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

[2019] AATA 4952

Maxton and Secretary, Department of Social Services (Social services second review) [2019] AATA 4952 (25 November 2019)

Division:GENERAL DIVISION 

File Number:           2019/1794 

Re:David Maxton  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R. West 

Date:25 November 2019  

Place:Melbourne

The Tribunal affirms the decision under review.

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

Member R. West

Catchwords

DISABILITY SUPPORT PENSION – hearing on the papers – s.34J AAT Act - whether impairment fully diagnosed, fully treated and fully stabilised – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Transport Accident Act 1986 (Vic)

Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2012] AATA 922
Covenden and Secretary, Department of Social Services, Re [2018] AATA 353

Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, [2014] AATA 447

Gallacher and 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)

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

REASONS FOR DECISION

Member R. West

25 November 2019

BACKGROUND

1. This matter concerns the refusal of the Disability Support Pension (DSP) to the Applicant and is a Second Tier Review of that decision by the Administrative Appeals Tribunal, General Division (Second Tier Review).

2. The Applicant is 47 years old. He was involved in a motor accident in 2014 in which he sustained injuries, and in respect of which he made a claim for compensation to the Victorian Transport Accident Commission (TAC).

3. On 26 November 2015, the Applicant lodged a claim for the DSP.  The claim form[1] listed the following conditions:

   [1] T39, p168.

   ·“heart disease (leaking heart valves / aortic regurgitation”,

   ·“chronic obstructive airway disease”,

   ·“post-traumatic stress disorder”, “adjustment disorder / OCD”, “anxiety and depression”,

   ·“lumbar L5/S1 disc bulge”, “spinal disorder”, “neck injury / back injuries”,

   ·“injury to both knees”,

   ·“osteoarthritis/nocturia”,

   ·“injury to both hands and wrists”,

   ·“injury to both shoulders”,

   ·“injury to both hips”,

   ·“injury to both feet and ankles”,

   ·“injury to both elbows”,

   ·“multiple hernias” and

   ·“restless leg syndrome”.

4. Following a file assessment undertaken by a Job Capacity Assessor (JCA) on                19 April 2016[2], a decision was made to reject the Applicant’s claim for the DSP[3] on the basis that he did not have an impairment rating of 20 points or more under the           Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (Impairment Tables).

   [2] T40, p174.

   [3] T41, p184.

5. The Applicant requested a review of the decision and on 9 August 2016 the decision under review was affirmed[4] by an Authorised Review Officer (ARO).

   [4] T43, p187.

6. The Applicant applied to the Social Services and Child Support Division of this Tribunal (AAT1) for the review of the ARO’s decision and on 5 March 2019, the decision under review was affirmed[5] by the AAT1 (Reviewable Decision).

   [5] T2, p5-11.

7. On 1 April 2019, the Applicant lodged an application for review of the AAT1 decision with this Tribunal.

   HEARING ON THE PAPERS

8. The Second Tier Review was conducted without holding a hearing and in the absence of the parties, on the basis of the documents lodged with the Tribunal.

9. The decision to conduct the hearing ‘on the papers’ was made on the basis of information provided to the Tribunal member by the Conference Registrar that the Applicant had declined the opportunity to participate in a conciliation conference regarding his review either in person or by telephone and had stated to registry staff on 1 August 2019 that:

   (a)he would not communicate further with the Registry by telephone or by email;

   (b)he wished the matter to proceed directly to hearing;

   (c)he would not be attending the hearing, either in person or by telephone; and

   (d)he wanted the result of the hearing to be communicated to him by post and not by email.

10. The Applicant provided a medical certificate from his treating doctor dated 9 July 2019 certifying that the Applicant was medically unfit to participate in any form of conference and that the matters (should) be heard solely on the papers available to the Tribunal.

11. It is highly unusual for an Applicant to refuse to participate in the prosecution of their application for review.  However, it is open to the Tribunal to dispense with a hearing in appropriate circumstances.

