Ramsay and Secretary, Department of Social Services (Social services second review)
[2016] AATA 715
•16 September 2016
Ramsay and Secretary, Department of Social Services (Social services second review) [2016] AATA 715 (16 September 2016)
Division
GENERAL DIVISION
File Number
2016/0445
Re
Bradley Ramsay
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal D. J. Morris, Member
Date 16 September 2016 Place Perth The Tribunal affirms the reviewable decision.
..........[Sgd]..............................................................
D. J. Morris, Member
CATCHWORDS
SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – whether impairments attract 20 points or more on Impairment Tables – reasonable treatment still being undertaken – conditions not stabilised – not qualified for DSP – decision affirmed
LEGISLATION
Social Security Act 1991 – s 94 – s 94(1) – s 94(1)(a) – s 94(1)(b) – s 94(1)(c) – s 94(2) – s 94(5)
Social Security (Administration) Act 1999 – Schedule 2 Clause 4(1)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
D. J. Morris, Member
16 September 2016
BACKGROUND FACTS
This matter concerns an application Mr Bradley Ramsay has brought to the Tribunal seeking a review of a decision that he is not qualified for Disability Support Pension (DSP).
On 19 May 2015, Mr Ramsay lodged a claim with the Department of Social Services (the Department) for DSP. He cited two medical conditions: ‘chronic depression’ and ‘chronic back pain’.
On 25 June 2015, the Applicant attended a face to face assessment with a Job Capacity Assessor (JCA) employed by the Department. The Assessor subsequently produced a report (JCA1) which recommended assignment of a total impairment rating of 10 points for the Applicant’s chronic back pain but decided that Mr Ramsay’s depression was not fully treated or fully stabilised. The Applicant’s work capacity was assessed by JCA1 as 15-22 hours per week within two years with intervention.
The Department decided on 29 June 2015 to reject Mr Ramsay’s application for DSP on the basis that he did not have 20 or more points under the Impairment Tables.
The Applicant provided further medical evidence to the Department in July 2015 and a Job Capacity Assessment was made, reporting on 24 September 2015 (JCA2). JCA2 recommended an allocation of 10 impairment points for Mr Ramsay’s chronic back pain and also took the view that the Applicant’s depressive condition was not fully treated or fully stabilised. JCA2 assessed his work capacity as 15-22 hours per week within two years with intervention.
Mr Ramsay requested a review by an Authorised Review Officer (ARO), an independent officer employed by the Department.
On 10 October 2015, the ARO affirmed the original decision.
The Applicant applied for review to the Social Services and Child Support Division of this Tribunal (AAT1). AAT1 decided that Mr Ramsay had no permanent conditions that attracted a rating under the Impairment Tables at the date of his claim, because his conditions were not fully treated or fully stabilised.
Mr Ramsay applied for a second-tier review to the General Division of the Tribunal. That is this hearing.
The purpose of this hearing, therefore, is to review whether the original decision that Mr Ramsay was not qualified for DSP on the date he lodged a claim, 19 May 2015, was correct.
The hearing was held on 29 August 2016. The Applicant represented himself. The Respondent was represented by Mr Ashley Burgess. The Applicant gave evidence on oath and was cross-examined by counsel for the Respondent.
The Respondent tendered documents under section 37 of the Administrative Tribunal Act 1975 (T-documents).
The Applicant tendered the following documents:
·Medical report from Boulder Medical and Occupational Health Centre signed by Dr Avron Moffson, general practitioner, and dated 29 March 2016 (Exhibit A1);
·Medical certificate signed by Dr Nazmi Mikhaiel, general practitioner, and dated 1 May 2015 (Exhibit A2); and
·Medical certificate signed by Dr Mikhaiel, dated 3 June 2015 (Exhibit A3).
Qualification for DSP under the Act
The law applicable to the grant of DSP is the Social Security Act 1991 (the Act) and in particular section 94 of that Act.
In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied. For this reason, it must be established that the person has –
(a) a physical, psychological or mental impairment and
(b) the impairment or impairments must attract a rating of 20 or more points under the Impairment Tables; and
(c) a continuing inability to work.
The Impairment Tables referred to in section 94(1)(b) of the Act are to be found in subordinate legislation, namely a ministerial determination called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.
The applicable provision relating to the Applicant’s ability to “work” under subsection 94(1)(c) and section 94(5) of the Act is work that is for at least 15 hours a week.
So, therefore, for a person to be qualified for DSP, the person must have impairment within the meaning of the Act. Secondly, the impairment, or impairments if there is more than one, must be assigned a rating of 20 or more points under the Impairment Tables. Thirdly, the person must have a continuing inability to work.
