PETER SINCLAIR and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2012] AATA 888

[2012] AATA 888

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/4199
Re	PETER SINCLAIR
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	18 December 2012
Place	Brisbane

The Tribunal affirms the decision under review.

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Mr R G Kenny, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Impairments to right shoulder and right leg – Date of claim – Relevant period for assessment – Impairment Tables under Schedule 1B of the Social Security Act 1991 – Impairment Tables under the Ministerial Determination of 2011 – Conditions not fully diagnosed, treated and stabilised – Decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) Sch 2

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

CASES

Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Guide to Social Security Law

REASONS FOR DECISION

Mr R G Kenny, Senior Member

BACKGROUND

1. On 21 December 2011, Peter Sinclair spoke with a Centrelink officer about the payment of the disability support pension which is payable under the terms of the Social Security Act 1991 (Cth) (the Act). He made a claim for the disability support pension on 4 January 2012. This was rejected by a Centrelink delegate on 13 February 2012. On 12 June 2012, an authorised review officer affirmed the decision as did the Social Security Appeals Tribunal on 21 August 2012.

   LEGISLATION AND ISSUE

2. The qualifications for a disability support pension are set out in s 94 of the Act. It is common ground that Mr Sinclair meets the age and residency requirements of that provision and has a physical impairment in his right leg and right shoulder. The remaining requirements in s 94 of the Act are:

   ·whether Mr Ryan has an impairment rating of 20 points or more which is calculated under the Impairment Tables as required by s 94(1)(b) thereof; and, if so

   ·whether he has a continuing inability to work as required by s 94(1)(c)(i) of the Act.

3. To qualify for a disability support pension, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the initial claim or in the period of 13 weeks from the day of the claim.[1] As Mr Sinclair’s formal claim was made with 14 days of his initial contact with Centrelink, the claim may be taken to have been made on 21 December 2011. Alternatively, the claim may be considered with effect from the date of lodgement on 4 January 2012. This means that the respective periods within which the qualifying conditions are to be considered are from 21 December 2011 until 21 March 2012 and from 4 January 2012 until 4 April 2012 (the relevant periods).

   [1] See Schedule 2, cl 3 and cl 4 of the Social Security (Administration) Act 1999 (Cth).

4. For a claim made before 1 January 2012, the Introduction to Schedule 1B of the Act provides guidance in the application of the various Impairment Tables which it contains. Part of that introduction reads:

   4.  A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.  The first step is thus to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

   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.

   6.  In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

   ·what treatment or rehabilitation has occurred;

   ·whether treatment is still continuing or is planned in the near future;

   ·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

   In this context, reasonable treatment is taken to be:

   ·treatment that is feasible and accessible ie, available locally at a reasonable cost;

   ·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.

   It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.

   In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the assessor should:

   ·evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and

   ·indicate why this treatment is reasonable; and

   ·note the reasons why the person has chosen not to have treatment.

5. For claims made on or from 1 January 2012, the assessment of impairment is to be conducted under the Social Security (Tables for Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) which provides:

   Impairment ratings

   (3) An impairment rating can only be assigned to an impairment if:

   (a) the person's condition causing that impairment is permanent; and

   (b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years - if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.

   Permanency of conditions

   (4) For the purposes of paragraph 6(3)(a) a condition is permanent if:

   (a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

   (b) the condition has been fully treated; and

   (c) the condition has been fully stabilised; and

   (d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   Fully diagnosed and fully treated

   (5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

   (a) whether there is corroborating evidence of the condition; and

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

   (c) whether treatment is continuing or is planned in the next 2 years.

   Fully stabilised

   (6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

   (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.

   Reasonable treatment

   (7) For the purposes of subsection 6(6), reasonable treatment is treatment that:

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

   (b) is at a reasonable cost; and

   (c) can reliably be expected to result in a substantial improvement in functional capacity; and

   (d) is regularly undertaken or performed; and

   (e) has a high success rate; and

   (f)  carries a low risk to the person.

