PAUL COWEN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2011] AATA 560
•16 August 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 560
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0877
GENERAL ADMINISTRATIVE DIVISION ) Re PAUL COWEN Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr M Denovan, Member Date16 August 2011
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...............[Sgd]....................
District Registrar
CATCHWORDS
SOCIAL SECURITY – Disability support pension – Physical impairments suffered by applicant – Permanency of conditions – Appropriate allocation of rating – Inability to work – No finding on permanency of conditions – Conditions said to exist both attract zero ratings – Decision under review affirmed
Social Security Act 1991 (Cth) s 94, Schedule 1B
Social Security (Administration) Act 1999 (Cth) Schedule 2, cl 4
Bugno and Secretary, Department of Employment and Workplace Relations [2005] AATA 788
Maroun and Secretary to the Department of Family and Community Services [2003] AATA 347
REASONS FOR DECISION
16 August 2011 Dr M Denovan, Member INTRODUCTION
1. The applicant, Mr Paul Cowen, suffers from pain in his back, neck, shoulders and hips.
2. Mr Cowen contacted Centrelink on 28 June 2010 to enquire about his eligibility for disability support pension (DSP). He lodged a claim for DSP on 6 July 2010. On 25 August 2010, Centrelink made a decision to reject his claim.
3. An authorised review officer affirmed the decision on 10 November 2010, as did the Social Security Appeals Tribunal (SSAT) on 16 February 2011.
4. The application for review of the decision by the Administrative Appeals Tribunal (AAT) was lodged on 10 March 2011.
ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION
5. Under Schedule 2, clause 4(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) an applicant must qualify for a social security payment, in this case DSP, on the day on which the person made the claim, or within 13 weeks of that date. For the applicant’s claim for DSP, that period is from 28 June 2010 to 27 September 2010.[1]
[1] The start date is taken as the first day Mr Cowen made contact with Centrelink regarding his claim, pursuant to s 13 of the Administration Act.
6. The criteria for DSP are set out in s 94 of the Social Security Act 1991 (Cth) (the Act). To qualify, the applicant:
·must have a physical, intellectual or psychiatric impairment;
·his impairment must be of 20 points or more under the Impairment Tables; and
·he must have a continuing inability to work.[2]
[2] The other qualifications for DSP in ss 94(1)(d) and (e), namely that an applicant must be over the age of 16 and an Australian resident, are met.
7. Before an impairment rating can be assigned under the Impairment Tables in Schedule 1B of the Act[3], it is necessary to determine whether Mr Cowen’s impairments arise from a condition or conditions that fully documented, diagnosed, investigated, treated and stabilised, and can be regarded as being permanent.
[3] Social Security Act 1991 (Cth), s 23.
8. The Introduction to the Impairment Tables states:
4. …For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.
…
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
9. Ms Forsyth, for the respondent, contended that none of the conditions from which Mr Cowen suffers could be considered permanent.
10. The issues that I must determine are:
· what if any, physical, intellectual or psychiatric impairments Mr Cowen has;
· whether all or any of those conditions are permanent, and if so what ratings they should be allocated; and
· if he has 20 points or more, whether he has a continuing inability to work.
What if any, physical, intellectual or psychiatric impairments does Mr Cowen have?
11. In support of his claim Mr Cowen provided a medical report from general practitioner Dr Dawson. In that report dated 13 July 2010, Dr Dawson described Mr Cowen’s condition as “osteoarthritis – post traumatic”. He indicated that Mr Cowen had pain in his neck, back, shoulder and hips and stated that Mr Cowen cannot stand or sit still for long periods. He stated that the condition would affect the patient’s capacity to function for more than 24 months. Dr Dawson opined that the effect on Mr Cowen’s ability to function in the next two years was uncertain.
12. Ms Yeldon completed a Job Capacity Assessment report (JCA) on 2 August 2010. In that report Ms Yeldon relied on the diagnosis provided by Dr Dawson, describing Mr Cowen as having the condition ‘osteoarthritis’. When questioned during the hearing, Ms Yeldon told the Tribunal that she concluded that Mr Cowen had osteoarthritis of his neck, back, shoulders and hips because, although Dr Dawson had not specified this, those were the areas that Dr Dawson identified as painful for Mr Cowen.