An important additional requirement is, if a person is assigned 20 or more points under one Impairment Table, that means the impairment is assessed to be a ‘severe’ impairment. If a person is assigned 20 or more points under more than one Impairment Table, then the provisions of section 94(2) of the Act are applicable, which relate to a person participating in an approved program of support.
What is the relevant period for considering the claim?
The Social Security (Administration) Act 1999 provides, at clause 4(1) of Schedule 2, as follows:
If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
Applying this provision, if Mr Ramsay is found to have become qualified for DSP between the date he lodged his claim, 19 May 2015, and the date thirteen weeks thereafter, 18 August 2015, then the claim is to be deemed to have been made on the day he became so qualified. We will describe this period as ‘the relevant period’.
QUESTION TO BE ANSWERED
Therefore, the Tribunal must decide: whether, in the relevant period, Mr Ramsay has an impairment; and, if so, whether the impairment or impairments may be assessed under the Impairment Tables and whether they are correctly assigned 20 or more points; and, if so, whether he has a continuing inability to work.
APPLYING THE LAW
Does the Applicant have a physical, intellectual or psychiatric impairment?
The Respondent, in his submission, accepts that the Applicant has impairments.
In his medical report dated 19 May 2015, Dr Avron Moffson, general practitioner, stated a diagnosis of ‘chronic back pain’ as the condition with the most impact on the Applicant. Dr Moffson said that the diagnosis of this condition was confirmed in February 2012 by Mr Christopher Lind, FRACS, Associate Professor of Surgery at Sir Charles Gairdner Hospital. Dr Moffson also reported a second condition of ‘major depression – chronic’ and stated that the diagnosis of the depressive condition was confirmed by Dr Nick De Felice, consultant psychiatrist, in 2014.
The Tribunal also had before it medical reports of 24 July 2014 and 28 July 2015 by Dr De Felice. In the 2014 report, Dr De Felice makes a diagnosis of “severe major depressive disorder precipitated by pain and limitations [Mr Ramsay] has experienced subsequent to his 2012 MVA.” In the 2015 report, Dr De Felice reiterated this diagnosis, saying he came to the same conclusion in regard to the condition as he did in 2014.
The Tribunal is satisfied on the basis of corroborative evidence, including from a consultant psychiatrist who examined the Applicant, that he does have impairment.
I find that Mr Ramsay therefore satisfies section 94(1)(a) of the Act. He did have medical conditions giving rise to impairment on the date of cancellation.
If so, what is the correct rating under the Impairment Tables?
When considering how the Impairment Tables apply in a particular person’s case, the Tribunal must do so with reference to the Rules for applying the Impairment Tables set out in Part 2 of the Minister’s Determination.
In particular, Rule 6(3) provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
In considering whether a condition is “permanent”, Rule 6(4) requires that a condition must be fully diagnosed by an appropriately qualified medical practitioner, and the condition must be fully treated and fully stabilised, and a person must have a continuing inability to work.
Chronic back pain condition
Mr Ramsay was in a motor vehicle accident in February 2012 which caused a mechanical injury to his spine. Dr Luke Mercer, of the Department of Pain Management at Sir Charles Gairdner Hospital, provided a medical report dated 19 March 2013 about what happened shortly after the accident. Mr Ramsay had a CT scan showing minor disc protrusion at L4-5 and was initially treated conservatively. However, in May 2012 his condition worsened. He reported severe pain and urinary difficulties. A further CT scan showed progression of the disc protrusion and canal stenosis. He was flown to Sir Charles Gairdner Hospital by the Royal Flying Doctor Service.
In September 2012 he had a partial microdiscectomy and L4/5 Rhisolysis. The pain was slightly reduced. Dr Mercer reported it went from “8/10 to 6/10”, and that the nature of the pain was “constant, aching and burning”. Dr Mercer prescribed various medications.
The Applicant saw Dr Michael Beinart, general practitioner, on 15 August 2013 for a medico-legal report in relation to a compensation claim Mr Ramsay was making in relation to his motor vehicle accident. Dr Beinart provided a medical report dated the same day, which was before the Tribunal.
Dr Beinart stated in this report:
In my opinion his condition has not stabilised sufficiently so as to allow finalisation of any claim he might have regarding his low back injury… Mr Ramsay requires ongoing medical management and is to remain under the care of his treating specialist in pain management. It is likely that he will require further percutaneous pain-relieving deposteroid injections into his lower back and failing that a review with a neurosurgeon may be warranted.
