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

[2020] AATA 152

Perry and Secretary, Department of Social Services (Social services second review) [2020] AATA 152 (10 February 2020)

Division:GENERAL DIVISION

File Number:2019/2702            

Re:Anthony Perry  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member D Mitchell

Date:10 February 2020

Place:Brisbane

The decision under review is affirmed.

..........................[SGD]..................................

Member D Mitchell

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables during the Relevant Period – 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)

CASES

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

Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALDA 133

Gallacher v Secretary, Department of Social Services  [2015] FCA 1123

REASONS FOR DECISION

Member D Mitchell

10 February 2020

INTRODUCTION

1. On 23 July 2018, Mr Anthony Perry (the Applicant) lodged a claim for the disability support pension (DSP).[1] On the Applicant’s claim for DSP form he lists his disabilities or medical conditions that significantly affect his ability to work to include: “Lower back pain with sciatica, CT Scan Dec 2017: Lumbar 4/5 disc bulge with bilateral facet arthrosis, L5-sacral: 1 disc bulge and facet arthropathy. Significant impingement upon left L5 nerve root on S1 nerve root”.[2]

   [1] Exhibit 1, T17, pages 134-135, Customer contact file notes.

   [2] Exhibit 1, T7, page 98, Claim for Disability Support Pension.

2. The claim was rejected on 18 August 2018, on the basis that the Applicant had not provided sufficient medical evidence for his claim to be assessed.[3] This decision was reviewed by an Authorised Review Officer (ARO) and affirmed on 22 January 2019 on the basis that the ARO found that the Applicant did not have any fully diagnosed, treated and stabilised conditions causing impairments which attract an impairment rating of at least 20 points under the Impairment Tables.[4]

   [3] Exhibit 1, T9, pages 108-109, Centrelink Notice: Rejection of your claim for DSP.

   [4] Exhibit 1, T13, pages 115-120, Decision and Notes of Authorised Review Officer.

3. The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), who affirmed the decision to reject the Applicant’s claim for DSP on 12 April 2019.[5]

   [5] Exhibit 1, T2, pages 3-8, Decision of the Social Services and Child Support Division.

4. Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal by way of an application dated 12 May 2019.[6]

   [6] Exhibit 1, T1, pages 1-2, Application for Review of Decision.

5. At the Hearing, the Applicant was self-represented, appeared in person and gave evidence under affirmation. The Applicant did not call any witnesses. I consider that the Applicant openly responded to questions from the Tribunal and cross-examination from the Respondent and gave honest answers to the questions he was asked.

6. The issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of his claim or within 13 weeks thereafter.

   THE LAW

7. The relevant law in assessing a person’s qualification for DSP is found in the
   Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). The following is a summary of the key requirements which relate to the Applicant.

8. Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:

   1.Does the applicant have a physical, intellectual or psychiatric impairment;[7]

   2.Do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[8] and

   3.Does the Applicant have a continuing inability to work?[9]

   [7] Section 94(1)(a) of the Act.

   [8] Section 94(1)(b) of the Act.

   [9] Section 94(1)(c) of the Act.

9. Under the Determination an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent”; and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[10]

   [10] Section 6(3) of the Determination.

10. Permanent takes on a specific meaning for the purposes of DSP. To be considered permanent for DSP the condition must: have been fully diagnosed by an appropriately qualified medical practitioner; have been fully treated; have been fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[11] As such, a condition could be considered permanent from the perspective of being life-long, but still not meet the definition under the DSP requirements.

    [11] Sections 6(3) and (4) of the Determination.

11. To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, it must be considered:

    (a)Whether there is corroborating evidence of the condition;

    (b)What treatment or rehabilitation has occurred in relation to the condition; and

    (c)Whether treatment is continuing or planned in the next 2 years.[12]

    [12] Section 6(5) of the Determination.

12. A condition is considered to be fully stabilised if:[13]

    (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; or

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

    [13] Section 6(6) of the Determination.

13. Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[14]

    [14] Section 6(7) of the Determination.

14. The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[15] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[16]

    [15] Section 6(2) of the Determination.

    [16] Section 8(1) of the Determination.

15. In order to have a continuing inability to work, which is required to satisfy section 94(1)(c) of the Act, further consideration is given to the Applicant’s work capacity.

