James Colbert and Secretary, Department of Social Services

[2014] AATA 965

[2014] AATA 965 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/3181
Re	James Colbert
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member Senior Member A C Cotter
Date	24 December 2014
Place	Brisbane

The Tribunal affirms the decision under review.

.................................[Sgd].......................................

Dr P McDermott RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits, allowances – Disability support pension – DSP – Whether 20 impairment points – Decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth), s 80

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member
Senior Member A C Cotter

24 December 2014

INTRODUCTION

1. We have to determine whether the applicant is qualified to receive

   
   

   Disability Support Pension (“DSP”).

   BACKGROUND

2. In 2012 the applicant was granted DSP. On 14 May 2013, the applicant requested that he be assessed for unlimited portability and so Centrelink undertook a review of the impairments and work capacity of the applicant. Two medical reports were completed by Dr Shahab Rafiei, on 3 January 2012 and 4 June 2013. In the second report, Dr Rafiei stated that the applicant had a condition of “anxiety/depression with fluctuating PTSD [posttraumatic stress disorder]”.[1] It was recorded that the condition was generally well managed and caused a minimal impact on the applicant’s ability to function.

   [1] Exhibit A, T18, page 202.

3. On 28 June 2013 the applicant attended a Job Capacity Assessment (“JCA”). In that report the assessor expressed the opinion that there was no medical evidence that enabled the applicant’s claimed conditions (traumatic brain injury, mental health condition or musculoskeletal pain) to be regarded as fully diagnosed, fully treated and fully stabilised. The assessor was unable to obtain further information from the general practitioner of the applicant.

4. On 6 January 2014 (“the date of cancellation”) a decision was made to cancel payment of DSP to the applicant. This decision has been affirmed by an Authorised Review Officer on 7 February 2014 and the Social Security Appeals Tribunal on 2 May 2014. The applicant now seeks review of the decision by this Tribunal.

   LEGISLATION

   Cancellation of benefit

5. The power to cancel a benefit is conferred by s 80(1) of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) which provides:

   (1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

   (a)who is not, or was not, qualified for the payment; or

   (b)to whom the payment is not, or was not, payable;

   the Secretary is to determine that the payment is to be cancelled or suspended.

   If the Secretary is satisfied that the applicant did not meet the qualification requirements for DSP then the Secretary is required to cancel or suspend the payment of DSP.

   Qualification for DSP

6. To be qualified to receive DSP the applicant must satisfy s 94(1) of the

   
   Social Security Act 1991

   (Cth) (“the Act”), which relevantly provides that:

   (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;

   (ii)     the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system.

7. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) which came into operation on 1 January 2012.

   CONSIDERATION

   Mental health condition

8. In 2002 the applicant had a brain injury caused by a motor vehicle accident in that same year. In 2004, sometime after the accident, the applicant was assessed by a neuropsychologist who, with a psychologist, made a comprehensive neuropsychological assessment of the applicant. In their report dated 14 April 2003, they assessed the

   
   

   “global functioning” of the applicant to be within the “high average range”. They reported that:

   Reasoning and concept formation, visuospatial skills, general speed of information processing, immediate auditory attention, ability to divide attention between two equally important task components, ability to mentally manipulate auditory information in working memory, ability to learn and remember verbal and visual information and executive functioning appeared to be generally intact.

   In that report there is a reference to some relative weaknesses in fine motor speed, impulsivity and selective attention. However, the authors stated that they would “anticipate further improvement in his cognitive performance over time”.[2]

   [2] Exhibit A, T4, page 58.

9. Dr David Douglas, Rehabilitation Physician, in his report dated 30 July 2014 has relied upon that neuropsychological assessment for his more recent assessment of the applicant. In particular, Dr Douglas considers the assertion of the applicant that he has continuing memory deficits. However, Dr Douglas, who has made a careful examination of the applicant and previous examinations, concluded that the applicant had
   

   [3] Exhibit D, page 3.

   “minimal memory deficits”.[3] We rely upon this conclusion which was not challenged by the applicant who tendered the report of Dr Douglas.

