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

[2017] AATA 929

Nean and Secretary, Department of Social Services (Social services second review) [2017] AATA 929 (22 June 2017)

Division:GENERAL DIVISION

File Number(s):      2016/6485

Re:Colin Nean

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member L Kirk

Date:22 June 2017

Place:Sydney

The decision under review is affirmed.

..................................[sgd]....................................

Senior Member L Kirk

CATCHWORDS

SOCIAL SECURITY – disability support pension – physical, intellectual or psychiatric impairment – whether applicant’s impairments are fully diagnosed, treated and stabilised – continuing inability to work – Impairment tables – emphysema – spinal scoliosis – gastro-oesophageal reflux disorder – anal abscess – depression – knee osteoarthritis – bilateral rotator cuff disease – Table 4 Spinal Function – Table 5 Mental Health Function – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) s 42, Sch 2

CASES

Bobera and the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AAT 922

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member L Kirk

22 June 2017

1. Mr Colin Nean (‘the Applicant’) suffers from a number of serious medical conditions which he claims make it difficult for him to work, or to look for work. 

2. On 1 June 2016, Mr Nean applied for the Disability Support Pension (‘DSP’). On 2 August 2016, his application for DSP was rejected by a delegate of the Secretary of the Department of Social Services (‘the Respondent’), and on 1 September 2016, an Authorised Review Officer (‘ARO’) affirmed the decision on review, on the basis that he did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (‘the Act’).

3. Mr Nean applied to the Social Security and Child Support Division of this Administrative Appeals Tribunal for review (‘SSCSD’). In a decision dated 22 November 2016, the SSCSD affirmed the decision of the ARO refusing Mr Nean’s claim for DSP as he did not satisfy section 94(1)(b) of the Act.

4. On 1 December 2016, Mr Nean applied to the General Division of the Administrative Appeals Tribunal (‘the Tribunal’) for review of the SSCSD decision.

5. The matter was heard by the Tribunal in Sydney on 10 March 2017.  Mr Nean attended the hearing in person and was self-represented. 

ISSUES AND LEGISLATION

1. The issue before the Tribunal is whether Mr Nean qualified for DSP at the relevant time.

2. Pursuant to section 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) in order to qualify for the DSP, Mr Nean must satisfy the requirements of section 94 of the Act as at the date he made his claim, 1 June 2016, or within 13 weeks of lodging the claim, that is between 1 June 2016 and 31 August 2016 (‘the qualification period’).

3. Section 94(1) of the Act provides that a person qualifies for the DSP if:

   ·the person has a physical, intellectual or psychiatric impairment; and

   ·the person’s impairment is of 20 points or more under the Impairment Tables; and

   ·the person has a continuing inability to work as defined in section 94(2) of the Act.

4. The Respondent concedes and the Tribunal agrees that Mr Nean suffered medical conditions that caused impairment during the relevant period, and therefore he satisfies section 94(1)(a) of the Act at the time of his claim for DSP.

5. It follows that the issues for determination for the Tribunal in this matter are whether, during the qualification period, Mr Nean had:

   ·an impairment rating of 20 points or more under the Impairment Tables (section 94(1)(b)); and

   ·a continuing inability to work as defined in section 94(2) of the Act (section 94(1)(c)).

The Impairment Tables

1. The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Impairment Tables’).

2. The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.

3. The Introduction to each relevant Table requires that ‘self-report of symptoms alone is insufficient’ and ‘there must be corroborating evidence of the person’s impairment’.

4. Part 2 of the Impairment Tables details the rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in section 3 to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”. 

5. Section 6(3) of the Impairment Tables requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. Section 6(4) of the Impairment Tables, provides that a condition is ‘permanent’ if it:

   ·has been fully diagnosed by an appropriately qualified medical practitioner; and

   ·has been fully treated; and

   ·has been fully stabilised; and

   ·is more likely than not to persist for more than two years.

6. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, section 6(5) of the Impairment Tables instructs that a decision-maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.

7. For the purposes of the Impairment Tables, section 6(6) defines fully stabilised to mean:

   ·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

   ·the person has not undertaken reasonable treatment for the condition and:

   ·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

   ·there is a medical or other compelling reason for the person not to undertake reasonable treatment.