16. The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[17]

    [17] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act.

    RELEVANT PERIOD

17. The Relevant Period in this matter commences on 23 July 2018, being the date the Applicant lodged his claim for DSP, and ending 13 weeks later on 22 October 2018.  The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.

    ISSUES

18. Based on the evidence before the Tribunal it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[18]

    [18] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 6, paragraph 29.

19. The remaining issues for the Tribunal to consider are:

    1.Whether, within the Relevant Period, the Applicant’s impairments attracted 20 points or more under the Impairment Tables; and

    2.If so, did the Applicant have a continuing inability to work?

    CONSIDERATION

    Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?

    Back Condition

20. Based on the evidence before the Tribunal it is clear that the Applicant’s back condition was fully diagnosed during the Relevant Period. This point is not in contention.[19]

    [19] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 6, paragraph 31.

21. The diagnosis of the Applicant’s back condition is evidenced in the CT of the lumbar spine report dated 14 December 2017[20] and the report provided by Dr Balaji, the Applicant’s general practitioner, dated 6 September 2018.[21]  This evidence diagnosed L1-S1 bilateral facet joint osteoarthritis, L3-4 disc bulge with no nerve impingement, L4-L5 broad based disc bulge with nerve impingement – L4 nerve root, L5-S1 irregular broad based disc bulge causing significant impingement on L5 and S1 nerve root and sacroiliac joint osteoarthritis (referred to as the Applicant’s back condition).

    [20] Exhibit 1, T5, pages 70-71, CT lumbosacral spine report and findings of Dr Danielle Moon.

    [21] Exhibit 1, T12, page 114, Report: Dr Revathi Balaji.

22. In a General Practitioners Management Plan, completed by Dr Balaji on 30 November 2017 and updated in September 2018, the goals and treatment in relation to the Applicant’s chronic lower back pain centred around exercise, muscle strengthening and referral to a physiotherapist.[22]

    [22] Exhibit 1, T4, pages 62-63, GP Management Care Plan: Dr Revathi Balaji.

23. The Respondent contends that the Applicant’s back condition was not fully treated and fully stabilised during the Relevant Period relying on:[23]

    ·The report of Mr Greg Rodgers, physiotherapist, dated 4 September 2018 that outlined that he had treated the Applicant on 20 July and 26 July 2018 and that the treatment consisted of ultrasound, manual therapies, posture and body mechanics education and prescription of a home exercise program. Mr Rodgers reported that the Applicant would require “constant independent management and maintenance to keep his functional independence” and “ … that whilst Physio would offer short-term relief and help manage and progress [the Applicant’s] strengthening, he would need to continue conservative management as the best course to avoid surgical intervention”.[24]

    ·The Applicant told the SSCSD that he did not find physio helpful and that he does not do the exercises prescribed by the physiotherapist as they aggravated his pain.

    ·The Applicant has been referred to the Persistent Pain Management Service clinic which was acknowledged by Metro South Health on 14 February 2019. He was advised that he would be notified of the outcome of the referral process as soon as possible.[25]

    ·The Applicant has not been referred to or engaged with a specialist.

    [23] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 6-10, paragraphs 31-57.

    [24] Exhibit 1, T10, page 110, Report: Greg Rodgers.

    [25] Exhibit 1, T15, page 123, Letter: from Metro South Health to Applicant – review of referral for progress.

24. The Respondent contends that, as the Applicant has neither engaged in the pain management course nor seen a specialist, and that there was no medical nor other compelling reason for the Applicant not to undergo ongoing physiotherapy as recommended he had not undertaken reasonable treatment for his back condition and therefore the condition could not be considered fully treated and stabilised.[26]

    [26] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 7-10, paragraphs, 38-53.

25. At Hearing the Applicant told the Tribunal:

    ·That he had attended two sessions at the pain management clinic, with a third appointment later this week.  He commenced this treatment about 9 weeks ago.

    ·He has had his injury for 24 years and has seen what having back treatment has done to others, who he says are now worse off than he is. This is why he has not sought opinions or treatment as he did not want to go through that.

    ·He did not continue with physiotherapy after the two sessions in 2018.

    ·He is looking to restart physiotherapy with a different physiotherapist as the previous physiotherapist did not help.

    ·His back gives him a lot of pain.

