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

[2019] AATA 901

Lewis and Secretary, Department of Social Services (Social services second review) [2019] AATA 901 (15 May 2019)

Division:GENERAL DIVISION

File Number(s):      2018/4334

Re:Colin Lewis

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:15 May 2019

Place:Canberra

The Tribunal affirms the decision under review.

……………………………………………….

Senior Member Linda Kirk

Catchwords

SOCIAL SECURITY – disability support pension – whether the Applicant’s impairments can be assigned 20 points or more under the Impairment Tables – decision under review affirmed

Legislation

Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) s 42
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 ss 6, 11

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

REASONS FOR DECISION

Senior Member Linda Kirk

15 May 2019

1. Mr Colin Lewis (‘the Applicant’) suffers from a number of medical conditions which he claims make it difficult for him to work, or to look for work. 

2. On 30 January 2017, the Applicant applied for the Disability Support Pension (‘DSP’). On 19 June 2017 the Applicant was notified his application had been rejected by a delegate of the Secretary of the Department of Social Services (‘the Respondent’). On 24 July 2017, an Authorised Review Officer (‘ARO’) affirmed the decision on review, on the basis that the Applicant did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (‘the Act’).

3. On 8 February 2018 the Applicant applied to the Social Security and Child Support Division of the Administrative Appeals Tribunal (‘SSCSD’) for review of the ARO decision. In a decision dated 16 March 2018, the SSCSD affirmed the decision of the ARO refusing the Applicant’s claim for DSP as he did not satisfy section 94(1)(b) of the Act (‘the Reviewable Decision’).

4. On 2 August 2018 the Applicant applied to the General Division of the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Reviewable Decision.

5. The matter was heard at a hearing of the Tribunal in Canberra on 20 March 2019. The Applicant attended the hearing in person and was self-represented.  The Applicant and Dr Vijendra Prasad gave oral evidence at the hearing.

   ISSUES AND LEGISLATION

6. The issue before the Tribunal is whether the Applicant qualified for DSP at the relevant time.

7. Pursuant to section 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) in order to qualify for DSP, the Applicant must satisfy the requirements of section 94 of the Act as at the date he made his claim, 30 January 2017, or within 13 weeks of lodging the claim, that is between 30 January 2017 and 1 May 2017 (‘the qualification period’).

8. Section 94(1) of the Act provides that a person qualifies for the DSP 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…

9. The Respondent concedes and the Tribunal accepts that during the qualification period the Applicant suffered medical conditions that caused impairment, and therefore he satisfies section 94(1)(a) of the Act at the time of his claim for DSP.

10. It follows that the issues for determination for the Tribunal in this matter are whether, during the qualification period, the Applicant had:

    ·an impairment rating of 20 points or more under the Impairment Tables (section 94(1)(b)); and

    ·a continuing inability to work as defined in section 94(2) of the Act (section 94(1)(c)).

    Impairment Tables

11. The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Impairment Tables’).

12. The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.

13. The Introduction to each relevant Table requires that ‘[s]elf-report of symptoms alone is insufficient’ and ‘[t]here must be corroborating evidence of the person’s impairment’.[1]

    [1] In this decision. italicised text is used generally to indicate direct quotation.

14. Part 2 of the Impairment Tables details the rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in section 3 to mean ‘a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.’

15. Section 6(3) of the Impairment Tables requires that an impairment rating can only be assigned if the condition causing that impairment is permanent. Section 6(4) of the Impairment Tables, provides that a condition is permanent if it:

    (a)has been fully diagnosed by an appropriately qualified medical practitioner; and

    (b)has been fully treated; and

    (c)has been fully stabilised; and

    (d)is more likely than not to persist for more than two years.

16. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, section 6(5) of the Impairment Tables instructs that a decision-maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.

17. For the purposes of the Impairment Tables, section 6(6) defines fully stabilised to mean:

    (a)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:

    (c)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

    (d)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

18. The Macquarie Dictionary defines undertaken as, inter alia, committing oneself to, taking on, and promising to do a particular thing.

19. Reasonable treatment is defined in section 6(7) of the Impairment Tables as 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.

20. Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each Table and a rating cannot be assigned between consecutive impairment ratings. Significantly, section 11(1)(c) provides:

    if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.

    Medical conditions

21. The Applicant claims that during the qualification period he suffered from the following conditions:

    1.Chronic back pain

    2.Leg pain - neuropathy

    3.Testicular pain

    4.Forgetfulness and clumsiness from medication

    5.Depression

    EVIDENCE BEFORE THE TRIBUNAL

    Applicant’s evidence

22. The Applicant told the Tribunal that following a work accident in 2007 he was unable to work and could not care for himself.  During surgery on his back in 2008 a nerve was cut causing permanent damage.  The pain is not isolated to his back and it radiates throughout his body. He experiences intense pain and pins and needles in his feet and testicles.  He is unable to wear shoes as it puts too much pressure on his feet.  He now uses a four-wheel walker which he wishes he had acquired a lot earlier as it takes the weight off his body when he moves.

23. His conditions have worsened a lot since he lodged his claim for DSP in January 2017.  Walking is now a lot harder and he drops things.  His legs are worse and if he twists his body then he is ‘gone’ for two weeks.  He cannot shower and often cannot get off the toilet.  He has fallen up and down the stairs as he has difficulty with his feet.  He can however get up the stairs using the handrail.  He can now only walk for up to 10 minutes, for example when he takes the grandkids to the park.  He can perform overhead activities with some discomfort.

24. He also suffers from depression. Dr Davidson prescribed him with medication for depression but it did not help and made him ‘feel like a zombie’.  He ceased taking this medication in July 2010 as the side affects were too intrusive.[2]  He did not seek further treatment from a psychiatrist or psychologist because he did not want to take medication.

    Medical evidence

    [2] T23, p140.

    Condition 1 - Chronic back pain

25. On 27 January 2017, Dr Sultana reported the Applicant was suffering from low back pain with neuropathic pain extending down his lower limbs that he had experienced for a long time and is getting worse.[3]  Dr Sultana was of the opinion the Applicant was unable to continue any work.

    [3] T27, p150.

26. On 27 March 2017, Dr O’Halloran advised a Job Capacity Assessor (JCA) that the Applicant’s symptoms were ‘very episodic, ranging from sometime severe to sometimes mild’, and when he ‘was not stressing and straining he is quite stable’. [4]  He did not report any functional impairment other than limitations on the Applicant’s spinal function, specifically that he could not repetitively bend to knee height.[5]

    [4] T30, p185.

    [5] T30, p185; Respondent’s Statement of Facts, Issues and Contentions (SFIC) paragraph 5.42(b).

27. On 27 March 2017 the Applicant self-reported to the JCA that he suffered chronic pain with referred pain into both legs.  He reported he could drive for at least 30 minutes; sit for at least 20 minutes; stand for 10 minutes; and walk 8-10 minutes.[6] However he had limited bending and lifting capability and had difficulty with activities of daily living. He could not wear shoes or socks as he was unable to bend down and put them on.[7]  He reported being assisted by a friend and his friend’s wife with many activities of daily living, including washing, ironing and cooking.  He remains independent with self-care and has a driver’s licence and his own transport.[8]  At the hearing the Applicant confirmed that at this time he would go shopping with his daughter and could walk around a supermarket with a trolley for 10-15 minutes before he would need a rest.

    [6] T30, p185, 187, 189.

    [7] T30, p189.

    [8] T31, p192.

28. In a report prepared outside the qualification period dated 30 October 2018, Dr Prasad noted the Applicant ‘suffers chronic pain: back pain, leg pain, arthritic pain’ of ‘pain scale 8/10 most days.’

    Condition 2 – Lower limbs - neuropathy

29. On 27 January 2017, Dr Sultana reported the Applicant suffered from low back pain with neuropathic pain in his lower limbs.  He noted a past medical history of “restless legs” in April 2016.[9]  On 23 April 2017, Dr Prasad completed a Medical Certificate stating the Applicant had chronic pain from bilateral radiculopathy/neuralgia in both legs that was an exacerbation of an existing condition.[10]

    [9] T27, p150.

    [10] T32, p194.

