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

[2017] AATA 1637

Hayles and Secretary, Department of Social Services (Social services second review) [2017] AATA 1637 (6 October 2017)

Division:GENERAL DIVISION

File Number(s):  2016/3818           

Re:Andrew Hayles  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:6 October 2017

Place:Brisbane

I affirm the decision under review.

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

Deputy President Dr P McDermott RFD

CATCHWORDS

SOCIAL SECURITY – rejection of claim for disability support pension - physical impairments – most appropriate Impairment Table for assessment of impairment rating – whether applicant’s impairment rating is of 20 points or more under the Impairment Tables –whether neurological or cognitive function impairment - decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94, 94(1), 94(1)(a), 94(1)(b)
Social Security (Administration) Act 1999 (Cth) Schedule 2, clause 4(1)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

6 October 2017

INTRODUCTION

1. The applicant seeks review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) that was given on 22 June 2016.

2. That decision affirmed a previous decision of the respondent to reject the applicant’s application for disability support pension (DSP).

   BACKGROUND

3. On 29 October 2015 the applicant lodged a claim for DSP.[1] The applicant has left the space provided on the application form to list disabilities, illnesses or injuries blank.[2] On 28 January 2016 the applicant attended a Job Capacity Assessment and a report was subsequently produced on the same date.[3] The Job Capacity Assessor (JCA) assessed the Applicant’s conditions as “Chronic pain – recommended rating 10”.

   [1] Exhibit A, T-documents, T21

   [2] Exhibit A, T-documents, T21 at p 111

   [3] Exhibit A, T-documents, T23

4. The JCA opined that the applicant has a Baseline Work Capacity of 8-14 hours per week with an increased capacity of 15-22 hours per week with intervention. The JCA remarks in the report

   “client reported he collided with a train. Medical evidence notes the incident resulted in fractured skull and nose.”

   “Past treatment – medical evidence notes the client had surgery to fractured skull to stop cerebro spinal fluid leak following train incident. Regular review by Ear, Nose and Throat specialist Dr John O’Neill since 2010. Medication for pain and sinusitis (daily Ibuprofen and Tramadol when severe)…the condition is considered permanent given its chronicity and as the doctor has indicated the impacts of the condition will persist for more than 24 months.” [4]

   [4] Exhibit A, T-documents, T23 at pp 139-140

5. In a letter to the applicant dated 28 January 2016, the Department notified the applicant that he is not eligible for DSP as he has been assessed as having an impairment rating of less than 20 points.[5] The applicant sought a review of the Department’s decision to reject his claim for DSP. An Authorised Review Officer wrote to the applicant on 29 March 2016 outlining their reasons for finding that the decision to reject the applicant’s claim for DSP was the correct decision.[6]  

   [5] Exhibit A, T-documents, T24 at p 145

   [6] Exhibit A, T-documents, T25 at p 147

6. The applicant applied to the AAT1 for a review of the decision to reject his claim for DSP. A hearing of the application took place on 22 June 2016. The decision under review was affirmed on the same date. The AAT1 Member was satisfied that the applicant’s 10 impairment point rating under Table 1 was correct.[7]

   [7] Exhibit A, T-documents, T2 at p 8, [22]

   RELEVANT LEGISLATION

7. The legislation I must administer is the Social Security Act 1991 (the SSA), the Social Security Administration Act 1999 (the SSAA) and the Social (Security Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).

8. Section 94 of the SSA prescribes the qualification criteria for DSP.[8]

   [8] Exhibit A, T-documents, T3 at p 9

9. Section 94(1) of the SSA provides that a person qualifies for DSP if the person has a physical, intellectual or psychiatric impairment, the person’s impairment is 20 points or more under the Impairment Tables and the person has a continuing inability to work.

10. The relevant Impairment Tables which are in force are in evidence.[9]

    [9] Exhibit A, T-documents, T3 at pp 16-23

11. In assigning an impairment rating to a condition, I am required to apply the rules in   section 6 of the Determination.[10] For the purposes of the Act, a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, the condition has been fully treated, is fully stabilised and is more likely than not, in light of the available evidence, to persist for more than two years.

