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

McMahon and Secretary, Department of Social Services (Social services second review) [2018] AATA 1081 (30 April 2018)
Division:GENERAL DIVISION
File Number(s): 2017/3630
Re:Mr Anthony McMahon
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:30 April 2018
Place:Melbourne

The decision under review is affirmed
........................................................................
Ms Anna Burke, Member
SOCIAL SECURITY – disability support pension –– whether qualified – small fibre polyneuropathy and a mental health disorder are fully diagnosed, treated and stabilised - whether impairment attracts rating of 20 points or more under Impairment Tables – whether program of support had been undertaken.
Legislation
Administrative Appeals Tribunal Act 1975
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security Act 1991
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
Ms Anna Burke, Member
30 April 2018
INTRODUCTION

Mr McMahon (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant the Applicant Disability Support Pension (DSP) pursuant to section 94 of the Social Security Act 1991 (the Act).
On 27 October 2016 Centrelink found that Mr McMahon was not entitled to DSP as he did not meet the requirements of the Act. Centrelink is the service provider for the Department of Human Services.
The application was heard on 9 February 2018 via telephone. Mr McMahon was self-represented and Ms Jenna Molan, government lawyer in the Freedom of Information and Litigation Team, Department of Human Services, appeared for the Respondent.
THE ISSUES IN CONTENTION
The issues in contention are whether Mr McMahon:
(a)had a physical, intellectual or psychiatric impairment;
(b)has a diagnosed condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;
(c)has a fully diagnosed, treated and stabilised condition which attracts 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(d)has a continuing inability to work.
BACKGROUND
Mr McMahon, who is now 65 years of age, lives in regional Victoria on his own and ceased work in 2016 because of his medical condition. Mr McMahon completed year 11 and joined the army where he completed his electrical apprentice. After he left the army, he worked in numerous electrical roles and then as a machine operator for 14 years. He was in receipt of income protection payments at the time of his claim.
On the 16 August 2016 Mr McMahon made an application for DSP, citing his medical conditions as peripheral neuropathy.
On the 25 October 2016 Centrelink had a job capacity assessment (JCA) conducted on Mr McMahon. The JCA report found that:
· Mr McMahon’s nervous system condition of painful small fibre polyneuropathy was considered fully diagnosed but not fully treated or stabilised as insufficient medical information on functional impact and treatment had been provided. It stated that nil medical information has been provided in relation to reported medication, type, dose and customer self-managing, current and future treatment, including recommended ongoing treatment, pain management options and whether this treatment will show significant improvement and impact on function.
· Mr McMahon was assessed as having a work capacity 15-22 hours per week and 23-29 hours per week in 2 years with intervention.
On 27 October 2016 Centrelink wrote to Mr McMahon to inform him that his DSP had been refused as he did not have an impairment rating of 20 points or more under the Impairment Tables.
On 3 January 2017, on internal review, a departmental Authorised Review Officer (ARO) affirmed the early JCA report finding that Mr McMahon’s total impairment rating was 5 points under Table 3, as his medical condition is permanent. They also found that Mr McMahon had a continuing ability to work and had not met the program of support requirements because he had not actively participated in the program of support for 18 months in the last 36 months.
On 16 June 2017 the Social Services and Child Support Division of the Tribunal (AAT1) affirmed the decision of the ARO to reject Mr McMahon’s DSP claim and found:
·he was suffering from small fibre polyneuropathy which is a progressive condition and his symptoms will get more severe over time, however at the time of claim the condition was having a moderate impact on activities involving the lower limbs and therefore awarded 10 points under Table 3 – Lower Limb Function.
·in relation to the impact on his hands the condition had a mild impact as he could not do up buttons or lift heavy objects and therefore was awarded 5 points under Table 2 – Upper Limb Function.
·that his mental health condition was not fully diagnosed, stabilised or treated at the time of the claim.
·did not make a finding in respect of undertaking a program of support as Mr McMahon was not found to have a severe impairment.
On 21 June 2017 Mr McMahon sought a review of the AAT1 decision by this division of the Tribunal, as he now has a report from a psychiatrist, confirming his Post-Traumatic Stress Disorder (PTSD), anxiety and depression.
In accordance with Schedule 2, Section 4(1) of the Social Security (Administration) Act 1999 (Administration Act) Mr McMahon’s qualification for DSP is to be determined from the date of his claim to a date 13 weeks thereafter, that being 15 November 2016.
Relevant Legislation and Issues
Section 94(1) of the Act provides that a person is qualified for a DSP 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;
…
