Van Der Kruys and Secretary, Department of Social Services (Social services second review)

[2016] AATA 282

Van Der Kruys and Secretary, Department of Social Services (Social services second review) [2016] AATA 282 (3 May 2016)

Division	General Division
File Number(s)	2015/2133
Re	Michael VAN DER KRUYS
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr Conrad Ermert, Member
Date	3 May 2016
Place	Melbourne

The decision under review is affirmed.

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

Mr Conrad Ermert, Member

CATCHWORDS

SOCIAL SERVICES – Disability Support Pension – review of continuing qualification to receive DSP – cancellation of DSP payments – relevant date – instrument in force at the relevant date – whether conditions fully diagnosed, treated and stabilised – whether cancellation decision correct – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975

Social Security Act 1991
Social Security (Administration) Act 1999

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

CASES

Freeman v Secretary, Department of Social Security (1998) 19 FCR 432

SECONDARY MATERIAL

Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension 2012

REASONS FOR DECISION

Mr Conrad Ermert, Member

INTRODUCTION

1. Mr Van der Kruys, the Applicant, was granted a Disability Support Pension (DSP) from 28 April 2011.  On 10 July 2014 he was advised by Centrelink that his continuing qualification for DSP would be reviewed.  Centrelink is the service provider for the Secretary of the Department of Social Services, the Respondent.  By a notice dated 12 January 2015, Centrelink advised Mr Van der Kruys that his DSP was cancelled as his impairment rating was less than the required 20 points. 

2. Mr Van der Kruys sought a review of this decision by an Authorised Review Officer (ARO) of Centrelink.  On 21 January 2015 the ARO affirmed the original decision. Mr Van der Kruys sought review of this decision by the then Social Security Appeals Tribunal (SSAT).  On 7 April 2015 the SSAT affirmed the decision of the ARO.

3. On 29 April 2015, Mr Van der Kruys lodged with this Tribunal an application for review of the SSAT decision. 

   HEARING

4. At the hearing, Mr Van der Kruys was represented by Mr Paul Czarnota of Counsel, instructed by Ms Ciltra Henderson of Shine Lawyers. Mr Van der Kruys gave oral evidence under oath. Mr Joshua Lessing, a solicitor with Spark Helmore, represented the Respondent.

5. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents), together with the following Supplementary T-Documents:

   ·ST1 – Report of Dr Walton dated 12 June 2009;

   ·ST2 – Report of Dr Muir dated 19 June 2013;

   ·ST3 – Report of Dr Muir dated 28 June 2013;

   ·ST4 – Report of Dr Tabart dated 20 August 2013;

   ·ST5 – Report of Dr Navani dated 30 May 2013; and

   ·ST6 – Report of Dr Navani dated 17 June 2013.

6. For Mr Van der Kruys, I took in for consideration the Applicant’s Statement of Facts, Issues and Contentions dated 17 December 2015.  I took into evidence the following documents:

   ·Exhibit A1 – Statement of Michael Vander Kruys dated 11 January 2016;

   ·Exhibit A2 – Report by Dr Muir dated 19 June 2013;

   ·Exhibit A3 – Report by Dr Muir dated 28 June 2013;

   ·Exhibit A4 – Report by Dr Muir dated 17 September 2013;

   ·Exhibit A5 – Report by Dr Navani dated 2 August 2012;

   ·Exhibit A6 – Report by Dr Navani dated 12 October 2012;

   ·Exhibit A7 – Report by Dr Navani dated 30 May 2013;

   ·Exhibit A8 – Letter by Dr Navani dated 17 June 2013;

   ·Exhibit A9 – Report by Dr Epstein dated 2 April 2013;

   ·Exhibit A10 – Pages 1 and 2 of report by Dr Epstein dated 18 June 2013;

   ·Exhibit A11 – Report by Dr Tabart of the Health Professional Advisory Unit dated 20 August 2013;

   ·Exhibit A12 – Report by Dr Epstein dated 24 February 2016;

   ·Exhibit A13 – Report by Dr Navani dated 28 March 2016; and

   ·Exhibit A14 – Report by Dr Muir dated 11 April 2016.

