Simon Mirza and Secretary, Department of Social Services

[2015] AATA 223

[2015] AATA  223

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/0912
Re	Simon Mirza
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Professor R McCallum AO, Member
Date	14 April 2015
Place	Sydney

The decision under review is affirmed.

........................................................................

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant’s impairments are rated 20 points or more under the Impairment Tables – thirteen week qualification period – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

CASES

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

Fanning and Secretary, Department of Social Services [2014] AATA 447
Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

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

REASONS FOR DECISION

Professor R McCallum AO, Member

14 April 2015

BACKGROUND

1. The Applicant, Mr Simon Mirza has been receiving sickness allowance since 12 March 2013. On 19 March 2013, the Applicant claimed Disability Support Pension (DSP), but on 19 April 2013 his claim was rejected.

2. On 23 April 2013, the applicant sought review, but on 11 November 2013, an Authorised Review Officer (ARO) affirmed the original decision.

3. On 15 November 2013, the Applicant appealed to the Social Security Appeals Tribunal (SSAT), however, on 30 January 2014, the SSAT affirmed the decision of the ARO.

4. The SSAT held that the Applicant suffers from a spinal disorder. The medical evidence showed that the Applicant suffers from chronic back pain due in large part to osteoarthritis. The Applicant was treated by physiotherapy, and the SSAT held that the spinal condition was fully diagnosed treated and stabilised. Accordingly, the SSAT assessed the Applicant's spinal condition at 5 points under table 4 of the impairment tables.

5. The SSAT also held that the Applicant's hip pain caused by osteoarthritis was fully diagnosed, stabilised and treated. The Applicant had undergone physiotherapy and hydrotherapy, and there were no plans for an immediate hip replacement operation. The SSAT assessed this impairment at 5 points under table 3 of the impairment tables.

6. On 20 February 2014, the Applicant appealed to this Tribunal. 

   THE LEGISLATION

7. The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

8. The criteria for DSP are set forth in section 94 of the SS Act. Section 94(1) relevantly provides:

   A person is qualified for disability support pension if:

   (a) the person has a physical, intellectual or psychiatric impairment; and
   (b) the person's impairment is of 20 points or more under the Impairment Tables; and
   (c) one of the following applies:
   (i) the person has a continuing inability to work;

   ...

9. Put simply, I must be satisfied, first, that the Applicant has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the impairment tables. Finally, I must be satisfied that the Applicant has a continuing inability to work.

   The 13 week qualifying period

10. Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. Clause 4(1) provides:

    If:

    (a) a person (other than a detained person) makes a claim for a relevant social security payment; and
    (b) the person is not, on the day on which the claim is made, qualified for the payment; and
    (c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
    (d) the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

11. Clause 4(1) is worded in a complex manner, however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine the Applicant's eligibility for DSP in the 13 week period commencing on the day on which the Applicant applied for DSP, and concluding 13 weeks after that day. Therefore, I must determine whether the Applicant qualified for DSP between 19 March 2013 and 18 June 2013.

12. The date of this hearing is 12 March 2015 which is just one week less than two years since the Applicant made his claim on 19 March 2013. In these circumstances and given the material before me, I take this opportunity to refer to the relevant case law on the 13 week qualifying period.

13. In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen 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.

14. In Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said at [31]-[33]:
    
    

    [31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or within] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referable to the applicant's condition during the relevant period.

    [32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant's entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.

    [33] … The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal's decision.

15. Therefore, in determining the eligibility of the Applicant to receive a DSP I am confined to examining the Applicant's impairments during the thirteen week qualifying period.

    THE CONCESSIONS BY THE RESPONDENT

16. In paragraph 26 of the Respondent statement of facts and contentions, the Respondent conceded that "...the back condition was permanent at the date of claim and therefore can be assessed under the Impairment Tables."

17. With respect to the Applicant's hip condition, in paragraph 57 of the Respondent statement of facts and contentions, the Respondent conceded that "...the applicant's lower limb condition was permanent at the date of claim. The applicant has undergone various specialist interventions, physiotherapy, hydrotherapy and a cortisone injection as at the date of claim. The medical evidence does not suggest that improvement is expected."

    THE MATTERS BEFORE THE TRIBUNAL

18. The primary matter which I am required to decide is whether pursuant to section 94(1)(b) of the SS Act, the Applicant's impairments may be assigned a rating of 20 points or more under the impairment tables. If I find in the Applicant's favour, I am required to further decide whether the Applicant has a continuing inability to work pursuant to section 94(1)(c)(i) of the SS Act and related provisions.

    THE IMPAIRMENT TABLES

19. Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of the Applicant are worth twenty points under the impairment tables. This requires a few words of explanation. The impairment tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011(the Determination). This Determination also contains the rules for the application of the impairment tables.

20. In Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the impairment tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:
    
    

    [5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to 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: s 6(1) of the Determination.

    [6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

21. Importantly, impairments can only be assigned ratings under the impairment tables when the medical condition is permanent within the meaning of the term in the Determination and the impairment resulting from the condition is likely to persist for more than two years. The Determination provides at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and be likely to persist for more than two years.

22. Subsection 6(5) of the Determination provides that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years. Subsection 6(6) provides, in part, that a condition is fully stabilised where a 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 two years.

23. With respect to depression, it is covered by table 5 of the Impairment Tables which is titled "Mental Health Function". The introduction to table 5 provides in part as follows:

    • 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.