12. Section 34J of the Administrative Appeals Tribunal Act 1975 (AAT Act) provides:

    If:

    (a)it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and

    (b)the parties consent to the review being determined without a hearing;

    the Tribunal may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing.

13. In this case, for reasons that include his medical incapacity, the Applicant has indicated that he wishes to have his case determined on the basis of the evidence already lodged with the Tribunal. The materials before the Tribunal include the documentary evidence upon which the Initial Review was conducted by AAT1.  While the Applicant could have provided further evidence on the Second Tier Review, he is not required to do so.  The Tribunal also has the benefit of a detailed written Statement of Issues, Facts and Contentions setting out the Respondent’s submissions in detail.

14. On this basis, the Tribunal is satisfied that a review of the AAT1 decision can be adequately determined in the absence of the parties, having regard to the documents provided by both parties to the Tribunal.

15. The Tribunal is also satisfied that the parties consent to the review being determined without a hearing, notwithstanding that consent is not formalised in a written form. The Applicant requested a hearing and indicated that he did not intend to attend in person or by telephone. He provided a medical certificate which stated that he was unfit to participate in a hearing and the matter should proceed on the papers. The Registrar informed the Applicant by email on 1 August 2019, that the matter would be set down at the earliest date for a hearing ‘on the papers’ as he had requested.  The Applicant did not respond to this email and from his failure to respond the Tribunal infers his consent. The Respondent did not object to the course proposed.  The Tribunal accepts from this that there is tacit consent to the determination of the review ‘on the paper’.

16. Accordingly, the Tribunal is satisfied that s.34J of the AAT Act empowers it to proceed to determine the Second Tier Review without a hearing on the basis of the documents provided to it. Those documents comprise of:

    (a)the documents produced by the Respondent pursuant to s.37 of the AAT Act (the T Documents), and

    (b)the following documents provided to the Tribunal by the Applicant;

    i.TAC Certificates of Capacity issued by Dr Chee Keong Chan dated          28 May 2019, 1 July 2019, 19 August 2019, 11 September 2019 and 14 October 2019; and

    ii.a Jury Eligibility Form with a supporting medical certificate of Dr Chan dated 22 March 2019.

    QUALIFICATION PERIOD

17. A decision in relation to the granting of DSP must be made having regard to the Applicant’s condition in the period commencing on the day the application is lodged and the 13 weeks thereafter.  This is called the qualification period.[6]

    [6] See ss 37 and 42 and cls 3 and 4 of Schedule 2 of the Social Security (Administration) Act 1999.

18. In this case the qualification period commenced on 30 November 2015 and ended on29 February 2016.

19. In assessing whether a condition has stabilised and is likely to persist for the future, the Tribunal must look at the situation during the qualification period, having regard to the evidence available at the time.  Evidence of deterioration in the Applicant’s condition subsequent to the qualification period is not relevant, same as to the weight the Tribunal might give to competing prognostications made about the Applicant’s condition during the qualification period.[7]

    [7] See Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 992 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133 at [33] and Re Covenden and Secretary, Department of Social Services [2018] AATA 353 at [7], as affirmed in Gallacher and Secretary, Department of Social Services [2015] FCA 1123, at [25]-[29].

    DSP QUALIFICATION

20. To qualify for the DSP an applicant must satisfy the requirements set out in s.94 of the Social Security Act 1991 (Act) as assessed during the qualification period.

21. In essence s.94 of the Act relevantly requires that:

    ·the Applicant have a physical, intellectual or psychiatric impairment; and

    ·the Applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years; and

    ·the Applicant has a severe impairment (an impairment rating of at least 20 points on a single Impairment Table[8]), or

    ·the Applicant’s impairments together rate at least 20 points on the Impairment Tables[9]; and

    ·the Applicant has a continuing inability to work, or the Secretary is satisfied that the Applicant is participating in the supported wage system.

