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

[2021] AATA 5346

Van Kordenoordt and Secretary, Department of Social Services (Social services second review) [2021] AATA 5346 (27 April 2021)

Division:GENERAL DIVISION

File Number(s):      2020/2715

Re:Jim Van Kordenoordt

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Brigadier A G Warner

Date:27/04/2021

Date of written reasons:        31/05/2021

Place:Perth

For the reasons given orally at the conclusion of the hearing of this matter on 27 April 2021, the Tribunal affirms the decision of the Social Services and Child Support Division of the Tribunal, made on 18 March 2020, that the Applicant did not qualify for a disability support pension.

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

Brigadier A G Warner AM LVO (Ret’d), Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – qualification period – whether Applicant’s impairments were fully diagnosed, fully treated and fully stabilised at the qualification period – whether Applicant’s impairments attract 20 points under Impairment Tables – whether Applicant has a continuing inability to work – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) – ss 94, 94(1)(a), 94(1)(b), 94(1)(c)

Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1991 (Cth)

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

REASONS FOR DECISION

Brigadier A G Warner

31/05/2021

INTRODUCTION

1. On 27 April 2021, the Tribunal, at the conclusion of a hearing held that day, gave oral reasons for its decision to affirm the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 18 March 2020. That decision affirmed an earlier decision of the Department of Social Services (the Respondent) to reject the Applicant’s claim for disability support pension (DSP), which he had lodged on 24 February 2019.

2. The Applicant was self-represented, attended the hearing by telephone conference and gave evidence on affirmation. The Respondent was represented by Ms Jasmine Forsyth of Mills Oakley Lawyers, also by telephone conference.

3. The Applicant subsequently requested a written statement of reasons for the decision. The written reasons which follow are distilled from the edited transcript of the oral reasons given at the hearing on 27 April 2021.

4. At the outset, the Tribunal records that the Applicant is genuine and honest, and the Tribunal expresses its sympathy with the difficult circumstances he faces because of his medical conditions.

   BACKGROUND

5. The background facts are laid out in some detail at paragraphs 14 to 18 of Exhibit R1 and are not in dispute. Key elements are as follows:

   (a)On 24 February 2019, the Applicant lodged his claim for DSP (T27). Dr Craig Berg, the Applicant’s general practitioner (Dr Berg) provided a number of medical reports dated 11 April 2019 (T29/150), 30 April 2019 (T30/151-158), 4 June 2019 (T32/165), 3 October 2019 (T34/168), and a medical certificate dated 22 October 2019 (T35/169), in support of the Applicant’s claim.

   (b)A job capacity assessment (JCA) was completed in October 2019 and a report subsequently produced (JCA report) (T36). The JCA report recommended that

   (i)the Applicant’s bipolar affective disorder was fully diagnosed, but not fully treated or stabilised;

   (ii)that the Applicant’s right ankle injury was fully diagnosed, fully treated, and fully  stabilised, and the functional impact arising from this condition attracted an impairment rating of 10 points under the Impairment Tables; and

   (iii)that the Applicant had a work capacity of 15 to 22 hours per week within two years, with appropriate interventions, doing light less-skilled work.

   (c)On 1 November 2019, a delegate of the Respondent advised that the Applicant’s claim for DSP was rejected, because the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables and therefore, the delegate had made the decision not to approve DSP payments (the Original Decision) (T37/178).

   (d)The Applicant requested a review of that decision, and on 29 November 2019 an authorised review officer (ARO) of the Department affirmed the original decision (T38/180-187).

   (e)On 5 February 2020, the Applicant lodged an application for review of the Original Decision with the AAT1. Subsequent to that application, the Applicant’s Dr Berg provided a medical report dated 18 February 2020 from Dr Simon Tawasu (Dr Tawasu), a consultant psychiatrist, who prepared his report with regard to the Applicant’s mental health condition (T41/191-193).

