STEPHEN DALY and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2013] AATA 354

[2013] AATA 354 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/5486
Re	STEPHEN DALY
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Dr K S Levy, RFD, Senior Member
Date	29 May 2013
Place	Brisbane

The Tribunal affirms the decision under review.

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Dr K S Levy, RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Impairment tables – Permanent condition – Less than 20 impairment points – Decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94, sch 1B

Social Security (Administration) Act (Cth) sch 2

REASONS FOR DECISION

Dr K S Levy, RFD, Senior Member

INTRODUCTON

1. On 24 November 2011, Mr Stephen Daly, the applicant, lodged a claim for disability support pension which is payable under s 94 of the Social Security Act 1991 (Cth) (“the Act”).[1] On 5 January 2012, a Centrelink delegate rejected the claim. On 2 July 2012, an authorised review officer affirmed that decision, as did the Social Security Appeals Tribunal (“SSAT”) on 24 October 2012. Mr Daly now appeals to this Tribunal for review of the decision to reject his claim for disability support pension.

   [1] I note that at the time of his claim and up to the date of this hearing Mr Daly was in receipt of social security benefits in the form sickness allowance.

   LEGISLATION

2. Qualification for disability support pension is set out in s 94 of the Act. Relevant to this case, it provides:[2] 

   [2] There is no issue that Mr Daly meets the age and residency requirements for disability support pension.

   (1) 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;

   …

   Continuing inability to work

   (2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and

   (a) in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b) in all cases—either:

   (i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

   Note:    For work see subsection (5).

   work means work:

   (a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

   (b) that exists in Australia, even if not within the person’s locally accessible labour market.

3. To qualify for disability support pension, all of the requirements in s 94 of the Act must be satisfied. Furthermore, these requirements must be satisfied during the period commencing on the day of the claim or within 13 weeks from the day of the claim (“the relevant period”).[3] In Mr Daly’s case, the relevant period is from 24 November 2011 to 23 February 2012. 

   [3] See Schedule 2, cls 3 and 4 of the Social Security (Administration) Act 1999 (Cth).

4. Section 94(1)(b) of the Act provides that a person must have an impairment that has a rating of 20 points or more under the Impairment Tables.[4] The Introduction to Schedule 1B of the Act (“the Introduction”) provides guidance on the application of the various tables which it contains. Relevantly, the Introduction states:

   [4] For the relevant Tables to be applied, see s 27 of the Act.

   4. … For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised…. 

   5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

   6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

   what treatment or rehabilitation has occurred;

   whether treatment is still continuing or is planned in the near future;

   whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

   …

   It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person.

   ISSUES

5. The issues for consideration in this matter are whether, during the relevant period:

   (1)   Mr Daly had a physical, intellectual or psychiatric impairment; and, if so

   (2)   Was that impairment rated 20 points or more under the Impairment Tables; and, if so

   (3) Did Mr Daly have a continuing inability to work as defined under the Act?

   EVIDENCE

   The applicant

6. Mr Daly gave oral evidence. He told the Tribunal that he often worked more than 15 hours per fortnight. Indeed, he told the Tribunal of recently working 17 hours per fortnight and in the period following the hearing he expected to work 26 hours per fortnight.

7. He described his work as light, less skilled work, which is mainly in the bar area of the surf club near where he lives. He also undertakes stocktakes and similar functions. He told the Tribunal he will work if the extra hours are offered to him. His lifestyle is such that he lives alone; he does his own washing (which he says is quite minor) and can walk to the shops to do his shopping.

8. Under cross-examination, he conceded to the respondent’s advocate that he did work more than 15 hours per fortnight on a number of occasions; he had worked 30 hours per fortnight. Mr Daly said, however, he does what he is asked to do although he would prefer not to work those hours.

   Medical evidence

   Dr Whillans

9. In support of his claim for disability support pension, Mr Daly provided two reports from his treating doctor, Dr Mark Whillans, dated 24 November 2011[5] and 16 February 2012[6], respectively.

   [5] Exhibit 1, T-documents, pp. 45-52.

   [6] Exhibit 1, T-documents, pp. 67-74.

