Rockingham and Secretary, Department of Social Services (Social services second review)
[2016] AATA 499
•15 July 2016
Rockingham and Secretary, Department of Social Services (Social services second review) [2016] AATA 499 (15 July 2016)
| Division | GENERAL DIVISION |
| File Number(s) | 2016/1125 |
| Re | Barry Rockingham |
| APPLICANT | |
| And | Secretary, Department of Social Services |
| RESPONDENT |
DECISION
| Tribunal | Member D K Grigg |
| Date | 15 July 2016 |
| Place | Brisbane |
The decision under review is affirmed.
....................[sgd]......................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – 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)
CASES
De Vries v Secretary, Department Of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
REASONS FOR DECISION
Member D K Grigg
15 July 2016
INTRODUCTION
On 23 April 2015 Mr Rockingham was severely injured when he was run down by a truck. He suffered multiple fractures and was admitted to the intensive care unit at Gold Coast University Hospital. Mr Rockingham had an extensive period in ICU and was in hospital until 31 May 2015.[1]
[1] Respondent’s Statement of Facts and Contentions dated 30 May 2016, at paras [3]-[4].
On 22 June 2015 Mr Rockingham lodged a claim for Disability Support Pension (“DSP”). He listed his injuries as “20 broken bones”.[2] The Medical Claim form in support of the Claim, provided by Dr Babatunde, lists his medical conditions as (“Claimed Medical Conditions”):[3]
“Polytrauma, bilateral scapulae fractures, bilateral clavicular fractures, C7 spinous process fracture, thoracic spinous process fracture, multiple abrasions - pinna/scalp laceration, multiple rib fractures, undisplaced skull fractures.”
[2] T Documents, T6, pages 70-99, Mr Rockingham’s Claim for DSP dated 22 June 2015.
[3] T Documents, T5, pages 59-69, Medical Report Form by Dr Babatunde dated 19 June 2015.
To date Mr Rockingham’s claim has been rejected. Mr Rockingham seeks a further review by this Tribunal.
Claim History
As a result of a Job Capacity Assessment (JCA) Mr Rockingham’s claim was rejected by a Centrelink officer on 4 August 2015.[4] The JCA concluded that Mr Rockingham’s impairments were not fully treated and not fully stabilised.[5]
[4] T Documents, T15, page 119-120, Centrelink Decision dated 4 August 2015.
[5] T Documents, T14, pages 110-118, Job Capacity Assessment report dated 31 July 2015.
Mr Rockingham then sought a review of that decision by an Authorised Review Officer (“ARO”). The appeal to the ARO was unsuccessful on the grounds that Mr Rockingham’s impairments were not fully treated and not fully stabilised.[6]
[6] T Documents, T20, pages 138-142, Decision of Authorised Review Officer dated 10 November 2015.
Mr Rockingham then lodged an application for review with the Social Services and Child Support Division (“SSCSD”). The SSCSD rejected Mr Rockingham’s claim and affirmed the ARO’s decision on 8 February 2016.[7]
[7] T Documents, T2, pages 2-6, SSCSD’s Decision and Reasons for Decision dated 8 February 2016.
Mr Rockingham has sought a review of the SSCSD’s decision by this Tribunal.
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 Rockingham must have a physical, intellectual or psychiatric impairment;
(b)Mr Rockingham’s impairment 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”).[8]
(c)Mr Rockingham must have a continuing inability to work.
[my emphasis]
[8] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Rockingham meets the Section 94 Requirements is the date of the claim, (in this instance as at 22 June 2015) unless Mr Rockingham becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[9] Therefore, in order to qualify for DSP Mr Rockingham must have met the Section 94 Requirements between 22 June 2015 and 21 September 2015 (Qualification Period).
DID MR ROCKINGHAM HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: section 94(1)(a)?
[9] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration)
Act 1999 (Cth).
