RAMON SULLIVAN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2013] AATA 234

[2013] AATA  234

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/4564
Re	RAMON SULLIVAN
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Dr M Denovan, Member
Date	17 April 2013
Place	Brisbane

The Tribunal affirms the decision under review.

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

Ms Lee Cross, District Registrar

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Not fully diagnosed, treated and stabilised – Impairment tables – No permanent conditions – No impairment rating – Decision under review affirmed 

LEGISLATION

Social Security Act 1991 (Cth) s 94, sch 1B

REASONS FOR DECISION

Dr M Denovan, Member

17 April 2013

INTRODUCTION

1. The applicant, Mr Ramon Sullivan, suffers from depression, alcohol dependence and osteoarthritis of the neck and lower back. He was treated for a subarachnoid haemorrhage, diagnosed in 2011. On 8 November 2011, Mr Sullivan lodged a claim for disability support pension (“DSP”). On 10 November 2011, the respondent rejected the claim on the basis Mr Sullivan was assessed as having less than 20 impairment points.

2. An authorised review officer affirmed the decision on 14 March 2012, as did the Social Security Appeals Tribunal (“SSAT”) on 5 September 2012.

3. The application for review of the decision by the Administrative Appeals Tribunal (“AAT”) was lodged on 11 October 2012.

   ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION

4. The Social Security Act 1991 (Cth) (“the Act”) sets out the qualification criteria for disability support pension. Insofar as it is relevant for present purposes, s 94 of the Act (as it appeared at the relevant date) provides that the applicant:

   ·must have a physical, intellectual or psychiatric impairment;

   ·his impairment must be of 20 points or more under the Impairment Tables; and

   ·he must have a continuing inability to work.

5. Under sch 2, cl 4(1) of the Social Security (Administration) Act 1999 (Cth), an applicant must qualify for a social security payment, in this case DSP, on the day on which the person made the claim or within 13 weeks of that date. For the applicant’s claim for DSP, that period is from 8 November 2011 to 1 February 2012 (“the relevant period”).

6. Before an impairment rating can be assigned under the Impairment Tables in Schedule 1B of the Act,[1] it is necessary to determine whether Mr Sullivan’s impairments arise from a condition or conditions that are fully documented, diagnosed, investigated, treated and stabilised, and can be regarded as being permanent.

   [1] See s 23 of the Act defining Impairment Tables.

7. Relevantly, the Introduction to the Impairment Tables states:

   4. … For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised…. 

   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.

8. Mr Bishop, for the respondent, contended that none of the conditions from which Mr Sullivan suffers could be considered permanent as no information was available in relation to osteoarthritis of the neck and lower back for the relevant period and both the depression and aneurysm were not fully treated before the end of the relevant period.

9. The issues that I must determine are:

   ·what, if any, physical, intellectual or psychiatric impairments Mr Sullivan has;

   ·whether all or any of those conditions are permanent, and if so what impairment ratings they should be allocated; and

   ·        if he has 20 impairment points or more, whether he has a continuing   inability to work.

   APPLICANT’S CASE AND CONTENTIONS

10. Mr Sullivan told me that prior to being diagnosed with an aneurysm in October 2011 he was experiencing headaches and increasing levels of confusion. Mr Sullivan said that even after surgery to remove the aneurysm, the fatigue and confusion he experienced prior to surgery has continued. He relies on his nephew for most things. His nephew, Mr Winter, who represented him at the hearing, drives Mr Sullivan most places as he has no idea how to get anywhere and would not remember his appointments. Mr Sullivan claims he would not be able to complete most paper work, such as the application forms for the AAT hearing. Since the onset of the condition he feels he has not been able to explain himself properly; this has also not been relieved by the surgery.

11. Mr Sullivan returned to the hospital for a routine post-operative review in February 2012. Mr Sullivan had been experiencing neck pain that had been progressively worsening. He was prescribed anti-inflammatory medications, panadol-osteo tablets, and physiotherapy treatment was organised, comprising a total of 10 sessions over a two month period. Mr Sullivan was given exercises by the physiotherapist; however he did not notice any significant improvement in his neck pain. In addition, at his own request, Mr Sullivan’s general practitioner referred him to a physiotherapist that, according to Mr Sullivan, was able to get into the deeper muscles. Mr Winter contended that if Mr Sullivan’s aneurysm was not fully stabilised then he would not have been discharged from hospital.

