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

Shaw and Secretary, Department of Social Services (Social services second review) [2017] AATA 1137 (24 July 2017)

Division:GENERAL DIVISION
File Number: 2016/6811
Re:Raymond Shaw
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION

Tribunal:Senior Member L Kirk
Date:24 July 2017
Place:Sydney

The decision under review is affirmed.

.................................[sgd].......................................

Senior Member L Kirk

CATCHWORDS

SOCIAL SECURITY – disability support pension – physical, intellectual or psychiatric impairment – impairment rating of 20 or more points – continuing inability to work – Job Capacity Assessment – fully diagnosed, treated and stabilised – neck disorder – hypercholesterolemia – decision affirmed.

LEGISLATION

Social Security Act 1991 (Cth), s 94,

Social Security (Administration) Act 1999 (Cth) s 42, Sch 2

CASES

Bobera and the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AAT 922

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member L Kirk

24 July 2017

Mr Raymond Shaw (‘the Applicant’) suffers from a number of serious medical conditions which he claims make it difficult for him to work, or to look for work.
On 23 December 2015, Mr Shaw applied for the Disability Support Pension (‘DSP’). On 14 March 2016, his application for DSP was rejected by a delegate of the Secretary of the Department of Social Services (‘the Respondent’), and on 17 June 2016, an Authorised Review Officer (‘ARO’) affirmed the decision on review, on the basis that he did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (‘the Act’).
Mr Shaw applied to the Social Services and Child Support Division of this Administrative Appeals Tribunal for review (‘SSCSD’). In a decision dated 14 November 2016, the SSCSD affirmed the decision of the ARO refusing Mr Shaw’s claim for DSP as he did not satisfy section 94(1)(b) of the Act.
On 16 December 2016, Mr Shaw applied to the General Division of the Administrative Appeals Tribunal (‘the Tribunal’) for review of the SSCSD decision.
The matter was heard by the Tribunal in Sydney on 17 May 2017. Mr Shaw attended the hearing in person and was self-represented.

ISSUES AND LEGISLATION

The issue before the Tribunal is whether Mr Shaw qualified for DSP at the relevant time.
Pursuant to section 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth), in order to qualify for DSP, Mr Shaw must satisfy the requirements of section 94 of the Act as at the date he made his claim, 23 December 2015, or within 13 weeks of lodging the claim, that is between 23 December 2015 and 23 March 2016 (‘the qualification period’).
Section 94(1) of the Act provides that a person qualifies for the DSP if:
·the person has a physical, intellectual or psychiatric impairment; and
·the person’s impairment is of 20 points or more under the Impairment Tables; and
·the person has a continuing inability to work as defined in section 94(2) of the Act.
The Respondent concedes and the Tribunal agrees that Mr Shaw suffered medical conditions that caused impairment during the qualification period, and therefore he satisfies section 94(1)(a) of the Act at the time of his claim for DSP.
It follows that the issues for determination for the Tribunal in this matter are whether, during the qualification period, Mr Shaw had:
·an impairment rating of 20 points or more under the Impairment Tables (section 94(1)(b)); and
·a continuing inability to work as defined in section 94(2) of the Act (section 94(1)(c)).

The Impairment Tables

The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Impairment Tables’).
The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.
The Introduction to each relevant Table requires that ‘self-report of symptoms alone is insufficient’ and ‘there must be corroborating evidence of the person’s impairment’.
Part 2 of the Impairment Tables details the rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in section 3 to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.
Section 6(3) of the Impairment Tables requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. Section 6(4) of the Impairment Tables, a condition is ‘permanent’ if it:
(a)has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)has been fully treated; and
(c)has been fully stabilised; and
(d)is more likely than not to persist for more than two years.
In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, section 6(5) of the Impairment Tables instructs that a decision-maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.
For the purposes of the Impairment Tables, section 6(6) defines fully stabilised to mean:
(a)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:
(c)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
(d)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
The Macquarie Dictionary defines “undertaken” as, inter alia, committing oneself to, taking on, and promising to do a particular thing.
Reasonable treatment is defined in section 6(7) of the Impairment Tables as 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.
Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each table and a rating cannot be assigned between consecutive impairment ratings. Significantly, section 11(1)(c) provides:
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 (Emphasis added)

Medical conditions

Mr Shaw claims, and the Respondent accepts, that he suffers from two medical conditions, namely a neck disorder and hypercholesterolemia.
The first issue for determination by the Tribunal is whether the conditions were fully diagnosed, treated and stabilised during the qualification period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.

