Johns and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 909

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 909

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2704

GENERAL ADMINISTRATIVE DIVISION		)
Re		LEON CRAIG JOHNS

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member R W Dunne

Date26 May 2008

PlaceAdelaide

Decision For the reasons given orally at the hearing, the Tribunal affirms the decision under review.

..............................................

R W DUNNE
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – claim for Disability Support Pension – physical, intellectual or psychiatric impairment – conditions diagnosed, but not fully investigated, treated and stabilised – total impairment rating less than 20 points – decision affirmed.

Social Security Act 1991 s 94

REASONS FOR DECISION

26 May 2008   Senior Member R W Dunne   

1.      The applicant, Mr Leon Johns, has requested written reasons for my decision, which I delivered orally at the conclusion of the hearing of this matter.  The following is an edited version of my reasons.  However, in order to put my conclusion and findings in context, I will now supplement my oral reasons by referring to certain background facts which were not in contention, and to the relevant legislative scheme.

2.      Mr Johns lodged a claim for Disability Support Pension (“DSP”) with the respondent (“Centrelink”) on 13 November 2006.  The claim was accompanied by a treating doctor’s report from Dr J Urlwin.  Dr Urlwin’s finding was that the applicant had medical conditions of alcohol dependence and depression.  Following a Job Capacity Assessment, his claim was rejected and that decision was affirmed by an Authorised Review Officer of Centrelink.  Mr Johns applied to the Social Security Appeals Tribunal (“SSAT”) for review of Centrelink’s decision and, on 23 May 2007, the SSAT affirmed the decision under review.  Mr Johns has applied to this Tribunal for a review of the decision of the SSAT.

3. The hearing with Mr Johns, who represented himself, was by telephone and Mr Anthony Parker (from Centrelink Legal Services Branch) appeared for the respondent. Mr Johns gave evidence and there were no witnesses for the respondent. The T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal and are referred to in these reasons as Exhibit R1.  Also before the Tribunal were the following reports:

·report of Dr G Arthurson, medical practitioner, received by the Tribunal on 30 January 2008 (Exhibit A1);

·report from Mr Derek Macpherson (Case Manager, Personal Support Programme), Baptist Community Services (SA) Inc, dated 8 October 2007 (Exhibit A2); and

·report from Mr Danny Height, clinical nurse, Barossa Drug and Alcohol Service, dated 23 January 2008 (Exhibit A3).

4.      In his claim for DSP, Mr Johns listed his medical conditions as:

·back problems;

·feet and leg pain;

·depression;

·drinking problems; and

·panic attacks.

5.      The treating doctor’s report of Dr Urlwin dated 6 November 2006 (Exhibit R1, T11 at pages 60-67) made the following points about Mr Johns’ medical conditions:

(a)      Alcohol dependence.  This involved heavy drinking and abnormal liver function in 2001.  Since then, there had been periods of abstinence and relapse.  He was unreliable and suffered from poor concentration and lethargy.  The condition had been diagnosed in August 2001.

(b)      Depression – panic attacks.  He suffered from despondency and lack of motivation, which had been aggravated by unemployment.  The condition had been diagnosed in 2003.

6.      In the Job Capacity Assessment Report of Ms Kelly Dunbar dated 1 December 2006 (Exhibit R1, T12 at pages 68-73), Mr Johns’ medical conditions were given as alcohol dependence, depression and lower limb deficiencies.  In each case, the conditions were viewed as temporary.  In her report, Ms Dunbar assessed the medical conditions as limiting his work capacity.  However, she stated that the conditions were not considered optimally treated.  The assessment of Ms Dunbar in her report was that Mr Johns’ work capacity was as follows:

·temporary capacity for work – 0-7 hours per week;

·current capacity for work – 30+ hours per week;

·future capacity with intervention – 30+ hours per week; and

·future capacity without intervention – 30+ hours per week.

issues for the tribunal

7. The issues for the Tribunal, at the time he made his claim for DSP, under s 94 of the Social Security Act 1991 (“Act”), are:

·Did Mr Johns have a physical, intellectual or psychiatric impairment?

·If so, did the impairment rate at least 20 points under the Impairment Tables contained in Schedule 1B of the Act?

·Did Mr Johns have a “continuing inability to work” within the meaning of s 94(1)(c) and s 94(2) of the Act?

legislation

8. Entitlement to DSP is to be found within the provisions of s 94 of the Act, which, when applied to Mr Johns’ claim, is reproduced relevantly as follows:

“94       Qualification for disability support pension

(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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

(d)      the person has turned 16; and

(e)      the person either:

(i)is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A)       is not an Australian resident; and

(B)       is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident; and

(f)the person is not qualified for disability support pension under section 94A.

(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a)the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

(b)      either:

(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a)      the availability to the person of a training activity; or

(b)the availability to the person of work in the person’s locally accessible labour market.

…

(5)      In this section:

training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

(a)      education;

(b)      pre-vocational training;

(c)      vocational training;

(d)      vocational rehabilitation;

(e)      work-related training (including on-the-job training).

work means work:

(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

(b)that exists in Australia, even if not within the person’s locally accessible labour market.

