Quinn and Secretary, Department of Social Services (Social services second review)
[2017] AATA 431
•6 April 2017
Quinn and Secretary, Department of Social Services (Social services second review) [2017] AATA 431 (6 April 2017)
Division
GENERAL DIVISION
File Number
2015/5597
Re
Thomas Quinn
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr Andrew Cameron, Member
Date 6 April 2017
Place Melbourne The Tribunal affirms the decision under review.
..............................[sgd].........................................
Mr Andrew Cameron, Member
SOCIAL SECURITY – application for disability support pension – whether qualified –whether impairments attract a rating of 20 points or more under Impairment Tables – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security Act 1991 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Cases
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922Re Karaman and Secretary, Department of Social Services [2016] AATA 597
REASONS FOR DECISION
Mr Andrew Cameron, Member
6 April 2017
INTRODUCTION
Mr Thomas Quinn seeks a review of the decision of the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal made on 8 September 2015. The SSCSD affirmed the decision of an Authorised Review Officer (ARO) made on 5 June 2015 to reject his claim for the disability support pension (DSP).
By way of background:
(a)Mr Quinn is currently 62 years of age. He is in receipt of Newstart Allowance, with a start date of 6 March 2013.
(b)Mr Quinn made a claim for the DSP with the Department of Human Services (Department) on 4 February 2015.
(c)The Department rejected Mr Quinn’s application for the DSP on 9 March 2015.
(d)The ARO reviewed and affirmed the decision to reject Mr Quinn’s DSP claim on 5 June 2015.
(e)Mr Quinn sought review by the SSCSD and, on 8 September 2015, it reviewed and affirmed the decision to reject his claim for the DSP.
(f)On 22 October 2015, Mr Quinn lodged an application for second review by this Tribunal.
QUALIFICATION FOR DSP
Broadly, this Tribunal must determine whether Mr Quinn qualified for the DSP as at the date of his claim, being 4 February 2015, or within 13 weeks of that date: clause 4 of Schedule 2 of the Social Security (Administration) Act 1999 (Cth).
Section 94 of the Social Security Act 1991 (Cth) (Act) sets out the qualification requirements for the DSP. Section 94 of the Act provides, among other things, that:
(1) A 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;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
…
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases – either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
The Tribunal can only consider an applicant’s qualification for DSP within that qualification period: Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] as affirmed in Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1 at [27] – [28].
As held in Re Karaman and Secretary, Department of Social Services [2016] AATA 597 at [3], medical reports produced after the relevant date are only relevant to the extent that they are referrable to the person’s condition during the relevant period.
ISSUES FOR DETERMINATION
The issues this Tribunal has to consider as at 4 February 2015 or within 13 weeks of that date, namely 6 May 2015 are as follows:
(a)first, whether Mr Quinn has a physical, intellectual or psychiatric impairment;
(b)secondly, whether the impairment(s) attract a total impairment rating of at least 20 points under the impairment tables. The tables are contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Determination) and are made pursuant to s 26(1) of the Act; and
(c)thirdly, whether Mr Quinn has a continuing inability to work as defined in s 94(2) of the Act.
In considering this matter, I have had regard to:
(a)the oral submissions and oral evidence of Mr Quinn;
(b)an email sent to the Tribunal by Mr Quinn attaching cardiology results from Box Hill Hospital, dated 22 August 2016;
(c)an email sent to the Tribunal by Mr Quinn entitled, “Re: Medical Certificate and Coronary Diagnostics”, dated 8 September 2016;
(d)the T-documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
(e)a “Dear Doctor” letter prepared by the Department to assist Mr Quinn in ensuring that any additional medical material submitted for the purpose of his application addresses the eligibility criteria for DSP, dated 29 February 2016;
(f)letter from Dr Anthony Boers, Consultant Rheumatologist and General Physician, dated 7 March 2016 and attachment;
(g)letter from Dr Tefo Mosetlhi, The Healthcare Centre, dated 14 March 2016;
(h)letter from Dr Wayne Ng, Department of Neurosurgery St Vincent’s Hospital, dated 28 June 2016;
(i)angiogram results from Eastern Health undertaken on 10 August 2016;
(j)a Centrelink Medical Certificate, dated 8 September 2016; and
(k)the Secretary’s statement of issues, facts and contentions and oral submissions by the Secretary’s solicitor, Ms Chan.