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 Rockingham’s Medical Conditions
In addition to the injuries suffered as a result of the motor vehicle accident, there is also a left knee medical condition. That condition is described in an Employment Services Assessment Report as “left Medical collateral ligament tear of the left knee”.[11]
[11] T Documents, T4, pages 55-58, Employment Services Assessment Report dated 27 October 2014.
Dr Babatunde reported during the Qualification Period that Mr Rockingham suffers chronic pain secondary to polytrauma from the motor vehicle accident which affects his movement, limits his daily activities and prevents him from sleeping well.[12]
[12] T Documents, T5, pages 59-69, Medical Report Form by Dr Babatunde dated 19 June 2015 and T13,
Additional Medical Evidence for DSP Record provided by Dr Babatunde dated 29 July 2015.
The JCA was conducted face-to-face with Mr Rockingham on 29 July 2015 by a Registered Psychologist and Rehabilitation Counsellor. The JCA assessors’ report states that Mr Rockingham suffered from:[13]
·Left knee medial collateral ligament and anterior cruciate ligament tears (which was found to be fully diagnosed but not fully treated and not fully stabilised);
·Chronic pain secondary to polytrauma from the motor vehicle accident (which was found to be fully diagnosed but not fully treated and not fully stabilised);
·Fractures and crush injuries of bilateral scapulae fractures, bilateral clavicular fractures, C7 spinal process fracture, thoracic spine process fracture, multiple abrasions - pinna/scalp laceration, multiple rib fractures, undisplaced skull fractures (which was found to be fully diagnosed, but not fully treated and not fully stabilised)
[13] T Documents, T 14, pages 110-118, Job Capacity Assessment report dated 31 July 2015.
The Respondent concedes that Mr Rockingham suffers from:[14]
(a)A pre-existing knee condition;
(b)Chronic pain secondary to polytrauma;
and satisfies section 94(1)(a) during the Qualification Period.
[14] Respondent’s Statement of Facts and Contentions dated 30 May 2016, at paras 19-20.
I am satisfied on the medical evidence that that is correct.
Conclusion on Impairments
In light of the above evidence I conclude that during the Qualification Period Mr Rockingham suffered the following Impairments for the purposes of the Act and that the requirement in section 94(1)(a) has been met:
·Lower limb impairment
·Chronic pain secondary to polytrauma
DO MR ROCKINGHAM’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: Section 94(1)(b)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[15] They are function based[16] and designed to assign ratings to determine the level of functional impact of impairment (Impairment Rating) and not to assess conditions.[17]
[15] Determination, ss 4(2) and 5(2)(a).
[16] Determination, s 5(2)(b) and (c).
[17] Determination, s 5(2)(d).
An Impairment Rating can be assigned to an impairment if:[18]
(a)Mr Rockingham’s condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[18] Determination, see s 6(3).
The requirement that a condition must be “permanent” is a requirement which applies as at the date the claim for a pension is lodged, or during the Qualification Period.[19]
[19] De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2014] FCA 368 at [12].
Mr Rockingham’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[20]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[20] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[21] the following are to be considered:[22]
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[21] For the purposes of ss 6(4)(a) and (b) of the Determination.
[22] Determination, see s 6(5).
A condition is fully stabilised[23] if:[24]
(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;[25] or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[23] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[24] Determination, see s 6(6).
[25] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it then has to be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an impairment rating using the Impairment Tables can be assigned.
However, before applying the Impairment Tables I must first consider Mr Rockingham’s medical history, in relation to the condition causing the impairment.[26]
[26] Determination, see s 6(2).
I will now consider each of Mr Rockingham’s impairments.
Lower Limb Impairment
Is Mr Rockingham’s lower limb impairment permanent and likely to persist for at least 2 years?
Impairment Table 3 which is concerned with Lower Limb Function provides that for the purposes of that Table lower limbs extend from the hips to toes.
Mr Rockingham’s knee condition was diagnosed by Dr Arreza and Dr Shaw (orthopaedic surgeon) in January 2009.[27]
[27] T Documents, T19, pages 124-137, Medical Report completed by Dr Arreza dated 17 October 2014
and attachments – MRI of left knee dated 7 January 2009.
