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

[2017] AATA 1322

Marston and Secretary, Department of Social Services (Social services second review) [2017] AATA 1322 (18 August 2017)

Division:GENERAL DIVISION

File Number:           2016/6448

Re:Colin Marston

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Member

Date:18 August 2017

Place:Sydney

The decision under review is affirmed.

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

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether impairments are physical, intellectual or psychiatric – whether impairments amount to 20 points or more – continuing inability to work – Table 2 Upper Limb Function – Table 4 Spinal Function – Table 5 Mental Health Function – Table 10 Digestive and Reproductive Function – Table 14 – Functions of the Skin – decision affirmed. 

LEGISLATION

Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth), s 63(2), 80, 118(13)

SECONDARY MATERIALS

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

Social Security (Active Participation for Disability Support Pension) Determination 2014

REASONS FOR DECISION

Dr I Alexander, Member

18 August 2017

1. In 2010, Mr Marston’s employment was terminated because of incapacity caused by workplace injuries. In 2012, he received a compensation lump sum payment with a Centrelink preclusion period of “3:75 years”.

2. On 11 December 2015, Mr Marston, who is now 54 years old,  lodged a claim for Disability Support Pension (DSP) under the Social Security Act 1991 (Cth) (the Act).

3. The claim was rejected by Centrelink, both initially on 27 May 2016 and on internal review on 1 June 2016, on the basis that he did not satisfy the requirements of section 94 of the Act. In particular, he did not satisfy section 94(1)(b) of the Act as his impairment was not 20 points or more under the Impairment Tables of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination).

4. In a decision dated 10 November 2016, the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision to reject Mr Marston’s claim. The AAT1 found that Mr Marston’s medical conditions warranted a total rating of 0 points under the Impairment Tables and, therefore, he did not satisfy section 94(1)(b) of the Act.

5. In this proceeding, Mr Marston seeks review of the AAT1 decision.

6. At the hearing, Mr Marston was self-represented.

   ISSUES

7. In order to qualify for DSP, Mr Marston must satisfy the requirements of section 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with subclause 4(1) of Schedule 2 to the Social Security (Administration) Act1999, that is, between 11 December 2015 and 11 March 2016 (qualification period).

8. Section 94(1) of the Act provides that a person is qualified for DSP if:

   ·the person has a physical, intellectual or psychiatric impairment (94(1)(a)); and

   ·the person’s impairment is of 20 points or more under the Impairment Tables (94(1)(b)); and

   ·the person has a continuing inability to work as defined by the Act (94(1)(c)(i)).

9. The Respondent concedes, and the Tribunal accepts, that Mr Marston suffers several medical conditions that cause impairment and, therefore, satisfied section 94(1)(a) of the Act. The medical conditions include:

   ·Spinal conditions (neck and low back pain);

   ·An upper limb condition (right shoulder pain);

   ·Digestive conditions (hepatitis C, liver cirrhosis, haemochromatosis, diabetes mellitus);

   ·Skin conditions (psoriasis, porphyria cutanea tarda); and

   ·A mental health condition (anxiety, depression).

10. The Impairment Determination requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

11. For the purposes of paragraph 6(3)(a), a condition is permanent if it is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

    ·fully treated (paragraph 6(4)(b)); and

    ·fully stabilised (paragraph 6(4)(c)); and

    ·the condition is more likely than not, in light of available evidence, to persist for more than 2 years (paragraph 6(4)(d)).

12. The Introduction to each relevant Table of the Impairment Determination requires that the “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment.”

13. Also, the Introduction to Table 5 of the Impairment Determination, which is to be used “where a person has a permanent condition resulting in functional impairment due to a mental health condition”, states that the 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).”

14. The Respondent accepts that, during the qualification period, the spinal and shoulder condition were fully diagnosed but contends that the conditions were not fully treated and stabilised and, therefore, a rating under the Impairment Tables cannot be assigned.

15. The Respondent contends that, during the qualification period, none of Mr Marston’s other medical conditions were fully diagnosed, fully treated and fully stabilised and, therefore, a rating under the Impairment Tables cannot be assigned and, therefore, he did not satisfy section 94(1)(b) of the Act.

16. It follows, that the first issue to consider is whether, during the qualification period, Mr Marston’s impairment was 20 points or more under the Impairment Tables and, if so, whether he had “a continuing inability to work”.

17. If the Tribunal finds that, during the qualification period, Mr Marston’s impairment was 20 points or more under the Impairment Tables, the Respondent contends that Marston did not have a continuing inability to work and, therefore, did not satisfy section 94(1)(c) of the Act.