…”

background and evidence of applicant

9.      The background and facts of Mr Johns’ case are largely not in dispute and are summarised in the reasons for decision of the SSAT.  Mr Johns is 53 years of age.  He suffers from alcohol dependence, depression and lower limb impairment that cause considerable loss of function.  He also suffers from a lumbosacral spinal problem, from a gastric disorder controlled with medication and from liver disease that is not yet symptomatic.  He was unhappy with the treatment he had been receiving from his doctor and changed to Dr Arthurson.  In relation to his alcohol dependence, he commenced a Personal Support Programme in March 2007.  He has been receiving counselling and support from Baptist Community Services (SA) Inc since 2 March 2007, and has been attending counselling from Mr Danny Height, at the Barossa Drug and Alcohol Service, since 7 July 2007.  However, he has been receiving no treatment for his depression, only medication.  In relation to his lower limb problems, his doctors do not know what causes the problems.  Mr Johns finds that he can barely walk and finds it difficult to get up every day.  He has also experienced lower back pain, which has been an ongoing problem.  With this pain he has been unable to bend or lift heavy objects.  Dr Arthurson thought the pain may have been the cause of the problems with his feet.  He had CT scans and has three bulging discs in his lumbar spine.  He was given an epidural by Dr Arthurson, which helped to relieve the pain in his back , but had no impact on his legs and feet.

medical evidence

10.     In addition to the treating doctor’s report from Dr Urlwin, I have the reports of Dr G Arthurson (Exhibit A1), Mr Derek Macpherson (from Baptist Community Services (SA) Inc) (Exhibit A2) and from Mr Danny Height (from the Barossa Drug and Alcohol Service) (Exhibit A3).

Report of Dr G Arthurson

11.     The report of Dr Arthurson sets out Mr Johns’ current medications and his past medical history.  His medical conditions include depression, hypertension, sciatic pain, folate deficiency, vitamin B12 deficiency and campylobacter enteritis.  In addition, the Centrelink medical certificate prepared by Dr Arthurson (Exhibit R1, T14) diagnosed lumbosacral disc protrusion, back pain and sciatica.  These conditions were described as permanent and likely to persist.

Report of Mr D Macpherson

12.     In his report, Mr Macpherson states that Mr Johns has received counselling for his alcohol dependency.  He has been referred to a drug and alcohol worker with Barossa Community Health and will have regular contact with the worker in the future.  Mr Macpherson also states that Mr Johns should consult his doctor about obtaining referral to a psychologist for his depression.

Report of Mr D Height

13.     The report from Mr Height states that Mr Johns is making good progress with his treatment.  However, there is potential for him to “decompensate” if circumstances place too much pressure on him.  Mr Johns is also being treated for depression and is on anti-depressant medication.

consideration

Did Mr Johns have a physical, intellectual or psychiatric impairment?

14. In order to qualify for DSP, Mr Johns must satisfy the relevant requirements of s 94(1) of the Act. The evidence before me is that Mr Johns’ significant medical conditions are alcohol dependence, depression and lower limb impairment. He also suffers from a number of other less serious medical conditions. I am satisfied, and the respondent accepts that, at the time he made the claim for DSP, Mr Johns had a physical, intellectual or psychiatric impairment within the meaning of s 94(1)(a) of the Act.

Did Mr Johns’ impairments rate at least 20 points under the Impairment Tables?

15. The second requirement in s 94(1) is that Mr Johns’ medical conditions must attract an impairment rating of at least 20 points under the Impairment Tables set out in Schedule 1B of the Act (see s 94(1)(b) of the Act). The introduction to the Impairment Tables relevantly provides (in paragraphs 4, 5 and 6):

“4.  A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. …

5.  The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

6.  In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

what treatment or rehabilitation has occurred;

whether treatment is still continuing or is planned in the near future;

whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

…”

16.     On the evidence before me, I agree with the findings of the SSAT.  I am satisfied that Mr Johns’ alcohol dependence, depression, lower limb impairment and hand problems have not been fully investigated, treated and stabilised.  I am unable to allocate points from the Impairment Tables in respect of these conditions.  I am also satisfied that Mr Johns’ lumbosacral spinal problem, gastric disorder and liver disease, although they may be permanent, were not of sufficient documented severity for the allocation of an impairment rating under the Impairment Tables at the time he claimed DSP.  In the circumstances, Mr Johns’ combined rating under the Impairment Tables, in respect of the impairments that have been considered, is nil.  I am also satisfied that, on the evidence, none of the other medical conditions listed by Mr Johns in his claim for DSP require consideration. 

Did Mr Johns have a continuing inability to work because of the impairments?

17. Given my finding in relation to s 94(1)(b) of the Act, it is unnecessary to consider whether Mr Johns had a continuing inability to work within the meaning of s 94(1)(c)(i) and s 94(2).

18.     I sympathise with Mr Johns and the predicament in which he finds himself.  However, I note that several of the reports before me contain recommendations regarding further medical opinions or treatment that might be of assistance to him in the event that he re-applies for DSP.

decision

19.     The Tribunal affirms the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

Signed:         .....................................................................................
  Associate

Date of Hearing  26 May 2008
Date of Decision  26 May 2008
Advocate for the Applicant       Self represented

Advocate for the Respondent   Mr A Parker

Centrelink Legal Services Branch