Terrence Smith and Secretary, Department of Social Services
[2014] AATA 379
•17 June 2014
[2014] AATA 379
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/5648
Re
Terrence Smith
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 17 June 2014 Place Canberra The decision under review is affirmed.
............................[sgd]............................................
Mr S. Webb, Member
SOCIAL SECURITY – Disability Support Pension claims – Qualification Periods – impairments – impairment points – qualification requirements not satisfied – decision affirmed
Social Security Act 1991, s 94
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011REASONS FOR DECISION
Mr S. Webb, Member
17 June 2014
Terrence Smith claimed a Disability Support Pension. His claim was rejected and he sought review. Some months later he made a second DSP claim. This time he was successful and DSP was granted. But the grant was short-lived. In the course of reviewing the initial decision to reject his first claim, an Authorised Review Officer also reviewed the decision granting his second claim. In the result, the first claim decision was affirmed and the second claim decision was set aside. Consequently, Mr Smith was found to have been overpaid an amount of DSP, although recovery of the overpayment was waived. These decisions were affirmed by the Social Security Appeals Tribunal, and that decision is the subject of Mr Smith’s application for review.
The issue for determination is whether each of Mr Smith’s claims for DSP is made out. This will be so if he satisfied the criteria for grant of DSP at the relevant time. The relevant time is the day on which he made each claim for DSP or within 13 weeks thereafter (the Qualification Periods).
The brief facts
Mr Smith has a background of manual labour and opiate addiction. He has been incarcerated for periods of time, most recently from 2008 to 2010. He has not been in paid employment for some time, since 2002. Following his release from gaol in 2010, he claimed and was paid a Newstart Allowance, but he was excused from the ‘Activity Test’ on grounds of ill-health – his participation requirement was confined to attending interviews on a quarterly basis.
On 24 September 2012 he claimed DSP, referring to Hepatitis A, B and C, and a back injury.[1]
[1] T19 folio 158.
On 7 September 2012, Dr Ian Kamerman, a general practitioner and Mr Smith’s treating doctor, provided a medical report referring to low back pain, opiate dependence and Hepatitis C.
On 26 September 2012, Louella Lush, a registered psychologist, and ‘Christine’, a registered occupational therapist, conducted a job capacity assessment. Ms Lush reported that Mr Smith’s permanent impairments attracted a rating of 15 impairment points and his “permanent conditions significantly impact ability to work full time”, “With intervention over 2 years, the customer could reach 8-14 hours per week and maintain this, but is unlikely even with intervention to work over this work capacity”.[2]
[2] T21 folio 183 – 184.
On 10 October 2012, Centrelink rejected Mr Smith’s first claim for DSP.
On 15 February 2013, Mr Smith lodged another claim for DSP, referring to low back pain and drug dependence.[3]
[3] T31 folio 209
On 20 February 2013, a further job capacity assessment was conducted by Ms Lush and ‘Rebecca’, a registered occupational therapist. Ms Lush reported that Mr Smith’s permanent impairments were rated at 20 impairment points and his capacity for work would not likely exceed eight to 14 hours per week with interventions. Ms Lush noted that “the customer has been in an active program of DES – ESS, Stream 3 or Stream 4 since 5.4.11 to 20.2.13 without success of employment”.[4]
[4] T33 folio 237.
On 20 March 2013, Mr Smith was granted DSP.[5]
[5] T35 folio 244.
Mr Smith sought review of the decision to reject his first DSP claim in September 2012.
On 22 July 2013, an Authorised Review Officer (ARO) decided that the decision in October 2012 to reject Mr Smith’s first DSP claim was correct. This Officer also decided that the decision in March 2013 to grant him DSP in respect of his second DSP claim was incorrect and set that decision aside, deciding that Mr Smith had a DSP overpayment debt, recovery of which would be waived.[6]
[6] T39.
These ARO decisions were reviewed at Mr Smith’s request and affirmed by the Social Security Appeals Tribunal. That decision is the subject of his present application for review.
Consequently, it is necessary to determine whether Mr Smith met all of the qualification requirements for DSP during the Qualification Periods relevant to each claim he made.
The criteria for grant of DSP are set out in s 94 of the Social Security Act 1991 (the Act) and in Ministerial Determinations, namely the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) and the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the Participation Determination).
Essentially, in order to meet the qualification criteria for DSP set out in s 94(1) of the Act, Mr Smith must be found to have physical, intellectual or psychiatric impairments of 20 or more points under the Impairment Tables, and a continuing inability to work during the Qualification Periods.
Impairments
At the hearing Mr Smith asserted that he suffers from many health problems that impair his functional capacity. These are –
(a)Hepatitis A,
(b)Hepatitis B,
(c)Hepatitis C,
(d)low back pain following heavy manual labour and injury,
(e)opiate dependence,
(f)Anxiety,
(g)Depression,
(h)pathology affecting the 1st and 2nd fingers of his right hand,
(i)Gastro-oesophageal reflux disease,
(j)Hemachromatosis,
(k)Cirrhosis of the liver,
(l)Sciatica causing lower limb deficiencies,
(m)an eye condition, and
(n)Migraine headaches.
