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

[2021] AATA 1509

McGillivray and Secretary, Department of Social Services (Social services second review) [2021] AATA 1509 (28 May 2021)

Division:GENERAL DIVISION

File Number:          2020/2877

Re:Rodney McGillivray  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans-Bonner

Date:28 May 2021

Place:Perth

The Authorised Review Officer’s decision dated 11 March 2020, as affirmed by the AAT1 on 28 April 2020, is affirmed.

.......................[Sgd]........................................

Senior Member Dr M Evans-Bonner

CATCHWORDS

SOCIAL SECURITY – pensions, allowances and benefits – disability support pension – whether the Applicant met the eligibility requirements for disability support pension – qualification period – assigning impairment ratings – whether the Applicant suffers from permanent impairments that attract 20 points or more under the Impairment Tables – Impairment Table 2 – Upper Limb Function – Impairment Table 3 – Lower Limb Function – Impairment Table 4 – Spinal Function – spinal condition – shoulder pain – knee pain – Applicant found not to meet eligibility requirements– recommendation made by Tribunal for Department to assist applicant to make new application for a DSP – Reviewable Decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 37

Social Security Act 1991 (Cth) – ss 23(1), 26, 94(1), 94(1)(a), 94(1)(b), 94(1)(c), 94(1)(c)(i),

Social Security (Administration) Act 1999 (Cth) – ss 179(2)(a), Sch 2 cl 4(1)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 3, 5(2), 5(2)(b), 5(2)(c), 6, 6(4), 6(5), 6(6), Table 2

CASES

Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1

Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252

Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133

REASONS FOR DECISION

Senior Member Dr M Evans-Bonner

28 May 2021

BACKGROUND

1. The Applicant seeks review of a decision of the Social Services and Child Support Division (AAT1) in the General Division (AAT2) of this Tribunal.

2. The Applicant lodged a claim for a disability support pension (DSP) on 10 April 2019 (T55/216). In his claim he listed the following as medical conditions that specifically affected his ability to work (T55/240):

   Stomach ulcers

   Head injuries (6 yr)

   Bursitis

   Arthritis (a) neck pain

   (b) thorax pain

   (c) lower lumber

   Asthma (severe)

   Moth eaten effect rt knee

   Hernia (double in groin)

   Dyslexia (reading, writing, computer illiterate)

   Unable to sit or stand for long periods

   Sleeping problems

3. On 13 August 2019, the Applicant’s claim for a DSP was rejected because he was assessed as not having an impairment rating of 20 points or more under the Impairment Tables, being the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (T66/271) (Original Decision).

4. The Applicant requested a review of the Original Decision, which was referred to an Authorised Review Officer (ARO). However, on 11 March 2020, an ARO of Centrelink wrote to the Applicant to advise him that the ARO had found the Original Decision to be correct, and that his review was unsuccessful (T74/293–7) (ARO Decision). The ARO found that there was no medical evidence available regarding the Applicant’s head injury and dyslexia conditions and so they could not be assessed, and that based on the available medical evidence, the Applicant’s other conditions were not permanent (T74/295–6).

5. On 18 March 2020, the Applicant lodged an application seeking review of the ARO Decision in the AAT1 (T75/300). The Applicant was also unsuccessful at the AAT1, with the AAT1 affirming the ARO Decision on 28 April 2020 (T3/11–18).

6. The ARO Decision of 11 March 2020, as affirmed by the AAT1 on 28 April 2020, is the reviewable decision that is currently before the AAT2 (s 179(2)(a) of the Social Security (Administration) Act 1999 (Cth)) (Administration Act).   

   ISSUE

7. The overall issue for determination by this Tribunal is whether, during the Qualification Period, the Applicant met the qualification criteria for a DSP pursuant to s 94(1) of the Social Security Act 1991 (Cth) (the Act), including:

   (a)whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments (s 94(1)(a) of the Act);

   (b)if so, whether the impairment(s) were fully diagnosed, treated and stabilised and attracted a rating of 20 points or more under the relevant table of the Impairment Tables (s 94(1)(b) of the Act); and

   (c)whether the Applicant had “a continuing inability to work” (s 94(1)(c)(i) of the Act).

