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

[2015] AATA 626

Madgwick and Secretary, Department of Social Services (Social services second review) [2015] AATA 626 (24 August 2015)

Division	GENERAL DIVISION
File Number(s)	2015/1608
Re	Stephen MADGWICK
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr C Ermert, Member
Date	24 August 2015
Place	Melbourne

The Tribunal affirms the decision under review.

…………[sgd]…………………

Mr C Ermert, Member

Catchwords

SOCIAL SECURITY – disability support pension – whether conditions fully diagnosed, treated and stabilised within the qualification period – decision affirmed.

Legislation

Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Administration) Act 1999

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Cases

Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404

REASONS FOR DECISION

Mr C Ermert, Member

INTRODUCTION

1. At the age of five Mr Madgwick, the Applicant, was involved in a truck accident.  As a result of this accident his left leg was amputated below the knee, his right ankle required extensive surgery and he suffered damage to his left eye.  Mr Madgwick is now aged 47.  He previously received the disability support pension (DSP) but his payments were cancelled on 17 April 2013. 

2. On 6 June 2014 Mr Madgwick lodged a new claim for DSP with Centrelink.  (Centrelink is the service provider for the Department of Social Services, the Respondent.)  In his claim Mr Madgwick recorded his disabilities as Damaged Optic Nerve, Amputation left leg below knee, Trauma right foot + ankle, Anxiety, Depression, Rosacia. 

3. On 11 July 2014 a Centrelink  officer issued a notice rejecting this claim on the basis that the impairments resulting from Mr Madgwick’s conditions did not attract 20 or more points according to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). On             28 November 2014 an Authorised Review Officer (ARO) from Centrelink found that Mr Madgwick had a total impairment rating of 15 points and affirmed the original decision.  On 4 March 2015 the Social Security Appeals Tribunal (SSAT) affirmed the decision of the ARO.

4. This matter is an application for review of the SSAT decision.

   HEARING

5. At the hearing Mr Madgwick represented himself, and gave his evidence under affirmation by telephone.  Ms Julie Zhou, a solicitor with the Department of Human Services, represented the Respondent, also by telephone. 

6. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).  For Mr Madgwick I took in as Exhibit A1 a report by Dr Farokh Irani, an eye surgeon, dated        16 July 2015.  For the Respondent I took in the Secretary’s Statement of Facts and Contentions dated 7 July 2015.

   LEGISLATION

7. The legislation relevant to this matter is contained in the Social Security Act 1991 (the Act).

8. Section 94 of the Act  relevantly prescribes the qualifications for DSP:

   (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.

9. A person’s impairment is assessed by reference to the Impairment Tables.

   QUALIFICATION PERIOD

10. Sections 41 and 42 and Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) provide that the date for the determination of the claim is the date of the claim. The only exception is where a person is not qualified on the date of claim but becomes qualified within 13 weeks of lodging the claim, in which case their start day is the day they become qualified.

11. Mr Madgwick lodged his claim on 6 June 2014.  I therefore find that the qualification period is from 6 June 2014 to 5 September 2014.

    ISSUES

12. The issues are whether, during the qualification period, Mr Madgwick:

    ·had any physical, intellectual or psychiatric impairments; and, if so

    ·the impairments attracted a rating of 20 points or more under the Impairment Tables; and, if so

    ·he had a continuing ability to work.

    EVIDENCE

13. In his evidence Mr Madgwick said his earlier pension had been cancelled as he no longer qualified under the points system.  He said that, since then, he has provided Centrelink with more documentation which he believes is sufficient to support a rating of 20 impairment points.

14. Mr Madgwick said he was diagnosed with clinical depression and anxiety three years ago.  He said further that since the age of five he had suffered from being half blind in his left eye and from the loss of his left leg and the injury to his right foot.

15. In answer to questions from Ms Zhou regarding the effect of his left leg amputation and right foot injury, Mr Madgwick said he has to drive everywhere as the time he can spend on his feet is limited by pain. After five minutes the pain starts and just gets worse until,   after two hours it is very bad.  Mr Madgwick described the pain as varying throughout the day and affecting different areas. 