7. For the Respondent, I took in for consideration the Secretary’s Statement of Facts, Issues and Contentions dated 22 January 2016. I took into evidence the following documents:

   ·Exhibit R1 – Centrelink Range of Movement Assessment;

   ·Exhibit R2 – Report of Dr Thomas dated 28 September 2009;

   ·Exhibit R3 – Report of Dr Navani dated 25 April 2011;

   ·Exhibit R4 – Report of Dr Baker dated 23 March 2009;

   ·Exhibit R5 – Report of Dr Baker dated 19 May 2009;

   ·Exhibit R6 – Report of Dr Muir dated 10 September 2010;

   ·Exhibit R7 – Report of Dr Muir dated 16 August 2011;

   ·Exhibit R8 – Report of Dr Walton dated 12 June 2009; and

   ·Exhibit R9 – SSAT decision dated 3 April 2012.

   LEGISLATION

8. The relevant legislation is contained in:

   (a)Social Security Act 1991 (the Act);

   (b)Social Security (Administration) Act 1999 (the Administration Act); and

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

9. Section 94 of the Act relevantly prescribes the qualifications for DSP:

   1A 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.

10. A person’s impairment is assessed by reference to the Impairment Tables.

    RELEVANT DATE

11. In the Secretary’s Statement of Facts and Contentions, the Respondent contends that the key issue in dispute is whether the Applicant satisfied s 94(1)(b) and (c) of the Act as at the date of cancellation, 12 January 2015, and at no other time.  The Applicant made no submissions as to the relevant date for consideration.  However, the contentions in the Applicant’s Statement of Facts, Issues and Contentions relate specifically to 12 January 2015 and to no other dates.

12. In considering this contention I note the decision of the Federal Court in Joan Elizabeth Freeman v Secretary, Department of Social Security (1988) 19 FCR 342. Freeman was an appeal against a decision of the Administrative Appeals Tribunal which affirmed an earlier decision of the Department to cancel the applicant’s widow’s pension.  In his reasons, Davies J considered the relevant date to be applied.  In his reasons for decision he said at 344-345:

    The function of the Tribunal was therefore to reconsider the decision of 19 May 1987 and to determine whether the decision to cancel Mrs Freeman’s widow’s pension at that time was the correct or preferable decision to have been made.  In coming to its decision, the Tribunal was entitled to take into account all the facts proved before it.  But the issue was whether, having regard to those facts, the decision to cancel made on 19 May 1987 was the correct or preferable decision, not whether Mrs Freeman had an entitlement to a widow’s pension as at the date of the Tribunal’s decision.

13. Davies J continued:

    The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is therefore less than would be the jurisdiction of the Tribunal in respect of a refusal to grant a pension or benefit or a decision suspending the payment of a pension or benefit.  In the latter cases, there may well be an ongoing entitlement to a pension or benefit which the Tribunal should recognise when formulating its decision.  However, if the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal’s consideration.  Any entitlement of the applicant to a pension or benefit at a subsequent time must be the subject of a further claim which, having been made, would only become the subject of review within the Tribunal’s jurisdiction once a decision with respect to it had been made by an officer of the Department of Social Security and that decision had been the subject of appeal and reconsideration in accordance with s.19.

14. Following the reasoning in Freeman, I find that the relevant date for this matter is 12 January 2015.

    ISSUES

15. I must determine whether the decision to cancel Mr Van der Kruys’ DSP on 12 January 2015 was the correct or preferable decision.

    EVIDENCE

16. In his evidence, Mr Van der Kruys said he attended school up to Year 10.  He then completed an apprenticeship as a fitter and turner.  Thereafter, he was employed as a maintenance fitter.  He described his work as heavy duties involving the use of heavy spanners and power tools.  He said his work required continuous standing, bending, lifting, climbing, squatting and kneeling.  About 15% of his work involved overhead work.  He said he could not perform those duties today.

