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

[2021] AATA 1050

Hasselmann and Secretary, Department of Social Services (Social services second review) [2021] AATA 1050 (29 April 2021)

Division:GENERAL DIVISION

File Number:         2020/1431

Re:Stephen Hasselmann

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:                 Senior Member P. E. Nolan

Date:29 April 2021

Place:Brisbane

The Tribunal affirms the decision under review.

..................[SGD]......................................................

Senior Member P E Nolan

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant 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

REASONS FOR DECISION

Senior Member P E Nolan

29 April 2021

INTRODUCTION

1. The Applicant lodged a Claim for Disability Support Pension (DSP) on 22 March 2019.[1] He claimed dizziness, confusion, disorientation, vagueness, forgetfulness, and depression. He also claimed knee pain and maintained that alcoholism was a severe cause of his inability to work. It is accepted by the Respondent that the Applicant has impairments.

   [1]     Exhibit 1, T Documents, T55, Claim for DSP.

2. The period which the legislation requires the Applicant to show he suffered these impairments is what is referred to as “qualifying period”: section 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act). In this case it is 13 weeks from the date when the claim was lodged or the date of claim of lodging itself. In this case that period dates from the 22 March 2019 to 21 June 2019.

   THE RELEVANT LAW

3. The qualification for DSP is outlined in detail in the Respondent’s Statement of Facts and Contentions which is Exhibit 2, and I adopt it as being accurate. It is contained from paragraph 18 through to 28 and sets out in detail the relevant legislation. However, by way of a short summary, the Applicant would need to show the Tribunal that:-[2]

   (a)he has a physical, intellectual or psychiatric impairment. (This is not contested);

   (b)these impairments either singly or jointly attract an impairment rating of 20 or more points under the Impairment Tables; and

   (c)he has a continuing inability to work.

   [2] Section 94(1) of the Social Security Act 1991 (Cth).

4. The Tables are function based and not diagnostic and describe functions that are concerned with activities and abilities and limitations.[3] They are designed to assign ratings in respect of the level of functional impairment arising from medical conditions and not to assess the medical conditions themselves. An impairment rating can only be assigned if the condition is permanent that is, fully diagnosed, fully treated and fully stable and likely to persist for more than 2 years.

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

   FACTS

5. In this case none of the conditions can attract a rating as they have not been fully treated nor shown to be fully stabilised nor fully diagnosed. With respect to the conditions the following appears to be the case:

   (a)Alcoholism: The Applicant has self-diagnosed himself as an alcoholic and nowhere in the material has it been shown that he has been diagnosed by a psychiatrist or a clinical psychologist. Nor has he had any treatment during the qualifying period or, for that matter, any other period at all. The condition is one that he has had for many years. The material shows a diagnosis by Dr Sui of a neurological condition which may be due to excessive amounts of alcohol. However, the doctor doesn’t tend to say that the condition has been treated nor stabilised. At best, the condition may not be reversible. That is not the same thing as being treated or stabilised. It is clear that the question of alcoholism or the neurological issues attract no points as there is just no confirmation of the alcoholism and certainly in Dr Sui’s reports that show the condition has been fully treated.

   (b)The Neck Condition: Although this was fully diagnosed there is no evidence to show that it has been fully treated during the qualifying periods. Furthermore, at the hearing, the Applicant seemed to be suggesting that the condition has gone away and that it was not causing him any trouble at the moment. During the qualifying period though there is nothing to show that it was being fully treated or that it was in a condition where it would cease to affect him. In essence his evidence is that it wasn’t a serious problem during the relevant period and as such it cannot attract any points.

   (c)With the other conditions: The other conditions complained of are really normal complaints that appear to affect him through life. These include carpal tunnel syndrome, low back pain, knee pain, ankle pain and gout. None of these have any evidence about them to show that there has been a treatment prognosis nor that the symptoms are such that they can be accepted as being fully treated or stabilised. They appear to be more conditions of discomfort rather than conditions that prevent mobility which are required under the legislation. In the circumstances they can attract no points.

   CONCLUSION

6. As such the Tribunal affirms the decision under review.

I certify that the preceding 6 (six) paragraphs are a true copy of the reasons for the decision herein of Senior Member PE Nolan

...............[SGD].........................................................

Associate

Dated: 29 April 2021

Date of hearing: 7 April 2021

Applicant:   By telephone

Solicitors for the Respondent           Ms Gillian Gehrke
  Services Australia