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

Jones and Secretary, Department of Social Services (Social services second review) [2017] AATA 1559 (21 July 2017)
Division:GENERAL DIVISION
File Number(s): 2016/5651
Re:Garry Jones
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:21 July 2017
Place:Canberra

The decision under review is affirmed.
............................[sgd]............................................
Mr S. Webb, Member
SOCIAL SECURITY – claim for disability support pension – impairments – treatment of medical conditions continuing and planned - impairments do not result from ‘permanent’ medical conditions – impermissible to assign ratings under the Impairment Tables – impairments are not of 20 or more points - decision affirmed
Social Security Act 1991, s 94
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Secretary, Department of Families, Community Services and Indigenous Affairs v Harris [2010] FCA 360
REASONS FOR DECISION
Mr S. Webb, Member
21 July 2017

Garry Jones operated a lawn mowing business. His health deteriorated. He claimed disability support pension (DSP). His claim was rejected by a delegate of the Secretary. This decision was affirmed on review, including by this Tribunal. Mr Jones is not satisfied with these decisions. He applied for further review.
The application came on for hearing. Mr Jones and Donna Rouse gave oral evidence.
An issue arose at the outset of the hearing about the adequacy of the materials before the Tribunal addressing Mr Jones’ mental health. Ms Rouse explained that Mr Jones has experienced significant psychological symptoms as a result of a traumatic incident involving violence 5 years ago. In her submission, the materials before the Tribunal are not sufficient to enable the correct or preferable decision to be made in respect of his mental health impairment. It was for this reason that I explained to Mr Jones that he could make an application to adjourn the hearing or to bring forward additional materials. Mr Jones was adamant that he wanted me to proceed to decide the application on the present materials. He reiterated this position on a number of occasions during the hearing, and he declined the opportunity I offered for a short adjournment in which he and Ms Rouse could have a private discussion about how best to proceed. Mr Jones also declined this invitation. So be it.
Ms Rouse and Mr Tsianikas, the Secretary’s representative, submitted that I should proceed to determine the application on the present materials.
The medical records provided to the Tribunal include clinical notes in which referrals are expressly made to the Mudgee Mental Health Team. No records of any assessment made of Mr Jones’ mental health and treatment provided by that Team are in evidence.
This notwithstanding, in the circumstances, I decided to proceed with the hearing and to determine Mr Jones’ application for review on the materials and evidence provided.
In the result, I decided to affirm the decision rejecting his claim for DSP and gave oral reasons.
Mr Jones told that me he has learning difficulties and that he needs help understanding things. For this reason, in order to assist him to understand the decision, I decided to provide written reasons. These follow. While the written reasons are the same as those given orally, I have included more detailed references to the medical materials in order to assist understanding.
Mr Jones’ claim is to be determined under s 94 of the Social Security Act 1991 (the Social Security Act). Essentially, there are three tests that must be satisfied.
Firstly, Mr Jones must have a physical, intellectual or psychiatric impairment.
Secondly, the impairment must be of 20 or more points under the Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination).
Thirdly, Mr Jones must have a continuing inability to work.
In order to decide if Mr Jones satisfies each test, the Tribunal must consider the available medical and other evidence addressing each point. It cannot decide these tests on evidence Mr Jones has given about the nature and impact of his symptoms, alone.
Furthermore, for DSP to be payable, Mr Jones must satisfy each of these tests on the day he made his DSP claim – 8 February 2016 – or within the following 13 weeks (by 3 May 2016). Should he not do so, his claim will fail and DSP will not be payable. In that event, Mr Jones may lodge another claim for DSP – each claim must be assessed on its merits.
Does Mr Jones have a physical, intellectual or psychiatric impairment?
The answer to this question is Yes.
Mr Jones provided a detailed account of his symptoms in his upper limbs. He explained that, in addition to very painful symptoms in both shoulders, he experiences pain in his right wrist and arm. He said that the pain makes him depressed. He described the difficulties he experiences undertaking activities of daily living.
On the 2 February 2016 medical certificate issued by Dr Alseneid, his treating general practitioner, it is quite clear that, at that time, Mr Jones had restricted movement and pain in both shoulders resulting from bursitis with impingement. This is ongoing. The clinical notes of the Gulgong Medical Practice establish the history and nature of his bilateral shoulder symptoms from 2011.[1]
