Scott; Secretary, Department of Social Services and (Social services second review)
[2019] AATA 1119
•5 June 2019
Scott; Secretary, Department of Social Services and (Social services second review) [2019] AATA 1119 (5 June 2019)
Division:GENERAL DIVISION
File Number: 2017/6519
Re:Secretary, Department of Social Services
APPLICANT
Richard ScottAnd
RESPONDENT
DECISION
Tribunal:Member D K Grigg
Date:5 June 2019
Place:Brisbane
The Tribunal sets aside the decision under review and substitutes it with a decision that Mr Scott was not qualified for Disability Support Pension during the Qualification Period pursuant to section 94(1)(b) of the Social Security Act 1991 (Cth).
..............................[SGD]..................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions permanent – whether 20 points or more under the impairment tables during the relevant period – whether continuing inability to work – decision under review set aside
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (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
Brien; Secretary, Department of Social Services and (Social services second review) [2016] AATA 869
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Franks v Secretary, Department of Family and Community Services[2002] FCAFC 436
Shields and Secretary, Department of Social Services (Social services second review) [2015] AATA 759
Smith and Secretary, Department of Social Services (Social services second review) [2017] AATA 529SECONDARY MATERIALS
Explanatory Memorandum To The Social Security And Other Legislation Amendment Bill 2011
Explanatory Statement To The Social Security (Tables For The Assessment Of Work-Related Impairment For Disability Support Pension) Determination 2011 Fully StabilisedREASONS FOR DECISION
Member D K Grigg
5 June 2019
BACKGROUND AND CLAIMS HISTORY
On 20 December 2016 Mr Richard Scott (“Mr Scott”) lodged a claim with the Department of Social Services (“Centrelink”) for Disability Support Pension (“DSP”). Mr Scott described his medical conditions as follows:[1]
Suboxone program, back injury – bad pain, paranoid 2 years solitary, asthma, sleep deprived on and off, antisocial (10 ½ years in prison), medications, scoliosis, disc degeneration
[1] Exhibit 7, T Documents, T27, pages 157–190, Mr Scott’s Claim for DSP dated 20 December 2016.
Mr Scott provided Centrelink with a health summary report from his General Practitioner, Dr Tim Shannon (“Dr Shannon”). Dr Shannon reported that Mr Scott’s current active problems were scoliosis of the spine which began in 2010, disc degeneration which began in 2015 and hepatitis C which was diagnosed in 2015.[2]
[2] Exhibit 7, T Documents, T27, pages 189–190, health summary sheet.
In April 2017 a job capacity assessment (“JCA”) was conducted by a Rehabilitation Counsellor, Registered Psychologist and Registered Nurse. The JCA report indicated that:[3]
[3] Exhibit 7, T Documents, T28, pages 191–197, JCA report dated 13 April 2017.
(a)In relation to Mr Scott’s drug dependency, Mr Scott:
(i)had commenced drug usage at the age of 11;
(ii)was drug dependent;
(iii)was currently on a Suboxone detoxification program;
(iv)was likely to continue to have a drug dependency issue for more than 24 months;
(b)there was minimal medical evidence in relation to the treatment provided for the drug dependency condition and therefore the condition was considered not fully treated and stabilised;
(c)Mr Scott may have paranoid personality disorder and antisocial personality disorder, however there is no medical evidence of engagement with a psychiatrist or clinical psychologist for assessment diagnosis and treatment and therefore the condition cannot be considered fully diagnosed, treated or stabilised;
(d)In relation to Mr Scott’s spine:
(i)Mr Scott has degeneration and scoliosis of the spine;
(ii)he has had chiropractic treatment and has been referred to a pain specialist;
(iii)in 2015 it was recommended Mr Scott have physiotherapy but it is unknown whether or not this occurred;
(iv)Mr Scott had also been referred to the Gold Coast Hospital Neurosurgical Department;
(v)Mr Scott’s spinal condition can be considered fully diagnosed but there is insufficient current medical evidence to determine whether the condition is fully treated and stabilised;
(e)Mr Scott was diagnosed with hepatitis C in 2015 but the condition is considered temporary as it can be eradicated with antiviral medication therapy; and
(f)while Mr Scott indicated that he had asthma there was no medical evidence regarding this condition.
On 27 April 2017 Dr Shannon provided a medical report to Centrelink confirming that Mr Scott was unable to work due to:[4]
(a)chronic back pain which will not improve;
(b)drug dependency;
(c)antisocial personality disorder;
(d)his being deconditioned to physical labour;
(e)the fact that he has been unable to manage stable employment;
(f)his need to treat his hepatitis C; and
(g)chronic liver disease.
[4] Exhibit 7, T Documents, T29, page 198, medical certificate of Dr Shannon dated 27 April 2017.
As a result of the JCA, Centrelink determined on 29 April 2017 to reject Mr Scott’s claim for DSP.[5]
[5] Exhibit 7, T Documents, T31, pages 200–201, rejection of DSP claim dated 29 April 2017.
Mr Scott requested that his application be reviewed by an Authorised Review Officer (“ARO”).[6] The review by the ARO was unsuccessful on the grounds that Mr Scott’s impairments were either not fully treated and not fully stabilised, or did not attract 20 points or more under the Impairment Tables.[7]
[6] Exhibit 7, T Documents, T32, page 202, confirmation of request for review dated 16 May 2017.