   THE HEARING AND THE EVIDENCE

8. The application was heard by the Tribunal on 23 April 2021. The Applicant appeared in person, and was supported by Mr C Chambers, his individual advocate. The Applicant’s mother and father were also in attendance. The Applicant and his mother gave evidence to the Tribunal.   

9. Ms A Cornfield of Sparke Helmore Lawyers appeared for the Respondent by telephone.

10. The following documentary material was admitted into evidence at the hearing:

    (a)Section 37 Documents consisting of 3 volumes, numbered T1–T84, totalling 391 pages (Exhibit R1);

    (b)Medical report from Dr Anthony Pethick, dated 29 December 2020 (Exhibit A1);

    (c)Medical report from Dr Leah Power, dated 26 October 2020 (Exhibit A2);

    (d)

    Medical report from physiotherapist Kenny Kessler, dated 5 October 2020

    
    

    (Exhibit A3); and

    (e)Email from the Applicant's former employer, dated 5 February 2021 (Exhibit A4).

    LEGISLATION

    Qualification for DSP

11. Section 94(1) of the Act sets out the qualification criteria for a DSP. Section 94(1) states:

    (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; …

    Impairment Tables

12. Section 23(1) of the Act defines “Impairment Tables” to mean “the tables determined by an instrument under subsection 26(1)”.

13. Section 26 of the Act states:

    Impairment Tables and rules for applying them

    Impairment Tables

    (1)The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.

    (2)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.

    Rules for applying Impairment Tables

    (3)The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).

    (4)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.

14. The Minister has determined tables as contemplated by s 26 of the Act. These tables are contained in the Impairment Tables.

15. “Impairment” is defined in s 3 of the Impairment Tables as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”

16. Section 6 of the Impairment Tables states, in part:

    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

    (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.

    (Notes omitted.)

17. Section 5(2) of the Impairment Tables states:

    Purpose and general design principles

    (2)The Tables:

    (a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and

    (b)are function based rather than diagnosis based; and

    (c)describe functional activities, abilities, symptoms and limitations; and

    (d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.

    (Notes omitted.)

18. For a condition to be “permanent”, it must satisfy the following conditions outlined in s 6(4) of the Impairment Tables, which states:

    (4)… 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 …

    (c)the condition has been fully stabilised; and …

    (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

    (Notes omitted.)

19. Sections 6(5) and 6(6) of the Impairment Tables outline the conditions that must be satisfied for a condition to be fully diagnosed, fully treated and fully stabilised:

    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.

20. To determine the appropriate functional impact to be assigned to the Applicant’s medical conditions during the Qualification Period, the Tribunal must undertake a “function based” analysis of the evidence before it (s 5(2)(b) of the Impairment Tables). This includes having regard to evidence of the Applicant’s “functional activities, abilities, symptoms and limitations” (s 5(2)(c) of the Impairment Tables) based on the medical evidence before the Tribunal. Relevantly, the introduction to each Impairment Table emphasises the need for corroborating evidence from the person’s treating doctor and medical specialists.

    Qualification Period

21. Schedule 2, cl 4(1) of the Administration Act provides for a 13-week qualification period from the date of claim:

    (1)If:

    (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

22. In summary, an applicant will have a period of 13 weeks from the date of lodgement of an application for a DSP to satisfy the requirements for eligibility. The Applicant lodged his claim for a DSP on 10 April 2019. Consequently, the relevant qualification period is 10 April 2019 to 10 July 2019 (Qualification Period).

23. The Tribunal can only consider evidence relevant to the Applicant’s medical condition during the Qualification Period. In Gallacher v Secretary, Department of Social Services (2015)
    68 AAR 1 (Gallacher), 7 [26] and [28], Besanko J stated that he agreed with the following statement from the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252, 253 [1]:

    This case concerns the application of s 94 of the Social Security Act 1991 (Cth) which deals with the conditions for the grant of a disability support pension. There is little authority in the Court concerning the operation of these important provisions.

    
    

    It is to be noted at the outset, by virtue of s 42 and Sch 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.