   (f)On 18 March 2020, the AAT1 affirmed the Original Decision and concluded the following:

   (i)that the impairment arising from the Applicant’s ankle condition attracted 10 points under Impairment Table 3;

   (ii)that the Applicant’s Bipolar Affective Disorder (Bipolar) attracted 10 points under Impairment Table 5; and

   (iii)that the Applicant had not fulfilled the requirement for a program of support, and therefore did not have a continuing inability to work (CITW) (T2/3-11).

   (g)The Applicant then applied to this Tribunal on 9 June 2020 (T1), and in his application he claimed the decision to reject his DSP was wrong for the following reason (T1/2):

   I don’t understand how the Administrative Appeals Tribunal and Centrelink can make a decision on my capacity and future without the experience and knowledge of an orthopaedic surgeon, pain specialist, psychiatrist, and general practitioner hearing me, but not listening to the pain and struggle of everyday life.

   ISSUE

6. The Tribunal must therefore decide whether at the date of the claim for DSP, that is 24 February 2019, or within 13 weeks of that date, the Applicant had

   ·any physical, intellectual or psychiatric impairments;

   ·if so, whether the impairments attract an impairment rating of at least 20 points under the 20 impairment tables; and

   ·if so, whether the Applicant had a CITW.

   LEGISLATION

7. The statutory provisions relevant to this review are contained in the Social Security Act 1991 (the Act); the Social Security (Administration) Act 1999 (the Administration Act); the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables Determination); and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination). The relevant provisions in the Act, to which the Tribunal must have regard were laid out comprehensively in Exhibit R1 at paras 21 to 37.

8. Apart from the age and residency qualification criteria contained in paras 94(1)(d), (e) and (ea) of the Act, the primary requirements that must be met in order to qualify for DSP are that the Applicant has:

   (a)a physical, intellectual or psychiatric impairment; and

   (b)an impairment of 20 points or more under the Impairment Tables; and

   (c)a continuing inability to work.

9. During the hearing the Tribunal also summarised the requirements for DSP, as follows (Transcript, pp 2-3):

   Section 94 of the Act sets out the first requirement for qualification for the DSP, and that is that a person had an impairment at the time they lodged their claim. The second requirement for DSP is also in s 94 and provides that a person’s impairment must rate 20 or more points against the Impairment Tables at the time they lodged their claim. To apply the Impairment Tables, the condition or impairment must be considered permanent; and in the [POS Determination], the word ‘permanent’ does not have its usual meaning.

   For DSP purposes, for a condition to be ‘permanent’ it must have been fully diagnosed by an appropriately qualified medical practitioner and have been fully treated, be fully stabilised, and likely to last for more than two years. There is also a requirement that an applicant for DSP must have a CITW pursuant to s 94(1)(c) of the Act. For DSP qualification both the minimum qualifying impairment threshold of 20 points and the CITW criteria must be met, and are of equal importance.

   EVIDENCE

10. The Tribunal had before it the following evidence:

    ·Letter of Dr Craig Berg dated 8 April 2021 (Exhibit A1);

    ·Letter of Brock Downing, atWork Australia Armadale dated 9 September 2021 (Exhibit A2);

    ·Letter of Dr Craig Berg dated 7 September 2021 (Exhibit A3);

    ·Secretary’s Statement of Issues, Facts & Contentions dated 9 October 2020 (Exhibit R1);

    ·Secretary’s Statement of Issues dated 13 August (Exhibit R2);

    ·the ‘T-Documents’ (T1-T44, pp1-251) (T-Docs); and

    ·the oral evidence of the Applicant.

    CONSIDERATION

11. The Respondent accepts that the Applicant has impairments and that he therefore satisfies s 94(1)(a) of the Act (Exhibit R1, para 40). However, the Respondent contends that the Applicant does not satisfy s 94(1)(b), as the overall impairment rating arising from his fully diagnosed, treated and stabilised (FDTS) condition is only 10 points (Exhibit R1, para 57).

    Qualification Period

12. The Applicant’s claim for DSP must be assessed on his medical conditions as at the date of claim, or within 13 weeks of that time (the Qualification Period). In this case, the Applicant’s qualification period is from 24 February 2019 to 26 May 2019.

