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

[2018] AATA 89

Hughson and Secretary, Department of Social Services (Social services second review) [2018] AATA 89 (30 January 2018)

Division:GENERAL DIVISION

File Number:           2017/3051

Re:Bradley Hughson

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Ms Amy Wood, Member

Date:30 January 2018

Place:Melbourne

The Tribunal affirms the decision under review.

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

Member 

SOCIAL SECURITY – disability support pension – impairment - whether disability is fully treated and fully stabilised – application fails – decision affirmed

Legislation
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Secondary Materials

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

REASONS FOR DECISION

Ms Amy Wood, Member

30 January 2018 

Preliminary matter:

1. On or about 24 October 2017 Ms Katrina Newman, advocate at the Disability Resources Centre, wrote (by email) to the Administrative Appeals Tribunal (the AAT) requesting that the hearing scheduled for Monday 30 October 2017 be heard by telephone. A letter written by Ms Newman dated 24 October 2017 and a consent form signed by Mr Hughson was attached to the request. The Respondent did not oppose the request. The Tribunal granted the request.

Background:

1. On or about 23 May 2016 Mr Bradley Hughson (herein referred to as “the Applicant”) lodged a claim for the Disability Support Pension (herein referred to as “the DSP”) with Centrelink.  Centrelink is the service provider for the Department of Social Services. The Claim Form was signed, declared and dated 31 May 2016.[1] The Applicant relied on the following medical conditions in his claim:

   -             left arm radial palsy;
   -             GORD;
   -             C4/5 discectomy and fusion;
   -             depression;
   -             post-traumatic stress disorder;
   -             chronic pain;
   

   [1] See Exhibit 1 - T51, page 90.

   [2] See Exhibit 1 - T51, page 86.

   -             spinal cord injury.[2]

2. On 25 July 2016, Centrelink conducted a Job Capacity Assessment.[3]   It found (in short and amongst other things), that the Applicant’s medical conditions were fully diagnosed but not fully treated and stabilised. On or about 26 July 2016 the Applicant’s claim for the DSP was rejected (herein referred to as “the original decision”).[4] Centrelink conducted a further Job Capacity Assessment on 23 September 2016.[5]

   [3] See Exhibit 1 – T54, pages 105-112.

   [4] See Exhibit 1 – T55, page 113.

   [5] See Exhibit 1 - T60, pages 122-129.

3. On 16 November 2016 an Authorised Review Officer (herein referred to as “the ARO”) affirmed the original decision to reject the Applicant’s claim for the DSP. The Applicant applied for a review of the ARO’s decision by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT Tier 1). This decision was reviewed by the AAT Tier 1 and on 24 March 2017 it affirmed the decision of the ARO.[6] On or about 5 May 2017 the Applicant made an application to the General Division of the AAT (Tier 2) for a Second Review of the Decision (which is known as an AAT second review).[7]

   [6] See Exhibit 1 – T2, pages 3-16.

   [7] See Exhibit 1 – T1, pages 1-2.

Hearing:

1. As requested, on 30 October 2017 the Applicant appeared at the hearing by telephone. Ms Newman assisted the Applicant throughout the proceeding (she also appeared by telephone from the same location). At the request of the Applicant, Ms Newman was permitted to ask questions and make submissions to the Tribunal. Mr Lessing of Sparke Helmore Lawyers, solicitor for the Respondent, appeared in person at the Tribunal.

2. The Tribunal heard sworn evidence from the Applicant and Mr James Hamilton. Mr Hamilton was described as a friend and also the carer and housemate of the Applicant. Both witnesses were cross-examined by Mr Lessing.

3. The following documents were also tendered as evidence by the parties:

   ·Exhibit 1 – Section 37 Documents (“T Documents”) numbered 1-200.

   ·Exhibit 2 – Supplementary T Documents numbered 1-38.

   ·Exhibit 3 – Statement of Bradley Hughson dated 25 October 2017.

   ·Exhibit 4 – Letter to the Administrative Appeals Tribunal from the Disability Resources Centre written by Katrina Newman dated 24 October 2017.

   ·Exhibit 5 – Medical Report of Georgina Speak, psychologist dated 11 July 2017.

   ·Exhibit 6 – Medical Report of Johan Gani, urological surgeon dated 14 July 2017.

   ·Exhibit 7 – Medical Report of Dr Nalinda Amarsinghe, general practitioner dated 14 July 2017.

