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

Townsend and Secretary, Department of Social Services (Social services second review) [2020] AATA 4556 (12 November 2020)
Division:GENERAL DIVISION
File Number(s): 2019/8319
Re:Michael Townsend
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:Ms S Taglieri SC, Member
Date:12 November 2020
Place:Hobart

The Tribunal affirms the decision under review.
..........................[sgd]......................................
Ms S Taglieri SC, Member
SOCIAL SECURITY – disability support pension – rejection – qualification – whether the Applicant had permanent conditions and/or impairments during the qualification period – whether the Applicant had an impairment rating of at least 20 points – permanent degenerative back condition – no permanent psychological condition – requirements for disability support pension not satisfied – decision under review affirmed
Legislation
Social Services Act 1991
Social Security (Tables for Assessment of Work-related Impairment for DSP) Determination 2011
Cases
Butters and Secretary, Department of Social Security [2015] AATA 406
REASONS FOR DECISION
Ms S Taglieri SC, Member
12 November 2020
INTRODUCTION

The Applicant, who is 56 years old, applied for a second-tier review of a decision by the Respondent to reject his claim for disability support pension (“DSP”) under the Social Security Act 1991 (the “SS Act”).
In his claim for DSP dated 15 February 2019,[1] the Applicant stated that he suffered disabilities relating to “depression - adjustment disorder” and a back condition described as “L4 L5 disc’s sciatica – back related Scheuermann's disease”.[2]
[1] T 21, T documents, pp 160-189.
[2] Ibid, p 184.
The Applicant’s claim for DSP was accompanied by a treating doctor’s report and medical certificates from the Applicant’s general practitioner, Dr Pervaiz.
On 24 April 2019 the Respondent rejected the Applicant’s claim[3]. The decision was then referred to an authorised review officer, who agreed that the Applicant was not entitled to DSP.[4]
[3] T23, T documents, p 192.
[4] T27, T documents pp 201-106.
The Respondent’s reasons for rejecting the claim for DSP are set out in the letter to the Applicant dated 1 October 2019.[5] Essentially, the reasoning was that although the Applicant had a back condition and suffered depression and anxiety, each condition was not fully treated; and in the case of depression the condition was not diagnosed.
[5] Ibid, pp 201-203.
The Applicant applied for a first-tier review of the rejection of his DSP claim in the Social Security and Child Support Division of this Tribunal. On 10 December 2019 Member Breheny affirmed the Respondent’s decision to reject the claim.
APPLICABLE LAW
On a second-tier review, the General and Other Divisions of this Tribunal makes its own merit-based decision considering all the evidence put before it and arrives at its own correct or preferable decision.
To be entitled to DSP the Applicant must satisfy all of the requirements of section 94 of the SS Act as they apply to him. These requirements were summarised in Butters and Secretary, Department of Social Security.[6] Amongst other things, for the Applicant to succeed the Tribunal must be satisfied that on the date of his application or within a 13- week period of the date of his application for DSP (the “qualification period”)[7], he suffered from permanent medical conditions, which:
(a)attracted 20 impairment points;[8] and
(b)resulted in him having a continuing inability to work.[9]
[6] [2015] AATA 406.
[7] 27 February 2019 to 20 May 2019.
[8] As required by section 94(1)(b) of the SS Act.
[9] As required by section 94(1)(c)(i) of the SS Act.
In determining if permanent medical conditions attract 20 points, the Tribunal must apply the SS Act and the Social Security (Tables for Assessment of Work-related Impairment for DSP) Determination 2011 (the “2011 Determination”) made under the Act. The 2011 Determination includes written Impairment Tables which prescribe what impairment points apply to specified functional impairments.
EVIDENCE CONSIDERED
The Tribunal conducted a hearing on 14 September 2020. At the hearing, the documents lodged by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (the “T documents”) were received in evidence by agreement and the Applicant relied on additional documentary evidence. He also gave oral evidence on affirmation and was cross-examined by the Respondent’s legal representative.
The Applicant’s oral evidence to the Tribunal focused on his back condition. He told the Tribunal that he could only walk limited distances, 25 to 50 metres, and that his leg would then swell up and become numb. As a result, he said he would then have to lie down for relief. He maintained that his back condition was permanent despite the fact that he had not yet seen the neurosurgical specialist at the Royal Hobart Hospital to whom he had been referred.