10. In both of his reports, Dr Whillans diagnosed, as the condition which most impacted on Mr Daly, “Chronic Pain Syndrome – Right Iliac Fossa” (part of the right lower abdominal area). Dr Whillans referred to this chronic pain as being “? Related to previous surgery – R inguinal hernia and repair – 25/10/2010”. Dr Whillans opines that the inguinal hernia was contributed to by emergency bowel surgery in 2008; also in evidence were medical records from treating specialists outlining Mr Daly’s surgical history in regard to his bowel surgery and inguinal hernia repair as well as ulcerative colitis.[7] In both of his reports, Dr Whillans describes Mr Daly’s symptoms as “constant pain” of “moderate severity” with current and future treatment consisting of Panadol and physiotherapy. Dr Whillans also noted that previous to the date of his reports, Mr Daly had attended a pain clinic at the Gold Coast Hospital.

    [7] See for example Exhibit 1, T-documents, pp. 104-106, 107-115, 128-134.

11. In his first report of 24 November 2011, Dr Whillans stated that the condition impacted on Mr Daly’s ability to function because the “constant moderately severe pain impairs concentration”. He stated that it would persist for “more than 24 months” and “remain unchanged”.

12. In his second report of 16 February 2012, Dr Whillans expands on the impact of the condition on Mr Daly’s ability to function by adding that any sudden movements, whether he is sitting or standing, exacerbate the pain that he suffers.    

13. In both of his reports, Dr Whillans also diagnosed “Chronic Scrotal Discomfort”. He states that the discomfort stems from a diagnosed condition of hydroceles and causes “constant pain/discomfort in scrotum” of “moderate severity”. In both of his reports he notes that Mr Daly had undergone “bilateral hydrocele repair” surgery on 13 December 2010 but the “discomfort persists”. He states that the treatment for this was Panadol, but, importantly, that Mr Daly was awaiting “revision surgery in the public system” by Dr Alistair Campbell. Indeed, earlier, on 3 May 2011, Mr Daly told Consultant Urologist Dr Alistair Campbell that the scrotal incision from the hydrocele repair surgery was causing the area to be “uncomfortable intermittently”. Dr Campbell informed Dr Whillans that he was “organising to revise this scrotal incision …”.[8]  

    [8] Exhibit 1, T-documents, p. 138.

14. Prior to the review by the SSAT, Dr Whillans provided a further medical report dated 29 August 2012.[9] In this report Dr Whillans states that Mr Daly underwent the “revision of scrotal scar” on 14 March 2012 but that the “discomfort persists”. He reported that he expected it to persist for more than two years and that it would remain unchanged.

    [9] Exhibit 1, T-documents, pp. 95-102.

15. In all of his reports Dr Whillans also lists hypertension, ulcerative colitis and depression as conditions which “cause minimal or limited impact”. He states that none of these conditions were expected to improve but that their impact on Mr Daly’s ability to function was “minimal”.

16. In cross-examination, Mr Daly agreed with the assessments made by Dr Whillans.

    Dr Heide Feberwee

17. Dr Heide Feberwee, persistent pain specialist, provided a report on 31 August 2011 after Mr Daly was reviewed by several members of the persistent pain team, including herself, a physiotherapist, psychologist, occupational therapist and pharmacist.[10]

    [10] Exhibit 1, T-documents, pp. 141-143.

18. Mr Daly described to Dr Feberwee that his pain in his right groin and iliac fossa region was a “drag or a twinge” but that it was constant and he was “aware of it the whole time”. He described the pain intensity as “1-4/10 and averages 2/10”.

19. As part of his review, Mr Daly also saw psychologist Laura Hudson and occupational therapist Angela Hawkes. Ms Hudson reported that Mr Daly appeared to be unaware of many pain management techniques apart from consuming alcohol. She reported that he told her that the “pain has minimal impact on attendance at social activities, reading, or enjoyed activities like swimming”. Ms Hawkes reported that Mr Daly “presented with few limitations despite pain”. 

20. In her recommendations, Dr Feberwee stated that there was nothing to indicate that any intervention or medication would be useful for his pain at that time. Furthermore, following his request for a “surgical option”, she did not consider that there “is anything physical to fix” and recommended stomach strengthening exercises and the use of a “TENS” machine[11].

    [11] Refers to a device which stimulates nerves via electrical current.

