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

[2016] AATA 698

Scott and Secretary, Department of Social Services (Social services second review) [2016] AATA 698 (9 September 2016)

Division	GENERAL DIVISION
File Number	2016/0107
Re	Gregory Scott
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	D. J. Morris, Member
Date	9 September 2016
Place	Perth

The Tribunal affirms the reviewable decision.

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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 – treatment recommended but not yet undertaken – not qualified for DSP – decision affirmed

LEGISLATION

Social Security Act 1991 – s 94(1) – s 94(1)(a) – s 94(1)(b) – s 94(1)(c)

SECONDARY MATERIALS

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

CASES

Fanning and Secretary, Department of Social Services (2014) 144 ALD 133; (2014) 64 AAR 466; [2014] AATA 447

REASONS FOR DECISION

D. J. Morris, Member

9 September 2016

BACKGROUND

1. Mr Gregory Scott seeks a review of the decision of the Social Security and Child Support Division of the Administrative Appeals Tribunal (AAT1) on 8 December 2015 to affirm the decision of the Department of Social Services (‘the Department’) that he is not qualified for Disability Support Pension (DSP). 

2. The hearing was held on 18 August 2016. The Applicant was self-represented.  The Respondent was represented by Ms Jacky Vetter.  Mr Scott gave evidence under affirmation and was cross-examined by counsel for the Respondent.

3. The Respondent tendered documents submitted under section 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ documents).

   FACTS

4. Mr Scott is a 55 year old gentleman whose DSP was cancelled on 5 May 2015 after a medical review.

5. He was first awarded DSP in October 1996. In November 2014 he notified the Department that he planned to travel to New Zealand for more than six weeks.  This triggered a medical review.  The medical review concluded that Mr Scott’s conditions did not qualify him for DSP and it was cancelled on 5 May 2015. Mr Scott sought a review by an Authorised Review Officer (ARO).

6. On 29 May 2015 the ARO affirmed the original decision to cancel the DSP.  Mr Scott sought a review of the original decision before the Social Services and Child Support Division of this Tribunal (AAT1).  On 8 December 2015, AAT1 affirmed the decision.

7. Mr Scott then sought a review before the General Division of this Tribunal. That is this hearing.

   QUESTION BEFORE THE TRIBUNAL

8. Was the Applicant qualified to receive the DSP on 5 May 2015, the date it was cancelled?

   Qualification for DSP under the Act

9. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Social Security Act 1991 (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;

   (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.

10. The Impairment Tables under which a person must be assessed under the Act are the Impairment Tables implemented from 1 January 2012 and set out in Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

11. 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.

12. However, because Mr Scott’s initial grant of a DSP was made on 31 October 1996 his qualification for DSP, in respect of determining a continuing inability to work, should be assessed against the criteria as they were prior to 1 July 2006. The Respondent submitted that, if the Tribunal finds that the Applicant satisfies sections 94(1)(a) and 94(1)(b) of the Act, he did have a continuing inability to work as at the date of cancellation and ipso facto satisfied section 94(1)(c).

    Does the Applicant have a physical, intellectual or psychiatric impairment?

13. Dr John Brown Kerr’s medical report on the Applicant dated 20 November 2014 was before the Tribunal.  He identified two medical conditions.  He said that Mr Scott had been diagnosed with ‘hypoxic brain injury secondary to ventricular fibrillation cardiac arrest’ in 2009 and hairy cell leukaemia, diagnosed in 2011.

14. The Tribunal finds that the Applicant does satisfy section 94(1)(a) of the Act in that he did have a number of medical conditions giving rise to impairment on the date of cancellation.

    If so, what is the correct rating under the Impairment Tables?

15. 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.

16. 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 the light of available evidence, to persist for more than 2 years.

17. 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.

18. As found above, Mr Scott comes to the Tribunal with a number of medical conditions which the Respondent conceded were capable of giving rise to an impairment on 5 May 2015, for the purposes of section 94(1)(a) of the Act.

