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

[2016] AATA 61

Scutcheon and Secretary, Department of Social Services (Social services second review) [2016] AATA 61 (8 February 2016)

Division	GENERAL DIVISION
File Number	2014/6684
Re	William Scutcheon
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Member I Thompson
Date	8 February 2016
Place	Adelaide

The Tribunal affirms the decision under review

....................[Sgd]....................................................

Member I Thompson

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether 20 points or more under the Impairment Tables during the Relevant Period - whether conditions are fully diagnosed, treated and stabilised - applicant not qualified for DSP - decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth)

CASES

Mirza and Secretary, Department of Social Services [2015] AATA 223

Tuma and Secretary, Department of Social Services [2014] AATA 888
Re Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Yazdari and Secretary, Department of Social Services [2014] AATA 34

SECONDARY MATERIALS

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

REASONS FOR DECISION

Member I Thompson

8 February 2016

INTRODUCTION

1. The applicant, Mr Scutcheon, lodged a claim for disability support pension (DSP) on 22 July 2014.  The basis of his claim was that he suffers from degenerative arthritis and chronic pain in the lumbar spine together with depression. 

2. Centrelink rejected the DSP claim and on review the Social Security Appeals Tribunal (SSAT) affirmed Centrelink’s decision.  Mr Scutcheon then applied to this Tribunal for review of the decision of the SSAT.  The hearing took place on 9 December 2015. 

3. At the hearing Mr Scutcheon was self-represented.  Mr A Hay represented the respondent, the Secretary, Department of Social Services.  Mr Scutcheon gave evidence.  The Tribunal received in evidence as exhibits various medical reports and Centrelink records.

   LEGISLATION AND ISSUES

4. The issue for the Tribunal is whether Mr Scutcheon satisfied the qualification criteria for the DSP which are set out in s 94 of the Social Security Act 1991 (the Act).  In accordance with ss 41 and 42, and clauses 3 and 4 of Part 2 to Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) the relevant assessment period for consideration of Mr Scutcheon’s claim is taken from the date of the DSP claim and 13 weeks following. The assessment period in this case is 22 July 2014 to 21 October 2014.

5. Section 94 of the Act states that a person is qualified for DSP if :

   (a)The person has a physical, intellectual or psychiatric impairment;

   (b)The person’s impairment is of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and

   (c)The person has a continuing inability to work.

6. In accordance with s 94 of the Act a person is regarded as having a “continuing inability to work” if:

   (a)They have an inability to work due to their accepted impairments for 15 hours or more a week; and

   (b)They have actively participated in a “program of support”.

   This second requirement is not necessary, however, if a person has a severe impairment of 20 points or more under a single Impairment Table

7. The Secretary conceded that Mr Scutcheon suffers from impairments arising from a spinal condition, depression, eczema, hypertension, asthma and obstructive sleep apnoea so that the first requirement under s 94(1)(a) of the Act is satisfied.

8. The main issues for determination are whether Mr Scutcheon’s impairments could be assigned 20 points or more under the Impairment Tables during the assessment period and if so, whether he had a continuing inability to work.

   CONSIDERATION

9. The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of an impairment.  An impairment rating can only be assigned if the person’s condition causing that impairment is permanent and if the impairment results from a condition that is more likely than not to persist for more than two years.  Under the Impairment Tables, a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised.  The functional capacity which is rated under the Impairment Tables concerns the question of an individual’s capacity to work.

10. The applicable impairment rating for each of Mr Scutcheon’s conditions will be considered in turn by reference to the Impairment Tables.  As indicated, consideration must be given to whether each condition was fully diagnosed, treated and stabilised during the assessment period before determining an impairment rating, because the Impairment Tables provide this as a pre-requisite for the allocation of an impairment rating.

    Spinal Condition – was the condition fully diagnosed, treated and stabilised?

11. Mr Scutcheon gave evidence that he had suffered from back pain over many years.  He had worked as a boilermaker for about eighteen years until 1990.  Then he obtained qualifications in information technology which led to employment as an analyst programmer with the South Australian Public Service until 2014.  His back pain progressively worsened and by 2012 he was forced to cease work for three months in the first half of the year.  Pain was primarily in the lower back.  Mr Scutcheon described the effects of the back pain through to the present time.  He described pain which was constant in the lower back, “like a niggle”, and on a scale of one to ten it was always at least about two.  The pain fluctuates regularly and increases up to a three or four rating out of ten.  He said that every fortnight or thereabouts the pain level might reach thresholds of five to six on that scale.  At times he has difficulty standing straight.  At other times he describes himself as completely incapacitated, perhaps three times per year, by spasms in his back. His general medical practitioner, Dr Salagaras, has provided and coordinated treatment for the back pain and Mr Scutcheon has also regularly received chiropractic treatment which provides him with some relief from the pain.

