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

[2016] AATA 947

Jones and Secretary, Department of Social Services (Social services second review) [2016] AATA 947 (28 November 2016)

Division	GENERAL DIVISION
File Number(s)	2016/1565
Re	Michael Jones
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President Dr P McDermott RFD
Date	28 November 2016
Place	Brisbane

I affirm the decision under review.

.................................[sgd].......................................

Deputy President Dr P McDermott RFD

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation of pension – applicant has multiple impairments – impairments not permanent – impairments not fully diagnosed, treated and stabilised at date of cancellation – decision affirmed under review

LEGISLATION

Social Security Act 1991 (Cth) s 94

CASES

Freeman v Secretary, Department of Social Services (1988) 15 ALD 671

SECONDARY MATERIALS

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

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

28 November 2016

INTRODUCTION

1. Mr Michael Jones (“the applicant”) seeks a review of a decision of the Social Services and Child Services Division of the Administrative Appeals Tribunal (“the SSCSD”) dated 19 February 2016 which affirmed the decision to cancel his disability support pension (“DSP”).

   BACKGROUND

2. On 4 April 2006, the applicant began receiving DSP in respect of a psychiatric impairment.[1]

   [1] Exhibit A, T-Documents T14 at p. 108.

3. On 8 July 2015, the applicant participated in a job capacity assessment. In their report dated 25 August 2015, the job capacity assessors (“JCA”) recommended that:

   (a)The applicant’s depression and anxiety conditions could not be considered fully diagnosed because the applicant was unable to provide details of any past clinical psychological or psychiatric assessments.[2]

   (b)The applicant’s chronic pain condition could be considered permanent. They considered that the chronic pain condition had a minimal or no impact on the applicant’s ability to function and recommended that an impairment rating of 0 be assigned under Table 4 of the impairment tables contained in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).[3]

   (c)The applicant’s drug dependence condition could not be considered to be fully treated and stabilised. The basis for this opinion was that the applicant did not report any treatment for the condition.[4]

   (d)The applicant’s respiratory disorder could not be considered to be fully treated and stabilised. The basis for this opinion was that the applicant was awaiting further treatment including a CPAP machine.[5]

   (e)The applicant’s asthma condition could not be considered to be fully treated and stabilised. The basis for this opinion was that the applicant did not take medication for the asthma condition as he associated the symptoms with sleep apnoea.[6]

   [2] Exhibit A, T-Documents, T12 at p. 100.

   [3][3] Ibid at 100, 102.

   [4] Ibid at 100.

   [5] Ibid at p. 101.

   [6] Ibid.

4. On 27 August 2015, the Department of Human Services (“the Department”) cancelled the applicant’s DSP because his impairment rating was assessed as being less than 20 points.[7] The applicant sought a review of the Department’s decision.

   [7] Exhibit A, T-Documents, T14.

5. On 21 September 2015, an authorised review officer (“ARO”) affirmed the decision under review.[8]  The applicant sought a review of the ARO’s decision.

   [8] Ibid.

6. On 19 February 2016, the SSCSD affirmed the decision under review.[9] The SSCSD found that the applicant could not be assigned any points under the impairment tables because his psychiatric conditions were not fully diagnosed by an appropriately qualified medical practitioner.[10]

   [9] Exhibit A, T-Documents, T3.

   [10] Ibid at p. 8.

7. On 19 February 2016, the applicant lodged an application for a review of the decision of the SSCSD with this Tribunal.[11]

   [11] Exhibit A, T-Documents, T2.

   LEGISLATIVE FRAMEWORK

8. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) sets out the criteria necessary to qualify for DSP. Whether or not the applicant has satisfied the criteria is to be assessed at the date that the original decision was made to cancel his DSP.[12]

   [12] See Freeman v Secretary, Department of Social Services (1988) 15 ALD 671 at 674.

9. The first criterion, set out under s 94(1)(a) of the Act, requires that the applicant has a physical, intellectual or psychiatric impairment.

10. The second criterion, set out under s 94(1)(b) of the Act, requires that the impairment be assigned an impairment rating of 20 points or more. This test is completed by reference to the impairment tables set out in Pt 3 of the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).

11. Section 6(3) of the Determination provides that an impairment can only be assigned an impairment rating if the condition causing the impairment is permanent and the impairment is likely to persist for more than two years. Section 6(4) of the Determination provides that a condition is permanent if it is fully diagnosed, treated and stabilised, and is likely to persist for more than two years.

12. Section 6(5) of the Determination provides that the following are relevant to determining whether a condition has been fully diagnosed and treated by an appropriately qualified medical practitioner:

    (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 following two years.

