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

[2019] AATA 2115

Secker and Secretary, Department of Social Services (Social services second review) [2019] AATA 2115 (21 June 2019)

Division:GENERAL DIVISION

File Number(s):  2018/0863

Re:Daniel Secker

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member N A Manetta

Date:21 June 2019

Date of written Reasons:       18 July 2019

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.

............................[sgnd]......................................

Senior Member N A Manetta

SOCIAL SECURITY – pensions benefits and allowances – Disability Support Pension – whether conditions are fully diagnosed, treated and stabilised – whether 20 points from conditions – decision under review affirmed

LEGISLATION

Social Security Act 1991

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member N A Manetta

18 July 2019

1. At the conclusion of the hearing of this matter, I delivered my decision to affirm the decision under review and gave oral reasons for my decision.  The Applicant requested written reasons. 

2. I have reviewed the transcript of my reasons and made minor amendments to it.  I formally adopt it as a written statement of my reasons in answer to the Applicant’s request.  I attach a copy of the transcript as amended.

3.       I certify that the following  paragraphs twenty (20) are a true copy of the reasons for the decision herein of Senior Member N A Manetta

..............[sgnd]..................

Associate

Dated: 19 July 2019

Date of hearing:	27 March 2019
Applicant’s Representative:	In person
Respondent’s Representative:	Ms. L Wells of Sparke Helmore Lawyers

ORAL DECISION OF SENIOR MEMBER N A MANETTA

1. SENIOR MEMBER:  I am prepared now to deliver a decision in this matter, Mr Secker and Ms Wells.  As a preliminary matter I do note that if either party wants written reasons I may add to or alter the reasons in minor respects for clarity’s sake but otherwise what I am about to read out represents the views of the tribunal – my views.  Mr Secker, I will not keep you in suspense.  I am afraid you have been unsuccessful before the tribunal and what I shall now do is read out my reasons for that conclusion.

2. This is an application by Mr Daniel Secker seeking a review of a Level 1 decision of this tribunal which affirmed earlier decisions taken in the respondent’s department to refuse him a disability support pension, or DSP.

3. At the hearing before me Mr Secker represented himself and Ms Wells appeared for the respondent.  Considering the question afresh on the evidence before me, I must decide whether Mr Secker was qualified to receive a DSP on the date he lodged his application or at the latest within 13 weeks of that date.

4. In my opinion Mr Secker was not so qualified and I shall affirm the decision under review.  I set out now the relevant background to the application and my reasons for the conclusion I have just stated.

5. Mr Secker was born in 1975 at Port Lincoln in South Australia.  He moved to Adelaide at the age of five and attended three private schools.  He graduated from the last of these schools in 1993 with a merit certificate.  He obtained work as a mechanic first at North East Mitsubishi and then with a tyre company, Bob Jane, at Glynde.  He worked for several years with Bob Jane.  In 1997 he and his partner welcomed a baby.  He found a better-paying job in the removal section of a furniture business, IJF.  He became the logistics head of the section in which he was working and indeed of the entire firm.  He worked there for two or three years until he found a better job at Telstra as a telemarketer in 2000 or 2001.  He then moved to work with a charity telemarketer.

6. He decided to move back to the Lower Eyre Peninsula to help out on the family farm. He moved back in 2003 and his son accompanied him while his former partner stayed in Adelaide.  He helped out on the farm until approximately four years ago.  In 2013 he began working in a marine fabrication company called “Rediweld” in Coffin Bay.  He was employed there as a seasonal metal worker.

7. In March 2013 while welding an aluminium plate, Mr Secker was flung backwards violently as a result of an electric shock.  He suffered a whiplash and was driven to the Port Lincoln Hospital.  He was admitted overnight and discharged the next day.  He returned to Coffin Bay but the pain was excruciating in his shoulder, neck and back.  He suffered migraines and headaches and experienced a tightening sensation in his fingers.  He saw several GPs and he discovered he had a torn rotator cuff which he treated with physiotherapy.  Mr Secker’s doctor advised him to return to Rediweld, and he did return but was only back there a month before he lost his job.

8. He made a claim for compensation under the WorkCover scene.  He tried meter reading as a substitute job but could not do that long term he said.  He lasted nine months including breaks.  He eventually received a lump sum of $68,000 net from WorkCover and following payment of that sum, WorkCover’s ongoing liability to him ceased.

