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

[2021] AATA 1767

Walker and Secretary, Department of Social Services (Social services second review) [2021] AATA 1767 (16 June 2021)

Division:GENERAL DIVISION

File Number:          2019/3738

Re:Janine Walker

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date:16 June 2021

Place:Melbourne

The Tribunal affirms the decision under review.

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

Dr Damien Cremean, Senior Member

Catchwords

SOCIAL SECURITY – Disability Support Pension – several conditions including back injury – whether fully diagnosed, treated and stabilised – decision under review affirmed

Legislation

Social Security Act 1991 (Cth)

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

Cases

Newman and Secretary, Department of Family and Community Services [2002] AATA 917 Smalldon and Secretary, Department of Social Services [2015] AATA 2

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

16 June 2021

1. The Applicant, Ms Janine Walker, seeks a review of the decision made by the Social Services & Child Support Division of this Tribunal (“Tier 1”) on 24 May 2019 to affirm a decision made by an authorised review officer (“ARO”) of Services Australia, dated  6 March 2019. The ARO’s decision affirmed a decision rejecting the Applicant’s claim for Disability Support Pension (“DSP”), which the Applicant had made on 7 December 2018.

2. The hearing in this matter was conducted on 23 March 2021 by audio/visual link. The Applicant was self-represented. The Respondent was represented by Ms M Underhill, a lawyer from Mills Oakley Lawyer representing Services Australia.

3. The Applicant gave affirmed evidence as did Dr Brett Todhunter. Each was cross-examined. There was an interruption in the proceedings at one point when the Applicant indicated she no longer wished to participate. However, after a short break, the hearing resumed. 

   LEGISLATION

4. Eligibility for DSP is governed by s 94 of the Social Security Act 1991 (Cth) (“Act”) which relevantly provides:

   (1) A person is qualified for disability support pension if:

   (a) the person has a physical, intellectual or psychiatric impairment; and

   (b) the person’s impairment is of 20 points or more under the Impairment Tables; and

   (c) one of the following applies:

   (i)  the person has a continuing inability to work;

   (ii)  the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;…

   ISSUES

5. It is not in dispute that the Applicant satisfies s 94(1)(a) of the Act.

6. It is in dispute however, whether the Applicant satisfies s 94(1)(b) of the Act. This raises the sub-issues of whether, during the qualification period (which was from 12 October 2018 to 12 January 2019), the Applicant’s conditions were fully diagnosed, treated and stabilised, and whether they attracted an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for DisabilitySupport Pension) Determination 2011 (Cth) (“Impairment Tables”).

7. The requirement that any condition of his must be fully diagnosed, treated and stabilised
   – that is, must be permanent – arises under paragraphs 6(3) to (7) of the Impairment Tables.

8. Paragraph 6(3)(a) of the Impairment Tables provides that an impairment rating
   (for the purposes of s 94(1)(b) of the Act) can only be assigned if the condition causing that impairment is permanent. Pursuant to paragraph 6(3)(b) of the Impairment Tables, it also must be a condition that is more likely than not to persist for more than two years.

9. The next issue is whether, if the Applicant satisfies s 94(1)(b) of the Act, she also satisfies
   s 94(1)(c) of the Act.

10. The decision under review must be affirmed if the Applicant does not satisfy
    ss 94(1)(b) and/or (1) (c) of the Act.

    CONTENTIONS

11. The Applicant contends in her application, that the decision of Tier 1 is one where “Medical letters [were] omitted during the decision process and further medical information has been obtained”.

12. She contends therefore, that the decision under review should be set aside.

13. The Respondent contends that the Applicant does not satisfy s 94(1)(b) of the Act or, even if she does, she does not satisfy s 94(1)(c) of the Act.

14. The Respondent contends therefore, that the decision under review should be affirmed.

    APPLICANT’S EVIDENCE

15. The Applicant gave evidence from her mother’s residence (her mother being “not well” in having had a relapse of cancer) and said that she (the Applicant) is aged 55 years.

16. The Applicant said that after leaving school she worked with horses and in take-away food shops — “I did a bit of everything and anything back then”. However, in 2002 she qualified as an accountant via studies at University and has been working as a tax agent. She said she had been doing office work “since the late 90’s..”.

17. The Applicant said she is single and living on her own. However, she has three children –the youngest being 28 years. She has no life partner, but she does have friends who come over to her house to help with the housework.

