Obst and Secretary, Department of Social Services (Social services second review)
[2016] AATA 508
•20 July 2016
Obst and Secretary, Department of Social Services (Social services second review) [2016] AATA 508 (20 July 2016)
Division
GENERAL DIVISION
File Number
2014/6061
Re
Brenton Obst
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 20 July 2016 Place Adelaide The decision under review is affirmed.
........... [Sgd] ......................................
Deputy President K Bean
CATCHWORDS
SOCIAL SECURITY - Disability support pension - Whether conditions fully diagnosed, treated and stabilised - Unable to assign any impairment ratings - Decision under review affirmed.
LEGISLATION
Social Security Act 1991, s 94
Social Security (Administration) Act 1999, Sch 2 cl 4
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
CASES
Re Secretary, Department of Social Services and Smith [2015] AATA 578
REASONS FOR DECISION
Deputy President K Bean
20 July 2016
For several years, the applicant, Mr Obst, has suffered from a number of medical conditions, which ultimately led him to make a claim for disability support pension (DSP) on 22 January 2014. However, Centrelink’s decision to reject his claim was affirmed by an Authorised Review Officer on 18 August 2014, and by the then Social Security Appeals Tribunal (SSAT) on 28 October 2014.
On 24 November 2014, Mr Obst lodged an application for review by this Tribunal, giving rise to these proceedings.
STATUTORY FRAMEWORK AND ISSUES
In broad terms the issue before me is whether Mr Obst was qualified for DSP as at the date of his claim on 22 January 2014 or within 13 weeks of that date, by 23 April 2014 (the assessment period).[1] Having regard to the statutory context, the Tribunal is required to address the issue of qualification strictly by reference to the assessment period and the facts as they were during the assessment period.[2]
[1] Social Security (Administration) Act 1999, Schedule 2, clause 4.
[2] See Re Secretary, Department of Social Services and Smith [2015] AATA 578.
Qualification for DSP is governed by s 94 of the Social Security Act 1991 (the Act) and in order to qualify for DSP, Mr Obst must establish that, as at the assessment period:
(a)He had a physical, intellectual or psychiatric impairment;
(b)That impairment rated at least 20 points under the Impairment Tables;[3] and
(c)He had a continuing inability to work within the meaning of s 94 because of the impairment.
[3] This is reference to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
I will proceed to address each of these requirements by reference to the evidence and the contentions of the parties.
DID MR OBST HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
The Secretary does not dispute that, during the assessment period, Mr Obst suffered from physical and psychiatric impairments and therefore satisfied subs 94(1)(a) of the Act.
The conditions relied upon by Mr Obst in his claim for DSP included “injury to right shoulder and right arm and hand, left hand injury and depression”.[4] However, at the initial hearing on 9 November 2015, Mr Obst indicated that he was also suffering from a back condition, which he said was having the most impact on him, as well as sinusitis.
[4] Exhibit 1, T30/171.
In circumstances where the Tribunal would not have the benefit of oral medical evidence, Mr Parker, who appeared on behalf of the Secretary at the hearing, agreed that it would be appropriate to issue a summons to Mr Obst’s General Practitioner, Dr Rischbieth, for production of all relevant medical records. Those records were duly summonsed and produced, and the hearing was resumed on 16 February 2016 and 24 March 2016, at which time the respondent made submissions with respect to all of the medical conditions relied upon by Mr Obst.
Accordingly, I will next proceed to consider whether, during the assessment period, Mr Obst had an impairment or impairments attracting 20 or more points by reference to any of those conditions.
AT THE RELEVANT TIME, DID MR OBST HAVE AN IMPAIRMENT ATTRACTING 20 OR MORE POINTS UNDER THE IMPAIRMENT TABLES?
The requirements
Subsection 94(1)(b) of the Act requires that a person have 20 or more points under the Impairment Tables. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) contains rules for applying the Impairment Tables, as well as the Impairment Tables themselves.
The Determination outlines the requirements that must be satisfied before an impairment rating can be assigned for a condition. These include:
·the condition causing the impairment is permanent; and
·the impairment resulting from the permanent condition is more likely than not to persist for more than two years.
Further, for a condition to be considered permanent under the Determination:
·the condition must be fully diagnosed by an appropriately qualified medical practitioner;
·the condition must be fully treated and fully stabilised; and
·the condition must be more likely than not to persist for more than two years.
Subsection 6(5) of the Determination also provides that, in determining whether a condition is fully diagnosed and fully treated, the following is to be considered:
·whether there is corroborating evidence of the condition;
·what treatment or rehabilitation has occurred in relation to the condition; and
·whether treatment is continuing or planned in the next two years.
