JGJC and Secretary, Department of Social Services

[2015] AATA 459

[2015] AATA 459

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/3211
Re	JGJC
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	30 June 2015
Place	Brisbane

The Tribunal affirms the decision under review.

................................[SGD]...................................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – Program of support not completed - Whether applicant had a “severe impairment” during the assessment period – Whether 20 impairment points can be allocated under a single table – Decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

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

REASONS FOR DECISION

Senior Member Bernard J McCabe

30 June 2015

1. The applicant lodged a claim for the disability support pension (“the DSP”) on 13 September 2012. That claim was unsuccessful, and he lodged a further claim in 2014 that succeeded with effect from 20 May 2014. These proceedings arise out of the 2012 claim for the DSP. If the applicant is successful in his claim, he will be entitled to recover the amounts he would have received between 13 September 2012 and 19 May 2014.

2. Centrelink, on behalf of the Secretary of the Department of Social Services, rejected the applicant’s 2012 claim because it concluded the applicant did not satisfy the so-called medical criteria in s 94(1) of the Social Security Act 1991 (“the Act”). The applicant has asked this Tribunal to revisit that decision.

3. These proceedings were originally listed for hearing in the Sarina Courthouse on 20 May 2015 but the applicant applied for an adjournment because he was still trying to gather medical evidence. The matter was relisted for hearing in Brisbane on 19 June 2015 on the basis that the applicant was scheduled to be in town during that period for other reasons. He was directed to file any further medical evidence that he wished to rely upon at the hearing by 22 April 2015. He did not comply with that direction. He finally emailed a large number of medical documents overnight on 18-19 June 2015. Mr Burgess (who represented the Secretary) and I had to digest those documents before the hearing commenced.

4. After hearing the applicant and Mr Burgess and considering all of the documents, I am not satisfied the applicant is able to meet the criteria in s 94(1) of the Act. That means his claim for the DSP cannot succeed. The decision under review must therefore be affirmed. I explain my reasons below.

   What the rules say

5. The Tribunal considers the decision afresh upon review. In doing so, it “steps into the shoes” of the original decision-maker in the sense that the Tribunal has the same powers – and is subject to the same limits – as the original decision-maker. In other words, I must apply the rules laid down in the Act. I am not allowed to modify or relax the operation of the rules established by Parliament.

6. The Tribunal is entitled to consider any material that is relevant, even if it was not before the original decision-maker or the Social Security Appeals Tribunal. But there is a limit in cases like this: the legislation requires that I assess the applicant’s condition at a point in time by reference to what was known, or was knowable, at that time. In this case, I must focus on a 13 week period following the date of the claim on 13 September 2012. I will refer to that period as the assessment period.

7. The medical criteria are set out in s 94(1) of the Act. (Section 94(1) actually includes a number of requirements, but I refer in particular to those set out in sub-sections (1)(a), (b) and (c).) The first criterion is straight-forward: it requires that I be satisfied the applicant has one or more physical, intellectual or psychiatric impairments. The applicant in this case clearly meets the requirement: there is evidence he suffers from:

   ·post-traumatic stress disorder (“PTSD”);

   ·lumbar spondylosis;

   ·cervical spondylosis;

   ·a right knee condition;

   ·damage to the left ulnar nerve;

   ·laryngeal papillomas; and

   ·a left shoulder condition.

8. The second requirement is that the applicant must be assigned at least 20 points under one or more impairment tables published in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the “Determination”). There is an impairment table relating to each aspect of the functioning of the body. The impact of a condition on a person’s ability to function is assessed with reference to descriptors in the relevant table. Importantly, the Determination makes it clear that an impairment rating must not be assigned unless the decision-maker is satisfied having regard to the medical evidence that the condition in question is:

   ·fully diagnosed by an appropriately qualified medical practitioner;

   ·fully treated having regard to treatment options that are reasonably available; and

   ·fully stabilised.[1]

   [1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, s 6.

