Morgan and Secretary, Department of Social Services (Social services second review)
[2017] AATA 15
•11 January 2017
Morgan and Secretary, Department of Social Services (Social services second review) [2017] AATA 15 (11 January 2017)
Division
GENERAL DIVISION
File Number
2016/3175
Re
Brian Morgan
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Member D K Grigg
Date 11 January 2017 Place Brisbane The Tribunal affirms the decision under review.
..................................[Sgd].....................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period - whether program of support completed – whether continuing inability to work - decision under review 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 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)CASES
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368
REASONS FOR DECISION
Member D K Grigg
11 January 2017
INTRODUCTION
On 13 July 2015 Mr Morgan lodged a claim for Disability Support Pension (“DSP”).[1]
[1] Exhibit 1, T Documents, T21, pages 124-152, Mr Morgan’s Claim for DSP dated 13 July 2015.
To date Mr Morgan’s claim for DSP has been rejected. Mr Morgan seeks a further review by this Tribunal.
Claim History
A Job Capacity Assessment (“JCA”) was conducted on 17 August 2015 and reported that Mr Morgan suffers from a spinal disorder and major depression. The JCA concluded that Mr Morgan’s impairments were either not fully treated or not fully stabilised.[2] Mr Morgan’s claim was then rejected by a Centrelink officer on 17 August 2015.[3]
[2] Exhibit 1, T Documents, T22, pages 153-158, Job Capacity Assessment Report dated 17 August 2015.
[3] Exhibit 1, T Documents, T23, pages 159-162, Centrelink Decision dated 17 August 2015.
Mr Morgan then sought a review of that decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mr Morgan’s conditions were either not fully treated or not fully stabilised.[4]
[4] Exhibit 1, T Documents, T27, pages 174-180, Authorised Review Officer decision and notes dated 5 November
2015.
Mr Morgan then lodged an application for review with the Social Services and Child Support Division (“SSCSD”). The SSCSD determined that Mr Morgan’s conditions were permanent, however it rejected Mr Morgan’s claim on the ground that he had not completed a program of support.[5]
[5] Exhibit 1, T Documents, T2, pages 4-12, SSCSD’s Decision and Reasons for Decision dated 9 March 2016.
Mr Morgan has sought a review of the SSCSD’s decision by this Tribunal.[6]
[6] Exhibit 1, T Documents, T1, pages 1-3, Application for Review of Decision dated 16 June 2016.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mr Morgan must have a physical, intellectual or psychiatric impairment/s.
(b)Mr Morgan’s impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[7]
Mr Morgan must have a continuing inability to work. [my emphasis]
[7] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Morgan meets the Section 94 Requirements is the date of the claim (in this instance as at 13 July 2015), unless Mr Morgan becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[8] Therefore, in order to qualify for DSP Mr Morgan must have met the Section 94 Requirements between 13 July 2015 and 12 October 2015 (“Qualification Period”).
[8] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration)
Act 1999 (Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Morgan’s impairments after the Qualification Period cannot be considered unless it “casts light on” the functional impact of the impairments in the Qualification Period.[9]
DID MR MORGAN HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[9] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1] and on
appeal, Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130;
(2007) 97 ALD 534; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
What is an Impairment
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[10]
[10] Determination, s 3.
Mr Morgan’s Medical Conditions
In 2011 Dr Morris Bersin, Psychiatrist, reported that Mr Morgan seemed to be experiencing “Chronic Adjustment Disorder with dejected mood and anxiety”.[11]
[11] Exhibit 1, T Documents, T6, pages 73-76, Report of Dr Bersin dated 16 February 2011.
In 2012 Mr Morgan was seen by an interventional pain physician, Dr Leigh Dotchin, in relation to his right-sided chest wall pain. Dr Dotchin reported Mr Morgan suffered from “persistent T9/10 neuropathic pain”.[12]
[12] Exhibit 1, T Documents, T7, pages 77-78, Report of Dr Dotchin dated 13 January 2012.
On 22 June 2015 Dr Ian Platt, Clinical Psychologist, reported that Mr Morgan had a:[13]
…long-standing Major Depressive Disorder… precipitated by his ongoing exposure to severe chronic pain (located in his right chest wall)…the pain was related to a diagnosis of Scheuermann’s Disease [sic] (approximately 15 years ago), and the after-effects of associated thoracic spinal surgery…The nature of the pain is that it has an extremely deleterious effect on [his] quality of life…minor everyday tasks are a struggle…[his] capacity to participate in the workplace has been significantly impeded…
[13] Exhibit 1, T Documents, T16, page 103, Report of Dr Platt dated 22 June 2015.
