Jon Fletcher and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 11

[2013] AATA 11  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/3427
Re	Jon Fletcher
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Deputy President P E Hack SC
Date	11 January 2013
Place	Brisbane (heard in Lismore)

The decision is affirmed.

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Deputy President P E Hack SC

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and entitlements – disability support pension – osteoarthritis of lower back – lack of evidence as to extent of loss of normal range of movement – generalised anxiety disorder/depression – condition not fully diagnosed, treated or stabilised – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth) s 94, Sch 1B

REASONS FOR DECISION

Deputy President P E Hack SC

11 January 2013

1. By virtue of s 94(1) of the Social Security Act 1991 (Cth) a person is qualified for disability support pension if, relevantly, the person has a physical, intellectual or psychiatric impairment and if that impairment warrants a rating of 20 points or more under the Impairment Tables set out in Schedule 1B to that Act. An impairment of that severity must be present at the time of the claim or within 13 weeks thereafter[1].

   [1] See clause 4 of Schedule 2 to the Social Security (Administration) Act 1999.

2. The applicant in these proceedings, Mr Jon Fletcher, applied for disability support pension in August 2011.  His claim was refused on 26 September 2011.  That decision was affirmed on internal review and by the Social Security Appeals Tribunal on 11 April 2012.

3. Mr Fletcher now seeks a review of that decision.

4. The respondent, the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, accepts that at the time of his application Mr Fletcher had two impairments, osteoarthritis of the lower back and a condition described as generalised anxiety disorder or depression.  But the Secretary submits that neither condition is capable of attracting a rating under the Impairment Tables because they do not satisfy the requirement of the Impairment Tables that the conditions be fully diagnosed, treated and stabilised.

5. That requirement was explained[2] by clauses 4, 5 and 6 of the Impairment Tables in these terms,

   [2]That part of the legislation has been repealed but it continues to have application to claims made                    prior to 1 January 2012.

   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.  The first step is thus to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

   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.

   …

6. Mr Fletcher's condition of generalised anxiety disorder and depression was first raised by his general practitioner in December 2011.  He described it as a “likely” diagnosis which needed “further evaluation by psychiatrist/psychologist”[3].  Mr Fletcher appears to have seen a psychiatrist in late March 2012 but nothing more is known about diagnosis or treatment beyond his evidence to the Social Security Appeals Tribunal that he had been prescribed some medication by that psychiatrist.

   [3]           Exhibit 1 at page 94.

7. In these circumstances it is not yet possible to consider this condition as being capable of a rating under the Impairment Tables.

8. The position is a little different in relation to the other condition, osteoarthritis of the lower back.  In a report from September 2011[4] Mr Fletcher's general practitioner described the symptoms of this condition as,

   Continuous lower back pain – knife (?) sharp and sciatic pain and numbness in both legs.

   In the same report the doctor made reference to future treatment comprising “analgesia, physio & hydrotherapy”.  On that basis, previous decision makers, including the Social Security Appeals Tribunal have concluded that the condition is not fully investigated, treated or stabilised.

   [4]           Exhibit 1 at page 68.

9. That conclusion, with respect, seems to me to ignore the degenerative nature of the condition.  Mr Fletcher’s back is unlikely to improve with the type of treatment spoken of by his general practitioner; that treatment, at best, may assist Mr Fletcher to deal with the pain occasioned by the condition.  The concern that I have is that the investigation of the condition which has been undertaken does not permit me to reach a conclusion about the level of severity of the condition.  Where an impairment involves spinal function the Impairment Tables require that the extent of that impairment be based on demonstrable loss of function.  Thus for the lumbar-sacral spine, which I assume is the area affected by a condition described as osteoarthritis of the lower back, loss of three-quarters of the normal range of movement of the spine, or loss of half of the normal range of movement as well as back pain or referred pain with most physical activities, with standing for about 15 minutes and with sitting or driving for about 30 minutes warrants an assessment of 20 points. 

10. The evidence in the present case does not satisfy me that Mr Fletcher suffers from a loss of function to that extent.  His general practitioner’s report of 8 December 2011[5] makes reference to,

    Pain & restricted ROM lower back & hip & knees.

    Burning sensation both legs and feet.

    Included in the material is a job capacity assessment report which makes reference to a reduced range of movement and flexibility[6].  But none of this material quantifies the extent of the functional impairment.

    [5]           Exhibit 1 at page 92.

    [6]           Exhibit one at page 77.

11. I am then left in the position where I am not satisfied that the extent of the impairment to Mr Fletcher’s back warrants a rating of 20 points under the Impairment Tables.  In those circumstances it is unnecessary for me to consider whether Mr Fletcher has a continuing inability to work.

12. It follows that the decision under review will be affirmed.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of

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Associate

Dated 11 January 2013 

Date of hearing	13 December 2012
Applicant	In person
Advocate for the Respondent	Mr R Hamilton, Department of Human Services