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

[2015] AATA 782

Thornley and Secretary, Department of Social Services (Social services second review) [2015] AATA 782 (8 October 2015)

Division	GENERAL DIVISION
File Number(s)	2014/5197
Re	David Thornley
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr I Alexander, Member
Date	8 October 2015
Place	Sydney

The decision under review is affirmed.

................................[sgd]........................................

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr I Alexander, Member

8 October 2015

BACKGROUND

1. On 9 May 2014 Mr Thornley lodged a claim for Disability Support Pension (“DSP”) on the basis that he suffered medical conditions which were having an impact on his ability to function.

2. Mr Thornley’s claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (“SSAT”) on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular he did not satisfy s 94(1)(b) of the Act, in that his impairment rating was not 20 points or more under the Impairment Tables.

3. In these proceedings Mr Thornley seeks review of the decision of the SSAT dated 4 September 2014.

4. At the hearing Mr Thornley was self-represented and able to give oral evidence.

   ISSUES

5. In order to qualify for DSP, Mr Thornley must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 9 May 2014 and 8 August 2014 (the claim period).

6. Section 94(1) of the Act provides that 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;

   …

7. The Respondent concedes and the Tribunal accepts that Mr Thornley suffers medical conditions that cause impairment and therefore satisfied s 94(1)(a) of the Act at the time of his claim for DSP.

8. In a Centrelink Medical Report dated 6 May 2014 Dr Naren Vanza, GP, lists “Degeneration at Lumbo Sacral level with a small spondylolisthesis” as a medical condition with significant impact on Mr Thornley’s ability to function. He also lists “hypertension, hypercholesterolemia, reflux oesophagitis” as medical conditions that are generally well managed and that cause minimal or limited impact.

9. The SSAT also considered a mental health condition, “major depressive episode”, which was diagnosed during the claim period on 29 July 2014 by Mr Jones, clinical psychologist.

10. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

11. For the purposes of paragraph 6(3)(a) a condition is permanent if the condition is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)),

    ·fully treated (paragraph 6(4)(b)),

    ·fully stabilised (paragraph 6(4)(c)), and

    ·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).

12. The Introduction to each Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.

13. Also, the Introduction to Table 5 of the Determination, which is to be used where a “person has a permanent condition resulting in functional impairment due to a mental health condition”, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made a psychiatrist)”.

14. The respondent submits that during the claim period Mr Thornley had a total rating of 5 points under the Impairment Tables meaning that he did not satisfy section 94(1)(b) of the Act.

15. Therefore the Tribunal must consider whether during the claim period Mr Thornley had a rating of 20 points or more under the Impairment Tables and, if so, whether he had a continuing inability to work.

    CONDITIONS

    Spine Condition

16. The respondent submits that Mr Thornley’s spine condition is permanent for the purposes of the Act and that there is a mild functional impact on his activities of spinal function so that a rating of 5 points under Impairment Table 4 can be applied.

17. Mr Thornley told the Tribunal that he injured his back almost 30 years ago when he lifted a doll’s house, built by his father, for one of his nieces. Initially he had intermittent back pain but in recent years the pain has become more frequent and is now present most of the time. The pain is particularly problematic at night and frequently wakes him up. The pain is mainly in the lower back but radiates to both legs, left more than right, and also to the groin. Over the years he has tried various treatments with apparently limited benefit. Surgical treatment has been considered but rejected on the basis that a good outcome cannot be guaranteed.

18. Mr Thornley told the Tribunal that he lives independently, albeit with some difficulty, generally does not require assistance with activities of a daily living but has good days and bad days and is sometimes totally immobile. He is still able to drive a car for short distances, usually for no longer than 20 minutes. He does not need any walking aids and can get up out of a chair without assistance. He has a three year old daughter and likes spending time with her doing puzzles and colouring in.  At other times he watches TV and once a week he goes to a club which is nearby.