18. The Applicant said she takes a number of tablets each day – “I’m on tablets at night, which are downers you might as well say, I have tablets of a morning which are uppers…”.Then she said – “I’m on tablets to keep me sane during the day …”. Other issues arising with all her medications she mentioned were “weight gain [and] concentration”.

19. The Applicant said a major concern was her back, but she was also relying upon sleep apnoea and mental health issues. She indicated she would not be relying on her knee condition. She said that while “it’s very hard to explain” her “impairment” comes from all the medication she takes — “I cannot sit for long, I can’t stand for long and it’s been documented”.

20. The Applicant then gave evidence concerning various incapacities she claimed arise from her conditions – especially with regards to her back.

21. The Applicant was then taken to her mental state and happened to mention
    at the outset she had lodged another DSP claim which had been rejected but was heading the way of the Tribunal. That circumstance makes no difference to me reaching my decision in this case.

22. The Applicant said in support, that she was relying on the report of Dr Kishnen, who she said was a psychiatrist thereby disagreeing with a finding by Tier 1. She said Dr Kishnen is a psychiatrist “in her country” but in Australia “she was a registrar ...also working under a fully qualified one from adult mental health”. She said Dr Kishnen “would have had to have spoken to her overseeing psychiatrist to talk about what she said before she could write the report”.

23. The Applicant then mentioned that during the qualification period she made “two suicide attempts in that 13-week gap”. She added — “Massive depression”. She said on both occasions, she had deliberately “overdosed on my [prescribed] medications”

24. She concluded her evidence in chief by saying, “I’m on uppers, I’m on downers and stuff to keep me sane through the day”. She said, “I can’t sleep, I have insomnia”. Sometimes, she said, “even having sleeping tablets and all my medications to sleep at night, don’t work”. She said, “to be honest right now…I smoke weed because the medications aren’t working that good”. She said — “What a life. I can’t sit, I can’t stand, I can’t work”.

25. In cross examination, the Applicant in clarification of her contentions said she wanted her sleep disorder to be assigned points under the Impairment Tables and she mentioned “all the reports and everything from my doctor” and specifically mentioned a report of
    Dr Sweeter. She said, “they were never taken into consideration in the tables when all this first started”. She indicated her view that her sleep disorder and her mental health condition should both be included in her claim.

26. The Applicant said she considered her mental health condition was “stable”, despite her two suicide attempts taking place during the qualification period. She said, “what do you expect when you don’t take your tablets because you believe there’s nothing wrong with you”. She agreed however, that at this time she was “going through” a break up of a relationship. She agreed also that she was having difficulties with the greyhound authority and when asked whether this and the break up affected her quite profoundly, she answered — “Well having $95,000 taken away from you, what would you expect?”.

27. The Applicant agreed in cross examination that various things were happening to her at the time (including “ongoing pain, emotional pain relating to a relationship breakdown, other trauma concerning [my] animals, not taking [my] medication”) and said, “Well it probably was with not being able to lead a normal life which was the reason for my partner to leave because of my moods and everything”; she added “My meds and my pain”. Consequently, she agreed that at the time she was spiralling — "With everything. Moods, back pain. Can’t do what I normally do”.

28. Under cross-examination, the Applicant mentioned various medications she was taking including Neurontin and Modafinil. Reference was made to change in dosages of the latter (increasing in 2018, at about the time of her claim, up to 900 mg per day) but the Applicant said “just because my medications change doesn’t mean that I’m not fully diagnosed, not fully treated and fully stabilised”. She added “just because medications have to be adjusted doesn’t mean that it’s not stabilised”.

29. In re-examination and in clarification, the Applicant explained, “I’m in pain, I can’t do a lot of stuff, my brain is fuzzy, I cannot concentrate on my normal work …”.

    MEDICAL EVIDENCE

30. Dr Brett Todhunter, a medical practitioner from Albury, practising as a pain management specialist, was called by the Respondent to give evidence.

31. He said he had seen the Applicant only intermittently and that she never had a regular appointment. He said he met with the Applicant especially about her back pain and several procedures were carried out including spinal cord stimulation where “electrodes are placed in the spinal canal to stimulate posterior tacita spinal cord to reduce pain signals reaching the brain”.

32. Dr Todhunter said he last saw the Applicant on 15 December 2020 and before that on 23 March 2020. He said her lower back pain has been her “primary pain complaint”, but he said the Applicant’s implant had “significantly” reduced her pain.