[1] T29 folios 152-161.
Symptoms associated with a lesion on Mr Jones’ right wrist/forearm are also established by the clinical notes from 7 April 2015. On 17 June 2016, an x-ray was taken of Mr Jones’ right wrist. This revealed a 2.5 centimetre lesion.
The pain and restricted movement resulting from medical conditions affecting his upper limbs are physical impairments.
This means the first test is satisfied.
Mr Jones’ medical records reveal that a diagnosis of “depressive anxiety disorder” and “depression” was made by Dr Alseneid some years ago. The most recent note of this being treated is on 5 June 2014.[2] Subsequent medical notes, certificates and reports do not refer to psychological symptoms of anxiety or depression. This notwithstanding, I accept that Mr Jones’ symptoms of pain make him feel depressed and that he has recently obtained further treatment.
[2] T29 folio 157.
At this point I should note that Mr Jones has a history of previous Hepatitis C, drug dependence and other medical conditions. The available materials do not establish that any of these conditions resulted in impairment on or about February 2016 or presently.
Are the impairments of 20 or more points under the Impairment Tables?
The answer to this question is No.
The Impairment Determination sets out rules that must be applied.
Under these rules, before an impairment can be assessed and given points under the Impairment Tables, two things must be established - the impairment must result from a ‘permanent’ medical condition and it must be likely to last for more than two years.
For a medical condition to be ‘permanent’, it must be ‘fully diagnosed’, ‘fully treated’, ‘fully stabilised’ and likely to persist for more than two years. If a medical condition is being investigated, it may not be ‘fully diagnosed’. If medical treatment of the condition is underway but has not yet been completed, the condition may not be ‘fully treated’. If further reasonable treatment of the condition is scheduled or planned, and the treatment is likely to produce a significant improvement in work capacity, the medical condition may not be ‘fully stabilised’. Each of these matters is to be assessed on the available evidence, once the medical history of each condition and impairment has been considered. If the medical condition is not ‘fully diagnosed’, ‘fully treated’ and ‘fully stabilised, it cannot be taken as ‘permanent’ and the functional impact of any resulting impairment cannot be assigned points under the Impairment Tables.
The 30 April 2012 report of Dr Alseneid establishes that Mr Jones had right shoulder bursitis with impingement at that time.[3] Dr Alseneid reported the onset of this condition was 14 July 2011. His clinical note of the consultation with Mr Jones on that day refers to right shoulder pain, stiffness and restricted movement with a one month history.[4] It appears that Dr Alseneid suspected the rotator cuff tear and arranged relevant investigations. This condition was treated with Tramadol, an opioid analgesic, and cortisone injections on 2 August 2011 and 26 October 2011.[5] Physiotherapy was recommended.
[3] T8 folio 64.
[4] T29 folio 153.
[5] Ibid.
On 24 April 2012, Dr Alseneid’s clinical note refers to Mr Jones having a 3 week history of left shoulder pain, stiffness and restricted movement.[6] The doctor ordered investigations and commenced treatment with Tramadol and on 21 January 2013 he referred Mr Jones for a guided cortisone injection.
[6] T29 folio 154.
On 7 April 2015, Dr Alseneid noted “also concerns about non healing lesion on Rt forearm, for years, itchy, scally [sic], for removal when ready”.[7]
[7] T29 folio 159.
On 23 July 2015, Dr Auland, treating general practitioner, noted “long history of subacromial bursitis” and “bilateral extensor tendinitis” referred Mr Jones to Jodie McAlpine, a physiotherapist.[8] Mr Jones gave evidence that he did not receive this referral and he did not obtain physiotherapy treatment.
[8] Ibid.
On 20 October 2015, an ultrasound was taken of Mr Jones’ left shoulder. This revealed “supraspinatus tendinosis and subdeltoid bursitis with impingement”.[9] This condition was treated by cortisone injection.
[9] T13 folio 87.
On 2 February 2016, Dr Alseneid issued a medical certificate stating that Mr Jones had “Bilateral adhesive bursitis of shoulders” and certifying him unfit for any work of eight hours or more per week and study from 2 February 2016 to 2 May 2016.[10]
[10] T15 folio 89. See also clinical note at T29 folio 160.
On 18 April 2016, Dr Alseneid referred Mr Jones for a further guided cortisone injection to his right shoulder.[11]
[11] T21 folio 121.
On 19 May 2016, Dr Alseneid certified that Mr Jones’ bilateral shoulder condition rendered him unfit for study or work of more than 8 hours per week from 2 May 2016 to 1 August 2016.[12]
[12] T22 folio 132.