12. In a report dated 26 June 2014 Mr Scutcheon’s general medical practitioner, Dr Salagaras, recorded a diagnosis of severe and chronic lumbar pain due to degenerative spinal disease with a date of onset prior to 1994.[1]  Dr Salagaras noted that he had referred Mr Scutcheon to various specialists.  Dr Salagaras described the symptoms at that time as difficulty with walking, sitting, standing, bending and weight bearing.  He wrote that these problems were longstanding and they have gradually worsened.  The Tribunal also received evidence of scans over the past which confirm the degenerative spinal disease in the lumbar region.  Similarly, Dr Matthew Green who has treated Mr Scutcheon since 2011, wrote a report in which he confirmed the condition of chronic lumbar pain, with reduced capacity to sit, stand, and mobilise.[2] 

    [1] Exhibit 1, T16 p 213-223.

    [2] Exhibit 1, T19 p 231-233.

13. In a report dated 22 May 2015 Mr Scutcheon’s chiropractor, Dr C A Spalding, referred to the major problem as a sprain/strain of the sacroiliac area, that is, Mr Scutcheon’s lower back.  The ligaments have stretched excessively over a long period resulting in loss of elasticity.  This deformation is permanent and it is the reason why Mr Scutcheon suffers from occasional, severe pain.  The effect of the chiropractic treatment is to “adjust” the position of the joints in order to relieve the pain.  Dr Spalding added that the lack of stability which Mr Scutcheon has in his lower back is complicated by a congenital abnormality which Mr Scutcheon has in that part of the spine.  Dr Spalding noted that he treated Mr Scutcheon six times during the assessment period.[3] 

    [3] Exhibit 4.

14. The Secretary referred Mr Scutcheon for an assessment by a physician, Dr Tschirn and he wrote a report dated 3 August 2015 which was received in evidence.[4]  Dr Tschirn provided a diagnosis of lumbar spondylosis which was fully treated and stable.  He noted that current pain management is based around medication.  He reported that the pathology is permanent, it cannot be altered and the realistic goal was the relief of symptoms.

    [4] Exhibit 3.

15. It is also noted that Mr Scutcheon gave evidence about problems with his neck at the C3-C4 level.  He said that the problems had existed for about ten to fifteen years and includes some limitation with movement, some pain in the shoulders, arms and fingers, together with quite severe headaches.  In all, he reported difficulties with his neck were not a regular occurrence and he thought they occurred about four to five times per year.  He takes Panadene Forte regularly however it does not help with the alleviation of the headaches.  In his report, Dr Tschirn noted the diagnosis of cervical spondylosis.

16. The Tribunal is satisfied that Mr Scutcheon’s spinal condition was fully diagnosed during the assessment period and that it was fully treated and stabilised.  Having regard to all of the evidence, the Tribunal considers that as at 22 July 2014 or within 13 weeks of that date (the assessment period), Mr Scutcheon’s spinal condition was permanent and was likely to persist for more than 2 years.  Therefor an impairment rating can be given for this condition.

    What is the applicable impairment rating?

17. Impairment Table 4 provides the descriptors of impairment relating to spinal function.  For a moderate functional impact Table 4 states:

Points

Descriptors

10

There is a moderate functional impact on activities involving spinal function.

(1)   The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)    the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)   the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)   the person is unable to bend forward to pick up a light object placed at knee height; or

(d)   the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

1. A Job Capacity Assessment report submitted on 12 August 2014 recommended a rating of 10 points for the spinal disorder.[5]  The assessor confirmed aspects of the functional impact of the spinal disorder including difficulties with walking, sitting, standing, bending and weight bearing.  These observations are broadly consistent with evidence which Mr Scutcheon gave to the Tribunal.  In his evidence he confirmed that he is able to drive an automatic car, although reversing is a problem when he tries to look behind.  Occasionally he drives a small tractor on the property where he resides in rural South Australia.  He enjoys wood working which involves making small pieces of furniture and subject to some limitations he also enjoys restoring an old vehicle.  With caution, he is able to assist with some domestic tasks.  With wood working and car restoration, together with self-care and domestic tasks, he needs to take care to limit duration and minimise the risks of increased pain.  Dr Tschirn wrote in his report about the limitations on Mr Scutcheon’s activities[6] and rated them as having a moderate functional impact under the Impairment Tables.  The Tribunal agrees.

   [5] Exhibit 1, T17 p 224-229.

   [6] Exhibit 3, p 6.