    [8] As contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

    [9] Ibid.

22. Section 94(2) of the Act provides that a person has a continuing inability to work because of an impairment if the person has either a severe impairment or has actively participated in a program of support and the impairment is of itself sufficient to prevent the person from doing any work or undertaking a training activity independently of the program of support within the next two years.

23. ‘Work’ for the purpose of the Act, is work of at least 15 hours per week on wages that are at or above the relevant minimum wage.

24. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 provides that a person has actively participated in a program of support if they have participated in a program for at least 18 months in the three years immediately prior to the date of claim.

    CONSIDERATION OF EVIDENCE AND SUBMISSIONS

25. The Respondent accepts that the Applicant had impairments and that he satisfied s.94(1)(a) of the Act during the qualification period. The relevant question for the purposes of this review is whether the Applicant’s impairment(s) attract 20 points or more on the Impairment Tables as required by s.94(1)(b) of the Act.

26. In conducting this review, on the papers, the Tribunal does not have any direct evidence from the Applicant as to the nature and extent of his impairments.  The Tribunal further notes that the Applicant has declined to provide any direct evidence of the extent of his impairments on several previous occasions. Job Assessment Reports dated                  20 August 2015[10] and 19 April 2016[11], state that the Applicant failed to engage with the assessor for the purpose of each of these assessments.  In the Reviewable Decision, AAT1 noted that the matter was determined on the papers at the Applicant’s request.

    [10] T38, p140.

    [11] T40, p174.

27. The Rules set out at Part 2 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) make it clear that an assessment of whether an impairment has been fully diagnosed, fully treated and fully stabilised requires there to be corroborating evidence from a suitably qualified medical practitioner[12]. Self-reporting of symptoms alone is not sufficient.

    [12] See in particular Rule 8.

28. In the absence of any direct evidence from the Applicant, the Tribunal’s assessment falls to be determined on the basis of the available relevant medical evidence.

    Spinal conditions

29. The Respondent accepts that the Applicant’s lower back condition and his cervical spine condition were each fully diagnosed, fully treated and fully stabilised during the qualification period.

30. The Applicant was assessed by Dr Greg Etherington, spinal surgeon, on   18 December 2013[13].  He diagnosed that:

    The lumbar spine shows that the canal and foraminal dimensions are good and the disc heights are also good.  There is a minor bulge of L5/S1 to the centre, but the quality of the discs is actually quite good for someone of (his) age.  There is some minor facet joint arthropathy seen on the previous CTs of the lumbar spine.  

    [13] T17, p43.

31. Dr Etherington concluded that there is no indication for urgent surgery or even urgent treatment, but he did arrange a referral for the Applicant to see a rheumatologist to check his diagnosis and for ongoing treatment.  The AAT1 decision notes that the Applicant said he had seen the rheumatologist, but no confirmation of his visit was provided.

32. The Applicant was seen by Dr W. Huffam, consultant orthopaedic surgeon, in July 2015 at the request of the TAC, following a motor vehicle accident in May 2014[14]. His diagnosis was that the Applicant had developed a kypho scoliotic deformity of the thorasic and lumbar spines during growth and that he had some secondary degeneration and had sustained injuries to his back with intervertebral disc lesions at the C5-6 level and the cervical spine and the L5-SD1 level of the lumbar spine. He concluded that the Applicant’s condition had stabilised and that his condition was unlikely to respond to any physical treatment.

    [14] PT37, p112-122.

33. Although Dr Huffam’s assessment pre-dates the qualification period by five months or so, there is nothing in the documentary evidence to suggest that his assessment was not relevant to the Applicant’s condition during that period.  Accordingly, the Tribunal is satisfied that the Applicant’s lower back condition and his cervical spine condition were each fully diagnosed, treated and stabilised during the qualification period as conceded by the Respondent.