[7] Exhibit 7, T Documents, T33, pages 203–211, ARO Decision and notes dated 19 May 2017.
Mr Scott then lodged an application for review with the Social Services and Child Support Division of this Tribunal (“SSCSD”). The SSCSD accepted Mr Scott’s claim and set aside the ARO’s decision on 27 September 2017.[8] The SSCSD found that:
(a)Mr Scott’s spinal condition was permanent and was having a moderate impact on his ability to function;
(b)Mr Scott’s drug dependency was permanent and was having a moderate impact on his ability to function; and
(c)Mr Scott had a continuing inability to work.
[8] Exhibit 7, T Documents, T2, pages 3–17, SSCSD’s Decision and Reasons for Decision dated 27 September 2017.
The Secretary has sought a review of the SSCSD’s decision by this Tribunal.[9]
[9] Exhibit 7, T Documents, T1, pages 1–2, Application for Review of Decision dated 2 November 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 Scott must have a physical, intellectual or psychiatric impairment/s;
(b)Mr Scott’s 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”);[10] and
(c)Mr Scott must have a continuing inability to work.
[emphasis added]
[10] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Scott meets the Section 94 Requirements is the date of the claim (in this instance as at 20 December 2016), unless Mr Scott becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[11] Therefore, in order to qualify for DSP Mr Scott must have met the Section 94 Requirements between 20 December 2016 and 21 March 2017 (“Qualification Period”).
[11] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration)
Act 1999 (Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Scott’s impairments after the Qualification Period cannot be considered unless it “casts light on” the functional impact of the impairments in the Qualification Period.[12]
DID MR SCOTT HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A) OF THE ACT?
[12] 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.
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”.[13]
Mr Scott’s Medical Conditions
[13] Determination, s 3.
Lumbar Spine
In August 2013 Mr Scott had a CT scan of his lumbar spine which found multilevel degenerative spondylotic changes, most significantly at L2/3. An MRI was recommended for further evaluation.[14]
[14] Exhibit 7, T Documents, T6, page 75, CT scan report dated 13 August 2013.
In August 2013 Mr Scott was referred to a Neurosurgery Clinic at the Gold Coast Hospital.[15]
[15] Exhibit 7, T Documents, T7, page 76, confirmation of referral dated 22 August 2013.
In February 2014 Dr Mohan Purshothaman (“Dr Purshothaman”), General Practitioner, reported that Mr Scott had lumbar spine disc disease and was awaiting physiotherapy/chiropractor referral and neurosurgery review at the Gold Coast Hospital. His current symptoms were low back pain.[16]
[16] Exhibit 7, T Documents, T9, page 79, medical certificate of Dr Purshothaman dated 5 February 2014.
Mr Scott was referred to a chiropractor on 5 February 2014.[17]
[17] Exhibit 7, T Documents, T10, page 80, referral to allied health services dated 5 February 2014.
In May 2014 Dr H T Tran (“Dr Tran”), General Practitioner, reported that Mr Scott:[18]
(a)had chronic low back pain and scoliosis;
(b)had spinal stenosis which began in 2013;
(c)was treating his back condition with pain relievers; and
(d)was likely to suffer the impact of the condition for more than 24 months and that the effect of the condition in his ability to function was expected to remain unchanged for the next 2 years.
[18] Exhibit 7, T Documents, T11, page 81, medical certificate of Dr Tran dated 3 May 2014; T12, pages 82–92, report of Dr Tran dated 14 May 2014.
In March 2015 Dr Shannon reported that Mr Scott was suffering from sciatica which was causing back and leg pain.[19]
[19] Exhibit 7, T Documents, T14, page 99, medical certificate of Dr Shannon dated 17 March 2015.
A bone scan conducted in April 2015 indicated that Mr Scott had low grade active arthropathy anterolaterally on the right L2/3.[20]
[20] Exhibit 7, T Documents, T15, page 100, bone scan report dated 15 April 2015.
In April 2015 Dr Tim Grice (“Dr Grice”), Pain Specialist, reported that:[21]
[21] Exhibit 7, T Documents, T22, pages 134–135, report of Dr Grice dated 16 April 2015.
(a)Mr Scott reported that he had received some chiropractic treatment in the past but was unsure if it was of any benefit;
(b)Mr Scott was awaiting referral to the Neurosurgical Department Gold Coast Hospital for his mild stenosis in his lumbar spine and disc degeneration;
(c)Mr Scott reported a grinding central lower back pain slightly worse on the right and that he occasionally feels click in his right pelvis;
(d)in Dr Grice’s opinion Mr Scott has:
(i)lower back pain secondary to left superior cranial nerve entrapment and left sacroiliac joint arthropathy (intermittent);
(ii)left iliolumbar ligamental strain;
(iii)possible left L4/5, L5/S1 facet joint arthropathy; and
(iv)L4/5 disc generation seen on CT scan;
(e)to further elucidate the pain he had arranged for a bone scan;
(f)Mr Scott was keen to be placed on DSP; and
(g)in his opinion Mr Scott did not appear to be too disabled and was certainly treatable.
