until he was transferred from Darwin to Victoria in about 2013.

    [5] Ibid, p 44.

31. Apart from “jobs here and there”[6] the Applicant advised that he has not really worked since then. He indicated that this has made life difficult for him. The Applicant also advised the Tribunal that he considered he was the victim of domestic violence for a period of eight years. He indicated that he had been financially and psychologically controlled by his now ex-wife. He said her financial control of him lasted “[a]bout eight years”[7] and he detailed some examples of it to the Tribunal.

    [6] Ibid, p 14.

    [7] Ibid.

32. The Applicant regards himself as being at a “great risk of homelessness”,[8] considering his age, injuries and lack of employment. Specifically, possible employment is “not exactly a long-term prospect and people don’t take a chance on you”.[9]

    [8] Ibid, p15.

    [9] Ibid.

33. Currently, the Applicant said he is taking medication for his diabetes and Panadeine Forte for pain relief, the dosage of which varies between two and eight tablets per day, depending on the pain. The Applicant advised the Tribunal that he had tried several anti-depressants for depression but he got no benefit from them; although he was placed on Endep at the time when his wife departed and that “was kind of working”.[10] Shortly after that his GP prescribed Cymbalta following a psychiatrist’s letter and that “[i]f anything, it made me feel worse”.[11]

    [10] Ibid, p16.

    [11] Ibid.

34. As regards his left shoulder pain he said he attended a pain clinic in Shepparton but considered he was not assisted at all. He had been swimming in a heated pool for exercise, but the pool had closed due to COVID-19 pandemic precautions.

35. He said he could not explain his plantar fasciitis but was given to understand that this was a complication of his diabetes.

36. The Applicant then gave evidence of the various ways in which his conditions—including his mental health condition of depression—impacted on his life during the qualification period.

37. At one stage, in the course of his evidence as regards his depression he described himself as “a fucked unit”[12]—“I am a white Australian male in my own fucking country asking for help”.[13] Earlier in his evidence he spoke of going out the front of his house: he said he would “just wait for a truck to go past and just step in front of it”.[14]

    [12] Ibid, p 43.

    [13] Ibid, p 50.

    [14] Ibid, p 37.

    CONSIDERATION

38. In order to qualify for DSP, the Applicant must satisfy each of the paragraphs of s 94(1) of the Act as far as relevant.

    (a) Section 94(1)(a)

39. I am satisfied that the Applicant meets the requirement in s 94(1)(a) as regards his neck, shoulder, back, hips and knee pain conditions and diabetes. These are conceded by the Respondent; and I consider the concession is rightly made.

40. It is not conceded by the Respondent that the Applicant suffers from plantar fasciitis.

41. Nor is it conceded (except as I point out below) that the Applicant’s depression and anxiety have been fully diagnosed.

42. I am not able to be satisfied that the Applicant suffers the diagnosed condition of plantar fasciitis as I lack medical information upon which to base a view. That is not to say I disbelieve the Applicant when he says he suffers pain in the feet. But a medical diagnosis is necessary for me to say he has a diagnosed condition. This is something I lack in the materials before me.

43. With regard to the Applicant’s mental health condition, there appears to be some confusion on the part of the Respondent. At one point in its SFIC the Respondent submits that the Applicant’s condition is not “fully diagnosed”[15] but at another refers to his condition as being “now fully diagnosed”.[16]

    [15] Respondent SFIC, [45].

    [16] Ibid, [48].

44. In all the circumstances, considering the evidence (including the undated report of Dr Cara Tucker), I am satisfied that I should find that the Applicant suffers a mental health condition and did so at the qualification period. I find accordingly. This is supported by medical certificates of Dr Chakma dated 30 April 2019, which is shortly before the commencement of the qualification period. Of course, merely to suffer a condition does not mean it is one which is fully diagnosed. 

    (b) Section 94(1)(b)

45. The first issue is whether the Applicant satisfies the requirement that his condition or conditions be permanent. If I find that one or more conditions are permanent, it is then a matter of deciding how many points he should be assigned under the Tables.

46. If I find the Applicant does satisfy s 94(1)(b), assuming corroboration, I must then decide whether he also satisfies s 94(1)(c) of the Act.

    (i) Permanency

47. To be satisfied that a medical condition of the Applicant was permanent during the qualification period, I must be satisfied that it is a medical condition which was fully diagnosed, fully treated and fully stabilised.

    Fully diagnosed

48. Firstly, I find that all the Applicant’s conditions were fully diagnosed at the qualification period, except for his plantar fasciitis.

49. I rely upon the concessions of the Respondent in its SFIC with regards to the Applicant’s mental health condition. I am satisfied based on the medical certificates of Dr Chakma and the report of Dr Tucker, which I refer to above.