16. In regard to everyday activities Mr Madgwick said he can do daily chores, such as shopping and laundry, but he has to do them on different days.  He said he drives to the shops and then walks into and around the shops although it gives him pain and he is as quick as possible.  In addition, Mr Madgwick said:

    ·he does not require assistance from another person to get around;

    ·he can stand up without assistance; and

    ·he does not need walking sticks or other aids to walk.

17. When asked about his previous work as an integration aid Mr Madgwick said he assisted children with disabilities at Echuca College. He said he performed that work for about seven years to 2013, working 28 hours per week, even though the pain was almost unbearable at times.  Mr Madgwick stopped work because his contract ended.

18. In regard to his psychiatric condition Mr Madgwick said he had been Dr Chakrabarti, the psychiatrist, on one occasion only.  He said Dr Chakrabarti told him he did not need to see him again.  Mr Madgwick said he had been on medications since then and was currently taking Pristiq.  In addition, he had attended fortnightly counselling sessions with a psychologist but he could not remember for how long.

19. In answer to further questions Mr Madgwick responded that:

    ·he lives on his own;

    ·he performs his own household chores but spreads them out over a few days;

    ·he does not see friends or relatives on a regular basis;

    ·he plays computer games, collects football cards and watches films on television, but sometimes [his] mind wanders.

20. In regard to his eye functions Mr Madgwick said he cannot see down and to the left, and if he closes his unimpaired right eye his sight is not clear.  He said he wears glasses occasionally but does not need other vision aids.

21. Ms Zhou asked Mr Madgwick about the certificate in training and assessment mentioned in the reasons for the SSAT decision (T-2, page 8).  Mr Madgwick said he began the course in February 2014.  It was group training conducted at the Kyabram Learning Centre.  He attended one day a week for about six hours each day.  He could not remember the duration of the course.

22. In answer to my questions regarding his prosthetic Mr Madgwick replied that:

    ·he was fitted with a new prosthetic about two months ago; it is suitable for him and has given him little trouble;

    ·the old prosthetic did not fit well and he had to wear three socks with it;

    ·often, he could not wear it and so had to take time off work; and

    ·he would be off work for this reason and his absence could last one to three days depending on the days of the week involved.

    SUBMISSIONS

23. In his submissions Mr Madgwick said that his work had become more difficult every year.  He submitted that during the qualifying period he could not do what he had previously been able to do.  He contended that he was diagnosed with anxiety and depression because he could not stand the pain.  He added that at the end of some days at work there would be blood in the socket of his prosthesis and his right foot would hurt so badly that he could barely walk to his car.  Mr Madgwick submitted that he now suffers from involuntary movements in his arms and legs such as jerking and shaking.  He said that he wants to work but just cannot do what I used to do. 

24. In her submissions Ms Zhou accepted that, during the qualifying period, Mr Madgwick suffered physical impairments that satisfied subsection 94(1)(a) of the Act.

25. In regard to Mr Madgwick’s amputated left leg and right ankle injury, Ms Zhou accepted that this impairment was fully diagnosed, treated and stabilised.  Relying on the Job Capacity Assessment (JCA) report of 10 July 2014 (T-23) Ms Zhou contended that the impairment should be assessed at 10 points.  She submitted that there was not sufficient evidence to justify an assessment of 20 points.

26. In regard to his anxiety and depression Ms Zhou noted that Mr Madgwick had consulted a psychiatrist, Dr Chakrabarti. However she pointed out that this was a one-off session and that Mr Madgwick was not receiving psychiatric treatment at the qualifying period.  In addition she contended that, in his report, Dr Chakrabarti had not actually provided a diagnosis but had only described symptoms.  She contended that, as a result, the condition was not fully diagnosed, treated and stabilised and so could not be assessed for impairment points.