2. Taking into account all of the medical evidence, together with Mr Scutcheon’s evidence, the Tribunal considers that he has a moderate functional impact on activities involving spinal function.  It is clear that the moderate functional impact was present during the assessment period.  Accordingly the Tribunal finds that Mr Scutcheon’s back condition rated 10 impairment points.

   Depression – was the condition fully diagnosed, treated and stabilised?

3. Mr Scutcheon’s general medical practitioner, Dr Salagaras, reported that Mr Scutcheon suffers from depression which is associated with and made worse by chronic pain.[7]  Treatment has included various types of medication.  Dr Salagaras wrote that the diagnosis was supported by a clinical psychologist, M Lee.  This was noted in the Job Capacity Assessment report submitted on 12 August 2014. 

   [7] Exhibit 1, T16 p219.

4. Mr Scutcheon gave evidence to the Tribunal about the social and emotional effects of living with long term pain.  He  consulted a psychiatrist in 2005 and treatment has included anti-depressants, other medication, cognitive behaviour therapy, all leading to a situation in the last two to three years in which he considers that his depression is manageable and more stable than not.

5. Dr Tschirn reported as follows:

   “There is a history dating from around the early 2000’s of an anxiety-depressive condition.  It seems to have been triggered, at least in part, by chronic back pain.  He tried various older generation anti-depressants in the past such as Endep.  He did try a SSRI, a newer generation anti-depressant on which he felt “wonderful”, for about 12 months.  However, pain levels gradually increased over time.  He was being treated for anxiety in his early 20’s.  He found that Tramadol and being on the SSRI did not work well together in terms of pain management, however, he was getting sweats and eventually it was elected to cease this in conjunction with the treating psychiatrist at the time.

   These days he remains on Cymbalta 100mg daily.  He has seen a psychologist in the past, Mr Mark Cox for around about a dozen sessions in the context of chronic back pain management.  Apparently Mr Scutcheon has discussed the need for further input with Dr Salagaras and is going to see another psychologist. ” [8]

   [8] Exhibit 3.

6. Dr Tschirn went on to provide his opinion which was:

   “There is a longstanding history of depressive symptoms for which psychologic treatment and various antidepressants have been trialled as listed in the report of Dr Salagaras (26 June 2014) Mr Scutcheon is currently on duloxetine a type of antidepressant (SNRI).  The history is of a longstanding depression made worse by chronic pain.  The principal source of this pain is spinal.  A referral has been made to see a psychologist again (Ms M Lee) confirmed in the supporting documentation.  From the letter of referral there is a reference to Mr Scutcheon saying the problem might be worse than he thought.

   The difficulty here is that although the GP reports make clear mention of a diagnosis (depression) there is no actual diagnostic information from a psychologist which is a requirement in the notes to Table 5 in the Determination.  Also it appears the condition may have become unstable i.e. worse than previously thought.”

7. Dr Tschirn concluded that the correct analysis is that the mental health condition is not fully diagnosed, treated and stabilised. 

8. The introduction to Impairment Table 5, Mental Health Function, states that a diagnosis is required from an appropriately qualified medical practitioner (including a psychiatrist) with evidence from a clinical psychologist when the diagnosis has not been made by a psychiatrist.  The criteria in the introduction to Table 5 are clear in relation to requirements for providing a diagnosis of a mental health condition. 

   ·    Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).

   ·    The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

   ·    Self-report of symptoms alone is insufficient.

   ·    There must be corroborating evidence of the person’s impairment.

   ·    …”

9. For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.  In Tuma and Secretary, Department of Social Services [2014] AATA 888, Senior Member Isenberg noted that :-

   “[42] …the fact that there is no contemporaneous evidence from a psychiatrist or clinical psychologist at the time of lodgement of the claim does not prevent assessment of the condition, particularly when the diagnosis has been confirmed by a psychiatrist subsequently:  Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) 138 ALD 180;[2013] AATA 558…”

10. Dr Tschirn wrote that Mr Scutcheon’s mental health condition may have become more unstable during recent times and that a referral, or a re-referral, has been made for Mr Scutcheon to consult a psychologist, Ms M Lee.  Dr Tschirn’s observations highlight the importance of having diagnostic information from a psychiatrist or from a clinical psychologist.  The evidence available to the Tribunal does not include either contemporaneous or subsequent evidence from a psychiatrist or clinical psychologist regarding diagnosis of Mr Scutcheon's condition during the assessment period.  This becomes a missing link in relation to the analysis required by the introductory criteria in Table 5.  Those requirements were acknowledged, and the reasons for them were illuminated, in the comments of Senior Member Dunne and Professor Reilly in Yazdari and Secretary Department of Social Services [2014] AATA 34 at [30]:

