Justin Vesnaver and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 570
[2013] AATA 570
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0071
Re
Justin Vesnaver
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Dr Amanda Frazer, Member
Date 13 August 2013 Place Perth Decision Summary
The Tribunal affirms the decision under review.
....(Sgd) Dr A Frazer...............
Dr Amanda Frazer. Member
Catchwords
SOCIAL SECURITY – disability support pension – qualification requirements – applicant has impairments – applicant’s impairments not considered permanent or sufficient rating – applicant not qualified for disability support pension – decision under review affirmed
Legislation
Social Security Act 1991 (Cth), s 94 and Sch 1B
REASONS FOR DECISION
Dr Amanda Frazer, Member
13 August 2013
INTRODUCTION
Mr Vesnaver (the applicant), who is 42 years of age, lodged a claim for Disability Support Pension (DSP) on 10 July 2012 in respect of chronic pancreatitis and depression. The applicant is currently in receipt of Newstart Allowance.
On 28 August 2012 Centrelink notified the applicant that his claim for DSP had been rejected as he did not have 20 or more impairment points.
A file assessment was undertaken in respect of the applicant’s job capacity on 12 September 2012. The subsequent report found that the applicant’s pancreatitis and depression were fully diagnosed, but were not fully treated and stabilised, and as a result they did not attract any impairment points. The report also found that the applicant’s gout and osteoporosis were fully diagnosed, treated and stabilised but attracted no impairment points. The report assessed the applicant as having baseline work capacity of 15–22 hours per week that could be increased to 23–29 hours per week with supported intervention.
A Centrelink Authorised Review Officer (ARO) affirmed the decision to reject the applicant’s claim for DSP on 11 October 2012. The ARO accepted the applicant’s gout and osteoporosis, but found that they attracted no impairments points. The ARO found that the applicant’s pancreatitis and depression to be fully diagnosed but not fully treated and stabilised, accordingly no impairment points could be allocated to these conditions.
The applicant applied for review of the ARO’s decision to the Social Security Appeals Tribunal (SSAT) on 19 October 2012. The SSAT affirmed the decision to reject the Applicant’s claim for DSP on 10 December 2012.
The applicant applied to this Tribunal for review of the SSAT’s decision on 7 January 2013.
THE RELEVANT LEGISLATION
The conditions which must be satisfied before a person is qualified for DSP are set out in s 94 of the Social Security Act 1991 (Act). The section relevantly provides:
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
…
94(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a) the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
…
94(5) In this section:
…
work means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
…
The impairment tables referred to in s 94(1)(b) are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (IT Determination). The IT Determination is discussed below.
The Social Security (Administration) Act 1999 (Administration Act) provides that the start date for DSP is the date that the claim is made (see ss 41, 42 and sch 2 cl 3). Under sch 2 cl 4(1) provides:
(1) If:
(a) a person … makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) … the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period; the claim is taken to be made on the first day on which the person is qualified for the social security payment.
THE EVIDENCE
The evidence before the Tribunal comprised of:
·The T Documents (T1 – T32) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (Respondent)
·The oral evidence of the Applicant
THE APPLICANT’S EVIDENCE
The applicant attended the hearing by telephone and presented oral evidence to the Tribunal.
The applicant is 42 years of age and lives with his parents in Geraldton. The applicant is able to support himself throughout his normal everyday activities, but needs the occasional help of his parents, particularly to prepare meals. The applicant was last employed around 2 years ago as a part time delivery person. As part of this role the applicant rode a motorcycle. The applicant still holds his motorcycle license.
The applicant said he first suffered from acute pancreatitis over 2 years ago when he was admitted to Geraldton Regional Hospital with abdominal pain. He was discharged after a week or so and advised about diet and reducing alcohol consumption. He then had a number of relapses with abdominal pain.
The applicant was diagnosed with chronic pancreatitis about a year ago. An ultrasound showed pancreatic stones and the applicant said he was referred to a Gastroenterologist at Sir Charles Gairdner Hopsital, Dr Yusoff.
The applicant said the possibility of surgery was discussed and the applicant was told it would be too risky. The applicant said he is now taking Endone and Oxycontin twice a day for pain control. This keeps the applicant’s pain under control, to a point where he is pain free most of the time. The applicant stated that following his first attack due to his pancreatitis he would have attacks “all the time”. The applicant said his “last attack was months ago” when he had pain for 3 or 4 weeks. The applicant was pain free at the time of the hearing.
The applicant has seen the specialist 5 or 6 times and still has further appointments to attend.
The applicant said he was diagnosed with depression years ago and, in the past, has tried antidepressants, anxiolytics and counselling with a psychologist for treatment. The applicant has not seen a counsellor for his depression in about 2 months. The particular counsellor left the practice and at this point the applicant stopped going. The applicant did not find that seeing a counsellor was of much assistance. The applicant no longer takes medication for his depression.