    ·It takes him a long time to do things, for example, it can take hours to do the dishes as he has to have breaks and sit down.

    ·He drives a car once a fortnight and it takes him a couple of days to get over it.

    ·He could sit down for around half an hour, however requires medication and will be in pain when he gets up.

    ·He could not stand up for too long.

    ·He cannot bend to pick up an object off a coffee table.

    ·He can pick up an object off the dinner table and take it to the sink.

    ·He struggles to get out of chairs, so he does not sit on the lounge.

    ·The aim of taking medication, the pain clinic and physiotherapy is to make him stronger.

26. On cross-examination, the Applicant told the Tribunal:

    ·He injured his back at work around 1995.

    ·He had hypnosis and acupuncture for his injury around 20 years ago.

    ·He only takes Panamax for his back pain as he is unable to take stronger medication – it makes him sick.

    ·He had a guided injection in his back that did not work, it made him sick for three weeks.

    ·He agreed that when he attended the physiotherapist in 2018 he did get short term relief, as written by Mr Rodgers in his letter.

    ·He agreed that ongoing physiotherapy was recommended, but said that physiotherapy was not doing anything.

    ·He was not sure exactly when his general practitioner referred him to the pain management clinic and that she has not referred him to see a specialist.

    ·Confirmed that what he told the SSCSD was correct.

27. It is clear that the Applicant has a back condition and that this impacts upon his life.  Based on the evidence before the Tribunal I find that the Applicant’s back condition was fully diagnosed, however was not fully treated and fully stabilised during the Relevant Period. 

28. It is noted that there is a lack of medical evidence before the Tribunal in relation to the functional impact caused by the Applicant’s back condition or to the management plan in place with his general practitioner during the Relevant Period, other than to refer him to the physiotherapist and encourage exercise to strengthen core muscles. The Applicant had not yet engaged in a pain management clinic, been reviewed by a specialist or fully engaged with other reasonable treatments including physiotherapy and home exercises. There is no evidence before the Tribunal that such review and engagement would not result in significant functional improvement in the Applicant’s back condition enabling him to undertake work in the next two years.

29. As such, the Applicant’s back condition cannot be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

    Mental Health Condition

30. There is limited evidence before the Tribunal in relation to the Applicant’s mental health condition during the Relevant Period. In a GP Management Plan, dated 30 November 2017, Dr Balaji stated that the Applicant was experiencing stress and that at that stage he had declined further assistance.[27]

    [27] Exhibit 1, T4, pages 60-61, GP Management Care Plan: Dr Revathi Balaji.

31. To be considered fully diagnosed, Table 5 of the Impairment Tables, which relates to mental health, requires that the diagnosis of a mental health condition be made by an appropriately qualified medical practitioner (this includes a psychiatrist), with evidence from a psychologist (if the diagnosis has not been made by a psychiatrist).[28]

    [28] Impairment Table 5 – Mental Health Function, Part 3 of the Determination. 

32. The Applicant submitted two letters from Ms Arsenieva, who is a Clinical Psychologist dated 5 July 2019[29] and 3 September 2019.[30]  Ms Arsenieva provides a diagnosis of depression and anxiety however does not provide a date of onset.  Ms Arsenieva indicated that the Applicant had attended 10 sessions with her by 3 September 2019 and, as a result, her opinion was that his condition had improved. She recommended that due to complex grief the Applicant would require further treatment.[31]

    [29] Exhibit 5, Letter: Ms Lepa Arsenieva dated 5 July 2019.

    [30] Exhibit 4, Letter: Ms Lepa Arsenieva dated 3 September 2019.

    [31] Exhibit 4, Letter: Ms Lepa Arsenieva dated 3 September 2019.

33. In a Centrelink Medical Certificate dated 11 October 2019, Dr Balaji provided a diagnosis of depression with the prognosis of “likely to improve”.  Dr Balaji listed current treatment as “medication/psychologist” and future treatment was to continue.[32]

    [32] Exhibit 3, Centrelink Medical Certificate: Dr Revathi Balaji.

34. The Respondent contends that the Applicant’s mental health condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period, as there is insufficient evidence regarding diagnosis, treatment, prognosis and functional impact of the Applicant’s mental health condition during the Relevant Period.[33]

    [33] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 10, paragraphs 58-61.

