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

[2017] AATA 1246

Perera and Secretary, Department of Social Services (Social services second review) [2017] AATA 1246 (10 August 2017)

Division:GENERAL DIVISION

File Number:           2016/2703

Re:Galukulasuriya Perera

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr D.J. Morris, Member

Date:10 August 2017

Place:Melbourne

The reviewable decision is affirmed.

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

Mr D.J. Morris, Member

CATCHWORDS

SOCIAL SERVICES – Disability Support Pension (DSP) – whether diagnosed condition fully treated and fully stabilised – less than 20 points allocated under multiple tables – spinal condition – amputation – hypertension – other conditions - claim did not satisfy section 93(1)(b) in relevant period – decision affirmed

LEGISLATION

Acts Interpretation Act 1901 (Cth), s 36(1)

Social Security Act 1991 (Cth) ss 94(1), 94(1)(a), 94(1)(b), s 94(1)(c), 94(5) 1218AAA
Social Security (Administration) Act 1999 (Cth), sched 2

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

REASONS FOR DECISION

Mr D.J. Morris, Member

10 August 2017

BACKGROUND

1. Mr Galukulasuriya Perera, the Applicant, applied for Disability Support Pension (DSP) on 17 March 2015 (form dated 20 January 2015) on the basis of certain health conditions, hypertension, asthma, a cervical spine injury, a lumbar disc bulge, amputation of his right leg, depression and PTSD.

2. On 19 June 2015 a delegate of the Respondent, the Secretary of the Department of Social Services (the Department) rejected Mr Perera’s application on the basis that he did not have impairments attracting an impairment rating of 20 points. 

3. Mr Perera sought a review by an Authorised Review Officer (ARO), an officer of the Department not involved in the original decision.  On 19 November 2015 the ARO found that the Applicant’s right leg amputation was permanent in terms of the requirements of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) and attracted an allocation of 5 points under Table 3 – Lower limb function. The ARO found that Mr Perera’s mental health conditions were permanent and attracted a rating of 10 points under Table 5 – Mental health function. The ARO found that the hypertension condition caused minimal functional impairment and attracted zero points, and further found that Mr Perera’s spinal condition was not fully treated and stabilised and his asthma and traumatic brain injury was not fully diagnosed, treated and stabilised and so these conditions could not be allocated impairment points. The ARO found that Mr Perera’s work capacity was between 15 and 22 hours a week and he had not completed a program of support. As the ARO allocated a total of 15 points, Mr Perera did not satisfy section 94(1)(b) of the Social Security Act 1991 (the Act) in the claim period.

4. Mr Perera sought a review of this decision by the Social Services and Child Support Division of the Tribunal (AAT1).  On 28 April 2016 AAT1 found that the Applicant should be allocated 5 points for his right leg amputation but did not assign an allocation for his mental health conditions on the basis that they were not fully treated and fully stabilised, and did not assign impairment ratings for his other conditions.

5. Mr Perera sought a review by the General Division of the Tribunal, on the basis that AAT1 failed to place sufficient weight on his medical conditions.  The hearing convened on 19 April 2017 but adjourned to ensure that the Applicant had materials relevant to the rejection of his claim.  The hearing resumed on 4 May 2017.  Mr Perera was represented by Ms Melissa Sutton of Social Security Rights Victoria.  The Applicant was cross-examined by the representative of the Respondent, Mr Joshua Lessing.

6. The Respondent tendered documents under section 37 of the Administrative Appeals Tribunal Act 1975.

7. The Respondent also submitted the following documents which were taken into evidence:

   ·Centrelink Health Professional Advisory Unit report dated 27 September 2016 (Exhibit R1);

   ·Job Capacity Assessment Report dated 28 May 2015 (Exhibit R2);

   ·Supplementary ‘T’ documents lodged on 2 May 2017 (Exhibits R3-1 and R3-2); and

   ·Letter from Dr Andrew Nunn, Rehabilitation Physician, Caulfield Hospital, dated 27 October 2014 (Exhibit R4).