Dr Arreza reports that:[28]
(a)the left knee condition was a result of a fall;
(b)Mr Rockingham was suffering from “pain and swelling of the left knee – recurrent giving way of knee”;
(c)in relation to the impact of this condition on Mr Rockingham’s function that Mr Rockingham was “receiving pain and swelling of the left knee – recurrent giving way of knee – resulting in unstable stance and [without a] full range of movement”;
(d)as at 17 October 2014, Mr Rockingham had been treated with a brace and was on pain relief and the future planned treatment included specialist orthopaedic review and further ultrasound;
(e)there had been no definite management of the condition and Mr Rockingham had been lost to follow up; and
(f)this condition was expected to persist for more than 24 months if not repaired and that the effect of this condition on Mr Rockingham’s ability to function within the 2 years was uncertain.
[28] T Documents, T Documents, T19, pages 124-137, Medical Report completed by Dr Arreza dated 17
October 2015.
The JCA concluded that Mr Rockingham’s lower limb impairment was fully diagnosed but was not fully treated and not fully stabilised as it requires further assessment and the prognosis is uncertain.[29]
[29] T Documents, T14, pages 110-118, at 111, Job Capacity Assessment report dated 31 July 2015.
The Respondent submitted that specialist referral and surgery was reasonable treatment.[30]
[30] See Respondent’s Statement of Facts and Contentions dated 7 January 2016, para 35.
“Reasonable treatment” is defined in s 6(7) of the Determination as:
(7)For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and(f) carries a low risk to the person.
I agree that specialist referral would constitute reasonable treatment.
Based on the medical evidence available in the Qualification Period I find that Mr Rockingham had been fully diagnosed with left knee medial collateral ligament and anterior cruciate ligament tears. However, I find that Mr Rockingham’s lower limb condition has not been fully treated or fully stabilised as, during the Qualifying Period, from the evidence available it is uncertain whether:
(a)Mr Rockingham would likely benefit from further treatment and physical therapy and specialist consultation;
(b)any further reasonable treatment is likely to result in significant functional improvement to a level enabling Mr Rockingham to undertake work in the next 2 years; and, therefore
(c)Mr Rockingham has undertaken reasonable treatment for the condition.
I find that during the Qualifying Period Mr Rockingham’s lower limb impairment was not fully treated or fully stabilised during the Qualifying Period and therefore is not permanent and no Impairment Rating can be assigned.
Chronic Pain from Polytrauma
Is Mr Rockingham’s chronic pain impairment permanent and likely to persist for at least 2 years?
Dr Babatunde reported on 19 June 2015 that:[31]
(a)Mr Rockingham was suffering from “pain, limited daily activities, pain prevents him from sleeping well. Likely to be ongoing for a while. Duration uncertain”;
(b)since the accident Mr Rockingham had been treated with Panadeine forte, simple analgesia, hospitalisation at Gold Coast University Hospital, physiotherapy and rehabilitation at Gold Coast University Hospital;
(c)future planned treatment included continued physiotherapy, rehabilitation and pain management;
(d)this condition was expected to persist for more than 24 months and that the effect of this condition on Mr Rockingham’s ability to function within the 2 years was uncertain; and
(e)this condition was “likely to impact patient’s ability to function for a while. It depends on his response to analgesia, rehabilitation and physiotherapy as well as his mental state”.
[31] T Documents, T5, pages 59-69, Medical Report Form by Dr Babatunde dated 19 June 2015 and T13,
Additional Medical Evidence for DSP Record provided by Dr Babatunde dated 29 July 2015.
Physiotherapists reports indicate that:
Mr Rockingham’s decreased range, strength and pain in his shoulders are his main problems. I have referred him to CBRT OT and Speech Pathology for review.[32]
[Pain] is the greatest thing affecting his rehabilitation at the moment. He only takes morphine when the pain is severe. I was hoping that some more constant pain relief will enable him to do more and we can start working on regaining his function in his shoulders. I have started him on gentle strengthening and ROM exercises.[33]
He is still suffering a lot of pain and inability to use his arms. In my opinion he is unable to work any hours at this point. I would suggest that he is reviewed re work capacity in about 4 months.[34]
[32] T Documents, T7, pages 100-101, Letter from Angela Dicks (Physiotherapist) dated 3 July 2015.