35. At Hearing, the Applicant told the Tribunal:

    ·He knew he had depression because he was having suicidal thoughts. He said it was not normal to think there is no point, nothing to live for;

    ·It was difficult after his mother had passed away;

    ·He sought help from his doctor who referred him to a psychologist;

    ·He started seeing the psychologist in early 2019 and went every two weeks.  He had to wait for the new year to get his next lot of 10 free appointments; and

    ·He takes medication which is helping.

36. While I accept that the Applicant has depression and anxiety, based on the evidence before the Tribunal and the evidence provided by the Applicant at Hearing, I find that this condition was not fully diagnosed during the Relevant Period. There is no corroborating evidence that this condition was diagnosed by a psychiatrist or clinical psychologist during the Relevant Period. The Applicant’s diagnosis by Ms Arsenieva was well outside the Relevant Period.

37. Further, even had the Applicant’s mental health condition been fully diagnosed during the Relevant Period it was not fully treated and fully stabilised as he only commenced treatment with the clinical psychologist and taking medication after the Relevant Period. This treatment is also ongoing and, the evidence suggests, is having positive effects.

38. As such, the Applicant’s mental health condition cannot be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

    Other conditions

39. In evidence provided to the Tribunal, Dr Balaji states that the Applicant suffers from metabolic syndrome, hypertension, hypercholesterolaemia and dyslipidaemia.[34] There is no information before the Tribunal in relation to specialist review, treatment or functional impact of these conditions.

    [34] Exhibit 1, T4, page 59, GP Management Care Plan: Dr Revathi Balaji; T12, page 114, Report: Dr Revathi Balaji.

1. At Hearing the Applicant told the Tribunal:

   ·That he now has diabetes;

   ·He has lost weight since starting the diabetic medication;

   ·He has been on medication for his blood pressure and cholesterol for 40 years and they have been stable; and

   ·These conditions have no real impact on him if he takes his medication.

2. In his application to this Tribunal for review the Applicant makes reference to him having an intellectual impairment,[35] however there is no evidence of diagnosis, treatment or functional impact of such a condition.

   [35] Exhibit 1, T1, page 2, Application for Review.

3. At Hearing the Applicant told the Tribunal:

   ·He has a hearing aid which he does not use.

4. Throughout the Tribunal process the Applicant has also provided a letter from Mr Penklis, Optometrist dated 31 July 2019. The letter provides information in relation to the Applicant’s vision at October 2018.[36]  It is noted that this falls outside the Relevant Period. Further, there is no evidence before the Tribunal in relation to any vision impairment.

   [36] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment A.

5. At Hearing the Applicant told the Tribunal:

   ·He had his eye test before Christmas and passed but had to go back again to get a different form competed.

   ·He agreed this information was outside the Relevant Period.

6. The Applicant’s metabolic syndrome, hypertension, hypercholesterolaemia and dyslipidaemia, intellectual and vision impairment conditions are collectively referred to as his “other conditions”.

7. The Respondent contends that the Applicant’s other conditions cannot be considered fully diagnosed, fully treated or fully stabilised as there is limited evidence in relation to the diagnosis, treatment, prognosis and functional impact of these conditions during the Relevant Period.[37]

   [37] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 11, paragraphs 62-64.

8. Based on the lack of information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, I am not satisfied that the Applicant’s other conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period. Accordingly, the Applicant’s other conditions are not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.

   Continuing inability to work

9. As I have found that the Applicant does not have a total of 20 impairment points, either on one table, or cumulative across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act.

   CONCLUSION

10. Based on the medical evidence before the Tribunal I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act which included back, mental health and other conditions.

11. Based on the evidence before the Tribunal and that which was provided at the Hearing I find that the Applicant’s back, mental health and other conditions cannot be considered to be permanent for the purposes of assigning impairment ratings under the Impairment Tables.

12. Consequently, the Applicant does not have 20 impairment points under the Impairment Tables and the requirements of section 94(1)(b) of the Act are not met.

13. Accordingly, the decision under review is affirmed.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of

Member D Mitchell

.......................[SGD]...................................

Associate

Dated: 10 February 2020

Date of hearing:	29 January 2020
Applicant:	In person
Advocate for the Respondent:	Ms Gillian Gehrke
Solicitors for the Respondent:	Department of Human Services