18. Section 94(2)(aa) of the Act provides that a person has a continuing inability to work because of an impairment if the Secretary is satisfied that “in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)… the person has actively participated in a POS within the meaning of subsection (3C)”. 

19. Subsection 3B provides that a person’s impairment is a severe impairment if the person’s impairment is 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

20. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination) provides, inter alia, that a person has actively participated in a program of support (POS) if they have participated in the POS for a period of at least 18 months during the 36 months prior to the date of claim.

21. There is no dispute that Mr Marston had failed to meet the POS requirements, therefore his claim for DSP could only succeed if he suffered a severe impairment during the qualification period, that is, if he had a rating of 20 points or more under a single Impairment Table.

    IMPAIRMENTS
    
    Spine and Upper Limb Conditions

22. Mr Marston claims he suffers severe chronic neck pain, chronic lower back pain and chronic right shoulder pain which he attributes to various workplace injuries suffered between 1998 and 2009. 

23. The section 37 Documents contain several medico-legal reports, dated between 2008 to 2012, which relate to Mr Marston’s workers compensation claims with respect to claimed injuries to the cervical spine, lumbar spine and right shoulder.

24. In a report dated 15 September 2008, Dr Matalani, occupational physician, noted that in 2007, Mr Marston injured his right shoulder. Ultrasound examination revealed subacromial bursitis, a small intra substance tear of the supraspinatus tendon and bicipital al tendonitis.  X-ray of the right shoulder revealed minor degenerative changes in the acromioclavicular joint. In April 2008, arthroscopic excision of the distal end of the right clavicle was performed.

25. CT imaging of the cervical spine in 2008 revealed mild cervical spondylosis with slight degenerative foraminal narrowing on the right at C6/7.

26. An MRI of the cervical spine in 2010 confirmed cervical spondylosis and minor right exit foraminal narrowing at C7.

27. In the section 37 documents, there are no medical reports for the period between February 2012 and August 2016. In particular, no contemporary medical reports were lodged in support of the claim for DSP.

28. A CT scan of the cervical spine performed on the 8 August 2016, five months after the end of the qualification period, was reported as showing “spondylotic changes” in the mid to lower cervical spine with “significant right sided neural exit foraminal narrowing” noted at C6/7.

29. A CT scan of the lumbar spine performed on the 8 August 2016 was reported as showing “low grade diffuse disc bulging throughout the mid and lower lumbar spine”.

30. Dr Khan, general practitioner, provided six medical certificates dated from 22 August 2016 and 24 January 2017 in which he listed “Neck & Back Pain- Discopathy – Radiculopathy” as a medical condition which had an impact on Mr Marston’s capacity for work or study.  Symptoms were noted as “Constant Neck and Lower Back Pain with Pain Radiating into arms & legs Recurrent exacerbation of pain”.

31. The certificates, which are essentially identical, apart from changes in dates, provide no other relevant clinical details, no rationale for the diagnosis, no explanation for the claimed severity of symptoms and no assessment of functional impact.

32. In a letter dated 20 March 2017, Dr Khan stated that Mr Marston continued to suffer from “chronic neck, lower back and right shoulder pain due to injuries he sustained at work” between 1998 and 2009.  He added that the “neck, back and shoulder injuries were stabilised in 2015 and no further treatment was required at that time other than pain management.”

33. Dr Khan stated that “According to the attached tables, the impairment level is -- 20” but provided no details or explanation to support this stated opinion.

    Consideration

34. In this matter, the absence of any contemporaneous corroborative medical evidence with respect to the spine and upper limb conditions during the qualification period is problematic.

35. However, on consideration of the various documents related to Mr Marston worker’s compensation claim, I am satisfied that these conditions can be considered to be permanent for the purposes of the Impairment Determination.

36. The difficulty for Mr Marston is that Tribunal has not been provided with a reliable corroborated assessment of the functional impact of these conditions during the qualification period.

37. The certificates and letter provided by Dr Khan do not, in my view, provide sufficient information for the purposes of an assessment under the Impairment Tables.

38. Therefore, I find that a rating under the Impairment Tables cannot be assigned.

    Digestive and Skin Conditions

39. In a letter dated 23 August 2016, Dr Davidson, Staff Specialist, Gastroenterology and Hepatology, Liverpool Hospital stated, inter alia, the following:

    1.Cirrhosis …. secondary to chronic hepatitis C (CHC), haemochromatosis and chronic excess alcohol consumption.  August 2016 Fibroscan … Previous antiviral therapy unsuccessful …..To commence 24-week duration Daclatasvir …Sofosbuvir from August 2016

    …

    3.Haemochromatosis …. May 2016 commenced on venesection

    4.Psoriasis with abdominal and limb plaques, now controlled with topical therapies.