27. In regard to Mr Madgwick’s left eye condition Ms Zhou submitted that at the qualifying period the condition had not been diagnosed in accordance with the requirements of Impairment Table 12 – Visual Function.  She submitted that the diagnosis by Dr Irani (Exhibit A1) was made outside the qualifying period.  In the alternative Ms Zhou contended that the evidence supports only an assessment of five points.  She contended that, for an assessment of 10 points, there would need to be evidence that Mr Madgwick needed to use vision aids or devices other than his spectacles.

28. Ms Zhou contended that the maximum impairment rating could be only 15 points which is less than the 20 points required by subsection 94(1)(b) of the Act.

29. In regard to subsection 94(1)(c) of the Act Ms Zhou relied on the JCA report (T-23) and contended that there is no evidence that Mr Madgwick was not able to work at least 15 hours per week and that he has not actively participated in a program of support for 18 months in the 36 months prior to the qualifying period.  Ms Zhou contended that, as a result, Mr Madgwick does not satisfy the provisions of subsection of 94(1)(c) of the Act.

30. Ms Zhou argued that during the qualifying period Mr Madgwick did not satisfy all the subsections of section 94(1) of the Act.  As a result he was not qualified for the DSP and the SSAT decision should be affirmed.

31. In response Mr Madgwick referred to the report of Mr Fuller, an optometrist (T-12, page 84) and contended that his eye condition was fully diagnosed, treated and stabilised.  In regard to his depression and anxiety Mr Madgwick said he had gone to see a psychiatrist as required by Centrelink.  He submitted that the psychiatrist had agreed with the treatment prescribed by his treating general practitioner (GP), which he had followed.     Mr Madgwick maintained that his GP’s evidence was being ignored.

32. In concluding, Mr Madgwick said he wants to work, he has done everything he has been told to do and he does not understand why his DSP is still being refused.

    TRIBUNAL CONSIDERATIONS

33. It is conceded by the Respondent, correctly in my opinion, that during the qualifying period Mr Madgwick had impairments from the following conditions, which satisfied the requirements of section 94(1)(a) of the Act:

    1.Below left knee amputation and fused right ankle;

    2.Depression and anxiety; and

    3.Left eye vision.

34. The concession is in accordance with the evidence and I find accordingly.

35. I must now determine whether Mr Madgwick’s impairments attract an impairment rating of 20 points or more under the Impairment Tables according to section 94(1)(b) of the Act.

36. Section 6(3) of the Impairment Tables provides that a rating can only be assigned to an impairment if the person’s condition is permanent and the impairment is likely to persist for more than two years.  Section 6(4) provides that a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and stabilised.

37. I will consider each condition in turn.

    Below left knee amputation and fused right ankle

38. In its Statement of Facts and Contentions the Respondent accepts that this condition was fully diagnosed, fully treated and fully stabilised at the relevant period and can be assigned an impairment rating from the Impairment Tables.  I am satisfied that this contention is supported by the evidence and find accordingly.

39. Subsections 10(5) and 10(6) of the Impairment Tables provide that, where two or more conditions cause a common or combined impairment, a single rating should be assigned to the common impairment.

40. Subsection 11(4) provides that where a condition causes episodic or fluctuating impairments 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. 

41. In considering the impairment from this condition I note the following:

    ·Dr Gough’s report, undated (T-11), which records “Pain in R leg, Can’t stand long… limitation to mobility, Back pain secondary;

    ·the Employment Services Assessment of 2 September 2013 which notes The client reported on bad days he is unable to walk … walking is limited to 250 metres, to use stairs the client requires the use of hand rails, limited ankle movement and he is unable to squat;

    ·Dr Molodov’s report, dated 22 November 2013 (T-16), which records extreme difficulty walking due to left below knee amputation and chronic right ankle/leg pain;

    ·the JCA report of 10 July 2014 which records Recommended Rating: 10… Moderate impact on activities involving lower limbs, including walking short distances, standing still, squatting, using stairs.  Customer does not regularly use walking aides, is able to rise from a chair unassisted and can move about his home without general assistance.  I note this report is consistent with earlier JCA reports dated 23 October 2012 and 10 December 2013.

