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

Mahoney and Secretary, Department of Social Services (Social services second review) [2018] AATA 2510 (27 July 2018)
Division:GENERAL DIVISION
File Number: 2017/5633
Re:Shaun Mahoney
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson
Date:27 July 2018
Place:Brisbane

The Tribunal affirms the decision under review.
..........................[SGD]............................................
Senior Member P J Clauson
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Refusal – Mental Health Condition – Neck Condition –- whether impairments are of 20 points of more under the Impairment Tables – Applicant has a continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Senior Member P J Clauson
27 July 2018
INTRODUCTION

On 22 November 2016, Mr Shaun Mahoney (“Applicant”), applied for the Disability Support Pension (“DSP”).[1]
[1] Exhibit 1, T Documents, T26, pages 119-151, Claim for DSP, dated 22 November 2016
On 6 March 2017, the Department of Human Services (“Centrelink”) advised the Applicant that his application had been rejected.[2] Subsequent to this, an Authorised Review Officer (“ARO”) conducted a review of Centrelink’s decision and affirmed it.[3]
[2] Exhibit 1, T Documents, T36, pages 176-177, Rejection of DSP Notice, dated 6 March
2017.
[3] Exhibit 1, T Documents, T37, pages 178-183, ARO Decision, dated 23 March 2017.
On 31 August 2017, the Applicant sought a first tier review of the decision by the Social Services & Child Support Division (“SSCSD”) of this Tribunal and the original decision was once more affirmed.[4]
[4] Exhibit 1, T Documents, T2, pages 2-4, Decision of the Social Services & Child Support
Division, dated 31 August 2017.
Following this, the Applicant sought a second tier review of his matter by the General and Other Divisions of this Tribunal, by way of an Application dated 19 September 2017.[5]
[5] Exhibit 1, T Documents, T1, page 1, Application for Review, dated 19 September 2017.
The finding from these abovementioned decisions is that the Applicant did not have an Impairment Rating of at least 20 points under the Impairment Tables to qualify for the DSP and did not have an inability to work.
On 12 March 2018, a hearing was held for this application. The Applicant attended the hearing by telephone.
The issue for this Tribunal to determine is whether the Applicant qualified for DSP at the date of his claim, 22 November 2016, or within 13 weeks thereafter, being up until
21 February 2017 (“Relevant Period”).
BACKGROUND
On the Applicant’s DSP Claim Form he listed “Major Depression Disorder” as a disability, illness or injury he has.[6]
[6] Exhibit 1, T Documents, T26, page 147, Disability Support Pension Claim, dated 22
November 2016.
ISSUES
The issues for this Tribunal to consider are:
(a)whether during the Relevant Period, the Applicant had a medical impairment which was fully diagnosed, fully treated and fully stabilised;
(b)whether at the Relevant Period, the Applicant’s conditions caused a functional impairment that attracts an Impairment Rating of 20 points or more under the Impairment Tables, and if so;
(c)whether the Applicant had a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and
(d)whether the Applicant has a continuing inability to work.
THE LEGISLATIVE FRAMEWORK
The governing legislation unless otherwise quoted, is the Social Security Act 1991
(“the Act”) and the Social Security (Administration) Act 1999 (“Administration Act”).
In order for the Applicant to qualify for the DSP certain relevant criteria set out in section 94 of the Act, must be met:
(e)the person has a physical, intellectual or psychiatric impairment; and
(f)the person’s impairment is of 20 points or more under the Impairment Tables; and
(g)the person has a continuing inability to work.
The Administration Act provides that qualification for DSP and assessment of the relevant Impairment Rating is to be determined as at the date of claim. The exception to this arises where the Applicant has not met the qualifying conditions as at the date of the application for the DSP, but became qualified 13 weeks following the date of claim.[7] There has been consensus by the Tribunal and the Federal Court that there is a requirement to assess the Applicant during this specific period of time, unless material outside of this period can be considered referable to the period.[8]
[7] Administration Act s 41, 42; cl 3 and cl 4(1), Schedule 2, Part 2.
[8]Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123, at [25]-[28].