6. The issue for determination is whether the requirements of s 94 of the Act are satisfied by Mr Sinclair in either of the relevant periods.

   EVIDENCE

   Medical Evidence

7. Dr Michael Owen and Dr Alice McNab have been Mr Sinclair’s treating general practitioners. Dr Owen’s reports and/or certificates were dated 30 December 2011, 18 February 2012 and 28 February 2012. He described osteoarthritis of the right knee and ankle which limited activities such as lifting or sitting and standing for long periods, which was expected to persist for more than two years and which was to be treated with analgesics, physiotherapy and pain management. He also identified bursitis of the right shoulder which was expected to improve within the next two years and was to be treated with injections. A report and certificate from Dr McNab were dated 20 March 2012. She identified knee osteoarthritis which produced pain and movement difficulty, which she considered was likely to persist for more than two years. She noted future treatment as comprising physiotherapy and analgesics. Dr McNab also described right shoulder bursitis which gave pain on movement and which was expected to persist for more than two years. She nominated steroid injection as the planned treatment for Mr Sinclair’s shoulder.

   Job Capacity Assessment Reports

8. A Job Capacity Assessment (JCA) report was completed by “KM”, a registered psychologist, and “KE”, a registered nurse, on 7 February 2012. They reported that Mr Sinclair’s right leg condition was permanent in that it had been fully diagnosed, treated and stabilised. Accordingly, they recommended that an impairment rating be allocated under the Impairment Tables. They noted that Mr Sinclair was a “possible surgery candidate” but that this could be affected by public waiting lists if surgery were recommended. They concluded that the condition had been optimally treated and that further treatment was unlikely to give significant improvement in the next two years. Their opinion was that a rating of 10 points from Table 4 of the Impairment Tables was appropriate. The reporters also concluded that the shoulder condition was not permanent in that it had not been fully diagnosed, treated and stabilised. Their opinion was that no impairment rating could be allocated under the Impairment Tables for that condition.

9. A further JCA report was completed on 10 December 2012 by “M”, a rehabilitation counsellor. The reporter came to the same conclusions as did the earlier JCA reporters in relation to each of Mr Sinclair’s impairments. This was reflected in a recommended rating of 10 points for the right leg under Table 4 and no impairment rating for the right shoulder.

10. Each of the two JCA reports concluded that Mr Sinclair did not have a continuing inability to work.

    Mr Sinclair

11. Mr Sinclair’s evidence was that he had suffered injuries in workplace incidents over the years. He described his involvement in various forms of labouring and storeman work. He received compensation payments for some 12 months and then underwent heart surgery. He then spent some time caring for his mother who passed away in late 2011. It was then that he enquired about the disability support pension with Centrelink. Mr Sinclair lives alone and is independent in carrying out his activities of daily living such as cooking, cleaning, maintaining the small area of ground around his rented premises and in self-care.

12. Mr Sinclair agreed that he had been advised to undergo a course of physiotherapy with a practitioner who visited his home town of Inglewood on a periodic basis. He attended on one occasion and was uncertain whether the physiotherapist continued to conduct his town visits. Mr Sinclair agreed that he was to undertake a course of steroid injections for his shoulder but that, after the first procedure in February or March 2012, he discontinued further injections because he believed that they afforded him no benefit. Mr Sinclair described a recent referral for him to undergo an ultra sound procedure for his shoulder in Toowoomba. He had not followed this up because of the cost of the procedure and the inconvenience of having to travel by bus from Inglewood. He agreed that he had been referred, in September 2012, for specialist treatment in Toowoomba for his conditions. He has now been advised by the hospital that he was on the orthopaedic outpatients list and was awaiting an appointment.

    SUBMISSIONS

13. Mr Sinclair submitted that he was severely affected by his right leg and right shoulder condition, that he was not in a position to take up treatment options recommended to him by his general practitioners and that he should be paid the disability support pension.