8. The Applicant submitted the following documents, which were taken into evidence:

   ·Applicant’s Statement of Facts, Issues and Contentions dated 7 March 2017 (Exhibit A1);

   ·Letter from Barbara Lach, clinical psychologist, dated 18 April 2017 (Exhibit A2);

   ·Letter from Barbara Lach, clinical psychologist, dated 28 April 2017 (Exhibit A3);

   ·Medical report from Dr Joseph Philip dated 15 February 2014 (Exhibit A4);

   ·DSP document dated 12 January 2015 (Exhibit A5);

   ·Information form completed by Dr Phillip with Job Capacity Assessment Report dated 28 May 2015 (Exhibit A6);

   ·Letter from Dr Philip dated 9 March 2016 (Exhibit A7);

   ·Letter from Dr Philip dated 6 July 2016 regarding medical report (Exhibit A8); and

   ·Centrelink form – Information about participation in a program of support, dated 30 January 2017 (Exhibit A9).

   THE LAW

   Qualification for DSP under the Act

9. The requirements for eligibility for grant of DSP are found in section 94 of the Act. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied. A person is qualified for DSP if:

   (a)the person has a physical, intellectual or psychiatric impairment and

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

   (c)the person has a continuing inability to work.

10. The Impairment Tables referred to in section 94(1)(b) are to be found in subordinate legislation, namely a ministerial determination called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Determination).  This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.

11. The applicable provision relating to the Applicant’s ability to “work” under subsection 94(1) (c) and section 94(5) of the Act is work that is for at least 15 hours a week.

12. So, therefore, for a person to be qualified for DSP, the person must have an impairment within the meaning of the Act. Secondly, the impairment, or impairments if there is more than one, must be assigned a rating of 20 or more points under the Impairment Tables. Thirdly, the person must have a continuing inability to work.

13. An important additional requirement is, if a person is assigned 20 or more points under one Impairment Table, the impairment is assessed to be a ‘severe’ impairment under section 94(3B). If a person is assigned 20 or more points under more than one Impairment Table, the impairment is not assessed as a severe impairment and the provisions of section 94(2) of the Act are applicable, which relate to a person participating in an approved program of support.

    What is the relevant period for considering the claim?

14. The Social Security (Administration) Act 1999 (the Administration Act) provides, at clause 4(1) of Schedule 2, as follows:

    (1)If:

    (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

15. In order to qualify for DSP, Mr Perera must satisfy the requirements of section 94 of the Act as at the date of the claim (17 March 2015) or within 13 weeks of lodging the claim, in accordance with subclause 4(1) of Schedule 2 to the Administration Act and item 6 in the table within section 36(1) of the Acts Interpretation Act 1901 (Cth), that is, between 18 March 2015 and 17 June 2016 (the claim period).

    Did the Applicant have impairment?

16. The first step in considering whether a person is qualified for DSP is whether the person satisfied section 94(1)(a) of the Act in the claim period. In his submissions, the Respondent accepted that Mr Perera suffered from impairments arising from a spinal condition, a right leg amputation, a mental health condition (PTSD and depression), hypertension and post-concussion syndrome.

17. The Tribunal had before it a number of documents attesting to Mr Perera’s medical conditions.  On 18 November 2014, Dr David Moses, neurologist, wrote a medical letter to Dr Joseph Philip, Mr Perera’s general practitioner (T16, p 93).  Dr Moses referred to the Applicant losing his right leg in Sri Lanka in the course of military action in 1996, which was subsequently further complicated by osteomyelitis and a neuroma of the posterior tibial nerve.  Dr Moses noted that Mr Perera was, at that time, seeing rehabilitation physicians at the amputee service of Caulfield Hospital and was having some difficulties with prosthesis.

18. Dr Moses also refers to Mr Perera being the victim of a physical assault in 2014 where he was rendered unconscious and sustained head and neck injuries and that he had “ongoing residual symptoms in the form of post-traumatic Cervicalgia and Cervicogenic headaches of a moderate-to-severe degree”.

19. Dr Moses goes on to refer to the Applicant’s medical history including chronic lumbago and right-sided sciatica, hypertension, depression, asthma and seasonal rhinitis, and that he had symptoms suggestive of prostate pathology.

20. I am satisfied that the Applicant has impairment, namely a spinal condition, amputation, hypertension, mental health conditions, asthma and rhinitis, and post-concussion syndrome, and the Tribunal finds that he satisfied section 94(1)(a) of the Act in the claim period.

    What is the correct assignment of impairment points?