Pursuant to section 26 of the Act, the Impairment Ratings are determined under a legislative instrument located in the Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension)Determination 2011 (Cth)
(“the Impairment Determination”).
The Impairment Determination provides a general set of principles that must be considered when applying the Impairment Tables.[9] Essentially, the Tables are function based, rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[10] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[11]
[9]         Impairment Determination, s 5(1) – (2).
[10]        Impairment Determination, s 5(2).
[11]        Impairment Determination, s 6(1).
Section 6(3) of the Impairment Determination provides that an Impairment Rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the resulting impairment from that condition is more likely than not, on the available evidence, to persist for more than two years.
For a condition to be considered permanent it must be “fully diagnosed”, “fully treated”, “fully stabilised” and, more likely than not, going to persist for more than two years.[12]
[12] Impairment Determination, s 6(4).
When determining whether a condition has been fully diagnosed and fully treated, the Tribunal must consider whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred in relation to the condition and whether treatment is continuing or is planned in the next two years.[13]
[13] Impairment Determination, s 6(5).
A condition will be considered 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.[14]
[14] Impairment Determination, s 6(6).
“Reasonable treatment” is defined in the Impairment Determination as being treatment that would be considered:
(a)available at a location reasonably accessible to the Applicant;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the Applicant.[15]
[15] Impairment Determination, s 6(7).
An Impairment Rating is only able to be assigned in accordance with the rating requirement for each section of each Table. If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[16]
[16] Impairment Determination, s 11(1)(a) and (c).
A person's impairment is a severe impairment if the person's impairment attracts 20 points or more under a single Impairment Table.[17]
[17] The Act, s 94(3B).
In order to assess whether an Applicant has a continuing inability to work, all criteria set out in section 94(2) of the Act must be met.
CONSIDERATION
The Applicant suffers from Mental Health and Neck conditions and it is not in dispute that he has impairments for the purposes of section 94(1)(a) of the Act during the Relevant Period. The questions to be determined by this Tribunal are however, whether or not during the Relevant Period those impairments attracted an Impairment Rating of 20 points or more under the Impairment Tables,[18] and if so, whether or not the Applicant has met one of the criteria set out in section 94(1)(c) of the Act to qualify for DSP.
[18] The Act, s 94(1)(b).
I will now consider whether the Applicant’s Impairments can attract Impairment Ratings under the Impairment Tables.
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables?
Mental Health Condition
The Respondent conceded that the Applicant’s Mental Health condition was fully diagnosed but, contended that it was not fully treated and fully stabilised.[19] The Tribunal accepts the Respondent’s concession based on medical evidence that the Applicant is suffering from Major Depressive Disorder.
[19] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, dated 19 October
2017, paragraph 31.
The Tribunal has had regard to the material before it and the evidence provided from the Applicant himself at the hearing regarding his Mental Health condition.
On 4 October 2016, the Applicant had an initial assessment with Dr Hine, a Clinical Psychologist, and continued to see him for a further 17 sessions, with the last session taking place on 29 August 2017.[20] Of the 17 sessions, 4 of these took place during the Relevant Period.[21] On 25 November 2016, Dr Hine prepared a Psychological Report.
In this report, Dr Hine stated that the Applicant had been referred by Dr Duncan on
31 August 2016 “for the assessment and treatment of depression”.[22] On 10 January 2017, Dr Hine diagnosed the Applicant with Major Depressive Disorder.[23] Dr Hine reported that he was treating the Applicant with Cognitive Behavioural Therapy and that this:
“[t]reatment is planned to continue…[h]e is likely to make progress with further coping mechanisms and the resolution of his current life stressors, but a complete recovery is very unlikely. Further high stress periods will likely trigger episodes of depression in his future”.[24]
[20]        Exhibit 3, S 38AA Documents, ST2, Directions Psychology Health Record, page 250.