In May 2015 Dr Shannon reported that:[22]
(a)Mr Scott had low back pain and sciatica, and this had been confirmed by chronic pain specialist Dr Grice;
(b)current treatment included physiotherapy;
(c)it was planned to have HCLA injections to his L2/3-disc nerves;
(d)Mr Scott has fluctuating lower back pain, numbness and electric jolts in his left leg;
(e)Mr Scott’s spinal condition began in 2002 and was aggravated in 2005 – it has been episodic since then;
(f)Mr Scott has difficulty with driving; and
(g)the impact of his spinal condition is likely to persist for 3 to 12 months and the effect on his ability to function is expected to fluctuate.
[22] Exhibit 7, T Documents, T17, pages 103–113, medical report of Dr Shannon dated 12 May 2015.
On 3 June 2015 Dr Grice reviewed Mr Scott again and reported that he believed Mr Scott would benefit from a steroid facet joint injection to see if it alleviates his symptoms and, if positive, some physiotherapy to remove his secondary muscle spasm. Dr Grice stated that Mr Scott could use Celebrex for no greater than one week each month for any flares in his pain.[23]
[23] Exhibit 7, T Documents, T19, page 115 report of Dr Grice dated 3 June 2015.
On 4 June 2015 Mr Scott had a CT guided right L2/3 facet joint injection.[24]
[24] Exhibit 7, T Documents, T18, page 114, CT report dated 4 June 2015.
In July 2015 Dr Shannon’s clinical records showed that:[25]
(a)Mr Scott’s low back pain had been helped by his recent facet joint injection 2 weeks ago;
(b)Mr Scott’s chronic pain condition was to be treated with further injections but that the benefit would only be temporary;
(c)Mr Scott cannot complete physically active tasks around his home without difficulty and requires oxygen treatment during the day to move around;
(d)Mr Scott’s spinal condition impacts on his ability to effectively participate in work education or training activities; and
(e)the condition is expected to impact on his ability to function for 3–24 months and the impact is likely to remain unchanged.
[25] Exhibit 7, T Documents, T22, pages 125–126, medical records dated June–July 2015; T23 pages 138–143, report of Dr Shannon dated 18 July 2015.
In June 2016 Dr Shannon reported that Mr Scott had chronic pain and that his prognosis was uncertain.[26]
[26] Exhibit 7, T Documents, T25, page 152, medical certificate of Dr Shannon dated 7 June 2016.
In May 2017 Dr Shannon referred Mr Scott to a physiotherapist.[27]
[27] Exhibit 7, T Documents, T34, page 214, Allied health referral form dated 23 May 2017.
Dr Shannon noted in a GP Management Plan (“GPMP”) in May 2017 that Mr Scott had had little therapy directed at the cause of his pain and may require an assessment from an osteopath/physio/podiatrist[28] and possible referral to a rheumatologist and/or orthopaedic surgeon to consider options for surgical intervention.[29]
[28] Exhibit 7, T Documents, T34, page 216, GPMP dated 23 May 2017.
[29] Exhibit 7, T Documents, T34, page 219, GPMP dated 23 May 2017.
In September 2017 Dr Shannon reported that in his opinion Mr Scott’s spinal condition was fully diagnosed and all reasonable treatments have been undertaken for the condition, and that this was the case from June 2015. In Dr Shannon’s opinion Mr Scott’s spinal condition was not having an impact on his ability to function.[30]
[30] Exhibit 2, Secretary’s Statement of Facts and Contentions, annexure 2, response to questionnaire prepared by Basic Rights Queensland by Dr Shannon dated 23 September 2017.
In March 2018 the Secretary arranged for Mr Scott to be assessed by Dr Keith Adam (“Dr Adam”), Occupational Medicine Specialist. In Dr Adam’s opinion:[31]
(a)Mr Scott would likely benefit from a program of graduated exercise directed towards strengthening his lower back muscles;
(b)although Mr Scott had a variety of treatments including some physiotherapy while in jail there is no evidence that this treatment was maintained consistently; and
(c)Mr Scott would improve with the program of graduated exercise, initially supervised by a physiotherapist, and this would be likely to result in significant functional improvement over 2 years.
[31] Exhibit 2, Secretary’s Statement of Facts and Contentions, annexure 1, report of Dr Adam dated 21 March 2018.
Drug Dependency Condition
In July 2015 Dr Shannon reported that Mr Scott:[32]
(a)had drug use and psychotic symptoms;
(b)took Suboxone daily;
(c)had been in jail for 10 years;
(d)required a psychiatric assessment as he was paranoid;
(e)had limited endurance, poor flexibility, avoided people, had a poor appetite and was unable to drive; and
(f)within the next 2 years the impact of this condition on his ability to function was likely to slightly improve.
[32] Exhibit 7, T Documents, T22, pages 125–126, medical records dated June–July 2015; T23 pages 144–150, report of Dr Shannon dated 18 July 2015.
In June 2016 Dr Shannon reported that Mr Scott had heroin dependency and was on a Suboxone program.[33]
[33] Exhibit 7, T Documents, T25, page 152, medical certificate of Dr Shannon dated 7 June 2016.
Dr Shannon noted in a GPMP in May 2017 that Mr Scott had possible opioid medication dependency with current and future use.[34]
[34] Exhibit 7, T Documents, T34, page 216, GPMP dated 23 May 2017.
