TERENCE SCANLAN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2013] AATA 275

[2013] AATA  275

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/3299
Re	TERENCE SCANLAN
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Mr P Wulf, Member
Date	7 May 2013
Place	Brisbane

The Tribunal affirms the decision under review.

....................[SGD].................................................

Mr P Wulf, Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Impairment tables – Conditions not fully treated and stabilised – Conditions not permanent – No impairment rating – Decision under review affirmed

LEGISLATION

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

CASES

Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606

REASONS FOR DECISION

Mr P Wulf, Member

INTRODUCTION

1. Mr Terence Scanlan ("the applicant")[1] seeks review of a decision made by Centrelink on 1 December 2011,[2] and subsequent reconsideration of 15 December 2011,[3] to reject his claim for disability support pension (“DSP”). This related to a claim lodged with Centrelink on 8 November 2011.[4]

   [1] Exhibit 1, T-Document 2/2-3.

   [2] Exhibit 1, T-Document 7/48-49.

   [3] Exhibit 1, T-Document 8/50-51.

   [4] Exhibit 1, T-Document 4/10-33.

2. On 13 April 2012, the decision was affirmed by an authorised review officer.[5] The applicant appealed the decision to the Social Security Appeals Tribunal (“SSAT”) who affirmed the decision on 14 June 2012.[6] The applicant has applied to this Tribunal for review of the decision of the SSAT.

   [5] Exhibit 1, T-Document 12/62-65.

   [6] Exhibit 1, T-Document 2/4-9.

3. For the reasons that follow, the Tribunal finds that the applicant does not have a permanent disability that attracts 20 impairment points and therefore the decision is affirmed.

   ISSUES FOR THE TRIBUNAL

4. The issues for the Tribunal to determine are:

   (a)whether, at 8 November 2011, when the applicant’s claim for DSP was completed, or within 13 weeks of that date, that is 7 February 2012 (the relevant period), he had a condition that was fully investigated, treated and stabilised; and, if so

   (b)did the applicant, as a result of his condition, attract an impairment rating of at least 20 points under the Impairment Tables (“the Impairment Tables”) contained in sch 1B of the Social Security Act 1991 (Cth) (“the Act”); and, if so

   (c)did the applicant have a “continuing inability to work”, because of his impairment, within the meaning of s 94 of the Act.

   LEGISLATION

5. The relevant qualification provisions for DSP are contained within s 94 of the Act, which states:

   (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;

   …

   (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)

   (3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

   (a) the availability to the person of a training activity; or

   (b) the availability to the person of work in the person’s locally accessible labour market.

   IMPAIRMENT TABLES

6. The Impairment Tables, under which impairment point ratings appear, are contained in sch 1B of the Act. The introduction to those Tables relevantly states:

   (4) A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

   (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.

   In this context, reasonable treatment is taken to be:

   ·treatment that is feasible and accessible ie, available locally at a reasonable cost;

   ·where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.

   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. …”

   THE EVIDENCE

7. The evidence before the Tribunal comprised:

   (a)Exhibit 1: the "T Documents" (T1-14: pp. 1-70) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);

   (b)Exhibit 2: Medical report prepared by Dr Kanagaratnam;

   (c)Exhibit 3: Medical report prepared by Dr Randall Jackson dated 14 January 2013;

   (d)Exhibit 4: Applicant’s bundle of documents including an application for social housing assistance and letters relating to Lighten Up dated 23 May 2012

   (e)Exhibit 5: Respondent’s Statement of Facts and Contentions dated 24 January 2013; and

   (f)the oral evidence of the applicant.

   Post the hearing, additional material was provided, including:

   (g)       Exhibit 6: Applicant’s hand written submissions on Exhibit 5;

   (h)       Exhibit 7: Applicant’s medical records from Metro South Health; and

   (i)        Exhibit 8: Respondent’s additional submissions dated 6 March 2013.

   ANALYSIS

   Did the applicant have a condition that is fully documented, treated and stabilised that would allow him to qualify to receive DSP on 8 November 2011 or within the relevant period of that date?

