Lord and Secretary, Department of Social Services (Social services second review) - [2017] AATA 3075

Lord and Secretary, Department of Social Services (Social services second review) [2017] AATA 3075 (22 December 2017)
Division:GENERAL DIVISION
File Number: 2017/1053
Re:Wayne Lord
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member P E Nolan
Date:22 December 2017
Place:Brisbane

The decision under review is affirmed.
...........................[Sgd]........................................
Senior Member P E Nolan
CATCHWORDS
SOCIAL SECURITY – disability support pension – cancellation – whether impairments are of 20 points or more under the Impairment Tables – depression – spinal condition – osteoarthritis of the knee, hip and wrist – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Natalizi and Secretary, Department of Social Services [2014] AATA 803
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION
Senior Member P E Nolan
22 December 2017
INTRODUCTION

On 27 May 2016, Mr Wayne Lord’s (the “Applicant”) Disability Support Pension (“DSP”) was cancelled.[1] The Applicant unsuccessfully sought review of that decision, first by an Authorised Review Officer (“ARO”)[2] and then by the Social Security and Child Support Division of the Tribunal (“SSCSD”).[3] On 22 February 2017, the Applicant applied for Second Review of Decision with the General Division of the Administrative Appeals Tribunal (“this Tribunal”).[4]
[1] Exhibit 2, T-documents, T32, pp. 189-190, Notice of Cancellation dated 27 May 2016.
[2] Exhibit 2, T-documents, T33, pp. 191-195, ARO decision dated 6 August 2016.
[3] Exhibit 2, T-documents, T2, pp. 3-9, SSCSD decision dated 24 January 2017.
[4] Exhibit 2, T-documents, T1, pp. 1-2, Application for Review dated 22 February 2017.
For the reasons outlined below, I consider that the decision to cancel his DSP was correct, and should be affirmed.
BACKGROUND
The Applicant was granted DSP with effect from 12 August 1999 for a musculoskeletal disorder.[5]
[5] Exhibit 2, T-documents, T37, p. 201, Centrelink records dated 6 September 2016.
On 11 March 2016, the Applicant was issued a medical review form for the purpose of reviewing his ongoing qualification for DSP.[6] In the portion of the review form completed by the Applicant, he listed his disabilities, illnesses and injuries as:
“Osteoarthritis
Right Knee
Right Hip
Left Wrist”[7]
[6] Exhibit 2, T-documents, T29, pp. 171-4, Medical Report: Disability Support Pension Review dated 29 March 2016.
[7] Exhibit 2, T-documents, T29, p. 172, Medical Report: Disability Support Pension Review – Section A dated 29 March 2016.
The Applicant’s general practitioner, Dr Ross Maxwell, completed a medical report as part of the medical review process. Dr Maxwell stated that the condition with the most impact on the Applicant’s ability to function was “osteoarthritis (R) knee [and] (R) hip.”[8] He also noted the Applicant had “osteoarthritis [in his] (L) wrist.”[9] The medical report indicated that the diagnoses of those conditions were presumptive and further investigations were planned.[10]
[8] Exhibit 2, T-documents, T30, p. 177, Medical Report: Disability Support Pension Review – Section B dated 29 March 2016.
[9] Exhibit 2, T-documents, T30, p. 180, Medical Report: Disability Support Pension Review – Section B dated 29 March 2016.
[10] Exhibit 2, T-documents, T30, pp. 177, 180, Medical Report: Disability Support Pension Review – Section B dated 29 March 2016.
On 11 May 2016, the Applicant attended an assessment with a Job Capacity Assessor (“JCA”) who subsequently produced a report dated 12 May 2016.[11] The JCA assessed the Applicant’s osteoarthritic condition as verified by medical evidence and concluded it was fully diagnosed. However, the JCA concluded that the condition was not fully treated or stabilised. Additionally, the Applicant’s baseline work capacity and predicted work capacity within 2 years with intervention was assessed by the JCA as 15 to 22 hours per week.[12]
[11] Exhibit 2, T-documents, T31, pp. 185-188, Job Capacity Assessment Report dated 12 May 2016.
[12] Exhibit 2, T-documents, T31, p. 187, Job Capacity Assessment Report dated 12 May 2016.
On 27 May 2016, the Applicant’s DSP was cancelled on the basis that he did not have an impairment rating of 20 or more impairment points.[13]
[13] Exhibit 2, T-documents, T32, pp. 189-190, Notice of Cancellation dated 27 May 2016.
The Applicant sought review of that decision by an ARO. The ARO affirmed the cancellation decision.[14] The Applicant sought further review by way of first tier review before the SSCSD of the Tribunal. On 24 January 2017, the SSCSD of the Tribunal affirmed the decision under review. [15] The SSCSD assigned the Applicant an impairment rating of 15 points, which consisted of:
·Osteoarthritis of the right knee and hip: an impairment rating of 10 points under Impairment Table 3;[16] and
·Lumbar back pain: an impairment rating of 5 points under Impairment Table 4.[17]
No impairment rating was assigned to the Applicant’s wrist condition.[18]
[14] Exhibit 2, T-documents, T33, pp. 191-195, ARO decision dated 6 August 2016.
[15] Exhibit 2, T-documents, T2, pp. 3-9, SSCSD decision dated 24 January 2017.
[16] Exhibit 2, T-documents, T2, p. 7, SSCSD decision dated 24 January 2017, para 7.
[17] Exhibit 2, T-documents, T2, p. 7, SSCSD decision dated 24 January 2017, para 47.
[18] Exhibit 2, T-documents, T2, p. 7, SSCSD decision dated 24 January 2017, para 40.
On 22 February 2017, the Applicant applied to this Tribunal.[19]
[19] Exhibit 2, T-documents, T1, pp 1-2, dated 22 February 2017.
ISSUES FOR THE TRIBUNAL
The issues for me to consider are whether at 27 May 2016 (the “date of cancellation”):
(a)The Applicant had a physical, intellectual or psychiatric impairment which was fully diagnosed, treated and stabilised;
(b)Applicant’s conditions warranted an impairment rating of 20 points or more under the Impairment Tables; and
(c)whether the Applicant has a continuing inability to work.
THE LEGISLATIVE FRAMEWORK
Section 80(1) of the Social Security (Administration) Act 1999 (Cth) (the “Administration Act”), provides that where the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for that payment, the Secretary is to determine that the payment is to be cancelled or suspended. The question of whether the person is qualified or not is to be determined as at the day on which the cancellation occurs.[20] In this case, the date of cancellation is 27 March 2016.
[20] See Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met:
(a)The Applicant must have a physical, intellectual or psychiatric impairment;
(b)The Applicant’s impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”);[21] and
(c)The Applicant must have a continuing inability to work.
[21] A legislative instrument made under the Act: see Social Security Act 1991 (Cth) s 26(1).
Section 27 of the Act states that if a person receiving DSP is assessed by the Secretary, then the Secretary must apply the instrument as in force under s 26 of the Act on the day the notice of receive was given. As this Applicant was given notice advising of review on 11 March 2016, the Impairment Tables should be applied.[22]
[22] See Natalizi and Secretary, Department of Social Services [2014] AATA 803 at [3].
Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results is more likely than not, in light of the available evidence, to persist for more than two years.[23] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not to persist for more than two years.[24]
[23] See s 6(3) of the Determination.
[24] See s 6(4) of the Determination.
In determining whether a condition has been fully diagnosed and fully treated, the following facts are to be considered:
(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 next two years.[25]
[25] See s 6(5) of the Determination.
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.[26]
[26] See s 6(6) of the Determination.
“Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[27]
[27] See s 6(7) of the Determination.
In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.
CONSIDERATION
Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?
The Respondent accepted that the Applicant has impairments for the purposes of

s 94(1)(a) of the Act.[28] I am satisfied that concession is appropriate in light of the medical evidence. I will deal with each condition separately below.
[28] Respondent’s Statement of Facts, Issues and Contentions dated 17 May 2017, para 32.
Depression
The Applicant says that he has depression. There is some corroborating medical evidence to support the Applicant’s self-reported symptoms.[29] However, there is no evidence before the Tribunal that indicates the Applicant’s mental health condition has been diagnosed by an appropriately qualified medical practitioner such as a clinical psychologist or psychiatrist as at the date of cancellation.
[29] Exhibit 2, T-documents, T27, p. 164, Medical report of Dr Rahman dated 2 November 2005.
To be assigned an impairment rating under Table 5 – Mental Health Function a diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist) before a condition could be seen as fully diagnosed.
Accordingly, I find that the Applicant’s mental health condition was not fully diagnosed at the date of cancellation and therefore an impairment rating cannot be assigned.
Osteoarthritic conditions
The Respondent contends that the Applicant’s osteoarthritic conditions were not fully diagnosed, treated or stabilised as at the date of cancellation and therefore should not be assigned an impairment rating under the Impairment Tables.[30] In the alternative, the Respondent says the conditions should be assigned zero points under the relevant Impairment Tables.[31]
[30] Respondent’s Statement of Facts, Issues and Contentions dated 15 May 2017, para 33.
[31] Respondent’s Statement of Facts, Issues and Contentions dated 15 May 2017, para 36.
The Applicant’s general practitioner, Dr Maxwell, provided three medical reports dated

29 March 2016 (“the First Report”),[32] 7 December 2016 (“the Second Report”), [33] and
[32] Exhibit 2, T-documents, T30, pp. 175-184, Medical Report: Disability Support Pension Review – Section B dated 29 March 2016.
[33] Exhibit 2, T-documents, T36, pp. 199-200, Report of Dr Maxwell dated 7 December 2016.

29 June 2017 (“the Third Report”):[34]
(a)The First Report stated that the Applicant had osteoarthritis of the right knee, right hip and left wrist.[35] However, those diagnoses were listed as “presumptive” and further investigations/tests planned.[36] The First Report indicated that further treatment by way of “plain x-rays” was required for the Applicant’s osteoarthritis of the right knee and hip.[37]
(b)The Second Report, which post-dates the cancellation decision, states that the Applicant’s “osteoarthritic wrist condition” and “right leg pain … [from] soft tissue calcification surrounding his right hip joint” were fully diagnosed, treated and stabilised.[38] Notably, Dr Maxwell states that the questions were “answered as they would have been … at the date of … cancellation.”[39]
(c)
The Third Report, which is most recent and post-dates the cancellation decision, provides assessments in relation to the functional impacts of the Applicant’s conditions. The Third Report does not provide any information about the diagnosis, treatment or stabilisation of any condition suffered by the Applicant. The report, instead, outlines the functional impact of these conditions had as at or around

27 May 2016.[40]
[34] Exhibit 1, Report of Dr R Maxwell dated 29 June 2017.
[35] Exhibit 2, T-documents, T30, pp. 177, 180, Medical Report: Disability Support Pension Review – Section B dated 29 March 2016.
[36] Exhibit 2, T-documents, T30, pp. 177, 180, Medical Report: Disability Support Pension Review – Section B dated 29 March 2016.
[37] Exhibit 2, T-documents, T30, p. 178, Medical Report: Disability Support Pension Review – Section B dated 29 March 2016.
[38] Exhibit 2, T-documents, T36, pp. 199-200, Supplementary Report of Dr Maxwell dated 7 December 2016.
[39] Exhibit 2, T-documents, T36, p. 199, Supplementary Report of Dr Maxwell dated 7 December 2016.
[40] Exhibit 1, Report of Dr R Maxwell dated 29 June 2017.
The Respondent submitted that little weight should be afforded to the Second Report on the basis that:
(a)the Second Report conflicts with Dr Maxwell’s previous report that indicated further radiological investigations were required to confirm the diagnoses;
(b)the Second Report was produced after the date of cancellation; and
(c)the Applicant’s conditions have not been subject to specialist review or any form of conservative treatment for the past 32 years.[41]
[41] Respondent’s Statement of Facts, Issues and Contentions dated 15 May 2017, para 35.
At the hearing the Respondent made submissions to the effect that the Third Report did not address the treatment or stabilisation of the conditions.
I will address the reports of Dr Maxwell in my findings in relation to each of the Applicant’s osteoarthritic conditions below.
(A) Osteoarthritic wrist condition
The First Report of Dr Maxwell indicated that he was making a presumptive diagnosis of this condition and that further investigations/tests were planned to confirm the diagnosis, however no further tests were detailed in the report.[42] The Second Report of Dr Maxwell indicated that he considered the condition to be fully diagnosed and that there was no further reasonable treatment, however did not address the change of opinion from that provided in the First Report.[43] The Third Report of Dr Maxwell did not address the issue of diagnosis. I find that the Second Report has no weight in relation to the diagnosis of this condition, as it does not detail or confirm whether further investigations/tests mentioned in the First Report were performed, it was produced seven months after the date of cancellation, and it outlines no recent specialist review of the condition. I find that the Applicant’s wrist condition was not fully diagnosed at the date of cancellation.
[42] Exhibit 2, T-documents, T30, p. 180, Medical Report by Dr Maxwell dated 29 March 2016.
[43] Exhibit 2, T-documents, T36, p.199, Medical Report by Dr Maxwell dated 7 December 2016.
Further, I am not satisfied that the condition has been fully treated and stabilised. The evidence before me shows that between the initial treatment, predominately in 1984, and the First Report there has been little to no recent medical investigation or treatment. Although the First Report indicated further investigations were to be carried out, there is no evidence before the Tribunal that any further actions were taken. At the hearing, the Applicant told the Tribunal he had not undergone any recent treatment or tests.
As the condition has not been fully diagnosed, treated and stabilised, it cannot be assignment an impairment rating under the Impairment Tables.
(B) Osteoarthritic right knee and hip
The First Report of Dr Maxwell indicated that he was making a presumptive diagnosis and that further investigations/tests were planned to confirm the diagnosis, however no further tests were detailed in the report, except for “plain x-rays”.[44] The Applicant provided evidence that he had not undergone any recent x-rays. I find that the Applicant’s right knee and hip condition was not fully diagnosed by an appropriately qualified medical practitioner.
[44] Exhibit 2, T-documents, T30, p. 180, Medical Report by Dr Maxwell dated 29 March 2016.
While the Second Report of Dr Maxwell provided that he considered the condition to be fully diagnosed and that there was no further reasonable treatments, the report did not address the change of opinion from that provided in the First Report where it was indicated that further x-rays should be taken. As such I find that the Second Report has no weight in relation to the diagnosis of this condition.
Based on the First Report of Dr Maxwell, the length of time between the initial treatment (which according to the evidence before me was predominately provided in 1984), and with no recent medical investigation or treatment, I am not satisfied that the condition has been fully diagnosed, treated, and stabilised.
Lumbar Back Pain
The Respondent concedes that the Applicant’s spinal disorder was fully diagnosed.[45] However, the Respondent contends that the condition has not been fully treated or fully stabilised at the date of cancellation, and thus should not be assigned an impairment rating under the Tables.[46]
[45] Respondent’s Statement of Facts, Issues and Contentions dated 15 May 2017, para 41.
[46] Respondent’s Statement of Facts, Issues and Contentions dated 15 May 2017, para 41.
The First Report of Dr Maxwell does not refer to this condition at all, however the Second Report states that the condition was fully diagnosed, treated and stabilised at the date of cancellation.[47] While in the Second Report Dr Maxwell stated that there are “no other reasonable treatments” and the Applicant is “not suitable for surgery”[48], there is insufficient detail to allow me to be satisfied of this assertion.
[47] Exhibit 2, T-documents T36, p. 199, Supplementary Report of Dr Maxwell dated 7 December 2016.
[48] Exhibit 2, T-documents T36, p. 199, Supplementary Report of Dr Maxwell dated 7 December 2016.
The Respondent submitted and I agree that little weight should be attached to the Second Report on the basis that there is no evidence of:
·the Applicant receiving any treatment for this condition prior to the date of cancellation (other than pain medication); and
·specialist review, pain management intervention, physiotherapy or any other form of sustained conservative treatment.[49]
[49] Respondent’s Statement of Facts, Issues and Contentions dated 15 May 2017, para 43.

I find that the condition was not fully treated or stabilised at the date of cancellation as there is no evidence before the Tribunal that the Applicant has undertaken reasonable treatment for the condition. No impairment points can therefore be assigned.
Conclusion on impairment rating
As the Applicant’s conditions are not fully diagnosed, treated, and stabilised they cannot be assigned impairment points and therefore do not attract an impairment rating of 20 points or more under the Impairment Tables. The Applicant does not satisfy s 94(1)(b) of the Act.
Continuing Inability to Work?
Given that the Applicant’s does not reach 20 points or more under the Tables, it is not necessary for me to consider whether he satisfies the remaining criteria to qualify for the DSP. However, the Tribunal notes that the Respondent concedes that the Applicant satisfied the continuing inability to work requirement as at the date of cancellation and was not required to participate in a program of support.[50]
[50] Respondent’s Statement of Facts, Issues and Contentions dated 15 May 2017, paras 53-54.
CONCLUSION
The decision under review is affirmed.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of
Senior Member P E Nolan

....................[Sgd].............................................
Associate
Dated: 22 December 2017

Date of hearing: 18 September 2017

Applicant: In person

Solicitors for the Respondent: Ms Claire Campbell
Department of Human Services

Date of hearing:	18 September 2017
Applicant:	In person
Solicitors for the Respondent:	Ms Claire Campbell Department of Human Services