The Secretary conceded, and I agree, that Mr Quinn satisfied the first requirement under s 94(1)(a) of the Act. In particular, Mr Quinn was suffering from the following conditions:
(a)back pain and impaired mood and cognition;
(b)ischaemic heart disease; and
(c)fibromyalgia syndrome;
At the commencement of the hearing, Mr Quinn stated that the two principal conditions that “prevented him from working” were a “coronary artery condition”[1] and the “spine”[2].
[1] Mr Quinn subsequently referred to an “occlusion in 7 or 8 arteries of the heart”.
[2] Mr Quinn stated that he suffered from a “prolapsed disk, a narrowing of the spinal canal, a series of nerve impingements of the thoracic spine and some compression of the lumbar spine.”
IMPAIRMENT RATING
I need to consider whether Mr Quinn’s impairments attracted a total impairment rating of at least 20 points under the impairment tables during the relevant period.
Section 6(3) of the Impairment Determination provides that I can only assign an impairment rating if a condition affecting Mr Quinn which causes 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.
Pursuant to s 6(4) of the Impairment Determination, a condition is “permanent” if the following is satisfied:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(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.
In determining whether a condition has been “fully diagnosed by an appropriately qualified medical practitioner” and whether it has been “fully treated”, the following must be considered under s 6(5) of the Impairment Determination:
(a)whether there is corroborating evidence of the condition;
(b)whether treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
A condition is “fully stabilised” under s 6(6) of the Impairment Determination 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.
As to the meaning of “reasonable treatment” in s 6(6), s 6(7) of the Impairment Determination provides that reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the person.
Once it is determined that Mr Quinn has a permanent impairment and that the permanent impairment is likely to persist for at least 2 years, I can then apply the impairment tables in the Impairment Determination.
Pursuant to s 8 of the Impairment Determination, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Section 10(5) of the Impairment Determination provides that “where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table”. Section 10(6) of the Impairment Determination then goes on to provide that where a common or combined impairment resulting from two or more conditions is assessed in accordance with s 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Back pain
The Secretary accepted that Mr Quinn’s back condition was 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.
An MRI was performed on Mr Quinn on 26 May 2015 (upon referral from rheumatologist, Dr Anthony Boers) in which it was found that there were degenerative changes in the spine with bulges at C3-4, C5-6 and C6-7 causing indentation of the thecal sac.
The critical issue for consideration by this Tribunal was what, if any, impairment rating would be ascribed to Mr Quinn’s back condition.
Dr Au, general practitioner, in a report dated 19 January 2015 stated among, other things, with respect to Mr Quinn’s chronic lower back pain, that his symptoms included:
Chronic lower back discomfort/pain, not able to do manual activities or sit for prolonged periods.
Also associated stiffness and back spasm (emphasis added).
In a report from physiotherapist, Alan Yates, dated 16 December 2014, it stated:
…Currently he has difficulty with any manual activities pushing, pulling lifting and these result in increased pain, stiffness and spasm of his paraspinal muscles.
Moreover he now struggles to sit for more than hour.
I believe that he has chronic disc degeneration in his spine and that careful management will be required in future.
He will not be able to do manual activities or sit for prolonged periods. He should also avoid jarring and travelling on uneven surfaces (emphasis added).
The Employment Services Assessment Report, dated 12 February 2015, stated with respect to Mr Quinn’s spinal disorder:
Functional impairment: Reduced tolerance to standing, walking, lifting and bending, sitting. Stands and walks 10-15 minutes currently, sits and drives approx. 30-60 mins. No neck pain was reported.