30. Medical certificates provided by Dr Prasad outside the qualification period dated 30 January 2018[11] and Dr O’Halloran dated 19 January 2018,[12] refer to the Applicant having neuralgia pain in both legs.

    [11] T37, 205.

    [12] T36, 204.

31. In his report prepared outside the qualification period on 31 July 2018, Dr Prasad noted that the Applicant suffered from neuropathy and is ‘permanently and totally disabled’.[13]  In a subsequent report dated 31 October 2018, Dr Prasad reports the Applicant suffers from ‘neuralgia type leg pains with paraesthesia’ and has restricted mobility and must use a walker all the time.  He reported the Applicant is ‘unable to sleep at night because of pain and restless leg syndrome.’  He concluded:

    Mr Lewis needs help to carry out everyday activities.  He has difficulty showering and dressing himself.  He is unable to stand or sit for more than 10 minutes. 

    He is unable to lift anything and not able to (sic) housework or gardening.

    He is permanently and totally disabled.

    [13] T45, 263.

    Other conditions

32. In the medical certificate dated 23 April 2017, Dr Prasad stated that the Applicant suffered ‘severe depressive symptoms’ and was ‘unable to concentrate’ and noted this was an exacerbation of an existing condition.[14]  In an undated report received on 20 March 2017, Ross Backen, Consultant Psychologist, noted that the Applicant had shown improvements in his depressive symptoms but still remains highly anxious.  In his opinion, the Applicant continued to have ongoing signs of stress but ‘shows limited signs of notable depression.’[15]

    [14] T32, 194.

    [15] T29, 182.

33. In his report dated 31 October 2018 (outside the qualification period), Dr Prasad reported the Applicant suffer ‘severe depressive symptoms’ and is ‘unable to make any rational decisions’.  He further noted that the Applicant is ‘confined to his home environment’ and ‘gets panic attacks if gets out in public’.

    CONSIDERATION AND REASONS

34. The first issue for determination by the Tribunal is whether the conditions were fully diagnosed, treated and stabilised during the qualification period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.

    Which of the medical conditions can be given an impairment rating?

    Condition 1 – Chronic back pain

35. The Respondent accepts that at the qualification period, the Applicant’s back condition was fully diagnosed, treated and stabilised.[16]  It contends that the appropriate rating for the impairment resulting from the Applicant’s spinal condition at the qualification period was 10 points under Impairment Table 4 – Spinal Function.[17]

    [16] Respondent’s SFIC paragraph 5.26.

    [17] Respondent’s SFIC paragraph 5.27.

36. The Respondent contends that the Applicant’s condition did not have a severe functional impact at the qualification period (30 January 2017 to 1 May 2017) as there was no contemporaneous evidence that he could not perform the tasks identified in Table 4 as indicating a severe functional impact on activities involving spinal function.

37. The Respondent pointed to the evidence that demonstrated that the Applicant was, at the qualification period, able to perform overhead activities; turn his head or bend his neck without having to turn his whole body; able to pick up an object from a desk or table; and able to remain seated for at least 10 minutes.  At the time of the JCA interview in March 2017 the Applicant reported that he had a driver’s licence and could drive for at least 30 minutes.  He remained seated during the JCA interview for a period of at least 20 minutes and confirmed he could stand for 10 minutes and walk 8-10 minutes.[18] He further reported to the JCA that at that time he was independent and could self-care, although he received assistance to perform some activities of daily living such as household chores.

    [18] T30, p185, 187, 189.

38. On the basis of the evidence before it, particularly the contemporaneous medical evidence in relation to the Applicant’s condition during the qualification period and his self-reporting to the JCA, the Tribunal is not satisfied that at the relevant time the Applicant was unable to perform the tasks listed in Table 4, which indicate a severe functional impairment and attract 20 points. 

39. The Tribunal notes that the two reports of the Applicant’s treating practitioner Dr Prasad written in 2018 indicate a more significant functional impact of his back condition on the Applicant.  This supports a finding that the Applicant’s condition has deteriorated since the time of his DSP application.  However it is not open to the Tribunal to have regard to any evidence of a progression of a medical condition to make a finding of an entitlement to DSP because of these changed circumstances: Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]. In Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29], the Federal Court confirmed that medical reports that are prepared after the qualification period will only be relevant to the extent that they refer to the claimant’s condition during the qualification period. The 2018 reports of Dr Prasad do not make such a reference to the Applicant’s condition during this period.

