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

[2018] AATA 2504

Stegemann and Secretary, Department of Social Services (Social services second review) [2018] AATA 2504 (27 July 2018)

Division:GENERAL DIVISION

File Number(s):      2017/4874

Re:Robin Stegemann

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member N A Manetta

Date:27 July 2018

Place:Adelaide

The Tribunal affirms the decision under review.

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Senior Member N A Manetta

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability Support Pension – whether impairments warranted 20 points under a single table – held less than 20 points eligible to be awarded – program of support requirements not fulfilled – decision affirmed

LEGISLATION

Social Security Act 1991

REASONS FOR DECISION

Senior Member N A Manetta

27 July 2018

1. This is an application by Mr Robin Stegemann seeking a review of a Level One decision of this Tribunal. By its decision, the Tribunal affirmed earlier decisions taken on behalf of the respondent that Mr Stegemann was ineligible to receive a disability support pension under the Social Security Act 1991 in respect of his application dated 2 November 2016.  At the hearing before me, Mr Stegemann represented himself; Mr Morris appeared for the respondent.

2. Hearing the matter afresh on the evidence before me, I must decide whether Mr Stegemann is eligible for a disability support pension. In my opinion, his application dated 2 November 2016 was properly rejected by the respondent. I set out below the background facts and my reasons for this conclusion. As Mr Stegemann represented himself, I shall express myself as plainly as possible and without quoting legislative provisions in any detail.

   BACKGROUND FACTS

3. Mr Stegemann, who is 56, was born and raised in Adelaide. He left school halfway through Year 11, in 1978, he said, and, having passed an entry exam, joined what was then known as Telecom as an assistant technician.  After about four and a half years, that is, in 1983 or thereabouts, he left Telecom and moved to Sydney. In Sydney, he “jobbed”, as he put it, for about eight years.  Whilst in Adelaide in the early 1990s, he was involved, unfortunately, in a serious car accident. His life took a downhill spiral from that point on, he said.  He had fractured his neck severely, and whilst the fracture did eventually heal, the dislocation would prove to be a continual source of difficulty for him. I mention here as well that Mr Stegemann dislocated his shoulder at an early age and he was operated on, as I understand the evidence, when he was 42.

4. Since these unfortunate events, Mr Stegemann has had periods where he has not worked, but he has also had periods of employment, particularly in road construction (through various employment agencies) and as a delivery driver. His most recent work, from 2011 onwards, was with a firm called “Austral Meats” for which he was a delivery driver until 2014. He found, however, that he suffered continual pain radiating from his neck throughout his body, and, in December 2014, he decided that he could no longer work and resigned.

   REASONS

5. Mr Stegemann now seeks a disability support pension in respect of his ongoing incapacity. Mr Stegemann put forward three impairments for assessment against the Impairment Tables: an impairment arriving arising from his neck injury; an impairment arising from dislocation in his right shoulder; and an impairment arising from depression.

6. Unfortunately for Mr Stegemann, the criteria for the award of a disability support pension are very strict. For present purposes, it is sufficient to note that Mr Stegemann must have completed a “program of support” in the three years preceding his application for the pension. An exception arises where 20 points (or more) have been awarded under a single table. It is also the case that I may only consider impairments that arise from fully diagnosed, treated, and stabilised medical conditions. I accept the respondent’s submission that the question of whether a condition is fully diagnosed, treated, and stabilised is to be assessed within 13 weeks of the time of the application and not at any later time.

7. Mr Stegemann has not completed a program of support. It follows that he is ineligible to receive a disability support pension unless he has 20 points under a single impairment table arising from a fully diagnosed, treated, and stabilised condition or conditions.  In my opinion, he does not meet this threshold.