    Spinal condition

21. Dr Philip in his medical report of 31 March 2014 recorded that Mr Perera had cervical neck disease – stenosis and lumbar disc disease – prolapse (T13, p 80).   He said that the conditions were confirmed by an MRI conducted by a neurologist at the Royal Melbourne Hospital in “2013-2014”.  Dr Christopher Minogue in his report of 27 September 2016 (Exhibit R1) said that the main spinal problem affecting Mr Perera “appears to be a severe bilateral C5/6 forminal stenosis, which has resulted in C6 radiculopathies affecting both arms”.  Dr Tony Weaver, pain specialist, wrote in a medical report dated 11 February 2016 (T23, p 141):

    The positive MRI findings on 6 July 2015 were bilateral foraminal stenosis at C5-6 + C6-7 levels which were worse on the Right and were consistent with his clinical signs. 

    These were also seen in the MRI scan of March 2014 and had not really progressed.  There was no evidence of Spinal cord compression.  His Lumbar spine MRI showed non-specific disc bulges and ligament and facet joint changes.

    I do not believe that neurosurgery is indicated at present but as he has a permanent narrowing at C5-6 which is stable at present but which may deteriorate, the future is difficult to predict. 

    I consider that he will make little progress with Physiotherapy and is not motivated to benefit from a Pain education program.

    …

    I consider the Cervical and Lumbar spine problems to be stable and that there will not be significant gains from further therapies.  Therefore his current upper limb symptoms and signs will continue and may deteriorate in the future.

22. Although Dr Weaver’s letter to Centrelink is dated in February 2016, his examination of the Applicant was in June 2015 and I consider it relevant to the claim period.  Dr Minogue acknowledged Dr Weaver’s views but was of the opinion that the condition was not fully diagnosed, fully treated and fully stabilised in the claim period. 

23. Having considered all the evidence and noting subsequent medical opinions that the condition has now deteriorated, the Tribunal considers that Mr Perera’s spinal condition was permanent in the claim period and capable of being assessed under the Impairment Tables. However there it appears that this condition had not been fully treated at the time of his claim; Mr Perera did not appear to consult a pain specialist until June 2015, which is perhaps consistent with Dr Weaver’s conclusion that he was not motivated to seek this treatment. However, in this sort of condition, the Tribunal must consider whether this is reasonable treatment (sections 6(7) of the Determination). The Tribunal therefore does not find this condition was fully treated and stabilised in the claim period and cannot go on to consider this condition in regard to Table 4 – Spinal Function.

    Amputation

24. As mentioned above, Mr Perera suffered an injury to his right leg which led to amputation.  The evidence was that this occurred during his service in the Sri Lanka Army.  There was evidence before the Tribunal of a history of difficulties Mr Perera had had with prostheses.  In the Job Capacity Assessment (JCA) report of 18 July 2014 (T14), it was recorded that Mr Perera occasionally contracted an infection in his stump which required treatment but it resolves itself without treatment.  His employment history shows he worked as a lifeguard for five years while successfully managing this impairment.

25. The Tribunal finds that the condition is capable of assignment of points under the Impairment Tables.  The correct table is Table 3 – Lower Limb Function.  Dr Philip indicated in his medical report dated 1 January 2015 that this condition of the Applicant is generally well managed and caused minimal or limited impact on his ability to function.

26. Mr Perera told AAT1 that his stump was damaged when he was assaulted in 2012. Dr Minogue’s opinion was that Mr Perera appeared to meet descriptors (a), (b) and perhaps (c) under the ‘mild’ functional impact part of the matrix in Table 3 of the Determination.

27. Having carefully considered the medical evidence and the evidence of Mr Perera, I find that he does have some difficulty walking and climbing stairs and should be assigned 5 impairment points for his amputation.

    Hypertension

28. In his medical report dated 12 January 2015, Dr Philip recorded that Mr Perera suffers dizziness and lethargy for his hypertension and was being treated with medication (ST36, p 181).  The JCA report of 28 May 2015 recorded that Mr Perera told the assessor this condition is well managed and does not have a significant impact on his ability to function.

29. I find that the condition is permanent and can be assessed under the Impairment Tables.  The correct impairment table is Table 1 – Functions requiring Physical Exertion and Stamina.  The Applicant’s written submission contended an allocation of 20 impairment points for this condition.  There is no evidence whatsoever to support such an allocation.

30. I find that there is no functional impact on Mr Perera of his high blood pressure and therefore this condition is assigned zero impairment points.

