Robin Latham and Secretary, Department of Social Services

[2015] AATA 188

[2015] AATA 188

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/4506
Re	Robin Latham
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	27 March 2015
Place	Brisbane

The Tribunal affirms the decision under review.

...........................SGD.....................................

Dr P McDermott RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Whether 20 impairment points – Whether conditions fully diagnosed, treated and stabilised –– Decision 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

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

1. I have to determine whether Mr Robin Latham (“the applicant”) is entitled to disability support pension (“DSP”).

   PRIOR DECISIONS

2. On 23 September 2013 the applicant lodged his claim for DSP. On 11 December 2013 his claim was rejected. On 24 July 2014 an authorised review officer affirmed the decision to reject the claim. On 11 August 2014 the Social Security Appeals Tribunal (“SSAT”) affirmed the decision. On 29 August 2014 the applicant made an application to this Tribunal for review of the decision.

   RELEVANT LEGISLATION

3. The relevant legislation that is applicable to the determination of this application is the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).

4. Section 94 of the Act provides that in order to be qualified to receive DSP an applicant must have:

   (a)a physical, intellectual or psychiatric impairment;[1]

   (b)an impairment rating of at least 20 points;[2] and

   (c)a continuing inability to work.[3]

   [1] s 94(1)(a) of the Act.

   [2] s 94(1)(b) of the Act.

   [3] s 94(1)(c) of the Act.

5. The Administration Act provides that the start day for a claimant who qualifies to receive DSP is the date on which the claimant contacts the Department regarding the payment, this is the deemed date of claim.[4] The applicant will be entitled to receive DSP if he was qualified to receive that benefit as at the deemed date of the claim. If a claimant was not qualified to receive DSP on that date a claimant will nevertheless be entitled to receive DSP if the claimant qualified within thirteen weeks of lodging a claim. In that event, the start-day is the day that a claimant becomes qualified to receive the social security benefit.[5]

   [4] ss 13, 41, 42, Sch 2 cl 3 of the Administration Act.

   [5] Sch 2 cl 4(1) of the Administration Act.

6. There is also a Ministerial Determination to consider. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Disability Support Pension Determination”) came into force on 1 January 2012. The Disability Support Pension Determination contains the Impairment Tables which are applied to assess whether a person satisfies the qualification requirement in s 94(1)(b) of the Act. The Impairment Tables are function based, rather than diagnosis based and are intended to determine the level of functional impact of impairments.[6] This Determination is in evidence.[7]

   [6] s 5 Disability Support Pension Determination.

   [7] Exhibit A, f. 35.

   ASSESSMENT PERIOD

7. I am required to determine whether the applicant became qualified at any time within the thirteen week period (“the relevant period”) from when the applicant lodged the claim for DSP. There is no issue that this period commenced on 23 September 2013 and concluded on 24 December 2013.

   ISSUES FOR DETERMINATION

8. I am required to determine:

   a)whether the applicant, as at the date of the claim (or within 13 weeks of that date), had a physical, intellectual or psychiatric impairment; and

   b)whether the applicant had an impairment rating of at least 20 points or more under the Impairment Tables; and

   c)whether the applicant has a continuing inability to work.

   WHETHER THE APPLICANT HAS AN IMPAIRMENT

9. The claim form of the applicant did not disclose the impairments of the applicant. I find that within the relevant period the applicant had physical impairments as required by s 94(a)(1) of the Act. In making this finding I rely upon the medical report of Dr Storm, the treating doctor, dated 23 September 2013 in which Dr Storm reported that the applicant had osteoarthritis of the spine.[8] The material before me also discloses that the applicant had a condition of the left ankle, a condition of the left wrist as well as a hearing problem. The Secretary has quite properly conceded that the applicant suffers from these impairments.

   [8] Exhibit A, f. 129.

   ASSESSMENT OF IMPAIRMENTS

10. I am now required to consider whether, within the relevant period, the impairments of the applicant can be assigned an impairment rating of 20 points or more under the Impairment Tables as required by s 94(1)(b) of the Act.

    Spinal condition

11. In his report dated 23 September 2013 Dr Storm has reported that the applicant suffers from “Severe Degenerative Osteoarthritis Spine”.  Dr Storm reported that the onset of the condition was “at least 2012”. In giving evidence Dr Storm confirmed that he first saw the applicant on 9 September 2013 when he commenced treatment of “analgesia and Targin”. Dr Storm reported that past treatment was “analgesia and anti-inflammatories”. In his report he stated that the current symptoms include ‘low back pain, pain at night, restricting bending of back”.