The Applicant maintained that the waiting time to be seen by a neurosurgical specialist was so long, over three and a half years, that any treatment he may be offered was neither accessible nor reasonable treatment. The effect of his submission was that because treatment from a neurosurgeon was unavailable within two years, he should not be refused a DSP.
The Applicant also referred to a condition of depression and stated that he “dropped” reliance on it for the purposes of his claim because “he doesn’t have evidence for it”. The Applicant stated that he was suffering depression and that this was mainly exacerbated by Centrelink itself. He also referred to loss of a job, his divorce and Centrelink’s behaviour towards him as factors causing his depressive symptoms.
On questioning from the Tribunal about his function, the Applicant stated that he:
·can bend over and pick up an object from knee height, three or four times and after that his back goes and he has sharp, shooting pain in his leg.
·He drives to a laundromat to do his laundry, which is only 50 metres from his accommodation, because he cannot walk that far without having symptoms relating to his back and leg.
·He cannot carry his laundry basket for any distance and slides it along the floor, to get it to his car and then lift it in.
·He can lift light objects but anything heavy causes his back “to go out”.
·He had managed to obtain a work trial through Max Employment at Burnie Print and Design but lasted two days and then ended up in bed for three days.
·He had seen a psychologist at the Wynyard Medical Centre and Dr Ross Kirkman prior to making his claim for DSP.
The Applicant was cross-examined and agreed that he had a few sessions of physiotherapy but said that the sessions had not improved his condition. As a result of the sessions not doing any good, his GP referred him to have an MRI and see a neurosurgeon at the Royal Hobart Hospital.
In answering questions under cross-examination, the Applicant stated that the first time he had been referred to a neurosurgeon was in January 2019. He denied ever saying that the waiting period to see the neurosurgeon would be six months. When it was put to him that his back condition had deteriorated after the qualification period ended in May 2019, the Applicant disputed this.
Counsel for the Respondent also asked various questions about the Applicant’s mental health condition. The Applicant agreed that he had been referred to Dr Kirkman in the second half of 2018. He also agreed that he had been referred to Mr Marriot in 2018 - 2019. He stated that he had not seen or continued to see either of them because he had experienced problems in the past and had been treated by them but did not get any better.
In relation to the consultation with Dr Kirkman in late 2018, the Applicant said it was on a video call and that the call had been shut down. It was put to the Applicant that he was not taking any medication in 2019, specifically during the qualification period. The Applicant stated that he had tried many medications but due to side-effects, including vomiting, diarrhoea and loss of balance, he was not taking them. The Applicant clarified that he had not seen Mr Marriot and did not really see the point in doing so. He wanted fresh ideas, and so asked his GP to refer him to another practitioner. The Applicant said that the psychologist he had seen was an internal person through the Wynyard Medical Centre and he agreed it was Michael O’Donnell.
DIRECTIONS AT CONCLUSION OF HEARING
Although the Applicant stated that he “dropped” reliance on his psychological condition, the DSP claim and his evidence suggested otherwise. Accordingly, the Tribunal made directions permitting the Applicant to file and serve additional evidence about the depressive condition.
The Tribunal directed that the Applicant file and serve any letters or reports from Dr Kirkman, Mr Marriot and/or Mr O’Donnell which he sought to rely on about a psychological condition he suffered during the period 1 January 2018 to 20 May 2019.
The Tribunal’s direction was specific and confined to additional evidence in the period leading up to when the claim for DSP was made and during the qualification period. It was evidence about the psychological condition in this period that was likely to be relevant to the Applicant’s potential eligibility for DSP.
To afford procedural fairness, the Tribunal also made directions permitting the Respondent to file and serve additional written submissions relevant to the existence and permanency of a psychological condition in the qualification period.
The Applicant lodged the following documents with the Tribunal, and they have been considered:
·Report of Mr O’Donnell, psychologist, dated 30 September 2019 and referring to a diagnosis of depression and adjustment disorder in August 2018, with symptoms likely to continue;
·Report of Dr Kirkman, psychiatrist, dated 27 November 2019, confirming evidence of termination of treatment;