In September 2017 Dr Shannon reported that in his opinion Mr Scott’s alcohol and drug dependency was fully treated as at 11 December 2014. Dr Shannon reported that Mr Scott had:[35]
(a)been on Suboxone and had reduced his illicit drug use;
(b)spent 10 years in jail;
(c)been on a methadone program prior to 2014; and
(d)not been able to manage full-time work.
[35] Exhibit 2, Secretary’s Statement of Facts and Contentions, annexure 2, response to questionnaire prepared by Basic Rights Queensland by Dr Shannon dated 23 September 2017.
In March 2018 Dr Adam reported that in his opinion Mr Scott had undertaken reasonable treatment for his drug dependency and the condition can be considered to be fully treated and stabilised.[36]
[36] Exhibit 2, Secretary’s Statement of Facts and Contentions, annexure 1, report of Dr Adam dated 21 March 2018.
Mental Health
Dr Shannon’s clinical records for July 2015 showed that:[37]
(a)Mr Scott was homeless and was having problems with Centrelink;
(b)Mr Scott can’t live with people;
(c)Mr Scott had been in solitary confinement for 2 years and would get into fights with the prison guards;
(d)Mr Scott had been compliant with Suboxone; and
(e)in his opinion Mr Scott was not overtly psychotic but has a personality disorder.
[37] Exhibit 7, T Documents, T22, pages 125–126, medical records dated June–July 2015.
In June 2016 Dr Shannon reported that Mr Scott had a paranoid personality.[38]
[38] Exhibit 7, T Documents, T25, page 152, medical certificate of Dr Shannon dated 7 June 2016.
In June 2016 Dr Grice noted that Mr Scott had opiate dependency and antisocial/paranoid personality disorder.[39]
[39] Exhibit 7, T Documents, T20, pages 116–117, referral of Dr Grice dated 7 June 2016.
Dr Shannon noted in a GPMP in May 2017 that Mr Scott should be referred for psychological review.[40]
[40] Exhibit 7, T Documents, T34, page 216, GPMP dated 23 May 2019.
In October 2018 Mr Scott was assessed by Ms Meagan Lo (“Ms Lo”), Psychologist, under the supervision of Mr George Petroff (“Mr Petroff”), Clinical Psychologist. In the psychologists’ opinion Mr Scott did not have a cognitive impairment.[41]
[41] Exhibit 3, report of Ms Lo dated 31 October 2018.
Hepatitis C
Tests conducted on 23 April 2013 confirmed that Mr Scott had a hepatitis C infection.[42] Mr Scott was referred to Dr David Robinson on 4 October 2013 for an opinion and management of his hepatitis C infection.[43]
[42] Exhibit 7, T Documents, T5, page 74, hepatitis testing results dated 23 April 2013.
[43] Exhibit 7, T Documents, T8, page 77, referral of Dr Purshothaman dated 4 October 2013.
In May 2014 Dr Tran reported that Mr Scott’s hepatitis C was temporary and he was waiting treatment.[44]
[44] Exhibit 7, T Documents, T11, page 81, medical certificate dated 3 May 2014; T12, pages 88–89, medical report of Dr Tran dated 14 May 2014.
Asthma
In July 2015 Dr Shannon’s clinical records show that Mr Scott’s asthma was not well controlled and that he had prescribed Ventolin.[45]
[45] Exhibit 7, T Documents, T22, pages 125–126, medical records dated June–July 2015.
Conclusion on Impairments
The Secretary accepts that Mr Scott had Impairments which satisfied section 94(1)(a) during the Qualification Period.[46]
[46] Exhibit 8, Secretary’s Statement of Facts and Contentions dated 24 April 2018, at para 22.
In light of the above evidence the Tribunal finds that during the Qualification Period Mr Scott suffered from a Spinal Impairment and Drug Dependency Impairment for the purposes of the Act and that the requirement in section 94(1)(a) has been met.
In relation to the hepatitis C condition, it was accepted at the hearing that this condition is temporary and is not relied upon by Mr Scott for the purpose of this application.
In relation the asthma condition, there is insufficient medical evidence to determine whether or not this condition has been fully treated and whether this condition is having any impact on Mr Scott’s ability to function. Therefore, the Tribunal finds that Mr Scott’s asthma condition cannot be considered as an Impairment for the purpose of section 94(1)(a) of the Act.
In relation to the suggestion by some of the medical practitioners that Mr Scott may have a mental health condition, there is no diagnosis of a mental health condition by a psychiatrist or clinical psychologist. A diagnosis by one of these specialists is required by the legislation before a mental health condition can be considered permanent and before an Impairment Rating can be assigned. At the hearing, Mr Matt Black of Counsel (“Mr Black”), appearing on behalf of Mr Scott, confirmed that Mr Scott was not relying on any mental health condition for the purpose of this application.
DO MR SCOTT’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B) OF THE ACT?
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.[47] They are function based[48] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[49]
[47] Determination, ss 4(2) and 5(2)(a).
[48] Determination, ss 5(2)(b) and (c).
[49] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[50]
(a)the 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.
[50] 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.[51]
[51] De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2014] FCA 368, at [12].
Mr Scott’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[52]
(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.
[52] 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[53] the following is to be considered:[54]
(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.