Which of the medical conditions can be given an impairment rating?

Condition 1: Neck disorder – spondylosis of the cervical spine

The Respondent accepts that Mr Shaw’s neck disorder was fully diagnosed during the qualification period, but contends that it was not fully treated and stabilised at that time.
In her report dated 16 December 2015, Dr Baharan Majidi, Mr Shaw’s general practitioner, reported that the applicant has “severe spondylosis on his neck vertebras (cervical spine), intra vertebral disc hernia, and spinal stenosis”. In her referral letter to Dr Matthias Jaeger, specialist neurosurgeon, Dr Majidi requested Dr Jaeger undertake “further management” of Mr Shaw.
In his evidence to the Tribunal, Mr Shaw said that he had suffered from neck pain for many years but he tolerated it because he needed to keep working. Eventually, the pain was diagnosed as a herniated disc and this gave him pins and needles in his hands. On one occasion he was driving and he thought he was having a heart attack as the pain was so bad and he received a traffic infringement as a consequence. He has pain in his thoracic and lumbar areas as well, but the most severe pain is in his cervical area. The MRI dated 8 December 2015 showed that he has a herniated disc and that the problem is mild to severe throughout his neck and back area.
Mr Shaw saw Dr Jaeger on 19 January 2016 who examined him and provided a written report to Dr Majidi. In his report, Dr Jaeger noted that Mr Shaw developed right sided neck, shoulder and arm pain radiating to the hand in late September/early October 2015. He stated that he explained to Mr Shaw that:
the natural history of brachialgia from disc herniation is often favourable and the symptoms settle with conservative treatment … [t]he residual weakness is the result of a certain degree of nerve affection and I expect that this will recover further over the next couple of months. The recovery can often take 12-18 months, however, and may be incomplete down the track.
Dr Jaeger further reported that he had given Mr Shaw a referral to start physiotherapy to strengthen his hand muscles and that “due to his good recovery with non-surgical management”, in his opinion, further management or investigation was not required and that he would see Mr Shaw again “should he have a recurrence of his pain or should his hand weakness deteriorate in future.”
Mr Shaw told the Tribunal that, during the examination, Dr Jaeger focussed his attention on his herniated disc, and that in relation to the arthritis in his neck Dr Jaeger said that due to Mr Shaw’s age, work and family history, there is nothing that can be done to address this condition.
Mr Shaw saw a physiotherapist, Mr Scott Muttdon, on 30 November 2015, who performed manipulation on him and gave him exercises to do at home. In his written report dated 30 November 2015, Mr Muttdon wrote:
Following treatment he reported excellent symptom relief and he had nil pain on all cervical active range. The plan for Raymond is to continue to participate in his home exercise program over the next week and review with BaiMed Physiotherapy after his follow up consultation with his [GP].
In his evidence to the Tribunal, Mr Shaw said that the physiotherapy treatment gave him brief relief from his symptoms but it was not sustained. Mr Shaw said that he continues to do the exercises Mr Muttdon gave him to do but the pain in his neck has not improved.
The Job Capacity Assessment (‘JCA’) report dated 26 February 2016 indicates that Mr Shaw reported that following his appointment with Dr Jaeger in January 2016 that he “may be able to avoid surgery if he has conservative treatment such as exercise therapy and pain management”. Based on this, the JCA assessor “anticipated [that] there may be some improvement in function in the next 2 years”.
Mr Shaw told the Tribunal that although the pain from his herniated disc has considerably improved, the pain in his neck area has become far worse. The pain in his neck is burning and constant and he is unable to sleep at night. If said that if he were to attend a medical prior to a job then he believes he would not be offered the job or, if he were to ‘bluff’ his way through the medical and be offered a job, he would not be capable of doing the work required of him on a daily basis.
He told the Tribunal that when he last worked he was not able to meet the standards required which could have resulted in a serious traffic accident and he was told not to return to work until his health had improved. He has not gone back to work since this time as he does not believe it is safe for him to do so. The certificate his doctor has given him dated 19 April 2017 (outside the qualification period) certifies that his disability will persist for 24 months plus and that he is unable to work. He does not want to be on DSP but he has no choice because of his conditions which prevent him from working.
Mr Shaw told the Tribunal that the arthritis in his neck is getting progressively worse and will not get any better in future. In his view, his condition was fully treated and stabilised in December 2015 and that the JCA assessor “got it wrong” in finding that his condition could be expected to improve in the next two years.
The issue for the Tribunal’s determination is the functional impact on Mr Shaw of his neck disorder during the qualification period from 23 December 2015 and 23 March 2016.
In Bobera and the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AAT 922 (24 December 2012), the Tribunal said at [34]:
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
On the basis of the medical evidence before it, the Tribunal finds that exercise therapy and pain management had been recommended by his treating medical practitioners for Mr Shaw at the end of the qualification period. The evidence before the Tribunal, including Mr Shaw’s own evidence, is that the pain from his herniated disc largely improved in the 12 or so months since he saw Dr Jaeger, however his neck arthritis has deteriorated and the pain has become progressively worse. There is insufficient medical evidence before the Tribunal for it to assess the functional impact of Mr Shaw’s neck arthritis at the end of the qualification period. Accordingly, the Tribunal is not satisfied that Mr Shaw’s neck disorder was permanent as it was not fully treated and stabilised during the qualification period, and therefore no impairment rating can be assigned to this condition.