In a Function Report dated 25 June 2015 Mr Morgan describes his medical conditions as chronic pain due to thoracic and cervical spondylosis combined with MVA depression.
Dr Hock Law, General Practitioner, provided a medical report on 30 June 2015 describing Mr Morgan’s medical conditions as:[14]
·cervical spondylosis…thoracic spondylosis
·Major depression
·chronic right chest wall pain
[14] Exhibit 1, T Documents, T19, pages 118-120, Medical Report by Dr Law dated 30 June 2015.
The JCA, conducted face-to-face with Mr Morgan on 17 August 2015 by a physiotherapist, reported that:[15]
(a)Mr Morgan suffered from:
·Spinal disorder – cervical and thoracic spondylosis which was fully diagnosed. However, because, at that time Mr Morgan was awaiting specialist review to discuss possible surgery, the condition was assessed as not fully treated and not fully stabilised.
·Major Depression which was found to be fully diagnosed but not fully stabilised because Mr Morgan was undertaking counselling and chronic pain management.
(b)The combined effects of these conditions are having a severe impact on activities and as a result work capacity is reduced.
[15] Exhibit 1, T Documents, T22, pages 153-158, Job Capacity Assessment Report dated 17 August 2015.
In April 2016, Dr Platt reported that, in his opinion, Mr Morgan “meets diagnostic criteria for Major Depressive Disorder, Severe”.[16]
[16] Exhibit 1, T Documents, T31, page 188, Report of Dr Platt dated 22 April 2016.
The Secretary accepts that Mr Morgan had Impairments which satisfied section 94(1)(a) during the Qualification Period.[17] I am satisfied on the medical evidence that that is correct and that Mr Morgan had Impairments which satisfied section 94(1)(a) during the Qualification Period.
DO MR MORGAN’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
[17] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 26 October 2016, at para 22.
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[18] They are function based[19] and designed to assign ratings to determine the level of functional impact of impairment (Impairment Rating) and not to assess conditions.[20]
[18] Determination, ss 4(2) and 5(2)(a).
[19] Determination, s 5(2)(b) and (c).
[20] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[21]
(a)Mr Morgan’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.
[21] Determination, see s 6(3).
The requirement that a condition must be “permanent” is a requirement which applies as at the date the claim for a pension is lodged, or during the Qualification Period.[22]
[22] De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2014] FCA 368, at [12].
Mr Morgan’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[23]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(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.
[23] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[24] the following is to be considered:[25]
(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.
[24] For the purposes of ss 6(4)(a) and (b) of the Determination.
[25] Determination, see s 6(5).
A condition is fully stabilised[26] if:[27]
(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;[28] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[26] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[27] Determination, see s 6(6).
[28] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it then has to be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an impairment rating using the Impairment Tables can be assigned.
Before applying the Impairment Tables I must first consider Mr Morgan’s medical history, in relation to the condition causing the Impairments.[29]
[29] Determination, see s 6(2).
I will now consider each of Mr Morgan’s Impairments.
Lumbar Spine Impairment
Is Mr Morgan’s lumbar spine impairment permanent and likely to persist for at least 2 years?
The JCA conducted on 17 August 2015 reported that Mr Morgan’s cervical and thoracic spondylosis was not fully treated and not fully stabilised because, at that time Mr Morgan was awaiting specialist review to discuss possible surgery. [30]
[30] Exhibit 1, T Documents, T22, pages 153-158, Job Capacity Assessment Report dated 17 August 2015.
Since then further medical reports have been obtained.
Dr Dotchin reported in October 2015 that Mr Morgan was awaiting further evaluation by Dr Geoff Askin, Spinal Surgeon and that Mr Morgan has constant pain.[31] Dr Dotchin reported that attempts at other forms of treatment, including desensitisation and denervation, around the area of the surgery performed in 2004, have only provided short-lived relief.[32]
[31] Exhibit 1, T Documents, T25, page 165, Report of Dr Dotchin dated 20 October 2015.
[32] Exhibit 1, T Documents, T25, page 165, Report of Dr Dotchin dated 20 October 2015.
Dr Askin reviewed Mr Morgan on 18 February 2016 and determined that there should be no surgical intervention for Mr Morgan’s spinal condition. Dr Askin reported that he “doubt[ed]…that there is anything [he] could offer him from a surgical point of view”.[33]
[33] Exhibit 1, T Documents, T29, page 186, Report of Dr Askin dated 18 February 2016.