The applicant stated that he saw a specialist for his osteopenia in about December 2012. The applicant was unclear about what he was told at this appointment. The applicant has had ongoing intermittent outpatient treatments to manage this and is under ongoing review. The applicant stated that his gout is going okay and that he is not having attacks like he has in the past.
The applicant said that it was impossible for him to work at all. He is weak and does not feel well all the time. The applicant believes that he could not work as a delivery man again as he is “just not able to”.
MEDICAL EVIDENCE
Report by Dr Bertel Bulten, GP, dated 23 January 2012. This states the applicant has chronic pancreatitis and requires referral to and management by a surgeon. The applicant also has depression which requires further assessment.
Report by Dr Bulten, GP, dated 7 September 2012. This states the applicant has chronic pancreatitis with chronic abdominal pain with exacerbations. This requires review by a Pain Clinic. The applicant has depression and anxiety since 1992. This is treated with antidepressants, anxiolytics and psychologist review. The applicant has osteopenia and gout which affects his function “marginally.”
Report by Dr Carter, dated 17 January 2013. This states the applicant has been reviewed by the Gastro Department at SCGH and he requires regular review. The applicant may undergo an ERCP (a special diagnostic test) at some stage but this carries risks. The applicant has chronic disabling pain 10/10 at times which varies throughout the day. The applicant has bowel changes due to this condition. The pain causes a decreased ability to stand and walk and occurs approximately 5 days a week.
Letter by Dr Carter dated 11 February 2013 to the AAT. The report states the applicant has chronic pancreatitis and there are no further treatments that will assist his condition. “All that is left is pain control.” Dr Carter states ..” it is not in his best interests to work as the pain…will cause him to be absent from work frequently.” “..his pain would be managed .better without the stress of imposed on him from seeking work and dealing with Centrelink issues.”
ANALYSIS
Impairments
It is common ground that, at all material times, the applicant has had a physical impairment, within the meaning of para (a) of s94(1) of the Act, by reason of his conditions of chronic pancreatitis, depression, osteopaenia and gout.
The first matter for the Tribunal’s determination is whether the applicant, had a total impairment, by reason of the above conditions, of at least 20 points under the Impairment Tables, for the purposes of para (b) of s 94(1) of the Act
Section 6(3) of the IT Determination requires that an impairment rating can only be assignment if the underlying condition causing the impairment is permanent and that the resulting impairment is more likely than not to persist for two years.
Section 6(4) of the IT Determination relevantly provides:
(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.
Sections 6(5) and (6) of the IT Determination provide:
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.
Chronic Pancreatitis
The Tribunal accepts the applicant suffers from chronic pancreatitis which causes abdominal pain. The Tribunal accepts the Applicant requires narcotic type analgesia for this condition. The applicant told the Tribunal he has not had abdominal pain for some months now. The Tribunal notes the medical assessment by Dr Carter in January 2013 stating the applicant has constant but variable pain. The Tribunal accepts the evidence of the applicant that the pain, while severe at times and variable, has not been present for some months before the Tribunal hearing. Furthermore, the Tribunal notes that the applicant may undergo more diagnostic testing and that it has been suggested by Dr Bolten that the applicant be referred to a Pain Clinic. Therefore, on balance, and given the applicant’s evidence he had not had an attack for months, the Tribunal considers this condition is not fully treated or stabilised for the purposes of the Act. Therefore, this condition does not attract any Impairment Rating under the Impairment Tables.
Depression
The Tribunal accepts the applicant has a past history of depression for which he has undergone treatment. However, the applicant told the Tribunal he is now not taking any medication and he has stopped receiving counselling because it did not help. Therefore, on balance, the Tribunal finds this condition is not fully treated or stabilised for the purposes of the Act. Therefore, this condition does not attract any Impairment Rating under the Impairment Tables.
Osteopenia and Gout
The Tribunal accepts the written evidence from Dr Bolten that these conditions cause “marginal” functional impact on the applicant. Therefore, no Impairment Rating is assigned
The Tribunal finds that the applicant’s pancreatitis, depression/anxiety, osteopenia and gout attract nil points under the Impairment Tables. The applicant therefore does not satisfy S94(1)(b) of the Act.
That conclusion makes it unnecessary for the Tribunal to consider whether the applicant satisfies paragraph c of s94(1) of the Act.
DECISION
For the above reasons the Tribunal affirms the decision under review.
I certify that the preceding 34 (thirty four) paragraphs are a true copy of the reasons for the decision herein of Dr Amanda Frazer, Member
..(Sgd) T Freeman........
Associate
Dated 13 August 2013
Date(s) of hearing 19 July 2013 Applicant In person Representative for the Respondent Mr B Dube
Sparke Helmore
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