Mackenzie and Secretary, Department of Social Services (Social services second review)
[2017] AATA 1134
•21 July 2017
Mackenzie and Secretary, Department of Social Services (Social services second review) [2017] AATA 1134 (21 July 2017)
Division:GENERAL DIVISION
File Number: 2016/2580
Re:Israel Mackenzie
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Deputy President Dr Christopher Kendall
Mr S Rafferty, Member
Date:21 July 2017
Place:Perth
The decision under review is affirmed.
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Deputy President Dr Christopher Kendall
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – whether Applicant had condition that was fully diagnosed, treated and stabilised during the relevant period – whether Applicant had 20 impairment points under Impairment Tables – not qualified for Disability Support Pension – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 26(1), 27, 94(1), 94(1)(b), 94(2)(aa)
Social Security (Administration) Act 1999 (Cth) – Sch 2
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth) – rr 6(1)-6(9), 10(5) – Table 4, Table 5
Social Security (Requirements and Guidelines – Active Participation for DSP) Determination 2011 (Cth)
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
21 July 2017
BACKGROUND
This is an application for review of a decision made by a member of the Social Services & Child Support Division of the Administrative Appeals Tribunal (the “AAT1”) on 21 April 2016. That decision affirmed a decision to reject an application for a disability support pension (“DSP”) made by Mr Israel Mackenzie (the “Applicant”).
The Applicant originally applied for a DSP on 14 August 2015. A medical certificate of Dr Mina Moussa dated 12 August 2015 was provided in support of the claim for a DSP. On 25 October 2015, an employee of Centrelink rejected the Applicant’s claim for a DSP on the basis that the Applicant had not established that he suffered from a physical, intellectual or psychiatric condition that amounted to an impairment rating of 20 points or more as per the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth) (the “Impairment Tables”).
ISSUE
The issue to be decided by this Tribunal is whether the Applicant was qualified to receive a DSP as at the date his claim was lodged, that being 14 August 2015, or within 13 weeks thereafter.
This requires the AAT to consider the test set out in section 94 of the Social Security Act 1991 (Cth) the “Act”) – that being whether the Applicant:
(a)Had a physical, intellectual or psychiatric condition(s); and
(b)In respect of those condition(s) that were fully diagnosed, treated and stabilised, an impairment rating of 20 points or more pursuant to the Impairment Tables; and
(c)A continuing inability to work.
A hearing was conducted on Friday, 16 June 2017. The Applicant was supported at the hearing by a friend, Ms Jodie Hollingsworth. The Respondent was represented by Mr Burgess. Additional documents were tendered on behalf of the Applicant at the hearing without objection from the Respondent.
FACTUAL BACKGROUND OF PROCEEDINGS
The factual background to the Applicant’s application for DSP is as follows:
(a)In 2010, the Applicant was an employee at Mrs Mac’s Pies;
(b)The applicant had a supervisory role, which included moving containers and pallets, driving a fork lift and office work;
(c)On 16 March 2010, he was lifting two boxes and experienced pain to his neck;
(d)He continued to experience pain and stiffness to his neck;
(e)He sought treatment from a general medical practitioner. He was treated with pain killers, anti-inflammatory medication, physiotherapy and hydrotherapy;
(f)Due to on-going pain, an MRI scan was performed which revealed a prolapsed disc in the Applicant’s neck at the level of C5/6;
(g)An operation was performed on the Applicant’s neck by Mr George Wong in late 2010;
(h)The Applicant returned to work after the operation, but continued to suffer from pain and stiffness;
(i)On an unknown date in 2012, something occurred whilst the Applicant was at work, which caused a worsening of pain to his neck;
(j)Another MRI scan was performed which demonstrated a disc protrusion at the C4/5 level with pressure on the right C5 nerve;
(k)The Applicant continued to try to work; however, the on-going pain made this difficult;
(l)He received a compensation settlement payment in 2013 and has not worked since;
(m)He cannot afford to continue with physiotherapy and hydrotherapy;
(n)He takes lyrica, mersyndol forte, tramadol and naproxyn for the on-going pain;
(o)He has constant neck pain and difficulty turning his head;
(p)He lives in his own home with Ms Hollingsworth and her four children;
(q)He is restricted in the things that he can do for himself;
(r) He continues to receive treatment from Dr Moussa.
LEGISLATIVE FRAMEWORK
Subclause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (“the Administration Act”) requires the AAT to determine the issue of qualification for DSP at the date of the original application, that being 14 August 2015.
Section 94(1) of the Act prescribes that a person is qualified for 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.
The Respondent detailed the interpretation of this provision in a Statement of Facts, Issues and Contentions dated 28 October 2016 at paragraphs 5.1 to 5.20. This summary was not disputed. The Tribunal notes as follows in this regard.
Subsection 26(1) of the Act provides that the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for DSP.
In accordance with section 27 of the Act, the tables to be applied are contained in the Impairment Tables, which took effect from 1 January 2012.
Part 2 of the Impairment Tables contains the rules for applying the tables (the “Rules”). The Impairment Tables are function based rather than diagnosis based and describe functional activities, abilities, symptoms and limitations and are designed to assign ratings to determine the level of functional impact of impairments and not to assess conditions.
‘Impairment’ is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition. The Impairment Tables provide that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[1]
[1] Subsection 6(1) of the Rules.
The Impairment Tables may only be applied after the person’s medical history has been considered.[2] An impairment rating can only be assigned if an impairment is permanent; being fully diagnosed, treated and stabilised and likely to persist for more than 2 years.[3]
[2] Subsection 6(2) of the Rules.
[3] Subsection 6(3) - 6(7) of the Rules.
In determining whether a condition has been fully diagnosed and fully treated, the following must 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 planned in the next 2 years.[4]
[4] Subsection 6(5) of the Rules.
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 either:
(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.[5]
[5] Subsection 6(6) of the Rules.
The existence of a diagnosed condition will not necessarily result in a rating being assigned under the Tables. Where an impairment has no functional impact, no rating will be assigned.[6]
[6] Subsection 6(8) of the Rules.
The Impairment Tables also provide that where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[7]
[7] Subsection 10(5) of the Rules.
As there is no table dealing with pain, when assessing pain, chronic pain as a condition must be considered. Where chronic pain has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected.[8] Further guidance regarding the application of the Impairment Tables to a chronic pain condition can be found in the Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension (the “Guidelines”). In particular, the Guidelines note:
(a)where chronic pain does not impact physical exertion and stamina there will be no need to consider the use of Table 1 – Functions requiring Physical Exertion and Stamina,
(b)where chronic pain does impact physical exertion and stamina and this is adequately assessed by another selected Table, there will be no need to consider the use of Table 1 – Functions requiring Physical Exertion and Stamina,
(c)where chronic pain impacts physical exertion and stamina (i.e. results in fatigue symptoms) and this is not adequately assessed by another Table, Table 1 – Functions requiring Physical Exertion and Stamina may need to be considered, while ensuring that the level of impairment is not overstated.
[8] Subsection 6(9) of the Rules.
Although the Guidelines are Government policy and therefore do not carry the same legislative weight as the Impairment Tables, the Secretary contends that to ensure consistency in decision-making, the Guidelines should be followed unless there are cogent reasons to depart from their application.[9]
IMPAIRMENT AND APPLICATION OF THE IMPAIRMENT TABLES
[9] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Neck Pain
The Tribunal has had regard to the following documents:
(a) DSP claim form dated 13 August 2015;
(b)Various medical certificates signed by Dr Mina Moussa covering the period between May 2015 and May 2016;
(c)4 x letters from the Applicant’s rheumatologist, Dr Jack Edelman written between February 2013 and March 2016;
(d) Report from Mr George Wong, neurosurgeon, dated 22 May 2012;
(e) JCA report dated 19 October 2015;
(f) Report of Dr Moussa dated 28 October 2015;
(g) Medical report from Dr Moussa dated 29 October 2015;
(h) Form detailing work capacity signed by the Applicant and dated 27 October 2015;
(i)Report of return to work programme from Southern Rehabilitation dated 29 September 2011 and subsequent report dated 4 November 2011;
(j) Report of MRI scan cervical spine performed on 27 February 2013;
(k)Reports of X-rays of cervical spine performed on 11 February 2008 and 11 January 2011;
(l) Letter from J Mokrum (ARO) dated 7 November 2013;
(m) Report of radiologist, Dr Rodney Greenberger dated 11 January 2017;
(n)Letter from physiotherapist, Ms Kirsty Bowering of Belmont City Physiotherapy dated 14 June 2017.
There is no issue that the Applicant suffers from neck pain and has done so for a significant period of time since his accident at work in 2010. The totality of the information establishes that he suffers from neck pain. He therefore satisfies the first test established by section 94(1) of the Act in that he has a “physical impairment”.
The issue for the Tribunal to consider is how many points can be allocated to this impairment as per Table 4 of the Impairment Tables – that relating to Spinal Function.
Based on the evidence provided in support of the application, the Tribunal is satisfied that the Applicant’s condition falls within the moderate impairment category in the relevant Impairment Table (ie, he can be allocated 10 points under Table 4).
Moderate functional impact on activities involving spinal function involves the following considerations:
a)The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(i)The person is unable to sustain overhead activities (e.g. accessing items over head height); or
(ii)The person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(iii)The person is unable to bend forward to pick up a light object placed at knee height; or
(iv)The person needs assistance to get up or out of a chair (if not independently mobile in a wheelchair).
