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

[2016] AATA 1059

Raye and Secretary, Department of Social Services (Social services second review) [2016] AATA 1059 (21 December 2016)

Division	GENERAL DIVISION
File Number	2016/3007
Re	Mark Anthony Raye
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Gordon Hughes, Member
Date	21 December 2016
Place	Melbourne

The decision under review is affirmed.

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

Dr Gordon Hughes, Member

SOCIAL SECURITY - claim for disability support pension – multiple conditions - allocation of impairment rating - whether conditions fully diagnosed, treated and stabilised - lack of supporting medical evidence supporting diagnosis, treatment and stabilisation of conditions - claimed mental health condition not diagnosed by appropriate professional - less than twenty points allocated under impairment tables - decision affirmed

Legislation

Social Security Act 1991 section 94

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Cases

Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Re Fanning and Secretary, Department of Social Services (2014) 64 AAR 466; [2014] AATA 447
Gallacher v Secretary of Social Services (2015) 68 AAR 1; [2015] FCA 1123

REASONS FOR DECISION

Dr Gordon Hughes, Member

21 December 2016

BACKGROUND

1. The Applicant seeks a review of the decision made by the Administrative Appeals Tribunal, Social Services and Child Support Division on 4 May 2016. That decision affirmed a decision by the Department of Social Security (the Department) to reject the Applicant's claim for disability support pension (DSP).

2. The specific issue before the Tribunal was whether the Applicant was qualified to receive the DSP in relation to a claim lodged at the Department on 10 November 2015, or within 13 weeks thereafter. This involves a consideration of section 94 of the Social Security Act 1991 (the Act).

3. The Respondent did not dispute that the Applicant satisfied the requirements of subsection (a) of section 94(1), namely, that the Applicant had a physical, intellectual or psychiatric impairment.

4. The Respondent contended, however, that the Applicant did not satisfy subsection (b) of section 94(1) as he did not have an impairment of 20 points or more of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). The Respondent further contended that the Applicant did not satisfy the requirements of paragraph (c) of section 94(1), because he was not suffering a continuing inability to work. 

   LEGISLATION

5. Section 94 of the Act provides, relevantly:

   (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:

   the person has a continuing inability to work;

   …

   (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.

   (3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

   (a)the availability to the person of a training activity; or

   (b)the availability to the person of work in the person's locally accessible labour market.

   DISCUSSION

6. On 10 November 2015, the Applicant lodged an application for DSP citing dyslexia, bilateral carpal tunnel, anxiety/depression, bilateral tennis/golfers elbow, heart condition, weak knees, osteoarthritis and tendinitis of the right shoulder. 

   On 18 December 2015, the Department rejected the Applicant's claim for DSP on the basis that he failed to satisfy paragraph 94(1)(b) of the Act. On 17 March 2016, an authorised review officer affirmed the original decision. On 4 May 2016 the Social Security & Child Support Division of the Administrative Appeals Tribunal affirmed the decision of the authorised review officer (ARO).

   Qualification for DSP

7. As referred to above, the Respondent conceded that the Applicant satisfied the requirements of subsection (a) of section 94(1). 

8. In relation to subsection (b) of section 94(1), it is necessary to refer to the Impairment Tables to determine whether the person's impairment is of 20 points or more.

9. The Impairment Tables can only be applied after the person's medical history has been considered, and a rating can only be assigned if an impairment is classified as permanent.  To be permanent, a condition must be fully diagnosed, fully treated and fully stabilised and must be likely to persist for more than 2 years. 

10. Section 6(5) of the Impairment Tables identifies factors which the decision maker must take into account in determining whether a condition is fully diagnosed and fully treated. Section 6(6) identifies factors which will determine whether a condition is fully stabilised. Section 6(7) defines what constitutes reasonable treatment for the purposes of section 6(6) of the Impairment Tables.

11. Section 8(1) of the Impairment Tables provides that:

    Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence. 

12. Sections 10(5) and 10(6) of the Impairment Tables deal with a situation where there are two or more conditions causing a common or combined impairment, stipulating that it is inappropriate to assign separate impairment ratings for each condition as this would result in the same impairment being assessed more than once.

13. Relevant to sections 10(5) and 10(6), the Applicant was clearly suffering a number of conditions, each of which must be assessed independently.  These can be summarised as heart disease (assessable under Table 1 of the Impairment Tables), upper limb function (Table 2) and mental health function (Table 5).

    Evidence

14. The Applicant did not call medical witnesses but relied on reports previously submitted in connection with his claim. These were reports and medical certificates from Dr David Eccleston dated 16 March 2009, and Dr Bruce Samuels dated 4 February 2015, 14 May 2015, 12 August 2015, 17 November 2015, 18 January 2016 and 2 August 2016.

15. The Tribunal also reviewed Job Capacity Assessment (JCA) reports dated 10 January 2011, 16 December 2015 and 21 September 2016, and an Employment Services Assessment Report dated 13 March 2015.

16. The Respondent did not call fresh medical evidence at the hearing.

17. Given that the Applicant's claim was lodged on 10 November 2015, the relevant period under consideration was from 10 November 2015 to 9 February 2016. Any subsequent deterioration is not to be taken into account (although the Applicant is not precluded from lodging a fresh application for DSP): Re Fanning and Secretary, Department of Social Services (2014) 64 AAR 466; [2014] AATA 447; Gallacher v Secretary of Social Services (2015) 68 AAR 1; [2015] FCA 1123.

