Ian Smith and Secretary, Department of Social Services
[2014] AATA 547
[2014] AATA 547
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/5905
Re
Ian Smith
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal RM Creyke, Senior Member
Date 8 August 2014 Place Canberra The decision under review is affirmed.
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RM Creyke, Senior Member
Catchwords
SOCIAL SECURITY – Disability support pension – whether applicant qualifies for disability support pension – whether applicant attracts rating of at least 20 points under the Impairment Tables
Legislation
Social Security Act 1991 (Cth) sections 27(2) and 94
Social Security (Administration) Act 1999 (Cth) section 13
es
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
The Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension Determination 2011
REASONS FOR DECISION
RM Creyke, Senior Member
Mr Ian Smith, born 1954, sought a disability support pension on 13 November 2012. The claim was rejected on 18 January 2013 on the ground that his claimed conditions did not attract a rating of at least 20 points.
That decision was upheld by an authorised review officer on 22 July 2013, and on further review by the Social Security Appeals Tribunal on 4 October 2013. Mr Smith applied to the Tribunal for review on 14 November 2013.
The matter was heard in Canberra on 1 July 2014.
Background
Mr Smith was a butcher until his resignation in 2006 due to a back condition. Mr Smith said that he believed the repetitive bending and lifting involved in his work led to a L5/L6 disc prolapse for which he had surgery in February 2011. After the surgery, Mr Smith continued to experience pain. He has been advised that this was due to a nerve problem and could not be fixed.
He moved to Deniliquin, New South Wales, with a friend in the middle of 2012. In October 2012, as he could not afford the rent charged for his accommodation, Mr Smith moved out of the house.
He was assisted by voluntary agencies to find accommodation and also on occasions with food. He remains on newstart allowance, but has not worked since 2006.
Mr Smith said since he moved to Deniliquin he has had to find a new doctor, initially Dr Sankarinalingam in Finley, an adjacent town to Deniliquin, and since 1 May 2013, Dr Marion Magee, at the Deniliquin Clinic. He also said that finding other specialists such as psychiatrists, psychologists, or psychotherapists, has been difficult in a small country town in the Riverina. He does not have a car.
On 23 November 2013, Dr Wei-ning Huang, general practitioner, provided a report that Mr Smith has ‘back pain L5/S1 Disc Bulging; S1 nerve root contact’, diagnosed on 16 November 2012. At this time his current treatment was physiotherapy. Dr Huang reported that this condition impacted on Mr Smith’s ability to function, impacting his ‘back movement’.
Mr Smith also suffers from depression. On 26 October 2012, Dr Paul Friend, consultant psychiatrist, diagnosed that it was ‘likely that he has a non-melancholic depression’ and recommended an anti-depressant for treatment. Mr Smith was on Zoloft. There has also been a suggestion that Mr Smith suffers from post-traumatic stress disorder.
10. On 23 November 2013, Dr Huang also diagnosed ‘depression/alcoholism’ and referred Mr Smith to a social worker, and a psychologist or psychiatrist. Mr Kevin Holmes, mental health social worker, reported on 10 June 2014 that he had been working with Mr Smith weekly since 9 April 2014 to assist with his depression, alcoholism and post-traumatic stress disorder. He recorded that ‘Mr Smith has shown good progress and a reduction in the severity of this symptoms’, but a further six sessions of treatment was requested. The evidence was that Mr Smith now only drinks about once a week when a friend picks him up and they go to the hotel.
11. On 22 May 2013 Dr Marion Magee, Ms Smith’s current general practitioner, reported that he suffers depression but it caused minimal or limited impact on his ability to function. He has changed his medication and is no longer on Zoloft.
12. Mr Smith also suffers from chronic alcoholism. On 30 May 2012, Dr Magee prescribed he take Revia, a tablet to combat alcoholism. Mr Smith’s evidence, however, was that it made him bilious and depressed his appetite. On 22 May 2013, Dr Magee diagnosed ‘chronic alcoholism with alcoholic hepatitis’.
13. On 12 February 2014, Dr Magee reported that Mr Smith suffers from alcohol abuse, that treatment by Naltrexone was ineffective and Mr Smith found Alcoholics Anonymous to be ‘too religious’. Mr Smith continued to drink although his level of drinking is limited by his financial circumstances.