34. The appropriate Impairment Table to rate the Applicant’s spinal conditions is Table 4.  

35. The Respondent contends that at most a five point impairment rating under Table 4 would be appropriate for the Applicant’s lower back condition and his cervical spine condition.

36. In part the Respondent relied on the observations of Dr Etherington when he examined the Applicant in November 2013.  The Tribunal gives this evidence no weight.  Not only was it an assessment made two years prior to the qualification period but it also pre-dated the Applicant’s motor vehicle accident in May 2014.

37. More relevantly, Dr Chan provided six medical reports between 7 August 2014 and 20 January 2016 which were identical in reporting the Applicant’s lower back pain symptoms as pain in lower back. Unable to sit for long periods. Pain on bending and standing for long periods[15]. 

    [15] T47, p196-201.

38. Dr Huffam, who saw the Applicant in July 2015, noted that upon examination all movements of the neck were slow and hesitant and he would only move his neck through about half normal range of movement. Movements of the back also about half the normal range of movement with complaints of pain[16]. However, Mr Huffam observed that when getting dressed the Applicant showed a much greater range of movement than he had demonstrated during the physical examination[17].  Dr Huffam assessed the extent of the Applicant’s impairment for TAC purposes under the Guides to Evaluation Permanent Impairment American Medical Association 4^th Edition as 13 per cent of the whole person.

    [16] T37, p115.

    [17] T37, p116.

39. The reports of Dr Chan and Dr Huffam do not support a finding that the Applicant met one of the descriptors for a 10-point impairment rating under Table 4 during the qualification period, and accordingly on the basis of the available evidence, the Tribunal is not satisfied that the Applicant’s spinal conditions had any more than a mild functional impact on his spinal function during the qualification period. The Tribunal therefore determines that an impairment rating of five points under Table 4 of the Impairment Tables is appropriate.

    Aortic regurgitation

40. The Respondent accepts that the Applicant’s aortic regurgitation condition was fully diagnosed, treated and stabilised during the qualification period.

41. The existence of a mild aortic regurgitation was well established on the evidence prior to the qualification period[18] and Mr Martin Sebastian, cardiologist, noted in March 2014 that further treatment or investigations were not planned or recommended other than to monitor for any arrhythmic tendencies[19].  On the basis of this evidence, the Tribunal is satisfied that the Applicant’s aortic regurgitation condition was fully diagnosed, treated and stabilised during the qualification period.

    [18] See echocardiogram reports at T8, p31-33 and T9, p34 confirmed by Mr Sebastian (cardiologist) at T19, p55-56.

    [19] T19, p55-56.

42. The appropriate Impairment Table to rate the Applicant’s aortic regurgitation is Table 1 – Functions Requiring Physical Exertion and Stamina.

43. Under Table 1, there is said to be no functional impact on activities requiring physical exertion or stamina if the person is able to undertake exercise appropriate for a person of their age for 30 minutes, and has no difficulty completing physically active tasks around their home or community.  In May 2014, Dr Chan reported that the Applicant’s aortic valve regurgitation resulted in “reduced exercise tolerance” and “chest pains at rest”[20].  This evidence falls short of meeting the criteria in Table 1, but in any event the Tribunal prefers the assessment of Mr Sebastian who conducted a cardiac evaluation with an exercise stress echocardiogram and assessed the Applicant’s exercise capacity as reasonable.  He opined that, while the Applicant did have some mild palpitations, they have not been prolonged or disabling[21].

    [20] T23, p75.

    [21] T19, p55.

44. On the basis of this evidence, the Tribunal is satisfied that an impairment rating of zero points under Table 1 of the Impairment Tables is appropriate.

    Chronic obstructive pulmonary disorder

45. The Respondent accepts that the Applicant’s “COPD/emphysema” was fully diagnosed during the qualification period but contends that the Applicant’s COPD/emphysema was not fully treated or fully stabilised during the qualification period.