10. The only recent medical opinion that considers the applicant continues to suffer from memory loss is that of Dr Rafiei who, in his report of 3 January 2012, associates the applicant’s memory loss with depression.[4] However, Dr Rafiei has given no reasons to support his opinion and he indicated in that report that he would not discuss that report with Centrelink. If the memory deficit problem exists and is related to a depression condition of the applicant, then the condition could not then be regarded as stable (and so assigned a rating) because Dr Rafiei was of the opinion that the depression condition was “improving”.[5] Dr Rafiei also mentioned that the applicant was not then receiving any treatment for the condition. In his more recent report dated 4 June 2103, Dr Rafiei has modified his opinion by stating that the applicant has “anxiety/depression with fluctuating PTSD”.[6]

    [4] Exhibit A, T12, page 137.

    [5] Exhibit A, T12, page 137.

    [6] Exhibit A, T18, page 202.

11. The diagnosis of a mental health condition is considered in Table 5 – Mental Health Function (“Table 5”) contained in the Impairment Tables: 

    A diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

    There is no evidence of the applicant being diagnosed by a psychiatrist or clinical psychologist as having a mental health condition at, or before, the date of cancellation.

12. The applicant has more recently seen a clinical psychologist some months after the date of cancellation. In a letter dated 25 June 2014 Ms Giselle Clancy, Clinical Psychologist, advised that she first saw the applicant on 5 June 2014. The applicant had advised her that he had not sought psychological treatment prior to that time as “he felt he was able to manage his symptoms”.[7] This suggests that if there is a condition, the condition cannot be regarded as stable. Ms Clancy states in her letter that the applicant “reports symptoms consistent with a diagnosis of Major Depressive Disorder”,[8] although she does not give any reasons for that conclusion.  

    [7] Exhibit C, page 1.

    [8] Exhibit C, page 2.

13. In considering the mental health condition of the applicant, it should be remarked that there is inconsistency in the evidence as to whether the applicant had taken medication for his condition. In June 2013 the applicant advised the JCA assessor that he had never taken any medication for the condition. However, the applicant has more recently advised Ms Clancy that he had “trialed [sic] anti­depressants in the past but noticed no change in his mood and so ceased medication”.[9] There is certainly no suggestion that the discontinuance of this treatment was done on medical advice. We consider that the applicant has been prescribed medication for his mental health condition because

    
    

    Dr Rafiei lists “strong analgesics [and] antidepressant[s]”[10] as a past treatment in his report of 3 January 2012, although it is not clear when this medication was last prescribed. Dr Rafieli outlines his current treatment as “NIL [sic]”.[11] Dr Rafiei then listed future treatment as “supportive treatment”.[12] In these circumstances, we are not satisfied that the mental health condition of the applicant can be regarded as being fully treated.

    [9] Exhibit C, page 1.

    [10] Exhibit A, T12, page 137.

    [11] Exhibit A, T12, page 137.

    [12] Exhibit A, T12, page 137.

14. We have carefully examined the medical evidence relating to the mental health condition of the applicant. We consider that the mental health condition was not fully diagnosed, fully treated and fully stabilised at the date of cancellation. While Ms Clancy in her letter states that the applicant “reports symptoms consistent with a diagnosis of

    
    

    Major Depressive Disorder”,[13] there are no reasons provided for this conclusion. There are also no reasons provided in the second report of Dr Rafiei dated 4 June 2013 to indicate why he considers that the applicant has PTSD. Ms Clancy does not suggest that the applicant has PTSD. In these circumstances, no rating can be assigned under Table 5 of the Impairment Tables.

    [13] Exhibit C, page 2.

15. Even if the mental health condition of the applicant can be rated, it would not attract a rating of more than zero points under Table 5 of the Impairment Tables. This is because Dr Rafiei lists the mental health condition as being generally well managed and one which causes minimal or limited impact on the ability of the applicant to function.

    Lower limb condition

16. We next consider the lower limb conditions of the applicant. Dr Rafiei does not make any reference to these conditions in his report of 4 June 2013. Indeed, in that report he does not list the applicant as having any condition with the most impact. However, in his earlier report of 3 January 2012, Dr Rafiei reports the following symptoms: “Sore joints, especially back [left] foot, [right] foot[,] cannot tolerate long sitting, standing, bending”.[14]

    [14] Exhibit A, T12, page 135.

17. Dr Rafiei then advised that current treatment was “analgesic as required”.[15] However, at the JCA on 28 June 2013, the applicant then advised that he had ceased pain medication as he did not find it effective. The applicant stated that he had a “driving capacity of

    
    

    30 minutes; walks one kilometre in one hour with frequent rest breaks; uses railing for support negotiating stairs; standing capacity five minutes”. [16] At the hearing the applicant stated that he had walked from his home to the local railway station which is a distance of more than one kilometre.

