Sparshott and Secretary, Department of Social Services

[2015] AATA 396

[2015] AATA 396  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2015/0126
Re	Ian Sparshott
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

REASONS FOR DECISION

Tribunal

John Handley, Senior Member

Date of decision

18 May 2015  

Date of written reasons

Place

4 June 2015

Melbourne

For the reasons given orally at the conclusion of the hearing, the decision under review is affirmed.

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

John Handley, Senior Member

SOCIAL SECURITY – application for disability support pension – multiple injuries and illnesses – most not fully treated and not fully stabilised – some serious illnesses not disclosed to Centrelink – qualification not achieved within 13 weeks of date of claim – decision affirmed.

Legislation

Social Security Act 1991 section 94
Social Security (Tables for the Assessment of Work – related Impairment for Disability Support Pension) Determination 2011
Social Security (Administration) Act 1999 section 4

REASONS FOR DECISION

John Handley, Senior Member

4 June 2015

1. The applicant applied to review a decision of the Social Security Appeals Tribunal (SSAT) which affirmed a decision previously made by an Authorised Review Officer of Centrelink to deny an application for disability support pension (DSP).

2. The application was heard by me on 18 May 2015. At the conclusion of the hearing, I gave oral reasons for decision, affirming the decision made by the SSAT.

3. The applicant has subsequently requested written reasons for that decision. By regard to notes made during the hearing for the purpose of delivery of the oral reasons, the written reasons, as requested, are provided as follows.

4. The applicant is 51 years of age and is a single parent of two teenage children. He lives in rural Victoria.

5. He lodged a claim for DSP on 20 March 2013. The illness then claimed as the basis for his entitlement was cardiomyopathy. The application was rejected. He did not apply to review that decision.

6. The application, which gave rise to a reviewable decision in this application was another DSP application lodged on 3 February 2014. The applicant then claimed the illnesses/injuries of cardiomyopathy, osteoarthritis of his low back and right wrist and alcohol/drug dependency (page 125). Relevant parts of the application form were completed by the applicant’s treating general practitioner, Dr Booth.

7. I decided that the illness of cardiomyopathy, on the basis of the evidence heard and read, did not attract any relevant impairment points. I decided that the other three illnesses/injuries could not be found to be permanent because they had not been fully diagnosed, treated and stabilised, and in those circumstances it could not be found that they were likely to persist for more than two years. The basis for those findings has its origin in the Social Security Act1991 (the Act) and the Social Security (Tables for the Assessment of Work – related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).

8. Relevantly, s 94(1)(a)-(b) of the Act provides that a person is qualified for DSP if the person has a physical, intellectual or psychiatric impairment and the impairment is 20 points or more under the Impairment Tables. The applicant did not meet this qualification. The remaining qualifying parts of s 94 were not considered.

9. The Impairment Tables provide at paragraph 6(5) that in a determination of whether a condition has been fully diagnosed and fully treated, by an appropriately qualified medical practitioner, consideration must be given to whether there is corroborating evidence of the condition, whether and what treatment or rehabilitation has occurred in relation to the condition and whether treatment is continuing or planned in the next two years.

10. Paragraph 6(6) of the Impairment Tables provides that a condition will be regarded as fully stabilised if the person has undertaken reasonable treatment for the condition and 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; or if the person has not undertaken reasonable treatment, significant functional improvement to enable the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or there is a medical or other compelling reason for the person not to undertake reasonable treatment.

11. An issue of considerable significance, for reasons which will emerge, are the provisions of s 4 of the Social Security (Administration) Act1999 which provide that if a person does not qualify for a social security payment (in the present case, DSP) on the day the claim for it is made but the person does become qualified within a period of 13 weeks after that day, the claim is deemed to have been made on the day the person became qualified for the social security payment. Put another way, qualification, if not existing at the date of claim must occur within 13 weeks of that claim being made.

12. Accordingly, this application concerned the determination of whether the applicant qualified for DSP either on 3 February 2014 when he claimed it or within the period concluding on 5 May 2014, being 13 weeks after the date of claim.

    Cardiomyopathy

13. The applicant appended a Centrelink medical report completed by Dr Booth dated 3 February 2014 in support of his DSP application. The condition of cardiomyopathy was recorded as the condition with most impact (T17, page 146). Dr Booth recorded that the onset of the condition was 2011 and in the form, where he was asked to record details of current treatment, he recorded all provided in March 2013. In the 2013 application, Dr Booth completed a similar Centrelink medical report and at pages 56 and 57 of the T-documents, under the heading of History, he recorded onset dyspnoea, ? Alcohol ? Viral Cardiomyopathy. The current symptoms were recorded as mild impairment [in his] physical ability. The current treatment was Valium. The past treatment was 12 months diuretics. The future/planned treatment was nil. Dr Booth recorded that the impact of cardiomyopathy on the applicant’s ability to function was expected to persist for more than 24 months. In relation to the effect of that condition on the applicant’s ability to function within the next two years, Dr Booth ticked the boxes of somewhat improve and fluctuate.