In written submissions prepared by Mr Quinn put before the Tribunal, dated 8 September 2015, he stated:
There are days when my Spinal pain is very severe around 8-10 because of the activity being performed, like mowing the lawn or driving for more than 30 minutes.
…
As a person experiencing severe functional impact involving spinal function: I cannot bend forward to pick up light objects from a desk height or remain seated for at least 10 minutes without experiencing severe pain requiring medication.
It may be reasonable and appropriate to lump multiple conditions such as Spinal, Upper Limb and Lower Limb together as they are interrelated.
If so then my rating with regard to Spinal Canal Stenosis would exceed 20+ points.
In response to these submissions, I make the following observations.
First, whilst Mr Quinn submitted to the Tribunal that he was unable to perform any overhead activities, unable to bend forward to pick up a light object[3] and unable to remain seated for at least 10 minutes there was no other, in my view, corroborating evidence to this effect. When asked by this Tribunal whether he could identify such corroborating evidence, Mr Quinn referred to Mr Yates’ letter dated 16 December 2014 which stated, among other things, that Mr Quinn “struggles to sit for more than an hour” and “[h]e will not be able to do manual activities or sit for prolonged periods.”
[3] Mr Quinn said during his evidence that he could not lift a bottle of coke with his right hand.
Furthermore, Mr Quinn conceded under cross-examination that he could shop independently, load items into the washing machine and carry items from the washing machine.
In the Job Capacity Assessment Report, dated 5 March 2015 (JCA Report), it was stated that:
…He is able to get out of a chair without assistance, can move his head to look in all directions, and bend to knee height and straighten without difficulty (but would have trouble doing such repetitively). Mr Quinn is able to remain seated for more than 10 minutes (emphasis added).
Mr Quinn stated to this Tribunal that the answers he gave to the JCA assessor were “too positive”, were provided “in a state of ignorance” and “would have been very different if I had known my health and what it meant…”.
Nevertheless, the evidence referred to above, in my view, is indicative of his spinal condition having a moderate functional impact on his activities and not a severe functional impact as set out in the Impairment Determination. On that basis, a rating of 10 points under table 4 should be ascribed to Mr Quinn’s back condition.
Secondly, s 10(4) of the Impairment Determination provides that when using more than one table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one table. The impairments that Mr Quinn refers to arise from his spinal condition and, accordingly, should be considered under the one table – namely, table 4 of the Impairment Determination.
Impaired Mood and Cognition, Mental Health
Dr Au in a letter dated 6 January 2015 stated:
He has seen Dr Alice Lac, consultant geriatrician recently and she thinks that her (sic) cognition is likely impacted by his current comorbidities as well as developing depression. He often denies that he is depressed. He has been suggested to have a trial of antidepressants but refused. He tried a few sessions of counselling but had refused more…
In Dr Au’s report, dated 19 January 2015 it stated that with respect Mr Quinn’s mental health:
Continue review at…clinic in 6 months time awaiting psychiatrist…
In a letter from psychiatrist, Dr Yogendra Kumar Agrawal, dated 18 April 2015, it stated:
On mental state examination, he presented well-kempt and tidy, cooperative, well-engaged, obese male, maintaining good eye-to-eye contact and rapport-established. He had depressed and anxious affect and was preoccupied with his ongoing stressors with neighbour, who has been stalking, threatening, and causing several other kinds of problems from three years, and on top of it, he is expressly preoccupied with his physical issues. He denied suicidal ideations. He has intact judgment and insight.
….
I request you to consider anti-depressant. He seems to be reluctant to consider this option. I offered him Lexapro or Pristiq. He should be started with low dose and should be increased slowly over two to three weeks to get full dose in case of Lexapro 20mg or in case of Pristiq, it is 200mg per day. If he continues to present with cognitive problems despite a good trial with antidepressant medication, then I would recommend him to see a neuropsychologist for detailed neuro-cognitive assessments to have a good idea on his cognitive profile… (emphasis added).