    Apparent hypoxic brain injury

19. Mr Scott had a cardiac arrest in 2009. There is medical evidence that he may have suffered a hypoxic brain injury as a result.  He experienced “downtime of approximately 45 minutes and hence subservient hypoxic brain injury”, according to Dr Kerr’s 1 June 2015 medical report.

20. A registrar in neurology at the Wellington Street Campus of Royal Perth Hospital, Dr Owen McWilliam, in a report dated 4 September 2014, said that on examination he found Mr Scott’s cranial nerves to be “grossly normal”:

    His power, sensation, proprioception, reflexes and coordination are all intact.  Furthermore he has no focal cerebella signs, and a normal gait.

21. Dr McWilliam said that the Applicant appears to have some degree of memory impairment and some possible involvement of visuo-spatial functioning and that “we have decided to work him up for consideration of a primary, versus secondary cause of this.”

22. Dr McWilliam reported that “an MRI had been requested for signs of atrophy [and] hypoxic brain injury.”

23. The Respondent contended that the nature of this condition could not be considered to be fully diagnosed as at the date of cancellation and, as a consequence, could not be assigned a rating under the Impairment Tables.

24. Mr Scott said that he went to see Professor Peter Panegyres, consultant neurosurgeon, in May or June 2015 – he was not certain of the precise date but confirmed it was after his DSP was cancelled.  He said he is on a waiting list for cognitive testing.

25. In terms of cognition, the Applicant presented his case to the Tribunal fluently and logically.  He gave evidence that he goes to the local shops and is able to use stairs.  He says he is able to drive but prefers to walk to the shops.  He said he has trouble, now, playing darts and, periodically, with some memory functions, which frustrates him.  Dr Kerr’s medical report of 20 November 2014 indicates that Mr Scott was awaiting further review at the Neurosciences Unit at Graylands Hospital.

26. On balance, the Tribunal finds that the medical evidence tends to support a confirmed diagnosis of hypoxic brain injury.  However, it is neither fully treated nor fully stabilised.  Mr Scott is awaiting further medical procedures and his doctors are considering options for his treatment.  Accordingly, under Rule (6)(5)(c) of the Impairment Tables, treatment is continuing and is planned in the next 2 years.

27. In Fanning and Secretary, Department of Social Services, DP Handley noted (at [33]) that:

    The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years”. While hindsight may suggest that treatment did not result in improvement within two years that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.

28. While this decision related to an application for DSP, the principle is the same in terms of assessing whether a person is qualified: if further treatment is planned, and if it is reasonable treatment that may result in a functional improvement of a person’s condition, then it militates against a finding that a condition is fully treated and fully stabilised. 

29. The Tribunal finds that, in these circumstances with further treatment pending as at the date of cancellation, impairment points cannot be correctly assigned to the Applicant’s hypoxic brain injury condition.

    Hairy cell leukaemia

30. Dr John Brown Kerr’s medical report of 20 November 2014 was before the Tribunal.  He referred to a diagnosis of hairy cell leukaemia with the endorsement “treated August 2011 – relapse August 2014” and said that the diagnosis was confirmed by Dr Andrew Barr, a consultant haematologist at Royal Perth Hospital. Dr Kerr said that the condition led to the Applicant having increased tiredness and fatigue. He stated that the condition was likely to persist for up to 24 months and the prognosis was uncertain, reporting that his assessment of the condition is that it will “hopefully improve, but further relapses always possible.”

31. The Tribunal notes that this condition is also corroborated by the medical report of Dr Tony Calogero, consultant haematologist at Royal Perth Hospital, dated 31 March 2015.

32. The Respondent conceded that Mr Scott’s condition of hairy cell leukaemia was fully diagnosed, treated and stabilised as at the date of cancellation. However, the Secretary contended that this condition caused the Applicant only ‘mild’ functional impact on activities requiring physical stamina and exertion and should therefore be assigned 5 points under the Impairment Tables.

33. Mr Scott said his leukaemia was in remission but he had relapses.  He said that he had nausea once a week, sometimes twice.  He said that he had headaches and perspiration periods when undergoing chemotherapy but is not currently having chemotherapy.