[53] For the purposes of ss 6(4)(a) and (b) of the Determination.
[54] Determination, see s 6(5).
A condition is fully stabilised[55] if:[56]
(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;[57] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[55] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[56] Determination, see s 6(6).
[57] 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.
Before applying the Impairment Tables Mr Scott’s medical history, in relation to the condition causing the Impairments, must be considered.[58]
SPINAL IMPAIRMENT
[58] Determination, see s 6(2).
Is Mr Scott’s Spinal impairment permanent and likely to persist for at least 2 years?
The medical evidence indicates that Mr Scott’s spinal impairment can be considered to be fully diagnosed. This is not in dispute.
The issue is whether the spinal condition has been fully treated and fully stabilised in the Qualification Period.
The Secretary contends that Mr Scott’s lumbar spine condition was not fully treated and fully stabilised because there was no corroborating evidence of Mr Scott’s having had physiotherapy treatment and, in Dr Adam’s opinion, Mr Scott would benefit from a graduated exercise program supervised by a physiotherapist.
Mr Scott submits that his Spinal Condition can be considered permanent on two alternative grounds. First, he says he has been fully treated and that he has had physiotherapy and other recommended treatments and there is no likelihood that with further treatment his ability to function will significantly improve. Alternatively, Mr Black submitted that Dr Adam’s recommended course of action was not “treatment” but rather “rehabilitation”. Mr Black notes that while the definition of “fully diagnosed” within the Determination refers to a consideration of whether a person has had “treatment or rehabilitation”, the definition of fully stabilised only refers to “treatment”.
The definitions are found in sections 6(5)-(7) of the Determination as follows:
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(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.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(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; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(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.
Mr Black submitted that Mr Scott’s Spinal Impairment has been fully treated because he has had pain relief medication, facet joint injections, chiropractic attendances and physiotherapy attendances. The issue for the Tribunal is that while Mr Scott has reported seeing a chiropractor and a physiotherapist, there is no corroborating evidence or reports from those treating providers. The Tribunal also notes that there is reference in the medical reports to Mr Scott being referred, or awaiting referral, to see a neurosurgeon, as early as 2013 and 2015, but that does not seem to have come to fruition. No information regarding this issue was provided to the Tribunal. If it was accepted that surgery was not “reasonable treatment”, for which there is insufficient evidence for the Tribunal to make a determination, there is no evidence of any sustained physiotherapy treatment.
Mr Black contended an alternative argument is that physiotherapy is not “treatment”. Mr Black said that the exercise program recommended by Dr Adam may “rehabilitate” Mr Scott, but it does not “treat” the spinal condition. The definition of “fully stabilised” only refers to whether an applicant has had “reasonable treatment” whereas the definition of “fully treated” refers to “treatment or rehabilitation”. It is true that the definition of “fully treated” appears to draw a distinction between treatment and rehabilitation. Mr Black’s submission is that there is no “reasonable treatment” available.
In Shields and Secretary, Department of Social Services (Social services second review) [2015] AATA 759, Deputy President F J Alpins explained how to construe the Determination as follows:
37.As the Determination is a form of delegated legislation, it is to be construed in accordance with general principles of statutory interpretation (Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 398, applying King Gee Clothing Co Pty Ltd v The Commonwealth [1945] HCA 23; (1945) 71 CLR 184 at 195 per Dixon J; Whittaker v Comcare [1998] FCA 1099; (1998) 86 FCR 532 at 543).
38.Furthermore, as the Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (Cth) (the “Instruments Act”) (see s 5), the Acts Interpretation Act 1901 (Cth) applies to the Determination as if it were an Act and as if each provision of the Determination were a section of an Act (s 13(1)(a)) of the Instruments Act). Also, expressions used in the Determination have the same meaning as in the Act (s 13(1)(b)). Moreover, the Determination is to be read and construed subject to the Act (s 13(1)(c)).
39.Section 6(5) of the Determination, by employing the expression “the following is to be considered”, enumerates matters to which regard must be had in determining whether a condition has been “fully diagnosed” and “fully treated” for the purposes of s 6(4)(a) and (b) respectively and is thus “permanent” on those accounts for the purposes of s 6(3)(a) of the Determination. Paragraphs (a) to (c) of s 6(5) raises questions of fact (see Harris v Secretary of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252 at [20] per Gyles J). In my view the terms “fully diagnosed” and “fully treated” nevertheless bear their ordinary meaning, having regard to their context and purpose. In other words, while the matters to be considered for the purposes of s 6(5) of the Determination are exhaustively enumerated, they are not definitive as to whether a condition has been fully diagnosed and fully treated for the purposes of s 6(4)(a) and (b).
40.The immediate context with respect to the statutory meaning of those terms (especially the use of the word “fully”) includes the fact that s 6(5)(c) confines the requisite focus to treatment planned in the ensuing period of 2 years, which accords with the prescribed time periods in ss 6(3)(b) and 6(6) of the Determination. (I note that, while s 6(5)(b) refers to both past treatment and rehabilitation, s 6(5)(c) refers only to continuing and planned treatment, and not to such rehabilitation.) The wider context includes the fact that those expressions bear upon whether the prerequisites to the assignment of an impairment rating for the purposes of s 6(3) of the Determination are met and thus bear upon qualification for DSP under s 94(1)(b) of the Act (see also s 5(2)(a) of the Determination).