Condition 2: Hypercholesterolemia

The Respondent accepts that Mr Shaw’s hypercholesterolemia was fully diagnosed, fully treated and fully stabilised during the relevant period however contends that on the available medical evidence, the condition is well managed and has no, or minimal impact, on Mr Shaw’s functionality.
In her referral letter to Dr Jaeger dated 16 December 2015, Dr Majidi refers to hypercholesterolemia in Mr Shaw’s “past medical history”.
In his evidence to the Tribunal, Mr Shaw said his cholesterol does not cause him any problems and that he is on medication to treat it. He said that a blood test has just been done and the results showed that his cholesterol has increased, but he believes this is because he has not been exercising as much in the last 12 months. He confirmed that this condition does not have a functional impact on him.
On the basis of the evidence before it, including Mr Shaw’s own evidence, the Tribunal is not satisfied that Mr Shaw’s hypercholesterolemia had any functional impact on him during the qualification period. Accordingly, no impairment rating can be assigned to this condition.

CONCLUSION

The Tribunal is not satisfied that Mr Shaw’s neck disorder was fully treated and stabilised, or that his hypercholesterolemia which was fully diagnosed, had a functional impact on him, during the qualification period and therefore no impairment rating can be assigned to these conditions.
As Mr Shaw’s conditions are not considered permanent under the Act, it is not necessary for the Tribunal to consider whether he had a continuing inability to work during the qualification period.
It is open to Mr Shaw to lodge a new DSP application based on what he claims to be the progression of his neck disorder since the time of his original DSP application, the decision on which is the subject of this review.

DECISION

The decision under review is affirmed.

I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member L Kirk

...............................[sgd].................................

Associate

Dated: 24 July 2017

Date of hearing:	17 May 2017
Applicant:	In person
Solicitors for the Respondent:	Mr A Baril, Department of Human Services

[2017] AATA 1137

24 July 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction