Matthew Warrington and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 132
[2013] AATA 132
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Number(s) | 2012/3458 |
| Re | Matthew Warrington |
| APPLICANT | |
| And | Secretary, Department of Families, Housing, Community Services and Indigenous Affairs |
| RESPONDENT |
DECISION
| Tribunal | Dr Kerry Breen, Member |
| Date | 13 March 2013 |
| Place | Melbourne |
The Tribunal affirms the decision under review.
..........[sgd]..................................
Dr Kerry Breen, Member
SOCIAL SECURITY – disability support pension – depression and anxiety– congenital shortened leg – hip and back pain – conditions not fully treated or stabilised – conditions not permanent – decision affirmed.
Legislation
Social Security Act 1991 section 94(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 section 6
REASONS FOR DECISION
Dr Kerry Breen, Member
13 March 2013
Mr Matthew Warrington suffers from physical and mental health conditions. He lodged a claim for disability support pension (DSP) on 29 February 2012 with Centrelink, the service provider for the Department of Families, Housing, Community Services and Indigenous Affairs. The claim was supported by a report from a clinical psychologist dated the same day. Subsequently, he provided a medical report dated 21 March 2012 from his a general practitioner.
Centrelink referred Mr Warrington for a Job Capacity Assessment, which was conducted on 27 March 2012. The assessor advised that Mr Warrington’s medical conditions had not been fully treated or stabilised, as required under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). The assessor considered that within the next two years, with intervention, he would have a work capacity of 23-29 hours per week.
On 30 March 2012 a Centrelink officer rejected Mr Warrington’s DSP claim. On 29 May 2012 an authorised review officer (ARO) affirmed the Centrelink officer’s decision to reject the DSP claim.
On 12 June 2012 Mr Warrington applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO’s decision. The SSAT conducted a hearing on 20 July 2012 at which Mr Warrington gave evidence by telephone. The SSAT affirmed the ARO’s decision. Mr Warrington now seeks review of the SSAT decision by this Tribunal.
ISSUES
The issues to be determined are:
What permanent medical conditions does Mr Warrington suffer from?
What impairment ratings do his conditions attract?
And, if the total impairment rating is 20 points or more, what is the impact of these conditions on his capacity to work?
The relevant assessment period is from 29 February 2012 and the subsequent 13 weeks.
LEGISLATION
The relevant legislation includes s 94(1) of the Social Security Act 1991 (the Act) and the Impairment Tables. Section 94(1) of the Act provides:
94(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;
…
In order that a person’s impairment be assessed under the Impairment Tables, the medical condition(s) causing the impairment must be permanent and be more likely than not, in the light of available evidence, to persist for more than two years, as is provided in section 6 of the Impairment Tables which reads as follows:
6 Applying the Tables
Assessing functional capacity
(1) The impairment of a person 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.
Applying the Tables
(2) The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
…
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
…
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
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 reason for the person not to undertake reasonable treatment.
…
THE EVIDENCE OF THE APPLICANT
Mr Warrington stated that he was born with an abnormality in his left leg that resulted in the leg being three inches shorter than the right. He has always walked with a limp. He trained as a butcher and worked in that field for 15 years, until 2009. During these years, he was troubled by pain in his left hip and lower back but chose not to seek medical help for the problem.
During 2009, Mr Warrington’s partner was diagnosed with breast cancer and he stopped work in November 2009 to care for her. During the time he was acting as carer, he regularly attended with her to visit her general practitioner, Dr Joe Cacek. His partner urged him to seek Dr Cacek’s assistance with his hip and back pain and he thus became a patient of Dr Cacek. Mr Warrington stated that during the time he acted as his wife’s carer, he was using alcohol and marijuana as a form of self-medication for his pain.
Mr Warrington now wears an elevated left shoe but has not experienced any improvement in his hip or back pain. He attended a physiotherapist on four occasions, and was provided written instructions for exercises to be continued at home. He is now taking 40 milligrams of Oxycontin three times a day as well as Panadeine Forte for his back and hip pain. He stated that he attended Frankston Hospital for a CT scan and that this showed a fracture in the left hip. He was unaware of any other aspect of the CT scan report and stated that the report had been sent to Dr Cacek. He has not seen a specialist about his hip and back pain and does not plan to.
Mr Warrington stated that his back and hip pain have worsened over the last year and that he can only walk for 30 minutes before needing to sit down. He is fearful of lifting anything heavy and has been advised to lift nothing over 10 kilograms.
Mr Warrington stated that he had a longstanding tendency to become depressed but that this markedly worsened after his partner’s death in 2011. Upon the death of his partner, Mr Warrington’s six-year old son was placed in care, thus adding to Mr Warrington’s distress. He stated that he commenced taking an antidepressant medication (Prozac) in March 2012. However, the medication was changed to Zymbalta three months later because Prozac was not helping and was interacting with a pain-killing drug, Tramadol, causing unpleasant side effects.
Mr Warrington’s medications are prescribed by Dr Cacek. Mr Warrington stated that he has been hospitalised twice at Frankston Hospital, once in 2012 and once in 2013, for four days each time, after attempting suicide. . He stated that he has not seen a psychiatrist and that this is not planned in the future. He attends a clinical psychologist, Mr Hugh Perera, regularly. He stated that Mr Perera has an office in the same building as Dr Cacek and they communicate regularly about his health.
Mr Warrington stated that he also regularly attends the Peninsula Health Drug and Alcohol Program, where he sees a counsellor. He has stopped using marijuana and has reduced his alcohol use.
MEDICAL EVIDENCE
The written medical evidence before the Tribunal includes:
a Centrelink medical certificate completed and signed by Dr Joe Cacek and dated 9 January 2010.
a Centrelink medical certificate completed and signed by Dr Cacek and dated 19 November 2011.
a Medical Report Disability Support Pension form completed by Dr Cacek. The copy before this Tribunal is undated. In the index to the section 37 documents, the date given is 29 February 2012. However, in the SSAT decision the date given is 21 March 2012.
a Medical Report Disability Support Pension form completed by Mr Perera and dated 29 February 2012.
a Medical Report Disability Support Pension form completed by Dr Cacek and dated 20 April 2012.
a Medical Report Disability Support Pension completed by Mr Perera and dated 18 October 2012.
a letter written by Ms Jennifer Jenkins, counsellor at the Peninsula Health Drug and Alcohol Program, Peninsula Health and dated 27 February 2012.
a letter of referral from Dr Cacek dated 21 March 2012 addressed to Lifecare in Frankston.
a GP Management Plan prepared by Dr Cacek under the Medicare Enhanced Primary Care Program and dated 6 December 2011.
a Centrelink medical certificate completed by Dr Cacek and dated 29 May 2012.
In January 2010 Dr Cacek certified that Mr Warrington was suffering from severe stress & anxiety, was deemed not able to cope and in need of counselling.
In November 2011 Dr Cacek certified a diagnosis of severe anxiety & stress, stated that symptoms were: not able to cope with being lonely, no access to son. Dr Cacek also advised that Mr Warrington Needs OT assessment.
In the first Medical Report Disability Support Pension document completed by Dr Cacek, the condition with the most impact was recorded as one leg shorter than other Commitment to appointment for dhs Pendab. (This entry appears to be in the handwriting of the applicant.) Under current symptoms, Dr Cacek wrote pain in back. It causes pain in the back as he needs elevated shoes. Under future/planned treatment, Dr Cacek wrote This will be conservative. The second condition was given as severe stress and depression with future/planned treatment listed as seeing a psychologist.
In her letter dated 27 February 2012, Ms Jenkins states:
... advised that Mr Warrington has been attending counselling at Peninsula Drug & Alcohol Program since 9th November 2011 … and has reported significant physical, personal and psychological problems that in the writer’s opinion are likely to compromise his ability to seek & maintain employment .
In the Medical Report Disability Support Pension form dated 29 February 2012, Mr Perera diagnosed condition 1 as chronic depression, stress and anxiety and listed current symptoms as low mood, anger/frustration, poor sleep, poor concentration/motivation. Under current treatment Mr Perera wrote Murelax, Valium and supportive counselling; and under future treatment wrote as above. He noted that he had first seen Mr Warrington on 23 November 2011.
In his referral letter to Lifecare, written in March 2012, Dr Cacek listed classifications as Anxiety, Backache, Congenital Anomalies; Bone(s), Counselling; smoking, Dental caries, Depression, Graft skin, Pain, legs, Short stature, Stress.
In the GP management plan dated 6 December 2011, Dr Cacek listed the following as current health needs/problem: Sleep disturbance, anxiety, arthritis, depression and Dental caries. Under the heading of goals and needs for patient and carers, Dr Cacek wrote in part Properly fitted shoes, Adequate treatment of depression, prevention of further panic attacks, be able to eat a proper diet and not be frightened of work.
In the Medical Report Disability Support Pension form dated 20 April 2012, Dr Cacek described Condition 1 as Foreshortened L leg and Current symptoms as pain in leg and back. Future treatment was given as analgesics Get a proper inner sole. Condition 2 was described as ADDH* with the Current symptoms as He has always found it difficult to cope with stress & so tends to avoid same. Current, past and future treatment was stated as Education, self-help, cognitive therapy. [*The Tribunal assumes that this was meant to read ADHD and refers to attention deficit hyperactivity disorder].
In a Centrelink medical certificate dated 29 May 2012, Dr Cacek gave the primary condition as Depression noting that He has been more depressed since his partner died of breast cancer in Sept 2011.
