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

[2015] AATA 904

Martin and Secretary, Department of Social Services (Social services second review) [2015] AATA 904 (12 November 2015)

Division	GENERAL DIVISION
File Number	2014/6386
Re	Janette Martin
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President PE Hack SC
Date	12 November 2015
Date of written reasons	25 November 2015
Place	Brisbane

The decision under review is affirmed.

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Deputy President PE Hack SC

CATCHWORDS

SOCIAL SECURITY – disability support pension – spondylolisthesis – whether applicant’s impairments fully diagnosed, treated and stabilised – application lodged short time after back surgery – applicant’s condition still being treated – not fully treated and fully stabilised – insulin dependence of minor significance – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), s 94

SECONDARY MATERIALS

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

REASONS FOR DECISION

Deputy President PE Hack SC

25 November 2015

1. This is an application by Mrs Janette Martin to review a decision made by the Social Security Appeals Tribunal on 4 November 2014 affirming an earlier decision of Centrelink rejecting Mrs Martin’s claim for disability support pension. That claim was lodged on 27 May 2014 and, accordingly, it was at that time and within the following 13 weeks that one must have regard to.

2. The criteria for qualification for disability support pension are set out in s 94 of the Social Security Act 1991 (Cth) (the Act). It is sufficient for present purposes to note that a person is qualified for disability support pension if the person has a physical, intellectual or psychiatric impairment, the person’s impairment warrants a rating of 20 points or more under the impairment tables and the person has a continuing inability to work as that expression is defined in the Act.

3. There is no doubt that Mrs Martin has a number of impairments, the most serious of them are spondylolisthesis and insulin dependence. The impairment tables spoken of are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 made by the then Minister and s 26(1) of the Social Security Act 1991. Clause 6(3) requires that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent, and the impairment that results from the condition is more likely than not, in light of the available evidence, to persist for more than two years. A condition is permanent if it is fully diagnosed, fully treated and fully stabilised. It is in respect of the last requirement, it seems to me, that this claim must fail.

4. The expressions “fully diagnosed and fully treated” and “fully stabilised” are defined in clause 6(5) and 6(6) of the Determination in these terms:

   Fully diagnosed and fully treated

   (5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

   (a)whether there is corroborating evidence of the condition; and

   (b)what treatment or rehabilitation has occurred in relation to the condition; and

   (c)whether treatment is continuing or is planned in the next 2 years.

   Fully stabilised

   (6)For the purposes of paragraph 6(4)(c) and subsection 11(4) 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 reasons for the person not to undertake reasonable treatment.

   Note: For reasonable treatment see subsection 6(7).

5. Mrs Martin says that she was encouraged by Centrelink to lodge the application a short time after she had had serious back surgery. In hindsight, the advice, if given, was curious because, almost by definition, a person recovering from back surgery has not fully stabilised. An operation on one’s back, particularly the kind performed on Mrs Martin, is a very serious procedure which, with the best of after care and best of recovery, may take some time to stabilise. It is plain that at the time of claim and in the three months thereafter it would be impossible to say that Mrs Martin’s condition was fully treated and stabilised. The treatment was continuing and her condition was stabilising post-operatively. That is not to say for a moment that the condition meant Mrs Martin could work. That unfortunately is not the test; the test I am required to apply is to decide whether the condition was fully diagnosed, fully treated and fully stabilised.

6. That being the case, so far as this claim is concerned, I conclude that the spondylolisthesis was not capable of being assigned an impairment rating at the time of this claim or in the 13-week period thereafter.

7. The insulin dependence, which is the other condition, was of minor significance and warranted no more than the impairment rating assigned by the Centrelink assessor.

8. A third condition of depression seems to have arisen as a consequence of the pain post-surgery and it, I assume, has helped inform the subsequent decision made earlier this year to grant Mrs Martin disability support pension.

9. There are other conditions mentioned in the material but they seem not to impair Mrs Martin’s ability greatly. The result is that, on the material, it is not possible to assign an impairment rating of 20 points or more despite an existence of a number of impairments.

10. I accept that the collection of impairments, particularly the spondylolisthesis, has the inevitable consequence that Mrs Martin could not work but the test for disability support pension is not as simple as that. It is, as I say, unfortunate that Mrs Martin was given the advice she said; it was obviously incorrect advice. It is also unfortunate that she was set on this process in circumstances where it was always going to be impossible to satisfy the requirement for the condition to be fully stabilised.

11. The decision under review was correct. It will be affirmed.

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC

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Associate

Dated 25 November 2015

Date of hearing	12 November 2015
Applicant	In person
Solicitors for the Respondent	Mr R McQuinlan, Program Litigation and Review Branch, Department of Human Services