41.By way of contradistinction, in my view s 6(6) is exhaustively definitive as to the circumstances in which a condition is “fully stabilised” for the purposes of s 6(4)(c) of the Determination, although I note that s 6(4)(c) in fact requires that a condition “has been” fully stabilised. Paragraphs (a) and (b) of s 6(6), like the paragraphs contained in s 6(5), raise questions of fact (see Harris at [20]). Consonantly, s 6(4), being the overarching provision which employs each of the expressions to which I have referred, is exhaustively definitive as to whether a condition is “permanent” for the purposes of s 6(3)(a) of the Determination.
According to the Oxford Dictionary online, the definitions of “rehabilitation” and “treatment” are as follows:[59]
Rehabilitation – the action of restoring someone to health or normal life through training and therapy after imprisonment, addiction or illness.
Treatment – medical care given to a patient for an illness or injury.
[59] Oxford Dictionary (online at 9 May 2019) ‘treatment’ (def 2), ‘rehabilitation’ (def 1).
According to the Macquarie Dictionary:[60]
[60] Susan Butler (ed), Macquarie Dictionary (online ed, at 21 May 2019) ‘treatment’, ‘rehabilitation’.
(a)treatment relevantly means:
3.a.the application of medicines, surgery, psychotherapy, etc., to a patient to cure a disease or condition: asthma treatment.
(b)rehabilitation means:
noun
1.restoration to former health.
…
4.Medicine
a.the use of medical, social, educational or vocational measures or a combination of these to train or retrain someone who has a disability as a result of illness or injury.
b.the restoration of a life free of drugs and alcohol, usually under a monitored program.
If you engage in an “activity” that relieves pain, is that treatment? The activity may not be aimed at correcting the underlying problem. For example, pain killers and pain killer injections do not provide treatment for an underlying condition, but they do provide symptom relief. Yet pain killers have traditionally been held to be treatment. In a similar way, a physiotherapy exercise program is employed to help an individual to reduce pain and stiffness, but also to assist in recovery from injury, to increase mobility and to prevent further injury.
In the Tribunal’s opinion physiotherapy could be considered to be treatment or rehabilitation. The Explanatory Statement to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 provides no assistance for why this distinction was made in the definition of fully treated but not fully stabilised. The Explanatory Memorandum to the Social Security and Other Legislation Amendment Bill 2011 (“the Bill”) when the Act was amended, and the Determination was introduced also does not provide any further information or clarity with respect to the definitions of the “rehabilitation” or “treatment”.
The Act does not define “rehabilitation”. However, it does provide a definition for “rehabilitation program” as meaning a rehabilitation program under Part III of the Disability Services Act 1986 (Cth) (“the DSA”).[61] One of the objects of the DSA is to to assist persons with disabilities to receive services necessary to enable them to work towards full participation as members of the community. Part III of the DSA states that the target group for a rehabilitation program is persons who have a disability which results in a substantially reduced capacity of the person to obtain, or retain, supported paid employment.[62] Section 20 of the DSA outlines the provision of rehabilitation programs and includes for the purposes of diagnostic and assessment services, occupational therapy, physiotherapy, speech therapy, and counselling and social work services.[63] This definition goes some way to supporting the argument that physiotherapy in the disability context is rehabilitation but the Tribunal considers that whether physiotherapy is treatment or rehabilitation depends on the particular circumstances.
[62] The DSA, s 18.
[63] The DSA, s 20(2)(b).
This Tribunal has consistently dealt with “physiotherapy” as if it were “treatment”.[64] In Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Brennan J (as President of the AAT) noted that:
·“The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function”.[65]
·Further, consistency with comparable cases and decisions is “[o]ne of the factors to be considered in arriving at the preferable decision”.[66]
[64] For example see Stojanovic and Secretary, Department of Employment and Workplace Relations [2007] AATA 1202; Seyfang, Secretary, Department of Social Services and (Social services second review) [2016] AATA 243; Oliver; Secretary, Department of Social Services and (Social services second review) [2015] AATA 593; In Mlinarevic and Secretary, Department of Social Services (Social services second review) [2019] AATA 22 the Tribunal found that because the DSP applicant had not undertaken a water-based exercise program for his knee conditions that his condition was not fully treated or fully stabilised.
[65] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642.
[66] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 643.
The Full Court of the Federal Court in Franks v Secretary, Department of Family and Community Services[2002] FCAFC 436 (“Franks”) at [47] accepted that the phrase should be given its ordinary English meaning, and noted the dictionary definition of “rehabilitation” as being “the use of medical, social, educational or vocational measures or a combination of these to train or retrain someone who has a disability as a result of illness or injury.”
In that case the issue raised in the appeal was whether Mr Franks could rely on s 23(9) of the Act; if so, he would be deemed not to be in "psychiatric confinement" within s 1158 and so not barred by that section from any entitlement he might otherwise have to the payment of DSP he had been receiving up to 13 April 2000. The answer depended on whether Mr Franks was undertaking a course of rehabilitation.
The Full Court noted:
[49] Where a statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words, that question is one of fact only, so long as it is reasonably open to hold that they do, ie, that different conclusions are reasonably open as to whether the facts of the particular case do or do not come within the particular statutory provision: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 288.
