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

[2016] AATA 545

Twiss and Secretary, Department of Social Services (Social services second review) [2016] AATA 545 (28 July 2016) 

Division	GENERAL DIVISION
File Number(s)	2015/6812
Re	Patrick Twiss
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr S. Webb, Member
Date	28 July 2016
Place	Canberra

The decision under review is affirmed.

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

Mr S. Webb, Member

Catchwords

SOCIAL SECURITY – disability support pension claim – impairment – medical conditions not ‘permanent’ – requirement for a rating of 20 points under the Impairment Tables not met – decision affirmed

Legislation

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) ss 41, 42, sch 2

Secondary Materials

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

Social Security (Active Participation for Disability Support Pension) Determination 2014

Guide to Social Security Law

REASONS FOR DECISION

Mr S. Webb, Member

28 July 2016

1. Patrick Twiss lodged a claim for disability support pension (DSP). His claim was rejected by primary determination and on review by an Authorised Review Officer (ARO) and the Social Services and Child Support Division of this Tribunal. Unhappy with this result, Mr Twiss applied for further review.

   Background facts

2. On 5 March 2015, Mr Twiss underwent surgical treatment for an injury to his right shoulder.

3. On 17 June 2015, he consulted Dr Lo, a general practitioner. Dr Lo completed a GP Mental Health Treatment Plan[1] and issued a medical certificate.[2] On examination of Mr Twiss, the doctor noted “anxiety +++”.[3] He recorded a diagnosis of “anxiety/depression” and noted “mike van dijkizen” as a mental health professional involved in Mr Twiss’ care.[4] In his medical certificate, Dr Lo recorded a guarded prognosis for Mr Twiss’ anxiety/depression condition and a “fair” prognosis for “R shoulder rotator cuff injury chronic pain”.[5] His assessment was that Mr Twiss was unfit for work or study from 17 June 2015 to 17 July 2015.[6]

   [1] T13.

   [2] T9.

   [3] T13 folio 49.

   [4] T13 folio 50 and T9.

   [5] T9.

   [6] T9.

4. On 20 June 2015, Mr van Dijkhuisen, a consultant clinical psychologist with The Skype Clinic, sent Mr Twiss an email confirming his “free initial discussion appointment”.[7] The session was to be conducted online, using Skype.

   [7] T10 folio 40.

5. On 29 June 2015, Mr Twiss lodged a claim for DSP.[8]

   [8] T18.

6. He attended a Job Capacity Assessment on 7 August 2015.[9] The Assessor reported that Mr Twiss had “Temporary Work Capacity: 0-7 Hours per week”, “Baseline Work Capacity: 8-14 Hours per week” and “Capacity for work within 2 years with Intervention: 15-22 Hours per week”.[10]

   [9] T19.

   [10] Ibid folio 102.

7. On 8 August 2015, Centrelink issued a decision rejecting Mr Twiss’ claim for DSP.[11] Mr Twiss requested review of this decision.[12]

   [11] T21.

   [12] T24 folio 149.

8. On 28 September 2015, an ARO decided to affirm the rejection decision.[13] Mr Twiss applied for review.

   [13] T4 and ST1.

9. The decision was affirmed on first review by this Tribunal.[14]

   [14] T2.

10. On 24 December 2015, Mr Twiss applied for further review.[15]

    [15] T1.

    Issues

11. Mr Twiss’ DSP claim is to be determined under s 94 of the Social Security Act 1991 (the Act). For it to succeed, three key tests must be satisfied –

    (a)it must be established that Mr Twiss has a physical, intellectual or psychiatric impairment;

    (b)the impairment or impairments must attract a rating of 20 or more points under Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination); and

    (c)a continuing inability to work.

12. In respect of a continuing inability to work, if Mr Twiss does not have a ‘severe impairment’ for the purposes of s 94(3B), it must be established that he ‘actively participated in a program of support’ as defined by s 94(5), satisfying the requirements of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the Active Participation Determination).

13. Under ss 39, 41 and 42 and Pt 2 of Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), for DSP to be payable, Mr Twiss must satisfy the DSP qualification criteria on the day on which he lodged the DSP claim (30 June 2015) or within 13 weeks thereafter (to 29 September 2015) (the qualification period). If the qualification requirements are not met within this period, DSP is not payable and the claim must fail.

    Impairment

14. The Secretary accepts that Mr Twiss had a psychiatric condition during the qualification period and that this is an impairment for the purposes of s 94(1)(a).

15. Setting aside any confusion between a condition and an impairment, the evidence of Dr Lo is that Mr Twiss was suffering from mental health issues and experiencing altered mood, affect, sleep, appetite, motivation and anxiety, with associated suicidal ideation risks, on 17 June 2015.[16] These are psychiatric impairments. The report of Mr van Dijkhuisen in T20 establishes that these impairments persisted during the qualification period.

    [16] T13 folio 49.

16. On Dr Lo’s medical certificate, it appears that Mr Twiss was experiencing right shoulder symptoms on 17 June 2015. It is clear that on 5 March 2015 he underwent surgical repair of a right shoulder injury. Even though Mr Twiss initially denied any right shoulder symptoms (and any relevance of a right shoulder condition to his claim for DSP), he later confirmed that his right shoulder freezes from time to time and he experiences pain. I am satisfied that Mr Twiss had a physical impairment to his right shoulder function when he made his claim for DSP on 30 June 2015.

17. Mr Twiss told me that he suffers from tinnitus. The existence of this condition is referred to in the Job Capacity Assessment report of 7 August 2015. There is, however, no medical evidence of this condition. Nevertheless, I am prepared to accept Mr Twiss’ account of experiencing tinnitus that is triggered by certain sounds, such as the crumpling of a bag of chips. This may be accepted as an impairment of his hearing function.

