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

[2021] AATA 1048

Silpadhipathi and   Secretary, Department of Social Services (Social services second review) [2021] AATA 1048 (29 April 2021)

Division:GENERAL DIVISION

File Number:          2019/3589

Re:Vidyasiri Silpadhipathi

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R West

Date:29 April 2021

Place:Melbourne

The Tribunal affirms the decision under review.

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

Member R West

Catchwords

SOCIAL SECURITY – disability support pension – mental health condition – left leg condition - chronic back pain – hearing loss – diabetes – whether conditions fully diagnosed, treated and stabilised in the qualification period –  whether impairments attract rating of 20 points or more under Impairment Tables – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2012] AATA 922
Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938
Covenden and Secretary, Department of Social Services, Re [2018] AATA 353
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133; [2014] AATA 447

Secondary Materials

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

REASONS FOR DECISION

Member R West

XX April 2021

BACKGROUND

1. This matter concerns the decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) dated 27 May 2019 affirming the decision of Services Australia to refuse the Applicant’s claim for the Disability Support Pension (‘DSP’).

2. The relevant history of the matter is as follows:

   ·The Applicant made his original application for DSP on 24 October 2018.

   ·The application was assessed and refused on 4 November 2018 (‘the Initial Decision’).

   ·An authorised review officer (ARO) affirmed this decision on 21 February 2019 (‘the ARO Decision’).

   ·A review of the ARO Decision was conducted by the Administrative Appeals Tribunal (Social Services & Child Support Division) (‘the First Tier Review’) and a decision affirming the ARO Decision was handed down on 27 May 2019.

   ·The Applicant applied for a Second Tier Review by the General Division of the Administrative Appeals Tribunal on 19 June 2019.

3. A hearing in relation to the Second Tier Review was held by telephone on 23 March 2021.  The Applicant was self-represented.  The Respondent was represented by Ms Anneliese Massey, a solicitor with Sparke Helmore.

4. The hearing was conducted in the context of restrictions placed on the community in response to the COVID–19 pandemic. These restrictions necessitated that the hearing be conducted by audio/visual link. The Applicant and the Respondent each consented to the hearing proceeding on 23 March 2021 on the basis that it was conducted by telephone. The Tribunal determined pursuant to section 33A of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’) to conduct the hearing by telephone.

   LEGISLATION

5. The Tribunal has had regard to the following relevant legislation in making its decision:

   ·Administrative Appeals Tribunal Act 1975;

   ·Social Security Act 1991 (‘the Act’);

   ·Social Security (Administration) Act 1999 (‘the Administration Act’);

   ·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) (‘the Rules’): a determination made by the Minister under s 26(1) of the Act which came into effect on 6 December 2011; and

   ·Social Security (Active Participation for Disability Support Pension) Determination 2014.

   QUALIFICATION PERIOD

6. A decision in relation to the granting of DSP must be made having regard to the Applicant’s condition in the period commencing on the day the application is lodged and the 13 weeks thereafter.  This is called the qualification period.[1]

   [1] See ss 37 and 42 and cls 3 and 4 of Schedule 2 of the Administration Act.

7. In this case, the qualification period commenced on 24 October 2018 and ended on
   23 January 2019.

8. In assessing whether a condition has stabilised and is likely to persist for the future, the Tribunal must look at the situation during the qualification period, having regard to the evidence.  Evidence of the Applicant’s condition subsequent to the qualification period is not relevant, save as to the weight the Tribunal might give to competing prognostications made about the Applicant’s condition during the qualification period.[2]

   [2] See Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 992 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133 at [33] and Re Covenden and Secretary, Department of Social Services [2018] AATA 353 at [7].

   DSP QUALIFICATION

9. To qualify for a DSP, an applicant must satisfy the requirements set out in section 94(1) of the Act, as assessed during the qualification period.

