Johnson and Secretary, Department of Social Services (Social services second review)

[2017] AATA 1095

Johnson and Secretary, Department of Social Services (Social services second review) [2017] AATA 1095 (17 July 2017)

Division:GENERAL DIVISION

File Number:           2016/6744

Re:Graham Johnson

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member P E Nolan

Date:17 July 2017

Place:Brisbane

The decision under review is affirmed.

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Senior Member P E Nolan

CATCHWORDS

SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant had conditions that were fully diagnosed, treated and stabilised during relevant period – whether Applicant had 20 impairment points – ischaemic heart disease – chronic obstructive pulmonary disease – spinal disorder – conditions not permanent for the purposes of the act - unable to assign an impairment rating - decision under review is affirmed

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

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

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

SECONDARY MATERIALS

The Guide to Social Security Law

REASONS FOR DECISION

Senior Member P E Nolan

17 July 2017

INTRODUCTION

1. Graham Johnson (the “Applicant”) lodged a claim for the Disability Support Pension (the “DSP”) on 15 February 2016 listing his medical conditions as “blocked coronary arteries, upper & lower back problems, arthritis (all over)” and noted “ongoing treatment for melanoma” and “lungs working at 50% capacity”.[1]

   [1] Exhibit 1, T Documents, T10 Claim for DSP dated 15 February 2016, p. 58-90.

2. The issue for the Tribunal to determine is whether the Applicant qualified for DSP at the date of his claim, 15 February 2016 or within 13 weeks thereafter, being up until 16 May 2016.

   HISTORY OF THE MATTER

   3.       On 15 February 2016 the Applicant lodged a claim for DSP with Centrelink in writing.[2]

   [2] Exhibit 1, T Documents, T10 Claim for DSP dated 15 February 2016, p. 58-90.

   4.       On 4 May 216 the Applicant attended, in person, an assessment with a Job Capacity Assessor (“JCA”) who subsequently produced a report.[3]

   5.The claim was rejected by Centrelink on the basis the Applicant did not have an impairment rating of 20 points or more.[4] A Centrelink Authorised Review Officer reviewed and affirmed the rejection on the same basis.[5] On further review by the Social Services and Child Support Division of the Administrative Appeals Tribunal the decision was again affirmed.[6]

   6.On 12 December 2016 the Applicant, dissatisfied with the outcome and stating that more evidence could be provided, applied for this review by the General Division of the Tribunal.[7]

   ISSUES FOR THE TRIBUNAL

   7.The issues for me to consider are:

   (a)whether, during the relevant period, the Applicant had a physical, intellectual or psychiatric conditions which was fully diagnosed, treated and stabilised;

   (b)whether, at the relevant time, the Applicant’s conditions warranted an impairment rating of 20 points or more under the Impairment Tables, and if so;

   (c)whether the Applicant has a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and

   (d)whether the Applicant has a continuing inability to work.

   [3] Exhibit 1, T Documents, T12 Job Capacity Assessment Report dated 4 May 2016, p.93-98.

   [4] Exhibit 1, T Documents T13 Rejection of claim for DSP, p.99.

   [5] Exhibit 1, T Documents, T17 Authorised Review Officer decision and notes dated 27 June 2016, 108-15.

   [6] Exhibit 1, T Documents, T2 Decision of the Social Services and Child Support Division dated

   [7] Exhibit 1, T Documents T1 Application for Review p.1-2.

   8.       Before determining the above, it is convenient to set out the relevant legislative framework.

   LEGISLATIVE FRAMEWORK

   9. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.

   10.     The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 15 February 2016). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[8]  Therefore, the relevant period for considering whether the Applicant qualified for DSP is between 15 February 2016 and 16 May 2016 (“the Relevant Period”). The Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period.[9]

   [8] See ss 41 and 42, and cl 3 and cl 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999

   [9] See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

   11.     The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).[10] The Tables are function based rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[11] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[12]

   [10] See s 26(1) of the Act.

   [11] See s 5(2) of the Determination.

   [12] See s 6(1) of the Determination.

   12.     Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results is more likely than not, in light of the available evidence, to persist for more than two years.[13] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not to persist for more than two years.[14]

   [13] See s 6(3) of the Determination.

   [14] See s 6(4) of the Determination.

   13.     In determining whether a condition has been fully diagnosed and fully treated, the following facts are to be considered:

   (a)whether there is corroborating evidence of the condition;

   (b)what treatment or rehabilitation has occurred in relation to the condition; and

   (c)whether treatment is continuing or is planned in the next two years.[15]

   [15] See s 6(5) of the Determination.

   14.     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:

   (c)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

   (d)there is a medical or other compelling reason for the person not to undertake reasonable treatment.[16]

   [16] See s 6(6) of the Determination.

   15.     “Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[17] An impairment rating can only be assigned in accordance with the rating points in each Table.

   [17] See s 6(7) of the Determination.

   16. In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.

   CONSIDERATION

   Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?

   The Respondent accepted the Applicant had impairments for the purposes of section 94(1)(a) of the Act. However, the Respondent contended the Applicant’s impairments did not attract a rating of 20 points or more under the Impairment Tables and the Applicant did not satisfy section 94(1)(b) or (c) of the Act.[18] I accept the Applicant had impairments for the purpose of section 94(1)(a) of the Act.

   [18] Respondent’s Statement of Issues, Facts and Contentions.

   Ischaemic Heart Disease – Table 1 – Physical Exertion and Stamina

3. The Applicant suffers ischaemic heart disease. The diagnosis is confirmed in a discharge statement from the Princess Alexandra Hospital.[19] The condition is not permanent for the purposes of the Act.

   [19] Exhibit 1, T Documents, T7 PA Hospital Discharge Statement dated 7 December 2015, p.48-53.

4. The JCA concluded the Applicant’s ischaemic heart disease was fully diagnosed, but not treated and stabilised.[20] The Applicant gave evidence surgeons had considered performing stent insertion but that they had concluded the risk was too high due to the Applicant’s blocked coronary arteries.

   [20] Exhibit 1, T Documents, T12 Job Capacity Assessment Report dated 4 May 2016, p.93-95..

5. The Applicant was the subject of an ongoing specialist review, the Applicant’s response to further treatment is unknown. This was supported by Dr Chao’s evidence to the JCA.[21] I understand that the doctor’s view the condition is permanent in the sense that it will remain with the Applicant for his lifetime. However, the legislation if more specific in what it requires to consider a condition permanent.

   [21] Exhibit 1, T Documents, T7 PA Hospital Discharge Statement dated 7 December 2015, p.48-53.

6. On the evidence before me, as there is further recommended treatment available to the Applicant. There is not sufficient evidence to conclude that the Applicant’s symptoms were ‘unlikely’ at the relevant period to show significant improvement within a two year period.

7. The Applicant’s condition cannot be found to be fully diagnosed, treated and stabilised. Therefore, no impairment points can be assigned to this condition.

   Chronic Obstructive Pulmonary Disease (“COPD”) – Table 1 – Physical Exertion and Stamina

8. The Applicant has COPD, the condition was confirmed in a discharge statement from the Princess Alexandra Hospital.[22] However, the condition is not permanent for the purposes of the Act.

   [22] Exhibit 1, T Documents, T7 PA Hospital Discharge Statement dated 7 December 2015, p.48-53.

9. The JCA considered the Applicant’s COPD, addressing more specifically the Applicant’s Chronic Pulmonary Heart Disease, as “fully diagnosed but not treated and stabilised”.[23] The Applicant’s doctor did not support surgical intervention due to the Applicant’s blocked arteries,[24] but that is not to say that there were no treatment options for the condition.

   [23] Exhibit 1, T Documents, T12 Job Capacity Assessment Report dated 4 May 2016, p.95.

   [24] Exhibit 1, T Documents, T12 Job Capacity Assessment Report dated 4 May 2016, p.95.

10. The Applicant gave evidence that in connection with COPD he suffers from a lung condition, and provided a medical certificate from Dr Ian Mannion in support. The medical certificate states the Applicant had 61 percent of normal lung function with no increase post ventolin. The doctor labelled this condition as permanent.

11. Although I do not doubt Dr Mannion’s view I am not assisted by it. The certificate speaks to the diagnosis of COPD which in this matter is not contentious. A distinction needs to be drawn between the doctor’s use of the word permanent and the meaning which the legislation prescribes, namely requiring the condition to be fully treated, diagnosed and stabilised before it can be deemed permanent.

12. There is insufficient medical evidence, or spirometer results, before the Tribunal to establish a diagnosis, prognosis or the function limitations in relation to the COPD. As such the condition is fully diagnosed but not treated and stabilised. Therefore, the condition cannot be considered permanent for the purpose of the Act and can not be assigned an impairment rating.

    Spinal Disorder – Table 4 – Spinal Function

13. The Applicant complains of chronic back pain. I am left with no doubt that he suffers this.

    28.The JCA considered there to be “insufficient information to determine if condition is fully diagnosed, treated and stabilised”. The JCA noted that the Applicant does have a future treatment plan (i.e. epidural injection) in place and the outcome of this is unknown, concluding the condition was fully diagnosed but not fully treated or stabilised.[25]

    [25] Exhibit 1, T Documents, T12 Job Capacity Assessment Report dated 4 May 2016, p.93-94.

    29.Although I do not question the legitimacy of the Applicant’s claim of pain I find the JCA’s analysis correct, due to the lack of treatment within the relevant period or information to suggest otherwise I am led to the same conclusion that the condition is fully diagnosed but not fully treated or stabilised. Therefore, the condition can not be categorised as permanent for the purpose of the Act. No impairment rating can be assigned under the tables.

    The Applicant’s oral submissions

    30.At the hearing the Applicant told the Tribunal he can hang out washing, can walk a long way, can cook and do the shopping. The Applicant conceded that his answers to the Respondent’s questions in cross-examination demonstrate he would not qualify for DSP in this appeal. Although I have not had to consider impairment in depth due to the process section 94 prescribes, on different grounds I have reached the same conclusion.

    Summary of conditions

    31. As the Applicant’s conditions cannot attract an impairment rating under the Tables, due to not satisfying the requirements under section 94(1)(b) of the Act. He therefore does not qualify for DSP in this application.

    Continuing Inability to Work?

14. Given that this Applicant does not reach 20 points or more at the Relevant Period, it is not necessary for me to consider whether he satisfies the remaining criteria for DSP.

    An additional observation

    33.     The Applicant has failed to reach 20 points or more via this application. I note his conditions may have worsened or become fully diagnosed, treated and stabilised since the Relevant Period for this DSP claim. The Applicant may benefit from lodging a fresh application for DSP with additional and more recent medical evidence.

    CONCLUSION

    34.     The Applicant does not qualify for DSP because his conditions cannot be assigned impairment points during the Relevant Period.

    35.     The decision under review is affirmed.

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of
Senior Member P E Nolan

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Associate

Dated: 17 July 2017

Date of hearing:

23 May 2017

Applicant:

Solicitors for the Respondent:

In person

Ms Claire Campbell
Department of Human Services

  22 November 2016, p.3-7.

(Cth).

[2012] AATA 922 at [34]