    [10] Exhibit A, T-documents, T3 at p 25

12. I will now proceed to consider the requirements under section 94 of the SSA.

    IMPAIRMENT

13. Section 94(1)(a) of the SSA imposes a requirement that a person has a physical, intellectual or psychiatric impairment. There is no issue that the applicant has a physical impairment for the purpose of section 94(1)(a) of the SSA. The evidence contains references to an incident whereby the applicant sustained a fracture to his skull in 1980 requiring surgery and subsequent headaches and sinusitis have impacted the applicant ever since.[11]

    [11] Exhibit A, T-documents, T4 at p 31; T6 at p 39

    ASSESSMENT OF IMPAIRMENTS

14. I now consider section 94(1)(b) of the SSA. That provision requires me to consider whether a person’s impairment is 20 points or more under the Impairment Tables at the time of claim for DSP being 29 October 2015 or within 13 weeks after making the claim (relevant period): see SSAA Schedule 2, clause 4(1).

    Headaches and sinusitis

15. The applicant has unsuccessfully applied for DSP a number of times since 2010. Dr Sergly Korol has completed Centrelink medical forms for these applications for DSP. In each medical report completed for the applicant’s past DSP claims, Dr Korol refers to the applicant’s headache/sinusitis condition as the condition that has the most impact on his functional ability.[12] Dr Korol completed a medical report on 7 January 2016 for the applicant’s most recent claim for DSP.[13] This report of Dr Korol lists the condition with the most impact as “severe intractable pain – cluster headaches?[sic]”[14]

    [12] Exhibit A, T-documents, T4 p 31; T11 p 54; T13 p 67; T19 p 84

    [13] Exhibit A, T-documents, T22

    [14] Ibid at p 131

16. Exhibit D contains a report of Dr Korol dated 12 October 2016. This report responds to questions set out in a ‘Dear Doctor’ letter provided to the applicant by the representative for the respondent. The diagnosis is stated as “cluster headaches with severe pain”; however no date of onset has been provided.[15] Treatment of the condition prior to the date of the applicant’s most recent claim for DSP is recorded as

    “…MRI/CT performed by opthalmic specialist, acupuncture, neurosensorineural audiological assessment by ENT specialist. Patient also reports having had osteoflap surgery of skull to prevent pain, which was performed in 1980 by Dr Howson at Sydney Hospital.”[16]

    [15] Exhibit D, Dr Sergly Korol report dated 12 October 2016

    [16] Ibid

17. The evidence before the Tribunal is not clear on the functional impairment the applicant experiences as a result of the headache condition. In a medical report dated 16 April 2015 Dr Korol has not completed the section titled ‘Impact on ability to function’ for the headache condition being the condition with the most impact.[17] The JCA report of             6 May 2015 records the applicant as having reported that

    “he has a headache two out of three days due to blocked sinuses. Headaches may last from two hours to ongoing for a number of days. Client needs to sit, rather than lie down when he has a headache and he experiences nausea.”[18]

    [17] Exhibit A, T-documents, T19, p 86

    [18] Exhibit A, T-documents, T20, p 93

18. The section titled ‘Impact on ability function’ on the medical report completed by Dr Korol for the applicant’s most recent claim for DSP has been left blank.[19] The JCA report dated 28 January 2016 records the applicant’s self-report of the severity of his headaches as increasing since December 2015.[20]

    [19] Exhibit A, T-documents, T22, p 133

    [20] Exhibit A, T-documents, T23, p 142

    Appropriate Impairment Table

19. I must consider what is the most appropriate Impairment Table which applies to the applicant’s headache condition. The introduction to Table 7 – Brain Function provides that the Table is to be used for permanent conditions “resulting in functional impairment related to neurological or cognitive function” and that “there must be corroborating evidence of the person’s impairment.” The report of Dr Korol dated 12 October 2016 states “Frequent severe chronic pain which has a severe functional impact on the ability of memory, attention and concentration” in response to a question on how the applicant’s symptoms impact his activities of daily living.[21]