14. Mr Smith saw Sonia Bulzomi, a clinical psychologist. Ms Bulzomi, however, did not consider it would be useful for her to continue therapy, unless [Mr Smith] was ‘willing to go into an inpatient alcohol withdrawal programme’.
15. Mr Smith also suffers from Dupuytren’s contracture of both hands, dating from 2003 for his left hand, and 2009 for his right hand. Mr Smith had surgery on his left hand in late 2012 and on his right hand in January 2013. He has been left with a permanent fixed flexion deformity of the 4th and 5th fingers of his left hand, and use of his right hand causes pain. He has very limited use of his left hand, and limited use of his right hand. Dr Magee, in a report she completed in May 2013, noted that both hands were likely to deteriorate, being the natural history of the condition; that Mr Smith wears splints on both hands and has undertaken occupational therapy for the condition, and that he cannot use either hand for manual work and requires assistance with the activities of daily living which require manual dexterity.
16. Mr Smith had a cataract operation on both eyes in March 2014. Due to complications which have affected his vision, he is awaiting further surgery.
17. Mr Smith was assessed by a job capacity assessor for the purposes of his eligibility for disability support pension on 12 December 2012. Mr Smith has been assessed by job capacity assessors on previous and subsequent occasions, the most recent assessment being on 24 March 2014.
Legislation
18. The relevant legislation is the Social Security Act 1991 (Cth) (Act), section 94 of which sets out the eligibility criterion for disability support pension. The Social Security (Administration) Act 1999 (Cth) (Administration Act) section 13, Schedule 2 defines when a person is deemed to have lodged a claim for disability support pension.
19. Also relevant for the decision made on 13 November 2012 are:
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) assigns ratings for claimed conditions for the purposes of the disability support pension. The purpose of the Impairment Tables is to assess the level of functional impairment.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011(Impairment Tables) clause 3 – definition of ‘impairment’.
The Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension Determination 2011 (POS Determination). The purpose of the POS [Program of Support] Determination is to define the circumstances to be met for the continuing inability to work requirement in section 94 when the person has not been assigned points under a single impairment table.
Issues
20. The issues are whether, as at 13 November 2012 or within 13 weeks after that date, namely, by the 12 February 2013, Mr Smith qualified for disability support pension.
21. Specifically:
Whether Mr Smith’s claimed conditions attracted a rating under the Impairment Tables of at least 20 points (section 94(1)(b) of the Act).
If so, whether he has a ‘continuing inability to work’ (section 94(1)(c),(2) of the Act).
Consideration
22. Mr Smith has conditions of back pain, depression, alcoholism, bilateral Dupuytren’s contracture, gout and hypertension. There is no question that Mr Smith suffers from these conditions. Accordingly he meets the criteria in section 94(1)(a) of the Act.
23. The principal issue is whether Mr Smith has a physical, intellectual or psychiatric impairment due to any or all of these conditions (section 94(1)(b)), and if so, whether in combination his conditions attract a rating under the Impairment Tables of at least 20 points. An ‘impairment’ is defined as a ‘loss of functional capacity affecting a person’s ability to work that results from the person’s condition’ (Impairment Tables clause 3). The Tribunal is bound to apply the Impairment Tables.[2]
[2] Social Security Act 1991 (Cth) s 27(2).
24. Mr Smith has been assessed on a number of occasions by Job Capacity Assessors for Centrelink purposes. Since the Tribunal is required to confine its decision to his eligibility for disability support pension in the period November 2012 to February 2013, it is the report closest in time to those dates which is relevant, namely, that of 16 January 2013. Because of this restriction this is the only report which is relevant for the purposes of the application currently before the Tribunal.
25. Mr Smith had not understood that the role of the Tribunal was limited to assessing his eligibility within the dates specified in 2012/2013. It was explained to him that this restriction is in accordance with the law. At the same time he is not prevented from making a claim for disability support pension at some later date. He should do so if his conditions meet the tests for disability support pension, in particular, that the conditions for which he is claiming are permanent, that is, likely to last for more than two years, and the conditions are fully diagnosed, treated, and stabilised.
Back condition
26. The relevant JCA report in January 2013 was prepared by a Centrelink Registered Psychologist. The assessor found that Mr Smith’s back condition was fully diagnosed, treated and stabilised. The functional impact included an inability to walk more than 200 metres without resting, an inability to bend more than 45 degrees, meaning he could not, for example, ties shoelaces, and he had lifting limitations, for example, he could not lift a laundry basket. The assessor considered the condition was likely to persist for more than 24 months. Under Table 4 – Spinal function, the assessor rated the condition as attracting 10 points.