13. The Respondent relevantly cites a number of authorities, which establish that medical reports originating after the qualification period will only be relevant to the extent that they refer to the claimant’s condition during the qualification period, and that a decision-maker such as this Tribunal can only consider an applicant’s application or eligibility for DSP during the Qualification Period (Exhibit R1, paras 23-26). If an applicant’s circumstances have changed subsequent to the Qualification Period, it may be appropriate for the applicant to lodge a fresh claim for DSP.

    Does the Applicant have a physical, intellectual or psychiatric impairment?

14. In a medical report dated 11 April 2019 (T29/150), Dr Berg identified that the Applicant suffers from Bipolar and long-term pain and impaired function related to his ankle, complicated by reflex sympathetic dystrophy and accelerated arthritis (the ankle condition). Dr Berg later confirmed that it is the Applicant’s right ankle (T30/154).
    The Respondent accepts that the Applicant has impairments and therefore satisfies s 94(1)(a) of the Act.

15. Having regard to the medical evidence before it, the Tribunal agrees that the Applicant does have an impairment recognised by s 94(1)(a) of the Act.

    Do the Applicant’s impairments attract 20 points or more under the Impairment Tables?

16. In order to determine the number of points the Applicant’s impairments may attract pursuant to s 94(1)(b) of the Act, the Tribunal must have regard to the Impairment Tables Determination and apply the relevant considerations.

    Ankle condition

17. The Tribunal looks firstly at the ankle condition. The Respondent accepts that this condition in respect of the right ankle is FDTS within the Qualification Period (Exhibit R1, para 41).  The evidence is that an orthopaedic surgeon in 2012 regarded the ankle condition as permanent; the ankle condition persists to the current time; the ankle condition is stable and not amenable to further treatment; and Dr Berg relates the Applicant’s chronic pain to the ankle fracture, arthritis and it being neuropathic (T32/165, T34/168).  Based on the evidence above, the Tribunal is satisfied that this ankle condition is FDTS.

18. The appropriate table within the Impairment Tables Determination for assessing impairment arising from the Applicant’s ankle condition is Table 3 - Lower Limb Function. The Respondent agrees with the opinion made by the AAT1 that the correct rating to assign to the Applicant’s ankle condition is 10 points (Exhibit R1, para 46).

19. However, the present review is de novo, and this Tribunal makes its own assessment afresh, having regard to the following evidence:

    (a)n a letter dated 11 April 2019, Dr Berg records that the Applicant suffers with long-term pain and walks with an arm crutch (T29/150).  In a subsequent report dated 30 April 2019, Dr Berg again records that the Applicant requires arm crutches to walk, and notes that chronic pain limits function and endurance (T30/155).  In a Centrelink medical certificate signed on 22 October 2019, Dr Berg notes the Applicant’s requirement to walk with a crutch or crutches arising from his chronic leg and ankle pain (T35/169).

    (b)The JCA report records that the Applicant both reported and was observed to be independent in his use of walking aids, and that assessment recommended an impairment rating of 10 points (T36/173).

    (c)In a further medical certificate dated 29 January 2020, Dr Berg records the symptoms of the ankle condition as chronic pain and mobility impairment (T39/188). 

    (d)The Centrelink Employment Services Assessment Report dated 21 May 2019 records the Applicant’s advice that he drives with his left foot due to his ankle condition(T31/163), and the Applicant confirmed this during the hearing.

    (e)At the the JCA on 31 October 2019, the Applicant stated that his vehicle has a sticker from the Australian Council for Rehabilitation of Disabled (ACROD), so he doesn’t have to walk far when he goes to the local shops or community facilities (T36/173).

    (f)The AAT1 decision on 18 March 2020 states that the Applicant told that Tribunal that he experiences some difficulty with household chores and receives some assistance from his sister and his neighbours. He experiences constant pain and altered sensation, which makes his right ankle feel unstable. As a result, he uses crutches to move around (T2/7). The Applicant told the current Tribunal that all of the activities that he engages in, like shopping, walking, walking with crutches, involves significant pain. He said that in addition to his crutches, he does have a wheelchair, and uses it when greater distances are involved.