Dr Beinart provided a further medical report dated 28 July 2015 (i.e. after the date of claim but within the relevant period). In that report Dr Beinart states, inter alia:
[Mr Ramsay] no longer attends the Pain Management Clinic at Sir Charles Gairdner Hospital and no longer attends for any form of physical therapy.
….
Mr Ramsay would benefit from the assistance of a multidisciplinary comprehensive pain management team. This would not only involve a Pain Management Specialist, but also a Psychologist, a Social Worker, a Physiotherapist, Exercise physiologist and an Occupational Therapist.
….
Furthermore, he would benefit from an ongoing structured supervised exercise program. Ideally this should be monitored by an Exercise Physiologist at a local aquatic centre where he undertakes both land and water-based exercise.
All of the above needs to be managed and coordinated by his treating Primary Care Practitioner.
Mr Ramsay gave evidence to the Tribunal about his back condition. He said that he could drive for about 15 minutes but then must stop and stretch. He says that the pain and discomfort means he has trouble turning his trunk. His older brother is his full-time carer. The Applicant said he can dress himself sometimes but had fallen several times in the shower owing to his spinal injury, because he would suddenly lose sensation in his leg.
He described to the Tribunal difficulties with medication prescribed to him in the past to treat this back condition, including an allergic reaction which led to sudden fluid retention and his admission to Fiona Stanley Hospital in September 2015.
Mr Ramsay told the Tribunal that he previously had worked as a processing technician at a gold mine, collecting samples for assaying. He had a work history of labouring, being a tyre-fitter, managing a store and working as a roof tiler. He said that he could no longer work because of his back pain.
Depressive condition
Mr Ramsay has been diagnosed with a severe depressive disorder by a consultant psychiatrist, Dr Nick De Felice in 2014, a diagnosis confirmed in 2015.
Dr De Felice recommended that he undertake further counselling with a psychologist but Mr Ramsay said that he had concerns about this because of the ‘dark’ memories that it may bring up, which he did not want to evoke. He gave evidence to the Tribunal about three suicide attempts. The Applicant said he had discussed his concerns about evoking old memories with his general practitioner, Dr Mikhaiel, who had advised him not to have the counselling, if he was so perturbed about it.
There was no corroborative evidence before the Tribunal that Dr Mikhaiel had in fact given this advice. But, even if the Tribunal were to accept this evidence, it does not assist the Applicant because an essential requirement for assignment of impairment points to a mental health condition is diagnosis by a psychiatrist or a clinical psychologist. That requirement is set out in the Introduction to Table 5 – Mental Health Function, which forms part of the Determination.
The link between the two conditions
As mentioned above, in his 2014 medical report, Dr De Felice said that the Applicant’s depressive condition was precipitated by his back injury.
The Applicant gave evidence that he agrees with this. He said that if he could get rid of the pain, then his depression will go.
He gave evidence about the effect on his daily life of his two conditions. He said that he occasionally cooked but had memory lapses which had almost caused a kitchen fire. He said that the back pain medication he is taking causes him forgetfulness.
The Applicant said that he physically cannot move from bed without pain medication but, at the same time, he has been unable to obtain employment while he is taking opioid medication; other drugs have either not worked or have caused an allergic reaction.
It is necessary to note, for completeness, that if the Tribunal were able to move to assign points to the Applicant’s medical conditions, impacts on his daily activities from these two conditions can only be assigned points under one Table. Rule 10 makes this clear at sub-rules 10(5) and 10(6):
(5) 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.
(6) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 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.
Other condition
There is reference to a previous diagnosis of ADHD. Mr Ramsay confirmed in evidence during cross-examination that he had previously taken Ritalin but his general practitioner did not want to co-prescribe and Mr Ramsay could not afford the money to see a psychiatrist or psychologist. He agreed that Ritalin had in the past improved his symptoms.
For completeness, the Tribunal finds that the ADHD condition is not fully treated or fully stabilised and therefore is not capable of being categorised as ‘permanent’ for the purposes of the Impairment Tables.
Recent medical reports
Mr Ramsay tendered three medical reports before the hearing. On 1 May 2015 Dr Mikhaiel said:
in my opinion [Mr Ramsay] is suffering from severe depression [due] to his severe back pain that is not [treatable] & therefore his depression is not [going] to improve.
This medical certificate does not assist the Applicant in his claim for DSP. Dr Mikhaiel is a general practitioner and not in the category of health practitioners which must diagnose a mental health condition under the Impairment Tables.
In his medical certificate dated 3 June 2016, Dr Mikhaiel stated that he had that day examined Mr Ramsay and found in his opinion that his back condition was completely treated and stabilised ‘as of January 2015.’ Dr Mikhaiel said the condition is not going to improve in two years, is a permanent condition and he will “depen[d] on pain killers for life.”
