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

[2015] AATA 696

Haughton and Secretary, Department of Social Services (Social services second review) [2015] AATA 696 (10 September 2015)

Division	GENERAL DIVISION
File Number	2014/6012
Re	Nicholas HAUGHTON
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr C Ermert, Member
Date	10 September 2015
Place	Melbourne

The Tribunal affirms the decision under review.

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

Member

SOCIAL SECURITY – disability support pension – permanent impairment – continuing inability to work – whether fully diagnosed, treated, and stabilised within the qualification period - decision 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

REASONS FOR DECISION

Mr C Ermert, Member

10 September 2015

INTRODUCTION

1. Mr Haughton, the Applicant, worked as a truck driver doing heavy physical labour.  He developed a shoulder injury for which he had surgery in 2009.  In 2011 he again underwent surgery, this time for a work-related injury to his left shoulder.  Also in 2011 he saw a psychiatrist and was diagnosed with psychiatric disorders.

2. On 27 November 2013 Mr Haughton submitted a claim for disability support pension (DSP) to Centrelink.  Centrelink is the service provider for the Department of Social Services, the Respondent. In his claim Mr Haughton recorded his disabilities as Depression, Left shoulder, Arm. 

3. On 16 January 2014 a Centrelink officer determined that Mr Haughton was not qualified for DSP because his impairments did not attract a total of 20 points according to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).  On 18 August 2014 a Centrelink authorised review officer (ARO) affirmed this decision.  Mr Haughton sought review of the ARO decision by the Social Security Appeals Tribunal (SSAT). On 15 October 2014 the SSAT affirmed the ARO’s decision.  This matter is a review of the SSAT decision.

   HEARING

4. At the hearing Mr Haughton represented himself and gave his evidence under oath.  Mr Tim de Uray, a solicitor with the Department of Human Services, represented the Respondent. 

5. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).  I took in as evidence the Respondent’s Statement of Facts, Issues and Contentions dated 3 July 2015, together with the supplementary T-documents (ST1) containing:

   ·Report by Dr Vinay Kumar, consultant psychiatrist, dated 26 October 2011;

   ·Report by Mr Justin Hunt, orthopaedic surgeon, dated 30 October 2014;

   ·Report MRI Right Shoulder, dated 7 November 2014;

   ·Report by Mr Hunt, dated 28 November 2014; and

   ·Report by Dr Dewapura, Mr Haughton’s treating general practitioner, dated 28 January 2015.

6. For Mr Haughton I took in the following documents:

   ·Exhibit A1 - report by Dr Dewapura, dated 21 July 2015;

   ·Exhibit A2 – undated letter from Mr Haughton with  pages attached;

   ·Exhibit A3 – report by Dr Dewapura, dated 2 July 2015;

   ·Exhibit A4 – two letters by Mr Hunt, both dated 17 April 2015;

   ·Exhibit A5 – Conciliation Outcome Certificate, dated 31 March 2015; and

   ·Exhibit A6 – letter from Taylor & Preston Lawyers, dated 18 November 2014.

7. After the hearing Mr Haughton supplied a report by Dr Smadar Shalev, a clinical psychologist, dated 11 August 2015.  I took in this report as Exhibit A7.

   LEGISLATION

8. The legislation relevant to this matter is contained in the Social Security Act 1991 (the Act).

9. Section 94 of the Act  relevantly prescribes the qualifications for DSP:

   (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.

10. A person’s impairment is assessed by reference to the Impairment Tables.

    QUALIFICATION PERIOD

11. Sections 41 and 42 and Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) stipulate that the date for the determination of the claim is the date of the claim. The only exception is where a person is not qualified on the date of claim but becomes qualified within 13 weeks of lodging the claim, in which case their start day is the day they become qualified.

12. In this case the qualification period runs from 27 November 2013, the day on which the claim was lodged, to 26 February 2014. 

    ISSUES

13. The issues are whether, during the qualification period, Mr Haughton

    ·had any physical, intellectual or psychiatric impairments; and, if so

    ·the impairments attracted a rating of 20 points or more under the Impairment Tables; and, if so

    ·he had a continuing inability to work.