    Mental health conditions

31. Dr Philip recorded that Mr Perera had depression and a personality disorder with post-traumatic stress.  He said that this condition was generally well managed and caused minimal impact on the Applicant’s ability to function.  Ms Barbara Lach, clinical psychologist, provided a medical report dated 19 January 2014 that Mr Perera had PTSD and that this was the condition with most impact on him (T9, p 54).  She gave a diagnosis of a date of onset in 2012 and stated that Mr Perera had commenced a course of psychotherapy in March 2014.  Ms Lach gave the following as clinical features:

    Intense fear, avoidance of places where trauma occurred, hypervigilance, nightmares, blackouts, irritability.  These symptoms persisted for nearly two years. Client reports experiencing them on a daily basis.

32. Ms Lach said that the PTSD symptoms occurred in the context of two physical assaults on the Applicant in April 2012 and February 2014.

33. Ms Lach put, as a second medical condition, ‘major depressive episode’ and said that this depressive condition was a result of the assaults.

34. Ms Lach was of the opinion in her report of 12 December 2014 (T17, p 94) that Mr Perera should be assigned 20 points under Table 5 – Mental Health Function.  However, this assessment of the severity of the condition is, in the Tribunal’s conclusion, inconsistent with the application of the descriptors in Table 5 which must be applied in terms of allocation of impairment points towards qualification for DSP.  For instance, this condition did not have an impact on Mr Perera’s self-care (though he said he had needed help with showering for a separate reason: because of a fall which left a broken arm), and he was able to use public transport.

35. The Tribunal finds that the Applicant has a mental health condition which is fully diagnosed. Dr Minogue in his report said he accepted Ms Lach’s conclusion that this condition was fully treated and fully stabilised at the time of Mr Perera’s application for DSP. The Tribunal has no doubt that the Applicant has a mental health condition that is a particular challenge but most of the Descriptors in the matrix in Table 5 relating to 20 points are not met, and that is a requirement in that part of the Determination. I note that Dr Minogue suggested 5 or 10 points could be allocated.

36. Taking into account Dr Philip’s and Ms Lach’s history with treating the Applicant and the documented history of counselling, I find that the preferable decision is that 10 points should be assigned for this condition. 

    Post-concussion syndrome condition

37. Dr Moses provided a medical report dated 18 November 2014 (T16, p 93) as follows:

    Jude [the Applicant] was a victim of a physical assault in 2014 whereby he was knocked unconscious and sustained head and neck injuries.  This was initially managed at the ED of the Northern hospital followed by outpatient reviews of the neurology unit.  Jude has ongoing residual symptoms in the form of post-traumatic Cervicalgia and Cervicogenic headaches of a moderate-to-severe degree.  He has classical symptoms of right-sided Occipital neuralgia manifesting with local pain at the right upper cervical/occipital junction associated with referred neuralgic-type pain at the occiput and vertex and a referred pain to the upper limbs resulting in limited ROM due to antalgic inhibition.  Jude doesn’t drive because of the cervical pain.

38. Mr Perera underwent a neuropsychological assessment and a report was prepared as a result by the assessors, Ms Chantal Roddy and Dr Dana Wong (a clinical neuropsychologist) dated 14 March 2016 (T24).  They tested Mr Perera over two sessions on that date and made the following conclusion on his test performance:

    On formal neuropsychological assessment, Galu’s [the Applicant’s] performance across a range of cognitive and memory measures was significantly more impaired than expected in light of his history and the absence of any significant neurological impairment on neuroimaging or neurological examination.  His pattern of performance raised doubts regarding whether or not optimal effort was applied to his testing performance.  It is therefore commended that the test results outlined below be interpreted with caution.

    Estimates of Galu’s premorbid intellectual functioning placed him in at least the ‘Average’ range overall.

    On current assessment, Full-scale IQ (FSIQ) estimates placed Galu’s intellectual functioning in the ‘extremely low’ range.  However, as noted above this is unlikely to be a valid estimate of his overall potential intellectual functioning, and it also notably in contrast to his prior mentioned premorbid function. 

1. The report went on to conclude (T24, p 146):

   Despite the unclear cognitive results, it does seem clear that Galu is experiencing significant distress and finds it difficult to cope with his daily responsibilities.  This self-reported distress and ongoing pain management concerns warrant continued support from his clinical psychologist and other medical professionals, and it is recommended that he continues to seek support for these difficulties as required.

