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

[2019] AATA 1071

Maybir and Secretary, Department of Social Services (Social services second review) [2019] AATA 1071 (17 May 2019)

Division: GENERAL DIVISION

File Number(s):       2018/3091

Re: Caleb Maybir

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member P E Nolan

Date:  17 May 2019

Place: Brisbane

The Tribunal affirms the decision under review.

……………………[Sgd]………………………….

Senior Member P E Nolan

CATCHWORDS
SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant had conditions that were fully diagnosed, treated and stabilised during the relevant period – whether Applicant had 20 impairment points – spinal condition and right lower knee and knee injuries – MVA hyperlipidaemia and dermatitis – decision affirmed

LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

CASES
Bobera and Secetary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252

REASONS FOR DECISION

Senior Member P E Nolan

17 May 2019

INTRODUCTION

1. On 1 December 2017, Caleb Maybir (“the Applicant”) applied for a Disability Support Pension (“DSP”). In the Application Form the Applicant (T46) listed a worsening back condition, right knee problem and hyperlipidaemia as being the injuries that he suffered from. The critical issue for the Tribunal is to determine whether the Applicant qualified for DSP on 1 December 2017 and if not then within 13 weeks thereof, i.e. up until 7 March 2016.

HISTORY OF THE MATTER

1. The Applicant made contact with Centrelink on 12 October 2016 and subsequently made a claim for DSP on 1 December 2017. He was born on 28 November 1954 and is 64 years of age.

2. On 14 February 2018 the decision was affirmed by an Authorised Review Officer and the Social Security and Child Support Division (“SSCSD”) on 28 April 2018.

3. The Applicant subsequently sought review of the decision and it came before this Tribunal on 11 April 2018. The Applicant appeared in person and gave evidence on oath.

ISSUES FOR THE TRIBUNAL

1. The issues for the Tribunal to consider can be summarised as follows:

   (a)whether, during the relevant period, the applicant had a physical, intellectual or psychiatric impairment which was fully diagnosed, treated and stabilised;

   (b)whether, at the relevant period, the applicant’s conditions warranted an impairment rating of 20 points or more under the Impairment Tables; and if so

   (c)whether the applicant has a severe impairment of 20 points or more under a single Impairment Tables; or if not

   (d)whether the applicant completed a program of support; and

   (e)whether the applicant has a continuing inability to work.

2. Before determining the above, it is convenient to set out the relevant legislative framework.

LEGISLATIVE FRAMEWORK

1. Section 94 of the Social Security Act 1991 (Cth) (“Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the applicant has a physical, intellectual or psychiatric impairment; the applicant’s impairment is of 20 points or more under the Impairment Tables; and that the applicant has a continuing inability to work.

2. The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 1 December 2017). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[1] Therefore the relevant period for considering whether the Applicant qualified for DSP is between 1 December 2017 and 7 March 2018 (“the Relevant Period”). The applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period.[2]

   [1] Sections 3, 4(1), 41 and 42, Schedule 2, Part 2 of the Administration Act; Fanning and Secretary, Department of Social Services [2014] AATA 447 at [33].

   [2] See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, [34].

3. Previous decisions of both the Tribunal and the Federal Court have emphasised that the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP and the 13 weeks which followed it. Evidence, such as medical reports that come into being after the relevant period, may still be relevant, but only insofar as they are referable to an applicant’s condition during the relevant period.

4. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).[3] 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.[4] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[5]

   [3] Section 26(1) of the Act

   [4] Section 5(2) of the Determination.

   [5] Section 6(1) of the Determination.

5. Under the Rules for applying the Impairment Tables, an Impairment Rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results is more likely than not, in light of the available evidence, to persist for more than two years.[6] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not to persist for more than two years.[7]

   [6] Section 6(3) of the Determination.

   [7] Section 6(4) of the Determination.

6. In determining whether a condition has been fully diagnosed and fully treated, the following factors are to be considered:

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

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

   (c)whether treatment is continuing or is planned in the next two years.[8]

   [8] Section 6(5) of the Determination.

7. 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.[9]

   [9] Section 6(6) of the Determination.

8. “Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[10]  An impairment rating can only be assigned in accordance with the rating points in each Table.

   [10] Section 6(7) of the Determination.

9. In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.

CONSIDERATION

Spinal Condition

1. It is accepted that the Applicant had an impairment for the purposes of sub-section 94(1)(a) of the Act. It is also conceded that the spinal condition is permanent and fully diagnosed though not fully treated or stabilised. The reports by Dr Rafil, particularly the report of the 10 March 2018 (Annexure 1) are clear that the condition requires further surgery. As such the condition cannot be said to be fully treated or stabilised and therefore not capable of being rated.

   Knee Condition

2. With respect to the condition concerning the right lower limb and knee it is clear the injury exists. However, the medical report of Dr Pentis and Sheryl Pahor (a physiotherapist) both referred to further treatment or, at worse, a total knee replacement for the Applicant in the future.

3. Again, the condition is not one that is said to be fully treated or stabilised and will require further assessment and/or treatment. As such it cannot be assigned.

   Other Conditions

4. The hyperlipidaemia, the dermatitis and the increased frequency of bowel and bladder movements were not matters raised in the claim.  There is no evidence that these conditions caused functional incapacity during the relevant period. I cannot assign an impairment rating for each condition.

   CONCLUSION

5. I affirm the decision under review.

   I certify that the preceding twenty (20)
   paragraphs are a true copy of the reasons
   for the decision herein of Senior
   Member PE Nolan

……………………[Sgd]………………………….
Associate
Dated: 17 April 2019

Date of hearing:  17 April 2018

Applicant:  In person

Advocate for the Respondent:       Rick McQuinlan