17. Describing his current capabilities, Mr Van der Kruys said he struggles to keep his house tidy and make dinner for himself.  His mother visits him five or six times a year and does the housework that he can no longer do for himself.  He said he mows his lawn with a ride-on mower.  Asked whether his difficulties in managing the housework are physical or mental he said “a bit of both”.  He said that he would be physically incapacitated the day after doing the work and his incapacity would “play on his mind”.

18. Mr Van der Kruys said Dr Navani has been his treating General Practitioner (GP) since 2000.  He continues to see Dr Navani many times as he needs repeat prescriptions for his medications every 10 days.  Asked about other treatments, Mr Van der Kruys said he has “tried psychology but it did not help.  He saw [a psychologist] about four times … the pain won’t go away and the positive talk does not help”.  He said he has also been to physiotherapists and chiropractors but they cannot help around the area of his neck.  He went weekly to a sports physiotherapist for six months, but this did not help his condition. 

19. Mr Van der Kruys said he has been taking a lot of medications for the last eight years, but none had helped with the pain.  He said his current medications are the best he has had to date, but his doctor is still “working on the dosages”. 

20. He drives his car when he goes to see the doctor, who is only five minutes away.  He also drives to the shops, which are close by.  He said he does not otherwise go anywhere.  He has no hobbies and no friends.  When he does visit friends, he needs neck support and has to lie down.  He said that before his accident he had a girlfriend but he cannot maintain a relationship now.  He said he cannot have intimate relationships as he does not know how his conditions affect the other party.  He has no self-worth at the moment.

21. Asked about other doctors, Mr Van der Kruys said he had been seen by Dr Thomas, and since 2009 he has been seen by Dr Muir.  He sees Dr Muir about every three months to report on the effects of his medication.  He said Dr Muir is hoping to find a combination of medications and dosages to reduce his pain and improve his life.  He said Dr Muir had treated him with nerve blocks on two occasions in 2010 and 2011, but the results were not positive.

22. Mr Van der Kruys described his sleeping problems, saying he could not relax his muscles when lying on his back.  He took sleeping tablets.  When he wakes in the mornings he has severe pain. 

23. Asked about his moods, Mr Van der Kruys said he “felt down but there is no one to complain to”. 

24. In regard to everyday living, Mr Van der Kruys said he does not do anything above his head as raising his arm gives him too much pain.  He said there is not much in the house that is over his head.  He does everything at waist or chest height.

25. Asked about his ability to work, Mr Van der Kruys said his pain and medications affect his ability to walk and his balance.  He suffers a little from motion sickness.  He cannot use power tools.  Before he started taking medications, he could quickly learn new things.  Now he cannot remember things when he is reading.  His concentration is affected. 

26. Mr Czarnota asked whether he had suicidal thoughts.  Mr Van der Kruys said “Sometimes I don’t want to wake up like this.  The pain is as if the accident happened yesterday.  I feel that I would take an opportunity to die”. 

27. Asked about his hobbies, Mr Van der Kruys said his life now revolves around the news programs on television and other simple things.  He said he speaks to his parents by telephone every one to two days.

28. Mr Van der Kruys said he could not do any work.  He said that after one to one and a half hours of work, he had to have the next day off to recover.  He could not imagine that anyone would employ him.

29. In response to questions from Mr Lessing, Mr Van der Kruys said:

    ·He lives alone with his chihuahua dog;

    ·He does not see his conditions as single problems, they are all one problem;

    ·The pain from his neck injury and depression outweigh his limited movement;

    ·In 2011 he travelled to Thailand with a friend, involving a plane trip lasting about six hours;

    ·He does not cook for himself because of the pain in his back when cooking, shopping and cleaning up;

    ·He can drive short distances and sit for 30 minutes;

    ·He carries shopping bags, as long as they are not too heavy;

    ·He can raise his arms with difficulty;