[50] Provided it is open to the decision-maker on the evidence to conclude that the person in question is undertaking rehabilitation activities that are not merely engaged in by him on an ad hoc basis, but which form part of what can be said to be a planned series of activities that may include medical and other treatments directed towards improving the person's physical, mental and/or social functioning, then, depending on the circumstances of the particular case, it is open to the decision-maker to hold that such activities do constitute "a course of rehabilitation" for the purposes of s 23(9).
[emphasis added]
While Franks was not concerned specifically with the definition of rehabilitation in the Determination, guidance can be gleaned from it.
It is clear that the physiotherapy Mr Scott has or has not had can be considered in determining whether he has been “fully treated”, whether physiotherapy is categorised as “treatment” or “rehabilitation”.
Regardless of the categorisation, the Tribunal is not satisfied, on the evidence, that Mr Scott has had consistent supervised physiotherapy. Shortly after the Qualification Period Dr Shannon was still attempting to refer Mr Scott to physiotherapy. Dr Shannon had indicated physiotherapy was Mr Scott’s current treatment in 2015 but Mr Scott gave evidence that he only went once and did not go again because he “didn’t see any point” because he had seen several physiotherapists in the past.
The Tribunal also notes Dr Grice’s opinion in 2015, 18 months prior to the Qualification Period, that Mr Scott did not appear to be too disabled and that his spinal condition was “certainly treatable”. Dr Grice had also recommended physiotherapy.
Clearly there are several practitioners that consider physiotherapy would be of benefit to Mr Scott. The Tribunal is also concerned, given the lack of information regarding his referral to a neurosurgeon that additional treatment may have been of benefit.
In these circumstances the Tribunal finds that Mr Scott’s Spinal Impairment was not fully treated as at the Qualification Period and no Impairment Rating can be assigned.
DRUG DEPENDENCY IMPAIRMENT
Is Mr Scott’s Drug Dependency impairment permanent and likely to persist
It is not in dispute that Mr Scott’s Drug Dependency Impairment is fully diagnosed fully treated and fully stabilised. The Tribunal is also satisfied that Mr Scott’s Drug Dependency Impairment is permanent and that an Impairment Rating can be assigned.
Using the Impairment Tables
The level of impact of Mr Scott’s Drug Dependency Impairment has to be assessed against the descriptors[67] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an Impairment Rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[68]
[67] Determination, see ss 3 and 5(3).
[68] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[69]
[69] Determination, see s 6(1).
Pursuant to the Determination the following information:
(a)must be taken into account in applying the Tables:[70]
(i)the information provided by the health professionals specified in the relevant Table; and
(ii)any additional medical or work capacity information that may be available; and
(iii)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
(b)must not be taken into account:[71]
(i)symptoms reported by Mr Scott in relation to his condition where there is no corroborating evidence; [emphasis added] and
(ii)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Scott’s local community.
[70] Determination, see s 7.
[71] Determination, see s 8.
Which Tables are appropriate is determined by:[72]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[72] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[73]
[73] Determination, see s 10(3).
If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[74]
[74] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[75]
[75] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[76]
[76] Determination, see s 11(5).
Relevant Impairment Table and Impairment Rating
The appropriate Table is Table 6 which deals with functioning related to Alcohol, Drug and Other Substance Use.
The introduction to Table 6 provides as follows:
Introduction to Table 6
· Table 6 is to be used where the person has a permanent condition resulting in functional impairment due to excessive use of alcohol, drugs or other harmful substances (e.g. glue or petrol) or the misuse of prescription drugs.
· This Table applies to people who have current, continuing alcohol, drug or other harmful substance use disorders and those in active treatment.
· Former users with resulting long-term impairments should be assessed under the relevant Table(s).
Example: Table 7 (Brain Function) should be used where the person has permanent neurological impairment resulting from previous alcohol, drug or other harmful substance use.
· The diagnosis of this condition must be made by an appropriately qualified medical practitioner.
· Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
· Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
- a report from the person’s treating doctor;
- a report from a medical specialist (e.g. addiction medicine specialist or psychiatrist with experience in diagnosis or treatment of substance use disorders) confirming diagnosis of substance use disorder and resulting impairment of other body systems or functions;
- results of investigations (e.g. liver function tests, alcohol and substance use assessment scales);
- reports or other records of participation in treatment or rehabilitation programs;
- work or training attendance records.
· The use of drugs or alcohol does not in itself constitute or necessarily indicate permanent impairment.
The descriptors for a 5-point Impairment Rating under Table 6 are:
5
There is mild functional impact from alcohol, drugs or other harmful substance use.
(1) At least one of the following applies:
(a) the person engages in alcohol or illicit drug use and experiences some physical or cognitive effects that carry over into working hours (e.g. poor concentration, lethargy, irritability); or
(b) the person has occasional difficulties in reliably attending work, education or training sessions or appointments or completing duties or assigned tasks; or
(c) the person is sometimes absent from work, education or training activities due to the effects of alcohol, drugs or other harmful substance use.
The descriptors for a 10-point Impairment Rating under Table 6 are:
10
There is moderate functional impact from alcohol, drugs or other harmful substance use.