    “(a)the Impairment Tables are for assessing the degree of psychiatric impairment, not to assess the severity of psychiatric conditions;

    (b)an impairment rating can only be assigned to a psychiatric impairment if the condition causing that impairment is ‘permanent’;

    (c)a psychiatric condition is only ‘permanent’ if it has been fully diagnosed by an appropriately qualified medical practitioner such as a psychiatrist or, failing that, a general practitioner with input from a clinical psychologist;

    (d)while psychiatric conditions are diagnosed by reference to psychiatric symptoms, an appropriately qualified medical practitioner would usually differentiate between a diagnosed condition and the symptoms on which their diagnosis is based; and

    (e)it is not possible to assess whether a psychiatric condition has been fully treated and stabilised without a proper diagnosis, which is essential for the development of a fully informed treatment plan.”

11. The Job Capacity Assessment report (12 August 2014) recommended a rating of 5 points for a mild functional impact on activities involving mental health function.  The SSAT concluded that Mr Scutcheon’s mental health condition was fully diagnosed, treated and stabilised:  

    “[36] …with the diagnosis made by the treating doctor and assessment by a Clinical Psychologist (Ms M Lee) cited.”

    The SSAT assigned an impairment rating of 5 points for the mental health condition although there was no evidence before the SSAT of an assessment by a Clinical Psychologist.  While such an assessment may have been “cited”, apparently it was not produced and sighted.

12. The Tribunal’s responsibility is to assess Mr Scutcheon’s eligibility for the DSP and decide the matter afresh, as opposed to reviewing the SSAT’s decision for error (Re Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68).

13. In the Secretary’s Statement of Facts and Contentions, it was conceded that Mr Scutcheon’s mental health condition was fully diagnosed, treated and stabilised at the date of the claim and that functional impairment arising from that condition attracts a rating of 5 points under Table 5.  The Tribunal is not bound by that concession.  Even if it could be concluded that Mr Scutcheon suffered from a fully diagnosed, treated and stabilised mental health condition, no more than 5 points could be assigned under Table 5, having regard to Mr Scutcheon’s evidence and the medical reports received in evidence.

1. In summary, the Tribunal considers that Dr Tschirn is correct in reporting a lack of actual diagnostic information in relation to mental health function.  While noting all the evidence, the Tribunal agrees with Dr Tschirn’s analysis.  The Tribunal is not satisfied that a mental health condition can be said to have been fully diagnosed, treated and stabilised during the assessment period.  Therefore no points can be assigned under Table 5 of the Impairment Tables.

   Other conditions

2. Mr Scutcheon gave evidence about other conditions which have an impact on his health and wellbeing.  They include respiratory problems which he described as not significant.  He has suffered from them for about seven to eight years and he has consulted Dr Salagaras about those issues.  He has also had difficulties with sleep apnoea for which he has sought and obtained medical treatment.  The results of the treatment have been quite beneficial.  Mr Scutcheon has also had difficulties with eczema for which he has tried various medications to control it.  In the past he has suffered some difficulties with his hips and knees, without those problems progressing to a point where there is a specific diagnosis and treatment. 

3. None of these other conditions were relied upon in a substantive way to support the DSP claim.

4. The Job Capacity Assessment report referred to previously, concluded that the conditions of eczema, hypertension, asthma and obstructive sleep apnoea were not fully diagnosed, treated and stabilised.  The Tribunal agrees with that assessment.

   CONCLUSION

5. The Tribunal is satisfied that the only condition from which Mr Scutcheon suffers which gives rise to an impairment rating under the Impairment Tables during the assessment period is the spinal condition.  The applicable rating for the spinal condition is 10 points.

6. The mental health condition was not fully diagnosed, treated and stabilised at the relevant time and no rating can be assigned in respect of it.

7. Accordingly the Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied. However, Mr Scutcheon does not have impairment or a combination of impairments attracting a rating of at least 20 points under the Impairment Tables during the assessment period and therefore he does not satisfy s 94(1)(b) of the Act.

8. Accordingly it is not necessary to consider whether or not during the assessment period Mr Scutcheon had a “continuing inability to work” within the meaning of s 94(1)(c).

9. As Mr Scutcheon was not qualified for DSP at the time he lodged his claim or within 13 weeks of that date, the Tribunal is obliged to affirm the decision under review.

   DECISION

10. The Tribunal affirms the decision under review.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson

.........................[Sgd]...............................................

Administrative Assistant

Dated 8 February 2016

Date(s) of hearing	9 December 2015
Applicant	In person
Advocate for the Respondent	Mr A Hay
Solicitors for the Respondent	Department of Human Services