    ·The statement in the JCA report of February 2013 that he was carrying a bag weighing about eight kilograms was correct;

    ·He saw a psychologist in his GP’s rooms about four or five times, but cannot remember her name;

    ·He can shower, dress, manage his finances, pay his bills at the post office, watch the television news, read and play occasional video games;

    ·The prescribed dosage of Cymbaltar was increased the day before the hearing;

    ·He disagrees with Dr Epstein’s assessment that his concentration is normal;

    ·He has good relations with his parents;

    ·He inherited his house and then sold it in 2007, after which he resigned his job;

    ·He had his motor vehicle accident after he had resigned his job;

    ·He has not worked since his accident;

    ·He receives Newstart allowance and attends appointments with the job service providers;

    ·The job service providers cannot find a suitable position for him;

    ·He can use his hands but he cannot use a computer;

    ·He could be employed in a clerical job if a position could be found that provided for work only every second day;

    ·The pain in his spine did not stop him from taking the overseas flight; and

    ·A friend had paid for the trip, which was his first overseas trip, and he thought it might help “clear his head”.

    TRIBUNAL CONSIDERATIONS                   

30. The Respondent concedes that at 12 January 2015 Mr Van der Kruys had impairments from the following conditions, which satisfied the requirements of section 94(1)(a) of the Act:

    ·Cervical spine condition;

    ·Depression; and

    ·Migraines.

31. I am satisfied that the medical evidence supports this concession and I find accordingly.

32. I must now determine whether Mr Van der Kruys’ impairments attract an impairment rating of 20 points or more under the Impairment Tables, according to section 94(1)(b) of the Act.

33. Section 6(3) of the Impairment Tables provides that a rating can only be assigned to an impairment if the person’s condition is permanent and the impairment is likely to persist for more than two years.  Section 6(4) provides that a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and stabilised.

34. I will consider each condition in turn.

    Cervical Spine Condition

35. In the Secretary’s Statement of Facts and Contentions, the Respondent accepts that Mr Van der Kruys’ cervical spine condition is of long standing and was fully diagnosed, treated and stabilised at 12 January 2015.    I am satisfied that the medical evidence supports the concession and I find accordingly.  There is no dispute that the impairment resulting from this condition is more likely than not to persist for more than two years. 

36. As, at the relevant date, the condition was fully diagnosed, treated and stabilised and is expected to persist for more than two years I find that it is permanent in the terms of section 6(3) of the Impairment Tables.  Accordingly it can be assessed for an impairment rating using the Impairment Tables. 

37. The Impairment Table relevant to this condition is Table 4 – Spinal Function.  In the Secretary’s Statement of Facts and Contentions, the Respondent contends that Mr Van der Kruys’ impairment attracts a rating of 10 points.  In his oral submissions, Mr Lessing re-iterated this contention.  I am satisfied that the medical evidence supports a rating of 10 points.  I must now consider whether I can assign a higher rating.

38. For a rating of 20 points, Table 4 requires there to be a severe functional impact on activities involving spinal function.  The descriptors in the table are:

    (1)  The person is unable to:

    a.    Perform any overhead activities; or

    b.    Turn their head, or bend their neck, without moving their trunk; or

    c.     Bend forward to pick up a light object from a desk or table; or

    d.    Remain seated for at least 10 minutes.

39. In considering the evidence, I note the Introduction to Table 4 which provides that self-report of symptoms alone is insufficient and that there must be corroborating evidence of the person’s impairment.  The examples given of corroborating evidence are reports from medical practitioners and specialists, physiotherapists or other rehabilitation practitioners.