    Fully treated

50. The SFIC makes it clear that the Respondent does not concede that any of the Applicant’s conditions, excluding diabetes, were fully treated during the qualification period.

51. Paragraph 6(5) of the Tables stipulates that, in determining whether a condition is fully diagnosed and fully treated (the former not now arising except as regards the Applicant’s plantar fasciitis ) for the purpose of paragraphs 6 (4)(a) and (b) of the Tables, the Tribunal must consider:

    (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.

52. I have considered each of the matters specified in paragraph 6(5) and having done so I make the finding that none of the Applicant’s conditions (other than his diabetes), was fully treated at the qualification period.

    (i)Neck, shoulder, back, hip and knee pains

53. Nothing in the materials satisfies me that these conditions suffered by the Applicant have been fully treated.

54. I do not doubt that the Applicant suffers these conditions; and has done so for a very long time—his back, for instance, has been troubling him since the 1990 tractor incident.

55. I refer particularly to the report of Dr Khan dated 24 June 2019—which is during the qualification period—which indicates liaison with the Chronic Pain Clinic in Goulburn Valley. This subsequently proved to be unsuccessful because the Applicant, as he said in evidence, “ended up withdrawing”[17] due to administrative or other issues

    [17] Transcript 7 October 2020, p 17.

56. After the qualification period, Dr Chakma in his certificate dated 6 November 2019 suggested the Applicant seek help from a physiotherapist/ osteopath. I am not clear that the Applicant pursued this, but he did say he has been using a machine on loan to him from a nearby massage therapist business.  He said in evidence “they can see how much discomfort I am in”[18] and they have “taken compassion on my financial situation”[19] and doing so, he said, “they used to treat me for free”.[20] 

    [18] Ibid, p 29.

    [19] Ibid.

    [20] Ibid.

57. But I was given no details of the times when this equipment was supplied –whether it was before, during or after the qualification period--or whether the Applicant is in fact using the equipment in the way intended.  I am not clear either about whether this was exactly what Dr Chakma had in mind when he referred to help from a physiotherapist/osteopath. I would need to hear from Dr Chakma on the point.

58. There is a report of Dr Jefferis on file dated 9 February 2020 which is quite sometime after the qualification period. It is a very detailed and complex document and I consider that Dr Jefferis is an expert in her area—although she is not a medical practitioner - in which she has been awarded a doctorate. I assume PhD.  She writes that she has known the Applicant professionally and personally for 30 years. Oddly, she says that the incident in 1990 involved a ride-on mower but the Applicant stated it was a “tractor”. In any event, her summary is that the Applicant “continues to suffer MPS [Myofascial Pain Syndrome] as a result of the initial trauma to his iliopsoas muscle complex”.[21]

    [21] Respondent T-documents, p 184.

59. I am content to accept that this is so, but Dr Jefferis does not indicate in proper detail what must be done in order to be able to find that the Applicant’s condition is “fully treated”.

60. The opinion of Dr Jefferis, therefore, does not assist me on this critical point; although I do regard her opinion as corroborative of the pain conditions and limitations which the Applicant spoke of in evidence.

61. Nor am I assisted by knowing that the Applicant takes Panadeine Forte each day in a dosage of perhaps as many as six to eight tablets. He obviously has pain, but this does not contribute to my being able to say his condition is “fully treated”.

62. What I need, but which I lack, is an authoritative report from a medical specialist expressing a reasoned view as to whether there is or there is not something else which can be done to “fully” treat the Applicant’s condition. I accept that it exists in some form—and has done so for many years—but I am simply not in a position to say whether or not it has been “fully treated”.

63. Nor am I made aware of any active planning that was to take place to deal with the Applicant’s conditions in any meaningful way.

    (ii)Diabetes

64. I note that the Respondent concedes that the Applicant’s diabetes is “fully treated” and I am prepared to find that this is so.

    (iii) Depression and anxiety

65. It was very clear to me in the evidence he gave me that the Applicant does suffer depression and anxiety. This, I consider, could be to a significant degree; and this is supported by the opinion of Dr Tucker in her undated report indicating she commenced seeing the Applicant in February 2020.

66. I regard the Applicant’s condition as being fully diagnosed as I have found, but I am not in a position to make a finding that his condition has been “fully treated” during the qualification period. He has undergone some counselling with Dr Tucker after the qualification period; but that indicates to me that during the qualification period or earlier this was something that he should have been doing. If he needed counselling in February 2020, then I am not in a position to say that six months earlier—at the end of the qualification period—he did not need counselling and that his condition therefore was “fully treated:”.

67. It could be different if the Applicant was taking prescribed anti-depressant medication and had been taking the same medication during the qualification period. But the evidence I have is that his attempts at anti-depression medication have not been successful.

68. To pick up another point, there was a suggestion that Panadeine Forte may act as a kind of anti-depressant in the mood-lifting capabilities of codeine, but I know of no medical opinion which would recommend codeine as a treatment for a mental health condition.

