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

Rae and Secretary, Department of Social Services (Social services second review) [2020] AATA 2629 (31 July 2020)
Division:General Division
File Number:2020/0319
Re:Daniel Rae
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:Ms L Rieper, Member
Date:31 July 2020
Place:Hobart

The Tribunal affirms the decision under review.
..................................[sgd].....................................
Ms L Rieper, Member
SOCIAL SECURITY – disability support pension – qualification – medical – whether the Applicant had an impairment rating of 20 points of more under the Impairment Tables - Tribunal unable to assign impairment ratings – decision affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Ms L Rieper, Member
31 July 2020

Mr Rae seeks a review of a decision made in the Social Security and Child Support Division of this Tribunal on 3 July 2019.
The issue to be determined is whether Mr Rae was qualified for disability support pension (DSP) following a claim made by him on 2 October 2018.[1]
[1] T18, T documents, pp139-171.
A hearing was held on 26 June 2020 by telephone. Mr Rae appeared on his own behalf, and the Respondent was represented by Ms Heggen of Services Australia.
QUALIFICATION FOR DISABILITY SUPPORT PENSION
DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week.
Subsection 94(1) of the Social Security Act 1991 (“the Act”) sets out the qualifications for DSP:
94(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;…
The Tribunal must determine whether Mr Rae met the qualification for disability support pension at the date of his claim, or within 13 weeks of that date, which in this case would be by 1 January 2019 (“the qualification period”). The Tribunal may consider medical evidence (or other evidence) provided subsequent to a claim but the evidence must pertain to Mr Rae’s condition and the status of his treatment at the time of his claim or during the qualification period.
In order to satisfy paragraph 94(1)(b) of the Act, Mr Rae must have an impairment rating of at least 20 points in total. The Impairment Tables are a Ministerial Determination under subsection 26(1) of the Act and are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”).
The Impairment Tables set out the rules for assessing an impairment and assigning a rating. An impairment rating can only be given to a medical condition that is permanent. Permanent means:
(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.
(see paragraph 6(4) of the Impairment Tables).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, it is necessary to consider:
(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.
(see paragraph 6(5) of the Impairment Tables).
Fully stabilised means:
(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.
(see paragraph 6(6) of the Impairment Tables).
The Respondent concedes, and the Tribunal agrees, that Mr Rae has medical conditions that cause impairment and, therefore, he satisfied paragraph 94(1)(a) of the Act during the qualification period.
It follows that the issues the Tribunal must determine are whether, during the qualification period, Mr Rae had:
(a)an impairment rating of 20 points or more under the Impairment Tables; and, if so
(b)a continuing inability to work as defined in subsection 94(2) of the Act.
CONSIDERATION
When Mr Rae completed his claim form on 2 October 2018, he described the medical condition that significantly affected his ability to work as fractures of his spine at T11, T3, T4 and T5. He did not note any other medical conditions.
Medical evidence in respect of other medical conditions was provided to the Respondent and so has been considered by the Respondent as part of its consideration of Mr Rae’s claim and in its submissions to the Tribunal.
Spinal condition
Mr Rae was involved in an incident at work on 23 October 2016 in which he suffered a seizure which was subsequently discovered to have resulted in fractures to the thoracic spine. He made a worker’s compensation claim, which he told the Tribunal has been successful in court and on the day of the Tribunal hearing he was waiting for confirmation that an appeal had not been lodged.
Dr Shawki, general practitioner, provided medical certificates dated 14 December 2016, 22 February 2017 and 3 May 2017.[2] He gave a diagnosis of a T11 vertebral crush fracture – T4, T5, T6. He described the condition as temporary, noted that Mr Rae was using a brace and had a limited range of movement. He gave the prognosis as “likely to show considerable improvement within 2 years.”
[2] T13, T documents, pp 129-130; T14, T documents, pp 131; T 15, T documents, pp 132.
The only medical evidence before the Tribunal which is contemporaneous with Mr Rae’s claim is a health summary provided by Dr Jerew, general practitioner, dated 25 September 2018.[3] He noted that Mr Rae’s current active problems included a T11 crush fracture and noted that Mr Rae was in severe pain on a daily basis, despite being on strong pain killers.
[3] T17, T documents, pp 135-138.
Dr Al Khawaja, neurosurgeon, completed a questionnaire associated with an apparent claim on Mr Rae’s life insurance on 16 October 2018.[4] He described the primary diagnosis as seizures and the secondary diagnosis as T4, T5, T11, T6 fractures. He had first seen Mr Rae on 2 March 2017 and had consulted with him on six occasions. He noted Mr Rae had a history of seizures resulting in an admission at Lithgow Hospital where he was found to have multiple fractures to the thoracic spine. His symptoms were described as severe back pain. He described Mr Rae as being able to stand and sit for 20 minutes and drive for 30-45 minutes. He noted that there were no restrictions on Mr Rae’s ability to walk beyond being careful with walking on uneven surfaces. Mr Rae could not bend or climb. He did not describe any of the restrictions as permanent. He recommended pain management.
[4] T21, T documents, pp176-180.
In his evidence to the Tribunal Mr Rae said that he had been accepted into a pain clinic but did not attend. He said that he was told that if he commenced a pain management program, he would be ineligible for DSP until it was completed, and he did not want to be put on any more drugs as he felt he was taking enough pain killers. He also said in cross-examination that he did not believe he needed pain management.
Mr Rae’s evidence to the Tribunal was that he is still in considerable pain, he cannot return to work because he is unable to lift more than 10 kilograms and in his opinion physiotherapy in a swimming pool was the best treatment and all he could do.
The Respondent’s position is that Mr Rae’s spinal condition was not fully treated or stabilised as at the date of his claim or during the qualification period, because he had not attended the pain management program recommended by Dr Al Khawaja.