·Report of Dr Kirkman, dated 7 January 2009 referring to past diagnosis of adjustment disorder with depression;
·Multiple references, awards and proof of qualifications, generally attesting to the Applicant’s good character and work experience;
·Letter from the Royal Hobart Hospital of 7 September 2020, evidencing that the Applicant was still waiting for a neurosurgical review;
·Multiple pages relating to interactions with Centrelink over a significant period and presumably related to the evidence the Applicant gave at the hearing about Centrelink’s behaviour;
·North West Regional Hospital Physiotherapy records; and
·Letter from Mr Marriott, clinical psychologist to Dr Pervaiz dated 21 October 2019 (and enclosed past letters to Dr Al Tamimi) as to the longevity of the Applicant’s depression, but not providing current clinical assessment.
On 9 October 2020, the Respondent filed written submissions, which the Tribunal has also considered.
PARTIES’ CONTENTIONS
The Applicant’s case focused on his back condition. He argued that this condition can be regarded as permanent, thereby requiring the allocation of impairment points for his claim for DSP.
In his oral submissions at the hearing he referred the Tribunal to the rules in the 2011 Determination. He contended that his back condition was permanent and referenced Rule 6(7). Rule 6(7) provides that for the purpose of ascertaining whether a condition is fully stabilised within the meaning of Rule 6(6), ‘reasonable treatment’ means treatment that is reasonably accessible at a reasonable cost and expected to result in substantial improvement in function.
The Applicant claimed that because, as Member Breheny noted, he cannot access neurosurgical treatment, his condition should be treated as permanent.
The Applicant further maintained that as his back condition was permanent, the Respondent had to assign an impairment rating to the condition by virtue of Rule 6(11). Curiously, he did not make any submissions about how many impairment points the back condition should attract.
Although the claim for DSP included the condition of depression, the Applicant did not address any contention to the impairment points applicable to that condition.
The Respondent made detailed written submissions in its Amended Statement of Facts, Issues and Contentions dated 2 July 2020, and these were reiterated at the hearing. The Tribunal has had regard to those submissions.
The effect of the Respondent’s contentions is that during the qualification period, the Applicant was not suffering a back condition or psychological condition that could be regarded as permanent for the purposes of the 2011 Determination. The Respondent argued that the back condition was not fully stabilised, as the Applicant had not yet undertaken reasonable treatment. In respect of a psychological condition, the Respondent says there is insufficient evidence to establish that the Applicant suffered a diagnosed condition during the qualification period.
EVALUATION OF EVIDENCE, SUBMISSIONS AND FINDINGS
The medical report and certificates of Dr Pervaiz which are in evidence before the Tribunal attest to the Applicant’s suffering from a back condition with left-sided sciatica. Further, investigations undertaken in respect of the Applicant’s lumbar spine in the latter half of 2018 refer to the existence of degenerative abnormalities in the lumbar spine. The CT report[10] and MRI report[11] each verify objectively the existence of the disc and facet joint degeneration at L4/5 and L5/S1 levels. The reporting Radiologist described multilevel disc degeneration and herniation or bulging of the lumbar discs, capable of verifying the reported left-sided sciatic pain.
[10] T 12, T documents, p 139.
[11] T 16, T documents, pp 148-149.
Based on the above medical evidence the Tribunal is satisfied that the Applicant suffers from degenerative disease of his lumbar spine with consequential left leg symptoms causing pain and numbness. The radiological imaging provides corroboration of the Applicant’s evidence noted at paragraphs [11] to [15], concerning his back pain, leg pain, and restrictions from both.
However, the Tribunal must also be satisfied that the degenerative condition of the lumbar spine is permanent before assigning impairment points under the 2011 Determination. As provided by Rule 6(5) of the 2011 Determination, for a condition to be “permanent” it must be:
·fully diagnosed;
·fully treated;
·fully stabilised; and
·likely to persist for more than two years.
In this case, the Respondent contended that because the Applicant had been referred to a neurosurgeon for further treatment, the condition could not be regarded as fully treated and fully stabilised. This is rejected by the Tribunal for the reasons below.
The Applicant’s back condition has existed for many years and is degenerative in nature from the medical evidence before the Tribunal. Although the Applicant’s GP has referred him for neurosurgical opinion, the multilevel degenerative changes that exist make it far from likely that surgical treatment is a reasonable or possible option, based on the Tribunal’s medico-legal knowledge.