14. Dr Booth completed a medical certificate on 19 February 2014 (T33, page 216) where he recorded that the cardiomyopathy was secondary to alcohol, the condition was permanent, the symptoms of it will affect the applicant’s capacity to work for 13 – 24 months and he was unable to undertake work or study and unable to undertake any other work for 8 hours or more per week.  Against part of the form which asked for information about past and current treatment were the words as previous. Planned treatment was recorded as general supportive.

15. In relation to the present application, the applicant was referred to a job capacity assessor who apparently had a conversation with Dr Booth on 1 April 2014, part of which is recorded at page 169 of the T-documents. He recorded that the most recent cardiogram of the applicant on 27 October 2014 was reported as normal (T27, 183-184), the applicant had recovered and did not have a work impediment from that condition.

16. The applicant said in evidence he had been referred to Mr Leitl, a cardiac specialist in Melbourne in 2012 who said he was fit as a fiddle.

17. In a report of 29 November 2014, addressed to Centrelink, Dr Booth recorded that the condition of cardiomyopathy had improved gradually on medical treatment and there had been a significant reduction in alcohol consumption. The condition was regarded as stable and not causing significant disability (T30, page 197).

18. The difficulty I had in relation to this illness was making a finding of whether it is likely to persist for more than two years. It would appear that it had been fully diagnosed, treated and stabilised.  The evidence of the comments of Dr Booth in his telephone conversation with the job capacity assessor could be equated with the opinion of Mr Leitl. However the forms completed by Dr Booth (refer above) could not be reconciled.

19. Although it was expected that Dr Booth would be available to give evidence by telephone, when arrangements were made to contact him on the day of hearing, it was learnt that he was absent from his practice and would not be returning for one month. A report of Mr Leitl was not lodged.

20. The SSAT member was satisfied, on the description given to him by the applicant and from the contents of the documents completed by Dr Booth that five impairment points pursuant to Table 1 of the Impairment Tables should be allocated in relation to this condition.

21. I did not make a finding of the impairment points for this condition when giving the oral reasons. If I were to do so now, the comments of Dr Booth on 1 April 2014 would probably not entitle a finding of any impairment points. The contents of his report of 29 November 2014 would probably entitle a finding of five impairment points against the criteria in Table 1 of the Impairment Tables.

    Osteoarthritis lower back and right wrist

22. In the Centrelink medical report appended to the application for DSP, Dr Booth recorded (T17, pages 149 – 152) that further investigations/tests were not planned to confirm the diagnosis he recorded as chronic arthritic condition R wrist lower back . In the section where he was expected to record details of current treatment, Dr Booth recorded chronic pain aggravated by prolonged sitting, standing, work related injury in 1983. In the section where he was asked to complete details of past treatment, Dr Booth recorded as previous. (That may be a reference to some medical certificates within the T-documents which apparently have been lodged over the years in relation to exemption from the work test for the purposes of a continuing entitlement to job search allowance). Dr Booth did not record whether these conditions impacted on the applicant’s ability to function for any of the four periods of time on the Centrelink medical report. He did record that these conditions were expected to fluctuate within the next two years.

23. The most recent medical certificate proximate to the date of the DSP application was lodged on 19 February 2014 (T33, page 216) where the conditions of anxiety/depression/chronic back pain were recorded as having their onset at 22 August 2010, the conditions were regarded as permanent and were likely to persist for 13 – 24 months. Past current treatment was recorded as as previous and planned treatment was recorded as axiolytic, antidepressants.

24. An x-ray report dated 7 August 2014 of the applicant’s lumbar spine is found at page 173 of the T-documents. The radiologist recorded that the applicant had advanced degenerative changes at L5/S1 and reported that CT review may be worthwhile.

25. In his report of 29 November 2014 (T30, page 198) Dr Booth recorded that the applicant suffered generalised osteoarthritis which predominately affects his shoulders, lumbosacral spine, sacroiliac joints, hands, first metacarpo– phalangeal joints particularly right-sided, right wrist.