    Job Capacity Assessments

21. A job capacity assessment (JCA) report was completed by a qualified social worker and a registered nurse on 12 December 2011.[12] They described Mr Daly’s chronic pain as being verified by medical evidence and as being fully diagnosed, treated and stabilised. They state that Mr Daly reported an average pain of 2/10 and that he can sit for two hours, stand for two to three hours and walk for 30 minutes before requiring rest. In their opinion Mr Daly’s symptoms caused a “mild to moderate impact on ability to perform or persist with work-related functions” and that “full time work is still possible”. The JCA reporters recommended an impairment rating of 15 points under Table 20. 

    [12] Exhibit 1, T-documents, pp. 53-58.

22. In regard to his scrotal discomfort, they noted that while it had been verified by medical evidence, Mr Daly was still at that time awaiting review by Dr Campbell following referral. On that basis no impairment rating was considered for this condition.

23. In regards to the Mr Daly’s remaining conditions, those being hypertension, ulcerative colitis and depression, they noted that while the conditions had been verified by medical evidence, Dr Whillans had reported that these conditions caused minimal impact on his ability to function. In addition, they noted that in regard to his depression, Mr Daly “was not inclined to seek counselling”. The JCA reporters did not consider an impairment rating for any of these conditions.

24. In their report, the JCA reporters considered that Mr Daly had a baseline work capacity of 15-22 hours per week with that capacity rising to 23-29 hours per week within two years, with intervention.

25. A further JCA report was provided by a registered psychologist and a registered nurse on 12 April 2012, after the relevant period.[13] While agreeing in all respects with the first JCA report in regards to Mr Daly’s chronic pain condition (although they considered this condition as cumulative of both the pain in his right iliac fossa and scrotum), they differed in that they considered that his hypertension and ulcerative colitis were fully diagnosed, treated and stabilised but assigned nil impairment points for each condition under their respective Tables. In regards to his depression, they considered that as there was no supporting evidence by a specialist (i.e. psychologist or psychiatrist) it could not be considered fully diagnosed and no impairment rating could be considered.   

    [13] Exhibit 1, T-documents, pp. 75-81.

    Centrelink work and income records

26. In evidence before the Tribunal were Centrelink records of Mr Daly’s income from employment and the hours worked per fortnight thereof.[14] During the relevant period, the records indicate that Mr Daly worked, as a barman, hours ranging from 6 to 14 hours per week with an average of approximately 10 hours per week. Notably, during the period immediately after the relevant period and ending in April 2013, Mr Daly’s hours of reported work increased in range to approximately 10 to 16 hours per week.

    [14] Exhibit 2.

    CONSIDERATION

27. It is not in dispute that Mr Daly suffers from the conditions of chronic pain, hypertension, ulcerative colitis and depression and thus has an impairment in accordance with s 94(1)(a) of the Act.

28. The introduction to the impairment tables provides that an impairment rating can only be assigned to a condition under s 94(1)(b) of the Act if the condition is considered to be permanent in that it is a ”fully documented, diagnosed condition which has been investigated, treated and stabilised”.

29. Mr McQuinlan, for the respondent, submitted that, on the evidence available in the relevant period, Mr Daly’s claimed conditions of chronic pain, hypertension and ulcerative colitis were fully diagnosed, treated and stabilised, but only the condition for chronic pain could be given an impairment rating. Mr McQuinlan submitted that the chronic pain should be assigned an impairment rating of 15 points under Table 20 of the Impairment Tables and the other conditions be assigned an impairment rating of nil under their respective impairment tables due to the treating doctor’s opinion that they have only a limited impact on his ability to function. He also submitted that Mr Daley’s depression could not be considered to be fully diagnosed and therefore could not be assigned an impairment rating.

    Chronic Pain

30. Mr Daly claims that his chronic pain emanates from two separate areas of his body, those being his right iliac fossa region and scrotum.

31. In regard to the pain or discomfort he experiences in his scrotum, Dr Whillans states in his medical reports of 24 November 2011 and 16 February 2012 that Mr Daly was on the public waiting list for further specialist review. In his medical report of 29 August 2012, Dr Whillans states that Mr Daly had surgery for the condition on 14 March 2012 but that the discomfort continued. Nevertheless, as the surgery is after the relevant period, it is clear that Mr Daly was still awaiting further treatment during that time and, therefore, this condition could not be considered to have been fully treated and stabilised during the relevant period.