[21]        Exhibit 3, S 38AA Documents, ST2, Directions Psychology Health Record, pages 250 –
251.
[22]        Exhibit 3, S 38AA Documents, ST2, Brief Psychological Report, prepared by Dr Hine,
dated 25 November 2016, pages 276-277.
[23]        Exhibit 1, T Documents, T28, Medical Report from Dr Hine, dated 10 January 2017, page
156.
[24]        Exhibit 1, T Documents, T28, Medical Report from Dr Hine, dated 10 January 2017, page
156.
The Applicant commenced pharmacological treatment for his Mental Health condition on 29 June 2016 and was initially prescribed Mirtazapine.[25] The Tribunal notes that, from the Applicant’s patient summary produced from the Limestone Medical Centre, the Applicant’s pharmacological treatment has varied throughout 2016-2017.[26] During this time, the Applicant’s prescription for Mirtazapine increased from 15 mg to 45 mg, and then decreased back to 15 mg before it was ceased. The Applicant has also been prescribed Escitalopram and Quetiapine. [27]
[25]Exhibit 3, S 38AA Documents, ST1, Patient Health Summary from Limestone Medical Centre, printed on 20 November 2017, pages 5 and 15.
[26] Exhibit 3, S 38AA Documents, ST1, Patient Health Summary from Limestone Medical
Centre, printed on 20 November 2017, pages 15-27.
[27] Exhibit 3, S 38AA Documents, ST1, Patient Health Summary from Limestone Medical
Centre, printed on 20 November 2017, pages 15-27.
On 21 March 2017, the Applicant’s General Practitioner, Dr Merlo, made the following observation about the Applicant’s pharmacological treatment:
Shaun’s depression was initially treated with Mirtazapine…[and] was changed to Escitalopram…which has been better tolerated; and he has engaged with New Directions Psychology clinic though at times attendance has been affected by motivation. Shaun’s depression has been complicated by convoluted family issues, he would benefit from and is willing to try a dose increase in the Escitalopram. If this is ineffective a change to another SSRI more focused on depression (with persisting psychology intervention) may be of benefit. Return to normal levels of function is expected.[28]
[28] Exhibit 3, S 38AA Documents, ST1, Patient Health Summary from Limestone Medical
Centre, page 29.
Based on the patient medical summary from Limestone Medical Centre and medical report of Dr Hine, the Tribunal is not satisfied that the Applicant’s Mental Health condition was fully treated and fully stabilised at the Relevant Period. Doctors Hine and Merlo indicated in early 2017 that further treatment was required, by way of Cognitive Behavioural Therapy and review of the Applicant’s pharmacological treatment.
On this basis it is clear that during the Relevant Period, the Applicant’s Mental Health condition was not fully treated and fully stabilised and as such I am unable to assign the condition an Impairment Rating under the Impairment Determination.
Neck Condition
The Respondent conceded that the Applicant’s Neck condition was fully diagnosed but, contended that it was not fully treated and fully stabilised.[29] The Tribunal accepts the Respondent’s concession based on medical evidence that the Applicant is suffering from a C6-7 disc protrusion compressing the exiting left C7 nerve condition.[30]
[29] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, dated 19 October
2017, paragraph 31.
[30] Exhibit 1, T Documents, T6, CT: Cervical Spine, dated 4 December 2014, page 59.
On 23 May 2016, Dr Mujic on behalf of Dr Dubey, Neurosurgeon, conducted an MRI scan and confirmed that the Applicant had “C6/7 disc prolapse with likely impingement of C7 nerve root”.[31] The Applicant was recommended a neurosurgical service.
[31] Exhibit 1, T Documents, T21, Royal Hobart Hospital, Dr Dubey Report, dated 23
May 2016, page 114.
On 2 June 2016, the Applicant was referred by Dr Merlo to the Neurosurgery OPD at the Princess Alexandra Hospital for “left sided neck pain, left sided arm pain mainly in the C7 distribution”.[32]
[32] Exhibit 1, T Documents, T23, Dr Merlo referral to Princess Alexandra Hospital, dated 2
June 2016, page 116.
Dr Merlo reported on 17 August 2016, that the Applicant had planned Neurosurgical review for his Neck condition, that the condition was temporary and that the prognosis was “Good after surgery”.[33]
[33] Exhibit 1, T Documents, T24, Dr Merlo Medical Certificate, dated 17 August 2016, page
117.
On 23 January 2017, the Applicant presented to Princess Alexandra Hospital and was diagnosed with “Prolapsed cervical intervertebral disc”.[34] The report states that the Applicant had an appointment with the Neurosurgical outpatient department on