8. The Macquarie Dictionary defines “undertaken” as, inter alia, committing oneself to, taking on, and promising to do a particular thing.

9. Reasonable treatment is defined in section 6(7) of the Impairment Tables as treatment that:

   ·is available at a location reasonably accessible to the person; and

   ·is at a reasonable cost; and

   ·can reliably be expected to result in a substantial improvement in functional capacity; and

   ·is regularly undertaken or performed; and

   ·has a high success rate; and

   ·carries a low risk to the person.

10. Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each table and a rating cannot be assigned between consecutive impairment ratings. Significantly, section 11(1)(c) provides:

    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 (emphasis added)

Medical conditions

1. The medical report for DSP completed by Mr Nean’s general practitioner, Dr Leon Edema, dated 20 June 2016 listed his conditions as emphysema, gastro-oesophageal reflux, anal abscess and scoliosis – spine.

2. A medical certificate completed by Dr Edema dated 2 September 2016 (outside the qualification period) diagnosed the Applicant with depression and stated that he is under the care of a psychologist.

3. A medical report completed by Dr Liew, rheumatologist, on 22 September 2016 (outside the qualification period) diagnosed the Applicant with osteoarthritis of the knees and bilateral degenerative rotator cuff disease.

4. The first issue for determination by the Tribunal is whether the conditions were fully diagnosed, treated and stabilised during the qualification period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.

Which of the medical conditions can be given an impairment rating?

Condition 1 – Emphysema

1. The Respondent accepts that Mr Nean’s emphysema was fully diagnosed during the qualification period but contends that it was not fully treated and stabilised at that time.

2. At the end of the qualification period (31 August 2016), the Applicant had been recommended by Dr Vijay Archar to undergo a further evaluation by a chest CT.  This was not undertaken until 1 September 2016 (outside the qualification period).  Dr Kooner had recommended a respiratory review which was not undertaken during the qualification period.  Mr Nean told the SSCSD that he had been referred by Dr Edema to a respiratory specialist, but that he could not afford to see a private specialist and was advised to see a specialist through the public health system. In his evidence to the Tribunal, Mr Nean said that he had known about this condition for a while but it was not diagnosed by Dr Edema until September 2016.  He cannot afford to see a lung specialist privately and his only option is to attend a public hospital at either Nepean or Blacktown and sit in the waiting room until a specialist is available to see him. As he is not an outpatient or an inpatient of these hospitals and he is not on a pension, he must pay for any specialist treatment.  He has not therefore been able to see a specialist about his emphysema. He has quit smoking and his coughing has since got worse as a consequence.  He finds it difficult to walk up stairs or hills as he gets out of breath quickly and he needs to use his Ventolin. 

3. As further investigations and specialist review had been recommended but not undertaken by Mr Nean as at the end of the qualification period, the Tribunal is not satisfied that Mr Nean’s emphysema was permanent as it was not fully treated and stabilised during the qualification period.  Accordingly, no impairment rating can be assigned to this condition.

Condition 2 – Spinal scoliosis

1. The Respondent accepts that Mr Nean’s spinal scoliosis was fully diagnosed, fully treated and fully stabilised during the relevant period. The medical report of Dr Liew dated 22 September 2016 (outside the qualification period) confirms and diagnoses the Applicant with degenerative disease axial skeleton, scoliosis and altered mechanics associated with scoliosis, and indicates that no therapeutic intervention will ever significantly improve the Applicant’s symptoms and functions given the degenerative nature of the condition. In his opinion, Dr Liew reports the Applicant’s inability to exert any forceful stress to his spine, such as bending and lifting objects greater than 5-10 kilograms, notes that the Applicant has difficulty sitting, standing or walking for more than 30 minutes at a time, and states that the Applicant has difficulty rising from low surfaces, kneeling, squatting and that negotiating steps would aggravate his condition.

2. In his evidence to the Tribunal, Mr Nean said that he had previously been on a disability support pension as a consequence of this condition from 2000 to 2007. For nine years subsequent to this, he was a full-time carer of a friend with a serious medical condition until she passed away in May 2016. 