26. Other than treatment from Dr Booth, the applicant said the only treatment he had for his back was chiropractic and swimming in the mid-1980s. He has not been referred to an orthopaedic surgeon or a neurosurgeon. He is not having physiotherapy. He takes analgesia to relieve pain.

27. The applicant has not ever had any counselling or psychiatric treatment other than a referral to Dr Proctor, a psychiatrist. His report is found at page 185. It is not known when the applicant was first referred to Dr Proctor, nor the number of times he consulted. In his report, Dr Proctor concluded the applicant’s conditions have stabilised despite the fact that his response to the treatment has so far been unsatisfactory; however at this stage I don’t think there’s anything further we can do to help him.

28. I was not satisfied that the arthritic disease suffered by the applicant affecting his back and right wrist had been fully diagnosed, treated and stabilised. The arthritic disease apparently suffered by the applicant is not confined to his back and right wrist, evident by Dr Booth’s report of 29 November 2014, yet those sites were not recorded in the DSP claim. It would appear that the x-ray evidence shows widespread disease at L5/S1 which was probably present before the claim was made. Except for chiropractic and swimming 30 years ago, there has been an absence of treatment for it other than analgesia, as opposed to treatment which would give him mobility and instruction of coping with pain. I also fear that the applicant has developed a sick role and needs, by way of treatment, support counselling and encouragement to restore function and return to activity.

29. During the hearing, the applicant said he suffered a traumatic injury to the four fingers of his right hand in the 1980s when a sheet of glass fell and severed the nerves. As a consequence he said he had limited function of his right hand. There was no medical or other information in the T-documents concerning those injuries. The only reference to the applicant’s right fingers was the osteoarthritis recorded by Dr Booth affecting the first metacarpo– phalangeal joints of his right hand.

    Alcohol and drug dependency

30. In the Centrelink medical report completed by Dr Booth in support of the current application, he recorded that the applicant had alcohol and cannabis dependency. The applicant said he has reduced his alcohol consumption from 20 – 30 cans per day to about five cans per day presently. He finds cannabis to be more beneficial to him that Valium.

31. I decided that the applicant has not had any adequate treatment for his alcohol abuse or his cannabis dependency. His comments throughout the hearing satisfied me that he is dependent on both substances. In the absence of treatment of these conditions, I cannot therefore find they have been fully treated or stabilised.

32. The applicant has endured a number of very significant emotional events over a number of years. He suffered a significant catastrophe in his early teens, the details of which will not be recorded in this decision but is known to his doctors. Two of his previous partners died in traumatic circumstances. Dr Booth and Dr Proctor both recorded in the reports the applicant suffers post-traumatic stress disorder and has nightmares and flashbacks. But none of this has been adequately documented, was not recorded in any of the claim forms for DSP and unfortunately, it appears there has not been adequate treatment for that psychiatric illness.

    Conclusion

33. I am concerned the applicant appears isolated and does not appear to have been encouraged to take advantage of community based counselling, welfare and legal support services which would be available to him where he lives. I would hope he might seek that type of assistance.

34. The applicant said his first claim in 2013 recorded cardiomyopathy only because he thought that would be enough to satisfy Centrelink that he should qualify for DSP. The second application – the application presently under review – pleaded additional illnesses/injuries but for reasons expressed above, they appeared not to have been fully treated, causing me to find that it was not possible to regard them as being fully stabilised and consequently, permanent and capable of being assigned an impairment rating.

35. This review highlighted the presence of a number of other serious illnesses/injuries which have not been recorded in the current claim for DSP. I think on balance the applicant has been inadequately assessed, but only because the extent of his circumstances and illnesses have not been known to Centrelink.

36. I indicated to the applicant – I stressed I was not giving him advice or predicting an outcome – that he should sit down with his doctors, in the event he again applies for DSP, and provide a comprehensive list of all these illnesses and injuries and complete all parts of all forms so that a proper and complete assessment can be undertaken for qualification of DSP. Put simply, I indicated to the applicant that his ability to attract a minimum of 20 impairment points and satisfying the remaining qualifying provisions of s 94 of the Act will never be achieved unless Centrelink is aware of the extent of his incapacity and the doctors express opinions allied to the criteria within paragraph (6)(3)-6) of the Impairment Tables.

37. It was for all of the above reasons that I was unable to determine that at 3 February 2014 or within the 13 week period concluding on 5 May 2014, the applicant did qualify for DSP. Accordingly, decision under review was affirmed.

I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of John Handley, Senior Member

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

Associate

Dated 4 June 2015

Date(s) of hearing	18 May 2015
Applicant	By telephone
Solicitors for the Respondent	Andrew Shelley, Sparke Helmore Lawyers