12. Mr Sullivan attended further routine post-operative reviews in July 2012 and February 2013.

13. Mr Sullivan said that in March 2011 he broke down on the way to work when a friend rang him and told him that the daughter of his friend was very ill. As a result, Mr Sullivan did not go to work that day, and although the girl subsequently recovered things got the better of Mr Sullivan and he has not worked since.

14. Mr Sullivan was referred to a counsellor, Mr Rob Holms, in March 2011. He attended 10 sessions and he says he does not feel the need for any further counselling. He has not been referred to a psychiatrist. Mr Sullivan denies telling the SSAT his depression has worsened since he was diagnosed with an aneurysm. Because of his depression, Mr Sullivan says he lacks motivation to do anything. Although his house is on the market, it is not well presented because he cannot motivate himself to clean and tidy it. Mr Sullivan lives alone and he cooks for himself and does his own laundry. Mr Sullivan volunteered behind the bar at his cricket club a couple of time a week until recently, but a combination of neck pain and lack of energy resulted in him quitting.

15. Mr Sullivan said that he has had back pain for so long that he neglected to mention it to Dr Kerr when completing the application for DSP.

    CONSIDERATION

    Aneurysm – subarachnoid haemorrhage

16. The Secretary accepts that this condition is fully diagnosed and treated but contends that it was not fully stabilised during the relevant period as the effect of the condition on Mr Sullivan's ability to function was uncertain. Reliance was made on the report of Dr Kerr, completed in November 2011, in which he stated that the effect of the condition on Mr Sullivan's ability to function was “uncertain”.[2] Mr Sullivan believes that if his condition was not “fully stabilised” he would not have been discharged from hospital.

    [2] Exhibit 1, T-documents 7 and 8, esp. pp. 102 and 110.

17. The Introduction to the Impairment Tables provides that if a person has undertaken reasonable treatment, then the condition is regarded as fully stabilised when any further treatment is unlikely to result in significant functional improvement in the next two years.

18. Although Mr Sullivan has been attending regular reviews at the Gold Coast Hospital, I agree with the SSAT finding that these visits were for the purpose of follow-up treatment and not expected to find new treatment options. The essence of Dr Kerr's 2011 reports is that post-operatively Mr Sullivan was suffering from confusion and poor concentration and it was “uncertain” whether there would be some improvement in these symptoms. However, in February 2013 Dr Kerr opined that Mr Sullivan continues to suffer from poor concentration and decreased memory as a consequence of his aneurysm and that these symptoms will remain unchanged for more than 24 months as he has likely ongoing problems due to brain damage.[3]

    [3] Exhibit 2, Supplementary T-documents, pp. 19-29, esp. p. 24.

19. Unfortunately, during the 13-week qualifying period, Dr Kerr was uncertain as to whether these symptoms would continue for more than 24 months. Indeed, in his earlier report, dated 4 November 2011, Dr Kerr opined that symptoms would last 3-24 months and would somewhat improve. For these reasons the condition cannot be regarded as permanent during the 13 week qualifying period. It therefore cannot be assigned an impairment rating.

    Depression

20. The Secretary accepts the diagnosis of depression but contends that at the date of claim, given the impact of surgery due to an aneurysm, the condition cannot be considered fully treated and stabilised. Mr Sullivan denies telling the SSAT that his depression worsened following the diagnosis of the aneurysm. He said the SSAT put words in his mouth; he agreed with them that he was understandably worried when he found out about the risk to his life the aneurysm was causing, but that it did not make the depression worse.

21. There is no medical evidence to support the SSAT's position and it is inconsistent with the report of Dr Kerr dated 27 September 2012 in which he notes that Mr Sullivan's depression has remained unchanged for more than 24 months.[4] I accept Mr Sullivan's evidence on this point.

    [4] Exhibit 2, Supplementary T-documents, pp. 1-8, esp. p. 3.

22. Dr Kerr, in his first report dated 4 November 2011,[5] states the condition will last “3-24 months” and the effect on the patient's ability to function is “uncertain”. In his second report, dated 25 November 2011,[6] Dr Kerr states the likely impact to be “? More than 24 months”, and that the effect on the patient's ability to function within the next two years is “uncertain”. Because Dr Kerr was not certain that the impact of this condition was expected to affect Mr Sullivan's ability to function for more than 24 months the condition could not be regarded as permanent. A condition that is not permanent cannot be assigned an impairment rating.

    [5] Exhibit 1, T-document 7, pp. 100-107.

    [6] Exhibit 1, T-document 8, pp. 108-115.