18. This means that the first DSP qualification test under s 94(1)(a) is satisfied.

19. I questioned Mr Twiss about references to drug and alcohol use in the documents. He told me that he had difficulties with drug and alcohol abuse, although his drug use at the time he lodged the claim for DSP was minimal marijuana use, “probably daily”. Even though I accept that Mr Twiss may have experienced difficulties with drug and alcohol use in the past, and to some extent he may have continued to use marijuana during the qualification period, the present evidence is not sufficient to establish that his drug and alcohol use at that time amounted to an impairment. He staunchly denied any association between his use of marijuana and symptoms of anxiety, for example. On this point, I can go no further on the present materials.

    Impairment rating

20. The second test requires that Mr Twiss’ impairments attract a rating of 20 or more points under the Impairment Tables set out in Part 3 of the Determination.

21. Part 2 of the Determination sets out rules that must be applied when assessing impairments - the rules have statutory force under s 26(3) of the Social Security Act and are binding. Only impairments that result from ‘permanent’ medical conditions, and that are expected to persist for more than 2 years, may be given a rating.

22. Under s 6(4), for a medical condition to be ‘permanent’, it must be fully diagnosed, fully treated and fully stabilised. Regard must be had to the matters set out in s 6(5) when determining whether a condition has been ‘fully treated’. The tests that must be applied when determining whether a condition is ‘fully stabilised’ are set out in ss 6(6) and (7).

    Psychiatric impairments

23. Mr Twiss told me that he has experienced anxiety and other mental health issues since childhood. That may well be so.

24. The difficulty for Mr Twiss, however, is that the evidence before the Tribunal does not establish that he obtained any treatment for anxiety or any other mental health condition prior to 17 June 2015, when he first consulted Dr Lo. It was on that day Dr Lo diagnosed anxiety/depression and completed a Mental Health Treatment Plan for Mr Twiss. The Plan is quite clear – the goal was to “improve function”; the ‘Initial Action Plan’ involved diagnostic assessment and cognitive behavioural therapy; and the Plan was scheduled for review on 17 December 2015.[17]

    [17] T13 folio 51.

25. Mr Twiss told me that he was very unhappy with the doctor, who he found to be unsympathetic and dismissive. He cavilled with the prescription of Melatonin, saying that he researched it on the internet and it was not suitable treatment, and Mr van Dijkhuisen told him not to take it. This notwithstanding, he did try taking the medication, but it disagreed with him and made him feel worse, in consequence of which he refused to take any further anti-depressant medication.

26. It is quite clear that Mr Twiss commenced treatment with Mr van Dijkhuisen on 22 June 2015, and that this treatment continued irregularly over six sessions up to 6 October 2015. Mr van Dijkhuisen’s report establishes that Mr Twiss required ongoing treatment at that time and that his mental health condition was not yet fully treated or fully stabilised.

27. The unavoidable conclusion of this is that Mr Twiss’ psychiatric condition cannot be taken to be ‘permanent’ during the qualification period – it was not fully treated or fully stabilised at any time during that period. Furthermore, it is not presently established that impairments resulting from this condition were expected to persist for more than two years.

28. For these reasons, no rating can be assigned to his psychiatric impairments under the Impairment Tables.

    Right shoulder

29. There is very scant evidence about the nature and extent of Mr Twiss’ right shoulder impairment and any underlying causal condition.

30. His own evidence is that he did not obtain treatment after consulting Dr Lo on 17 June 2015.

31. If that is correct, and there is no evidence to suggest that it is not correct, I am compelled to conclude that the right shoulder injury and chronic pain Dr Lo referred to in his medical certificate on 17 June 2015, and Mr Twiss’ account of his right shoulder freezing from time to time, are not fully diagnosed, fully treated and fully stabilised medical conditions – they cannot be considered ‘permanent’ for present purposes. Furthermore, the present evidence does not establish that any resulting impairment of his right shoulder function was expected to persist for more than two years.

32. For these reasons, Mr Twiss’ right shoulder impairment cannot be assigned a rating under the Impairment Tables.

    Hearing

33. The only evidence of Mr Twiss’ hearing impairment is his own, albeit referred to in the Job Capacity Assessment report on 7 August 2015.

34. Mr Twiss told me that he has not sought or obtained any treatment or testing for the tinnitus condition he says he suffers.

35. The present evidence does not establish that his tinnitus condition has been diagnosed or treated by a doctor. It cannot be considered ‘permanent’ for the purposes of the Determination.

36. The nature, extent and expected duration of any resulting hearing impairment is not presently established.

37. For these reasons, no rating can be assigned for hearing impairment under the Impairment Tables.

    Overall rating

38. The impairments Mr Twiss experienced during the qualification period cannot be assigned a rating under the Impairment Tables. It is not presently established that the medical conditions causing these impairments were ‘permanent’ during that period, and it is not established that the impairments themselves were expected to persist for more than two years.

39. That being so, Mr Twiss’ impairments do not attract a rating of 20 or more points under the Impairment Tables.

40. This means that he does not meet the second qualification test for DSP under s 94(1)(b) of the Act.

    Conclusion

41. It follows that Mr Twiss’ DSP claim cannot be granted. He does not meet the essential requirements to qualify for DSP.

42. It is not necessary to proceed any further to consider whether he had a continuing inability to work during the qualification period. I note in closing that, on the present evidence, he would fail to satisfy this test under s 94(1)(c) and the Active Participation Determination, having completed only 16 months participation in a program of support.

    Decision

43. The decision under review is affirmed.

I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

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

Associate

Dated 28 July 2016

Date of hearing	21 July 2016
Applicant	By telephone
Solicitors for the Respondent	Department of Human Services