CONSIDERATION OF THE ISSUES
Based on Mr Warrington’s evidence, which is supported by the reports of Dr Cacek and Mr Perera, the Tribunal is satisfied that Mr Warrington suffered from the condition of depression and anxiety at the time of his application for DSP. However, at that time, Mr Warrington had only attended a clinical psychologist for two months and was yet to commence treatment with antidepressants. Thus, it is clear to the Tribunal that this condition had not been fully treated and stabilised and for the purposes of the DSP application cannot be deemed to be permanent.
From the account of his health since February 2012, it appears that Mr Warrington has not responded to antidepressants and remains significantly depressed. He has not been referred to a psychiatrist for specialist medical advice.
The precise diagnosis of the second claimed condition, viz shortened left leg with hip and lower back pain, is not completely clear from the available evidence. The Tribunal does not doubt that Mr Warrington has a congenital abnormality involving significant shortening of his left leg. The Tribunal also does not doubt that almost certainly because of this, he has become increasingly disabled through pain in his left hip and lower back. However, the mechanisms behind this chronic pain (and their potential amenability to treatment) are not addressed in the available medical reports.
Mr Warrington stated that he has had a CT scan of his hip and lower back and that this revealed a fracture of the hip. The report of the CT scan was not made available to the Tribunal. The hip fracture was not mentioned in the medical documents submitted. In the GP Management Plan of 6 December 2011, Healthscan Specialist Imaging Radiology is identified under the heading of Health Care Providers on the team, which implies a CT scan was taken at some time. If a fracture of the left hip was indeed observed, Mr Warrington’s account of events at that time suggests to the Tribunal that it was most likely an old fracture.
In the Medical Report Disability Support Pension of 20 April 2012, Dr Cacek wrote that future treatment of Condition 1 (foreshortened L leg) was to be Analgesics Get a proper inner sole. Mr Warrington reports that the pain in the hip and lower back has not improved following the elevation of the sole of his left shoe. He also reports that he now requires the combination of Oxycontin (40 milligrams three times per day) and Panadeine Forte for control of this pain.
At the time of his application for DSP, Mr Warrington had not been referred for orthotic assistance to raise the sole of his left shoe. On that ground alone, the Tribunal finds that this longstanding condition had not been fully treated and stabilised and thus cannot be deemed as permanent under the legislation.
From his oral evidence, Mr Warrington seemed to be of the understanding that as the sole of his left shoe had been raised, there was no more that could be done for him. This is contrasted with the information provided in the Medical Report Disability Support Pension of 18 October 2012 by Mr Perera, where in response to question seven, he reported Patient is on a long waiting list for orthotics.
The Tribunal does not doubt Mr Warrington’s continuing disability from his hip and back pain. However, in order to better understand what is causing this disability and to determine more precisely whether this condition can yet be improved, it would be desirable that his treating doctor seek the advice of an orthopaedic surgeon or a rheumatologist.
The Tribunal notes that Mr Warrington has been attending counselling at the Peninsula Health Drug and Alcohol Program since November 2011. In his Medical Report Disability Support Pension of 18 October 2012, Mr Perera responded to a question about other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function by writing recovery from Cannabis and alcohol abuse. Patient used this daily to self-medicate against his woes. Abuse has left him with poor short term memory and concentration.
There was no other material before the Tribunal about the possible contribution of substance abuse (and its aftermath) to disability; or to the possible contribution of a putative condition of ADHD to any disability. On this basis, and as neither condition formed part of the DSP application lodged by Mr Warrington in February 2012, the Tribunal makes no findings in regard to either condition.
CONCLUSIONS
From all the material before the Tribunal, it is not possible to conclude that at the relevant period (29 February 2012 to 30 May 2012), Mr Warrington’s conditions of depression and anxiety and shortened left leg had been fully treated and stabilised. As already identified above in paragraph 8, the medical conditions causing the impairment must be permanent and be more likely than not, in the light of available evidence, to persist for more than two years, as is provided in section 6 of the Impairment Tables.
As these conditions were not fully treated and stabilised, it is not possible to find that these conditions were permanent as at 29 February 2012 and the following thirteen weeks. Accordingly, the Tribunal has not examined the subsequent issues in section 94 of the Act in relation to possible impairment or the awarding of impairment points.
Based on all the considerations outlined above, I am satisfied that the correct decision in this matter is that, at the relevant time, Mr Warrington did not satisfy the requirements of the Act and therefore was not entitled to receive DSP.
DECISION
I affirm the decision under review.
| I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Dr Kerry Breen, Member. |
.......[sgd].......................
S Herath, Associate
Dated 13 March 2013
Date(s) of hearing 1 March 2013 Applicant Mr Matthew Warrington Representative for the Applicant Self-represented Advocate for the Respondent Ms Stella Koya, DLA Piper
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