40. The Tribunal therefore finds that an impairment rating of ten points under Table 4 should be assigned to this condition as the functional impairment resulting from it is moderate.

    Condition 2 – Leg pain – neuropathy

41. The Respondent accepts that at the qualification period, the Applicant’s leg condition was fully diagnosed, treated and stabilised.[19] It notes that the Applicant requires the use of a walking aid and accepts that the appropriate rating for the impairment resulting from this condition at the qualification period was 5 points under Impairment Table 3 – Lower Limb Function.[20]

    [19] Respondent’s SFIC paragraph 5.26.

    [20] Respondent’s SFIC paragraph 5.42.

42. The Respondent contends that this condition did not have a moderate or severe functional impact at the qualification period (30 January 2017 to 1 May 2017) as there was no contemporaneous evidence that the Applicant could not perform the tasks identified in Table 3 as indicating a moderate or severe functional impact on activities involving lower limb function.

43. The evidence before the Tribunal is that at the qualification period the Applicant was able to drive a car, walk 8-10 minutes without the assistance of another person, stand for 10 minutes and stand up from a sitting position without assistance. At this time he could walk around a shopping centre or supermarket without assistance.  Whereas the Applicant stated that he has difficulty using stairs, there is no evidence that the Applicant required the assistance of another person to use stairs or steps at the relevant time.[21]

    [21] Respondent’s SFIC paragraph 5.42(a).

44. On the basis of the evidence before it and having regard to criteria in Table 3, the Tribunal is not satisfied that the functional impairment on the Applicant’s activities using his lower limbs during the qualification period was moderate or severe.

45. The Tribunal finds that an impairment rating of five points under Table 3 should be assigned to this condition as the functional impairment resulting from it is mild.

    Other conditions

46. The Respondent contends that the only medical evidence relating to testicular pain are medical certificates completed by Dr Prasad outside the qualification period dated 18 July 2018 and 7 August 2018.[22] It further contends that there is no medical evidence that the Applicant had a diagnosed medical condition that impacted on his neurological function.[23]

    [22] T44 p262, T46 p264.

    [23] Respondent’s SFIC paragraph 5.47.

47. In the absence of medical evidence relating to a diagnosed condition of testicular pain or a neurological condition at the qualification period, the Tribunal finds that these conditions cannot be assessed.[24]

    [24] Respondent’s SFIC paragraph 5.46.

48. With respect to the Applicant’s depression, the Respondent contends that this condition was not fully diagnosed, as there is no evidence of diagnosis by a psychiatrist or clinical psychologist, which is mandatory before any rating can be considered under Table 5 of the Impairment Tables. There is no evidence that Mr Bracken had the necessary qualifications to make the necessary diagnosis. Further, the Respondent contends there is no medical evidence of treatment or prognosis to indicate that the condition was fully treated and fully stabilised at the qualification period.[25]

    [25] Respondent’s SFIC paragraph 5.48.

1. On the basis of the evidence before it, the Tribunal cannot be satisfied that the Applicant’s depression was diagnosed by a psychiatrist or appropriately qualified psychologist, and therefore this condition cannot be assigned a rating under Table 5.

   CONCLUSION

2. During the qualification period, the Applicant suffered from impairments attracting a total rating of 15 points under the Impairment Tables. As this is less than the required total of 20 points necessary to establish eligibility for DSP, it follows that the Applicant was not qualified for DSP during the qualification period.

3. As the Applicant’s conditions are not considered permanent under the Act, it is not necessary for the Tribunal to consider whether he had a continuing inability to work during the qualification period.

   DECISION

4. The decision under review is affirmed.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

........................................................................

Dated: 15 May 2019

Date(s) of hearing:	20 March 2019
Solicitors for the Applicant:	Self-represented
Solicitors for Comcare:	Ms Claire Campbell, Department of Social Services