42. In his evidence Mr Madgwick said he can do daily chores such as shopping and laundry, albeit on separate days, he can walk around shops although it gives him pain, he does not require assistance from another person and does not need walking sticks or other aids.  This evidence is consistent with his evidence to the SSAT and that recorded by the various doctors and in the JCAs.  This evidence aligns generally with the description in Impairment Table 3 - Lower Limb Function for a moderate functional impact, which  attracts a rating of 10 points.

43. There is no evidence of a severe functional impact as required by the Table for an assessment of 20 points.

44. However, Mr Madgwick’s evidence is that he periodically experienced problems with the stump of his left leg such that he was unable to wear his prosthesis.  Subsection 11(4) of the Impairment Tables requires me to consider episodic impacts, taking into account the severity, duration and frequency of the episodes.  Mr Madgwick testified that every month or so he was unable to use his prosthesis and that the episode could last up to three days.  In considering the overall functional impact I note that, while these episodes obviously impacted on his ability to walk and stand up, their frequency and duration were not such as to make it impossible for Mr Madgwick to go shopping and to stand up from a sitting position without assistance.  Indeed he managed to continue his work despite these episodes.

45. I commend Mr Madgwick on his efforts to overcome the impact of his lower leg impairments.  Nevertheless there is no evidence that would support a conclusion that the overall functional impact was sufficient to attract a rating of 20 points.  I find that the impairment from Mr Madgwick’s left leg amputation and right ankle condition attracts a rating of 10 points.

    Depression and Anxiety

46. In considering whether the conditions have been fully diagnosed I note the following excerpts from the report by Dr Chakrabarti, a consultant psychiatrist, dated 25 February 2014 (T-19):

    They (Centrelink) unfortunately ceased his payments somewhere around 18-24 months ago…This has led to a gradual increase in his level of dissatisfaction and he has also been quite anxious about his financial affairs.  When his payments were ceased, it led to significant anxiety, desperation and frustration…in the mean time his financial stresses do impact on his mood and anxiety…it may be a good idea to look at increasing the dose…to help him with his depressive and anxious symptoms that come as adjusting not only to his physical handicaps but to the added stress that Centrelink have imposed on him, by ceasing his payments…I have encouraged him to deal with some of his frustrations, anger and mood symptoms with non pharmacological skills…I have hence not made any further appointments to see Stephen at this stage. (Emphasis added).

47. The phrases emphasised in bold are the only sections of the report which could be considered a diagnosis.  I consider the wording of the report to be simply a description of  Mr Madgwick’s symptoms. The report does not provide a diagnosis of a clinical psychiatric condition. 

48. The Introduction to Impairment Table 5 – Mental Health Function states that any  diagnosis must be made by an appropriately qualified medical practitioner.    Dr Chakrabarti is indeed an appropriately qualified medical practitioner; however, I do not consider that his report contains a diagnosis of Mr Madgwick’s mental health condition.  

49. The Introduction to Impairment Table 5 also allows for a diagnosis to be made by an appropriately qualified medical practitioner with evidence from a clinical psychologist if the medical practitioner is not a psychiatrist.  In this case there is no evidence from medical practitioners who are appropriately qualified, other than Dr Chakrabarti.   Moreover, there is no supporting evidence from a clinical psychologist. 

50. Accordingly, I find that Mr Madgwick’s depression and anxiety are not fully diagnosed.  As a result I cannot assign an impairment rating to this condition.

    Left Eye Vision

51. The Introduction to Table 12 – Visual Function requires that the diagnosis of a visual impairment condition must be made by an appropriately qualified medical practitioner with supporting evidence from an ophthalmologist.

52. The report by Mr Bryan Fuller of Horsfalls Optometrists dated 2 July 2013 (T-12) features the results of tests conducted on 14 June 2013.  I consider that this constitutes a diagnosis of a visual impairment condition by an appropriately qualified medical practitioner. 

53. In his report of 16 July 2015 (Exhibit A1) Dr Irani, an ophthalmologist, recorded a diagnosis of left optic disc atrophy and loss of inferior visual field.  I consider this to be supporting evidence sufficient to satisfy the requirements of Table 12. 