24. In other words, for depression to be fully diagnosed, treated and stabilised during the claim period, it is necessary for there to be medical evidence from a psychiatrist or clinical psychologist concerning the depression and treatment undertaken.

    THE EVIDENCE OF THE APPLICANT

25. The Applicant gave sworn evidence and I found him to be a truthful witness.

26. The Applicant said that he was born in Iraq and immigrated to Australia in 1984, and he married in 2000. He has no children and he is now separated.

27. Before suffering his injury, the Applicant was employed by Advanced Precast, where he undertook  factory-based work as a steel fixer in the production of pre-cast panels. This work involved a significant amount of lifting.

28. The Applicant said that he worked for six days a week, twelve hours per day, and I infer that much of his life was taken up with his employment.

29. In a report from Dr Louise Crowle dated 14 May 2014 which is before this Tribunal, the Applicant's work history is set out in some detail. He enjoyed his work until he suffered a workplace injury in  August 2011. The Applicant developed low back and right hip pain after lifting steel mesh which was about 2.5 metres in length. As he could no longer perform work as a steel fixer, he subsequently undertook suitable duties on a part time basis in the Advanced PreCast office up until December 2012.

30. On New Year's Day 2013, the Applicant fell at home and received a lower back fracture.

31. The Applicant said in his evidence that his health has deteriorated since he claimed DSP on 19 March 2013. He uses a walking stick, and he wears a belt or brace around his stomach and back. The hearing lasted one hour, and the Applicant sat throughout the hearing. The Applicant said that he can move his head from side to side.

32. The Applicant stated that he no longer drives a car because of the nerve pain in his hip and leg.

33. The Applicant does go shopping with his former wife who is his current carer, and she gets him what he needs. The Applicant stated that he can carry light things like bread.

34. The Applicant said that he sits on a chair when he has a shower, but sometimes needs assistance. The Applicant stated that he usually can dress himself, however, he has to sit on a chair to put on his pants.

35. The Applicant said that he sits at home during the day, and that he watches television and drinks some beer. The Applicant stated that he has some difficulty in sleeping owing to his chronic back pain.

36. The Applicant said that he caught the train from the Fairfield Railway Station to the Town Hall Railway Station to attend the hearing. He said that the train journey took about 45 minutes. The Applicant walked from Town Hall Railway Station to the hearing using his walking stick.

37. The Applicant said that he suffers from depression and has seen a counsellor.

38. A report from Patrick Marando, a registered psychologist which is dated 16 July 2013, is before the Tribunal. Patrick Marando wrote that he had been seeing the Applicant for depression since 21 May 2013. Patrick Marando is neither a psychiatrist nor a clinical psychologist.

    THE DOCUMENTARY EVIDENCE

39. I have read the following documents which are before this Tribunal. They are: the Respondent Statement of Facts and Contentions; the documents produced by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) which are known as the T-documents; and the Applicant's documents, including a further medical report which was handed up to the Tribunal on the morning of the hearing. The vast bulk of the documents are medical reports and medical certificates which recount the Applicant's impairments in some detail.

    CONSIDERATION

40. The primary matter which I am required to decide is whether pursuant to section 94(1)(b) of the SS Act, the Applicant's impairments may be assigned a rating of 20 points or more under the impairment tables during the claim period from 19 March 2013 to 18 June 2013. I note that in his evidence, the Applicant stated that his health has deteriorated since he claimed DSP.

41. From the evidence of the Applicant and from the medical evidence, I find that the Applicant's chronic back pain was fully diagnosed, treated and stabilised. The appropriate table is table 4 of the impairment tables which is titled "Spinal function".

42. I do not find that the chronic back pain has a moderate effect on the applicant's functioning. The Applicant can get up out of a chair, can bend forward and pick up light objects and can move his head from side to side.

43. I agree with the SSAT and I find that this impairment has a mild effect upon the Applicant's functioning, and accordingly I assess this impairment at 5 points under table 4 of the Impairment tables.

44. From the evidence of the Applicant and from the medical evidence, I find that the Applicant's hip pain was fully diagnosed, treated and stabilised. The Appropriate table is table 3 of the impairment tables titled "lower limb functions”.

45. I agree with the SSAT that the hip pain has a mild effect upon the Applicant's functioning. Accordingly, I assess it at 5 points under table 3 of the impairment tables.

46. With respect to the Applicant's nasal obstruction and his eye condition, I find that there is insufficient evidence before me from which I could find that these impairments had been fully diagnosed, treated and stabilised during the claim period.

47. In relation to the Applicant's depression, the appropriate table in the impairment tables is table 5 titled "Mental function". Its introduction provides that for depression to be assessed, it must be diagnosed by a psychiatrist, or by a general medical practitioner with input from a clinical psychologist. There has not been such a diagnosis of the Applicant's depression. Accordingly, I find that the Applicant's depression has not been fully diagnosed, treated and stabilised during the claim period.

48. I find that the applicant's impairments are assessed at 10 points under the impairment tables.

49. As the Applicant has not attained an assessment of 20 points under the assessment tables, the Applicant does not qualify for DSP. It is unnecessary for me to examine whether the Applicant has a continuing inability to work.

    DECISION

50. The decision under review is affirmed.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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

Associate

Dated 14 April 2015

Date of hearing	12 March 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services