10. In essence, section 94(1) of the Act requires that:

    ·the Applicant have a physical, intellectual or psychiatric impairment; and

    ·the Applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years; and

    ·the Applicant has a severe impairment (an impairment rating of at least 20 points on a single Impairment Table); or the Applicant’s impairments together rate at least 20 points on the Impairment Tables; and

    ·the Applicant has a continuing inability to work; or the Secretary is satisfied that the Applicant is participating in the supported wage system.

11. Section 94(2) of the Act provides that a person has a continuing inability to work because of an impairment if the person has a severe impairment or has actively participated in a program of support; and the impairment is of itself sufficient to prevent the person from doing any work, or undertaking a training activity independently of the program of support within the next two years.

12. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 provides that a person has actively participated in a program of support if they have participated in a program for at least 18 months in the three years immediately prior to the date of claim.

    THE EVIDENCE AND SUBMISSIONS

13. In conducting the Second Tier Review, the Tribunal had regard to the documents produced by the Respondent pursuant to section 37 and section 38AA of the AAT Act (‘T Documents and Supplementary T Documents’) and the oral evidence of the Applicant.

14. The Tribunal considered the following documents filed by the Respondent:

    a.Medicare and PBS Report, dated 17 January 2020 lodged by the Respondent (‘Exhibit R-1’)

15. The Tribunal considered the following documents filed by the Applicant:

    a.medical report from Thompson Road Clinic dated 28 February 2020 (‘Exhibit A-1’);

    b.medical report from Thompson Road Clinic dated 5 February 2019 (‘Exhibit A-2’);

    c.Centrelink Medical Certificate dated 27 February 2020 (‘Exhibit A-3’);

    d.medical report from Cranbourne Physiotherapy dated 20 November 2018 (‘Exhibit A-4’);

    e.medical report of Dr Mittel dated 11 December 2020 (‘Exhibit A-5’).

    CONSIDERATION OF ISSUES

16. The Applicant was born in Sri Lanka in 1958 and migrated to Australia in 1988, where he worked as a machine operator. He was involved in a motor vehicle accident in January 1993 where he sustained a head injury, fractures to the left pelvis, tibia and ribs, a deep laceration of his left thigh, damage to his left knee and hearing loss in his left ear.[3] The Applicant had previously applied and was granted the DSP in 1993, on the basis that he suffered from lower leg deficiencies from the 1993 fracture of his left tibia.  The Applicant returned to Sri Lanka in 2000 and following his return to Australia, he reapplied for the DSP on 24 October 2018.  It is the rejection of this claim that has given rise to these proceedings.

    [3] T7 at p.55

17. The Applicant’s claim on review relates to the following conditions:

    a.mental health condition; and

    b.left leg condition; and

    c.chronic back pain; and

    d.hearing loss; and

    e.diabetes.

18. The first issue for determination for each condition is to assign a rating under the appropriate Impairment Tables for the Applicant’s claimed impairment.  An impairment rating can only be assigned if the Tribunal is satisfied that during the qualification period, the Applicant’s condition causing the impairment was permanent, that is, fully diagnosed, fully treated and fully stabilised, and likely to persist for more than two years.[4]

    [4] Section 94(1) of the Act.

19. A condition is only considered fully treated and fully stabilised if, pursuant to subsection 6(6) of the Determination:

    (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.

20. Reasonable treatment is defined in subsection 6(7) of the Determination 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.

    Mental health condition

21. The Respondent submits that the Applicant’s mental health conditions, depression and anxiety, were fully diagnosed during the qualification period, but they were not fully treated or stabilised because reasonable treatment had not been undertaken.

22. In 1996, consultant psychiatrist Dr John Rogers diagnosed the Applicant as suffering from major depression related to the motor vehicle accident, and his subsequent injuries and level of depression varied with the intensity of the pain he was experiencing.[5] Dr Rogers recommended a combination of counselling and medication, namely Amitriptyline 25 mg to manage his depression.  Dr Rogers noted in his report of 22 October 1996 that the Applicant’s level of psychiatric impairment assessed against the A.M.A Guides, 2^nd Edition was Class III and his potential for rehabilitation and overall improvement was very poor.[6]  The Applicant gave evidence that he had trialled three different medications in the six months after seeing Dr Rogers and had continued with medication after that time while in Sri Lanka.