19. In a Job Capacity Assessment Report submitted on 26 May 2014 the assessor notes that Mr Thornley reported sitting and standing tolerances of 30 minutes, increased pain after 30 minutes of lawn mowing but continues for up to 1 hour, can bend to pick up items off the floor but not repetitively and cannot lift his 2 year old daughter for more than 10 minutes.

20. The assessor also noted that Mr Thornley could bend down to pick up a light object off the floor, can turn his trunk from side to side and turn his head to look to the side and upwards and concluded that in accordance with the descriptors in Impairment Table 4 there was no functional impact on activities involving spinal function and applied a rating of nil points.

21. The SSAT concluded that the on the evidence before it the JCA assessor had underestimated the impact of the condition on Mr Thorley’s ability to function and applied a rating of 5 points under Table 5.

22. In his report of 6 May 2014 Dr Vanza describes impact on ability to function as :

    ‘‘Pain in the lower back constant, but bending and lifting, sitting, standing, carrying, manipulating objects seems to aggravate the pain, hence unable to perform his normal duties building trades person”

23. Three letters from  Dr Rosenberg, orthopaedic surgeon, dated 23 April 2014, 23 April 2014 and 22 July 2015 confirm that Mr Thornley suffers degenerative lumbosacral disease but provide no assistance to the Tribunal in respect of the descriptors of the activities of spinal function listed in Impairment  Table 4.

    Consideration

24. Mr Thornley’s evidence to the Tribunal would suggest that his spinal condition currently has a severe functional impact on activities involving spinal function. He conceded, however, that his symptoms had increased since the claim period and agreed that the description of his pain and activity tolerances as recorded by the JCA assessor in May 2014 were correct as at that time.

25. The difficulty for Mr Thorley in his application is that the required corroborative evidence, in my view, is incomplete and does not satisfactorily address the relevant activity descriptors in Table 4.

26. Although I agree with the SSAT that during the claim period Mr Thornley’s lumbosacral spine condition did have a functional impact on his activities of spinal function I am not persuaded that there is sufficient corroborative evidence before the Tribunal to apply a rating under the Impairment Tables.

    Mental Health Condition

27. In a very brief letter dated 29 July 2014 Mr Jones, clinical psychologist, states that he saw Mr Thornley for the first time , and in his opinion he is suffering from a  “Major Depressive Episode in association with his chronic lower back pain”.

28. Mr Jones provides no reasons for his opinion and no assessment of functional impairment. He notes that “treatment is ongoing”, but provides no treatment plan.

29. Mr Thornley told the Tribunal that he saw Mr Jones on only two occasions and that he had recommended oral antidepressant medication. Mr Thornley told the Tribunal he did not wish to take any medication for reasons that were not entirely clear.

30. Mr Thornley was not seen by Mr Jones until one week before the end of the claim period and there is no evidence before the Tribunal to support a conclusion that during the claim period the condition of “major depressive episode”, although diagnosed, was fully treated and fully stabilised. This means that the condition was not permanent for the purposes of the Impairment Determination; therefore a rating under the Impairment Tables cannot be applied.

    Other Conditions

31. I am satisfied that during the claim period the conditions hypertension, hypercholesterolemia and reflux oesophagitis were permanent for the purposes of the Impairment Determination.

32. Mr Thornley agreed that these conditions are generally well controlled and do not have any functional impact. Furthermore there is no corroborative evidence before the Tribunal of any functional impact in respect of any of these conditions.

33. Accordingly the appropriate rating for these conditions under the Impairment Tables is 0 points.

    DECISION

34. For reasons set out above I am satisfied that during the claim period Mr Thornley’s rating under the Impairment Tables was less than 20 points so he did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.

35. The decision under review is affirmed.

I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

..................................[sgd]......................................

Associate

Dated 8 October 2015

Date(s) of hearing	2 September 2015
Applicant	In person
Solicitors for the Respondent	Mr S Davidson, Department of Human  Services