3. Mr Nean confirmed in his evidence to the Tribunal that he can undertake light household chores such as washing and light cleaning, however he experiences shortness of breath and difficulty bending when undertaking household tasks such as mowing the lawn, vacuuming, and making his bed. He does all the housework himself although his grandson now comes to his house to mow the lawns.  He told the Tribunal that he has some difficulty undertaking daily tasks that involve him bending forward, for example, tying his shoelaces.  He has some problems changing the shower curtain in the bathroom as this requires him to reach up above his head.  He carries a small back pack with him when he travels on public transport but he keeps it beside him at all times so he does not have to bend down to pick it up as he finds this difficult.  He can walk for short periods of time but he needs to take regular rest breaks.

4. The criteria for moderate and severe impairment involving spinal function are detailed in Table 4:

10	There is a moderate functional impact on activities involving spinal function.
(1)	The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)	the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)	the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c)	the person is unable to bend forward to pick up a light object placed at knee height; or
(d)	the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
20	There is a severe functional impact on activities involving spinal function.
(1)	The person is unable to:
(a)	perform any overhead activities; or
(b)	turn their head, or bend their neck, without moving their trunk; or
(c)	bend forward to pick up a light object from a desk or table; or
(d)	remain seated for at least 10 minutes.

1. The Respondent contends that the medical evidence is consistent with a finding that the impairment arising from the Applicant’s spinal condition attracts no more than 10 points under Table 4 being a moderate functional impact, and that there is insufficient corroborating evidence to support a finding that the Applicant has a severe impairment of spinal function rating of 20 points under this Table.

2. In his report dated 22 September 2016 (outside the qualification period), Dr Liew considered the Impairment Tables and assessed Mr Nean’s impairment as a moderate functional impact (10 points) on activities involving spinal function.

3. The SSCSD assigned the Applicant 10 points under Table 4 based on the Applicant’s oral testimony and medical evidence which suggested that the Applicant was unable to sustain overhead activities, has difficulty moving his head in all directions, has difficulty bending forward to pick up an object at knee height, did not require assistance out of a chair and could sit for at least 10 minutes.  The SSCSD was not persuaded that Mr Nean’s functional impact could be described as severe.

4. On the basis of the evidence before it, particularly the report of Dr Liew dated 22 September 2016 and Mr Nean’s oral evidence at the hearing, the Tribunal is not satisfied that Mr Nean’s functional impact is greater than moderate (10 points) on activities involving spinal function, and that accordingly he does not satisfy any of the descriptors for a rating of 20 points under Table 4.

Condition 3 – Gastro-oesophageal Reflux Disorder

1. The Respondent accepts that Mr Nean’s gastro-oesophageal reflux disorder was fully diagnosed during the qualification period, but contends that it cannot be considered permanent as it was not fully treated and stabilised at that time.

2. In his report dated 20 June 2016, Dr Edema lists gastro-oesophageal reflux disorder as one of the Applicant’s conditions with an onset date of 2011. 

3. In his evidence to the Tribunal, Mr Nean said that this condition can be managed by taking care with the foods he eats and avoiding spicy food in particular.  If he eats the wrong food then he will experience heartburn, but if he is careful with his diet, the condition is not debilitating.

4. On the basis of the limited evidence before it, the Tribunal is not satisfied that Mr Nean’s gastro-oesophageal reflux disorder was permanent as it was not fully treated and stabilised during the qualification period.  Accordingly, no impairment rating can be assigned to this condition.

Condition 4 – Anal abscess

1. In his report dated 20 June 2016, Dr Edema lists anal abscess as one of the Applicant’s conditions with an onset date of 2016.  The Applicant advised the SSCSD that this condition has completely resolved.  In his evidence to the Tribunal, Mr Nean confirmed that this condition has fully resolved.

2. The Respondent contends and the Tribunal agrees that this condition is not permanent and no impairment rating can be assigned to any resulting impairment.

Condition 5  – Depression

1. A medical certificate completed by Dr Edema dated 2 September 2016 (outside the qualification period) diagnoses the Applicant with depression and notes that this is an exacerbation of any existing condition with the initial date of onset being 2 September 2016.