24. In Gallacher, Besanko J (at 7 [27] and [28]) also stated his agreement with the following passage from Deputy President Handley’s decision in Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139 [31]:

    In my view, in the case of DSP, it is implicit in cl 4 of Sch 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with [in] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.

25. The Tribunal is required to assess the medical evidence concerning an applicant’s functional ability resulting from their impairments during the 13-week Qualification Period. If an applicant’s conditions have worsened after the Qualification Period, they need to make a new claim for a DSP so that this more recent medical evidence can be considered.

    QUALIFICATION CRITERIA FOR DSP

    Did the Applicant suffer from impairments during the Qualification Period?

26. The Respondent conceded, and the Tribunal agrees, that the Applicant had physical impairments during the Qualification Period. The medical evidence before the Tribunal confirms that the Applicant suffered from the following conditions during the Qualification Period:

    (a)spinal condition, which included widespread osteoarthritis and pain affecting his cervical and thoracic spine (T25/148; A2);

    (b)a shoulder condition, which as at the Qualification Period had been variably diagnosed as bilateral frozen shoulders, bursitis and degenerative arthropathy (T61/255; T45/202 and T56/248); 

    (c)knee pain (T60/254); and

    (d)asthma, which the Applicant has had since childhood (T24/143; T79/312).

27. Accordingly, the Tribunal finds that the Applicant suffered from these impairments during the Qualification Period and therefore, s 94(1)(a) of the Act is satisfied.

28. There is insufficient medical evidence before the Tribunal about the Applicant’s other conditions (T55/240) mentioned in the documents to enable the Tribunal to determine whether the Applicant suffered from them at the Qualification Period.  

    Were the impairments permanent at the time of the Qualification Period?

29. Before any impairment points can be assigned to a condition, the Tribunal must first determine whether the condition is permanent during the Qualification Period. A condition is permanent if it is fully diagnosed, treated and stabilised. The Tribunal must look at the corroborating medical evidence to determine this.

    Spinal Condition

30. Unfortunately, the available evidence regarding the Applicant’s spinal condition indicates that, whilst it was fully diagnosed at the Qualification Period, it was not fully treated and stabilised, because treatment options were still being considered and had not been undertaken by the Applicant. The Tribunal will summarise this evidence and explain why it has reached this conclusion.

31. Shortly before the commencement of the Qualification Period, in a letter dated 15 November 2018 to the Applicant’s general practitioner, Dr Pethick, pain medicine fellow, Dr Nadarajah, confirmed that the Applicant “underwent a right L3/L4, L4/L5 and L5/S1 radiofrequency neurotomy and left L3/4, L4/5, and L5/S1 facet joint injection on 12 November 2018”. In the letter Dr Nadarajah stated that he would organise for the Applicant to also have a radiofrequency neurotomy on the left. Dr Nadarajah further stated that:

    He should perform low impact cardiovascular exercises such as walking 15-20 mins three times a week and gradually build this up over time. I think it would be useful to link him in with a physiotherapy service for an exercise prescription from a cardiovascular perspective and core strengthening.

32. However, in a subsequent letter to Dr Pethick, dated 7 January 2019 (T50/209), Dr Nadarajah stated that the Applicant had not done “any increased exercise as he ‘does not want to exacerbate his pain’”.

33. Shortly after the Qualification Period ended, in a letter to Dr Pethick dated 28 October 2019 (T68/274), pain medicine specialist Dr Leah Power, noted that the Applicant was “still considerably troubled with spinal pain more in the cervical and thoracic region at the moment”. She noted that he would be seeing a physiotherapist on 12 November 2019, and mentioned that “[h]e has not returned the paperwork for the clinical psychologist which I think would be very useful for him to attend as we really need to think of other treatments apart from medical in addressing his chronic pain”.

34. Dr Power also referred to having made appointments for the Applicant to have “some right sided facet joint injections of the cervical spine and in the C2/3 and C5/6 level based on the clinical distributions of his pain”. Dr Power further indicated that she would undertake further investigations such as examining the Applicant “neurologically” when she next saw him and that she would monitor the Applicant following the injections. Dr Power also noted that:

    We should encourage him at every opportunity to reduce his oral intake of medications. This is why it is very important for him to attend the physiotherapy and psychology appointments that I have been encouraging him to go to.