    EVIDENCE

14. In his oral evidence Mr Haughton said he first noticed pain in his right shoulder on            1 January 2014 and reported it in February 2014.  Mr Haughton said this was recorded in the letter from Gallagher Bassett dated 24 December 2014 (Exhibit A2) and that this was within the claim period.  Mr Haughton also stated that he notified Centrelink of the pain in his right shoulder in February 2014 but he had no documentation to prove this. He stated that he had the right shoulder problem within the 13 week claim period but had to wait for approvals from the insurance company before he could undergo surgery.

15. Mr Haughton referred to Dr Dewapura’s report of 21 July 2015 (Exhibit A1) and pointed out the doctor’s opinion that he suffers...severe functional impact on activities using hands or arms and... activities involving his mental health functions. 

16. Mr Haughton contended that the original assessment had not taken account of his mental impairment.  He referred to the report by Dr Kumar (ST1).  He said he had no further psychiatric reports.  He said he was currently seeing a psychologist but had not yet received a report from her. A report by Dr Shalev, a clinical psychologist, was provided after the hearing and taken in as Exhibit A7.

17. In answer to Mr de Uray’s questions about his left shoulder Mr Haughton said:

    ·The first operation was in 2009;

    ·He has had four operations;

    ·The shoulder has not really improved as a result; and

    ·He has had to rely more on his right shoulder, arm and hand.

18. In answer to questions about his right shoulder Mr Haughton said:

    ·He first suffered pain in January 2014;

    ·The pain worsened during January and February 2014 but then remained stable up to the time of his surgery in April 2015;

    ·His right arm was not rotated by Mr Hunt at his review on 30 October 2014; rather, Mr Hunt measured the range of his movements with an instrument;

    ·He had ultrasound and X-ray examinations on 9 May 2014 and was reviewed again by Mr Hunt on 28 November 2014;

    ·Mr Hunt recommended surgery which was performed in April 2015;

    ·Four weeks after the operation he saw Mr Hunt; and

    ·He started physiotherapy for his right shoulder on 17 June 2015 and is also having massage therapy on his shoulder and neck.

19. In answer to questions about his depression Mr Haughton said:

    ·He stopped seeing Dr Kumar at the end of 2011 because the insurance company would not pay for more visits;

    ·The medications prescribed by Dr Kumar have been prescribed since 2012 by Dr Dewapura;

    ·He saw a psychologist at the Parkhill Medical Centre four times in early 2012;

    ·He saw a clinical psychologist at the Parkhill Medical Centre on 23 July 2015. He is due to see her again on 4 August 2015 and then every two months; and

    ·He had reports from Dr Kumar (ST1) and Dr Dewapura (A1) and he is expecting one from his current psychologist (later taken in as Exhibit A7).

20. Mr Haughton confirmed the evidence he gave to the SSAT that he feels better when he takes his medication.  He added that his psychologist thinks his medication dosage needs to be increased.

21. Mr Haughton agreed with Mr de Uray that his right shoulder is still being monitored and that the medications for his depression may be increased.

    SUBMISSIONS

22. In his submissions Mr Haughton said that he had notified Centrelink about his right shoulder in January or February 2014, within the qualifying period.  He said he had to wait for X-rays and ultrasound and MRI scans to be approved by the insurance company.  He said there were also delays in seeing the surgeon. 

23. In regard to his psychiatric condition Mr Haughton said he had been on the same medication and dosage since 2011.  He said his condition had not worsened since that time.  Mr Haughton submitted that his psychiatric condition was rated as severe and that it should attract 20 points on its own, which would qualify him for DSP.

24. Mr de Uray acknowledged the practical difficulties Mr Haughton had in obtaining specialist appointments for his right shoulder.  Mr de Uray also said that he does not contest that Mr Haughton contacted Centrelink in February 2014. 

25. In regard to Mr Haughton’s right shoulder Mr de Uray referred to Mr Hunt’s reports and to the MRI scan.  He contended that the evidence showed that the right shoulder condition was not fully diagnosed, treated and stabilised until after the surgery performed in April 2015.  He contended, accordingly, that the condition could not be assigned an impairment rating for the qualifying period.