Legislative framework:

1. The relevant legislation is the Social Security Act 1991 (Cth) (herein referred to as “the Act”). Section 94(1) of the Act outlines the requirements that must be met for an applicant to qualify for the DSP. Section 94(1) must be considered in conjunction with the provisions of the Social Security (Administration) Act 1991 (Cth) (herein referred to as “the Administration Act”) and the rules outlined in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (herein referred to as “the Impairment Tables”). 

Uncontested matters:

1. The Respondent submitted that the date for determining whether the Applicant satisfied the requirements pursuant to s 94 of the Act is the date the claim for the DSP was lodged, unless the Applicant becomes qualified within 13 weeks of lodging the claim. The Applicant did not contest this submission.

2. The Respondent submitted that the Applicant contacted Centrelink on 23 May 2016 regarding his claim for the DSP. Therefore, in order to qualify for the DSP, he must have met the requirements prescribed by s 94 between 23 May 2016 and 22 August 2016 (being 13 weeks from 23 May 2016). The Respondent submitted that this is the qualification period. The Applicant did not contest this submission.

3. The Respondent submitted that the period for consideration in this proceeding is from 23 May 2016 to 22 August 2016 (the qualification period). The Applicant did not contest this submission.  

Issue for determination:

1. The Tribunal must determine whether the Applicant satisfied the legislative requirements (and thus qualified for the DSP) during the qualification period. 

2. Pursuant to s 94(1) of the Act, the first matters for consideration when assessing a claim for the DSP are as follows:

   (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)the person has a continuing inability to work. 

3. The Respondent accepts that the Applicant satisfies s 94(1)(a) of the Act. This position is in line with the medical evidence tendered. The Tribunal must therefore determine whether the Applicant satisfied the remaining requirements under s 94(1) during the qualification period.

4. Sub-section (b) requires that a person’s impairment is of 20 points or more under the Impairment Tables. Rule 6 of the Impairment Tables outlines how the tables are to be applied. Sub-rule (1) states that the 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. Sub-rule (2) states that the Tables 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. Sub-rule (3) states that an impairment rating can only be assigned to an impairment if (a) that person’s condition causing that impairment is permanent; and (b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years. Sub-rule (4) outlines how it is to be determined as to whether a condition is permanent for the purposes of assigning an impairment rating. Sub-rule (4) states:

   (4) For the purposes of paragraph 6 (3)(a) a condition is permanent if:

   (a)that condition has been fully diagnosed by an appropriately qualified medical practitioner; and

   (b)the condition has been fully treated; and

   (c)the condition has been fully stabilised; and

   (d)the condition is more likely than not, in light of available evidence, to persist for more than two years.

5. Sub-rules (5), (6) and (7) outline the considerations relevant to the assessment of whether a condition has been fully diagnosed, fully treated and is fully stabilised. The Impairment Tables require that a medical condition is a permanent condition before an impairment rating can be assigned to the functional impact of the condition.

What is the evidence in relation to each medical condition during the qualification period?

Lay evidence:

1. The Tribunal heard evidence from the Applicant[8] and Mr Hamilton. This evidence was very general in nature and (at times) difficult to follow when the Applicant, Mr Hamilton and Ms Newman spoke-over and across one-another.  The Applicant and Mr Hamilton’s evidence referred to the Applicant’s current symptoms and incapacities which were not those experienced during the qualification period. The Applicant provided more contemporaneous reporting of symptoms in a letter dated 14 November 2016.[9] In this letter, the Applicant refers to his condition deteriorating, being unlikely to stabilise and possibly requiring further surgery.

   [8] See Exhibit 3 – Statement of Bradley Hughson dated 25 October 2017.

   [9] See Exhibit 1 – T63, page 133.

2. The function issues and symptoms Ms Newman refers to in a letter dated 24 October 2017, are matters experienced by the Applicant recently and not during the qualification period. For example: Ms Newman refers to an ambulance being called to take the Applicant to the Frankston Hospital for assessment and treatment after having consumed eight Panadeine Forte. This incident is said to have occurred on 18 October but does not specify a year. She also refers to an ambulance being called to take the Applicant to the Frankston Hospital for treatment on the 3^rd, 24^th and 28^th of September, again, not specifying a year. She notes that Mr Hamilton called the police on at least two occasions requesting that they conduct welfare checks on the Applicant in the previous fortnight. She refers to the Applicant having had frequent falls in the last three months and an ambulance being called to assist him following these falls. Finally, Ms Newman refers to the Applicant having recently started to receive assistance from the Royal District Nursing Service to manage his continence issues. Unfortunately, these function issues and symptoms are not linked to the qualification period.