It is agreed that, at the time of application Mr McMahon suffered from small fibre polyneuropathy and mental health conditions that caused impairment and he therefore satisfied section 94(1)(a) of the Act.
The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; section 6(3)(a)
Section 6(4) of the Impairment Tables states that a condition is “permanent” if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)(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.
The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and that “there must be corroborating evidence of the person’s impairment”.
Section 6(5) of the Impairment Tables states:
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.
Section 6(6) of the Impairment Tables states:
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.
For the purposes of section 6(7), reasonable treatment is treatment that:
(a)      is available at a location reasonably accessible to the person; and
(b)      is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional   capacity; and
(d)      is regularly undertaken or performed; and
(e)      has a high success rate; and
(f)       carries a low risk to the person.
The determinative issue in this review is whether, at the time, Mr McMahon suffered an impairment of 20 points or more under the Impairment Tables and, if so, whether he had a continuing inability to work.
The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (see Part 2, section 5(2)).
Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.
Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”, and additional medical reports were provided by Mr McMahon.
DOES MR MCMAHON HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for disability support pension, in the first instance, that a person suffers from an impairment.
The parties accept that Mr McMahon is suffering from small fibre polyneuropathy and a mental health disorder. Accordingly, the Tribunal finds that Mr McMahon is suffering from these conditions and meets the requirements of section 94(1)(a) of the Act.
As noted above, section 94(1)(b) of the Act states that the second requirement to qualify for disability support pension is that the person’s impairments rate 20 points or more under the Impairment Tables.
DOES MR MCMAHON HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Small Fibre Polyneuropathy
Dr Stephen Ring, consultant neurologist, in a medical report dated 13 January 2015 stated that:
“Mr McMahon reports the onset of paraesthesia/numbness in the feet a number of years ago, although since October it has become significantly worse resulted in him having to stop work……….
Neurological examination showed a heavily built man with talicoad skin. Motor strength and reflexes were normal. There was diminished pin, light-touch and temporal sensation in a gradual fashion over both feet to the ankles with normal vibration sensation and proprioception. The foot pulses were present. Nerve conducted studies were normal although these mainly interrogate large fibre nerve function.
Mr McMahon presents with a slowly progressive painful predominantly small fibre polyneuropathy which I suspect is related to his high alcohol consumption…..
Dr Kanagarasa Regi Jegadeesh, General practitioner, in a medical report of 1 December 2016 opined that:
Mr Anthony McMahon has been diagnosed with painful small fibre polyneuropathy, which is a progressive condition. Because of the progressive nature of the condition it is going to affect Anthony’s ability to work indefinitely also has pins and needles in both hands and reduced grip strength. Because of the pain in all four limbs he will not be able to do 23 hours a week. He’s even struggling with his housework and gardening at the moment. It is a progressive condition, so the symptoms tend to get worse. It is not going to directly affect the life expectancy significantly. Treatment- medications to help with nerve pain (Gabapentin 2100mg/day).
Mr Jeremy Carr, APA sports physiotherapist, in a report of 31 January 2017 stated:
Tony has a walking maximum tolerance in one effort of less than 10 minutes; he has significant increase in pain after 5 minutes.
Tony has poor manual handling techniques as he is unable to complete a squat unweighted. He has weakness within the legs and pain with squatting that prohibits him from squatting more than 50% of the depth to pick up an object on the floor. Tony uses furniture to support himself to bend over using lumber and hip flexion. Tony can lift up to 16 kg from waist to chest height. Overhead Tony can tolerate sustained overhead reaching for less than 30 seconds, secondary to pain.
On a single grip test Tony has approximately 42 kg of grip strength on each hand. When repeated he fatigues and pain ensures. At times Tony reports that he has dropped objects.
Tony has full ROM in his wrist, thumbs and fingers. Tony has normal active range of movement at his shoulders, ankles, hips, knees. He has some pain when performing these tasks that is short lasting.
At the hearing, Table 3 – Lower limb function of the Impairment Tables was explored in respect of Mr McMahon:
Table 3 – lower limb function
There is a severe functional impact on activities using lower limbs.
(1)       The person:
(a)       is unable to do any of the following:
(i) walk around a shopping centre or supermarket without assistance;
(ii) walk from the carpark into a shopping centre or supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b)       requires assistance to use public transport.