26. In regard to Mr Haughton’s mental health condition Mr de Uray said it was possible that Mr Haughton was suffering depression when he made his claim for DSP.  He contended, however, that there must be a diagnosis of depression by a psychiatrist or clinical psychologist during the qualifying period.  Mr de Uray submitted that in Mr Haughton’s case there was no diagnosis that referred to the qualifying period.  He contended further that at the qualifying period the condition was still being reviewed and treated.  Accordingly Mr de Uray contended that the condition was not fully diagnosed, treated and stabilised. 

27. In regard to Mr Haughton’s left shoulder Mr de Uray submitted that the condition should be assigned a rating of 10 impairment points.

28. In conclusion Mr de Uray advised Mr Haughton to consider submitting a new claim for DSP so that the more recently obtained medical reports could be taken into account.

29. In response Mr Haughton said he had put in his claim so that his conditions could be fixed.  He said the delays in consulting specialists were not his fault.  He contended also that his mental health condition was not taken into account in the original assessment.

30. In concluding Mr Haughton said: There is nothing to say that I have to be treated by the claim period, or words to that effect.

    TRIBUNAL CONSIDERATIONS

31. It is conceded by the Respondent, correctly in my opinion, that during the qualifying period Mr Haughton had impairments from the following conditions, which satisfied the requirements of section 94(1)(a) of the Act:

    ·depression; and

    ·left shoulder capulitis.

32. The concession aligns with the evidence and I find accordingly.

33. In regard to Mr Haughton’s right shoulder I note Mr Hunt’s report dated 30 October 2014 (ST1) in which he records: More recently, over the last nine months he has developed increasing symptoms of pain in his right shoulder associated with stiffness.   An MRI examination on 7 November 2014 confirmed the injury in his right shoulder. The timeframe of nine months recorded by Mr Hunt is consistent with Mr Haughton’s evidence that he first experienced pain in his right shoulder in January 2014 and submitted an insurance claim in February 2014. 

34. From the evidence I am satisfied that, during the qualifying period, Mr Haughton also had an impairment resulting from a condition in his right shoulder.

35. I must now determine whether Mr Haughton’s impairments attract an rating of 20 points or more under the Impairment Tables according to section 94(1)(b) of the Act.

36. Section 6(3) of the Impairment Tables provides that a rating can only be assigned to an impairment if the person’s condition is permanent and if the impairment is likely to persist for more than two years.  Section 6(4) provides that a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and stabilised.

37. Section 6(5) of the Impairment Tables provides that, for a condition to be fully diagnosed and treated by an appropriately qualified medical practitioner, the following considerations apply:

    (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 2 years.

38. I will consider each condition in turn.

    Depression

39. In considering the diagnosis of this condition I note the report from Dr Kumar dated 26 October 2011 (ST1) in which he recorded I believe that Nicholas meets the criteria for a Major Depressive Disorder….There are no more recent reports from Dr Kumar and, in his evidence, Mr Haughton said that he stopped seeing Dr Kumar at the end of 2011 because the insurance company would not pay for more consultations. 

40. Dr Kumar is a consultant psychiatrist.  Accordingly, I am satisfied that Mr Haughton’s depression was diagnosed by an appropriately qualified medical practitioner on 26 October 2011 and that there is corroborating evidence of the condition at that date as required by section 6(5)(a) of the Impairment Tables.   

41. In considering the treatment for this condition I note Dr Kumar’s report which records I have asked him to see a clinical psychologist for appropriate modelling/CBT.  Mr Haughton’s evidence was that he saw a psychologist at the Parkhill Medical Centre four times in early 2012, the last visit being in February 2012.  Mr Haughton also said he saw a psychologist at the Parkhill Medical Centre on 23 July 2015 and that he is due to see her again on 4 August 2015 and every two months thereafter.  He has no reports from the psychologists but is expecting one in the near future from his current treating psychologist (Exhibit A7).