20. Having regard to all of the evidence, the Tribunal has reviewed the Impairment Assessment Tables and is satisfied that the Applicant meets the descriptors within Table 3 for a ‘moderate functional impact on activities using the lower limbs’, and so assigns 10 points.

21. The Tribunal also considers the same evidence against the descriptors for a ‘severe functional impact on activities using the lower limbs’, which assigns 20 points, but there is no evidence that the Applicant’s ankle condition meets all of the relevant descriptors, which include being unable to do any of the following:

    ·to move around a shopping centre or supermarket;

    ·to walk from the car park into a shopping centre or supermarket, or

    ·to stand from a seated position;

    without the assistance of other people.

22. Accordingly, the Tribunal is precluded from assigning the Applicant’s ankle condition a higher impairment rating.

    Bipolar

23. The appropriate table within the Impairment Tables Determination for assessing impairment arising from the Applicant’s ankle condition is Table 5, Mental Health Function.

24. For DSP purposes the introduction to Table 5 requires that the diagnosis of a condition such as Bipolar must be made by an appropriately qualified medical practitioner(this includes a psychiatrist). Dr Tawasu (see para 5.e above) is a psychiatrist and is therefore appropriately qualified to provide a diagnosis pursuant to that requirement.

25. In a medical report dated 18 February 2020 Dr Tawasu records that the Applicant has a history of mental illness dating back to 2012 and presently suffers from Bipolar, which is consistent with an earlier diagnosis provided by the Stirling Mental Health Service (T41/193). The Respondent accepts that the Applicant’s Bipolar is fully diagnosed, and on the basis of Dr Tawasu’s position, the Tribunal agrees. However, the Respondent contends that the Applicant’s bipolar was not fully treated or fully stabilised at the end of the qualification period (Exhibit R1, para 52).

26. The rules for applying the Impairment Tables Determination, to determine if a condition is fully diagnosed and fully treated, provide as follows:[1]

    In determining whether a condition has been fully diagnosed and fully treated, the following must be considered:

    (a)whether there is corroborating evidence of the condition;

    (b)what treatment or 20 rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or is planned in the next two years.

    [1] Impairment Tables Determination s 6(5).

27. To determine whether a condition is fully stabilised, the rules state:[2]

    (a)either a person has undertaken reasonable treatment for the condition, and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the two years; or

    (b)the person has not undertaken reasonable treatment for the condition, and either:

    (i)     significant functional improvement to a level enabling the person to undertake work in the next two years Is not expected to result, even if the person undertakes the reasonable treatment; or 

    (ii)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.

    [2] Impairment Tables Determination s 6(6).

28. Applying these rules, the Tribunal considers the relevant evidence.

29. Dr Berg, in a report dated 30 April 2019, two months after the Applicant’s DSP claim was lodged, notes that the Applicant’s current treatment regime comprises lithium sulphate tablets, and that he ‘has been referred to the mental health team’.  Dr Berg records that the Applicant is usually compliant with recommended treatments, but that during manic episodes he lacked insight and was non-compliant (T30/153).

30. In letters dated 4 June 2019 and 3 October 2019 (T32/165, T34/168) Dr Berg writes that the Bipolar causes long-term anxiety and depression symptoms as well as ‘episodic manic episodes’. In that correspondence Dr Berg does not reference the qualification period and does not detail treatment during the qualification period or at the time of those letters; nor does he provide any update on his referral of the Applicant to the mental health team.

31. In a medical certificate dated 29 January 2020 (T39/188), Dr Berg states that the Applicant’s compliance with his lithium medication is limited to some extent by cost of medication. He further states that the Applicant was seen by the specialist mental health clinic on 16 January 2020 and had commenced a 10-week assessment program. Dr Berg wrote that he was awaiting formal psychiatric assessment for more details of the Applicant’s condition.