27. The Tribunal considers that assessment to be in accordance with Table 4 – spinal function – as the evidence indicates that Mr Smith cannot bend more than 45 degrees and accordingly would be ‘unable to bend forward to pick up a light object placed at knee height’. That means the rating of 10 points is appropriate.
Depression
28. The January 2013 JCA report considered his depression was permanent and fully diagnosed, but not fully treated or stabilised. The finding was principally because Mr Smith had been advised to change his anti-depressant medication and had not done so and because he was not then seeing a psychologist. However, the assessor noted that Mr Smith’s alcohol dependence had tapered significantly due to his inability to afford alcohol and this led to a stabilising of his depression. However, as his condition was not fully treated or stabilised, the impact on Mr Smith’s functional capacity was not analysed.
29. Mr Smith needs to address these issues in any future application. No points were attracted. The Tribunal notes Mr Smith has changed his medication to Zaiban, that he saw a case worker four or five times, and he has been seeing a psychologist and continues to do so. However, the functional impact on Mr Smith was low.
30. Mr Smith’s evidence was that he also had financial difficulties in purchasing his medication, including for depression.
Alcohol dependence
31. The JCA report did not treat this condition separately from depression. In other words, it was not considered to be fully treated or stabilised. Mr Smith would need to address that issue in any future application.
32. Subsequent evidence from Mr Smith is that he now only drinks on Friday nights, and that functionally there were no further adverse effects.
Bilateral Dupuytren’s contracture
33. Mr Smith’s Dupuytren’s contracture was not considered by the assessor in the January 2013 report because it was not listed by Dr Huang. Accordingly it was not assessed.
34. The Secretary has argued that there was no substantive medical evidence of the date of onset, prognosis, follow-up and treatment of the condition. Hence the Secretary could not make an appropriate assessment.
35. According to Dr Magee, on 22 May 2013, Mr Smith has had splints on both hands which he uses at night; he has a permanent fixed flexion deformity of the 4th and 5th fingers of his left hand and it causes pain when he uses his right hand. In her opinion, the normal progression of the condition is that both hands are likely to deteriorate. She regards the condition as permanent. Mr Smith has also been given exercises to assist including squeezing and stretching. He cannot straighten his left hand and it clams up if he attempts to use it. He also says the condition does have a functional impact since he has trouble preparing meals. As at February 2013, however, there was no evidence of this on which to rate the functional impact.
36. Dr Magee also says Mr Smith is functionally impaired as a consequence. Dr Magee said the condition commenced in 2012, that Mr Smith is unable to use either hand for manual work and requires assistance with the activities of daily living, because he is unable to use his hands effectively.
37. At the same time, as the second operation for the condition had not occurred until January 2013, in the time frame for this application, November 2012 to February 2013, it was too early to say whether the condition had stabilised following surgery and whether any further treatment would benefit Mr Smith. Accordingly, the Tribunal is unable to assign points for the condition which was not then ‘fully treated and stabilised’.
Gout/Hypertension
38. The JCA report found that Mr Smith’s hypertension was permanent and was fully diagnosed, treated and stabilised. However, the condition was generally well managed and caused minimal impact on functioning. The report also found that Mr Smith’s gout was permanent and fully diagnosed treated and stabilised, but was also treated with medication and had minimal impact on functioning.
Conclusion
39. The consequence of these findings is that Mr Smith’s conditions do not attract the minimum of 20 points required for disability support pension.
40. That means there is no need to consider whether Mr Smith has a continuing inability to work. It also means that the Tribunal must affirm the decision under review. That means Mr Smith has been unsuccessful.
41. At the same time, the Tribunal reiterates, that Mr Smith is able to lodge another application for disability support pension at any time. The Tribunal notes that he was assessed again in January 2014, but not all his conditions were rated. Mr Smith should be encouraged to take into account the comments in the most recent JCA report, particularly what aspects of the tests he has not met, and when he considers that he now meets the tests and that the comments no longer reflect his circumstances, to reapply for disability support pension.
I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member
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Associate
8 July 2014
Date of hearing 1 July 2014 Applicant In person Advocate for the Respondent Stefan Misrachi Solicitors for the Respondent Department of Human Services
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