    Alcohol dependence and liver damage

23. Dr Kerr, in his report dated 25 November 2011,[7] listed this condition as one that is generally well managed and causes minimal or limited impact on Mr Sullivan’s ability to function. The recorded treatment was “stop drinking” and significant improvement was expected.  Mr Sullivan assured me that he does not drink alcohol anymore. Dr Kerr has provided no other information in relation to this condition. For these reasons this condition does not have a significant impact on Mr Sullivan's capacity to function and therefore it cannot be given an impairment rating.

    [7] Exhibit 1, T-document 8, esp. p. 113.

    Osteoarthritis of the neck and lower back

24. Mr Sullivan provided the Tribunal with the determination of the Compensation Court of New South Wales relating to a back injury he sustained in 1981.[8] Dr Kerr has been Mr Sullivan's general practitioner since 1987. In his initial medical report dated 4 November 2011, which accompanied the application for DSP, Dr Kerr made no mention of any neck or back condition.[9]

    [8] Exhibit 3.

    [9] Exhibit 1, T-document 7, pp. 100-107.

25. On 20 August 2012, Dr Kerr reported that Mr Sullivan had osteoarthritis of the lower back, first diagnosed in 1981, and treated by medications and physiotherapy. Dr Kerr opined that Mr Sullivan be assigned a rating of 10 points. In the same report, Dr Kerr provided a diagnosis of osteoarthritis of the neck which he stated was fully diagnosed in 2010 and treated with ongoing analgesic, NSAID and physiotherapy. Dr Kerr opined Mr Sullivan be allocated a rating of five points.[10]

    [10] Exhibit 1, T-document 16, esp. p. 151.

26. In the Centrelink medical report dated 27 September 2012, Dr Kerr listed osteoarthritis of the neck and back as conditions that are generally well managed and that cause minimal or limited impact on Mr Sullivan’s ability to function. Dr Kerr noted that Mr Sullivan had good and bad days; on bad days he was unable to do any work.[11] On the basis of this report the job capacity assessor assigned Mr Sullivan five impairment points.

    [11] Exhibit 2, Supplementary T-documents, pp. 1-8, esp. p. 6.

27. I am not satisfied that osteoarthritis of the lower back is a condition that can be considered to be a fully diagnosed condition. Although Dr Kerr stated that osteoarthritis of the back was first diagnosed in 1981, no corroborating evidence such as an x-ray or CT scan has been referenced to support the diagnosis. For this reason it cannot be given an impairment rating.

28. Even if Mr Sullivan's osteoarthritis of the lower back could be regarded as permanent and rateable, I do not believe there was sufficient information available in the material before the job capacity assessor, Ms Rebecca, on either 16 November 2012 or 12 February 2013, for a rating to be allocated.[12] Ms Rebecca states she used Dr Kerr's report dated 27 September 2012.[13] His only comments in the report relating to this condition were “[h]as good and bad days. When bad unable to go to work”. Presumably Ms Rebecca relied on symptoms reported to her directly by Mr Sullivan. Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence. Ms Rebecca did not reference Dr Kerr's report dated 20 August 2012, in which he stated Mr Sullivan, as a result of osteoarthritis of the lower back, has “pain and decreased movements”. Given Dr Kerr has reported Mr Sullivan's condition has minimal or limited impact on his ability to function and there was no information available as to how often the condition affects his ability to function and to what degree, no impairment rating should have been allocated for this condition, even if it was a condition that was rateable.

    [12] Exhibit 2, Supplementary T-documents, pp. 9-18 and 30-39 respectively.

    [13] Exhibit 2, Supplementary T-documents, pp. 1-8.

29. Dr Kerr did not mention the existence of osteoarthritis of the neck in his first report and has not referred to any x-ray or CT scan that would be the usual corroborant evidence of the condition. Further, the condition was treated by physiotherapy when Mr Sullivan returned for review of his aneurysm in February 2012. As the condition was not fully treated within the 13 week qualifying period it cannot be assigned an impairment rating.

    DECISION

30. As Mr Sullivan did not, during the relevant period, have a condition or conditions which could be assigned an impairment rating, he cannot be granted DSP under s 94(1) of the Act.

31. The decision under review is affirmed.

I certify that the preceding 31(thirty-one) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member.

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

Associate

Dated 17 April 2013  

Date of hearing	28 February 2013
Applicant	In person
Advocate for the Applicant	Mr Tony Winter
Advocate for the Respondent	Mr Christopher Bishop (Departmental Advocate)