1 March 2017 and that enquiries would be made about bringing the appointment forward.
[34] Exhibit 1, T Documents, T29, Princess Alexandra Hospital Report, dated 23 January 2017,
page 157.
On 2 May 2017, the Applicant received a letter from the Princess Alexandra Hospital confirming his appointment with Dr Tsahtsarlis of the Neurosurgical Department, on

16 May 2017.[35]
[35] Exhibit 1, T Documents, T35, Princess Alexandra Hospital Letter to Applicant, dated 2 May
2017, pages 173-174.
The Applicant underwent corrective surgery in May 2017 for this condition, which is outside the Relevant Period.
On the basis of the medical material discussed, I accept the Respondent’s contention that the Applicant’s Neck condition was not fully treated and stabilised during the Relevant Period and as such, I am unable to assign the condition an Impairment Rating under the Impairment Determination.
Other Conditions
The Applicant had discussed with the JCA his Diverticulitis Disease and Finger Injuries, but did not list these conditions on his DSP application.[36] The SSCSD noted in its decision that these conditions were not considered because they caused little functional impact to the Applicant.[37]
[36] Exhibit 1, T Documents, T31, JCA Report, dated 30 January 2017, pages 159-167; T26,
page 147,
Disability Support Pension Claim, dated 22 November 2016.
[37] Exhibit 1, T Documents, T2, pages 2-4, Decision of the Social Services & Child Support
Division, dated 31 August 2017.
Diverticulitis Condition
The Applicant’s Diverticulitis condition was listed in his patient summary produced from the Limestone Medical Centre.[38] The issue that arises is that there is insufficient corroborating medical evidence before me to determine whether the condition was fully treated and fully stabilised during the Relevant Period. Consequently, I am unable to assign an Impairment Rating to this condition.
[38] Exhibit 3, S 38AA Documents, ST1, Patient Health Summary from Limestone Medical
Centre, printed on 20 November 2017, page 88.
Middle and Right Finger Condition
The Applicant was involved in a workplace accident in 2007 and suffered a crush injury, which lacerated his middle finger and ring finger tips, which resulted in nerve damage.[39] The JCA recorded this condition as “other” and the ARO found that there was minimal evidence about treatment and functional impact.[40]
[39] Exhibit 1, T Documents, T5, JCA Report, dated 11 September 2008, pages 54-55; T31,
JCA Report, dated 30 January, pages 162-163.
[40] Exhibit 1, T Documents, T37, ARO Decision, dated 23 March 2017, pages 178-18; T31,
JCA Report, dated 30 January, pages 162-163.
The issue that arises is that there is insufficient corroborating medical evidence before me to determine whether the condition was fully treated and fully stabilised during the Relevant Period. Consequently, I am unable to assign an Impairment Rating to this condition.
CONCLUSION
On the basis of the evidence before me, I am not satisfied that the Applicant’s impairments were fully treated and fully stabilised during the Relevant Period.
Therefore, I am unable to assign the Applicant any Impairment Rating Points under the Impairment Tables and as a consequence, the Applicant does not satisfy the requirement under section 94(1)(b) of the Act. Given this conclusion, it was not necessary for me to consider whether the Applicant had a continuing inability to work.
DECISION

For the reasons I have set out above, the decision under review is affirmed.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson

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Dated: 27 July 2018

Date of hearing: 12 March 2018

Applicant: By Telephone

Advocate for the Respondent: Jacky Vetter

Solicitors for the Respondent: Department of Human Services

[2018] AATA 2510

27 July 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Standing

Statutory Construction

Remedies

Date of hearing:	12 March 2018
Applicant:	By Telephone
Advocate for the Respondent:	Jacky Vetter
Solicitors for the Respondent:	Department of Human Services