Even though some of these conditions are not supported by medical evidence, review of the medical evidence confirms, and the Secretary concedes, that Mr Smith suffers from physical and psychiatric impairments.
This means that s 94(1)(a) is satisfied.
Impairment points
The next question is whether Mr Smith’s impairments attract 20 or more points under the Impairment Tables. The Tables set out a framework of Rules that must be applied.
An impairment rating under the Impairment Tables may only be assigned if the condition causing the impairment is ‘permanent’ and the impairment is likely to persist for more than two years.
For a condition to be permanent, under Rule 6 it must be ‘fully diagnosed’ by an appropriately qualified medical practitioner, ‘fully treated’, ‘fully stabilised’ and likely to persist for more than two years. The following matters are to be considered when determining whether a condition is fully diagnosed and fully treated –
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.
Additionally, the following matters must be considered when determining whether a condition is fully stabilised–
(a)the 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 within two years, or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Rule 10 of the Impairment Tables sets out the steps to be followed when assigning an impairment rating – the functional loss must be identified, then the relevant Table selected and finally the appropriate impairment rating assigned. Where an impairment results from multiple conditions, only one rating may be assigned to that impairment under a single Table.
I will consider each of the conditions Mr Smith raised in these proceedings, and in his claims for DSP.
Hepatitis A – the present evidence does not establish that Mr Smith suffered from this condition, or from any functional impairment that is attributable to this condition, during the Qualification Periods. No impairment rating greater than zero can be assigned.
Hepatitis B – the report of Dr Cudmore on 26 October 2013[7] suggests that Mr Smith is a carrier of Hepatitis B, but it is not presently established that this condition was symptomatic or that it caused any functional impairment during the Qualification Periods. No impairment rating greater than zero can be assigned.
[7] T45 folio 275.
Hepatitis C – the report of Dr Cudmore on 26 February 2014 reveals that Mr Smith was scheduled to have further treatment for this condition in 2014[8]. This is consistent with the report of Dr Scott on 25 November 2011[9], Dr Oo on 8 June 2012[10] and Dr Tierney on 16 August 2013[11]. I am satisfied that further reasonable treatment is yet to be undertaken and significant functional improvement may be expected. This means that the condition was not fully treated and fully stabilised during the Qualification Periods I must consider. No impairment rating greater than zero can be assigned.
[8] Exhibit 1.
[9] Exhibit 4.
[10] Exhibit 6.
[11] Exhibit 2.
Low back pain following heavy manual labour and injury – the reports of Dr Kamerman on 7 September 2012[12] and 11 February 2013[13], and of Dr Polong on 9 July 2013[14], establish that Mr Smith suffers from lumbar spondylosis and that this condition was permanent and fully diagnosed, treated and stabilised during the Qualification Periods.
[12] T20 folio 174.
[13] T32 folios 225-226.
[14] T37 folios 251-252 and 255-256.
As regards the assignment of impairment ratings, Dr Polong considered that a rating of 10 points under Table 1 was appropriate. This is consistent the Job Capacity Assessment on 20 February 2013[15], whereas a Job Capacity Assessment on 26 September 2012 assigned a rating of 5 points under Table 4[16]. The functional impairments reported by Mr Smith’s treating doctors in respect of this condition are low back pain with exacerbations of moderate to severe sciatic pain, decreased range of motion, decreased endurance and decreased ability to sit and to stand.
[15] T33 folio 236.
[16] T21 folio 182.
Under Rule 10, these functional losses must be assessed under relevant Tables. Mr Smith’s loss of endurance is to be assessed under Table 1 and his other functional losses are to be assessed under Table 4. By his own account, on most days he walks to his local shops to collect pharmacological treatments, although he experiences difficulty doing so if his low back or sciatic pain is severe. He told me that he has some difficulty performing household tasks. These complaints are not attributable to his lumbar spine condition alone, however. Mr Smith complains of lethargy, reduced motivation and reduced endurance as a result of liver, psychological and other conditions – see ST 16 for example. It is unfortunate for him that none of these conditions are established as permanent, fully diagnosed, fully treated and fully stabilised during the Qualification Periods, and impairment ratings cannot be assigned.
On balance, I am satisfied that Mr Smith suffers a mild functional loss of endurance as a result of his lumbar spondylosis and related pain, and that the most appropriate rating under Table 1 is five points. I am also satisfied that Mr Smith has a mild functional loss of spinal function under Table 4, and that the most appropriate rating is five points on account of his reduced flexion.