8. First, I turn to consider Mr Stegemann’s depression. Mr Stegemann’s depression is not a condition that was fully diagnosed, treated, and stabilised within 13 weeks of his November 2016 application. The only relevant expert evidence before me is a report from Mr Stegemann’s psychologist.  Mr Stegemann was candid in telling me that he consulted a psychologist only because he was directed to do so by Centrelink. He consulted a clinical psychology practice, PsychMed, and received a report dated 7 September 2017.  The report refers to consultations with Mr Stegemann in the preceding month of August.  The diagnosis is clearly out of time so far as the 13-week rule to which I have referred above is concerned. 

9. The report is in any event quite inadequate, in my opinion. The report refers to the fact that Mr Stegemann has a major depressive order, but the only treatment that he has received in relation to that disorder (as at the date of the report’s preparation) comprised three cognitive therapy sessions at the psychological practice. There has been no referral to a psychiatrist.  In my opinion, it was not satisfactory for the clinical registrar to have concluded, as she did, that Mr Stegemann’s depressive disorder would not benefit from further treatment and was permanent.  Self-evidently, consultation with a psychiatrist was an avenue that needed to be explored. A psychiatrist, unlike a psychologist, may prescribe therapeutic drugs.

10. So far as Mr Stegemann’s shoulder injury is concerned, I note that even if I were to accept that the condition is fully diagnosed, treated, and stabilised, which is doubtful, Mr Stegemann could not receive 20 points under the relevant table (Table 2). I shall not set out Table 2, but it is quite clear that he cannot achieve 20 points in respect of the five paragraphs, (a) to (e), at least three of which must be satisfied.

11. I now turn to the neck impairment.  The underlying neck fracture was properly accepted by the respondent to be fully diagnosed, treated, and stabilised.  I note here the respondent has conceded that ten points should be awarded under Table 4 in respect of the impairment arising from Mr Stegemann’s neck injury.  Mr Stegemann pressed me with the submission that his neck impairment warranted the award of 20 points under Table 4, not just ten.  

12. In my opinion 20 points cannot be awarded.  The 20-point section of the Table indicates that applicants must be unable to (a) perform any overhead activities; or (b) or turn their head, or bend their neck, without moving their trunk; or (c) bend forward to pick up a light object from a desk or table; or (d) remain seated for at least 10 minutes. Mr Stegemann did not suggest that he was unable to perform any overhead activities or that he was unable to bend forward to pick up a light object or that he was unable to remain seated for at least 10 minutes. Indeed, he gave practical demonstrations of his capacity in each of these respects during the hearing. This left paragraph (b), which concerns turning one’s head or bending one’s neck without moving the trunk.

13. Mr Stegemann accepted that he could turn his head and bend his neck to both the left and the right to approximately 45 degrees. He deliberately demonstrated that movement when he was giving evidence.  Beyond 45 degrees, however, Mr Stegemann maintained he could not move his neck or head without moving his trunk as well. I accept this evidence. Mr Stegemann pressed me with the submission that paragraph (b) means “unable to turn one’s head even partly”.

14. I do not accept Mr Stegemann’s construction of paragraph (b). The reference to the inability to turn one’s head without moving the trunk means being completely unable to turn one’s head or, I would accept, being able to turn one’s head only to a slight degree. It does not mean, in my opinion, that a person who has a reasonable capacity to turn his or her head, as Mr Stegemann does, but not full capacity to do so satisfies the criterion. If I am correct in that interpretation, it follows that no part of the 20-point section is satisfied and 20 points cannot be awarded to Mr Stegemann.

15. I have found that I am unable to award 20 points to Mr Stegemann under any individual table. As that is the case, Mr Stegemann cannot receive a disability support pension without having first participated actively in a program of support. 

16. Finally, I note that it is not necessary for me to consider whether Mr Stegemann has the physical capacity to work 15 hours a week, which is a further test. That question was not canvassed before me. From his work history, I would be surprised if Mr Stegemann were not able to work 15 hours per week, but I need not consider this aspect of the matter further.

    FORMAL DECISION

17. The formal decision of the Tribunal will be to affirm the decision under review.