2. The Applicant told the Tribunal that he has been finding it difficult to cope and that he sometimes will ‘go off his handle’. In October 2016, he contacted his daughter and told her he was ready to ‘give it all up’.  For about six months he and his daughter were not talking but they have now reconciled.  He is now seeing a psychologist who Dr Edema referred him to and she is giving him a lot of help and he is coping better.  He saw his psychologist most recently on 2 March 2017 and he has another appointment to see her on 30 March 2017.  He believes however that he cannot work with this psychological condition as he can become very upset ‘at the drop of a hat’.

3. Table 5 of the Impairment Tables is to be used when a person has a permanent mental health condition resulting in functional impairment. Self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment.

4. The Introduction to Table 5 of the Impairment Tables provides (inter alia):

   The diagnosis of a 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). (Emphasis added)

5. The Respondent contends that this condition was not fully diagnosed during the qualification period as the diagnosis by Dr Edema was first made outside of the qualification period, and there is no evidence that such diagnosis was confirmed by a clinical psychologist or psychiatrist during this time.

6. There is no evidence before the Tribunal that indicates that Mr Nean had undertaken any treatment for this condition prior to the end of the qualification period.  The diagnosis of depression and his visits to see his treating psychologist did not commence until after 2 September 2016, which is outside the qualification period.

7. In Bobera and the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AAT 922 (24 December 2012), the Tribunal said at [34]:

   In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

1. The Tribunal is not satisfied that Mr Nean’s depression was fully diagnosed, treated and stabilised during the qualification period, and therefore no impairment can be assigned to any resulting functional impairment.

Other conditions – Knee osteoarthritis and bilateral rotator cuff disease

1. Dr Liew’s report of 22 September 2016 (outside the qualification period) diagnoses the Applicant with osteoarthritis of the knees and bilateral degenerative rotator cuff disease.  There is no mention of either of these conditions in any medical reports prior to or during the qualification period.

2. In his evidence to the Tribunal, the Applicant said that he has a great deal of difficulty kneeling and that he also experiences sharp pains in his neck which he has not yet discussed with his Doctor.  He is able to catch public transport and walk the short distance to the bus.  He finds it difficult to sit still as he cannot easily get comfortable.

3. The Respondent contends that this condition was not fully diagnosed during the qualification period as the diagnosis by Dr Edema was first made outside of the qualification period and further that there is no evidence that the Applicant had undertaken any reasonable treatment for either of these conditions, and therefore the condition had not been fully treated during this time.

4. On the basis of the evidence before it, the Tribunal is not satisfied that Mr Nean’s knee osteoarthritis and bilateral degenerative rotator cuff disease were permanent, as they were not diagnosed until after the qualification period, and therefore they were not fully diagnosed, treated or stabilised during the qualification period.  Accordingly, no impairment rating can be assigned to these conditions.

Other conditions

1. Mr Nean told the Tribunal that he also has experienced problems related to a fall that he had at home in September 2016 which rendered him unconscious and he was taken to hospital by ambulance. Since the fall he has been having problems with memory loss and his Doctor has recommended that he have a MRI which is scheduled for 25 March 2017.

2. On the basis of the evidence before it, the Tribunal is not satisfied that this condition was permanent as it did not exist until after the qualification period, and therefore it was not fully diagnosed, treated or stabilised during the qualification period.  Accordingly, no impairment rating can be assigned to this condition.

CONCLUSION

1. During the assessment period, Mr Nean suffered from impairments attracting a total rating of 10 points under the Impairment Tables. As this is less than the required total of 20 points necessary to establish eligibility for DSP, it follows that Mr Nean was not qualified for DSP during the qualification period.

2. As Mr Nean’s conditions are not considered permanent under the Act, it is not necessary for the Tribunal to consider whether he had a continuing inability to work during the qualification period.

DECISION

1. The decision under review is affirmed.

I certify that the preceding 58 (fifty- eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member L Kirk

.................................[sgd]....................................

Associate

Dated: 22 June 2017

Date of hearing:	10 March 2017
Applicant:	In person
Solicitors for the Respondent:	Ms E Ulrick, Department of Human ServicesHuman Services