Subsection 6(6) provides that a condition is fully stabilised if:
·the person has undertaken reasonable treatment for the condition, and it is considered that any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
·the person has not undertaken reasonable treatment, but such treatment is not expected to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
·the person has not undertaken reasonable treatment, and there is a medical or other compelling reason for the person not to undertake such treatment.
Subsection 6(7) provides that reasonable treatment is 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.
Back condition
Mr Obst indicated that, at the time of the hearing in November 2015, his back condition was having the most impact on him, and he had an appointment with a specialist on 30 November 2015. In his oral evidence, Mr Obst said that he experienced both pain and stiffness, primarily in the lower right hand side of his back.
However, before any impairment points can be allocated, I must be satisfied that Mr Obst’s back condition was fully diagnosed, treated and stabilised during the assessment period, between January and April 2014. With respect to this issue, the relatively limited medical evidence before me indicates that:
(a)In 2009, Mr Obst reported to a Job Capacity Assessor (JCA) that he was suffering from a back condition caused by a fall three years earlier “and had an operation to fuse the lower back”. The JCA also recorded “The functional impacts of this condition are minimal apart from some stiffness and limitations with repetitive bending” and noted that “In the absence of further medical evidence this condition is considered client reported”;[5]
[5] Exhibit 1, T5/63.
(b)An x-ray and CT scan of Mr Obst’s lumbar spine in 2009 revealed some minor degenerative changes but nothing of significance, and no nerve impingement;[6]
[6] Exhibit 1, T9/87 and T10/88.
(c)In July 2010, Mr Obst’s then General Practitioner, Dr Sidik, wrote to Dr Awerbuch as follows:
Mr Obst has suffered from ongoing back problems for the last five years ever since he had a fall. Recently I organised a CT scan of his lumbar spine and that was reported as normal.
I think his problem is mainly musculoskeletal and I referred him to see the Murray Bridge Hospital Physios. He reported that he had some improvement from the physiotherapy treatment.
He is also prescribed an anti-inflammatory, Voltaren, as well as paracetamol;[7]
(d)Approximately one year after he lodged his claim for DSP, on 28 January 2015, Mr Obst was referred to a physiotherapist for assessment of “ongoing chronic pain issues of upper right lumbar back ... and lower back pain”, among other conditions;[8]
(e)Mr Obst had an appointment with the Spinal Assessment Clinic at the Queen Elizabeth Hospital (QEH) on 19 October 2015;[9]
(f)A report of a CT scan, dated 21 October 2015, concluded “Broad based disc protrusion at L4/5 ... In combination with some hypertrophic and degenerative changes there is moderate spinal canal stenosis at this level. Irritation to the origin of the L5 roots ... is possible;”[10] and
(g)On 15 December 2015, Dr Selby, from the QEH Outpatients Department, referred Mr Obst for a facet joint injection at levels “R L3-S1”, which was administered in February 2016.[11]
[7] Exhibit 7.
[8] Exhibit 7.
[9] Exhibit 6.
[10] Exhibits 5 and 7.
[11] Exhibit 5.
Unfortunately, there appears to be a gap in the medical records with respect to the status of Mr Obst’s back condition during the assessment period, and I am not satisfied on the basis of the material which is available that the condition was fully diagnosed, treated and stabilised between January and April 2014. Although not strictly relevant, the further investigations and treatment which occurred in 2015 also support that conclusion. According to Mr Obst’s own oral evidence, although he had some physiotherapy treatment in 2010, the physiotherapy in 2015 was the first real treatment he had had in respect of his back condition, which he said he had previously “just put up with”. Accordingly, no impairment points can be assigned for this condition.
Conditions affecting Mr Obst’s arms and hands
In his oral evidence, Mr Obst indicated that after his back, his arms and hands were having the next worse impact on him. He said that if he tries to do anything, his hands “lock up into claws” and “give way without warning”, causing him to drop things.
As to whether the relevant condition(s) were fully diagnosed, treated and stabilised during the assessment period, the medical evidence is as follows:
(a)An x-ray and ultrasound of Mr Obst’s right elbow in June 2012 showed “mild degenerative change”, “some bony spurring” and “mild thickening” but was otherwise normal. Similarly, the results of an x-ray and ultrasound of his right shoulder indicated some degenerative change, but no bursitis;[12]
[12] Exhibit 1, T17/112 and Exhibit 7.