    Heart Condition

18. The Respondent submitted that the Applicant's ischemic heart disease was not fully treated and stabilised during the period in question and thus could not be assigned an impairment rating.  In the Tribunal's opinion, this is consistent with the observations by Dr Samuels in his report of 2 August 2016. Dr Samuels notes:

    Ongoing investigation of cardiac symptoms and Stress test July 2016 and awaiting angiogram – may improve symptoms if interventions warranted/appropriate.  It is also consistent with Dr Samuels' observation, albeit in the context of problems experienced by the Applicant with his upper limbs: Weekly chest symptoms, exertional symptoms – unstable presently... .

19. In the circumstances, the Tribunal agrees with the Respondent that the Applicant's ischaemic heart disease could not be regarded as fully treated and stabilised, in respect of the period in question, for the purposes of an impairment rating under Table 1. It therefore cannot be assigned an impairment rating.

    Bilateral Carpal Tunnel Syndrome

20. The Respondent accepted that the Applicant's bilateral carpal tunnel syndrome was fully diagnosed, treated and stabilised, and submitted that a maximum of 5 points should be assigned under Table 2.  This submission was based on evidence previously provided by the Applicant to the effect that he could vacuum the house, hang washing, mow the lawn, hold a pen to write, tie shoelaces, button a shirt and drive a car, amongst other activities.  An ability to engage in such activities would be inconsistent with a moderate functional impact attracting 10 points under Table 2, and on this basis a rating of 5 points would be appropriate.

21. The Tribunal nevertheless considers the Applicant attracts an impairment rating of 10 points, not 5 points as submitted by the Respondent.  The Applicant's JCA report dated 21 September 2016 cited evidence from Dr Samuels to the effect that the Applicant did, in fact, have difficulty with such tasks as picking up a litre carton full of liquid, picking up light objects requiring the use of two hands, doing up buttons or tying shoes laces, and unscrewing a lid on a soft drink bottle. 

22. In his report of 2 August 2016, Dr Samuels stated, in relation to issues with lifting and using forearms: Constant ache, difficult grasping – weak strength, frequent[ly] drops item – moderate – severe. Dr Samuels' previous medical certificate, dated 17 November 2015 and therefore contemporaneous with the date of the Applicant's claim, stated: Hand-self exercises-previous therapy completed and unlikely to improve.

23. Taking the available evidence into account, the Tribunal concludes that 10 points should be assigned under Table 2 in respect of the effects of the Applicant's bilateral carpal tunnel syndrome.

    Elbow and Shoulder Conditions

24. The Respondent contended that the Applicant's elbow and shoulder conditions were not fully treated or stabilised during the period in question as they had only been diagnosed in October 2015 and the Applicant was still undergoing treatment after the date of the claim.  The Respondent further contended that, in any event, that condition would have no impact or bearing on the impairment rating as they and the bilateral carpal tunnel syndrome caused a combined impairment to his upper limbs and, as a result, only a single rating could be assigned by virtue of sections 10(5) and 10(6) of the Impairment Tables.

25. The Tribunal agrees with the Respondent's submission in relation to the Applicant's elbow and shoulder conditions. They are therefore cannot be assigned an impairment rating.

    Mental Health Condition

26. The Respondent contended that the Applicant's mental health condition of anxiety/depression was not fully diagnosed, treated or stabilised during the period in question and thus could not be assigned an impairment rating under Table 5.

27. The Tribunal agrees with the Respondent's contentions in relation to the Applicant's mental health condition.  There is a brief reference in a report from Dr Samuels dated 18 September 2015 to anxiety/depression amongst a range of other symptoms.  It is a pre-requisite under Table 5 that the diagnosis of a permanent functional impairment due to a mental health 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) …

    This pre-requisite has not been met. As such, the condition cannot be considered fully diagnosed. It therefore is not permanent within the meaning of the Impairment Tables and cannot be assigned an impairment rating.

28. The Applicant claimed to be suffering from a range of other conditions, namely, dyslexia, neck osteoarthritis, colon polyps, hypercholesterolemia, haemorrhoids, dental infection and knee pain.  The Respondent submitted that these conditions could not be assigned an impairment rating under the Impairment Tables as there was a paucity of corroborating medical evidence detailing diagnoses, treatment, prognosis and functional impact.  The Tribunal agree with this conclusion.

    Total Impairment Rating

29. On the above basis, the Tribunal finds that a total of 10 points can be assigned to the Applicant’s impairments. The Applicant therefore does not satisfy subsection (b) of section 94(1) of the Act as he does not have an impairment of 20 points or more under the Impairment Tables. 

30. It follows that there is no reason for the Tribunal to consider paragraph (c) of section 94(1), that is, the question of whether the Applicant had a continuing inability to work.

    DECISION

31. For the reasons set out above, the Tribunal concludes that as the Applicant has an impairment rating of only 10 points under Table 2 of the Impairment Tables, and no impairment rating under any of the other Tables. He therefore cannot satisfy the requirements of section 94(1)(b) of the Act, and as such does cannot satisfy the eligibility criteria for DSP.  Accordingly 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 Gordon Hughes, Member

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

Associate

Dated 21 December 2016

Date of hearing	1 December 2016
Applicant	In Person
Support Person for the Applicant	Verana Hunter-Raye
Advocate for the Respondent	James Henderson
Solicitors for the Respondent	Department of Human Services, Freedom of Information & Litigation Branch