13. Table 5 contained in the Determination concerns mental health function. The introduction to the table states that the diagnosis of the condition must be made by an appropriately qualified medical practitioner with evidence from a clinical psychologist if the diagnosis has not been made by a psychiatrist.

14. The third criterion, set out under s 94(1)(c)(i) of the Act, requires that the applicant have a continuing inability to work. The requirements of this criterion are set out under s 94(2) of the Act.

    ISSUES

15. The Tribunal is required to consider whether the applicant was eligible for DSP on the date his DSP was cancelled, namely, 27 August 2015. The first issue is whether he had any impairment on the date of cancellation. The second is whether the conditions causing the impairment were fully treated, diagnosed or stabilised on the date of cancellation. The third issue is whether the total impairment rating was 20 points or more under the relevant impairment tables. The fourth issue is whether the applicant had a continuing inability to work on the date of cancellation.

    CONSIDERATION

    Did the applicant have a physical, intellectual or psychiatric impairment?

16. I am satisfied that the applicant had physical and psychiatric impairments at the date of cancellation arising from the conditions discussed below.

    Were the applicant’s conditions permanent?

    Depression and anxiety condition

17. I am not satisfied that the applicant’s depression and anxiety condition was permanent on the date of cancellation. Dr Cayzer, General Practitioner, completed a medical report on 22 April 2015 in which he diagnosed the applicant with depression and anxiety on 22 April 2015.[13] Dr Burkitt, General Practitioner, also opined that the applicant has severe depression on 18 February 2016.[14]

    [13] Exhibit A, T-Documents, T11 at p. 97.

    [14] Exhibit A, T-Documents, T19.

18. The introduction to Table 5 of the Determination states that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner with evidence from a clinical psychiatrist where the diagnosis was not made by a psychiatrist. Therefore, the diagnoses of Dr Cayzer and Dr Burkitt alone are insufficient for a finding that the depression and anxiety condition was fully diagnosed.

19. Dr Peck, Psychiatrist, completed a letter dated 26 April 2016 in which he opined that the applicant has chronic psychological conditions.[15] Dr Peck noted that he had first seen the applicant two months prior to the date of the letter. I am unable to rely on the opinion of Dr Peck in determining whether the applicant’s depression and anxiety condition was fully diagnosed at the date of cancellation as Dr Peck only had the opportunity to diagnose the applicant approximately six months after the date of cancellation.

    [15] Exhibit B, Material lodged by the Applicant.

20. The applicant contends that he has attended appointments with other psychiatrists and undertaken psychiatric assessments in recent years. However, there is no evidence before the Tribunal that a diagnosis by a psychiatrist or a clinical psychiatrist was made. Therefore, I cannot be satisfied that the applicant’s depression and anxiety condition was fully diagnosed, fully treated and fully stabilised by an appropriately qualified medical practitioner on the date of cancellation.

21. For completeness, I note that the Introduction to Table 5 of the Determination states that self-report of symptoms alone is insufficient to establish that a diagnosis of a condition has been made. The applicant was disappointed that the oral evidence given by him and his father about his mental health condition had not been sufficient. The fact that this evidence was not accepted as sufficient was not an attack on the applicant’s credibility. Rather, it is due to the requirement under s 8 of the Determination that there must be corroborating evidence of the person’s condition.

    Chronic pain condition

22. I am not satisfied that the applicant’s chronic pain condition was permanent on the date of cancellation. Dr Cayzer, General Practitioner, diagnosed the applicant with chronic low back pain in a medical report dated 22 April 2015.[16] I am satisfied that Dr Cayzer is an appropriately qualified medical practitioner and that the condition was fully diagnosed on the date of cancellation. Dr Cayzer indicated that the condition was generally well managed but did not elaborate further.[17] In a referral letter dated 9 April 2015, Dr Cayzer stated that he was treating the applicant’s chronic pain condition with OxyContin. He also stated that he had recommended the applicant manage the condition by attending a pain clinic.[18]

    [16] Exhibit A, T-Documents, T11 at p. 97.

    [17] Ibid.

    [18] Exhibit A, T-Documents, T21 at p. 125.

23. The applicant lodged a letter dated 5 August 2015 inviting the applicant to attend an IMPROVE Pain Management Program for the purpose of “improve your mood and quality of life with chronic pain”.[19] The invitation stated that the program was due to take place between 13 October 2015 and 5 November 2015. I cannot find that the condition was fully treated and stabilised at the date of cancellation as further treatment was necessary after that date.

    [19] Exhibit B, Material lodged by the Applicant.

