Jason Calder and Secretary, Department of Social Services
[2013] AATA 869
[2013] AATA 869
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/2749
Re
Jason Calder
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 6 December 2013 Place Brisbane The Tribunal affirms the decision under review.
........................................................................
Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Relevant period for assessment – Psychiatric impairment – Impairment Tables – Conditions not fully treated, stabilised and permanent in the relevant period – No allocation of impairment rating – Applicant not qualified for disability support pension during the relevant period – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 26, 27, 94
Social Security (Administration) Act 1999 (Cth) s 13 Sch 2
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr R G Kenny, Senior Member
6 December 2013
BACKGROUND
After contacting Centrelink on 19 December 2012 about disability support pension (“DSP”), Mr Jason Calder lodged a claim for that payment on 21 December 2012. DSP is a social security payment made under the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).
Mr Calder’s claim was rejected by Centrelink on 14 January 2013. That decision was affirmed by an authorised review officer from Centrelink on 21 February 2013 and, in turn, by the Social Security Appeals Tribunal on 1 May 2013.
On 20 June 2013, Mr Calder again contacted Centrelink about DSP. His subsequent claim for DSP was granted with effect from 20 June 2013. The issue for determination in this matter is whether Mr Calder meets the qualifying requirements for DSP between
19 December 2012 and 19 June 2013.
LEGISLATION AND SUBMISSIONS
The qualifications for DSP are set out in s 94 of the Act. It is common ground that
Mr Calder meets the age and residency requirements of that provision and has impairment in relation to a psychiatric condition. The remaining requirements in s 94 of the Act, and the matters in issue, are:
·whether Mr Calder has an impairment rating of 20 points or more which is calculated under the Impairment Tables[1] in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”) as required by s 94(1)(b) of the Act; and, if so
·whether he has a continuing inability to work as required by s 94(1)(c)(i) of the Act.
[1] See ss 26 and 27 of the Act.
To qualify for DSP, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the initial claim or in the period of 13 weeks from the day of the claim (“the relevant period”).[2] As Mr Calder’s formal claim was made within 14 days of his initial contact with Centrelink, the claim may be taken to have been made on
19 December 2012.[3]
[2] See Sch 2 cl 3 and cl 4 of the Administration Act.
[3] See s 13 of the Administration Act.
The requirements to be followed in applying the Impairment Tables are set out in Pt 2 s 6 of the Determination which is headed Rules for applying the Impairment Tables. That section reads:
6 Applying the Tables
Assessing functional capacity
(1) 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.
Applying the Tables
(2) 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.
Note: For additional information that must be taken into account in applying the Tables see section 7.
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(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.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c) the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(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.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
Impairment has no functional impact
(8) The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9) There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a) acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
Mr Ashley Burgess, for the respondent, conceded that Mr Calder had a psychiatric impairment from depression and bi-polar disorder. He also conceded that those conditions were fully diagnosed, treated and stabilised by the time of his second claim for DSP. However, Mr Burgess submitted that, as at 19 December 2012 and in the following 13 weeks, they were not fully diagnosed, treated and stabilised and, therefore, not permanent so that a rating was assignable to them under the Impairment Tables. Accordingly, he submitted, Mr Calder was not qualified for DSP earlier than
20 June 2013.
Mr Calder submitted that his conditions were long standing and had been permanent in December 2012. He submitted that all of the relevant medical evidence should be taken into account to demonstrate that DSP was payable to him from that time.
CONSIDERATION
The medical evidence obtained during the relevant period comprised reports, dated
21 December 2012 and 7 January 2013[4] from Mr Calder’s treating doctor, Dr John Harland; a certificate from Dr Harland, dated 7 January 2013; a report, dated 21 January 2013, from psychiatrist Dr Petros Markou; and a certificate from Dr Markou, dated 26 February 2013.
[4] This was incorrectly dated 7 January 2012.
Before coming to Queensland in 2012, Mr Calder lived in Western Australia and medical reports obtained there included a report, dated 13 September 2011 from psychiatrist
Dr Alastair Bennett. Also in evidence were reports and certificates from previous treating doctors, Dr Mostyn Hamdorf, dated 30 August 2011, 16 September 2011 and 5 January 2012; Dr Andrew Lill, dated 28 August 2012; and Dr Kim Espinos, dated 19 July 2011.
Dr Harland diagnosed “major depression with suicidal ideation” and “bipolar disease”.[5] He described past treatment as involving multiple different antidepressants, with planned treatment involving further psychiatric referral.[6] He also described both conditions as “temporary”.[7] On 7 January 2013, Dr Harland referred Mr Calder to another psychiatrist, Dr Stephen Geoghegan.[8]
[5] Exhibit 1, p. 115.
[6] Exhibit 1, p. 107.
[7] Exhibit 1, p. 115.
[8] Exhibit 1, p. 114.
In his report, Dr Markou referred to the history of Mr Calder’s psychiatric conditions and wrote:[9]
As far as treatment goes, I have asked him to have blood tests for Valpro levels and a general screen, and I have asked him to start on Prozac 20mg mane, a medication he has to this point not been on. I am reviewing him again in 4 weeks.
[9] Exhibit 1, p. 123.
In his certificate,[10] Dr Markou described the conditions as “permanent” with an “uncertain” prognosis. He considered that it “was likely to deteriorate within the next
2 years”.
[10] Exhibit 1, p. 134.
In the earlier reports, reference is also made to treatment options. Dr Bennet identified alcohol misuse as a matter which needed to be dealt with in the first instance and he noted that Mr Calder was to undergo an “alcohol detox” in hospital in September 2011, after which he could be re-referred for a fresh assessment and consideration of diagnosis and treatment options.[11] In his evidence, Mr Calder agreed that he had completed the detoxification process at that time.
[11] Exhibit 1, p. 69.
As I read the medical evidence, Mr Calder’s psychiatric conditions were fully diagnosed in the relevant period. However, the evidence does not support them as being fully treated and stabilised during that time. That was the opinion of the assessor who completed a Job Capacity Assessment Report on 8 January 2013. Therein, the assessor referred to the reports set out above and also noted the further referral, during the relevant period, by Dr Harland to another psychiatrist.[12]
[12] Exhibit 1, p. 117.
I am satisfied that Mr Calder’s psychiatric conditions were not fully treated and stabilised during the relevant period and, accordingly, no rating may be allocated to him under the Impairment Tables. He did not satisfy the qualifying requirements for DSP during the relevant period. It is not necessary for consideration to be given, under s 94 of the Act, to his capacity for work.
Pursuant to his subsequent claim for DSP in June 2013, additional medical evidence was obtained by the respondent which demonstrated that he met the requirements of s 94 of the Act at that time. As a result of that later claim, DSP was payable to Mr Calder from 20 June 2013. However, I am satisfied that it was not payable to him from an earlier date.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member ........................................................................
Associate
Dated 6 December 2013
Date of hearing 12 November 2013 Applicant In person Solicitor for the Respondent Mr Ashley Burgess, Departmental Advocate
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