Mr Quinn conceded in his oral evidence that this condition was not “fully diagnosed and stabilised”. Having regard to the evidence presented above, I have also reached that view. In the absence of the condition being fully diagnosed, fully treated and fully stabilised, I am unable to ascribe a rating to the condition.
Ischaemic Heart Disease
During the course of the hearing, Mr Quinn produced the results of an angiogram from Eastern Health stating that he had undertaken the procedure on 10 August 2016.
The results of the angiogram indicated, among other things, that “Ectatic and diffuse CAD. Severe distal LAD stenosis in a small vessel not amenable to PCI and likely responsible for positive stress test. 70% eccentric mid LAD and primal RCA stenosis”. Despite the production of the results of the angiogram little further evidence was put before the Tribunal regarding the functional impact of the condition on Mr Quinn, albeit Mr Quinn referred to himself as a “ticking time-bomb” during the course of the hearing.
Dr Au, in the report dated 19 January 2015, does not refer to Ischaemic heart disease. Furthermore, cardiology registrar Dr Jithin Sajeev in a letter, dated 18 November 2014 stated:
…Since we last saw him he does not complain of significant chest discomfort and I believe this was non cardiac in nature given that he was able to exercise up to 2km each day and swim several times a week with no exercise limitations or angina…
….
My impression is that this man has stable chronic artery disease and his issues are largely related to his fibromyalgia. I have advised him to continue his current medical therapy for ischaemic heart disease but I have also counselled him regarding involvement with a fibromyalgia group or a chronic pain program for ongoing management of his fibromyalgia (emphasis added).
Mr Quinn stated in his oral evidence before the Tribunal that the functional impact was worsening. He said that if he “swam one lap, I would be huffing and puffing.”
The Secretary seemed to concede that Mr Quinn’s heart disease was fully diagnosed, fully treated and fully stabilised and that it is more than likely to persist for more than 2 years. Assuming this to be the case, I am of the view a zero impairment rating must be ascribed to Mr Quinn’s heart condition in light of the lack of corroborated evidence regarding its functional impact on Mr Quinn in the relevant period.
Fibromyalgia Syndrome
Dr Boers, consultant rheumatologist, in a report dated 7 April 2005 stated that Mr Quinn has had the condition for some 10 years. He further stated that:
…He has pain and tenderness in all his joints and muscle groups and describes tightening of the cerebral cortex. Most days he tends to wake up with brief early morning stiffness lasting only ten minutes but he is troubled by persistent whole body pain throughout the day. Recent investigations revealed a slightly raised CK and a positive ANA for which he is under going further investigation and will need a number of trips to Melbourne to clarify this situation. With respect to his fibromyalgia the medical treatments necessary include physiotherapy, hydrotherapy and pain management clinic…
Dr Sun, general practitioner, wrote in a letter dated 5 October 2005 that:
Mr Quinn has been presenting with multiple pain and tenderness in all the joints and muscle groups. He was initially diagnosed as having fibromyalgia by Dr Morand, the rheumatologist, in 1997.
In a letter from Dr Boers, dated 7 March 2016, he stated among other things:
He [Mr Quinn] has had severe muscle aches, pains, fatigue…since 2008 when I have been looking after him. He has had severe mechanical spinal issues as well and MRI in 2015 confirmed multifocal degenerative issues. (emphasis added)
Whilst it appears that Mr Quinn’s fibromyalgia was fully diagnosed, treated and stabilised and that it is more than likely to persist for more than 2 years, I agree with the Secretary’s submission that there was little evidence (including corroborative evidence) as to the functional impact of the fibromyalgia on Mr Quinn in the relevant period. On that basis, a zero impairment rating must be ascribed to Mr Quinn’s fibromyalgia.
CONTINUING INABILITY TO WORK
Section 94(1)(c) of the Act provides that Mr Quinn must have had a continuing inability to work. Although it is unnecessary for me to consider this as Mr Quinn’s impairments only rate 10 points under the Impairment Determination, I will nonetheless address it for the sake of completeness.