8. The applicant is a 42 year old man. The evidence at the hearing was that he has asthma, has issues with his left knee due to a dislocation, a previously shattered left patella as a result of falls and he is obese, weighing between 156 and 165kg. The applicant contends that his injuries give rise to a claim for DSP as they are permanent in nature and he should therefore receive at least 20 points under the Impairment Tables. In contrast, the respondent submits that while the injuries have been diagnosed, they have not been treated and are not stabilised and therefore do not meet the relevant criteria in the first limb of the test. These aspects will be discussed below.

9. When making an assessment as to the applicant’s condition, the Tribunal must refer to paras 4 to 6 of the Introduction to the Impairment Tables (“the Introduction”), which set out a number of mandatory requirements that must be considered and satisfied before any impairment rating can be assigned to a condition (see Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606 at [11] per Finn J). Due to the operation of the Introduction, a physical, intellectual or psychiatric impairment can only be assigned impairment points if the medical condition is permanent, that is a fully documented, diagnosed condition which has been investigated, treated and stabilised and if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.

10. In order to assess whether a condition is fully treated and stabilised, para 6 of the Introduction provides that the Tribunal must consider:

    (a)“what treatment or rehabilitation has occurred”;

    (b)“whether treatment is still continuing or is planned in the near future”; and

    (c)“whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years”.

11. In this context, reasonable treatment is taken to be:

    (a)“treatment that is feasible and accessible ie, available locally at a reasonable cost”; and

    (b)“where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient”.

12. The applicant contends that his injuries are fully diagnosed, treated and stabilised; however, the respondent concedes that while the injuries have been fully diagnosed, they have not been treated and stabilised.

13. As to the injuries sustained to his leg, the applicant has been hospitalised for both injuries. It is clear that the injuries have been diagnosed, but the Tribunal is of the opinion, based on the medical evidence, that they have not been treated and stabilised as a result of the applicant’s weight. The evidence is that in the last five years the applicant’s weight has increased by 40 to 50 kg and this increase is placing greater stress on the applicant’s knees and legs. The medical evidence suggests that until such time as the weight is lost, the injuries will not be stabilised.

14. As to the applicant’s morbid obesity, it is noted that the applicant was to undertake a Healthy Living Program; the applicant indicated that at best, he had lost 1kg every three months. However the evidence is that he was not an active participant in the program, having missed numerous sessions, and it is a requirement to be eligible for DSP that the applicant is an active participant. Had the applicant continued with the program and also a home exercise program, it is likely that the applicant’s obesity might have been considered to have been treated and stabilised; but as he did not undertake these activities, this failure demands that the obesity has not been treated.

15. In a medical report prepared by Dr Lee,[7] the doctor noted that the applicant’s asthma caused minimal impact and therefore it would not be something that would attract 20 impairment points.

    [7] Exhibit 1, T-Document 9/52-59

16. The Tribunal is of the opinion that the applicant’s conditions are not permanent in that they are not a fully documented diagnosed condition which has been investigated, treated and stabilised and it is not more likely than not that [they] will persist for the foreseeable future with the only condition that could be considered permanent being the asthma. The Tribunal also finds that the injuries, including the obesity, are something that will/can improve with time, particularly if the applicant loses weight. As such, his conditions have not been fully stabilised and, therefore, they do not comply with the requirements stated above to be considered a permanent condition and, therefore, cannot be assigned an impairment rating.

    Section 94(1)(b) of the Act: Impairment Rating

17. The Impairment Tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. In using the Tables, ratings can only be assigned for conditions where there is an associated current loss of function or where prolonged loss of function would be expected in most work situations (see para 3 of the Introduction).

18. As the applicant does not have a permanent condition, it is not necessary to discuss this limb of the test.

    Section 94(1)(c) of the Act: Continuing Inability to Work

19. As the applicant does not have a permanent condition, it is not necessary to discuss this limb of the test.

    DECISION

20. For the reasons set out above, the Tribunal finds that the applicant does not have a permanent disability and therefore cannot be assigned an impairment rating.

21. The decision under review is affirmed.

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member.

.......................[SGD].................................................

Associate

Dated 7 May 2013  

Date of hearing	8 February 2013
Date final submissions received	20 March 2013
Applicant	In person
Solicitors for the Respondent	Mr Ashley Burgess (Sparke Helmore Lawyers)