    [5] T8 at p.57

    [6] T9 at p.59

23. There is a paucity of medical evidence regarding the progress of the Applicant’s mental health condition after 1996 and prior to the lodgement of the Applicant’s claim in October 2018. The Applicant was assessed by a job capacity assessor in March 2009 in relation to a claim for the DSP only on the basis of his lower limb deficiencies and diabetes.[7] Medical reports of Dr Nelun Fernando dated 20 June 2013, 30 July 2013,[8] and 13 September 2018[9] do not refer to the Applicant’s mental health condition, nor do the Job Capacity Assessment (‘JCA’) reports made in June and September 2013,[10] April 2014,[11] and February 2016.[12]

    [7] T10

    [8] T11 and T13

    [9] T21

    [10] T14

    [11] T15

    [12] T17

24. Depression is first noted in Centrelink Medical Reports of the Applicant’s treating doctor in June 2019.[13] The JCA conducted in June 2019 records that the Applicant’s treating doctor had stated that the Applicant was suffering an exacerbation of a permanent condition and had experienced a recurrence of depression due to stress/psychosocial deterioration.  The report states that the Applicant’s treating doctor had developed a mental health treatment plan for the Applicant in March 2019 which involved counselling and antidepressant medications. The JCA report also noted that the Applicant had been referred to a psychiatrist but was awaiting an appointment. 

    [13] T34 at p.188

25. The Medicare records confirm that the Applicant was first seen by a clinical psychologist Dr Helen Kothrakis on 22 March 2019.[14] On 17 May 2019, Dr Kothrakis reported that she had seen the Applicant at the request of his treating doctor for psychological counselling for his depressed mood and anxiety.[15] Dr Kothrakis reported in June 2019, that the Applicant had been diagnosed with depression and anxiety, and that it is unlikely any further treatment will result in a significant change in his mental health.[16] 

    [14] Exhibit R-1

    [15] T29 at p.173

    [16] T31

26. PBS records do not show that the Applicant was prescribed antidepressant medication during the qualification period and the Applicant, who insisted that he had taken medication, was unable to identify any other source of such prescriptions.[17]

    [17] Exhibit R-1

27. In the First Tier Review decision, the Tribunal was unable to identify any evidence indicating the symptoms, their severity or the treatment that was being undertaken for the Applicant’s depression when he made his claim for the DSP on 24 October 2018. 

28. On the basis of the evidence before it on review, the Tribunal is satisfied that the Applicant’s mental health condition, namely depression and anxiety, was fully diagnosed by an appropriately qualified medical practitioner. However, the medical evidence does not establish that the condition was fully treated and fully stabilised during the qualification period.  The initial diagnoses by Dr Rogers in 1996 recommended treatment by way of counselling and medication, but there is no evidence as to the implementation of those recommendations. There is a paucity of medical evidence generally regarding the Applicant’s mental health condition after 1996 and prior to 24 October 2018. The evidence establishes that a mental health plan was prepared in March 2019 (after the qualification period) and that this was only partially implemented through the counselling by Dr Kothrakis.  The PBS records do not indicate that a regime of medication was prescribed, nor had the Applicant seen a psychiatrist as recommended by his treating doctor.

29. For these reasons the Tribunal is not satisfied that the Applicant’s mental health condition can be assessed under Table 5 of the Impairment Tables.

    Left leg condition

30. The Respondent submits that the Applicant’s left leg condition was fully diagnosed during the qualification period, but it had not been fully treated or stabilised because reasonable treatment had not been undertaken.  In the alternative, the Respondent submits that the condition should attract an impairment rating under Table 3 of 5 points.