The Applicant is reliant on access to a neurosurgeon in the public health system and has given evidence about the probable waiting time. Member Breheny made her own enquiries as to waiting time at the Royal Hobart Hospital for a neurosurgical consultation. Relying on the information she obtained, the Applicant’s evidence, and recent communication that there is still no appointment,[12] it is more probable than not that the Applicant will not get a neurosurgical consultation within two years despite his GP’s endeavours.
[12] Letter from Outpatient Services, Royal Hobart Hospital dated 7 September 2020.
The Applicant has had physiotherapy treatment and continues with it and medications to manage his symptoms. There is no suggestion that he has refused treatment for his back condition.
The Tribunal accepts that it is for the Applicant to satisfy it that the condition is fully treated, but in this case the absence of evidence of likely access to a neurosurgical opinion at reasonable cost has been demonstrated. In view of the foregoing matters, the Tribunal is satisfied that the Applicant’s back condition is permanent.
The Applicant has not strongly contended that he suffers a permanent psychological condition. Having given him additional time and opportunity to provide evidence about a psychological condition, the additional documents submitted by him do provide some further clarity.
In the Tribunal’s view, the evidence demonstrates that from time to time, the Applicant has experienced symptoms of depression, stress or anxiety in response to challenges in his life. For example, the workplace injury or the divorce referred to in the reports of Mr Marriot and Mr Kirkman, and the loss of financial security to which the Applicant referred in his evidence.
The evidence demonstrates that his psychological symptoms fluctuate, as he returned to employment after being treated by Mr Marriott in 2009 and 2010. Importantly, the evidence before the Tribunal shows that the Applicant has received very limited treatment for his psychological symptoms, both leading up to making the claim for DSP, and since.
There are also multiple and variable diagnoses of the psychological condition from which the Applicant suffers. Dr Pervaiz refers to depression and anxiety in late 2019[13]; but Mr O’Donnell refers to depression and adjustment disorder in 2018.[14]
[13] See for example: T15, T documents, p 147.
[14] Medical Report of Michael O’Donnell, Psychologist, 30 September 2019.
In referrals to Mr Marriott and Mr Kirkman,[15] there is also reference to adjustment disorder. Mr Marriott’s recent letter refers to longevity of the Applicant’s problems but does not give a current diagnosis for his condition in the relevant period.
[15] T13, T documents, pp 140-143.
The 2011 Determination is specific about the requirements for the diagnosis of a psychological condition and for it to be “permanent”. As to diagnosis, it must be made by either a psychiatrist, or jointly by a GP and clinical psychologist.
At and around the time of the qualification period, the evidence about the Applicant’s psychological condition is from Dr Pervaiz, a GP and Mr O’Donnell.
The more recent information from Mr Marriott and Dr Kirkman demonstrates that neither has made a diagnosis relevant to the period leading up to and during the qualification period, or since.
The submissions of the Respondent dated 9 October 2020 attached a copy of the National Practitioner Register maintained by the Australian Health Practitioner Regulation Agency. It records that Mr O’Donnell is registered as a psychologist, not a clinical psychologist.
The submissions of the Respondent dated 9 October 2020 attach Medicare generated records of consultations the Applicant has had before, during and after the qualification period. They corroborate the Applicant’s evidence that he had limited consultations with Mr O’Donnell, and one visit with Dr Kirkman only. They also record medications obtained for psychological symptoms and again corroborate the evidence of the Applicant that he is reluctant to use anti-depressants.
The Tribunal is satisfied on all the material before it that the Applicant has experienced fluctuating symptoms of depression over a period of at least 10 years. However, the Applicant has not persuaded the Tribunal that he has a fully diagnosed and permanent psychological condition.
There was no psychological diagnosis according to the requirements of the 2011 Determination during the qualification period. Further, there is evidence that the Applicant has not fully and regularly engaged with widely accepted treatments for depressive symptoms. The Applicant gave some reasons for this, but it does not detract from the absence of satisfaction of the strict legal criteria for considering a condition as fully treated.