46. The Tribunal is satisfied, on the evidence of Dr Chan’s diagnosis of 3 May 2014 following respiratory function testing[22], that the Applicant’s “COPD/emphysema” was fully diagnosed during the qualification period.

    [22] T23 and T20.

47. The evidence regarding the treatment of the condition is limited and unclear.  Dr Chan noted in May 2014 that the Applicant was awaiting review by a respiratory physician and that his treatment at the time was limited to a bricanyl turbohaler[23].  The Applicant self-reported in his claim form that at the time he was taking Ventolin[24], but this was not corroborated by medical evidence. There is no evidence that the Applicant was ever assessed by a respiratory physician or that he availed himself of other reasonably available pharmacological treatments during the qualification period.  Medical Certificates issued by Dr Chan in the qualifying period do not refer to the Applicant’s COPD/emphysema[25].

    [23] T23, p67-77.

    [24] PT39, p168.

    [25] PT47, p200-202.

1. On the basis of the available evidence, the Tribunal is not satisfied that the Applicant’s COPD/emphysema was fully treated or fully stabilised during the qualification period.

   Bilateral knee pain

2. The Respondent accepts that the Applicant’s right knee and left knee conditions were each fully diagnosed during the qualification period. However, the Respondent contends that neither of the Applicant’s bilateral knee conditions were fully treated or fully stabilised during the qualification period.

3. The Applicant’s right knee condition was identified by radiological imaging[26], and confirmed by the report of Mr Ben Miller, orthopaedic surgeon, dated  25 November 2013[27]. Mr Miller considered an arthroscopy of the right knee could occur but noted that …there is no need to have anything done to this knee unless his symptoms are intolerable[28].

   [26] T15, p41.

   [27] T16, p42.

   [28] T16,p42.

4. The Applicant’s left knee condition was identified by an MRI scan on 27 November 2014[29].  It showed that the Applicant had deep infrapatellar bursitis. The Applicant had presented to Dr Chan with pain over the left knee on flexion.

   [29] T26, p96.

5. On the basis of this evidence, the Tribunal is satisfied that the Applicant’s left and right knee conditions were fully diagnosed during the qualification period.

6. However, there is insufficient evidence to conclude that these conditions were fully treated or stabilized during the qualification period. Medical certificates issued by Dr Chan to Centrelink in the qualification period[30] do not refer to the Applicant’s bilateral knee pain.  There is no evidence that the Applicant’s symptoms in his right knee became “intolerable” and required treatment such as an arthroscopy or further review from Mr Miller. Further, there is no evidence of any treatment or rehabilitation that occurred in relation to the left knee condition and no evidence as to what treatment was continuing or planned in the next two years. There is no evidence that the Applicant was referred to an orthopaedic surgeon for assessment of his left knee, no evidence of conservative treatment such as physiotherapy or pharmacological treatment to manage the pain symptoms.

   [30] PT47, 200-202.

   Psychological condition

7. The Respondent accepts that the Applicant’s PTSD and adjustment disorder with mixed anxiety and depressed mood were fully diagnosed, but contends that the conditions were not fully treated or fully stabilised during the qualification period.

8. Based on the diagnosis of Dr Carol Newlands, consultant forensic psychiatrist, on           11 October 2015[31], the Tribunal is satisfied that the Applicant’s condition of PTSD, and an adjustment disorder with mixed anxiety and depressed mood was fully diagnosed during the qualification period.

   [31] T37, p112-138.

9. Dr Chan’s medical certificates issued for Centrelink during the qualification period[32] refer separately to both Depression and PTSD, adjustment disorder, anxiety and depressed mood, presumably as separate conditions.  In relation to both conditions the current treatment regime is stated to be Counselling. For depression Dr Chan refers to seeing Psychologist.For the other condition the certificate states – Seeing Psychologist/Has been seen by psychiatrist Dr Carol Newlands.  In each certificate, in response to a request to estimate how long the Applicant’s symptoms will affect his capacity for work, Dr Chan responded Uncertain.

