Test and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 801
•16 November 2012
[2012] AATA 801
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/2918
Re
JERRY TEST
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Mr P Wulf, Member
Date 16 November 2012 Place Brisbane The Tribunal affirms the decision under review.
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Mr P Wulf, Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Entitlement to Disability Support Pension – Physical, intellectual or psychiatric impairment – fully documented and diagnosed – not fully treated and stabilised – Reports of medical practitioners – Decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth) ss 94(1), (2), (3), (5), Sch 1B
CASES
Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606
REASONS FOR DECISION
Mr P Wulf, Member
15 November 2012
Mr Jerry Test (“the applicant”)[1] seeks review of a decision made by Centrelink on
6 June 2011[2] to refuse to grant him disability support pension (DSP) under the
Social Security Act 1991(Cth) (“the Act”).
[1] Exhibit 1, T-Document 1/1-6.
[2] Exhibit 1, T-Document 7/45.
On 31 August 2011, the decision was affirmed by an Authorised Review Officer (ARO).[3] The applicant appealed the decision to the Social Security Appeals Tribunal (SSAT), who affirmed the decision on 6 June 2012.[4] The applicant has applied to this Tribunal for review of the decision of the SSAT.
[3] Exhibit 1, T-Document 15/55-62.
[4] Exhibit 1, T-Document 2/7-13.
For the reasons that follow, the Tribunal finds that the applicant has a permanent disability that is fully documented and diagnosed but as a result of the failure to follow treatment prescribed by his doctor, the injury is not stabilised and therefore the decision is affirmed.
ISSUES FOR THE TRIBUNAL
The issues for the Tribunal to determine are whether:
(a)At 5 May 2011, when the applicant lodged his claim for DSP, or within 13 weeks thereafter, that being 4 August 2011 (“relevant period”), he had a disability that was fully documented, diagnosed, treated and stabilised; and, if so
(b)
The applicant, as a result of his disability, attracts an impairment rating of at least 20 points under the Impairment Tables contained in Schedule 1B of the Act
(“the Impairment Tables”); and, if so
(c)The applicant had a “continuing inability to work”, because of his impairment, within the meaning of s 94 of the Act.
LEGISLATION
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;
(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d)the person has turned 16; and
(e)the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A)is not an Australian resident; and
(B)is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(f)the person is not qualified for disability support pension under section 94A.
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)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)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.
(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
The Impairment Tables, under which impairment point ratings appear, are contained in Schedule 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:
Ÿtreatment that is feasible and accessible ie, available locally at a reasonable cost;
Ÿwhere 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
The evidence before the Tribunal comprised:
(a)Exhibit 1: the “T Documents” (T1-16: pp 1-79) 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 N Stephens dated 30 August 2012;
(c)
Exhibit 3: Respondent’s bundle of documents including a medical report by
Dr N Bartels dated 13 July 2010;
(d)
Exhibit 4: Applicant’s bundle of documents including medical reports by
Dr S F Campbell dated 13 October 2010 and Dr J Mathew dated
13 October 2010;
(e)Exhibit 5: Respondent’s Statement of Facts and Contentions; and
(f)the oral evidence of the applicant and Dr Stephens by phone.
ANALYSIS
Did the applicant have a disability that is fully documented, diagnosed, treated and stabilised that would allow him to qualify to receive DSP on 5 May 2011 or within the relevant period?
The applicant suffered a back injury on 22 April 2010. He was undertaking work on a vessel in dry dock using a sledge hammer and chisel to remove anodes from the hull.
He had undertaken this work for two 12 hour days and had noticed increased lower back pain from lifting, twisting, reaching and straining. Prior to this time, he had completed part of a university degree and had worked as a painter. The applicant attended
Logan Hospital where he was provided Panadeine Forte and Torodol. He later attended Dr Stephens for additional assistance who provided him a range of medication that is discussed below.
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, 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”.
In order to assess whether a condition is fully treated and stabilised, para 6 of the Introduction to the Impairment Tables 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”.
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”.