69. There is reference by the Applicant to his doing meditation, which is sometimes promoted as one avenue by which depression can be treated. But I have no specialist opinions in evidence before me to support this view. There are various types of meditation and various approaches to it; but I do not know which approach the Applicant is following or whether he has had any actual training in the technique. Nor am I informed about when, where, or how often, or for how long on each occasion, that he meditates.

    Fully stabilised

1. The Respondent’s SFIC also makes it clear that it is not conceded that the Applicant’s conditions (other than diabetes) were fully stabilised during the qualification period.

2. In determining whether I should find that the Applicant’s conditions was fully stabilised during the qualification period I must again have regard to the matters set out in paragraph 6(5) of the Tables (set out above) and also to paragraph 6(6) of the Tables which states:

   Fully Stabilised

   For the purposes of paragraph 6(4)(c) and subsection 11(4) 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:

   (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.

3. Having duly considered the matters set out in paragraph 6(5) and the stipulations contained in paragraph 6(6), I have formed the view that I am unable to find that the Applicant’s various conditions (excluding diabetes) were fully stabilised during the qualification period.

4. To some extent I have dealt with the requirement to be “fully stabilised” above. Inevitably. there is overlap between being “fully treated” and “fully stabilised”.  If a person’s condition has been fully treated, usually, it will be fully stabilised. On the other hand, if a condition has not been fully treated it is not likely to be fully stabilised

5. I am satisfied that reasonable avenues are still open to the Applicant to pursue in respect of his various pain conditions. This is a matter of importance. He was recommended to attend the Chronic Pain Clinic but withdrew over some matter relating to administrative or other arrangements. But I am not informed what programmes the Clinic may have had available to him. This means I cannot be satisfied he has explored all his options in that regard.

6. Therefore, I do not consider that the Applicant has undertaken proper exploration of all the avenues of treatment reasonably open to him; which could, if pursued, see significant improvement in his conditions.  I mention that he did some swimming to help himself, but this avenue was closed off earlier in 2020—after the qualification period—due to the COVID-19 pandemic; but after recent changes in policy, this may now be available again.

7. As a further sign that his spinal condition has not stabilised—and is thus not “fully stabilised”, —the Applicant told me in evidence that only “recently” he had left the house to go for a walk and stood in dog droppings which he sought to scrape off his shoe. But in lifting his leg to do so he said “[I] put my back out that lasted for a month”.[22] That indicates to me very plainly that his spinal condition and related conditions are very far from settled.

   [22] Transcript 7 October 2020, p 15.

8. I am not satisfied, nor am I in a position to find that his depression and anxiety are fully stabilised. I am concerned with the qualification period. He did not have his first appointment with Dr Tucker until February 2020. Although counselling is a proper course to follow, this was undertaken six months or so after the qualification period. I do not have any evidence before me about treatment of his mental health condition before February 2020. He did try certain anti-depressants, but this was not successful.

9. To my mind a further sign that his mental health condition has not stabilised -and likely would not have been “fully stabilised” at the qualification period—is in the nature of some of the alarming evidence the Applicant gave.

10. I am prepared to accept—in light only of the concession made—that the Applicants diabetes is “fully stabilised”.

    Corroboration

11. In light of the fact that (except for diabetes) that I make no findings that any of the Applicant’s conditions are fully treated or fully stabilised, the question of corroboration does not strictly arise. Only if I should accept that the Applicant’s mental health condition was fully treated and fully stabilised then I must look at the functional impact of that condition. In that regard I must consider the question of corroboration.

    (ii) Points rating

12. Except for the Applicant’s diabetes, I am unable to assign points to the Applicant because he does not satisfy s 94(1)(b) of the Act.

13. However, even as regards diabetes, I am unable to assign points because the evidence in this matter does not warrant a finding that the Applicant’s diabetes has any functional impact on his life.

    (c)Section 94(1)(c)

14. Being of the view that the Applicant fails to satisfy s 94(1)(b) of the Act, it is unnecessary for me to consider whether s 94(1)(c) is satisfied.

15. I note also that the Applicant did consider he would be able to do some work in a job which had some social benefit to it; or one where, as he said in evidence, he would be “mentally stimulated”. In such circumstances, I could not possibly conclude that he suffers a continuing inability to work.

    CONCLUSION

16. I am satisfied on the evidence before me that the Applicant is unable to meet the criteria in s 94(1) (b) and therefore also (1) (c).

17. It follows that the Tribunal must affirm the decision under review.

I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decision herein of D Cremean, Senior Member.

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

Associate

Dated: 1 February 2021

Date of hearing:	7 October 2020
Applicant:	By telephone
Advocate for the Respondent:	Mr McQuinlan
Solicitors for the Respondent:	Services Australia