(1) Most of the following apply:
(a) the person regularly uses alcohol, drugs or other harmful substances and as a result experiences difficulties performing physical or cognitive tasks;
(b) the person often has difficulty completing daily tasks and responsibilities due to the short term or long term effects of alcohol, drugs or other harmful substances;
(c) the person’s use of alcohol, drugs or other harmful substances is having a detrimental effect on family or social relationships and activities;
(d) the person has more frequent difficulties in reliably attending appointments or completing duties or assigned tasks;
(e) the person is often absent from work, education or training activities due to the effects of alcohol, drugs or other harmful substance use.
(2) This impairment rating level includes a person in receipt of treatment and in sustained remission (e.g. a person who is receiving Methadone treatment or other opiate replacement therapy) and who is able to complete most activities of daily living.
Mr Scott contends that a 10-point rating is appropriate because paragraph 2 of the 10-point descriptors provide that a 10-point rating includes a person in receipt of treatment and in sustained remission.
There is no dispute that Mr Scott’s drug dependency does cause him some difficulties with the activities of daily life. A 10-point rating is supported by the opinion of Dr Adam and Ms Lo on the basis that descriptor 2 was met.
In Dr Shannon’s opinion Mr Scott’s drug dependency is having a moderate functional impact and attracts an Impairment Rating of 10 points under Table 6 as he has difficulty completing daily tasks, detrimental effect on social relationships activities, difficulty reliably attending appointments and completing assigned tasks and unreliability attending work and training commitments.[77]
[77] Exhibit 2, Secretary’s Statement of Facts and Contentions, annexure 2, response to questionnaire prepared by Basic Rights Queensland by Dr Shannon dated 23 September 2017.
In Dr Adam’s opinion Mr Scott is in sustained remission on opiate replacement therapy and satisfies the criteria for 10 points under Table 6.[78]
[78] Exhibit 2, Secretary’s Statement of Facts and Contentions, annexure 1, report of Dr Adam dated 21 March 2018.
In Ms Lo’s opinion, based on the information provided by Mr Scott regarding how his medication results in him feeling sedated, disrupts his sleep and makes him feel disoriented, that Mr Scott appeared to meet the following criteria for moderate functional impact under Table 6 – functioning related to alcohol, drug and other substance use, with difficulties in:[79]
·ability to perform physical or cognitive tasks;
·ability to complete daily tasks and responsibilities;
·engagement family or social relationships and activities; and
·engagement work education and training.
[79] Exhibit 3, report of Ms Lo dated 31 October 2018.
The Secretary contends that in order to obtain 10 points, descriptors 1 and 2 need to be satisfied. No authority in support of this contention was proffered.
In Smith and Secretary, Department of Social Services (Social services second review) [2017] AATA 529 the Tribunal was satisfied that Mr Smith’s Drug Use Impairment was consistent with a moderate functional impact at the 10-point level where he was in remission because:
Over many years, and during the qualification period, Mr Smith regularly used drugs. He was under Methadone treatment and in remission. He often had difficulty completing daily tasks as a result of the short and long term effects of this behaviour, and it had detrimental effects on his family and social relationships, frequently causing him difficulty attending appointments and completing tasks.
Similarly, in Brien; Secretary, Department of Social Services and (Social services second review) [2016] AATA 869, the Tribunal awarded 10 points under Table 6 where the DSP applicant was in sustained remission, receiving opiate replacement therapy, and able to complete most activities of daily living.
The Tribunal notes that there is no use of the word “and” between paragraphs 1 and 2 in the 10-point table. There is no indication that both paragraphs must be satisfied. Mr Rick McQuinlan (“Mr McQuinlan”), lawyer for the Applicant, acknowledged that there were contra authorities to his submission.
If the table is only meant to apply to people who are still in the throes of drug use, which is interesting in and of itself in terms of considering whether someone is fully treated and stabilised, why would the government consider it necessary to include paragraph (2)?
The introduction to the Table specifically provides that it “is to be applied to people who are in active treatment". However, it also provides that it is to be used “where the person has a permanent condition resulting in functional impairment due to excessive use” and that “former users” with long-term impairment should be assessed under relevant tables. Given the reference in the 10-point descriptor as applying to someone on an active treatment program, the Tribunal is satisfied, based on consistent medical opinion, that a 10-point rating under Table 6 is appropriate for Mr Scott’s Drug Dependency Impairment.
CONCLUSION
Given that Mr Scott’s permanent Impairment attracts an Impairment Rating of 10 points during the Qualification Period it is unnecessary for the Tribunal to consider whether Mr Scott had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) during the Qualification Period.
Mr Scott’s claim fails because he did not qualify for DSP during the Qualification Period under s 94(1)(b).
DECISION
The decision under review is set aside and substituted with a decision that Mr Scott did not qualify for DSP during the Qualification Period under s 94(1)(b) of the Act.
I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
..................................[SGD]..................................
Dated: 5 June 2019
Date of hearing: 17 April 2019 Date reserved: 17 April 2019 Advocate for the Applicant: Mr Rick McQuinlan Solicitors for the Applicant: Department of Human Services Counsel for the Respondent: Mr Matt Black Solicitors for the Respondent: Legal Aid Queensland
[61] The Act, s 23 (definition of ‘rehabilitation program’).
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