    5.Porphyria cutanea tarda diagnosed May 2016 in the setting of haemochromatosis and CHC improved with phlebotomy

    6.Diabetes mellitus type 2 March 2016 ….  commenced on insulin

1. Dr Davidson also noted, inter alia, the following:

   His initial presentation to the Dermatology Clinic with psoriasis was complicated with the discovery of porphyria cutanea tarda. This led to testing for ferritin levels, which were found to be elevated and positive hepatitis C result ……Since he commenced phlebotomy, his iron levels and skin issues have improved somewhat. …. Colin was found to have significant hyperglycaemia earlier this year and has been commenced on insulin ….. On examination, Colin appears well. He has a soft abdomen with some psoriasis plaques ….He has additional resolving psoriasis plaques on his lower limbs and scalp…

2. In his letter of 20 March 2017, Dr Khan confirmed that Mr Marston has been suffering from Hepatitis C Infection for many years with the first test being done in 2008.

3. In a letter dated 23 February 2017, Dr Slape, Dermatology Registrar, confirmed the diagnoses of porphyria cutanea tarda (PCT) and psoriasis and stated that PCT is “a photosensitising blistering skin eruption that is commonly seen in the context of the liver disease”.

4. Dr Slape also noted that Mr Marston examines as someone with a “moderate degree of impairment from his skin condition” and is currently engaging in appropriate therapy.

   Consideration

5. It is clear from the evidence noted above that the condition of hepatitis C, although diagnosed prior the date of claim, was not fully treated and fully stabilised during the qualification period, and therefore a rating under the Impairment Tables cannot be assigned. 

6. Also, the conditions of cirrhosis, haemochromatosis, diabetes mellitus and PCT were clearly not fully diagnosed, fully treated and fully stabilised during the qualification period and, therefore, a rating under the Impairment Tables cannot be assigned.

7. In an email dated 11 July 2017, Mr Marston stated that the treatment for his “psoriasis” has been supervised by his GP and specialists at Liverpool Hospital for approximately four years. I accept that this condition can be considered to be permanent for the purposes of the Impairment Determination.

8. However, in my view there is insufficient corroborative medical evidence to allow for a reliable assessment of the functional impact of this condition during the qualification period and, therefore, a rating under the Impairment Tables cannot be assigned.

   Mental Health Condition

9. In the six medical certificates dated 22 August 2016 to 24 January 2017, Dr Khan listed “Anxiety & Depression” as a temporary medical condition that had an impact on Mr Marston’s capacity to work or study.  He noted past, current and planned treatment as “Counselling and Antidepressants” but provided no other relevant details.

10. In his letter of 20 March 2017, Dr Khan stated Mr Marston developed “anxiety and depression” in 2011 and has “received regular treatment from a psychologist and has been on anti-depressants (mirtazapine)”. He also stated that Mr Marston’s condition is stable on the current treatment of mirtazapine and that, in his opinion, the condition was stable in December 2015.

11. At the hearing, Mr Marston stated that he had been on anti-depressant medication (Endep), on and off, since 1998. The medication was originally prescribed by his GP. In 2010, he consulted Ms Swaddling, a psychologist and continued to see her for about 2 years.

12. I note that Ms Swaddling is not endorsed by the Australian Health Practitioner’s Regulation Agency as a clinical psychologist.

13. Mr Marston also told the Tribunal that, only recently, he had started to see another psychologist and that his treatment with Mirtazapine had only started recently in 2017.

14. On consideration of the available evidence, which appears to be inconsistent, I am satisfied that, during the qualification period, the diagnosis of Mr Marston’s mental health condition had not been confirmed by a psychiatrist or clinical psychologist as required by Impairment Table 5. Therefore, a rating under Impairment Table 5 cannot be assigned.

    DECISION

15. For reasons set out above, the Tribunal is satisfied that, during the qualification period, Mr Marston’s Impairment was not 20 points or more under the Impairment Tables and, therefore, he did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.

16. It is, therefore, not necessary for the Tribunal to consider whether, during the qualification period, Mr Marston had a ‘continuing inability to work’.

17. The decision under review is affirmed.

I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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Associate

Dated: 18 August 2017

Date of hearing:	25 July 2017
Applicant:	In person
Solicitors for the Respondent:	Mr L Dennis, Department of Human Services