    [21] Exhibit B, Dr S Korol report dated 12 October 2016

20. There is no cogent evidence before the Tribunal that the functional impairment relates to neurological or cognitive function as required by Table 7. The reports are based on the applicant’s self-report and are inadequate to establish the functional ability impact of the condition on the applicant. The Introduction to Table 7 provides that self-report of symptoms is insufficient. In the event that sufficient evidence was before the Tribunal to support the applicant’s impairment rating being assessed under Table 7, I would still be unable to assign an impairment rating to the condition as there is no supporting evidence of the functional impact on the applicant. Dr Korol’s report dated 12 October 2016 is the best evidence before the Tribunal of the functional impact of the condition on the applicant. This report is brief and insufficient to enable me to make any findings as to functional impact. It was also completed a year after the applicant claimed DSP which is outside of the relevant period.

21. In the absence of corroborating evidence to support Dr Korol’s comments on functional impairment relating to a neurological or cognitive function, I consider that   Table 1 – Functions requiring Physical Exertion and Stamina is the most appropriate Impairment Table on which an impairment rating must be assigned to the headache condition.

    The JCA report dated 28 January 2016 assesses the applicant on Table 1 as having an impairment of 10 points for chronic pain.[22] This assessment accounts for the impact of the applicant’s symptoms on his activities of daily living as reported by the applicant and corroborated by available medical evidence. I rely upon this report to conclude that the applicant has an impairment rating of 10 points on Table 1 based on the applicant        self-report and the evidence before the Tribunal.

    [22] Exhibit A, T23 at pp 141-142

22. It is a matter of concern that the applicant did not follow the advice of Dr O’Neill who recommended a neurological consultation in 2010. Dr Peera has reported that “a neurologist opinion can be extremely helpful when headaches have a complex aetiology, are worsening over time, or are unresponsive to general practitioner treatment.”[23] A neurologist report could provide a basis for an assessment under Table 7 or 15 which relates to Functions of Consciousness.

    [23] Exhibit C, Health Professional Advisory Unit report of Dr Peera p 3

    Hearing condition

23. There is evidence before the Tribunal that the applicant has tinnitus.[24] The medical report of Dr Korol prepared for the applicant’s most recent claim for DSP notes that the applicant has poor hearing under the heading of ‘conditions that are generally well managed and cause minimal or limited impact on ability to function’.[25] The JCA notes in their report dated 28 January 2016 that the “client denied any hearing impairments or functional impacts due to tinnitus” and that the “client insisted that he did not want a hearing impairment recorded as part of his application for the disability pension.”[26]

    [24] Exhibit A, T18 at p 79

    [25] Exhibit A, T-documents, T22 at p 137

    [26] Exhibit A, T-documents, T23 at p 140

24. It is clear from the evidence before the Tribunal that the condition does not impact on the applicant’s functional ability. As Dr Korol considers that the condition has a minimal or limited impact on the ability of the applicant to function, I assign an impairment rating of zero points under Table 11.

    Other conditions

25. The applicant has provided a medical certificate to the Tribunal from Dr Hing dated 4 February 2017. This medical certificate lists a number of injuries and conditions and states the onset date as 3 February 2017. The date of onset is more than 13 weeks after when the applicant made his claim for DSP which is the subject of the current decision for review before the Tribunal. Therefore any injuries and conditions, such as those identified in the medical certificate dated 4 February 2017, may only be taken into account for any fresh claim for DSP that the applicant may make.

    CONCLUSION

26. I find that within the relevant period for the applicant’s claim for DSP, he did not satisfy section 94(1)(b) of the Act which requires an applicant to have 20 points for their impairment/s. As the applicant did not satisfy the requirements of section 94(1)(b) of the Act it is not necessary for me to consider whether the applicant satisfied the remaining requirements under section 94 of the SSA to qualify for DSP.

    DECISION

27. I affirm the decision under review.

I certify that the preceding 27 (twenty seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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

Associate

Dated: 6 October 2017

Applicant:	By phone
Solicitors for the Respondent:	Mills Oakley Lawyers