Jones and Secretary, Department of Social Services (Social services second review)
[2016] AATA 180
•24 March 2016
Jones and Secretary, Department of Social Services (Social services second review) [2016] AATA 180 (24 March 2016)
Division
GENERAL DIVISION
File Number
2015/5144
Re
Warren Jones
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 24 March 2016 Place Sydney The reviewable decision, being the decision of the Social Services and Child Support Division of the Tribunal made 28 August 2015, is affirmed.
..................[sgd]......................................................
J W Constance
Deputy PresidentCATCHWORDS
SOCIAL SECURITY - disability support pension - refusal of disability support payment application - whether person's impairment is of 20 points under Impairment Tables - relevant assessment period - whether conditions fully diagnosed, fully treated and fully stabilised - whether Applicant has continuing inability to work - decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94(1)
Social Security (Administration) Act 1999 (Cth) s 42, sch 2 cl 4
CASES
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 6, 11(4)
Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension Ch 2
REASONS FOR DECISION
Deputy President J W Constance
24 March 2016
A. INTRODUCTION
Mr Jones has applied for a review of a decision of the Social Services and Child Support Division of the Tribunal (“SSCS Division”) which affirmed a decision of Centrelink to refuse his claim for a disability support pension.
The parties agreed that the review should be conducted “on the papers” and for this reason there has been no hearing and no oral evidence has been given. I have marked the documents filed by the Secretary in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) as Exhibit R1.
Mr Jones applied for the pension on 19 February 2015. In his application he listed his medical conditions as:
·chronic shoulder pain
·chronic neck pain
·psychological trauma.[1]
[1] Exhibit R1 p. 141.
The Secretary agrees that, for the purpose of determining Mr Jones’ entitlement to a pension, he has the disabilities he claims. However the Secretary denies that Mr Jones meets other eligibility criteria set out in the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).
For the reasons which follow the decision refusing Mr Jones’ application for a disability support pension will be affirmed.
B. THE LEGISLATION GOVERNING ELEGIBILITY FOR A DISABILITY SUPPORT PENSION
To be entitled to the pension Mr Jones must show that he met the eligibility requirements on the day he applied for the pension (i.e. on 19 February 2015) or within the 13 weeks immediately following that day.[2] I will refer to this period as “the relevant period”. It ended on 21 May 2015.
[2] See s.42 and clause 4 of Schedule 2 of the Administration Act.
Section 94(1) of the Act provides that to qualify for the pension:
(a)a person must have a physical, intellectual or psychiatric impairment, or impairments; and
(b)the impairments must be rated at 20 points or more in accordance with the Impairment Tables; and
(c)the person must have a continuing inability to work as defined in the Act.
C. THE ISSUES
As the Secretary accepts that Mr Jones has the impairments to which I have referred, the first issue for determination is whether these impairments rate 20 points or more. If they do, it will then be necessary to decide whether Mr Jones has a continuing inability to work.
D. WHAT RATING IS APPLICABLE?
D.1 The Impairment Tables
The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
The following subparagraphs of clause 6 are relevant in relation to the assessment of impairment ratings:
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c) the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) 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:
(i) 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
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7)..
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
D.2 Evidence which may be considered in determining the correct rating within the relevant period
In Harris v Secretary, Department of Employment and Workplace Relations,[3] Gyles J said that:
… the applicant’s entitlement to the pension must be considered as at the date of his claim, namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
[3] [2007] FCA 404, [1]
It may be appropriate to consider events which occurred before the relevant period notwithstanding that the rating has to be determined within that period. Clearly this is envisaged in the Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension. Chapter 2 Part (B) of the Guidelines provide that “[t]he Tables can only be applied after a person’s medical history has been considered.”
Clause 11(4) of the Tables also indicates that in assigning an impairment rating it is permissible to consider the history of the effects of episodic and fluctuating conditions:
(4) When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
D.3 Mr Jones’ argument
In his application for review lodged in the Tribunal on 2 October 2015 Mr Jones stated:
I have medical evidence of permanent injuries which were not taken into account. I think decision was wrong & a different decision should be made.
Mr Jones does not dispute the findings of fact made in the SSCS Division on the evidence before it. The only additional evidence provided consists of a report dated 22 August 2014 in relation to a CT scan of Mr Jones’ cervical spine and a report on an ultrasound of his left shoulder made 23 May 2014. I shall refer to these reports later in these reasons.
D.4 Left shoulder and neck conditions
Mr Jones suffered a sudden onset of pain in his neck and left shoulder on 23 February 2014 when he was involved in an incident in a motor vehicle.