On 17 June 2016, an x-ray was taken of Mr Jones’ right wrist which showed a 2.5 centimetre lesion.[13] In the event of pain, an MRI was recommended. Further investigations of this condition were undertaken on 1 August 2016.[14]
[13] T24 folio 138.
[14] T26.
On 25 July 2016, Dr Moore, a treating general practitioner, issued a medical certificate in respect of severe “bilateral shoulder pain” with restricted movement that rendered Mr Jones unfit for study or work of more than 8 hours per week from 25 July 2016 to 25 October 2016.[15] Dr Moore noted that Mr Jones had been referred to a shoulder surgeon.
[15] T25 folio 139.
This referral is confirmed by correspondence from the Bathurst Base Hospital on 17 August 2016 which reveals that Mr Jones was placed on the elective surgery waiting list under the care of Dr Host.[16] The reported waiting time was said to be “WITHIN TWELVE MONTHS”.
[16] T27 folio 148.
A brief report by Dr Moore on 5 September 2016 confirms that Mr Jones was assessed by Dr Host “for ACJ surgery to left shoulder” and “Xrays of his right wrist and forearm have revealed a bone ?cystic lesion of uncertain aetiology and he is waiting for orthopaedic review at Dubbo Base Hospital in relation to this”.[17] On this report, it is quite clear that Dr Moore was unsure about the correct diagnosis of the lesion on Mr Jones’ right forearm.
[17] T28 folio 150.
Mr Jones informed me that he is scheduled to undergo surgery on his right shoulder on 1 August 2017. I understand that he is expecting to have surgery on his left shoulder in approximately six months and surgical treatment of the lesion on his right forearm some time after that.
Considering the progress and treatment of Mr Jones’ bilateral bursitis of the shoulders since 2011, two things can be said. Firstly, treatment is presently ongoing. And secondly, the prognosis of this condition, and the level of impairment once surgery has been undertaken, is uncertain.
In these circumstances, I am not persuaded that Mr Jones’ bilateral shoulder condition was ‘fully treated’ or ‘fully stabilised’ when he claimed DSP on 8 February 2016, or within 13 weeks thereafter. For this reason, it is not taken to be ‘permanent’ for the purposes of the Impairment Determination and the resulting impairment of his upper limb function cannot be assessed and given any points under the Impairment Tables.
Even though the nature and extent of impairment resulting from the lesion on Mr Jones’ right wrist or forearm is not clearly established by medical evidence, I am satisfied that this medical condition was not ‘fully diagnosed’, and it cannot be taken to be ‘permanent’, when Mr Jones claimed DSP in February 2016, or within the 13 weeks thereafter. Even following radiological investigations in July and August 2016, the diagnosis is not clear. It appears that surgical treatment of the lesion is planned, but this has not yet occurred.
For these reasons no impairment points can be assigned to the impairment of Mr Jones’ upper limbs. This is so despite the evident disability he experiences as a result of the medical conditions affecting his upper limbs.
As I have said, I accept that Mr Jones experiences symptoms of depression. The medical history of this condition can be seen in the clinical notes of the Gulgong Medical Practice. The first record is a note by Dr Alseneid on 31 May 2012 in respect of “Depressive anxiety disorder” and a referral to the Mudgee Mental Health Team.[18] On 14 June 2012, Dr Alseneid noted “no more anxiety n depression”, “seeing counsellor”.[19] It appears that symptoms of anxiety and depression returned in 2013 and Mr Jones was again referred to the Mental Health Team in Mudgee. On 14 May 2014, Dr Alseneid noted that Mr Jones had “Depressed mood” and:
“was on avanza, stopped long time ago
currently seeing conseler [sic], happy with her
happy to restart antidepressant again”[20]
[18] T29 folio 155.
[19] Ibid.
[20] T29 folio 157.
Dr Alseneid issued a prescription for the antidepressant, Avanza, but noted on 5 June 2014 that Mr Jones had not yet started this treatment as “cannot afford it as full cost and not working”. The doctor provided Mr Jones with samples of the medication sufficient for one month. Mr Jones told me that he persisted with Avanza treatment for a while, but then ceased and he has recently obtained a further prescription as the medication is very effective in treating his symptoms.
There are no further references to mental health conditions, symptoms or treatment in the medical materials before the Tribunal.
It is not established that Dr Alseneid’s diagnosis is supported by evidence from a clinical psychologist or that a psychiatrist has made the diagnosis. I am not satisfied that the depression Mr Jones experiences can be taken to have been ‘fully treated’ or ‘fully stabilised’ when he claimed DSP on 8 February 2016. It follows that this condition was not ‘permanent’ at that time and no points can be allocated for any resulting impairment under the Impairment Tables.
There is insufficient medical evidence to determine if the Hepatitis C, drug dependence and other conditions Mr Jones experienced in the past caused impairment when he claimed DSP on 8 February 2016. The present materials do not establish that these conditions are ‘permanent’ or productive of impairment that should be assessed when determining his DSP claim.