2. Although this report is well outside the claim period, the suspicions of the testers that Mr Perera was not undertaking the tests in an effortful manner is relevant in terms of assessing how this condition affects his functional ability and is referrable to the claim period, to that extent.

3. Dr Minogue, in the JCA report dated 27 September 2016, concluded that, given doubts raised about Mr Perera’s performance on formal neuropsychometric testing, he did not consider that an impairment rating of more than 5 or 10 points under Table 5 would be reliable on present evidence.  Dr Minogue said it was his opinion that, preferably, this condition should be further assessed, perhaps via independent psychiatric opinion.

4. I found nothing in the Applicant’s intelligent engagement and conduct and competent responses at the hearing to suggest that his IQ was of an extremely low range. Mr Perera has a Bachelor degree in management and mathematics.  He gave evidence he was a Training Officer in the Sri Lankan Defence Force and on his own evidence at the hearing he was undertaking a Master’s university degree course and would have continued with the course but for feelings of depression and fearfulness (not, the Tribunal notes, because of cognitive problems).

5. I do accept that his apparent performance at the tests conducted by Dr Wong and Ms Roddy may have been a manifestation of his depression, rather than any conscious or deliberate attempt to ‘under-perform’.  It seems to me from the medical evidence that there may be a link between the two conditions. 

6. The correct impairment table for considering such a condition is Table 7 – Brain Function.  I note that in his submissions (Exhibit A1), the Applicant agreed with Dr Minogue’s opinion that this condition, while fully diagnosed, may not be fully treated and fully stabilised.

7. The Tribunal accepts this submission from the Applicant’s representatives and finds that no impairment points could be allocated under Table 7 for the post-concussion syndrome at the time of the claim period.

   Asthma and rhinitis

8. Some of the medical reports did not mention Mr Perera’s asthma.  However, the ARO refers to a diagnosis of asthma and rhinitis by Dr Gary Unglik, a physician specialising in immunology and allergy, in his letter dated 28 August 2014 (ST30, p 168).  Dr Unglik recommended, in regard to the asthma condition, that Mr Perera recommence two medications and for his rhinitis he use a corticosteroid spray intermittently.  While I find there is sufficient evidence for these conditions to be regarded as fully diagnosed, there was insufficient material before the Tribunal to determine whether Dr Unglik’s medical advice has been followed and so therefore I am unable to consider these conditions further in regard assessment under the Impairment Tables, because I am not satisfied there is evidence of reasonable treatment for the conditions.

   Conclusion

9. As the Tribunal has found that Mr Perera is allocated a total of 15 impairment points under two Impairment Tables, he does not satisfy the requirements of section 94(1)(b) of the Act, so his claim for DSP fails. As this section of the Act is cumulative, meaning each part must be satisfied, it is not necessary to go on to consider the other provisions relating to completion of a program of support (although I note the Applicant’s written submission conceded he had not participated in such a program at the time of this claim), or the Applicant’s continuing inability to work.

10. The Tribunal concludes by noting that Mr Perera has a range of health conditions and that perhaps his mental health condition is the one that has the most significant effect on him.  The assaults to which he was subjected must have been traumatic and it appears on the medical and psychological evidence that he has been left with lasting physical effects.  But in the claim period relevant to this claim for DSP, 17 March 2015 to 17 June 2015, the Applicant was not eligible for this benefit.

11. There were a number of references in documents before the Tribunal that granting of a DSP has become very important to Mr Perera.  The Tribunal wants to make clear that the failure of a person to qualify for DSP does not mean that they do not suffer from impairment, and indeed I have found in this review that the Applicant does.  The DSP benefit is payable for a person who has an impairment or impairments that make them unable to work.  Mr Perera is tertiary educated and had a strong previous history of gainful employment, right up until 2014, in spite of his amputation and the onset in 2012 of his PTSD.  Given this, and with appropriate treatment and training, it may be that he is able to find employment that is fulfilling and assists him to overcome his mental health challenges.

    DECISION

12. The decision is affirmed.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Mr D.J. Morris, Member

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

Associate

Dated: 10 August 2017

Date(s) of hearing:	19 April 2017, 4 May 2017
Advocate for the Applicant:	Ms M Sutton
Solicitors for the Respondent:	Mr J Lessing, Sparke Helmore