Report of Dr Ghaly, General Practitioner
In a report dated 24 January 2015, Dr Ghaly stated that Mr Jones suffered from “degenerative disc (cervical spondylosis) C6-7 formia stenosis”.[4] Treatment prescribed at the time was analgesia and peri neural injection. He noted that he had referred Mr Jones to Dr Darwish, Neurosurgeon.
[4] Exhibit R1 p.160.
Report of Dr Darwish, Neurosurgeon and Spinal Surgeon
On 19 January 2015 Dr Darwish reported in part:
Today I discussed with Warren his treatment options including conservative treatment, perineural cortisone injection and surgery. I recommended left C7 perineural cortisone injection. At this stage he wants to continue with conservative treatment. I am going to increase the Lyrica to 150mg twice a day I gave him a prescription for Endone 5mg three times a day as needed. I will review him in 6 weeks’ time.[5]
[5] Exhibit R1 p.127.
Mr Jones’ evidence
In a statement made 17 August 2015[6] Mr Jones said that after his Neurosurgeon [Dr Darwish] recommended physiotherapy and Endone and Lyrica medication he had “since gone through approx 20 physio appointments as well as six months exercise physiology with no improvement.”
[6] Exhibit R1 p.210.
Report of Dr Thomson, Medico-legal Consultant Surgeon.
Dr Thomson examined Mr Jones on 1 June 2015.
On that day Dr Thomson reported, in part:
He has seen a Neurosurgeon for his neck who is deliberating on treatment/management at the moment but he has had no Specialist referral in respect of his left shoulder, which should be undertaken forthwith.[7]
[7] Exhibit R1 p.203.
Discussion
As I have noted the relevant period during which Mr Jones’ eligibility for the pension is to be assessed is on 19 February 2015 and the thirteen weeks immediately following. The period ended on 21 May 2015.
It is clear from the medical evidence to which I have referred that neither Mr Jones’ neck condition nor his shoulder condition had been either fully treated or fully stabilised at any time during the relevant period. Mr Jones said that he undertook six months treatment of exercise physiology after Dr Darwish prescribed endone for pain relief in January 2015. Dr Thomson confirmed that neither condition had been fully treated when he examined Mr Jones on 1 June 2015.
After making this application to the Tribunal Mr Jones filed a report dated 22 August 2014 in relation to a CT scan of his cervical spine.[8] He also filed a report of an ultrasound of his left shoulder.[9] This report is dated 23 May 2014. Neither report assists in determining the state of treatment of the conditions during the relevant period.
[8] Exhibit A1.
[9] Exhibit A2.
As neither the neck condition nor the shoulder condition was fully treated nor fully stabilised during the relevant period, neither condition can be found to be “permanent” within the meaning of the Act.There can be no impairment rating in respect of either of these conditions.
Psychological condition
Report of Dr Ghaly, General Practitioner
In his report of 19 February 2015 Dr Ghaly said that Mr Jones had been diagnosed with depression and anxiety and had been referred to Dr Phillips, Psychiatrist.[10] As there is no report available from Dr Phillips I cannot be satisfied as to the nature of the treatment (if any) he gave nor the state of that treatment during the relevant period.
[10] Exhibit R1 p.157.
Report of Dr Rastogi, Psychiatrist
On 6 May 2015 Mr Jones consulted Dr Rastogi. On the same day Dr Rastogi reported to Centrelink that he proposed further treatment for Mr Jones by way of stabilisation of his medication, pain management and consultations with a psychologist. He diagnosed Mr Jones as suffering from an “Adjustment Disorder with Depressed Mood, PTSD/Generalized Anxiety”.[11]
[11] Exhibit R1 p. 183.
Discussion
Mr Jones’ consultation with Dr Rastogi was only three weeks before the end of the relevant period. Based on the report of Dr Rastogi I am satisfied that Mr Jones’ mental condition, however described, was neither fully treated nor stabilised. It is not clear whether Mr Jones’ condition was fully diagnosed at the time, but it is unnecessary that I decide this point.
An impairment rating cannot be assigned in respect of this condition.
E. CONCLUSION
As Mr Jones cannot be assigned an impairment rating in respect of any of his disabilities he did not qualify for the disability support pension on the day he made his application or at any time during the following thirteen weeks.
The reviewable decision, being the decision of the Social Services and Child Support Division of the Tribunal made 28 August 2015, will be affirmed.
It should be noted that this decision does not prevent Mr Jones making a further application for the disability support pension. If he does so, under the law at present his eligibility will be assessed at the time of, and during the period of 13 weeks following, his new application.
I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance. .................[sgd]......................................
Associate
Dated 24 March 2016
Date final submissions received 20 January 2016 Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Impairment Rating
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Refusal of Disability Support Payment
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Continuing Inability to Work
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