31. The report of Dr Fernando dated 1 August 1994 identified the Applicant’s initial injuries to his left lower leg resulting from the motor vehicle accident in 1993.[18]  The Applicant suffered  fractures to his left pelvis and left tibia, deep lacerations to the left thigh and disruption to left knee with damage to lateral collateral ligament and avulsion of medial collateral ligament.  Dr Fernando set out in his report the extensive treatment received by the Applicant during a 2-month stay in hospital.  This included wound debridement and skin grafts for the laceration to his thigh, the internal fixation of his tibia and external fixation applied to his left knee which was later replaced by a brace.  After being discharged from hospital, the Applicant undertook physiotherapy at the TAC rehabilitation facility.  Dr Fernando reported that over the period up to July 1994, the Applicant presented to him with pain and stiffness in his left knee, numbness in his left big toe and instability in his left knee.  Dr Fernando expressed the view that the Applicant’s left knee had not stabilised and may require further surgery.

    [18] T7 at p.55

32. Dr Rogers noted in his report of 11 June 1996, that the Applicant’s current disabilities included a painful and swollen left knee with limitation of movement, trouble stepping upwards because of the pelvic fracture.[19]

    [19] T8 at p.57

33. In June 2013, Dr Fernando reported that the Applicant’s left knee was unstable and was being treated with acupuncture, physiotherapy and analgesics.[20] He confirmed that the Applicant had been referred to an orthopaedic surgeon, although no report from the surgeon was provided to the Tribunal.  Dr Fernando opined that the Applicant may need a total left knee replacement.  Dr Fernando confirmed in his report of 13 September 2018,[21] that the Applicant had undergone osteotomy surgery on his left knee on 22 January 2018 and was undertaking physiotherapy and hydrotherapy,[22] but was awaiting further surgery by way of a total left knee replacement in the following year.  On 28 February 2020, Dr Vetha Rajeswaran confirmed that the Applicant was awaiting surgery for a total knee replacement.  The Applicant confirmed in his evidence that the surgery was performed in June 2020.

    [20] T11

    [21] T21 at p.153

    [22] Treatment confirmed by Scott Harrop, Physiotherapist, at T20

34. The Tribunal is satisfied that the Applicant’s lower leg condition, namely an unstable and painful left knee, was fully diagnosed by the time the Applicant made his claim for the DSP.  It is also established that the Applicant had undertaken significant treatment for the condition over the years since the accident in 1993.  This included external fixation during initial treatment in hospital, physiotherapy and hydrotherapy, analgesic medication and further surgery in the form of an osteotomy. Notwithstanding this treatment, the Applicant’s left knee remained unstable and painful during the qualification period. The question is whether, by that time, the Applicant had undertaken all reasonable treatment for the condition, and in particular whether further surgery in the form of a knee replacement was reasonable.

35. It seems clear from the evidence that by the time the Applicant made his claim for the DSP his left knee continued to be unstable and the source of pain.  Both Dr Fernando and Dr Rajeswaran were in favour of a knee replacement to address the Applicant’s condition.  The Applicant gave evidence that it took around 18 months for him to recover from the osteotomy before he was able to undertake a knee replacement. This means that during the qualification period the Applicant was still recovering from the osteotomy surgery and awaiting the opportunity to undertake a knee replacement.

36. The Respondent did not produce any additional medical evidence to show that knee replacement surgery is reasonably accessible, at reasonable cost, can be reliably expected to result in substantial improvement and is regularly undertaken and has a high success rate with low risk to the patient.  The Tribunal is invited to reach that conclusion from the available medical evidence. While the Tribunal’s consideration of this issue would have been assisted by medical evidence on the point, it is satisfied that it is reasonable to draw the conclusion that knee replacement surgery was reasonable treatment in the circumstances.  As the surgery was carried out in June 2020, it is indicative that the treatment that was reasonably accessible at a reasonable cost for the Applicant.  The fact that both treating doctors and the Applicant’s orthopaedic surgeon favoured the treatment, suggests that it could be reasonably expected to result in a substantial improvement in the Applicant’s condition.  On this basis the Tribunal is satisfied that knee replacement surgery was reasonable treatment for the Applicant’s condition and  it could reasonably be expected that significant improvement in the Applicant’s condition might be achieved, enabling him to undertake work (of at least 15 hours per week) in the next two years.