12. The Disability Support Pension Determination provides that an impairment rating can only be assigned where the person’s impairment is permanent.[9] For this purpose a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner and the condition has been fully treated and fully stabilised.[10] These requirements have not been met within the relevant period.

    [9] s 6(3) Disability Support Pension Determination.

    [10] s 6(4) Disability Support Pension Determination.

13. I do not consider that the condition has been appropriately diagnosed by an appropriately qualified medical practitioner.  The spinal condition has yet to be investigated by an orthopaedic specialist.  Dr Storm was asked whether the spinal condition was fully investigated. Dr Storm replied that the condition was yet to be fully investigated. A referral to an orthopaedic specialist was only made on 15 September 2014; this was after the SSAT had commented that there was no such previous referral. The fact that Dr Storm has made such a referral indicated that he considers that the spinal condition warrants the attention of an orthopaedic specialist.  Dr Storm has quite properly recognised that the radiological evidence does not reflect the degree of pain experienced by the applicant. There is also no evidence of any radiological examination within the relevant period.

14. The spine condition could not be regarded as fully treated within the relevant period. A CT scan as well as guided injections was completed only after the relevant period.

15. Another reason why I consider that the condition is not fully treated is because there is a comment in the report of the job capacity assessor[11] that the applicant had physiotherapy treatment for his spine condition but had not followed the recommended exercise program. The applicant denies having had physiotherapy treatment but he elected not to give evidence in support of his application. Before the job capacity assessor gave evidence I informed the applicant that he had the opportunity to cross-examine the witness and challenge any part of the report of the job capacity assessor that he disagrees with. The applicant did not question any part of the report of the assessor.

    [11] Exhibit A, f. 113.

16. The Disability Support Pension Determination provides that a condition is fully stabilised if a person has undertaken reasonable treatment for the condition.[12] The expression “reasonable treatment” is defined in the Disability Support Pension Determination to mean treatment which is available and accessible to the person at a reasonable cost.[13]

    [12] s 6(6) Disability Support Pension Determination.

    [13] s 6(7) Disability Support Pension Determination.

17. It is concerning that the applicant who asserts that he has severe pain has not been treated by a pain management clinic. The applicant has been referred to a private pain management clinic but states that he is unable to afford the cost of such treatment. This may well be the case but the evidence before me is that the current waiting list for the Persistent Pain Management Service at the nearest public hospital to the applicant was less than 3 months. I consider that treatment at such a facility would be reasonable treatment. While Dr Storm has reservations about the efficacy of such treatment, but until the applicant has received such treatment I find that he has not undertaken reasonable treatment for his condition. This is why I consider that the spinal condition is not fully stabilised.

18. I find that the spinal condition of the applicant was not fully treated and stabilised at the date of claim or within the relevant period. The spinal condition therefore cannot be assigned a rating under the Impairment Tables. I should comment that if a rating had to be assigned to the spinal condition the Disability Support Pension Determination provides that symptoms reported by a person in relation to their condition can only be taken into account when there is corroborating evidence.[14] The applicant complains of pain that has a significant impact on his daily life. However, the treating doctor’s report that was completed after the lodgement of the claim refers only to “pain at night”. If the condition were to be rated any self-report of the applicant would need to be verified by corroborating evidence.

    [14] s 8(1) Disability Support Pension Determination.

    Other medical conditions

19. There are other medical conditions that I should mention. The material before me also discloses that the applicant had a condition of the left ankle, a condition of the left wrist as well as a hearing problem. These conditions cannot be rated because there is no medical evidence of the functional impact of these conditions. I note that the report of Dr Storm dated 23 September 2013 does not refer to these conditions; the report is designed so that any functional impacts of impairments are listed.

20. The applicant does not satisfy s 94(1)(b) of the Act as he cannot be assigned a rating for any of the impairments. It is not necessary for me to consider whether the applicant can be regarded as having a continuing inability to work as required by s 94(1)(c)(i) of the Act.

    DECISION

21. I affirm the decision under review.

    
    

I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member

...............................SGD..............................

Associate

Dated   27 March 2015

Date of hearing	5 February 2015
Applicant	In person
Solicitor for the Respondent	Nicholas Warren, Department of Human Services