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

Richards and Secretary, Department of Social Services (Social services second review) [2017] AATA 2297 (9 November 2017)
Division:GENERAL DIVISION
File Number: 2017/1182
Re:Andrew Richards
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:9 November 2017
Place:Brisbane

The Tribunal affirms the decision under review.
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Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – cancellation – whether 20 points or more under the impairment tables – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Member D K Grigg
9 November 2017
INTRODUCTION AND CLAIMS HISTORY

Mr Richards has been a recipient of the Disability Support Pension (“DSP”) since

4 April 2002.[1] However, on 8 August 2016, after a medical review, Mr Richards’ DSP was cancelled by the Department of Human Services (“Centrelink”).[2]
[1] Exhibit 1, T Documents, T27, page 181, Centrelink records.
[2] Exhibit 1, T Documents, T22, pages 143 – 144, Letter from Centrelink to Mr Richards dated 8 August 2016.
Mr Richards sought a review of Centrelink’s decision to cancel his DSP by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mr Richards’ medical conditions were not fully diagnosed, treated and stabilised and did not attract 20 points or more under the Impairment Tables.[3]
[3] Exhibit 1, T Documents, T23, pages 145 – 149, Decision of ARO and notes dated 29 September 2016.
Mr Richards then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal.[4] The SSCSD rejected Mr Richards’ claim and affirmed the ARO’s decision on 2 February 2017.[5]
[4] Exhibit 1, T Documents, T24, pages 150 – 155, Application for Review by SSCSD dated 21 October 2016.
[5] Exhibit 1, T Documents, T2, pages 3 – 8, SSCSD’s Decision and Reasons for Decision dated 2 February 2017.
Mr Richards has sought a review of the SSCSD’s decision by this Tribunal.[6]
[6] Exhibit 1, T Documents, T1, pages 1 – 2, Mr Richards’ Application for Review dated 1 March 2017.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):
(a)Mr Richards must have a physical, intellectual or psychiatric impairment;
(b)Mr Richards’ impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[7]
(c)Mr Richards must have a continuing inability to work.
[7] A legislative instrument made under the Act: see s 26(1).
Pursuant to section 80 of the Social Security (Administration) Act 1999 (Cth) (the “Administration Act”) the Secretary may cancel a person’s social security payment if that person was not qualified for the payment.
A decision made under section 80 is an “adverse determination” within the meaning of section 118(13) of the Administration Act, which provides that such a decision “takes effect on the day on which it is made”.[8]
[8] See also Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342.
Therefore, in order to qualify for the DSP, Mr Richards must have met the Section 94 Requirements at the date of the decision to cancel the DSP, that is, on 8 August 2016 (“Qualification Date”).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Richards’ impairments after the Qualification Date can be considered if it “casts light on” the functional impact of the impairment/s as at the Qualification Date.[9]
DID MR RICHARDS HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[9] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97
ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[10]
[10] Determination, s 3.
Mr Richards’ Medical Conditions
The Medical Report completed by Mr Richards in May 2016 as part of Centrelink’s review, listed Mr Richards’ medical conditions as:[11]
·cervical neck injury – C3 C5
·lower lumbar spine
·Numb hands and left leg, pins and needles in right arm
[11] Exhibit 1, T Documents, T18, page 122, DSP Report completed by Mr Richards dated 6 May 2016.
Neck condition
In or around September 2000, Mr Richards was hit by fallen framework which fell onto his neck from height and caused a soft tissue injury resulting in neck pain, parathesia in both hands and headaches.[12]
[12] Exhibit 1, T Documents, T4, page 42, Treating Doctor's Report of Dr Lloyd-Evans dated 9 August 2001; T6,
page 53, Treating Doctor's Report of Dr Lloyd-Evans dated 25 October 2001.
In March 2006 Dr Smith, General Practitioner, reported that Mr Richards said he had neck pain but that he (the doctor) had no knowledge of this condition.[13]
[13] Exhibit 1, T Documents, T12, pages 95 and 97, Treating Doctor's Report of Dr Smith dated 8 March 2006.
Lower Back Condition
In August 2001 Mr Richards was involved in an assault which caused severe twisting of his lumbar sacral spine resulting in a soft tissue injury to the muscles and ligaments of his lumbar sacral spine.[14]
[14] Exhibit 1, T Documents, T4, page 42, Treating Doctor's Report of Dr Lloyd-Evans dated 9 August 2001; T6,
page 53, Treating Doctor's Report of Dr Lloyd-Evans dated 14 January 2002.
In March 2006 Dr Smith reported that Mr Richards:[15]
(a)had chronic low back pain from lumbar disc disease and generalised degenerative changes;
(b)had back pain since the motor vehicle accident and work accident in 2000;
(c)had been assessed by a spinal specialist, Dr Scott-Young;
(d)had easy fatigability and limb weakness;
(e)had pain if he did light work for more than a short duration;
(f)was treating the condition with paracetamol; and
(g)in the past had a small amount of physiotherapy, but there was no future planned treatment.
[15] Exhibit 1, T Documents, T12, pages 95-96, Treating Doctor's Report of Dr Smith dated 8 March 2006.
Dr Smith reported that the impact of Mr Richards’ lower back condition on Mr Richards’ ability to function was expected to persist for more than 24 months and that the effect of the condition on his ability to function within the next 2 years was uncertain.
On 17 October 2017 Dr Sanjeev Taneja, Consultant Neurologist reported that an MRI of Mr Richards’ spine had shown no evidence of any cord or nerve compression.[16]
[16] Report of Dr Taneja dated 17 October 2017.
Fibromyalgia
In February 2002 Dr Sherwin, General Practitioner, reported that Mr Richards had fibromyalgia resulting in muscle aches, and numbness of the hands and feet.[17]
[17] Exhibit 1, T Documents, T8, page 63, Treating Doctor's Report of Dr Sherwin dated 6 February 2002.
In May 2016 Dr Singh referred Mr Richards to a neurologist.[18] The appointment with the neurologist, Dr Taneja, was scheduled for 15 November 2016.[19]
[18] Exhibit 1, T Documents, T19, page 135, Letter from Dr Singh dated 6 May 2016.
[19] Exhibit 1, T Documents, T20, page 137, Letter from Mid North Coast Specialist Outreach Clinic to Mr Richards
dated 12 May 2016.
Mr Richards told the Tribunal that when his DSP was being reviewed he attempted to obtain relevant/up-to-date medical information. There is no corroborating evidence of those attempts. Mr Richards also said he had tried to see a Neurologist in May 2016 but there were no appointments available and that he was unable to see Dr Tanekja until November 2016. Mr Richards told the Tribunal he had requested numerous extensions from Centrelink to obtain this evidence and that he was meeting with the neurologist again on 13 October 2017 to request a report. As a result the Tribunal allowed Mr Richards until 30 October 2017 to provide a report from his Neurologist for the Tribunal’s consideration.
On 17 October 2017 Dr Taneja, Consultant Neurologist, reported that a recent nerve conduction study had shown “electrophysiological evidence of generalised length dependent axonal sensori-motor neuropathy affecting both legs as well as arms. There is also evidence of maybe bilateral median neuropathy in keeping with carpel tunnel syndrome but was difficult to identify because of underlying generalised neuropathy.”