1. As the Tribunal has noted:

   …The evident legislative intent is that disability support pensions be paid only when the disabling condition has reached the stage where it can be regarded as being permanent and having a permanent impact upon normal function as it relates to work performance.[23]

   [23] Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938 at [22]

2. If the Applicant’s lower left limb condition is assessed during the qualification period (as it must be), with the opportunity for knee replacement surgery yet to be performed, the Tribunal is satisfied that it had not reached the stage where it could be regarded as being fully treated or stabilised, as reasonable treatment had not been undertaken.

   Chronic back pain

3. The Respondent submits that the Applicant’s chronic back pain was fully diagnosed during the qualification period, but it had not been fully treated or stabilised because reasonable treatment had not been undertaken.  In the alternative, the Respondent submits that the condition should attract an impairment rating under Table 4 of nil points.

4. A diagnosis of chronic back pain with left sciatica was made by Dr Rajeswaran in his report of 13 November 2018,[24] and confirmed by the physiotherapist Mr Scott Harrop in his report of 20 November 2018.[25] On the basis of this evidence, the Tribunal accepts that the Applicant’s chronic back pain condition was fully diagnosed during the qualification period.

   [24] T34

   [25] T26

5. However, the medical evidence regarding the treatment of the condition is limited.  First, there is no X-ray or other imaging data to confirm the nature of the condition and upon which to determine the appropriate treatment.  There is also no evidence that the Applicant has seen a specialist for the condition such as an orthopaedic surgeon or a pain management specialist.  The evidence does show that the Applicant has undertaken physiotherapy and hydrotherapy, but the reports indicate that this treatment is primarily to address the Applicant’s left knee condition and to aid his recovery from surgery.  Similarly, it is unclear whether the medication prescribed for the Applicant to relieve pain was for his back pain or for the pain associated with his left knee and other conditions.[26]

   [26] See Exhibit R1 and T34

6. On the basis of this evidence the Tribunal is not satisfied that all reasonable treatment has been utilised in relation to the Applicant’s chronic back pain condition and accordingly the condition cannot be regarded as fully treated and stabilised.

   Hearing Loss

7. The Respondent submits that the Applicant’s hearing loss was fully diagnosed during the qualification period, but it had not been fully treated or stabilised because reasonable treatment had not been undertaken.  In the alternative, the Respondent submits that the condition should attract an impairment rating under Table 11 of nil points.

8. Dr Fernando noted in his report of 1 August 1994 that one of the effects on the Applicant of the motor vehicle accident in 1993 had been left ear hearing loss.[27] On 14 November 2018 Dr Sim, audiologist, reported on the results of audiometry testing of the Applicant’s ears. He noted no abnormality in relation to tympanometry and speech audiometry, but in relation to pure-tone audiometry he observed a mild to moderate-severe sensorineural hearing loss in the Applicant’s left ear and a mild loss in the right ear.[28] Dr Sim concluded that the Applicant would benefit from hearing aid amplification to improve his hearing.  The Applicant did not obtain a hearing aid during the qualification period but acknowledged in his evidence that he can now hear okay when he is using a hearing aid.