I note, too, that Mr Jones told me that he has a learning difficulty. The present materials do not establish the nature or extent of any intellectual impairment he may have. I can go no further on this point.
From all this, doing the best with the available materials, it follows that the impairments Mr Jones had on 8 February 2016 are not of 20 or more impairment points under the Impairment Tables.
That being so, his DSP claim cannot succeed and the decision under review must be affirmed.
Does Mr Jones have a continuing inability to work?
It is not necessary to address the third issue and determine if Mr Jones had a continuing inability to work when he claimed DSP.
Even so, I will briefly address this issue.
There are two key tests that must be satisfied –
(a)if there is no ‘severe impairment’, the person must have ‘actively participated in a program of support’ during the three years before claiming DSP; and
(b)the impairment must render the person unable to do any work for 15 or more hours per week independently of a program of support within the next two years.
Mr Jones does not have a ‘severe impairment’, being an impairment of 20 points under a single Impairment Table.
The Secretary accepts, correctly, that Mr Jones actively participated in a program of support for more than 18 months in the three years before 8 February 2016. The first test is satisfied.
The Secretary says that Mr Jones is able to work 15 or more hours per week with interventions within two years.
One such intervention would be the surgical treatment of his bilateral shoulder and right forearm conditions. I understand that the treatment is expected to reduce the amount of pain Mr Jones experiences. If so, this is likely to significantly increase his functional capacity to the extent that he may be capable of working 15 or more hours per week independently of a program of support. On the present materials I cannot make a contrary finding.
While it may be accepted that Mr Jones is presently unable to work, as his treating doctors have certified, it is only inability to work as a result of ‘impairment’ that can be assessed.[21]
[21] Secretary, Department of Families, Community Services and Indigenous Affairs v Harris [2010] FCA 360 at [91]-[92].
For this reason, I am unable to determine the amount of work Mr Jones would be able to undertake within two years and I cannot be satisfied that his impairments would prevent him from doing 15 or more hours work each week independently of a program of support within that time.
From this it follows that Mr Jones does not satisfy the third essential test to qualify for DSP.
Conclusion
Mr Jones experiences disabling and painful symptoms in his shoulders and his right forearm, and his mental health is impaired.
These impairments do not result from medical conditions that can be taken as ‘permanent’ as of 8 February 2016 or within the period to 9 May 2016. Treatment of Mr Jones’ bilateral bursitis with impingement in each shoulder is presently ongoing. This may reduce the impairment he experienced on and after 8 February 2016 within two years. Treatment of the lesion on his right forearm is planned. This is reasonable treatment for him to obtain that may significantly reduce the functional impact of impairment he experienced as of 8 February 2016 and subsequently. Mr Jones’ mental health may improve if his pain is reduced and he obtains further counselling and treatment with Avanza, which I understand is occurring or imminent.
In each case, the impairment is not likely to persist without change from 8 February 2016 and the impairments cannot be assigned points under the Impairment Tables.
This is the reason why his DSP claim cannot be accepted and the decision under review will be affirmed.
Before closing it is appropriate for me to observe that Mr Jones may claim DSP at any time. Each claim must be assessed on its merits. For this reason it is important to provide all relevant materials, including in respect of mental health assessment and treatments, to the decision-maker.
I cannot say that a different result would have been obtained had additional materials of that kind been provided to the Tribunal in this case. It is not appropriate to speculate about what such additional materials might or might not contain. At Mr Jones’ urging, and accepting the submissions made by Ms Rouse and Mr Tsianikas addressing this point, I have proceeded to decide his application on the available materials.
Decision

The decision under review is affirmed.

I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

..........................[sgd]..............................................
Associate
Dated: July 2017

Date(s) of hearing: 21 July 2017

Applicant: In person

Advocate for the Respondent: Jonathon Tsianikas

[2017] AATA 1559

21 July 2017

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Date(s) of hearing:	21 July 2017
Applicant:	In person
Advocate for the Respondent:	Jonathon Tsianikas