[33] T Documents, T8, page 102, Letter from Shelley Verrenkamp (Physiotherapist) dated 10 July 2015.
[34] T Documents, T12, page 106, Letter from Shelley Verrenkamp (Physiotherapist) dated 24 July 2015.
Dr Babatunde reported on 24 July 2015 that Mr Rockingham:[35]
Has ongoing pains – neck, back, arms, shoulders. Feels low, cannot afford to do anything like before as he has no money. Unable to work and almost always in pain, making him depressed.
[35] T Documents, T10, page 104, Medical Certificate Form by Dr Babatunde dated 24 July 2015.
The JCA reported that during a telephone interview with Dr (Adebola) Babatunde on 29 July 2015 that Dr Babatunde reported that the prognosis of Mr Rockingham’s condition was uncertain but that there is an expectation of improvement and additional treatments being looked into including occupational therapy, psychological counselling and pain clinic referral.[36]
[36] T Documents, T14, pages 110-118, at 113, Job Capacity Assessment report dated 31 July 2015
The JCA concluded that this condition was not fully treated or fully stabilised.[37]
[37] T Documents, T14, pages 110-118, at 113-114, Job Capacity Assessment report dated 31 July 2015
The Respondent contends that Mr Rockingham’s chronic pain condition from polytrauma was not fully treated and not fully stabilised in the Qualification Period.[38]
[38] See, Respondent’s Statement of Facts and Contentions dated 30 May 2016, para 35.
I find that he had been fully diagnosed with chronic pain condition from polytrauma.
The Qualification Period was only 3 to 5 months after Mr Rockingham’s horrific accident. It is important to keep in mind that medical evidence concerning the functional impact of Mr Rockingham’s impairments after the Qualification Period cannot be considered unless it “casts light on” the functional impact of the impairments in the Qualification Period.[39]
[39] 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; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
The law can sometimes seem harsh in its application. However, based on the medical evidence available and referred to above during the Qualification Period, there was future planned treatment, Mr Rockingham was to have specialist review and had commenced physiotherapy.
Whilst I note the letter from Dr Thompson, Mr Rockingham’s general practitioner, in March 2016 stating that Mr Rockingham is “totally and permanently disabled” and “will not improve with specialist intervention”, I find, that for the purposes of the legislation and the requirement that Mr Rockingham becomes qualified within the Qualification Period, Mr Rockingham’s condition has not been fully treated or fully stabilised. From the evidence available it is uncertain whether:
(a)Mr Rockingham would likely benefit from further treatment and physical therapy and/or other therapies being investigated;
(b)any further reasonable treatment is likely to result in significant functional improvement to a level enabling Mr Rockingham to undertake work in the next 2 years; and, therefore
(c)Mr Rockingham has undertaken reasonable treatment for the condition.
As a result I find that Mr Rockingham’s chronic pain impairment is not permanent and no Impairment Rating can be assigned.
Mr Rockingham is, of course, able to submit a new application for DSP in the event that his conditions are now permanent.
CONCLUSION
As I have concluded that Mr Rockingham’s impairments are not permanent and therefore do not attract an Impairment Rating in the Qualification Period, it is unnecessary for me to consider whether Mr Rockingham had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) at that time.
Mr Rockingham’s claim fails because he did not qualify for DSP during the Qualification Period.
The decision under review is affirmed.
| I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg |
...........[sgd].............................................
Associate
Dated 15 July 2016
| Date of hearing | Hearing on the papers (27 June 2016) |
| Applicant | Barry Rockingham |
| Advocate for the Respondent | Christopher Bishop |
| Solicitors for the Respondent | Department of Human Services, FOI and Litigation Branch |
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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Statutory Construction
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Appeal
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Procedural Fairness
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