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

Pollack and Secretary, Department of Social Services (Social services second review) [2020] AATA 874 (17 April 2020)
Division:GENERAL DIVISION
File Number(s):2018/6127
Re:Michael POLLACK
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:The Hon. S Parry, Member
Date:17 April 2020
Place:Hobart

The decision under review is affirmed.
.............. ......[sgd]..........................
The Hon. S Parry, Member
SOCIAL SECURITY – disability support pension – qualification – medical – whether Applicant is qualified to be paid disability support pension – whether the Applicant’s impairments are of 20 points or more under the Impairment Tables - whether Applicant’s impairments were fully diagnosed, treated and stabilised during the qualification period – decision under review affirmed.
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014
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
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Shi v Migration and Registration Authority [2008] HCA 31
Secondary Materials
The Social Security Guide
REASONS FOR DECISION
The Hon. S Parry, Member
17 April 2020
DECISION UNDER REVIEW

This is a review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) made on 1 October 2018, affirming a decision of an Authorised Review Officer (ARO) made 22 August 2018, to reject the Applicant’s claim for Disability Support Pension (DSP) made on 15 December 2016.
ISSUES
In determining whether the AAT1’s decision is the correct or preferable decision, the General Division of the Administrative Appeals Tribunal (the Tribunal) must apply the qualification criteria for DSP in s 94(1) of the Social Security Act 1991 (the Act). In particular, it must consider:
(a)whether, as at the date of claim (19 December 2016) or within 13 weeks of that date, the Applicant had a physical, intellectual or psychiatric impairment for the purpose of s 94(1)(a) of the Act; and
(b)if so, whether the Applicant had an impairment rating of at least 20 points on the Impairment Tables contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) for the purpose of s 94(1)(b) of the Act; and
(c)if so, whether the Applicant has a continuing inability to work, as defined in s 94(2) of the Act, for the purpose of s 94(1)(c) of the Act.
FACTS
On 23 March 2016, the Applicant lodged his first claim for DSP with the Department (T42, p249).
On 4 May 2016, a Job Capacity Assessment (JCA) Report was completed (T7, p111). The Applicant’s impairments were assessed as follows:
(1) neck disorder was fully diagnosed, but not fully treated and stabilised, and
(2) heart condition was fully diagnosed, but not fully treated and stabilised.
The Applicant’s work capacity within two years with intervention was assessed at 15-22 hours per week (T7, p114).
On 24 May 2016, the Applicant’s claim was rejected.
On 19 December 2016, the Applicant lodged a second claim for DSP, which is the subject of this application (T11 p121). The Applicant listed his disabilities as ischaemic heart disease, peripheral vascular disease, bilateral lower limb claudication, and vertebrae damage in the neck and back (T11, p146).
On 12 April 2017, a further JCA Report was completed (T13, p152). The Applicant’s impairments were assessed as follows:
(1) neck and back pain as fully diagnosed, but not fully treated at the time of assessment
(2) peripheral vascular disease as fully diagnosed, but not fully treated and stabilised, and
(3) ischaemic heart disease as fully diagnosed, treated and stabilised with a mild functional impairment rating 5 points under Table 1 – Functions requiring Physical Exertion and Stamina (T13, p155).
The Applicant’s capacity for work within two years with intervention was assessed at 15- 22 hours per week (T13, p157). The assessor also noted that the Applicant consented to being referred to a proposed program of support.
On 19 July 2017, the Department rejected the Applicant’s second claim for DSP and advised him of the decision (T16, p162).
On 29 September 2017, the Applicant was seen by Dr Stock, Respiratory Physician (T18, p165).
On 27 October 2017, Dr Stock diagnosed the Applicant with carcinoma of the left lung (T21, p171).
On 14 May 2018, the Applicant lodged his third claim for DSP (T32, p184). The Applicant was notified on 26 October 2018 that this claim for DSP had been granted from 14 May 2018 (T41, p247). The Tribunal notes that this claim is not the subject of this review.
After the rejection of his second DSP claim, the Applicant sought a review by an Authorised Review Officer (ARO). On 21 August 2018, a Health Professional Advisory Unit (HPAU) Opinion was provided in respect to the second DSP claim (T36, p218). The HPAU officer opined that the only condition that was fully diagnosed, treated and stabilised during the qualification period of the second DSP claim was the Applicant’s ischaemic heart condition which could be assigned 5 points under Table 1 – Functions affecting Physical Exertion and Stamina.
On 22 August 2018, an ARO affirmed the decision to reject the Applicant’s second claim for DSP (T37, p225).
On 1 October 2018, following an application for a review, the AAT1 affirmed the decision to reject the Applicant’s second claim for DSP (T2, p3).
On 24 October 2018, the Applicant applied to the General Division of the Tribunal for a second review of the decision to reject his second claim (T1, p1).
The Applicant has not provided any further medical evidence since lodging this current appeal.
LEGISLATION AND POLICY
The relevant legislation is set out in the following instruments:
(1)the Act
(2)the Social Security (Administration) Act 1999 (Administration Act)
(3)the Impairment Tables, and
(4)the Social Security (Active Participation for Disability Support Pension) Determination 2014.
Qualification for DSP
The qualification criteria for DSP are set out in s 94 of the Act as follows:
94 Qualification for disability support pension
1A person is qualified for disability support pension 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)one of the following applies:
(i) the person has a continuing inability to work; ...
The qualification criteria for DSP are cumulative, and if any one of the criteria are not satisfied the person will not be qualified for DSP. The Social Security Guide at 3.6.3.05 importantly notes:
The determination of an impairment rating and the assessment of CITW are 2 distinct assessments based on 2 different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Tables and the requirement that the person has a CITW, are of equal importance.
Qualification period
Section 42 of the Administration Act provides that a person's ‘start day’ in relation to a social security payment is the day worked out in accordance with Schedule 2 to the Administration Act. Clause 3 of Schedule 2 to the Administration Act provides the general rule for a start day as the day on which a claim is made. Otherwise, a person's qualification for DSP is to be considered during the 13 weeks following the date on which the claim was made, in accordance with subclause 4(1) of Schedule 2 to the Administration Act (s 13 Administration Act). The qualification period in this case is from 19 December 2016 to 19 March 2017.
As there is a temporal element, the Applicant’s qualification for DSP can only be assessed in the above qualification period. Any deterioration or change to his medical conditions suggesting he may have become qualified at a later time is irrelevant to the Tribunal’s consideration of his impairments at the qualification period (see Shi v Migration and Registration Authority [2008] HCA 31, [144] – [145]).