Opiate dependence – Mr Smith informed me that he has not been opiate dependent following his release from custody in 2010, although he has long history of prior dependence. He informed me that he takes Methadone treatment for his lumbar spine pain and not for previous opiate dependence. It appears that, in view of his history, Methadone treatment for pain was prescribed in place of opioid medication so as to avoid further risk of dependence. In his Treating Doctor Reports on 7 September 2012 and 11 February 2013, Dr Kamerman reported that Mr Smith’s drug dependence condition was treated with Methadone[17], listing this as a condition that was generally well managed and that caused minimal or limited impact on his ability to function as of September 2012, and reporting hot flushes and lack of concentration in February 2013. Job Capacity Assessments on 26 September 2012 and 20 February 2013, and Dr Polong on 9 July 2013, reported that Mr Smith’s drug dependence condition was permanent, fully diagnosed, treated and stabilised, such that a rating of 10 points would be appropriate under Table 6. That assessment is not presently made out. I accept that Mr Smith’s opiate dependence is permanent, fully diagnosed, treated and stabilised, but the present evidence suggests that it has only a mild impact on his ability to function.
[17]T20 folio 177 and T32 folio 227.
In view of the discrepancy between Mr Smith’s evidence and the reports of Dr Kamerman regarding the purpose of Methadone treatment, I am not persuaded that the descriptors at the 10 point level are satisfied during the Qualification Periods. Ten points may be assigned under Table 6 where a person is “in receipt of treatment and in sustained remission (e.g. a person who is receiving Methadone treatment or other opiate replacement therapy)” and “able to complete most activities of daily living”. On Mr Smith’s own evidence he was not receiving opiate replacement therapy treatment during either of the qualification periods – the Methadone treatment was prescribed in place of opioid analgesic treatment for back pain. On balance, in view of Mr Smith’s sworn evidence, I think that the most appropriate rating under Table 6 is five impairment points.
Anxiety – this condition has not been diagnosed or treated by a psychiatrist and there is no present evidence from a clinical psychologist. That being so, even if the condition was found to be permanent, and fully diagnosed, treated and stabilised (and I make no such finding), I would not be able to assign a rating under Table 5.
Depression – as with Mr Smith’s anxiety, this condition has not been diagnosed by a psychiatrist and there is no present evidence from a clinical psychologist. No impairment rating greater than zero can be assigned. I note that Dr Kamerman certified that this condition was temporary on 7 December 2007[18] – it appears that the condition has been present for some years. But this does not mean that it can or must be considered ‘permanent’ for the purposes of the Impairment Tables. Even it is was found to be permanent, no rating can be assigned without diagnosis by a psychiatrist or evidence from a clinical psychologist.
[18] ST7.
Right hand pathology affecting the 1st and 2nd fingers – even if I accept that this condition is permanent and fully diagnosed, treated and stabilised, and in all likelihood it is, there is insufficient corroborating evidence about its functional impact on Mr Smith to support the assignment of an impairment rating. On Mr Smith’s oral evidence, it is probable that the condition has only minimal impact on his ability to function. No impairment rating greater than zero can be assigned.
Gastro-oesophageal reflux disease – the present evidence does not establish that this condition is permanent, or fully diagnosed, treated and stabilised. No impairment rating greater than zero can be assigned.
Hemachromatosis – the present evidence does not establish that this condition is permanent, or fully diagnosed, treated and stabilised. No impairment rating greater than zero can be assigned.
Cirrhosis of the liver – the present evidence does not establish that this condition is permanent, or fully diagnosed, treated and stabilised. No impairment rating greater than zero can be assigned.
Sciatica causing lower limb deficiencies – this condition has been assessed in connection with Mr Smith’s lumbar spine condition. I am satisfied that no further functional losses arise that have not already been considered and assessed.
An eye condition – the present evidence does not establish that this condition is permanent, or fully diagnosed, treated and stabilised. No impairment rating greater than zero can be assigned.
Migraine headaches – the present evidence does not establish that this condition is permanent, or fully diagnosed, treated and stabilised. No impairment rating greater than zero can be assigned.
In view of these assessments, Mr Smith has a total of 15 points under the Impairment Tables during each of the Qualification Periods.
It follows that each of his DSP claims do not meet the 20 point threshold under s 94(1)(b) and must, therefore fail.
No doubt this is unfortunate for Mr Smith who, I accept, is quite unwell and suffering significant health issues that adversely affect his ability to function and to work. He told me that his depression and anxiety have a significant adverse effect on his ability to function. I have no reason to disbelieve him. But without sufficient corroborating evidence from a psychiatrist or a clinical psychologist addressing the Qualification Periods, this condition cannot be assigned a rating greater than zero.
As Mr Smith’s claims are not made out, it is not necessary to proceed further to consider whether he has a continuing inability to work, and whether he has participated in a program of support.
Decision
The decision under review is affirmed.
I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member ..................................[sgd]......................................
Associate
Dated 17 June 2014
Date of hearing 14 May 2014 Advocate for the Applicant Shaun Peters, Disability Advocacy NSW Inc. Advocate for the Respondent Bradley Dean Solicitors for the Respondent Australian Government Solicitor
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