Dr Dotchin reported in June 2016 that there had been some improvement from the exercise-based treatments but that Mr Morgan is still suffering from pain and there has been no meaningful change. Dr Dotchin reports there are treatments which could assist to manage the pain but they “do not fix the underlying problem…particularly if he is not willing or able to take analgesic agents”.[34] Mr Morgan told the Tribunal that the analgesics he trialled made him extremely nauseous and were not of long lasting effect. Dr Law, Mr Morgan’s general practitioner, confirms that Mr Morgan has reported negative side effects from taking pain medications.[35]
[34] Exhibit 1, T Documents, T32, pages 190-191, Report of Dr Dotchin dated 9 June 2016.
[35] Exhibit 1, T Documents, T30, page 187, Report of Dr Law dated 3 March 2016.
Dr Angus Nicoll, Consultant Orthopaedic Surgeon, undertook an independent medical review of Mr Morgan on 14 June 2016.[36] In Dr Nicoll’s opinion Mr Morgan had “already undergone the appropriate management for his orthopaedic conditions” and that his condition was “stable”.
[36] Exhibit 1, T Documents, T33, pages 192-198, Report of Dr Nicoll dated 17 June 2016.
As a result of these additional medical reports a further JCA was conducted by a registered occupational therapist and registered psychologist on 16 September 2016. The JCA concluded that Mr Morgan’s spinal Impairment was permanent.[37]
[37] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 26 October 2016, Annexure A, Job
Capacity Assessment dated 23 September 2016.
These later medical reports confirm that Mr Morgan’s spinal condition was fully treated and fully stabilised during the Qualification Period.
The Secretary accepts that Mr Morgan’s lumbar spine Impairment is permanent and was fully diagnosed, fully treated and fully stabilised in the Qualification Period.[38]
[38] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 26 October 2016, para 23.
I find that during the Qualification Period Mr Morgan’s lumbar spine Impairment was permanent and likely to persist for at least 2 years.
USING THE IMPAIRMENT TABLES
I have to assess the level of impact of Mr Morgan’s spinal impairment against the descriptors[39] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[40]
[39]Determination, see ss 3 and 5(3).
[40] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of impairment.
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.[41]
[41] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[42]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[42] Determination, see s 7.
I must not take into account the following information in applying the Tables:[43]
(a)symptoms reported by Mr Morgan in relation to his condition where there is no corroborating evidence;
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Morgan’s local community.
[43] Determination, see s 8.
Which Tables are appropriate are determined by:[44]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[44] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[45]
[45]Determination, see s 10(3).
If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[46]
[46]Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[47]
[47]Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[48]
[48]Determination, see s 11(5).
EVIDENCE IDENTIFYING THE LOSS OF FUNCTION
Mr Morgan reports that his medical conditions impact on his ability to function as follows:[49]
[the spinal condition] Has had a devastating impact on my life…limited my ability to sit, stand, sleep…for only 30-45 minutes per activity [sic]…minimal energy…requires me to lay flat many times during a 24 hour period…creates [sic] frustration which makes me bad-tempered & depressed. My chronic pain has impacted ALL areas of my life, including physical, psychological, social and behavioural.
[49] Exhibit 1, T Documents, T18, pages 106-117, Function Report completed by Mr Morgan dated 25 June 2015.
Mr Morgan also reports specifically that:[50]
[50] Exhibit 1, T Documents, T18, pages 106-117, Function Report completed by Mr Morgan dated 25 June 2015.
·He uses notes to remind him of things he needs to do daily;
·He finds it difficult to cook;
·He does some limited cleaning and laundry but no more than a couple of hours/day;
·He needs help with ironing, hanging up washing, shopping and driving;
·Driving is limited due to pain;
·He does limited shopping of one hour/week;
·He manages his own bank accounts;
·He reads less due to chronic pain;
·He watches television;
·He is no longer able to go to church and sing in the choir because of the pain;
·He does very little family or social activities;
·Depending on the activity involved he may need an accompanying person;
·He can walk 10-15 minutes before he needs to stop and rest;
·He does not finish what he starts, for example chores, reading, watching TV;
·He can walk 200 yards;
·He can stand for 5-10 minutes;
·He can sit for 10-20 minutes.