In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 the AAT stated (at [34]):
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances [emphasis added].
Re Bobera was cited with approval in the case of Fanning and Secretary, Department of Social Services [2014] AATA 447, where DP Handley made the following pertinent observations:
In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an Applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the qualification period may still be relevant, but only in so far as they are referrable to the Applicant’s condition during the qualification period.
This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an Applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.
The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “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” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the qualification period is not directly relevant to the Tribunal’s decision.
In the recent decision of Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29], the Federal Court affirmed the principle (as discussed in Fanning and Harris referred to in Bobera above) that medical reports that come into being after the qualification period will only be relevant to the extent that they refer to the claimant’s condition during the qualification period.
Impairment Tables
The Impairment Tables, made under s 26(1) of the Act, set out rules for assessing the level of functional impairment of conditions and assigning impairment ratings (Paragraph 6, Impairment Tables).
Paragraph 6(1) states that a person’s impairment must be assessed, taking into account the person’s abilities and not what they choose to do or not to do or what others do for the person.
Paragraph 6(3) states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent (in accordance with paragraph 6(4) of the Impairment Tables) and the impairment that results from that condition is, in light of the available evidence, more likely than not to persist for more than two years.
Therefore, if the Applicant’s condition causing impairment is not “permanent”, the impairment resulting from this condition cannot be assigned an impairment rating.
Paragraph 6(4) provides the meaning of “permanent” for the purposes of paragraph 6(3). A condition is permanent if it:
(a)has been fully diagnosed by an appropriately qualified medical practitioner;
(b)has been fully treated;
(c)has been fully stabilised; and
(d)is more likely than not, in light of available evidence, to persist for more than two years.
Under paragraph 6(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 paragraph 6(4)(a) and (b), the following is to 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 is planned in the next two years.
Paragraph 6(6) defines “fully stabilised” for the purposes of s 6(4)(c) and s 11(4) of the Impairment Tables. It provides that a condition is fully stabilised if:
(a)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
(2)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Paragraph 6(7) provides that, for the purposes of s 6(6) of the Impairment Tables, 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.
Paragraph 8 of the Impairment Tables sets out information that is not to be considered when applying the Impairment Tables. Symptoms reported by a person in relation to their condition can only be considered where there is corroborating evidence and, unless required under the Impairment Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Paragraph 10(1) of the Impairment Tables states that table selection is to be made applying the following steps:
(a)identify the loss of function; then
(b)refer to the Table related to the function affected; then
(c)identify the correct impairment rating.
The application of the Impairment Tables to the Applicant’s circumstances is discussed below.
Impairments
The Tribunal accepts that the Applicant had impairments for the purpose of s 94(1)(a) of the Act at the qualification period arising from:
(1)Ischaemic heart disease
(2)Neck and back pain, and
(3)Depression.
These impairments will be considered below.
The Tribunal also accepts that the Applicant has been diagnosed and treated for carcinoma of the left lung. However, as the condition was not diagnosed until October 2017after the relevant qualification period, the Tribunal will not consider this condition any further.
Condition 1 – Ischaemic heart disease
On 16 April 2015, Dr Foster completed a Medical Certificate stating the Applicant had ischaemic heart disease. It stated he had undergone bypass grafting surgery, was on Aspirin and Clopidogrel and undertaking regular medical reviews (T4, p98).
On 19 January 2016, Dr Roth completed a Medical Report for Assessor (T5, p99). In response to the question as to whether the person had any medical conditions that were generally well managed or caused minimal or limited impact, Dr Roth answered ischaemic heart disease, with a bypass in April 2015 and that the Applicant was “unable to drive commercial vehicles” (T5, p108).
On 29 September 2017, Dr Stock, Respiratory Physician, reported that he had previously seen the Applicant regarding a pulmonary embolus and chronic left-sided chest pain. He reported that the applicant was “discharged in 2014” and reported “ongoing left-sided chest pain which he now contributes to coronary artery bypass surgery 2-3 years ago; this is not changing over time”. He also reported the applicant “tells me his exercise tolerance was unlimited 12 months ago” and that the Applicant’s “cardiovascular examination was unremarkable” (T18, p165).
The Tribunal accepts that at the qualification period, the Applicant’s heart condition was fully diagnosed, treated and stabilised and satisfied the criteria for an impairment rating of 5 points under Table 1 on the basis that he had occasional cardiac pain when performing physical activities. This is supported by the opinion of the HPAU dated 21 August 2018, which found that descriptors (1)(a)(ii) and (b) were met. In addition, the reports of Dr Stock and Dr Roth both noted only minimal functional impact from the condition.
Condition 2 – Neck and back pain
On 19 January 2016, Dr Roth reported that the Applicant had chronic neck pain following a fracture in the neck on 20 March 1997 (T5, p102). The condition was treated with analgesics, but it impaired the Applicant’s concentration and decision making and caused neck pain with prolonged standing or with physical activity (T5, p104).
On 2 May 2016, Dr Frampton reported that the Applicant had chronic neck and back pain, for which he had been “trialling various analgesic medication” and had referred the Applicant for physiotherapy (T6, p110).
On 28 July 2016, Mr Robert Evans, physiotherapist, provided a report to Dr Frampton. Mr Evans reported the Applicant had a long history of pain, which the Applicant noted had become significantly worse after his heart surgery (T8, p117). Mr Evans reported:
At this time he is not responding to an outpatient physiotherapy approach. I believe a multidisciplinary assessment intervention, such as at the Persistent Pain Service, could assist with his management as psychosocial factors appear to be having a significant impact on his pain.
On 15 December 2016, Dr Frampton completed a Medical Certificate (T10, p120). This stated the Applicant had been referred, in June 2016, to Royal Hobart Hospital Pain Management Unit and was awaiting an appointment.
On 15 March 2017, Dr Frampton completed a further Medical Certificate, noting referrals to the Pain Management Unit and neurology clinic (T12, p151).