40. The corroborated evidence relevant to Mr Van der Kruys’ condition on 12 January 2015 is contained in the following reports:

    ·Dr Navani dated 30 May 2013 which records:

    I have carefully reviewed the Impairment Tables which was legislated in December 2011 and effective from the 1^st January 2012 and also the Impairment Tables prior to that … Thus I believe that by applying the new tables (Determination 2011), I can only allocate ten (10) Points;

    ·Job Capacity Assessment (JCA) Report dated 22 December 2014  which records:

    The client lives independently and performs all house chores but is unable to hang clothes on the line (needs to use a dryer) as he is unable to lift weight above his shoulders.  The client reported the following limitations: Driving to a maximum of 30-40 minutes, sitting a maximum of 30-40 minutes but is able to bend over and pick up a light object placed at knee height.  The client drives regularly but has some difficulty moving his head in all directions;

    ·Health Professional Advisory Unit (HPAU) Opinion dated 3 December 2014 which records:

    Following a discussion with Dr Navani on the 3/12/2014 to clarify current impacts of the condition, it was confirmed that Mr Van Der Kruys is able to raise his arms above his head but he is unable to sustain this position.  It was also noted in the current JCA report that Mr Van Der Kruys lives independently and performs house chores other than sustained overhead chores such as hanging the washing and heavy chores … A 10 point rating on Table 4 is considered appropriate in this case, as the condition meets descriptors 1(a) and (b).  There is no indication the customer meets any of the descriptors for the higher 20 point rating; and

    ·Dr Navani dated 28 March 2016 (Exhibit A13) which records:

    Please state what level of impairment is applicable to Michael’s neck injury as at January 2015 and at present day; Severe functional limitation – Point 20.  This was the case in January 2015 and remains so today.

1. In the Respondent’s Statement of Facts and Contentions, the Respondent contends that Mr Van der Kruys’ impairment does not attract 20 points as he is not unable to perform any overhead activities. This is based on the evidence that he can perform overhead activities but cannot sustain them.  Additionally, the Respondent contends that Mr Van der Kruys is not unable to turn his head or bend his neck without moving his trunk, as he can turn his head while driving.

2. Mr Lessing submitted that the evidence of Mr Van der Kruys was consistent with the Centrelink Range of Movement Assessment of 3 May 2011, which recorded an overall loss of one-quarter of normal range of movement.  Mr Lessing contended that Mr Van der Kruys did not satisfy any of the requirements for 20 points.

3. Mr Czarnota submitted that the Tribunal should accept the opinions of Dr Navani who, as the treating GP for many years, was in the best position to understand the impact of the conditions.

4. On the issue of his ability to perform overhead activities, Mr Van der Kruys said he does not do anything above his head as raising his arm gives him too much pain.  He said there is not much in the house that is over his head.  He does everything at waist or chest height.  He said that he can raise his arms with difficulty.  His evidence to the SSAT was similar in that he cannot hang his washing due to pain.  He can access overhead cupboards but he is very tall.  He can manage to raise something light above his head but not on a repetitive basis.

5. The corroborating evidence of Dr Navani, confirmed in a discussion with the HPAU, is that Mr Van Der Kruys is able to raise his arms above his head but he is unable to sustain this position.

6. Descriptor 1(a) for 20 points requires a person to be unable to perform any overhead activities.  The corroborated evidence is that Mr Van der Kruys is unable to sustain an activity over his head, not that he is unable to perform any activity over his head.  The evidence matches descriptor 1(a) for 10 points which requires that a person is unable to sustain overhead activities. 

7. I note also the provisions of section 11(3) of the Impairment Tables:

   When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely. Example: …. The rating can only be assigned where the person is generally able to do that activity whenever they attempt it.

8. From the corroborated evidence, I accept that Mr Van der Kruys is able to perform an overhead activity when he attempts to do so, however he is not able to sustain it.

9. In considering the activities of descriptors 1(b), (c) and (d), I find no corroborated evidence to satisfy the specified requirements.

10. After considering the evidence, I find that the impairment from Mr Van der Kruys’ cervical spine condition does not satisfy the requirements for 20 points under Table 4.  Accordingly I find that the condition attracts a rating of 10 points.

    Depression

11. In the Claimant’s Submissions, Mr Czarnota submits that given the severity of [the Applicant’s] psychiatric condition and the indefinite nature of his future treatment needs, his condition ought be considered permanent.