(b)On 2 July 2012, Mr Obst’s General Practitioner noted “shoulder, elbow and wrist examination are unremarkable” and “needs OT assessment”;
(c)Shortly thereafter, on 15 July 2012, Mr Obst had a fall which resulted in a fracture to his left wrist.[13] The records also suggest that, prior to the fracture, Mr Obst was suffering from arthritis in his left thumb;
[13] Exhibit 1, T19/119.
(d)Dr Sidik referred Mr Obst to a physiotherapist in September 2012, at Mr Obst’s request, in respect of his left wrist pain, as well as to a Rheumatologist, Dr Cleland, at the Royal Adelaide Hospital (RAH) in October 2012;
(e)A further x-ray and ultrasound of Mr Obst’s left wrist in October 2012 indicated that “fracture healing appears quite advanced ... [and] has progressed satisfactorily”, as well as minor/minimal degenerative change at the base of the left thumb;[14]
(f)In December 2012, x-rays of Mr Obst’s hands and wrists revealed that the left wrist fracture had healed, and again noted some degenerative change.[15] Mr Obst was also assessed by Dr Cleland for his left wrist pain, who found “no evidence of underlying inflammatory arthritis” and recommended Mr Obst “continue regular exercises for wrist” and consider trialling a thumb splint;[16]
(g)In mid-January 2013, Mr Obst was placed on the waiting list at the RAH Hand Clinic;[17]
(h)In mid-December 2013, Dr Rischbieth recorded “Brenton still has pain and stiffness in his right shoulder as well as his left wrist and right hand. He has problems with repetitive lifting and grip strength but he would be able to do some light duties work if it is available 12 hrs a week.” Dr Rischbieth also sent a letter to the RAH to follow up about a booking at the Hand Clinic, as Mr Obst had not heard back for almost 12 months;[18]
(i)Just prior to the date of Mr Obst’s claim for DSP, on 20 January 2014, Dr Rischbieth recorded “Says re his arthritis - having problems with his wrist on bilateral sides, and his elbow makes it difficult for him to work.”;[19]
(j)In a Job Capacity Assessment Report (JCAR) prepared following an assessment on 5 February 2014, the JCA referred to information contained in 2013 JCARs “as circumstances with regards to medical condition have not changed.” However, the JCA found that the conditions affecting Mr Obst’s hands and arms were not fully diagnosed, treated and stabilised because “there does not appear to have been ongoing treatment provided and it would be expected that there would be improvement in symptoms within the next two years”;[20]
(k)Towards the end of the assessment period, on 17 April 2014, Mr Obst’s General Practitioner at Loxton, Dr Oyugbo, wrote “?Right upper limb weakness ? cause” and planned an ultrasound of the right shoulder to “exclude rotator cuff tendinopathy” and “steroid injection if needed”. The doctor also noted “May need specialist assessment”;[21]
(l)In May 2014, just after the assessment period, another General Practitioner, Dr Nolan, recorded “complains of ongoing pain and weakness in the right shoulder ... Ultrasound of the right shoulder has shown no rotator cuff damage and no bursitis”;[22]
(m)In January 2015, Mr Obst was referred to a physiotherapist for his right shoulder, arm, and left wrist pain;[23]
(n)On 28 September 2015, Mr Obst was asked by the RAH to confirm whether he still required an appointment with the Hand Clinic, to which Mr Obst ticked “Yes”. I understand that, as at the time of the hearing, Mr Obst was still on the waiting list.[24]
[14] Exhibit 1, T20/120.
[15] Exhibit 1, T22/123.
[16] Exhibit 1, T21/121 and Exhibit 7.
[17] Exhibit 1, T23/124.
[18] Exhibit 7.
[19] Exhibit 7.
[20] Exhibit 1, T31/188.
[21] Exhibit 7.
[22] Exhibit 7.
[23] Exhibit 7.
[24] Exhibit 2.
Having regard to this evidence, it is clear that as at the assessment period, Mr Obst was having ongoing difficulties with his right shoulder, right elbow, both wrists and right hand. However, his right shoulder condition was still being investigated, and in my view the material also does not support a conclusion that his right elbow, right hand or bilateral wrist condition had been fully diagnosed and treated by April 2014. Accordingly, no impairment points can be awarded for any of those conditions.
Neck condition
Although he did not specifically refer to it during the hearing, the medical records reveal that, during the assessment period, Mr Obst was also suffering from a significant neck condition. Accordingly it is appropriate that I also address that condition.