Section 94(2)(aa) of the Act provides, among other things, that a person has a continuing inability to work because of impairment if the Secretary is satisfied that, in a case where the person’s impairment is not a severe impairment within the meaning of subsection 94(3B) of the Act, the person has actively participated in a program of support.
Assuming that Mr Quinn does not have a “severe impairment” (i.e. 20 points under the one impairment table) but in any event attracts 20 points in total, it is necessary for me to consider whether he has actively participated in a program of support.
Section 94(5) of the Act defines a “program of support” as a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i)is funded (wholly or partly) by the Commonwealth; or
(ii)is a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
Under s 94(3C) of the Act, a person has “actively participated” in a program of support if they have “satisfied the requirements set out in the relevant legislative instrument made by the Minister for the purposes of this subsection” (i.e. the Social Security (Active Participation for Disability Support Pension) Determination 2014) (POS Determination).
Section 7 of the POS Determination provides, among other things, that a person has actively participated in a program of support if they have complied with the requirements of and participated in a program for at least 18 months in the three years immediately prior to the claim, or if:
(a)the person completed the entire program of support that was less than 18 months duration;
(b)the person’s program of support was terminated prior to the claim because the person was unable solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program; or
(c)the person was participating in a program of support at the date of claim and they were prevented, solely due to their impairments, from improving their capacity to find, gain or remain in employment through continued participation.
Mr Quinn had not participated in a program of support for 18 months during the three years before he made the claim with the Department on 4 February 2015. Whilst he was registered with Workways Australia Limited (Workways) from 28 February 2013 to 20 January 2015, he was exempt from the activity test from 19 November 2013 to 20 June 2014 and from 8 October 2014 to after the date of the claim. On that basis, he had only participated in a program of support for approximately 13 months (as opposed to 18 months as required under the POS Determination).
During the course of the hearing, Mr Quinn made two submissions on this point, namely he was not “exempt” from the program of support but instead “incapacitated” from participating in the program of support and, in any event, he was informally attending Workways on a weekly basis, including conferring with their staff. It seems to me that s 8 of the POS Determination is the answer to these submissions. Section 8 provides that:
To avoid doubt, any period during which a person who has started a program of support does not participate in the program for any reason (including as a result of any exemption, relief or suspension from the program) is not to be counted in determining, for the purposes of section 7, the length of the period during which the person has participated in the program (emphasis added).
Furthermore, in my view, Mr Quinn’s impairments are not sufficient to prevent him from doing any work independently of a program of support within the next 2 years and from preventing him from undertaking a training activity in the next 2 years.
Section 94(5) of the Act provides that “work” means:
Work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
Section 94(5) of the Act also provides that “training activity” means:
One or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a)education;
(b)pre-vocational training;
(c)vocational training;
(d)vocational rehabilitation;
(e)work-related training (including on-the-job training).
The JCA Report stated that Mr Quinn had a baseline work capacity of 15 – 22 hours per week and within 2 years with intervention a capacity for 23 – 29 hours.
Whilst physiotherapist Mr Yates observed in his letter dated 16 December 2014 that Mr Quinn’s “capacity for work has therefore been restricted and most jobs will continue to cause him exacerbation to his spinal condition”, I prefer the view expressed by the rehabilitation counsellor contained within the JCA Report who has specific expertise and experience in determining a person’s work capacity. My view is fortified by reason of the fact that Mr Quinn conceded, during the course of the hearing, that he would write various letters to the editor and undertake associated research for such letters. Accordingly, I am not satisfied that Mr Quinn has a continuing inability to work.
CONCLUSION
In light of the foregoing, Mr Quinn’s claim for DSP cannot succeed and the decision under review must be affirmed.
3. I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of
Mr Andrew Cameron, Member............................[sgd]............................................
Associate
Dated 6 April 2017
Date of hearing 26 September 2016 Applicant In person Advocate for the Respondent Ms Vincci Chan, Solicitor Solicitors for the Respondent Department of Human Services,
Freedom of Information & Litigation Branch
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