On 7 May 2017, Dr Ludeke reported the Applicant had “ongoing severe disabling pain in his neck and lower back accompanied by light-headedness and dizzy spells and generalised lethargy” (T14, p159).
Based on the evidence before it, the Tribunal finds that at the qualification period, the Applicant’s neck and back pain was fully diagnosed, but not fully treated and stabilised. At the qualification period, the Applicant was waiting for an appointment with the Pain Management Clinic and neurology clinic at Royal Hobart Hospital to investigate treatment options. On 29 September 2017, Dr Stock reported the Applicant “was sent for a CT scan of his thoracolumbar spine earlier this month because of his increasing back pain, which probably all stems from a major motor vehicle accident”. Further, the Applicant had undergone a “CT of his brain and cervical spine just a few weeks before in response to him experiencing severe headaches” (T18, p165). Also of significance is the HPAU Opinion of 21 August 2018 (T36, p218), which considered the condition was not fully treated and stabilised, as the Applicant was awaiting specialist assessment (T36, p222).
Condition 3 – Depression
On 3 October 2017, Karen Chillcott, Clinical Psychologist, reported that the Applicant had been referred to her by his GP “due to worsening depression following numerous medical issues” (T19, p167). She stated that “on the Beck Anxiety scale he rates in the moderately high range … on the Beck Depression inventory he rates in the moderately high range”. Ms Chillcott further stated that “Mr Pollack has a chronic mental illness that is fully treated and stable and he is unlikely to improve within two years”.
On 3 July 2018, Ms Chillcott reported the Applicant had chronic depression (T34, p216).
The Tribunal finds that at the qualification period, the Applicant’s depression had not been diagnosed in accordance with the Introduction to Table 5 – Mental Health Function. The introduction to Table 5 states that “The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).” The Tribunal can find no evidence that there was a diagnosis by a psychiatrist or clinical psychologist at the qualification period. Therefore, the condition cannot be considered as fully diagnosed and the functional impact of the condition cannot be considered.
Conclusion
The Tribunal finds that, at the qualification period, the Applicant had a total impairment rating of no more than 5 points under Table 1 – Functions requiring Physical Exertion and Stamina. On that basis, the Applicant did not meet the qualification criteria under s 94(1)(b) of the Act, therefore the Tribunal does not need to consider the provisions of Section 94(1)(b).
The Tribunal affirms the decision under review

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of The Hon. S Parry, Member

......................[sgd]...............................
Associate
Dated: 17 April 2020

Date(s) of hearing: 20 August 2019

Applicant:
In person

Solicitor for the Respondent: Mr Gary Khoo

[2020] AATA 874

17 April 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date(s) of hearing:	20 August 2019
Applicant:	In person
Solicitor for the Respondent:	Mr Gary Khoo