24. Even if the chronic pain condition were permanent I would not be able to assign an impairment rating to it. Dr Cayzer indicated that the condition caused minimal or limited impact on the applicant’s ability to function.[20] Section 6(8) of the Determination states that the existence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned. I can only assign an impairment rating to the chronic pain condition where there is evidence of a functional impact.[21]

    [20] Exhibit A, T-Documents, T11 at p. 97.

    [21] Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 at s 6(8).

    Drug dependence condition

25. I am not satisfied that the applicant’s drug dependence condition was permanent on the date of cancellation. I accept the applicant’s oral evidence that he has had a drug dependence condition for a number of years. Dr Peck in his letter dated 18 February 2016 diagnosed the applicant with longstanding severe drug addiction.[22]

    [22] Exhibit A, T-Documents, T19, p. 123.

26. There is no cogent medical evidence to support a finding that the drug dependence condition was fully treated and stabilised at the date of cancellation. The JCA recorded that the applicant did not indicate that he was undertaking any treatment at the time of the assessment on 8 July 2015.[23] I am not satisfied that the condition was fully treated and stabilised on the date of cancellation.

    [23] Exhibit A, T-Documents, T12, p. 100.

    Cellulitis condition

27. I am not satisfied that the applicant’s cellulitis condition was permanent on the date of cancellation. The applicant lodged a discharge summary referral dated 5 December 2015 completed by Dr Lilburn. Dr Lilburn states that the applicant was admitted to hospital to receive treatment of recurrent right lower leg cellulitis.[24] Given that this treatment was not administered until approximately three months after the date of cancellation, I cannot be satisfied that the cellulitis condition was fully treated on the date of cancellation.

    [24] Exhibit B, Material lodged by the Applicant.

28. Dr Duchow, General Surgeon, gave evidence about the applicant’s cellulitis condition by way of letter dated 20 May 2016. Dr Duchow noted that she had first seen the applicant on 21 March 2016 when he was admitted to hospital on with an abscess on his left foot.[25] I am unable to rely on the opinion of Dr Duchow in determining whether the applicant’s cellulitis condition was fully diagnosed, treated and stabilised on the date of cancellation as Dr Duchow only had the opportunity to assess the applicant more than six months after the date of cancellation.

    [25] Exhibit B, Material lodged by the Applicant.

    Morbid obesity condition

29. I am not satisfied that the applicant’s morbid obesity condition was permanent on the date of cancellation. I accept the evidence of the applicant and Dr Burkitt that the applicant has had an obesity condition from a young age.[26] However, there is insufficient medical evidence to establish that the condition has been fully treated and stabilised.

    [26] Exhibit A, T-Documents, T19 at p. 122.

    Respiratory disorder condition

30. I am not satisfied that the applicant’s respiratory condition was permanent on the date of cancellation. In a letter dated 5 September 2008, Mr Nagarajah, Respiratory and Sleep Physician, diagnosed the applicant with severe obstructive sleep apnoea.[27] Mr Nagarajah recommended that the applicant have a CPAP titration study.[28] The applicant gave oral evidence about a machine he uses to treat the condition. However, there is insufficient medical evidence to establish that the condition had been fully treated and stabilised at the date of cancellation.

    [27] Exhibit A, T-Documents, T8 at p. 72.

    [28] Ibid at p. 73.

    Other conditions

31. The applicant has referred to other conditions in passing, such as an asthma condition. However, there is insufficient medical evidence to establish that any other condition had been fully treated and stabilised at the date of cancellation.

    CONCLUSION

32. The applicant’s conditions were not permanent, within the meaning of s 6(4) of the Determination, on the date of cancellation. Therefore, s 6(3) of the Determination precludes me from assigning those conditions with an impairment rating. As no impairment rating can be assigned, the applicant does not satisfy 94(1)(b) of the Act, which requires that the impairments be assigned an impairment rating of 20 points or more in total.

33. The applicant has consulted medical practitioners since the date of cancellation. It may be the case that the applicant’s conditions have now been fully treated, diagnosed and stabilised. However, the reviewable decision that the Tribunal has jurisdiction to make is limited to an assessment of the applicant’s eligibility for DSP on the date of cancellation.

34. As the applicant has not satisfied s 94(1)(b) of the Act, I am not required to consider whether he meets the other eligibility requirements for DSP.

    DECISION

35. I affirm the decision under review. 

I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

..................................[sgd]......................................

Associate

Dated 28 November 2016

Date(s) of hearing	30 August 2016
Advocate for the Applicant	Mr T Jones
Solicitors for the Respondent	Ms C Campbell, Sparke Helmore