The JCA conducted in August 2015 reported on the functional impact of Mr Morgan’s condition:-[51]
·Independent in hygiene and personal care, able to perform light and moderate household chores such as sweeping, making his bed and hanging up washing provided he paces himself, able to drive (30 minutes), able to shop and cook provided he paces himself
·Able to bend and twist back and neck to pick up his bag of [medical] reports and briefcase from the floor from sitting and standing positions, able to manipulate papers and documents using both hands.
[51]Exhibit 1, T Documents, T22, pages 153-158, Job Capacity Assessment Report dated 7 August 2015.
In April 2016 Dr Platt confirmed that Mr Morgan reported that while he can put washing on, hanging it out is difficult. Dr Platt noted that there was a decreasing ability for Mr Morgan to care for himself.[52]
[52] Exhibit 1, T Documents, T31, pages 188-189, Report of Dr Platt dated 22 April 2016.
The question is what is the relevant Table to be considered and what, if any, Impairment Rating should be assigned.
RELEVANT IMPAIRMENT TABLE AND IMPAIRMENT RATING
In light of the evidence I consider that Table 4 of the Determination which deals with Spinal Function is the relevant table.
Table 4 – Spinal Function Impairment Rating
The introduction to Table 4 provides that:
·Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
oa report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.
The Secretary submitted that the appropriate Impairment Rating under Table 4 is 10 points[53] and relied upon Mr Morgan’s Function Report (see paragraphs 49-50 above) and the corroborating evidence of Dr Nicoll.
[53]See Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 26 October 2016, para 27.
Dr Nicoll reported that:[54]
Mr Morgan reports difficulties in all activities of daily living stating that he has reduced capacity for dressing, showering, preparing food, performing light housework such as making a bed, driving a motor vehicle and using public transport.
He states that it is impossible for him to perform heavy housework such as vacuuming or yard work. He is able to tolerate sitting in one position for 30 minutes, standing in one position for up to 15 minutes, and walking on flat ground at his own pace for up to 15 minutes. He is independent in his self-care, he maintains a driver’s licence And drove to the consultation today.
…
Observation…revealed a more free range of motion [in the cervical spine region]
…The range of motion of the thoracolumbar spine was flexion such that the tips of the fingers reached the upper thighs…
[54] Exhibit 1, T Documents, T33, pages 192-198, Report of Dr Nicoll dated 17 June 2016.
Mr Morgan said he did not agree with Dr Nicoll’s report as he had only assessed him for 15-20 minutes. However, Mr Morgan did accept that what he wrote in the Function Report,[55] that his “ability to sit, stand, sleep…for only 30-45 minutes per activity” was accurate.
[55] Exhibit 1, T Documents, T18, pages 106-117, Function Report completed by Mr Morgan dated 25 June 2015.
I note that in Dr Nicoll’s opinion that Mr Morgan’s “severe chronic pain and associated disability most likely constitute an abnormal response to injury…characterised by severe, unremitting and resistant to treatment chronic pain”.[56]
[56] Exhibit 1, T Documents, T33, pages 192-198, Report of Dr Nicoll dated 17 June 2016.
At the hearing Mr Morgan submitted that the appropriate Impairment Rating under Table 4 is 20 points.
In order to assign an Impairment Rating of 10 points the evidence would need to show that Mr Morgan:
(a)is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(b)he is unable to sustain overhead activities (e.g. accessing items over head height); or
(c)he has difficulty moving his head to look in all directions (e.g. turning his head to look over their shoulder); or
(d)he is unable to bend forward to pick up a light object placed at knee height; or
(e)he needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
There was no evidence presented (as is required for an Impairment Rating of 20 points) that during the Qualification Period Mr Morgan was unable to:
(a)perform any overhead activities;
(b)bend forward to pick up a light object from a desk or table;
(c)remain seated for at least 10 minutes; or
(d)get out of a chair without assistance.
The evidence supports an Impairment Rating of 10 points.
Depression
The JCA conducted on 17 August 2015 reported that Mr Morgan’s Major Depression Impairment was not fully stabilised because Mr Morgan was undertaking counselling and chronic pain management.[57]
[57] Exhibit 1, T Documents, T22, pages 153-158, Job Capacity Assessment Report dated 17 August 2015.
Since that JCA, further medical reports have been obtained.