14. For the respondent, Ms Brooke Carruthers submitted that neither Mr Sinclair’s right leg condition nor his right shoulder condition could be considered permanent in the relevant periods because, on the medical evidence and that of Mr Sinclair, neither was fully investigated, treated and stabilised during those periods. She noted Mr Sinclair’s concern at the treatment options he was required to undergo and submitted that regard should be had to the relevant criteria in The Guide to Social Security Law (the Guide). She also submitted that the evidence in the JCA reports established that Mr Sinclair did not have a continuing inability to work during those periods. Accordingly, Ms Carruthers submitted the disability support pension was not payable to Mr Sinclair.

    CONSIDERATION

15. The JCA report completed in December 2012 is of little significance in Mr Sinclair’s case because it was completed many months after the relevant periods. That is not the case with the first JCA report. Therein, the report concluded that Mr Sinclair’s shoulder condition was not permanent in that it was not fully diagnosed, treated and stabilised. On either of the Impairment Table templates listed above, I am satisfied that their assessment is correct. He did not complete the course of steroid injection treatments recommended by his general practitioner and did so by his own choice after his assessment of its beneficial nature. Neither has he undergone the recommended ultra sound procedure and, in large part, this was due to the need to travel to Toowoomba for the procedure to be completed.

16. The references in Schedule 1B of the Act and in the Determination are that the concept of reasonable treatment includes, respectively, such that is “feasible and accessible ie, available locally at a reasonable cost” and “is available at a location reasonably accessible to the person … at a reasonable cost”. The Guide is published by the respondent to provide assistance to those who administer the Act. While not bound to apply policy instructions of the kind referred to in the Guide, the Tribunal will usually apply the guidelines unless, unlike the situation here, there are cogent reasons in a particular case for not doing so.[2] The Guide provides the following explanation of reasonable treatment:[3]

    It would not be reasonable to expect a person to undergo prohibitively expensive treatment, or treatment that is only available in another country in order to satisfy the permanence criteria.

    [2] See Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634 at 639-645.

    [3] See Guideline 3.6.3.05

17. I am satisfied that the extent and cost of travel between Inglewood and Toowoomba do not fall within that explanation. I am also satisfied that Mr Sinclair’s shoulder condition may not be allocated an impairment rating under the relevant Tables.

18. In the first JCA report, it was concluded that Mr Sinclair’s right leg condition was permanent in that it was fully diagnosed, treated and stabilised. This was on the basis that it had been optimally treated and that further treatment was unlikely to give significant improvement in the next two years. The prospect of possible surgery was noted as well as the likely delay due to public waiting lists. Mr Sinclair’s evidence was that his referral for specialist consultation in a Toowoomba hospital may not occur for 12 months. Despite that observation, there is no current recommendation that Mr Sinclair should undergo surgery and the specialist referral was made in September 2012, some five months after the end of the respective relevant periods. That leads to the conclusion that the right leg condition was not fully treated and stabilised during the relevant periods and that is supported by Mr Sinclair’s failure to complete the course of physiotherapy commenced during the relevant periods. I am satisfied that Mr Sinclair’s right leg condition was not permanent, as defined in Schedule 1B of the Act or in the Determination, during either of the relevant periods.

19. As no impairment ratings are allocated under Schedule 1B of the Act or the Determination during either of the relevant periods, the threshold of 20 points as provided for in s 94(1)(b) of the Act is not met and, on that basis, Mr Sinclair was not qualified for disability support pension during the relevant periods. I also note that, in each of the JCA reports, Mr Sinclair was assessed as not having a continuing inability to work which is an additional requirement for qualification under s 94(2) of the Act.

    DECISION

20. The Tribunal affirms the decision under review.

I certify that the preceding 20 (twenty ) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.

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Associate

Dated 18 December 2012  

Date of hearing	12 December 2012
Applicant	By Telephone
Solicitors for the Respondent	Ms Brooke Carruthers