9. I will have more to say about this criterion below. The third criterion is set out in s 94(1)(c). The decision-maker must be satisfied the applicant has a continuing inability to work. As a practical matter, that means the applicant must have actively participated in a program of support for the requisite time in accordance with s 94(2)(aa) unless the applicant suffers from a severe impairment within the meaning of s 94(3B). (The requirement for active participation in a program of support can be waived if an applicant is deemed unable to participate in that program, but there is no suggestion that happened in this case, and I am not satisfied the applicant would be unable to participate in a program of support in any event.) A severe impairment is an impairment that results in at least 20 impairment points being allocated under a single impairment table.

   The applicant cannot satisfy s 94(1)(c) unless he has a severe impairment

10. The applicant in this case has actively participated in a program of support for under 15 months in the 36 month period before the date of the application: see exhibit one at p 284. There is no suggestion his conditions prevented him from continuing in that program, or that he was “exited” from it. That means he is unable to satisfy the requirement in s 94(1)(c) unless it was appropriate that he be assigned at least 20 impairment points under one table at the relevant time. The fact he was assigned 20 points under one table at a later time, or that he may have been assigned a total of more than 20 points under several tables during the assessment period, will be irrelevant for present purposes.

    Did the applicant suffer from a severe impairment during the assessment period?

11. I have already referred to the fact the applicant claims to suffer from a number of impairments. I should say at the outset that it has proven difficult to reconstruct his conditions in late 2012 because of the state of the evidence. The applicant says he was denied the opportunity to present evidence in relation to a number of those conditions. He was allowed ample opportunity to gather that evidence for the purposes of this review, but a lot of the material he did provide does not assist.

12. Some of the applicant’s conditions can be dealt with briefly. There is no suggestion in the evidence that the applicant would be assigned 20 impairment points under table 8 which deals with the throat condition. The Secretary points out the condition was not fully treated and stabilised at the time: the applicant’s general practitioner noted on 9 August 2013 that the applicant had been referred for surgery. The applicant indicated at the hearing that he was not inclined to pursue further surgical intervention. Even if I accept the condition was fully diagnosed, treated and stabilised, there is no basis for a finding that the condition would attract 20 points under the relevant table.

13. The applicant also referred to difficulties with the ulnar nerve in his left arm. That condition was not addressed in the decision of the Social Security Appeal Tribunal because of the absence of evidence. In these proceedings, the applicant produced a letter from his physiotherapist dated 11 June 2015 which included a certificate recording that he suffers from “left ulnar nerve dysfunction post nerve transposition surgery”. The only other mention of the condition was a passing reference in a treating doctor’s report from the applicant’s orthopaedic surgeon: exhibit one at p 178. There is no indication of the treatment options or the progress of the applicant’s recovery or the prognosis. There is no information upon which an assessment could be made having regard to the relevant impairment table. The applicant was given the opportunity to provide this essential information, but he did not do so. I am therefore unable to assign an impairment rating in respect of his wrist condition.

14. The applicant also spoke about his left shoulder condition that was sustained in 1999. He said he experienced a full-thickness tear in the supraspinatus tendon which has never been repaired. There is certainly evidence of a tear but limited evidence describing its impact. Even if I accepted the applicant’s account of his symptoms in the evidence, there is no basis for concluding he conformed to the descriptors applicable to a person experiencing a severe functional impact that would result in the allocation of 20 points.

15. The applicant’s right knee condition raises more issues. The Secretary concedes the condition was, at the relevant time, fully diagnosed, treated and stabilised. But the Secretary says the condition did not result in the allocation of any points under table 3, which deals with lower limb function. The Secretary relied on a remark made by the applicant’s treating doctor, Dr Gallie, in correspondence addressed to the referring doctor and dated 6 December 2012. The letter is reproduced in exhibit one at p 121. In that letter, the doctor notes the applicant injured his knee about 30 years ago and underwent surgery before observing:

    He has had intermittent symptoms in his knee since but he has had a number of episodes over the past few years where his knee has played up a lot. He describes varying pain in his knee that is mostly activity related. Things have not been too bad over the past two months. He has remained very active over the years including running regularly.