Dr Taneja started Mr Richards on Endep 10mg and said she would see him again in 6-8 months “to see how much improvement there is with his symptoms”. Dr Taneja reported that Mr Richards complained of back pain is a “musculoskeletal issue and he may be referred to a Rheumatologist for further opinion and management as it is beyond the scope of neurology”.
Conclusion on Impairment
The Secretary accepts that Mr Richards suffered from impairments for the purposes of section 94(1)(a) at the Qualification Date.[20]
[20] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 30 August 2017, para 41.
However, given the paucity of the medical evidence, the Tribunal is unable to find that

Mr Richards suffered from impairments for the purposes of section 94(1)(a) at the Qualification Date.
Whilst I accept that Mr Richards had a lower spine condition and a neck condition in 2006, there is no medical, or other corroborating, evidence after 2006 available for the Tribunal to consider whether these conditions are presently having any impact on Mr Richards’ ability to function. Further, there is no evidence of what treatment has been recommended and undertaken in relation to these conditions and Dr Taneja’s report would indicate that Mr Richards may need specialist review from a rheumatologist. In these circumstances there is no corroborating evidence available to consider these conditions for the purposes of ths application. The Tribunal also notes that a recent MRI of Mr Richards’ spine, referred to by Dr Taneja in her October 2017 report, raises doubts as to whether

Mr Richards is still suffering from a spinal condition.
The Tribunal acknowledges that Mr Richards may also suffer from fibromyalgia, however the only evidence from a specialist regarding the diagnosis of this condition is that of

Dr Taneja. While, the Tribunal gave Mr Richards the time needed to obtain this report,

Dr Taneja does not say that Mr Richards’ condition is the same today as it was at the Qualification Date. The Tribunal agrees with the Secretary that, because Dr Taneja’s Report does not address Mr Richards’ conditions at the Qualification Date, the report of

Dr Taneja has limited weight.[21]
[21] Secretary’s Further Submissions dated 8 November 2017, para 4.
Further, Dr Taneja’s recommendations for treatment indicate that the condition could not have been fully treated and fully stabilised at the Qualification Date.[22] There is no other evidence regarding what treatment had been recommended or undertaken by

Mr Richards for this condition as at the Qualification Date.
[22] Secretary’s Further Submissions dated 8 November 2017, para 5.
In the circumstances I am unable to consider this condition for the purposes of this application. Once this condition has been fully treated and is fully stabilised it is open to Mr Richards to lodge a new DSP claim.
DECISION
Mr Richards’ claim fails. His conditions did not satisfy the requirements of section 94 of the Act at the Qualification Date.
The decision under review is affirmed.

I certify that the preceding 30 (thirty) paragraphs are a
true copy of the reasons for the decision herein of Member D K Grigg

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Associate
Dated: 9 November 2017

Date of hearing:

Date last submissions received:

6 October 2017

8 November 2017

Applicant:
By phone

Solicitors for the Respondent:
Maleah Underhill, Lawyer

Department of Human Services

[2017] AATA 2297

9 November 2017

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