   [32] PT47, p200-202.

10. Dr Chan’s description of the Applicant’s treatment as at the qualification period is not in accordance with the facts as stated elsewhere in the documents. The Applicant was seen by Dr Newlands on only one occasion in October 2015 and then for assessment at the request of the TAC and not for treatment.  Dr Newlands report indicates that the Applicant told her he had attended treatment by a psychologist, Dr Braddon, on about 12 occasions prior to mid-2015, but had never been treated by a psychiatrist.

11. Dr Chan’s certificates do not refer to any regime of pharmacological treatment. The Applicant told Dr Newlands that he had been prescribed Sertraline at a dose of 100mg, the dose having been increased from 50 mg a few months earlier. Her report also refers to Dr Chan having previously prescribed Zoloft 100 mg in November 2014 for depression and anxiety.

12. Dr Newlands recommended an assessment by a clinical psychiatrist with a view to determining whether any other psychiatric modality may prove beneficial.  She opined in her report that the Applicant’s presentation is very complex and covers a number of conditions unrelated to the motor vehicle accident.  She went on to say ...at this point in time I cannot determine with any certainty whether he will improve with treatment, and if so, at what stage in the future.  As such then, I believe his condition is stable and permanent within the meaning of the Act[33].

    [33] PT37, p137.

13. It is not clear what Dr Newlands meant when she stated that the Applicant’s condition was stable and permanent within the meaning of the Act.  The Act to which she was referring was clearly the Transport Accident Act 1986 (Vic) under which her assessment was made. This is something that could have been clarified with her had the matter proceeded to a hearing and if she was called as a witness. Without an opportunity to clarify              Dr Newlands’ opinion on this point, the Tribunal is reluctant to give it much weight bearing in mind that her assessment was being made for a different purpose and under a different statutory scheme.

14. In the context of the current assessment, whether the Applicant’s condition was fully treated and stabilised for the purposes of the Impairment Tables, the Tribunal notes the following:

    (a)Shortly before the qualification period Dr Newlands noted that the Applicant’s condition was complex and she opined that he should be further assessed by a clinical psychiatrist.

    (b)Approximately six months prior to the qualification period the Applicant had ceased seeing a psychologist and was not receiving any clinical care.

    (c)The Applicant had not consulted a psychiatrist for treatment at any time prior to and during the qualification period.

    (d)The Applicant had been prescribed differing antidepressant medication by his treating doctor during the twelve months prior to the qualification period without reference to a clinical psychiatrist and the dosage of those prescribed drugs had been changed shortly before the commencement of the qualification period.

    (e)There was no evidence whether treatment, either pharmacological or psychological counselling, was continuing or planned.

15. Taking all of these matters into account the Tribunal is not satisfied that the Applicant’s PTSD and adjustment disorder with mixed anxiety and depressed mood was fully treated or fully stabilised during the qualification period.

    Other conditions

16. The Applicant has listed several other conditions in his claim form including “osteoarthritis/nocturia”, “injury to both hands and wrists”, “injury to both shoulders”, “injury to both hips”, “injury to both feet and ankles”, “injury to both elbows”, “multiple hernias” and “restless leg syndrome”[34].

    [34] T39, p168.

17. Having reviewed the documentary evidence available to it, the Tribunal is not satisfied that there is sufficient medical evidence to determine that these conditions are permanent, for the purposes of the Impairment Tables.

    CONCLUSION

18. For these reasons, the Tribunal finds that the Applicant did not satisfy s.94(1)(b) of the Act during the qualification period, and he is not eligible for the DSP.

    DECISION

19. The Tribunal affirms the decision under review.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of  Member R. West

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

Associate

Dated: 25 November 2019

Date(s) of hearing:	30 October 2019
Applicant:	Self-represented
Solicitors for the Respondent:	Sparke Helmore Lawyers