35. A letter from Dr Power, dated 26 October 2020 (A2), stated that:

    … in the past you have been referred for clinical psychology and physiotherapy to manage the chronic pain. You declined further appointments for clinical psychology input on 20th October 2020 and you declined physiotherapy input on 20th August 2019. Today during our consultation we discussed the pivotal nature of physiotherapy and psychology in managing chronic pain. Our clinical nurse specialist spent some time with you describing the multidisciplinary pain program that we run at the hospital. After her explanation and the consultation with me you have given your consent for further contact to be made with you with regard to psychological and physiotherapy input and more specifically the multidisciplinary pain program. I will make the necessary referrals and they will contact you in due course with these referrals.

36. A letter from Dr Pethick to the Tribunal dated 29 December 2020 (A1) stated that:

    he has seen a spinal surgeon and it is not believed his condition is amenable to help with this, and so no further plans to further go down this road.

    It is believed that psychology and physiotherapy support is likely to be pivotal in supporting Rod, and referrals have been made to the services. Rod apparently agreed to this at the time.

    Dr Power believes that Rod needs to engage with psychology and physiotherapy, to consider that he has been fully treated.

1. This medical information discussed above indicates that the Applicant was still undergoing treatment for his spinal condition after the Qualification Period. It also indicates that he had not seen a clinical psychologist or engaged adequately with physiotherapy support as recommended by Dr Power, nor had he undertaken exercise as recommended by Dr Nadarajah. Dr Power also indicated the need to think of other treatments and to undertake further investigations, and most recently recommended the “multidisciplinary pain program” as well as psychological and physiotherapy treatments. Based on this evidence, the Tribunal finds that the Applicant’s spinal condition was fully diagnosed but was not fully treated or stabilised during the Qualification Period.

   Shoulder pain condition

2. The Respondent submitted that there have been various diagnoses of the Applicant’s shoulder conditions, and therefore the condition could not be regarded as fully diagnosed (Respondent’s Statement of Issues, Facts and Contentions, para [50]).

3. The Respondent referred to an ultrasound report dated 29 July 2017, stated that there is “[e]vidence for mild subacromial bursitis with impingement” and that “[t]here also appears to be symptomatic degenerative arthropathy of the right acromioclavicular joint” (T56/248). The Respondent also referred to a different diagnosis by Dr Pethick. Relevantly, the Tribunal notes, a letter from Dr Pethick dated 17 April 2019 (T56/246–7) which lists the Applicant’s conditions to include “Subacromial bursitis” (T56/247).

4. During the Qualification Period, Dr Leah Power stated, in a report dated 8 July 2019, that “there was hyperflexia noted throughout his upper and lower limbs” and that “[h]e has bilateral frozen shoulders I believe” (T61/255). The Tribunal accepts that, regardless of what the Applicant’s shoulder condition is called, he was fully diagnosed by a specialist, being

   
   

   Dr Power, during the Qualification Period.

5. A Job Capacity Assessment (JCA) Report for the Applicant, submitted on 6 August 2019, noted that Dr Pethick recorded on 22 July 2019 that the Applicant was taking pain medications for his back, which were also likely to help with his shoulders, suggesting a link between the two conditions and the need for pain management. The JCA Report further confirmed that “[n]o further current information was available to confirm current treatment or prognosis” and that the Applicant confirmed that he “has not participated in any type of secondary physical rehabilitation for a number of years” (T65/261).

6. The Tribunal agrees that there is minimal evidence regarding whether the Applicant’s shoulder condition was fully treated and stabilised as at the Qualification Period. However, given that the Applicant suffers from “widespread chronic non-specific spinal pain” (A3), he is likely to benefit from the multidisciplinary pain program recommended by

   
   

   Dr Power (A2), which at the time of the Qualification Period, had not been undertaken.

   
   

   In his letter dated 29 December 2020, Dr Pethick also referred generally to the need for the Applicant to undertake “psychology and physiotherapy” before he could be considered fully treated (A1).