(2)       This impairment rating level includes a person who requires assistance to:
(a)       move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b)       move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
Mr McMahon advised the hearing that:
·he can do nothing without taking pain killers, that he cannot walk or do most daily activities without taking heavy medication and was frustrated that he was not entitled to the DSP because he was coping to an extent on pain killers;
·that his accepted condition was progressive, deteriorating and therefore resulted in decreased function over time;
·he had great difficulty walking around a shopping centre and only went to small shops, utilising a trolley to lean upon to give him balance. He also advised he could no longer perform his own household cleaning and was getting assistance with such tasks and was also considering getting a gardener as he could no longer undertake these activities;
·that he had a great deal of difficulty walking from the carpark into a shopping centre and had been relying upon his disability parking permit to access parking as close as possible to the shopping centre;
·that he could stand from a sitting position; and
·that there is no public transport where he lives and he relies upon his car to get around as he is no longer capable of walking longer distances.
The Tribunal then took into consideration Table 2 - Upper Limb Function of the Impairment Tables as Mr McMahon’s accepted condition also impacts his upper limbs. His capacity in respect of the severe functional impact was explored.
Table 2 – Upper Limb Function
There is a severe functional impact on activities using hands or arms.
(1)       Most of the following apply to the person:
(a)       the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b)       the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c)       the person has difficulty using a computer keyboard despite appropriate adaptations;
(d)       the person has severe difficulty using a pen or pencil;
(e)       the person has severe difficulty turning the pages of a book without assistance.
Mr McMahon further told the Tribunal that he:
·has great difficulty doing up buttons and shoelaces, relies on slip on shoes or veloce;
·can use a key board;
·can unscrew a lid on a soft drink bottle;
·often drops objects.
The respondent accepts Mr McMahon’s condition of painful small fibre polyneuropathy was fully diagnosed, treated and stabilised and attracted 10 points under Table 3 and 5 points under Table 2. Whilst acknowledging the condition is progressive, they contended there was no evidence that demonstrated that Mr McMahon met the relevant descriptors for a significant impairment during the qualifying period.
The respondent referred to the JCA report of 25 October 2016 where Mr McMahon advised that he is independent in activities of daily living, including shopping, carrying groceries to the car, can stand while showering and dressing. Furthermore, he advised that he had increased tingling in his hands and fingers but was still able to utilise them, occasionally dropped objects because of numbness in his hands, that he can mow the lawns, performs daily home-based exercise to maintain strong balance/coordination and reported no issues with balance walking, standing, sitting and standing up from a chair.
Whilst the Tribunal also acknowledged that Mr McMahon’s condition is degenerative in nature, at the time of his application he reported (and medical evidence corroborated) that he was having difficulties with his mobility and fine motor skills. However, the Tribunal was not satisfied that it was extensive enough to award 20 impairment points under one impairment table as he was still able to walk, drive his car and perform most daily living activities. The Tribunal found the condition had a moderate impact on his lower limbs and awarded 10 impairment points under Table 3. Additionally, the condition had a mild impact on his upper limbs and the Tribunal awarded 5 impairment points under Table 2.
Mental Health Conditions
Mr Greg Worley, registered psychologist, in his report dated 28 February 2017 stated:
Mr Tony McMahon began sessions with myself in June 2012 following a referral and GP mental health plan dated 8/6/12 from his treating medical practitioner... The referral states in part: ’”Tony presents concerned over recent outburst of physical anger with his now ex-partner… In addition Tony is now sleeping poorly and is keen to find some techniques to better control his anger.”
Tony attended for 10 sessions with myself between June and December of 2012.
…
It is my firm opinion that Tony’s experiences as a young man at Belcombe had left him living with at the least, post-traumatic reactions, heightened anxiety, shame and anger. He is of the generation and time when his maleness impacted on his ability to seek appropriate support and help when it may have been particularly useful. His pattern of anger, drinking and outburst are very consistent with a post traumatic experience.
In terms of how his past now impacts on him emotionally and psychologically is particular poignant. It appears his alcohol abuse has also contributed to his current medical difficulties, particularly with his constant feet and now emerging hand neuropathic pain. His current physical difficulties he has recently described to me as painful peripheral neuropathy. He also reports that the chronicity and intensity of the pain, and consequential physical limitations preclude him from being able to work.