3. The lay evidence did not address whether the Applicant’s medical conditions were fully treated and fully stabilised during the qualification period thus being entitled to an impairment rating pursuant to the Impairment Tables.

Medical evidence:

1. The Tribunal considered the medical evidence tendered.

2. The Tribunal requested that Ms Newman and the Applicant identify the medical material on which it sought to rely relevant to the qualification period. The Tribunal hearing was temporarily stood down to give them time to isolate the material and make submissions to the Tribunal.

3. Ms Newman drew the following medical reports to the Tribunal’s attention:

-Report of Mr Patrick Lo, consultant neurosurgeon dated 22 June 2016[10]

-Report of Mr Craig Timms, treating neurosurgeon dated 17 August 2016[11]

[10] See Exhibit 1 – T53, pages 98-103.

[11] See Exhibit 1 – T57, page 117.

1. The Tribunal notes that the only other medical material prepared during the qualification period is the Centrelink Medical Report Sickness Allowance Form (herein referred to as “the Form”) completed on 3 June 2016 by the Applicant’s (then) treating general practitioner (GP), Dr Richard Duff.[12]

   [12] See Exhibit 1 – T52, pages 91-97.

2. In relation to each report, the Tribunal notes:

-Mr Lo conducted an independent medical examination of the Applicant on 22 June 2016. This examination was undertaken in relation to the Applicant’s neck injury[13] and the report was addressed to the Transport Accident Commission (TAC) and Maurice Blackburn Lawyers. It appears that the opinion was sought in relation to a claim (or potential claim) against the TAC. Mr Lo classified the Applicant’s neck injury as “permanent” and also stated that the Applicant may benefit from a multi-disciplinary pain management approach. Mr Lo opined that this approach would benefit the Applicant’s ongoing pain.

-Mr Timms is the treating neurosurgeon. In his report dated 17 August 2016, he noted the cervical fusion at C3-C4 had gone very well. Mr Timms also expressed the view that with further treatment of the cervical and lumbar spines, the Applicant’s symptoms were likely to improve. Mr Timms specifically stated, “I strongly suspect that if he is able to take part in a gym membership and do some core building exercises around the cervical and lumbar spine with physiotherapy and a plan doing some hydrotherapy, massage and clinical Pilates, I think a lot of his symptoms are likely to improve and I am hopeful that the TAC can fund this reasonable treatment plan of his car-accident-related injury.”

As at 17 August 2016 Mr Timms required further information (by way of an MRI) before providing an opinion in relation to the results and treatment plan for the lumbar spine condition. 

-Dr Duff is the Applicant’s former treating GP. In the Form he stated that the Applicant had been his patient since 27 August 2009. He stated that he examined the Applicant on 3 June 2016 and found that he was temporarily unfit for work or study from 3 June 2016 to 3 September 2016. Dr Duff only referred to the Applicant’s “cervical spine cord compression” condition when asked to “Give details of diagnosis, treatment and clinical features of current conditions.” Dr Duff stated that the future/planned treatment for this condition is “physiotherapy” but did not provide any other details including an estimate of likely dates of commencement and expected duration. Dr Duff indicated that the Applicant’s cervical spine condition was stabilised.

[13] See Exhibit 1 – T53, page 99.

1. The Tribunal notes that more recent medical material appears to have been obtained (with the assistance of the Respondent) to ascertain the status of the Applicant’s medical conditions as at the qualification period (namely from 23 May 2016).    

2. In relation to each report, the Tribunal notes: 

-The report of the current treating general practitioner, Dr Nalinda Amarsinghe, dated 14 July 2017,[14] states that the Applicant’s medical conditions[15] are expected to persist for more than two years from 23 May 2016 and that the functional difficulties arising from the conditions are expected to persist for more than two years from 23 May 2016. 

[14] See Exhibit 7, page 1

[15] See Exhibit 7, page 1 – “Chronic neck pain and Back pain, PTSD, Depression, Detrusor over activity. Above medical conditions started as a results of the accident he met with in 2013 (sic.)”