It was clear from Mr Rae’s evidence that his main concern in respect of his spinal condition is the pain that he now suffers. The Tribunal accepts his evidence regarding the extent of the pain.
The Impairment Tables are designed to assess the level of functional impact of impairments and not individual conditions. Paragraph 6(9) specifically says in respect of assessing the functional impact of pain:
(9) There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
The Tribunal notes that the recommendation from Al Khawaja that Mr Rae participate in a pain management program was made during the qualification period. The Tribunal is satisfied that the treatment recommended was reasonable treatment within the meaning of paragraph 6(7) of the Impairment Tables given that Mr Rae was accepted into a pain management clinic, although he could not recall which one, and his reasons for not attending were not related to accessibility or cost. His primary reasons for not attending seemed to be that he did not think such a course would be helpful and he did not want to be prescribed any further pain killing medication.
Given that the treatment was recommended during the qualification period, it was reasonable treatment and it was not undertaken, the Tribunal accepts the Respondent’s submission that the condition was not fully treated or fully stabilised within the qualification period. That means the Tribunal cannot consider an impairment rating under the Impairment Tables.
Diabetes
There is no dispute that Mr Rae suffers insulin dependent diabetes. It predates his claim by a number of years. The Respondent accepts that it is fully diagnosed but submitted that there was insufficient evidence regarding the treatment and prognosis.
In his health summary dated 25 September 2018, Dr Jerew noted that Mr Rae had diabetes mellitus and was on regular medication.[5]
[5] T17, T documents, pp 135-138.
Mr Rae’s evidence to the Tribunal was that he had learned to live with his diabetes and emphasised that it does not cause pain, unlike his spine condition. His evidence was that his diabetes is more controlled now that he is at home and not working.
Mr Rae’s evidence suggested to the Tribunal that his diabetes, whilst ongoing, is largely under control as a result of diet and medication. Mr Rae did not give evidence of any ongoing functional impact on his activities.
Given Mr Rae’s evidence and the absence of any corroborating evidence regarding symptoms and functional impact, the Tribunal is unable to consider an impairment rating resulting from Mr Rae’s diabetes.
Emphysema
Dr Jerew’s health summary dated 25 September 2018 noted emphysema as a current medical condition which was being treated with regular medication.[6]
[6] Ibid.
There is no other medical evidence before the Tribunal regarding the condition.
In the absence of more detailed medical evidence detailing the treatment(s) undertaken by Mr Rae, whether further treatment is available and reasonable and what the prognosis is for the condition, the Tribunal cannot consider an impairment rating for this condition.
Vision
Mr Rae told the Tribunal that he has 90% loss of sight in one eye.
In evidence before the Tribunal is a report of Dr Brown, eye physician and surgeon, dated 23 April 2013.[7] He reported that Mr Rae had a long history of low vision in the right eye due to refractive amblyopia. He maintained good vision of 6/6 in the left eye. The intraocular pressures were normal as was the fundal examination and there were no signs of diabetic retinopathy. He concluded that there were no signs of diabetic eye disease, but that Mr Rae should be reviewed in a further two years.
[7] T12, T documents, p 128.
Dr Jerew does not mention Mr Rae’s eyesight in his health summary of 25 September 2018 and there is no evidence of any further medical reviews before the Tribunal.
Mr Rae’s evidence was that he has never worn glasses, his condition has remained the same and, as long as he does not cover his “good” eye, his eyesight is fine. He drives and he can see and use his mobile phone. He said that he can see “everything” with his good eye.
Table 12 of the Impairment Tables is used for the assessment of visual function. It requires corroborating evidence of any impairment, as do all the Tables. The Tribunal is satisfied that even if there was corroborating evidence, Mr Rae’s visual function would, at most, attract a rating of five points under Table 12 as his evidence was consistent with the criteria for there being a mild functional impact on activities involving visual function, in particular paragraph 1(e):
1The person can perform most day to day activities involving vision and has mild difficulties seeing things at a distance or close up when wearing glasses or contact lenses (if these are usually worn), and at least one of the following applies:
(a)the person has some difficulty seeing the fine print in newspapers or magazines (e.g. they have to hold the print further away or use brighter light);
(b)the person has some difficulty seeing road signs, street signs or bus numbers or has some difficulty reading road signs at night but can still travel around the community and use public transport without assistance;
(c)when looking straight ahead, the person has some difficulty seeing objects to the side or in the centre of their field of vision;
(d)the person experiences some discomfort when performing day to day activities involving the eyes (e.g. mild occasional watering of the eyes, mild difficulty opening the eyes, or mild difficulty moving or coordinating the eyes, or difficulty tolerating bright lights and sunlight);
(e)the person has functional vision in only 1 eye, or only has 1 eye, but has good vision in the remaining eye.
However, in the absence of corroborating evidence, the Tribunal is unable to assign any impairment points in respect of Mr Rae’s visual function.
CONCLUSIONS
The Tribunal has been unable to assign any impairment ratings under the Impairment Tables. This means that Mr Rae does not fulfil the qualification requirements set out in subsection 94(1) of the Act because he does not have an impairment of 20 points or more under the Impairment Tables.
It is therefore not necessary for the Tribunal to go on and consider whether Mr Rae has a continuing inability to work as defined in subsection 94(2) of the Act.
The Tribunal must affirm the decision under review.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Ms Lynette Rieper, Member.

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

Associate

Dated: 31 July 2020
Date of hearing:   26 June 2020

Applicant:   By Phone

Solicitor for the Respondent:             Ms G Heggen

[2020] AATA 2629

31 July 2020

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