32. In regard to the chronic pain emanating from the right fossa iliac region, I accept that the respondent has rightly conceded that this condition has been fully diagnosed, treated and stabilised. Mr Daly has been under the care of several specialists, had several surgical procedures, including a hernia repair, and has also seen specialists at a pain management clinic. The pain specialist, Dr Feberwee, advised Mr Daly that no other intervention, such as surgery or medication, would be useful for his pain. She advised that he engage in stomach strengthening exercises and use a “TENS” machine, which Mr Daly has done.

33. An impairment rating for chronic pain is to be considered in line with the criteria in Table 20 of the Impairment Tables. In all of his medical reports, Dr Whillans states that Mr Daly suffers “constant moderately severe pain” which “impairs concentration”. The pain specialist, Dr Feberwee, stated that Mr Daly reported his level of pain as averaging 2 out 10 but it was exacerbated when he sits, stands or coughs. Mr Daly told the SSAT also that his pain averages 2 out of 10, and that he remains active “to a degree” and continues to work as a barman, albeit for financial reasons.[15] I note that during the relevant period Mr Daly continued to work an average of 10 hours per week and that this rose after the relevant period, with him at times working up to 16 hours per week.

    [15] Exhibit 1, T-documents, pp. 9-14.

34. In the JCA report of 12 December 2011, the reporters stated that Mr Daly’s self-care was unaffected and that he retained his independence. They also stated that he was able to sit for two hours as well as walk for two to three hours before requiring rest. They also considered that Mr Daly could perform full-time work.

35. On the basis of the evidence provided, I consider that Mr Daly suffers pain which is moderate to severe. However, I consider that his level of pain does not impact on his ability to care for himself and it appears to have a limited impact on his ability to remain active and attend work. I consider that under Table 20 of the Impairment Tables, an impairment rating of 15 points is appropriate for Mr Daly’s chronic pain condition.   

    Hypertension and Ulcerative Colitis

36. In regard to Mr Daly’s conditions of hypertension and ulcerative colitis, I accept that these conditions have been fully diagnosed, treated and stabilised. In all of his reports, Dr Whillans states that these conditions cause minimal impact on Mr Daly’s ability to function. I therefore consider that an impairment rating of nil points is appropriate for each of these conditions under Table 20 and Table 11.2, respectively.

    Depression

37. The respondent submitted that as Mr Daly had not seen a psychologist or psychiatrist, the condition of depression could not be considered to have been fully diagnosed, treated and stabilised. The JCA report of 12 December 2011 stated that Mr Daly was not inclined to seek counselling for his depression. In the JCA report of 14 April 2012, the reporter stated that while depression had been diagnosed by Mr Daly’s doctor, there was no supporting evidence from a specialist.

38. The introduction to Table 6 of the Impairment Tables states that it is important to distinguish between “permanent” and “temporary” disorders and that the table is only to be used for psychiatric disorders which are “permanent”. It states that it is important that a “detailed psychiatric history” be recorded.

1. I accept the respondent’s submissions in that Mr Daly’s depression cannot be considered to be fully diagnosed, treated and stabilised. There is no other medical evidence, especially from a specialist, for this condition other than Dr Whillans’ reports. Furthermore, Mr Daly indicated to the JCA reporters that he did not want to seek counselling. Paragraph 6 of the Introduction makes it clear that for a condition to be considered permanent, it is assumed that the person will “pursue any reasonable treatment”. I do not consider that, during the relevant period, this condition could be regarded as being permanent and, therefore, no impairment rating may be assigned under Table 6.

   CONCLUSION

2. I accept the respondent’s submission that Mr Daly’s working hours have increased over time and that he never rejects an offer of additional working hours. The applicant accepted the treating doctor’s assessment in his oral evidence and the job capacity assessments are also consistent with the general practitioners assessment.

3. I therefore find that Mr Daly’s total impairment rating for his conditions of chronic pain, hypertension and ulcerative colitis is 15 points and, as such, he was not qualified for disability support pension during the relevant period as he does not have the requisite 20 points or more under s 94(1)(b) of the Act.

4. As Mr Daly does not have the mandatory 20 impairment points or more, I do not need to consider whether he has a continuing inability to work under s 94(1)(c)(i) of the Act.

   DECISION

5. The Tribunal affirms the decision under review.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, RFD, Senior Member.

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Associate

Dated 29 May 2013  

Date of hearing	8 May 2013
Applicant	In person
Advocate for the Respondent	Mr Rick McQuinlan, Departmental Advocate