Dr Amarsinghe was not the Applicant’s treating GP in May 2016. The evidence of the Applicant during the hearing was that she had been treating him for about a year as at 30 October 2017. While this situation would not prevent a doctor from providing an opinion, the report fails to disclose a path of reasoning to support the opinions expressed. Furthermore, the opinion is not supported by the opinion of the treating neurosurgeon, Mr Timms who (as at 17 August 2016) strongly suspected that with further treatment of the cervical and lumbar spines, the Applicant’s symptoms were likely to improve.

Dr Amarsinghe also refers to the Applicant’s psychological condition but her opinion in relation to this condition is not supported by evidence during the qualification period.[16]

[16] In particular, the treating GP at the time did not include it as a condition in the Form dated 3 June 2016.

-Mr Johan Gani, urological surgeon in his report dated 14 July 2017 notes that he only started seeing the Applicant on 23 March 2017 and that he can only comment from that point onwards. The opinion he gives in relation to the Applicant’s bladder condition as at 23 May 2016 cannot be accepted - a cogent path of reasoning is not demonstrated especially when the witness accepts that he can only comment on matters from 23 March 2017.     

Whilst the Applicant gave evidence that his urological condition commenced “as soon as I come out of Monash Health”, there is no medical evidence to support this position. In particular, it is not referred to by Dr Duff, Mr Timms or Mr Lo in their earlier medical reports. It is difficult to accept that if the condition were present before late 2016, that these medical practitioners (in particular the general practitioner) would have ignored it.  

While the urological condition may be severe and relevant now, there is no cogent evidence before the Tribunal to persuade it that the condition was present within the qualification period.

-The report prepared by Ms Georgina Speak, psychologist, dated 11 July 2017, records that the Applicant attended for psychological assessment on 10 May 2017. The report does not provide an opinion referrable to the qualification period. Ms Speak was not treating the Applicant at this time and other evidence suggests that during the qualification period, the nature and extent of the Applicant’s psychological condition was considerably less problematic.[17]

While the Applicant’s psychological condition may now be severe,[18] there is no cogent evidence before the Tribunal to persuade it that the condition was sufficiently problematic (and fully treated and stabilised) throughout the qualification period.

[17] Ibid at 17.

[18] See Exhibit 4 – referring to recent threats of suicide, overdoses, hospital admissions and police intervention.

Findings:

1. The evidence does not persuade the Tribunal that the Applicant qualified for the DSP at any time during the qualification period. The evidence failed to adequately address the permanency of the Applicant’s medical conditions during the qualification period.

2. The recent medical material was prepared by treating doctors (Dr Amarsinghe and Mr Gani) who were not involved in the Applicant’s care during the qualification period and to the extent that they attempt to provide an opinion about the Applicant’s condition in the past, these opinions cannot be accepted. Their reports fail to demonstrate a cogent path of reasoning to support the opinions expressed. Their opinions also fail to address whether the conditions were permanent as required under the Impairment Tables, namely fully diagnosed, treated and stabilised during the qualification period.

3. As stated above, the lay evidence referred to issues of function and symptoms experienced by the Applicant in recent times and not during the qualification period. If accepted, the current symptoms indicate that the Applicant’s medical conditions have deteriorated since the qualification period. This factual scenario contradicts the submission that the Applicant’s conditions were fully treated and stabilised during the qualification period. Furthermore, the Applicant stated in a letter dated 14 November 2016 that: “I am currently undergoing treatment to assess the deterioration and have been advised that I may have to undergo more surgery. It is for this reason that I am unable to undertake physiotherapy etc. My condition is unlikely to stabilise. In fact, it will continue to deteriorate.” This assessment of the Applicant’s cervical spine condition clearly suggests that it was not fully treated or stabilised in 2016.

4. Dr Duff’s medical evidence, as outlined in the Form, only refers to the cervical spine condition in the qualification period. Dr Duff’s evidence in relation to this  condition was that it had stabilised and was expected to persist for more than two years. This opinion was inconsistent with the evidence of the treating neurosurgeon (Mr Timms) who was of the opinion that with further treatment of the cervical spine, the Applicant’s symptoms were likely to improve. In this circumstance, the Tribunal prefers and accepts the evidence of the treating specialist. His evidence is also preferred where any inconsistency exists between his evidence and that of Mr Lo. Mr Lo examined the Applicant once and provided a TAC medico-legal opinion.  

1. In relation to the remaining medical conditions, the evidence does not support a finding that they were fully treated and stabilised in the qualification period. The following matters are referred to:

-     Psychological condition.

