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

McGhee and Secretary, Department of Social Services (Social services second review) [2017] AATA 729 (18 May 2017)
Division:GENERAL DIVISION
File Number(s): 2017/0978
Re:Bryan McGhee
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:18/5/2017
Date of written reasons: 25/5/2017
Place:Canberra

The decision under review is affirmed.
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Mr S. Webb, Member
SOCIAL SECURITY – claim for disability support pension – impairments – assessment of impairments resulting from ‘permanent’ medical conditions – 20 point minimum threshold not satisfied - decision affirmed
Social Security Act 1991, s 94
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr S. Webb, Member
25 May 2017

Bryan McGhee claimed disability support pension (DSP). His claim was rejected. He requested review. The decision to reject his claim was affirmed. He has applied for further review.
For the reasons given orally at the conclusion of the hearing of his application, Mr McGhee’s claim for DSP cannot succeed, and the decision rejecting his claim is affirmed.
Mr McGhee contacted the Tribunal after the hearing, but this contact was unintelligible. Lest there be any doubt about my reasons for the decision, I will now set them out in writing.
On 18 March 2016, Mr McGhee claimed DSP.
In order for DSP to be payable, he must satisfy the qualification requirements for DSP on the day he made the claim, or within 13 weeks thereafter – in the period from 18 March 2016 to 18 June 2016 (the qualification period).
The qualification criteria for grant of DSP are set out in s 94 of the Social Security Act 1991 (the Act). There are three main criteria –
(a)a physical, intellectual or psychiatric impairment;
(b)the impairment or impairments attract a rating of 20 or more points under Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Determination); and
(c)a continuing inability to work 15 or more hours per week.
The Secretary accepts, correctly, that Mr McGhee satisfies the first criterion. Mr McGhee suffers from several medical conditions that cause the following impairments –
(a)urinary urgency and frequency with occasional leakage;
(b)balance problems and dizziness;
(c)altered gait;
(d)tinnitus;
(e)seizures;
(f)stress, anxiety and depression;
(g)arthritis in the third and fifth fingers of his left hand and in his left elbow;
(h)back pain.
The Secretary asserts that Mr McGhee does not satisfy the second DSP qualification criterion.
The second qualification criterion requires that Mr McGhee’s impairments attract a rating of 20 or more points under the Impairment Tables. Only impairments that result from medical conditions which have been fully diagnosed, fully treated and fully stabilised during the qualification period can be assigned a rating.
Bladder
I have considered the medical reports and certificates of Dr Tan, Dr Freeman and Dr Chau (general practitioners),[1] including reference to an assessment by Professor Khadra (a urologist),[2] and a report by Dr Bryan (an ear, nose and throat specialist).[3]
[1] T5, T7, T8, T11, T12, T13, T14, T16, T17, T19, T21, T22, T23, T24, T32, T34 and T35.
[2] T19 folio 132, T15 folio 119 and T20 folio140.
[3] T27 folio 151.
It appears that Mr McGhee’s urinary or bladder impairment has been variously attributed to detrusor hyperactivity, prostatism, irritable bladder and secondary bladder overactivity. But it is the latter diagnosis that is said to be confirmed by Professor Khadra.[4] I accept that this is the preferred diagnosis on the present materials.
[4] T19 folio 131.
On 30 March 2015, Dr Tan reported that “proposed bladder neck incision – withhold until all conservative treatments failed”.[5] This notwithstanding, Dr Tan reported that the impairments were likely to persist for more than 24 months without change.[6]
[5] Ibid.
[6] Ibid, folio 133.
It appears that Mr McGhee has undergone pharmacological treatment without improvement.[7] The present evidence does not establish that surgical treatment of the kind referred to by Dr Tan is ‘reasonable treatment’ for Mr McGhee’s bladder condition.
[7] See T18 folio 125, for example.
That being so, I can accept that this condition was ‘permanent’ during the qualification period and no improvements of Mr McGhee’s related urinary impairments were expected within two years.
The impairment is to be rated under Table 13 of the Impairment Determination. In consideration of the scaled ratings and descriptors I am satisfied that Mr McGhee’s urinary urgency and frequency interrupt the performance of tasks, work or training on most days. By his own account this may cause him to lose control of his bladder if he is not able to access a toilet in time. There is no reliable evidence of bladder leakage when coughing or sneezing, or difficulty passing urine.