16. The Secretary argued the last comment in that passage – to the effect the applicant was able to run – suggested zero points should be allocated. The rest of the report, which records the examination, diagnosis and treatment plan, does not suggest the applicant is seriously impaired. Dr Gallie wrote to the applicant on 19 August 2014 and warned that those comments should not be taken out of context. Dr Gallie said the remarks were meant for the general practitioner and did not refer to specific events, activities or times. At the hearing, the applicant gave a different account: he suggested he was seriously debilitated and was using crutches during the assessment period. But his evidence was not consistent. He said he was able to walk to his local supermarket and buy items that he carried home during the assessment period. He also told the Social Security Appeals Tribunal that he did not meet the 20 point rating under table 3: see submissions reproduced in exhibit one at p 250. I note he also told the authorised review officer that he walked without an aid: exhibit one at p 235.

17. The notes to table 3 confirm the decision-maker must not rely on self-reporting by the applicant. There must be corroborating evidence of the person’s impairment. In this case, there is little in the way of consistent corroborating evidence. But even if the applicant’s self-reports were regarded as sufficient, the fact he was able to walk around a shopping centre and walk from his home to the shopping centre without assistance means he cannot be awarded 20 points under table 3.

18. The applicant’s spinal condition does not meet the requirements for 20 points either. He experiences both cervical spondylosis and lumbar spondylosis. Both conditions must be assessed under table 4. The best evidence in relation to the cervical spine at the relevant times lies in the report from Dr Cleaver, the treating spinal surgeon, dated 23 July 2013. That report – which was included in the bundle of material provide by the applicant immediately before the hearing - concludes the applicant’s range of motion was “guarded but essentially full”. (The applicant does have difficulty with overhead activities, but the evidence confirms that is the product of a shoulder injury, not the neck condition.) The Secretary conceded the applicant may be entitled to 5 points under that relevant table on account of his difficulties, but the report of Dr Cleaver does not suggest that is appropriate. The Secretary says the lumbar spine condition was not fully treated and stabilised at the relevant time; there is certainly a paucity of medical evidence in relation to that condition, even after the applicant was given the opportunity to provide additional material. I am not satisfied I have enough material to form a view about the state of the applicant’s lumbar spine and the impact of that condition on his functioning. At any rate, I have no evidence that would provide a basis for finding he was entitled to 20 impairment points under the relevant table.

19. That leaves the applicant’s PTSD with symptoms of anxiety. I am satisfied the condition should not be rated because it was not fully treated and stabilised at the relevant time. (The Secretary doubted the condition was fully diagnosed by an appropriately qualified medical practitioner. There was a question over whether the diagnosis reported by the applicant’s treating general practitioner was supported with advice from a clinical psychologist: there was some evidence that the applicant only saw a psychologist. While the distinction may be important, I accept there is enough evidence from a clinical psychologist to satisfy me the diagnosis was properly made at the relevant time.)

20. The applicant’s treating general practitioner, Dr MacKenzie, indicated in his report dated 7 December 2012 (exhibit one at p 126) that the applicant was yet to see a psychologist for treatment. The applicant did not see the psychologist until May 2013. The psychologist indicated in her report dated 12 May 2015 (exhibit two) that the treatment has been complicated by other factors – but she was not in a position to offer that assessment until after she had commenced treatment. At the end of 2012, none of that was clear: treatment had been recommended and was pending. That means the condition was not at that point fully treated. An impairment rating could not be assigned.

    Conclusion

21. I am unable to conclude on the evidence before me that the applicant experienced a severe impairment having regard to any one impairment table during the assessment period. The applicant was given extra time to obtain relevant evidence, but nothing he produced assisted his case. Given he had not engaged in a program of support for the minimum period or been excused from that requirement, he is unable to satisfy the medical criteria in s 94(1) of the Act. The decision under review must therefore be affirmed.

22. There is one further matter. The applicant provided the Tribunal with copies of correspondence he has had with the Department of Human Services and the Office of the Australian Information Commissioner in relation to a job capacity assessment that had been carried out in connection with the applicant’s claim. The report wrongly suggests the assessment was carried out in person. It was actually completed by telephone. The evidence does not make any difference to my conclusions.

23. The decision under review must be affirmed.

I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

...............................[SGD]...............................

Associate

Dated 30 June 2015

Date of hearing	19 June 2015
Applicant	In person
Advocate for the Respondent	Mr A Burgess Sparke Helmore