9. He found work at a delicatessen serving customers but that work ended in October 2016.  In recent times Mr Secker has discovered that he is suffering from a bone marrow condition called polycythaemia.  The symptoms of this disease are chronic fatigue, headaches, pains and general lethargy.  He underwent a procedure - venesection - but this did not help.  Mr Secker underwent chemotherapy and took one gram daily of Hydrea.  This had very positive results for him. Mr Secker found his swollen feet, energy levels and migraines all improved. 

10. He presently lives in Coffin Bay in a Housing Trust home.  He described his daily routine to me as follows; he gets up at about 7.30 am feeling nauseous.  He watches television until about 10.  His breakfast consists of a couple of pieces of toast and coffee.  He plays piano for a while.  His son Jordan stays with him a few days a week but otherwise lives with his grandparents at Cummins.  His son assists him around the house and takes him shopping, although he will sometimes drive himself.  Mr Secker is capable of showering himself and attending to personal needs.

11. Mr Secker has a very limited social life and will very occasionally only, drive to a friend’s house for a coffee.  He does not go walking as he finds this very difficult and has lost substantial amounts of weight.  His only other social engagement occurs when parents visits him.  As I have said, he watches TV or listens to the radio.

12. Mr Secker alluded to depression and co-morbid anxiety which he suffers as a result of his post-traumatic stress disorder.  These disorders stem from abuse he suffered as a child.

13. Mr Secker lodged his application for a disability support pension in early April 2017.  One critical question before me is whether Mr Secker was qualified for the DSP at that time or at the latest within 13 weeks, or one quarter of a year, after that time.  This means he must be qualified for the DSP by early July 2017 at the latest.

14. In order to receive points for impairments or for an impairment or impairments resulting from a medical condition, the medical condition in question must be fully diagnosed, treated and stabilised at that time - that is at the time the DSP application is lodged, or within 13 weeks of that date. 

15. It is quite clear in my opinion that I must ignore Mr Secker’s primary condition of polycythaemia.  It is clear that treatment for this condition only commenced in January 2018, well after July 2017.  It is a treatment that has assisted Mr Secker.  In the circumstances I am obliged to ignore Mr Secker’s polycythaemia and I cannot award him any points in respect of the impairments caused by this condition.  Mr Secker pressed me with the submission that he would have begun the treatment earlier but a mix-up for which he was not responsible, robbed him of that opportunity.  I accept that submission but I do not accept that Mr Secker’s further submission that this mix-up was a compelling reason for him not to undertake treatment for the purposes of clause 6(B)(ii) of the Impairment Tables.  This particular paragraph is referring, in my opinion, to a general failure to undertake treatment, not to a single failure to undertake treatment on a particular occasion. 

16. Mr Secker relied upon depression, anxiety and post-traumatic stress disorder.  There is evidence before me which suggests these conditions were observed in Mr Secker in 2012, see for example Dr Adriana Lattanzio’s report of 20 March 2012.  There is no evidence before me, however, that shows Mr Secker has regularly engaged with specialist mental health professionals, psychologists or psychiatrists to assist him, although he has seen his GP and takes Mirtazapine 60 milligrams and will continue to do so long term.

17. In the circumstances, in the absence of regular engagement with specialist mental health professionals I do not regard Mr Secker’s mental health conditions as fully treated, diagnosed and stabilised at the relevant time.  I must therefore under the regulatory scheme ignore them.

18. Mr Secker has a cervical spine condition and a left shoulder condition.  If Mr Secker is to succeed in his application before me he must have 20 points attributed to him in total for the impairments that arise from these two conditions.  In applying the relevant tables I may only take into account symptoms reported by Mr Secker where there is corroborating evidence.  There is no corroborating evidence in this case from qualified medical specialists or otherwise, that Mr Secker’s two conditions would attract in total 20 points under Table 2 and Table 4 in respect of the impairments they cause him.  The absence of corroborating evidence is a factor that clearly counts against Mr Secker but there is one further difficulty for Mr Secker, namely that in order to qualify for a DSP he must be unable to work 15 hours per week or to undertake  retraining.  I may only have regard to the incapacities caused by the impairments from eligible conditions when I assess this matter.  I must exclude therefore from consideration impairment arising from the polycythaemia and Mr Secker’s mental health conditions.

19. The evidence before the tribunal from Dr Ung, Mr Secker’s treating GP is that Mr Secker is capable of working 15 hours a week or attending training.  It follows, in my opinion, that Mr Secker’s claim must fail.  I shall affirm the decision under review.  I would actively encourage Mr Secker to engage directly with mental health professionals and other professionals so as to improve this aspect of his health - that is his mental health and his physical health overall. 

20. The formal decision of the tribunal will be to affirm the decision under review.  That concludes my reasons.

    END OF ORAL DECISION