It is important that the Tribunal note that it accepts the Applicant’s evidence as largely truthful and reliable. His demeanour at times was angry and combative, but that in the Tribunal’s view reflects his frustrations and the psychological symptoms from which he suffers. It also suggests that he reasonably requires treatment because it is evident that within the last 10 years, he has had periods of stable employment, been a valuable member of his community and respected by many others.
Where there is inconsistency between the content of contemporaneous records and the evidence of the Applicant, it is likely due to imperfect memory, and not a deliberate attempt to give incorrect information.
APPLICABLE IMPAIRMENT POINTS
Based on the evidence before the Tribunal, the functional impacts of the Applicant’s degenerative back condition involve his spine and left lower limb. The Tribunal accepts the Applicant’s evidence that it has remained relatively the same and has not deteriorated since making his DSP claim.
Accepting the oral evidence given by the Applicant about the functional limits, which were not really challenged in cross-examination, and the evidence contained in the reports of the treating GP, Dr Pervaiz, the impairments should be assessed under Table 3 – Lower limb function and Table 4 – Spinal function.
Table 3 provides for lower limb impairments. The Tribunal is satisfied the Applicant has some difficulties walking around local facilities.[16] Further, although there was no direct evidence given about standing tolerance, it can be inferred from the reports of Dr Pervaiz about neuropathic pain in the left leg, that the Applicant is likely to be unable to stand for more than 10 minutes before needing to change position. Accordingly, under Table 3, the evidence satisfies the Tribunal that at most, five impairment points should be assigned.
[16] At 5(1)(a) of Table 3.
The evidence also demonstrates functional limits with bending the spine, lifting and carrying. This evidence is corroborated by Dr Pervaiz’s reports. However, under Table 4, on a reasonable approach to the evidence, the Tribunal can only assign five points for this.[17]
[17] “Mild functional impact”, at 5(1)(b) of Table 4.
Based on the findings at [56] and [57], the Tribunal concludes that the Applicant’s back condition attracts a total of 10 points under the applicable table in the 2011 Determination during the qualification period.
Having concluded that the Applicant has not persuaded the Tribunal that he suffers a permanent psychological condition, the Tribunal cannot at law assign any impairment points pursuant to Table 5 of the 2011 Determination.
CONCLUSION
The Tribunal is satisfied that the Applicant suffers a permanent degenerative lumbar spine condition; but it attracted 10 points at most pursuant to the 2011 Determination during the qualification period. The Applicant has failed to satisfy the Tribunal that he suffers from a permanent psychological condition.
Consequently, the Applicant does not meet the legal requirements for eligibility for DSP pursuant to section 94(1)(b) of the SS Act. The Respondent’s decision to reject the Applicant’s February 2019 claim for DSP was correct.
The Tribunal affirms the decision under review.

63. I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri SC, Member.

......................[sgd]...........................
Associate
Dated: 12 November 2020

Date of hearing:

Final submissions received:

14 September 2020

9 October 2020

Applicant:

Solicitor for the Respondent:

Self-represented, by phone

Ms L Hinwood

[2020] AATA 4556

12 November 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Procedural Fairness

Judicial Review

Standing

Statutory Construction

Appeal