From this it follows that a rating of 5 points under Table 13 is appropriate.
Anxiety and depression
On 4 February 2015, Dr Tan reported that Mr McGhee has experienced depression from the age of 25. On 30 March 2015, Dr Tan reported that Mr McGhee “will be seeing psychologist”.[8]
[8] Ibid, folio 134.
On 15 March 2016, Dr Freeman certified that the prognosis of Mr McGhee’s depression was “uncertain” and that treatment was under consideration.[9] On 2 August 2016, Dr Freeman confirmed his earlier prognosis and said “consider treatment. Getting psychiatric review 23 Sep. Review after that.”[10]
[9] T26 folio 150.
[10] T32 folio 191.
Mr McGhee told me that he had consulted a psychiatrist, but considered that this was “chit chat” and what he wanted was for someone to tell him what is wrong with him.
Considering the present materials, I am satisfied that Mr McGhee’s anxiety and depression was not fully treated and stabilised during the qualification period.
This means it cannot be assigned an impairment rating.
Balance, dizziness, altered gait, tinnitus and other impairments
Mr McGhee gave evidence about other symptoms that affect him, including balance and ear problems, and altered gait. He explained that he has not been able to obtain a clear diagnosis of the cause of these symptoms.
His account is consistent with the medical evidence.
On 17 March 2016, Dr Bryan reported –
“… I found it difficult to get an accurate description of his balance problems.
…
On further investigations of any perceived balance problem, there certainly didn’t seem to be anything present today.”[11]
[11] T27 folio 151.
On 15 March 2016 and 2 August 2016, for example, Dr Freeman referred to “balance problem” that he considered to be permanent, but with an uncertain prognosis.
On 18 December 2015, Dr Tan made no reference to these problems but referred to epilepsy and “Generalised epileptic convulsion” that he considered to be permanent, albeit with an uncertain prognosis.[12] On 4 February 2015, Dr Tan referred Mr McGhee to Dr Chin for specialist assessment in respect of “Long term throbbing noise in both ears and occasional dizziness. Has had depression since 25 yera-old [sic] and has detrusor hyperactivity on no treatment”.[13] No report from Dr Chin has been provided to the Tribunal.
[12] T23 folio 146.
[13] T17 folio 123.
Considering the present materials and the problem of obtaining a clear diagnosis that Mr McGhee described, I can understand his frustration. The suite of symptoms Mr McGhee and his treating doctors describe are unusual and a number of possible diagnoses have been raised. But it does not mean that a rating can be assigned under the Impairment Determination – whatever medical condition is causing the symptoms of which he complains, it has not yet been fully diagnosed, fully treated and fully stabilised. On the present evidence and the matters ventilated during the hearing, I can go no further on this point.
Mr McGhee’s account of rheumatic pain and back pain are not supported by medical evidence. On the present materials, these symptoms cannot be accepted as fully diagnosed, fully treated and fully stabilised.
Impairment rating
While I accept that Mr McGhee has suffered from a number of debilitating medical problems for some time, only impairments that result from ‘permanent’ medical conditions that have been fully diagnosed, fully treated and fully stabilised are capable of attracting a rating under the Impairment Tables set out in the Impairment Determination.
I am satisfied, applying the Determination, that Mr McGhee’s assessable impairments attract a rating of 5 points.
Conclusion
This means that Mr McGhee’s claim for DSP cannot succeed.
It is not necessary to proceed on to consider the third qualification criterion for DSP, in respect of continuing inability to work.
Before closing, it may be appropriate to observe that Mr McGhee’s suite of unusual symptoms may be consistent with a rare brain condition, hydrocephalus, in which cerebrospinal fluid pools in the skull, causing pressure on the brain that may be associated with symptoms such as urinary frequency, altered gait, balance instability and mental symptoms. The available evidence does not establish that this possibility has been investigated, or that an undiagnosed form of hydrocephalus is present. And the possibility has not been ventilated in these proceedings. These are matters for Mr McGhee and his treating doctors.
Decision
The decision under review is affirmed.

I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

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Associate
Dated: 25 May 2017
Date of Hearing:   18 May 2017
Date final submissions received:      18 May 2017
Applicant:  In person
Solicitors for the Respondent:           Department of Human Services

[2017] AATA 729

18 May 2017

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