12. Section 6 of the Impairment Tables requires a condition to be fully diagnosed, fully treated and fully stabilised for it to be permanent.

13. The Introduction to Table 5 – Mental Health Function requires the diagnosis of the condition to 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 by a psychiatrist.) 

14. In determining whether this condition is fully diagnosed, I note the report of Dr Michael Epstein dated 2 April 2013 (Exhibit A9), which records his opinion that Michael Henricus Vander Kruys has developed a chronic depressive disorder.  I accept that Dr Epstein is an appropriately qualified medical practitioner and that Mr Van der Kruys’ mental health condition has been fully diagnosed.

15. In considering whether the condition has been fully treated and stabilised, I note the following reports:

    ·Dr Navani dated 2 August 2012 (Exhibit A5) which records:

    He has received psychological counselling in the past and been treated with Anti-depressants;

    ·Dr Epstein dated 2 April 2013 (Exhibit A9) which records:

    He has not had any ongoing psychiatric or psychological treatment but in my view could well benefit from such treatment.  There is a family history of depression and he may require psychiatric assessment and ongoing review with regard to medication;

    ·HPAU Opinion dated 3 December 2014 which records:

    During the phone discussion with Dr Navani, he reported that the psychological condition is not the main issue currently, it is managed with medication and no other treatment from a psychologist or psychiatrist of late;

    ·Dr Epstein dated 24 February 2016 (Exhibit A12) which records:

    He has not had any psychiatric or psychological treatment or counselling since I last saw him.

    …

    Michael Henricus Vander Kruys has a persistent depressive disorder and symptoms of a Post Traumatic Stress Disorder.  It is now almost eight years since his accident with no evidence of any significant change despite a variety of treatments.  His condition appears to be stable and his prognosis for improvement is poor. 

    In my last report I recommended that he have psychiatric or psychological treatment.  Given the passage of time I think such treatment may prevent further deterioration but is unlikely to bring about any marked improvement.

16. The specialist evidence extant at the relevant date was that Mr Van der Kruys could well benefit from psychiatric or psychological treatment.  In December 2014, Dr Navani confirmed that Mr Van der Kruys had had no treatment from a psychologist or psychiatrist of late.  In his recent report, Dr Epstein confirmed that Mr Van der Kruys has not had any psychiatric or psychological treatment or counselling since his recommendation in April 2013.

17. In his recent report, Dr Epstein has changed his opinion regarding the need for further psychiatric or psychological treatment, however this opinion clearly relates to Mr Van der Kruys’ present condition.  There is no evidence that the revised opinion relates to the condition at the relevant date.

18. From the medical evidence I find that, at the relevant date, Mr Van der Kruys’ mental health condition was not fully treated.  As the condition was not fully treated at the relevant date it was not permanent in the terms of the Impairment Tables.  Accordingly, at the relevant date it could not be assessed for an impairment rating.

    Migraines

19. In the Secretary’s Statement of Facts and Contentions, the Respondent contends that the migraines were not fully diagnosed, treated and stabilised at the relevant date as Mr Van der Kruys had not sought appropriate specialist treatment for this condition.  No submissions regarding this condition were made on behalf of Mr Van der Kruys.

20. In considering whether the condition was fully diagnosed, treated and stabilised at the relevant date I note the following reports:

    ·Dr Navani dated 8 August 2014 which records chronic headaches as a symptom of the cervical injury;

    ·HPAU Opinion dated 3 December 2014which records:

    Dr Navani also mentions headaches and poor sleep relating to the ongoing pain associated with this condition.  Despite there being no specific specialist report relating to this it could be appropriate to consider a rating on Table 7 to account for impacts on concentration due to headaches relating to this condition;

    ·JCA Report dated 22 December 2014 which records:

    The client has some difficulty concentrating on complex tasks for more than 1 hour, due to recurrent headaches.  Headaches as a symptom and functional impact is confirmed in the most recent MR dated 8.9.14); and

    ·SSAT Reasons for Decision which records:

    Mr Van der Kruys also said he had migraine or tension headache every day … The general practitioner has told him he is suffering from migraines.  He has not seen any specialist about migraines.