34. The Tribunal finds, on the evidence before it and on the Applicant’s own evidence at the hearing, that Mr Scott’s hairy cell leukaemia condition may be correctly assigned points under Table 1 – Functions requiring Physical Exertion and Stamina of the Impairment Tables and that the correct assignment of points using the Descriptors in that Determination is 5 points – that this condition has a ‘mild’ functional impact on his activities.  It is a condition that causes the Applicant periodic unpleasantness, but he is coping with it well.

    Spinal condition

35. The Respondent accepted that Mr Scott had a back condition that was fully diagnosed, fully treated and fully stabilised but noted that he sustained a new injury to his back prior to the date of cancellation and was referred to a neurosurgeon in June 2015 for investigation and management.  The Secretary contended that, owing to pending medical consultations at the time of cancellation and a medical opinion that Mr Scott may require fusion surgery, his general spinal condition could not now be regarded as fully treated or stabilised and therefore cannot be correctly assigned points under the Impairment Tables.

36. Mr Scott gave evidence that he did washing and had no difficulty hanging clothes on the line, but did not do so when his sciatica was hurting.  He did some cooking at home.

37. Mr Scott’s evidence to the Tribunal was that he originally hurt his back in 1990 but had a fall at home in mid-April 2015 and was briefly knocked unconscious.  He went to see Dr Kerr and was offered back surgery.  He said that he had an x-ray that showed new protrusions into his spine.  He confirmed that fusion surgery had been recommended but this was a major step and he had decided against this surgery at present and ‘would live with the pain.’  He gave evidence that he had been recommended to see a pain specialist but had not done so yet.

38. Dr Kerr’s letter of 2 June 2015 reported, in relation to Mr Scott’s spinal condition:

    Current treatment is with analgesics.  Mr Scott has also been offered a nerve root sleeve injection at L5 root on the right side, and is currently considering this option.  If the pain does not settle in the next 6-8 weeks, then he will be referred for a Neurosurgical opinion.

39. Apart from Mr Scott’s evidence that he believes that fusion surgery is a significant procedure and that, at present, he will put up with some pain, he did not advance any case that he would not undertake the further treatment, nor that he felt that the treatment recommended was unreasonable.

40. The Tribunal finds, on the medical reports before it, and on Mr Scott’s own evidence about weighing up recommended treatment, and given his fall which exacerbated his historical back condition in April 2015, that this condition cannot be regarded as fully treated or fully stabilised. Under Rule 6(4) of the Impairment Tables, it cannot correctly be assigned impairment points.

    Other medical conditions

41. The Applicant had coronary artery stents inserted following his myocardial infarction in 2009.  He also had excision of a melanoma in 2012.  Dr Kerr in his medical report dated 1 June 2015 said that both of these conditions cause minimal or limited impact on Mr Scott’s ability to function.

42. The Tribunal finds, on the evidence, that the other conditions did not have any apparent functional impact on Mr Scott’s activities and cannot be assigned points under the Impairment Tables.

    CONCLUSION

43. As Mr Scott was originally granted a DSP before the changes to the law relating to a continued inability to work came into effect, his personal situation is ‘grandfathered’ in this respect, which means if he is found to satisfy section 94(1)(a) and 94(1)(b) of the Act, then he, ipso facto, in the submission of the Secretary, satisfies section 94(1)(c) in regard to inability to work.

44. However, for a person to be eligible for DSP, each sub-part of section 94 of the Act must be satisfied. The Tribunal has found that Mr Scott is correctly allocated a total of 5 points under the Impairment Tables. The requirement of section 94(1)(b) of the Act of attaining 20 or more points is therefore not satisfied at the date of cancellation. The consequence is that the Applicant was not qualified for DSP on 5 May 2015.

45. I understand that this outcome will be disappointing to the Applicant, but my findings mean that the original decision was correct.

    DECISION

46. The reviewable decision is affirmed.

I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of D. J. Morris, Member

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Administrative Assistant

Dated 9 September 2016

Date of hearing	18 August 2016
Applicant	In person
Representative for the Respondent	Ms J Vetter
Solicitors for the Respondent	Sparke Helmore Lawyers