7. Based on this limited evidence, on the balance of probabilities, the Tribunal finds that the Applicant’s shoulder condition was diagnosed but was not fully treated or stabilised during the Qualification Period.

8. Even if the Applicant’s shoulder condition was permanent during the Qualification Period, there is insufficient corroborating medical evidence in the materials before the Tribunal for the Tribunal to be able to assign an impairment rating under Impairment Table 2 – Upper Limb Function.

   Knee pain

9. Medical evidence some years prior to the Qualification Period showed that the Applicant suffered a meniscal tear in 2012. A medical certificate from Dr Afilaka dated 25 July 2012 stated that the Applicant’s symptoms were a “painful knee needing to use crutches” but that the condition was “temporary” (T18). A letter from Dr Michalka, orthopaedic registrar, dated 15 August 2012, noted the presence of a right medial meniscal tear and some early degenerative changes (T19/135–6) and recommended “physiotherapy to strengthen his knee, low impact exercise such as cycling or swimming and losing weight”.

10. A letter from orthopaedic registrar, Dr Bagash, dated 20 March 2017 (T39/191) refers to the Applicant injuring his right knee on a bicycle in November 2016 and then subsequently slipping on crutches and reinjuring his knee. The letter recommended a trial of physiotherapy to attempt to alleviate his symptoms.

11. During the Qualification Period, in a medical certificate dated 24 June 2019, Dr Pethick stated the Applicant’s symptoms as “pain and dysfunction of knees, back, neck, shoul[d]ers” (T60/254). Towards the end of the Qualification Period, Dr Power stated in her letter dated 8 July 2019 that the Applicant was complaining of “bilateral leg pain” (T61/255). The Applicant’s knee pain appears to be a separate condition to those described in the preceding two paragraphs. There does not appear to be a specific diagnosis for this condition in any of the medical materials before the Tribunal, nor reference to any treatment concerning this condition. There is consequently insufficient evidence to conclude that the Applicant’s knee pain condition was fully diagnosed, treated or stabilised at the time of the Qualification Period.

    Asthma

12. As noted above, the Applicant has suffered from asthma since childhood and so it is reasonable to conclude that the Applicant’s asthma was fully diagnosed at the Qualification Period (T24/143; T79/312). On the Applicant’s evidence at the AAT1 hearing and at the hearing of this application, any functional impacts of the asthma appeared to be minimal. There is also no corroborating medical evidence before the Tribunal regarding the treatment and functional impacts of the Applicant’s asthma. Accordingly, even if the Tribunal could conclude that the Applicant’s asthma was permanent, there is insufficient medical evidence about the functional impacts of this condition for the Tribunal to be able to assign an impairment rating.

    CONCLUSION

13. Based on the evidence before the Tribunal, during the Qualification Period, the Applicant did not meet the eligibility requirements in s 94(1) of the Act and was therefore not qualified to receive a DSP.

14. Although the Applicant suffered from impairments at the time of the Qualification Period, the medical evidence does not indicate that these impairments were permanent, and therefore they cannot be assigned an impairment rating.

15. It is therefore unnecessary to consider whether the Applicant has a continuing inability to work under s 94(1)(c) of the Act.

16. The Tribunal acknowledges that the Applicant suffers from numerous health conditions. It appears likely to the Tribunal that some of the Applicant’s conditions may have become permanent and may have developed or worsened since the conclusion of the Qualification Period, and that he may now meet the eligibility requirements for a DSP. If the Applicant wishes to make a new claim for a DSP, the Tribunal requests that Centrelink work with the Applicant, his advocate and his medical practitioners to assist him to make a new claim. This would include providing his medical practitioners with copies of the Impairment Tables to ensure that Centrelink has the relevant medical evidence to be able to decide any new DSP claim.

    DECISION

17. The Authorised Review Officer’s decision dated 11 March 2020, as affirmed by the AAT1 on 28 April 2020, is affirmed.

I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

...[Sgd]..........................................................

Associate

Dated: 28 May 2021

Date of hearing:	23 April 2021
Applicant:	Self-represented with the assistance of Mr C Chambers from People with Disabilities
Representative for the Respondent:	Ms A Cornfield, Sparke Helmore Lawyers