21. The Introduction to Table 7 – Brain Function requires the diagnosis of the condition to be made by an appropriately qualified medical practitioner.  Dr Navani reports the presence of headaches as a symptom of the cervical injury.  However, in the medical material there is no diagnosis of migraine. I do not accept Dr Navani’s report as sufficient to meet the requirement for the condition to be diagnosed by an appropriately qualified medical practitioner.  Dr Navani is not qualified in the areas of neurological or cognitive functioning.  Further, Mr Van der Kruys has not been seen by a specialist for treatment for his migraines. 

22. I find that the condition of migraines is not fully diagnosed, nor fully treated and stabilised.  Accordingly, the condition is not permanent in the terms of the Impairment Tables and I cannot assign an impairment rating to this condition.

    Chronic Pain Syndrome

23. In the Applicant’s Submissions, Mr Czarnota refers the Tribunal to the provisions for chronic fatigue or pain contained in the Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension 2012.  However, section 27(3) of the Act provides that where an assessment notice has been given to a person in relation to assessing the person’s qualifications, the Secretary must apply the instrument in force at the date of the notice.  On the relevant date in this case the instrument in force is the Impairment Tables of 2011. 

24. Section 6(9) of the Impairment Tables provides:

    (9) There is no Table dealing specifically with pain and when assessing pain the following must be considered:

    (a) …

    (b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and

    (c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).

25. In this case there is no dispute that the chronic pain is relevant to Mr Van der Kruys’ cervical spine condition and his mental health condition.  I have found that the mental health condition is not fully treated and stabilised.  Accordingly I cannot make an assessment of the effects of chronic pain in relation to the mental health condition.

26. In assessing the effects of pain in relation to the cervical spine condition, I must take note of section 10(5) of the Impairment Tables, which provides:

    Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.

27. In regard to Mr Van der Kruys’ cervical spine condition, the evidence was that the impairment was due to the pain resulting from the use of his cervical spine.  That is, the cervical spine condition together with the resulting pain caused a combined impairment.  In assessing the combined impairment, I assigned a single rating to the common impairment using a single table, namely Table 4 – Spinal Function.

28. As I have already taken pain into account in determining a rating for the cervical spine condition, I cannot assign an additional rating for a chronic pain condition.

    Total Impairment Rating

29. For Mr Van der Kruys’ conditions at the relevant date, I have found the following:

    (a)Cervical Spine Condition – 10 impairment points under Table 4;

    (b)Depression – not fully treated and stabilized, unable to assign a rating;

    (c)Migraines – not fully diagnosed, treated and stabilized, unable to assign a rating; and

    (d)Chronic pain syndrome – assessed in combination with the cervical spine condition under Table 4.

30. I find that the total impairment rating at the relevant date is 10 impairment points.

    CONCLUSION

31. The total impairment rating at the relevant date is less than the 20 points required to satisfy section 94(1)(b) of the Act.  In order to satisfy section 94(1) of the Act, all of the sub-sections must be satisfied.  Mr Van der Kruys does not satisfy the requirements of section 94(1)(b) of the Act.  As a result, he cannot satisfy all the provisions of section 94(1) of the Act and there is no need for me to consider the other sub-sections of section 94(1) of the Act.

32. As a result, at the relevant date Mr Van der Kruys was not qualified to receive DSP.  Therefore the decision to cancel his DSP payments was correct and I find accordingly.

    DECISION

33. I affirm the reviewable decision.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member

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

Associate

Dated 3 May 2016

Date(s) of hearing	15 April 2016
Counsel for the Applicant	Mr PA Czarnota
Solicitors for the Applicant	Shine Lawyers
Advocate for the Respondent	Mr J Lessing
Solicitors for the Respondent	Spark Helmore