Dr Siddhartha Dutta, consultant psychiatrist, stated in a medical report dated 26 May 2017:
My impression for Anthony’s presentation is adjustment disorder with depressed mood in a person with PTSD symptoms and harmful use of alcohol, possibly even alcohol dependence.
Under Impairment Table 5 - Mental Health Function the diagnosis of the condition must be made by either a clinical psychologist or psychiatrist. Whilst the Tribunal does not dispute the evidence of Mr McMahon that he is suffering from depression/PTSD as a result of his experiences during his time in the army and his subsequent self-medication of alcohol, the original diagnoses from Mr Worley cannot be considered as he is not a clinical psychologist and the evidence of Dr Dutta was obtained after the qualifying period. As there is no current evidence before the Tribunal of Mr McMahon’s condition being diagnosed by either a clinical psychologist or psychiatrist, at the time of his application no impairment rating can be assigned.
DOES MR MCMAHON HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP Mr McMahon must not only satisfy the requirement that he has an impairment with a rating of 20 points or more under the Impairment Tables, but also demonstrate he has a continuing inability to work. Mr McMahon would be considered to have a continuing inability to work if he has actively participated in a program of support within the meaning of section 94(3C) of the Act prior to his claim for DSP and his impairment is of itself sufficient to prevent him from doing any work independently of a program of support. The Tribunal must strictly enforce the program of support requirement, finding that no power exists to dispense with its operation and it is irrelevant whether an applicant was aware of the requirement or not.
The Tribunal accepted that Mr McMahon had been undertaking volunteer work with the local men’s shed in accordance with his requirements for receipt of newstart and that he had engaged with Advanced Personnel Management on 24 November 2016, but this was after the qualifying period. Therefore, the Tribunal found Mr McMahon has not completed a program of support and does not satisfy section 94(3C) of the Act.
CONCLUSION
The Tribunal has awarded 10 points to Mr McMahon under Table 3- Lower Limb Function as he has significant but not severe mobility issues. Additionally, the Tribunal awarded 5 points under Table 2 for upper limb functions as Mr McMahon has mild functional impact on his hands and fingers from the numbness experienced as a result of his condition.
The Tribunal was very sympathetic to the dilemma that Mr McMahon finds himself in, that his functional ability is deteriorating over time due to the progressive nature of his accepted condition and that his ability to function is a product of taking a high dosage of prescribed pain killers. However, the Act requires that functionality be determined at the date of claim and 13 weeks thereafter. The Tribunal further understood Mr McMahon’s frustration that his mental health issues were not being considered as although they were clearly having an impact upon his ability to function they had not been diagnosed by a clinical psychologist or psychiatrist at the date of claim.
Having carefully considered all the evidence before it, the Tribunal finds that at the time of his original DSP application Mr McMahon did not meet the required 20 points under one impairment table to satisfy section 94(1)(b) of the Act. Additionally, the Tribunal finds that Mr McMahon did not have a continuing inability to work, and had not completed a program of support in accordance with section 94(3C) of the Act. Accordingly, Mr McMahon did not satisfy all the requirements under section 94(1) of the Act in order to qualify for DSP.
DECISION
The decision under review is affirmed.

I certify that the preceding 48 (forty-eight)paragraphs are a true copy of the reasons for the decision herein of Member Anna Burke

[sgd].....................................................................
Associate
Dated: 30 April 2018

Date of hearing: 9 February 2018

Applicant: Self-Represented

Advocate for the Respondent: Ms Jenna Molan

Solicitors for the Respondent: Department of Human Services,
Freedom of Information and Litigation Branch

[2018] AATA 1081

30 April 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	9 February 2018
Applicant:	Self-Represented
Advocate for the Respondent:	Ms Jenna Molan
Solicitors for the Respondent:	Department of Human Services, Freedom of Information and Litigation Branch