32. The Tribunal also has regard to the Respondent’s relevant and accurate reference to Dr Tawasu’s report of 18 February 2020. Dr Tawusu reports that the Applicant had ‘trialled several different treatment modalities in the past’, including psychotherapy, medications, and case management. In Dr Tawasu’s opinion the Applicant was ‘now fully treated and stable on the current medications’, and ‘probably at his baseline functions; and it is to be expected 20 that volatilities will come in terms of stressors due to his personality configuration and non-adherence with medication’(T41/192). 

33. Dr Tawasu goes on to note that the Applicant had ‘been on lithium for four years before he stopped’, and that his condition is complicated by non-adherence to 25 medications, amongst other things. The Applicant agreed to recommence taking lithium after Dr Tawasu gave him a pharmacy exemption. However, the Applicant did not restart the medication, and at the time of writing Dr Tawasu’s report, he was no longer willing to engage with the Armadale Mental Health Service (T41/193).

1. In his 18 February 2020 report, Dr Tawasu does not say that the Bipolar was fully treated and stabilised during the Qualification Period.  Rather, he refers to the date of his letter, which is almost nine months later.

2. In responding to Dr Tawasu’s report during the hearing, the Applicant said that only his first prescription from Dr Tawasu was free and that he was asked to pay for a subsequent prescription. The Applicant also denied being unwilling to engage with the Armadale Mental Health Service, rather he claimed that Dr Tawasu said he did not need to continue. He also contested the claim of non-adherence to medication, telling the Tribunal that in conjunction with Dr Berg, his general practitioner, he took the medication when he needed it (Transcript, p7).

3. Like the Respondent, the Tribunal accepts that the Applicant’s Bipolar condition is longstanding. However, on the basis of the evidence provided, the Tribunal is unable to conclude that it was fully treated and stabilised as at the end of the Qualification Period. It therefore cannot be assigned points under the Impairment Tables.

   Other conditions

4. For completeness, the Tribunal notes Dr Berg’s advice dated 7 September 2020 (Exhibit A3) that the Applicant recently had a flare of bilateral elbow pain due to his crutches, and had bilateral steroid injections that same day. In the absence of any earlier relevant evidence, and the passage of time since the end of the qualification period, the Tribunal is unable to consider that condition further.

   Overall impairment rating

5. The Tribunal finds that the Applicant’s overall impairment rating for impairment arising from his ankle condition is 10 points, which does not satisfy s 94(1)(b) of the Act.

   CITW

6. Due to the cumulative nature of s 94(1) of the Act, if, as the Tribunal has found, the Applicant does not have an impairment rating of 20 points, he is not qualified for DSP, and consequently there is no requirement for the Tribunal to consider whether or not the Applicant has a CITW for the purposes of s 94(1)(c)(i). That said, the Tribunal notes and accepts the Respondent’s submissions at paras 58 to 76 of Exhibit R1.

7. In relation to participation in a program of support for the purposes of s 94(c)(ii), the Tribunal particularly notes the following evidence:

   (a)The Applicant had no engagement in a program of support in the three years prior to lodgement of this DSP claim (T66/284);

   (b)The Employment Services Assessment Report dated less than a week before the end of the Qualification Period recorded that the Applicant had not been referred for any programs of support and did not want to participate in one T31/163); and

   (c)The atWork Australia advice that the Applicant has engaged with that disability employment service in a program of support from 9 September 2020 (Exhibit A2).

   CONCLUSION

8. As the Applicant’s conditions did not attract an impairment rating of 20 points or more under the Impairment Tables, as at the end of the Qualification Period, they do not satisfy s 94(1)(b) of the Act and the Applicant’s claim for DSP must fail. It follows that the Original Decision, as affirmed by the AAT1 on 18 March 2020, is affirmed by this Tribunal.

   DECISION

9. For the reasons given orally at the conclusion of the hearing of this matter on 27 April 2021, the Tribunal affirms the decision of the Social Services and Child Support Division of the Tribunal made on 18 March 2020, that the Applicant did not qualify for a disability support pension.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner, AM LVO (Retd), Member

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

Associate

Dated: 31 May 2021

Date of hearing:	27 April 2021
Applicant:	Self-represented
Representative  for the Respondent:	Ms M Underhill, Mills Oakley Lawyers