   [27] T7

   [28] T25

9. On the basis of this evidence the Tribunal is satisfied that the Applicant’s hearing loss was fully diagnosed during the qualification period but the recommended treatment for his condition, a hearing aid, was not utilised until later and so the condition was not fully treated and stabilised during that period.  In any event, the Tribunal notes that the Introduction to Table 11 of the Impairment Tables states that an assessment of a hearing impairment must be made with the person using any prescribed hearing aid, cochlear implant or other assistive listening device.  As the Applicant acknowledged that he could hear okay when wearing his hearing aid and in the absence of any medical evidence to indicate otherwise, the Tribunal is satisfied that a rating of nil under Table 11 would be appropriate if the condition were treated as a permanent condition.

   Diabetes

10. The Respondent accepts that the Applicant’s diabetes was fully diagnosed and fully treated and stabilised during the qualification period but could not be given a rating under the Impairment Tables because of the absence of any evidence of any functional impairment.

11. The Applicant’s diabetes was first diagnosed when he was 18 years of age,[29] and he has had regular blood tests and been treated with insulin since that time.[30]  The Tribunal accepts that the condition was fully diagnosed, fully treated and fully stabilised during the qualification period and the functional impact of the condition is appropriately assessed under Table 1 of the Impairment Tables.

    [29] T12 at p.79

    [30] T34 and Exhibit R1

12. In his evidence to the Tribunal, the Applicant described various limitations on activities requiring physical exertion or stamina, but they generally related to his other conditions. He identified the principal functional impact of his diabetes as fatigue and weakness.  

13. The JCA reported on 14 April 2009 that the Applicant identified thirst, frequent need to urinate and sweating as the principal functional impact of his diabetes.[31]

    [31] T10

14. The JCA reported in September 2013 that the Applicant:[32]

    …experiences occasional symptoms of fatigue due to the condition of diabetes, particularly when performing physically demanding activities and, due to these symptoms, the client has occasional difficulty walking to local without stopping to rest and is able to perform most work-related tasks, other than tasks involving heavy manual labour. He advised that he experiences regular fatigue and weakness due to his diabetes and often has periods of poor concentration and occasional hypoglycemic attacks (without loss of consciousness).

    (Errors in original)

    [32] T14 at p.100

15. The Respondent asserted that there is no corroborating medical evidence relevant to the qualification period regarding the functional impact of the Applicant’s diabetes.

16. The Introduction to Table 1 states that self-reporting of symptoms alone is insufficient.  There must be corroborating medical evidence.  Considering the medical evidence relevant to the qualification period, the Tribunal notes that there is no mention of diabetes in Dr Fernando’s report of 13 September 2018;[33] nor in the DSP Medical Assessments dated 24 October 2018[34] and 31 October 2018;[35] or in the report of Dr Kothrakis of 17 May 2019.[36] Having regard to this, the Tribunal is not satisfied that there is sufficient evidence to establish that the Applicant’s diabetes would, of itself, prevent the Applicant from undertaking exercise appropriate to his age for at least 30 minutes or completing physical activities around his home and community.

    [33] T21

    [34] T27 at p.164

    [35] T 23 at p.157

    [36] T29 at p.173

17. Accordingly, the Tribunal attributes a rating of nil points under Table 1 in respect of the Applicant’s diabetes.

    CONCLUSION

18. The total impairment rating for the Applicant’s conditions under the Impairment Tables is therefore nil.

19. For the reasons discussed, the Tribunal is satisfied that the Applicant has a physical, intellectual or psychiatric impairment as required by s 94(1)(a) of the Act, but he does not meet the qualification criterion for a DSP under s 94(1)(b) of the Act. Namely that he does not have an impairment or impairments which rate 20 points or more under the Impairment Tables. Accordingly, the Applicant was not qualified for a DSP at the date of his claim or within the qualification period.

20. It is unnecessary for the Tribunal to consider the other matters raised in the Respondent’s submissions.

    DECISION

21. The Tribunal affirms the decision under review.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Member R West

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

Associate

Dated: 29 April 2021

Date of hearing:	23 March 2021
Applicant:	By telephone
Advocate for the Respondent:	Ms Anneliese Massey
Solicitors for the Respondent:	Sparke Helmore