On the evidence, the Applicant would clearly not fall within the next category of functioning (severe impairment – 20 points), as to fall within that category a person must be unable to:
(a) Perform any overhead activities; or
(b) Turn their head, or bend their neck, without moving their trunk; or
(c) Bend forward to pick up a light object from a desk or table; or
(d) Remain seated for at least 10 minutes.
There is a letter from Mr Jack Edelman dated 16 March 2016 which notes that:
(a) The Applicant is unable to perform any overhead activities;
(b) There is a severe limitation of neck movements;
(c)It is difficult for him to pick up anything including light objects without bending at the trunk;
(d)He cannot sit for any period of time as he cannot bend his neck forward to look at any object on a table or anything of this nature.
It has previously been held that, ‘… consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks).’[10]
[10] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (24 December 2012)
The decision in Bobera does not mean that an applicant cannot rely upon medical evidence obtained subsequent to the making of an application for DSP and the 13 week period following such an application, however such evidence must be ‘referrable to the applicant’s condition during the relevant period.’[11]
[11] Fanning and Secretary, Department of Social Services [2014] AATA 447 per DP Handley at [33]
Unfortunately, the Tribunal is unable to refer the findings of Dr Edelman in his letter dated 16 March 2016 to the period relevant to the Applicant’s application for a DSP. There is a lack of clarity in Dr Edelman’s letter that makes it of no assistance to the Tribunal or the Applicant. It is also be noted that in his previous letter dated 27 February 2016, Dr Edelman states that he had not seen the Applicant in three years and there is nothing to suggest the basis of the findings in his subsequent letter dated 16 March 2016.
A finding of a moderate impairment of spinal function is therefore appropriate, thereby as apportioning 10 points from Impairment Table 4 – Spinal Function.
Depression
There is no doubt that the Applicant has become increasingly frustrated and upset as a result of his on-going inability to work, pain and suffering and inability to qualify for a DSP. However, for a finding to be made that he has a psychiatric impairment, there would need to be a diagnosis made by a psychiatrist or clinical psychologist. In this case, there is no evidence relied upon by the Applicant from a psychiatrist or clinical psychologist.
In the absence of appropriate evidence required by the relevant legislation, no specific findings can be made in respect to the issues of:
(a) self/care and independent living;
(b) social/recreational activities and travel;
(c) interpersonal relationships;
(d) concentration and task completion;
(e) behaviour, planning and decision-making;
(f) work/training capacity.
In the absence of evidence and findings relevant to Table 5 – Mental Health Function, no finding can be made in respect to the issue of the Applicant’s mental health and no points can be apportioned for the purpose of assessing whether the Applicant qualifies for a DSP.
Lower Back Pain
The only evidence that the Applicant suffers from lower back pain is:
(a) Statements by Dr Moussa that the Applicant suffers from lower back degeneration;
(b) Self-reports from the Applicant.
The Tribunal does not doubt the veracity of the Applicant’s self-reported pain; however, for this factor to be taken into account there would need to be evidence as to what treatment or rehabilitation has occurred and whether treatment is continuing or is planned in the next two years.
It is also noted that the Applicant reported to the JCA that his lower back pain had not been investigated or diagnosed and that it was referred pain originating from his neck.
On the evidence, the Applicant’s lower back condition was not fully diagnosed, treated and stabilised during the relevant period. Given the absence of this evidence, the Tribunal cannot allocate any points to the Applicant for his lower back condition.
OVERALL FINDING AS TO IMPAIRMENT
Based on a consideration of the evidence relied upon by the Applicant that has application as at the relevant period in 2015, the Tribunal has determined that:
(a) There is a moderate functional impact on activities involving spinal function;
(b)There is no evidence capable of leading to a finding in respect of mental function;
(c)There is no evidence capable of leading to a finding in respect of the lower back issues relied upon by the Applicant in support of his application;
(d)The total number of points to be apportioned having regard to the Impairment Tables is 10.
CONCLUSION
The Applicant has failed to satisfy the second test prescribed by section 94(1)(b) of the Act – that being an impairment of 20 points or more.
As the Tribunal has found that the Applicant did not qualify for a DSP at the relevant time having regard to the evidence relied upon in support of the application, it is unnecessary to consider whether he had a continuing inability to work. However, it should be noted that a requirement of section 94(2)(aa) of the Act is that a person has participated in a program of support (“POS”) for 18 months in the 36 months prior to the date of the claim for a DSP. There is no evidence that the Applicant participated in a POS at any time in the 36 month period preceding his application for a DSP.
DECISION
For the reasons outlined above, the decision under review is affirmed.
I certify that the preceding 42 (forty two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.
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Administrative Assistant
Dated: 21 July 2017
Date of hearing: 16 June 2017 Representative of the Applicant: Ms J Hollingsworth Representative of the Respondent: Mr A Burgess Solicitors for the Respondent: Sparke Helmore
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