On 3 September 2015 Dr Ian Platt, Clinical Psychologist, reported that Mr Morgan had a:[58]
…long-standing Major Depressive Disorder… precipitated by his ongoing exposure to severe chronic pain (located in his right chest wall)…the pain was related to a diagnosis of Scheuermann’s [sic] Disease (approximately 15 years ago), and the after-effects of associated thoracic spinal surgery. Whilst he has subsequently attended for treatment at several specialist pain clinics, from [Mr Morgan’s] perspective, no medical procedure has thus far provided consistent pain relief…The nature of the pain is such that it has an extremely deleterious effect on [his] quality of life…minor everyday tasks are a struggle…[his] capacity to participate in the workplace has been significantly impeded…
[58] Exhibit 1, T Documents, T24, page 164, Report of Dr Platt dated 3 September 2015.
Dr Platt provided a further report on 22 April 2016 and diagnosed Mr Morgan as being at “low to moderate acute risk of suicide, but moderate to high chronic risk”. Dr Platt said the number of sessions available under Medicare were inadequate to meet Mr Morgan’s needs but that he had gained some benefit from cognitive behavioural skills training and mindfulness techniques. Dr Platt said he “strongly believe[d] that medical remediation of his pain (if possible) and a reduction in his financial stress…offer the most immediate chance of improving [Mr Morgan’s] quality of life”.[59]
[59] Exhibit 1, T Documents, T31, pages 188-189, Report of Dr Platt dated 22 April 2016.
After a session with Mr Morgan on 7 November 2016, Dr Platt provided a further report.[60] Dr Platt says at the time of the April 2016 report he had consulted with him on the telephone and he had not been able to assess his psychological status in person.
[60] Exhibit 3, Report of Dr Platt dated 18 November 2016.
Dr Platt reported in the November 2016 report that there “was no apparent deficit to attention and concentration except when Mr Morgan’s pain ‘spiked’ in intensity…Recent and remote memory were unimpaired…however memory was not formally tested. Mr Morgan was not displaying signs of disturbance in any perceptual modality, and there was no discernible disorder to thought form”.
In Dr Platt’s opinion “unrelenting exposure to severe chronic pain…has had a devastating effect on his psychological well-being and ability to function”. Dr Platt says he “cannot conceive of any means by which he himself can improve his situation either now or into the future”.[61]
[61] Exhibit 3, Report of Dr Platt dated 18 November 2016.
Dr Platt’s report of November 2016 is an assessment of Mr Morgan 12 months after the Qualification Period.
As a result of these additional medical reports a further JCA was conducted by a registered occupational therapist and registered psychologist on 16 September 2016. The JCA concluded that Mr Morgan’s mental Impairment was permanent.[62]
[62] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 26 October 2016, Annexure A, Job
Capacity Assessment dated 23 September 2016.
The Secretary accepts that Mr Morgan’s mental Impairment is permanent and was fully diagnosed, fully treated and fully stabilised in the Qualification Period.[63]
[63] See Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 26 October 2016, para 23.
I find that during the Qualification Period Mr Morgan’s mental Impairment was permanent and likely to persist for at least 2 years.
The question therefore is what the relevant Table to be considered is and what, if any, Impairment Rating should be assigned.
Relevant Impairment Table and Impairment Rating
In light of the evidence I consider that Table 5 of the Determination, which deals with Mental Health Function, is the relevant Table.
The introduction to Table 5 provides that:
·Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
osupporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
ointerviews with the person and those providing care or support to the person.
·In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.
·The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.
·The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
·For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
The Secretary submits that an appropriate Impairment Rating is 10 points.[64] At the hearing Mr Morgan submitted that an appropriate Impairment Rating was 20 points.
[64] See Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 26 October 2016, para 47.
In order to assign an Impairment Rating of 10 points the evidence would need to show that Mr Morgan has moderate difficulties with most of the following:
(a)self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b)social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c)interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d)concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e)behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f)work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
In order to assign an Impairment Rating of 20 points the evidence would need to show that Mr Morgan has severe difficulties with most of the following:
(a)self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b)social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c)interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d)concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e)behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f)work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
Mr Morgan relied on the report of Dr Platt dated 22 June 2015.[65] Dr Platt noted that Mr Morgan had a “diminished ability to concentrate”. This is confirmed by Mr Morgan in the self-assessments he completed with Dr Platt.[66]
[65] Exhibit 1, T Documents, T16, page 103, Report of Dr Platt dated 22 June 2015.
[66] Exhibit 1, T Documents, T 17, pages 104-105, EMT Session Card and Ideal Performance State
information dated 24 June 2015.