13. Mr Cowan moved from Tasmania to Queensland after the JCA was completed by Ms Yeldon. On 23 September 2010, Dr Tuitoga provided a medical report in which he identified Mr Cowen’s conditions as:
(1)L2/L3 large herniated disc compressing L3 nerve root (back condition); and
(2)Right supraspinatus partial tear and right sub deltoid bursitis with bursal impingement (right shoulder condition).
14. Dr Tuitoga gave evidence at the hearing by telephone. He said that his diagnoses were confirmed by radiological investigation. A CT scan of the spine on 16 September 2010 indicated that Mr Cowen has minimal osteoarthritis in his lower lumbar spine, and there were changes in Mr Cowen’s facet joints on the lower spine. Dr Tuitoga commenced Mr Cowen on pain relief on 16 September 2010, which included Tramal, Fentanyl patches and Norspan. The dose of Fentanyl patches has gradually increased over the last few months.
15. In relation to his shoulder, Dr Tuitoga said that Mr Cowen presented on 6 September 2010 with a history of shoulder and arm pain. An ultrasound performed on 16 September 2010 indicated Mr Cowen had a partial tear of his right supraspinatus. Dr Tuitoga referred Mr Cowen for specialist treatment in relation to this condition.
16. Dr Tuitoga said that Mr Cowen complained of neck pain for a few months, and on 30 April 2010 x-rays of Mr Cowen’s neck indicated that he does have osteoarthritis in his neck.
17. Dr Tuitoga told the Tribunal that in his opinion Mr Cowen does not suffer from osteoarthritis of his back, hips or knees. He said that there was no investigations had been performed in relation to Mr Cowen’s hips, and that x-rays of Mr Cowen’s knees did not demonstrate any pathology.
18. Whilst Dr Dawson and Dr Tuitoga have provided different diagnostic labels for Mr Cowen’s ailments, both reports are consistent when the nature of the impairment is described. The fact that the diagnostic label given to Mr Cowen’s ailments may vary does not matter if the nature of his impairment was fully documented and diagnosed prior to the end of the relevant claim period.
19. In the case of Bugno and Secretary, Department of Employment and Workplace Relations the AAT considered that the preamble to the Impairment Tables emphasises that the Tables are based not on diagnosis, but impairment of function. On that basis, it was held that subparagraph 94(1)(b) of the Act “does not require the diagnosis of a specific disease, but does require [the] diagnosis and documentation of the nature of impairment”.
20. I prefer the diagnostic labels provided by Dr Tuitoga, as he had the benefit of recent radiological imaging, and his reports were more comprehensive than those of Dr Dawson. In the case of Maroun and Secretary to the Department of Family and Community Services[4] it was not considered a bar to a successful claim for DSP that different diagnostic labels had been given at various times to a condition that existed in the same form for many years. There is no medical evidence to support the conclusions made by Ms Yeldon in relation to diagnosis, and Dr Tuitoga stated that he did not believe Mr Cowan suffered from osteoarthritis in the joints identified by Ms Yeldon.
[4] [2003] AATA 347.
21. I therefore conclude that Mr Cowen has:
· L2/L3 large herniated disc compressing L3 nerve root (back condition);
· Right supraspinatus partial tear and right sub deltoid bursitis with bursal impingement (right shoulder condition); and
· Osteoarthritis of the neck.
22. There is no medical evidence to support Mr Cowen’s claim that he suffers from a knee problem.
Were Mr Cowen’s conditions permanent and fully documented, treated and stabilised during the relevant period, and if so, what rating should they be allocated?
23. The respondent contends that neither of Mr Cowen’s conditions have been fully diagnosed, treated and stabilised, and that they are not permanent. Reliance for this assertion was placed on the JCA report of Ms Yeldon, who also gave oral evidence by telephone at the hearing.