With respect, the Tribunal does not place great weight on a medical examination which casts back eighteen months in terms of asserting a fully treated and fully stabilised diagnosis. This certificate is also not consistent with the other evidence before the Tribunal of treatment being considered during and before the relevant period, such as in Dr Beinart’s 28 July 2015 report.
I note that the Applicant also told AAT1 in evidence that he had recently seen Dr Max Majedi at Fiona Stanley Hospital, and that a new pain management regimen was helping him somewhat. I note that the Australian Health Practitioner Regulation Agency lists Dr Majedi as a specialist in pain medicine.
The medical report of Dr Avron Moffson dated 29 March 2016 stated:
Back injury dated 23/02/2012. Sequelae of above injury includes his chronic depressive state.
This document serves only to confirm the date Mr Ramsay had his motor vehicle accident and corroborates the link between his back injury and his depressive condition, which is already linked by other medical reports, such as those of Dr Beinart and Dr De Felice.
What does ‘fully stabilised’ mean?
Rule 6(5) and 6(6) of the Determination provides the definition:
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.
On his own evidence, Mr Ramsay said he had not undertaken a variety of recommended treatments for a number of reasons, including cost and his reluctance to revisit past bad experiences. The Respondent said that the Applicant had commenced some pain management programme work in September 2015. This date is outside the relevant period, but it, and Mr Ramsay’s evidence about seeing Dr Max Majedi, both support the conclusion that the condition was not fully stabilised in the relevant period.
Taking into account the medical evidence and the Applicant’s own evidence at the hearing, I find that Mr Ramsay has not undertaken reasonable treatment for either condition in the relevant period.
FINDINGS
The Tribunal has sympathy for Mr Ramsay. He presented as an honest witness who was clearly experiencing significant pain and frustration with his predicament.
I have no doubt from the consistent medical evidence and from his own demeanour at the hearing that the Applicant has long-standing back pain and, on the expert evidence and his own testimony, I also accept that he has a depressive condition.
However, the conundrum for Mr Ramsay is that for a medical condition to be assigned points under the Impairment Tables, it must be fully diagnosed, fully treated and fully stabilised. That is set out in Rule 6(4) of the Impairment Tables.
The Tribunal finds that Mr Ramsay’s spinal condition and mental health condition are, indeed, fully diagnosed. But they cannot be said to have been fully treated and fully stabilised in the relevant period. On his own evidence Mr Ramsay discussed different treatments he was undergoing, or which had been recommended.
Relevantly, Mr Ramsay also informed the Tribunal that he had, not long before the date of the hearing, been offered an out of court settlement in relation to compensation for his motor vehicle accident. He said that this settlement was awaiting finalisation. He told the Tribunal he was aware that any such compensation payment would affect any DSP payments if he were to be qualified.
In his evidence he said that part of the reason he had not undergone further counselling was cost. The Tribunal believes that Mr Ramsay should now be in a better position to get the care he needs for both of his conditions so that he can improve his health.
Mr Ramsay informed the Tribunal that he had recently married and that his wife is a trainee physiotherapist who has been of some assistance in alleviating his back pain. I am sure her support will be of assistance in improving his general well-being, both physically and mentally.
The provisions of the law do not allow me to find that a condition is ‘permanent’ in circumstances where treatment is still being undertaken and the condition is not stabilised.
I emphasise to Mr Ramsay that the fact that I cannot correctly assign impairment points does not mean he does not have impairments. That was conceded by the Respondent and this Tribunal has determined that he does have impairments.
I also emphasise that an unfortunate feature of the Determination is that, if a condition is not fully treated or stabilised, it must be assigned zero points. That may send a message that seems inconsistent with finding that impairment exists. But Mr Ramsay should not make that conclusion: what it means is that until his medical conditions have settled after the reasonable treatment available to him has been undertaken, the conditions are not able to be assigned impairment points.
CONCLUSION
Mr Ramsay presented as a personable and frank witness. I hope that the funds he gets from his pending compensation settlement will assist him in restoring his health.
The disappointing outcome for the Applicant, because all parts of section 94(1) of the Act must be satisfied for qualification for DSP, is that the original decision was correct.
DECISION
The reviewable decision is affirmed.
I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of D. J. Morris, Member ........[Sgd]................................................................
Administrative Assistant
Dated 16 September 2016
Date of hearing 29 August 2016 Applicant In person Representative for the
RespondentMr A Burgess Solicitors for the Respondent
Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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