Further evidence regarding the functional impact of Mr Morgan’s mental health impairments, as opposed to his spinal Impairment, is limited. There is no evidence that during the Qualification Period:
(a)Mr Morgan needed regular support to live independently. In fact, Mr Morgan lived independently during the Qualification Period;
(b)Mr Morgan had difficulty concentrating on any task or conversation for more than 10 minutes;
(c)Mr Morgan’s behaviour, thoughts and conversation were significantly and frequently disturbed.
I find, therefore, that his mental health impairments were having a “moderate” functional impact on activities in the Qualification Period.
Therefore, the appropriate impairment rating to be assigned for this condition under Table 5 of the Impairment Tables is 10 points.
Mr Morgan’s Chronic Pain
In association with his other medical conditions, Mr Morgan has chronic pain.[67]
Exhibit 1, T Documents, T16, page 103, Report of Dr Platt dated 22 June 2015; T19, page 118, Report of Dr Law dated 30 June 2015; T25, page 165, Report of Dr Dotchin dated 20 October 2015; T31, pages 188-189, Report of Dr Platt dated 22 April 2016.
Section 6(9) of the Determination relevantly provides that as there is no Table dealing specifically with pain and that when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
I have already found that the condition causing the chronic pain, the spinal condition, has been fully diagnosed, fully treated and fully stabilised and I have assigned an Impairment Rating of 10 points to that condition.
There is evidence that, during the Qualification Period, Mr Morgan’s chronic pain was causing him fatigue and that normal daily activities could only be sustained for short periods of time prior to Mr Morgan needing to rest.[68] Table 1 is concerned with Functions requiring Physical Exertion and Stamina. Under Table 1 there is a moderate functional impact on activities requiring physical exertion or stamina warranting an Impairment Rating of 10 points if:
[68] Exhibit 1, T Documents, T31, pages 188-189, Report of Dr Platt dated 22 April 2016; Exhibit 1, T Documents,
T18, pages 106-117, Function Report completed by Mr Morgan dated 25 June 2015.
(1)The person:
(a)experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i)is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii)has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i)use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii)perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
Based on the evidence referred to in paragraphs 49-52 and 57-59 above, I find that an Impairment Rating of 10 points should also be assigned under Table 1.
Other conditions
Mr Morgan told the Tribunal his pain has also impacted his hearing and eyesight. However, there is no medical evidence concerning these conditions and as a result they cannot be considered.
I asked Mr Morgan numerous times if he would like to adjourn in order to provide the Tribunal with the additional medical reports and information he said he had but he declined and said he wanted to proceed without an adjournment.
As I have concluded that Mr Morgan’s Impairments attract an Impairment Rating of more than 20 points during the Qualification Period it is necessary for me to consider whether Mr Morgan had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) during the Qualification Period.
DOES MR MORGAN HAVE A CONTINUING INABILITY TO WORK: SECTION 94(1)(C)
Mr Morgan’s Impairments have not attracted 20 points under one single Impairment Table (i.e. they are not “severe impairments” as defined in s 94(3B)), therefore s 94(2)(aa) is the appropriate section under consideration.
Section 94(2)(aa) sets out when a person has a continuing inability to work because of an impairment. It provides:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases--either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b) the availability to the person of work in the person's locally accessible labour market.
…
(3C) A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
The requirements for a program of support, as referred to in s 94(3C) are set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (“POS Determination”). Section 7 of the POS Determination sets out the requirements for active participation and provides, relevantly in s 7(2), that a person will have actively participated in a program of support if they have participated in it for at least 18 months during the relevant period. Any periods of time during which a person has not participated in a program of support is not taken into account (see s 8, POS Determination).
The relevant period in this case is the 36 months prior to the date of the DSP Claim.
There is no evidence that Mr Morgan has participated in any program of support. Mr Morgan did not dispute this although he said he had not been informed of this requirement. As a result Mr Morgan has not satisfied s 7 of the POS Determination and as a result does not satisfy the requirements in s 94(2). Therefore, Mr Morgan has not fulfilled the requirement in s 94(1)(c).
Once Mr Morgan has completed a program of support he will then be able to reapply for DSP.
CONCLUSION
Mr Morgan’s claim fails because he did not qualify for DSP during the Qualification Period under s 94(1)(c)(i).
The decision under review is affirmed.
I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
..................................[Sgd].....................................
Associate
Dated: 11 January 2017
Date of hearing: 12 December 2016 Applicant: By phone Solicitors for the Respondent: Department of Human Services
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