24. Ms Yeldon concluded that Mr Cowen’s osteoarthritis was a permanent condition that was fully diagnosed and fully treated but not fully stabilised. In oral evidence to the Tribunal, Ms Yeldon deviated from her written report. She stated that Mr Cowen’s osteoarthritis was not fully treated because he is awaiting specialist review.
25. When asked to explain the discrepancy, Ms Yeldon told me that when completing the JCA report she “ticks boxes without even thinking”. I found Ms Yeldon’s evidence alarming. It is very disappointing that a delegate who makes decisions that have so much impact on the lives of those who she is assessing has such a flippant attitude in regard to how she completes the questions she has to consider in the line of her duty. I place very little weight on her report.
Back condition
26. Dr Tuitoga indicated that because of his back condition, Mr Cowen experiences constant low back pain with right sciatica. In the last few months the pain has worsened. Mr Cowen cannot sit for more than 10 minutes and cannot stand for too long. The pain wakes him up at night. Dr Tuitoga was unable to be certain how the effect of this condition will be on Mr Cowan’s capacity to function in the next two years, however he indicated that the condition was likely to impact on Mr Cowan’s ability to function for more than 24 months.
27. On the basis of Dr Tuitoga’s evidence, I conclude that Mr Cowen’s back condition was fully documented during the relevant time period. Mr Cowen told me at the hearing that he recently had an increase in the dose of his daily morphine patches. I accept Dr Tuitoga’s evidence that this condition will continue to affect Mr Cowen’s capacity to function for more than 24 months.
28. The only issue remaining in relation to Mr Cowen’s back condition is whether it was fully treated and stabilised in the relevant period. In order to assess whether a condition is fully treated and stabilised, paragraph 4 of the Introduction to the Impairment Tables provides that I must consider:
· what treatment or rehabilitation has occurred;
· whether treatment is still continuing or is planned in the near future; and
· whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.
29. In this context, ‘reasonable treatment’ is taken to be:
· treatment that is feasible and accessible ie, available locally at a reasonable cost; and
· where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
30. Mr Cowen is currently waiting for specialist review in relation to his back condition. As it is reasonably likely that such review may result in Mr Cowen undergoing further treatment, such as surgery or nerve blocks, thus alleviating all or some of his symptoms, I cannot conclude that the condition has been fully treated and stabilised during the relevant time period.
Shoulder condition
31. In relation to the shoulder condition, Dr Tuitoga indicated that Mr Cowen has experienced persistent right shoulder pain for more than six months, has constant right shoulder pain and is unable to work using his right upper arm due to the pain. Dr Tuitoga stated that this condition was likely to impact on Mr Cowen’s ability to function for 3 – 24 months and that he was referring Mr Cowen to an orthopaedic specialist.
32. Mr Cowen’s right shoulder condition was present during the relevant time frame, however it cannot be rated under the Impairment Tables as Mr Cowen is still awaiting specialist review. As that review may lead to surgical or other form of treatment, it cannot be said that Mr Cowan’s shoulder condition was fully treated during the relevant period. Further, Dr Tuitoga has indicated that this condition will affect Mr Cowen’s capacity to function for 3 – 24 months and on that basis it cannot be regarded as a permanent condition.
Neck condition
33. Mr Cowen’s neck condition was first diagnosed and treated in April 2011, sometime after the relevant time period. Therefore, that condition also cannot be given a rating.
CONCLUSION
34. On the available evidence I cannot find that any of Mr Cowen’s conditions have been fully diagnosed, treated and stabilised by 27 September 2010.
35. For these reasons, no impairment rating can be assigned to any of Mr Cowen’s conditions during the relevant time frame. Accordingly, as he does not have an impairment rating of 20 points or more there is no requirement for me to consider whether Mr Cowen has a continuing inability to work. Mr Cowen is not qualified for DSP during the period considered.
DECISION
36. The decision under review is affirmed.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member
Signed: ................[Sgd]........................................
Research AssociateDate/s of Hearing 5 July 2011
Date of Decision 16 August 2011
The Applicant was self-represented
For the Respondent Jasmine Forsyth, departmental advocate
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