In Medical Certificates issued by Dr Duff from 13 February 2015 up until 18 May 2016,[19] he recorded that the Applicant’s “depression” was “temporary” and “likely to improve”. In these circumstances, the Tribunal does not accept that the condition was fully treated and stabilised. Furthermore, there is no medical evidence to indicate that the Applicant was suffering from Post-Traumatic Stress Disorder (PTSD) during the qualification period and neither “depression” or “PTSD” was referred to by Dr Duff in the Form.

[19] See Exhibit 1 – T45, page 77, T46, page 78, T47, page 79, T48, page 80, T49, page 81, T50, page 82.

In the Job Capacity Assessment Report dated 25 July 2016,[20] the author notes that the Applicant had been diagnosed with an “adjustment disorder” by Dr Robert Kruk (psychiatrist) and that this was relatively well controlled by Zoloft 100mg. The author also noted that the Applicant had recently commenced psychological counselling with Phil Hinz and had attended one session so far. Neither Dr Kruk nor Mr Hinz gave evidence by way of a medical report in this Application for Review. The Tribunal is not satisfied on the evidence available, that the Applicant’s psychological condition was fully treated and stabilised during the qualification period.    

[20] See Exhibit 1 – T54, page 108.

-     Lumbar spine condition.

In his report dated 17 August 2016, Mr Timms stated that he did not have an MRI of the lumbar spine and that he would arrange for this to be done and see the Applicant again. The Applicant’s lumbar spine was reviewed by Mr Timms (with the MRI) on or about 28 September 2016 at which time he stated “I suspect that if we try a CT-guided epidural injection and this combined with prolonged courses of physiotherapy, hydrotherapy and massage via a gym membership, it is likely to be of benefit.”[21] In these circumstances, the Tribunal does not accept that the condition was fully treated and stabilised.

[21] See Exhibit 1 – T61, page 130.

-     Left radial nerve palsy.

In Medical Certificates issued by Dr Duff from 13 February 2015 up until 18 May 2016,[22] he recorded that the Applicant’s “left radial nerve palsy” was “temporary” and “likely to show considerable improvement within 2 years”.

Furthermore, this medical condition was not referred to by Dr Duff in the Form.

In these circumstances, in particular in the absence of medical opinion, the Tribunal is not persuaded that the left radial nerve palsy condition was fully treated and stabilised within the qualification period.

-     Urological condition.

The evidence is unclear as to when this condition commenced. The Applicant gave evidence that it commenced “as soon as I come out of Monash Health”. However, he makes no mention of it in his letter dated 14 November 2016.[23] Furthermore, it is not referred to by any medical practitioner (including the long-standing treating general practitioner or the treating neurosurgeon) until December 2016 when Dr Manish Bhasin writes to the TAC requesting funding for a specialist medical consultation with Mr Anu Jayathillake, urologist.[24] In these circumstances, the Tribunal is not persuaded that it is a condition that was even diagnosed, let alone fully treated and stabilised within the qualification period.

[22] See Exhibit 1 – T45, page 77, T46, page 78, T47, page 79, T48, page 80, T49, page 81, T50, page 82.

[23] See Exhibit 1 – T63, page 133.

[24] See Exhibit 1 - T68, page 144.

Conclusion:

1. The Tribunal is not satisfied that the Applicant’s medical conditions were permanent during the qualification period. In these circumstances, an impairment rating could not be assigned to the conditions the Applicant relies on. Therefore, the Applicant has an impairment rating of nil points. It follows that the Applicant does not satisfy s 94(1) of the Act and did not qualify for the DSP.

2. In these circumstances, it is not necessary for the Tribunal to examine whether or not the Applicant had a continuing inability to work during the qualification period.

Decision:

1. The Tribunal affirms the decision under review.

Further matter:

1. The Tier 1 decision dated 24 March 2017 noted that the Applicant’s medical conditions may have altered since his claim in May 2016. It was further noted that the Applicant may consider testing his eligibility for the DSP afresh by a further claim and that new information would be included in the assessment. The Tribunal concurs with these notations and further notes the submission of the Respondent that a fresh claim is the correct procedure in the Applicant’s circumstances.

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Ms Amy Wood, Member

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

Associate

Dated:   30 January 2018

Date of hearing:	30 October 2017
Applicant:	By telephone
Advocate for the Respondent:	Mr Joshua Lessing
Solicitors for the Respondent:	Sparke Helmore Lawyers