With respect to whether the applicant has a condition that is a “fully documented, diagnosed condition which has been investigated, treated and stabilised”, there is limited specific evidence within the relevant period. Much of the evidence that has been adduced was provided in 2010 well before the relevant period, and while it may be of assistance, the Tribunal did not place significant weight on these reports as discussed during the hearing. It is also noted that the applicant supplied two reports that were strictly
medico-legal documents obviously related to a civil claim and the report provided by the respondent was a WorkCover medical report.
The respondent conceded that the applicant had an impairment during the relevant period, this being that he had a back condition and presumptive depression. This would therefore fulfil part of the requirements for the payment of DSP. However, while conceding that there was a medical condition, the respondent suggested that the injury was not fully treated and stabilised.
The evidence that was of most assistance was provided by Dr Stephens. The applicant advised that Dr Stephens had been his treating doctor for many years and was someone he would rely upon to seek medical advice. This is consistent with him attending
Dr Stephens’ consulting rooms during May through June 2011. In his evidence,
Dr Stephens provided an overview of the treatment and medication he had prescribed for the applicant in the first half of 2011. The doctor indicated that he had initially put the applicant on Cymbolta from 30 May 2011 and increased the dosage to 60mg.
Dr Stephens then changed the medication on 16 June 2011 to Lexapro and provided enough scripts for the applicant until December 2011. Dr Stephens advised that he then did not see the applicant post the 14 June 2011 attendance until August 2012.
Dr Stephens suggested that if the applicant attended the referrals and also undertook counselling as had been suggested by him, this future treatment would improve the applicant’s health and ability to work and this was his primary reason for providing the referrals.
The applicant advised the Tribunal that his medication made his persona and depression fluctuate significantly and he would often stop taking his medication. As the injury and the depression could be treated by mediation, the applicant’s refusal to take this medication prescribed by Dr Stephens was a failure to continue treatment. If the applicant considered that the medication was unsuitable, it would be thought that he would again attend Dr Stephens to obtain alternative medication. This does not seem to have occurred.
The applicant suggested that this was due to a number of reasons, including that he moved to Sydney for a period of time and also that he was not financially able to undertake appointment with specialists. His evidence as to his refusal to undertake treatment is consistent with the evidence the applicant provided to the SSAT. While it is noted that there may have been some financial constraint to obtain specific services, others are provided by the public health sector and it is noted that none of these were also utilised by the applicant.
The doctor indicated that he was of the opinion that the pain from the injury would fluctuate and that it was continual pain. He indicated he had provided numerous referrals for the applicant to obtain further specialist treatment including muscular skeletal, psychological and physical support from both neurologists and psychologists.
To Dr Stephens’ knowledge, the applicant had not attended any of these referrals and believed the applicant had not managed the injury well.
There were numerous submissions from the applicant as to whether Dr Stephens should have been contacted by Centrelink as to his condition. Dr Stephens indicated that he had been contacted by Centrelink consistent with the ARO’s notes[5] and that he had attempted to call them back but was placed on hold. The applicant argued that doctors should be given preferred treatment and provided direct lines; however Dr Stephens did indicate that he was unaware whether Centrelink had again tried to contact him and he himself, had not made any further effort to contact Centrelink.
[5] Exhibit 1, T-Document 15/55-62 at 62.
The Tribunal is of the opinion is that the condition is permanent, in that it is a
“fully documented and diagnosed condition which has been investigated”, but that it has not been “fully treated and stabilised”. The injuries are ones which the applicant has been provided prescription but has failed to continue to take it, and therefore, the applicant’s injury does not meet the requirements to be considered for DSP.
Section 94(1)(b) of the Act: Impairment Rating
As the Tribunal has found that the applicant is not fully treated and stabilised, it does not need to assess what impairment rating the applicant may incur.
Section 94(1)(c) of the Act: Continuing Inability to Work
As the Tribunal has found that the applicant is not fully treated and stabilised, it does not need to assess whether the applicant has a continuing inability to work.
DECISION
For the reasons set out above, the Tribunal finds that the applicant does not have an injury that is fully treated and stabilised and therefore the decision is affirmed.
24. I certify that the preceding 23
(twenty three) paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member................[Sgd].......................................
Associate
Dated 16 November 2012
Date of hearing 31 October 2012 Applicant In person Solicitor for the Respondent Karen Hamilton
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