    [15] Exhibit A, T12, page 136.

    [16] Exhibit A, T15, page 176.

18. The report of Dr Douglas that was made some months after the date of cancellation discusses the claims of the applicant in respect to his lower limbs:

    [The applicant] described the pain in his knee as “sledgehammer” in nature and was precipitated by walking for approximately 30 minutes or longer. The pain lasted for several hours and sometimes did not diminish over the day. He reported that it was not relieved by Paracetamol or Ibuprofen. However, Mr Colbert advised that he was currently taking no pain medication for this pain...

    Mr Colbert today reported that he was able to shower independently. He dresses independently although some difficulty with lower limbs. He is feeding himself. He reported that he engages minimally with household chores within the household in which he lives. He has returned to driving, but his licence has expired and, at the time of review, he was not currently driving...

    He is able to walk unaided with no aid. There is the slightest suggestion of a left sparing antalgic gait consistent with previous injury to the left knee. He is able to rise from an armless chair but with significant difficulty. Toe and heel stand are satisfactory and the Romberg test was negative....

    He has continuing pain in the left knee and right foot consistent with previous fractures described at the time of the motor vehicle accident in 2002. However, Mr Colbert is not using analgesic medication, and the intensity of that pain is difficult to assess...

    I am willing to see him again in [two to three] months if this is needed for reassessment of his pain status. However, I did explain to Mr Colbert that, as he has tried most of the routine pain medications and found these to not be helpful, it is likely that my management will be simply to refer him onto a specialist pain management clinic. I note, however, that Mr Colbert is currently independently mobile and engaging in his community using no pain medications.

19. We do not accept the applicant’s lower limb condition as being fully treated at the date of cancellation. The applicant had ceased the treatment recommended by his treating general practitioner. If the applicant is still experiencing pain then it is reasonable for the applicant to follow the advice that was given to him by Dr Douglas in July 2014 to seek referral to a specialist pain management clinic. At the present time, this advice has not been followed. Until this is done, we do not consider that the lower limb conditions of the applicant can be regarded as being fully treated.

20. There is also contradictory evidence as to whether the lower limb conditions of the applicant allow the applicant to work unaided. Dr Douglas reported on 31 July 2014 that the applicant walks unaided. However, during the hearing the applicant stated that he has a need to use a walking aid.

21. We have concluded the lower limb conditions of the applicant cannot be regarded as fully diagnosed, fully treated and fully stabilised. In these circumstances, we cannot assign a rating under Table 3 – Lower Limb Function of the Impairment Tables for the lower limb conditions of the applicant.

    Back/spinal condition

22. The applicant complains of back pain. Dr Rafiei, in his report of 3 January 2012, states that the applicant “cannot tolerate long sitting, standing, bending”.[17] In his report of
    

    [17] Exhibit A, T12, page 135.

    [18] Exhibit D, page 2.

    31 July 2014, Dr Douglas states that the applicant “has good active range of motion of the upper limbs, although he does complain of back pain when raising his hands above his head”.[18] There is no evidence of any orthopedic examination of the spine of the applicant and we do not regard the condition to be fully diagnosed. Until the applicant has followed the recommendations of Dr Douglas to seek referral to a pain management specialist, we cannot regard the spine condition as being fully treated. In these circumstances we cannot assign a rating under Table 4 – Spinal Function of the Impairment Tables for the spine condition of the applicant. We mention that in his latest report of 4 June 2013, Dr Rafiei makes no mention of the spinal condition as having any impact on the functioning of the applicant.

    CONCLUSION

23. We have concluded that the applicant is not qualified to receive DSP because at the date of cancellation he did not satisfy s 94(1)(b) of the Act. It is therefore unnecessary to consider whether the applicant had a continuing inability to work at the date of cancellation.

24. We consider that the applicant does have some valuable skills and should be provided with training to assist him to join the workforce. Ms Clancy mentioned that the applicant was unable to complete a Certificate in Information Technology because of travel limitations. Dr Douglas mentioned that the applicant was successful in passing his assessments at that time and had completed 75 per cent of the assessment for the Certificate. We consider that the applicant should be afforded assistance to complete the assessment for the Certificate.

    DECISION

25. We affirm the decision under review.

I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member and Senior Member A C Cotter

............................[Sgd]............................................

Associate

Dated 24 December 2014

Date of hearing	24 November 2014
Applicant	In person
Solicitors for the Respondent	Joe Guthrie, Department of Human Services