The most relevant evidence before me relating to Mr Obst’s neck condition consists of the following:
·Towards the end of the assessment period, on 17 April 2014, Dr Oyugbo recorded “? cervical nerve root compression” and that the plan was to obtain a “Cervical CT”, noting that Mr Obst “may need specialist assessment” following investigation;[25] and
·On 9 May 2014, Dr Nolan recorded that “CT cervical spine has shown C6 nerve root compression” and that she had informed Mr Obst that “referral to the RAH Spinal Unit is recommended based on his CT results”.[26]
[25] Exhibit 7.
[26] Exhibit 7.
It is clear from these records that as at the assessment period, which ended on 23 April 2014, Mr Obst’s neck condition was still being investigated and had not been fully diagnosed or treated. It follows that this condition also cannot be allocated any impairment points.
Mental health condition
There is considerable evidence before me relating to Mr Obst’s mental health condition. However, it is clear from that evidence that investigations into the nature of that condition were ongoing as at the assessment period, and that the condition had not been fully diagnosed or treated. For example:
(a)Mr Obst gave evidence that he was diagnosed with depression in 2006;
(b)In a report dated 18 September 2013, Dr Manepalli recorded “there is no evidence of major depression”. However, although Mr Obst “described mild depressive and anxiety symptoms”, Dr Manepalli considered that “considering the family history of schizophrenia, a psychotic disorder such as delusional disorder could not be completely ruled out.”;[27]
[27] Exhibit 7.
(c)Three months later, in a report dated 18 December 2013 (just prior to the assessment period), Dr Manepalli noted that there was “no evidence of a schizophrenic illness however it needs to be further clarified if these are persecutory delusions and if [he] has a primary delusional disorder. ... He agreed for ongoing psychiatric follow up with Dr Laddipeerla for diagnosic clarification.” Dr Manepalli also noted that Mr Obst was not taking his medication;[28]
[28] Exhibit 1, T27/147.
(d)Almost two years later, on 8 September 2015, a Mental Health Clinician from Murray Mallee Community Health Service, Mr Hazebroek, wrote to Dr Rischbieth following an assessment of Mr Obst. Mr Hazebroek considered that Mr Obst may suffer from “disordered thinking” and there may be “underlying psychiatric factors”. He suggested that Mr Obst be assessed by a psychiatrist for diagnostic clarification;
(e)A referral letter dated 10 September 2015 from Dr Rischbieth to Murray Mallee Community Health Service concluded that Mr Obst “needs a further psychiatric assessment to see whether a diagnosis of schizophrenia or psychotic illness that requires treatment is made”;[29] and
[29] Exhibit 7.
(f)A handwritten report completed by Dr Bearman, Consultant Psychiatrist, on 24 February 2016 (two years after the assessment period) relevantly states:
Diagnosis: Complex traumatic past; Depression and alcohol misuse in past; Adjustment disorder, depressed mood ...
...
Mood (feels like he needs a rest) not depressed ... No self harm, no suicidal ideas
...
Normal mood. No thought disorder
No signs of schizophrenia[30]
Dr Bearman did not prescribe any treatment/medication, and no follow up appointments were made.
[30] Exhibit 4.
It is clear that the nature of Mr Obst’s mental health condition was still under investigation just prior to the assessment period, and there is nothing to support a conclusion that it was fully diagnosed, treated and stabilised at any time during the assessment period. Indeed, although it is not strictly relevant, the records make clear that the condition was still under investigation well after the end of the assessment period. Accordingly, this condition also was not fully diagnosed and treated as at the assessment period and cannot be allocated an impairment rating.
Sinusitis
In his oral evidence, Mr Obst explained that his sinusitis results in a blocked and runny nose and headaches, but that he has not had any treatment (aside from an “ineffectual” nasal spray), because his understanding is that potential treatments/medications would interfere with his blood pressure medication. The material before me also indicates that, in December 2015, Mr Obst was placed on a waiting list for an appointment with the QEH Ear/Nose/Throat Clinic,[31] although it would appear that a referral was not contemplated during the assessment period.
[31] Exhibit 6.
In any case, even if I was satisfied that Mr Obst’s sinusitis was fully diagnosed, treated and stabilised, I consider that it would not attract an impairment rating under any of the Impairment Tables.
Conclusion
It follows from my findings that Mr Obst did not meet subs 94(1)(b) of the Act during the assessment period. In light of that conclusion, it is unnecessary for me to consider whether he had a continuing inability to work within the meaning of subs 94(1)(c), and I am obliged to affirm the decision under review.
DECISION
The decision under review is affirmed.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean ........ [Sgd] ........................................
Associate
Dated 20 July 2016
Dates of hearing 9 November 2015; 16 February 2016; 24 March 2016
Applicant In person Solicitors for the Respondent Mr A Parker
Department of Human Services
Freedom of Information and Litigation Branch
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