54. Dr Irani did not examine Mr Madgwick until 10 months after the expiration of the qualifying period and Ms Zhou contends that Dr Irani’s report cannot be taken into consideration as the consultation occurred outside the relevant period.  The Respondent’s Statement of Facts and Contentions cited Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 (Harris).

1. In that case, Giles J stated:

   It is to be noted at the outset that, by virtue of s 42 and Schedule 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her 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.

2. In this case the uncontested evidence is that Mr Madgwick sustained the injury to his left eye when he was five years old and indeed, Dr Irani noted that the condition appears to be longstanding.  He also wrote I do not think this is a progressive condition.

3. I accept that the condition is longstanding and the expert’s opinion that the condition is not progressive.  From that evidence I conclude that Mr Madgwick’s eye condition would not have altered to any significant degree from the end of the qualifying period,   i.e. 5 September 2014, to the date of Dr Irani’s examination on 16 July 2015.  As a result I accept that Dr Irani’s diagnosis and report cast light on the position at the relevant time (Harris).  I accept his report as being applicable to the qualifying period in this case and I find accordingly.

4. I find that Mr Madgwick’s left eye condition is fully diagnosed according to the requirements of Table 12.

5. In regard to treatment for the condition I note Dr Irani’s opinion that no treatment is necessary.  I have already found that his report is applicable to the qualifying period.  As no treatment is necessary I find that the condition was fully treated and fully stabilised. 

6. I have found that the condition was fully diagnosed, treated and stabilised at the qualifying period. Therefore, the condition can be assessed for a functional impairment rating in accordance with the Impairment Tables.

7. In his evidence Mr Madgwick stated that said he cannot see down and to the left, and if he closes his right eye his sight is not clear.  He said he wears glasses occasionally but does not need other vision aids.  This evidence is consistent with Dr Irani’s report which records that Mr Madgwick has normal vision (6/6) in his right eye and part vision (6/7.5) in his left eye and loss of inferior visual field. 

8. Mr Madgwick’s description of his impairment aligns with the descriptors for a mild level of impairment.  In particular Mr Madgwick can perform most day-to-day activities requiring vision and when looking straight ahead he has some difficulty seeing objects to the side or in the centre of his field of vision.  A mild level of impairment attracts a rating of five points.

9. In his evidence Mr Madgwick said he did not need to use vision aids or assistive devices other than the occasional use of spectacles.  Only if such aids are required can the functional impact be rated as moderate. Accordingly Mr Madgwick’s visual impairment cannot attract a rating of 10 points.

10. I find that the functional impairment resulting from Mr Madgwick’s left eye condition attracts an impairment rating of five points.

    TOTAL IMPAIRMENT POINTS

11. I have assigned impairment points as follows:

    ·Below left knee amputation and fused right ankle – 10 points;

    ·Depression and anxiety – unable to assign points; and

    ·Left eye vision – five points.

12. Right tibia fracture – unable to assign points;

13. The sum is a total of 15 impairment points.

14. CONCLUSION

15. The total impairment rating is less than the 20 points required to satisfy section 94(1)(b) of the Act.  In order to satisfy section 94(1) of the Act, all the sub-sections must be satisfied.  Mr Madgwick does not satisfy the requirements of section 94(1)(b) of the Act.  As a result, he cannot satisfy all the provisions of section 94(1) of the Act and there is no need for me to consider the other sub-sections of section 94(1).

16. The result is that during the qualification period Mr Madgwick was not qualified for DSP and I find accordingly.

17. This finding relates to Mr Madgwick’s diagnosed conditions during the qualification period between 6 June and 5 September 2014.  If his diagnoses change at any time he is at liberty to submit a new application for DSP to Centrelink.

18. DECISION

19. I affirm the reviewable decision.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision of Mr Conrad Ermert.

.............................[sgd]...............................

Associate

Dated 24 August 2015

Date of hearing	10 August 2015
Applicant	In person
Advocate for the Respondent	Ms J Zhou
Solicitors for the Respondent	Department of Social Services