42. Section 6(5)(b) of the Impairment Tables requires me to consider what treatment or rehabilitation has occurred in relation to the condition and section 6(5)(c) concerns whether treatment is continuing or planned in the next two years. In this case I have no medical evidence as to the treatment or rehabilitation that may have occurred after the diagnosis in 2011.  I do have evidence that treatment is continuing in that Mr Haughton is currently seeing a clinical psychologist and will continue to do so.

43. From the available evidence I am not satisfied that at the qualifying period the condition was fully treated, and I find accordingly.  Consequently, the condition cannot be considered permanent according to the terms of section 6(4) of the Impairment Tables and therefore an impairment rating cannot be assigned to this condition.

    Left Shoulder

44. Mr de Uray contended that the left shoulder condition should be assigned 10 impairment points as submitted in the Respondent’s Statement of Facts, Issues and Contentions. Mr Haughton made no specific submissions regarding his left shoulder and did not contest the recommendation of 10 impairment points.

45. I note the following contemporaneous reports:

    ·Dr Dewapura’s  report dated 19 November 2013 (T-6) in which he noted that Mr Haughton is unable to use left upper limb for daily living activities and work;

    ·The Job Capacity Assessment (JCA) report dated 11 December 2013 (T-9) which records:

    Recommended Rating: 10…Constant ache in shoulder; unable to raise left arm to shoulder level; unable to push, pull or reach; requiring some assistance from wife for showering and dressing; completely reliant on right arm/hand for carrying groceries, picking up a coffee or milk carton; and

    ·Dr Dewapura’s report dated 31 May 2014 (T-12) which documents [l]eft shoulder pain and reduced movement.

46. The more detailed assessment performed by the JCA reviewer aligns with the descriptors of a moderate functional impact attracting 10 points under Table 2 - Upper Limb Functions.

47. From the available corroborated evidence I am satisfied that during the qualifying period Mr Haughton’s left shoulder had a moderate functional impact on his ability to use his hands or arms.  Accordingly I assign 10 impairment points to this condition.

    Right Shoulder

48. Mr Haughton’s contention is that his right shoulder condition existed at the time of the qualification period and therefore it should be assessed for impairment points. 

49. The uncontested medical evidence is that Mr Haughton’s right shoulder was investigated on 9 May 2014 (ST1) as a result of which he underwent an MRI scan on 7 November 2014.  Mr Hunt confirmed the diagnosis of this condition on 28 November 2014 and recommended surgery, which was performed on 17 April 2015 (A4). 

50. It is clear that the condition was not fully diagnosed until 28 November 2014 and not fully treated before 17 April 2015.  Indeed Mr Haughton is still undergoing review and therapy for his right shoulder.

51. Accordingly, I find that, although the condition was present in the qualifying period, it was not fully diagnosed, treated and stabilised in the qualifying period.  As a result I am not able to assign it any impairment points.

    Total Impairment Rating

52. For Mr Haughton’s conditions at the time of the qualifying period I have found the following:

    ·Depression – not fully treated – unable to assign impairment rating;

    ·Left shoulder – 10 impairment points; and

    ·Right shoulder – not fully treated – unable to assign impairment rating.

    CONCLUSION

53. The total impairment rating is less than the 20 points required to satisfy section 94(1)(b) of the Act.  In order to satisfy section 94(1) of the Act, all the sub-sections must be satisfied.  Mr Haughton does not satisfy the requirements of section 94(1)(b) of the Act.  As a result, he cannot satisfy all the provisions of section 94(1) of the Act and there is no need for me to consider the other sub-sections of section 94(1).

54. The result is that during the qualification period Mr Haughton was not qualified for DSP and I find accordingly.

55. This finding relates to Mr Haughton’s condition at the end of February 2014.  However, from the evidence I have heard, I consider that an assessment of Mr Haughton’s conditions as they are now, rather than as they were in February 2014, might attract a higher rating.

56. Mr Haughton may benefit from obtaining up to date reports from Mr Hunt and Dr Shalev and submitting them to Centrelink with a new claim for DSP.

    DECISION

57. I affirm the reviewable decision.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert

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Associate

Dated 10 September 2015

Date of hearing	28 July 2015
Date final submissions received	11 August 2015
Applicant	In person
Advocate for the Respondent	Mr Tim de Uray, Department of Human Services