33. As to the Applicant’s capacity to return to work, Dr Todhunter indicated that in her case “It’s not purely a pain-related thing” in that she also has “psychological and mental health disorders which also [contribute] to her ability to concentrate and attend work”.

    CONSIDERATION

    Section 94(1)(a)

34. I have noted it is not in issue that the Applicant satisfies s 94(1)(a) of the Act.

35. I am satisfied that is properly not in issue.

    Section 94(1)(b)

36. I am not satisfied, however, that the Applicant meets the requirement in s 94(1)(b) of the Act. That is to say, I am not satisfied that the Applicant’s conditions can be allocated at least 20 points or any points at all under the Impairment Tables.

37. In reaching my decision I have considered carefully the written Submissions filed by the Applicant subsequent to the hearing, in response to those of the Respondent. I have also considered those of the Respondent.

    (a) Back Condition

38. I am not in any doubt that the Applicant has suffered greatly because of her back condition. She is very anguished. That condition appears to be centred on L4, L5 and S1 levels. The resultant pain has significantly interfered with the Applicant’s daily living and enjoyment of life. For example, it has affected her ability to work and even to be physically at work and to follow her interest of riding horses.

39. The evidence of Dr Todhunter is quite plainly to the effect that the Applicant’s back pain has been most debilitating. She is at the serious stage where she has needed to undergo spinal cord stimulation involving the implantation of electrodes to give her relief. Dr Todhunter said that the device fortunately has “significantly” reduced her pain.

40. I consider that Tier 1 analysed the evidence clearly and in a balanced way and I am unable to agree with the Applicant that Tier 1’s decision omits relevant medical evidence. I note that Tier 1 referred in particular to the Medical Certificates of Dr Dimantha Cooray dated
    1 August 2018 and 21 August 2018 and to a medical report of Dr Michael Ogungbe dated 21 December 2018.

41. Having said that though, the evidence of Dr Todhunter (who did not give evidence before Tier 1) made it clear, I consider, that as at the date of the qualification period the Applicant’s back condition cannot be said to be an impairment which is “permanent” as that expression is understood under the Act. In this regard, I cannot agree with the findings of Tier 1, but I do in fact agree with the Closing Submissions of the Respondent.

42. Relying upon the evidence of Dr Todhunter, it is apparent that at the time of the qualification period, further treatment by way of a pain management program was under consideration. Dr Todhunter said in evidence that, “I’ve suggested that Janine at least access an online pain program at mindspot.org.au at some stage in the recent past”. He said that as a result of pain management programs, “people do have improved function and less distress”.

43. I regard pain management as a relevant form of medical treatment. I agree with the observations of Member Denovan in Smalldon and Secretary, Department of Social Services [2015] AATA 2 at [16] that, as regards impairments relating to pain, it is “inappropriate to regard any of her conditions as permanent until [an applicant] has at least completed a course of pain management…”. I consider I am supported also by the ruling of Member Carstairs in Newman and Secretary, Department of Family and Community Services [2002] AATA 917 at [31]-[32] who said that the Tribunal cannot be satisfied “where treating doctors have recommended a course of pain management program and this has not occurred, that the requirements of the Act can be met”.

44. Because I do not regard the Applicant’s back condition as fully treated, it follows, I cannot regard it as permanent in the prescribed sense within the qualification period.

45. Therefore, I am unable to assign that condition any points under the Impairment Tables.

    (b) Depression and Anxiety

46. Tier 1 found that the Applicant’s mental health condition was not fully diagnosed treated or stabilised and therefore, could not be assigned any rating under the Impairment Tables.

47. The Applicant had relied upon a report of Dr Vinodhini Krishnan dated 24 December 2018, and one issue raised in Tier 1’s reasons was whether Dr Krishnan was indeed a psychiatrist under Australian law.

48. The Applicant argues that Dr Krishnan is a psychiatrist and I am prepared to assume this is so even though Dr Krishnan it seems, although qualified overseas, may not have been strictly registered as such in Australia. It seems that Dr Krishnan was working under the supervision of an Australian registered psychiatrist.

49. However, as has been pointed out, during the qualification period, the Applicant engaged in two suicide attempts by overdosing on her prescribed medications and was hospitalised on both occasions. The last occasion apparently was in December 2018 close to the end of the qualification period.

50. In such circumstances, I consider that I am unable reasonably to make a finding that the Applicant’s mental health condition was fully stabilised either during or at the end of that period. Attempts at suicide plainly indicate that the Applicant’s mental health condition was not, at the time, under control and was for that reason not fully stabilised as required.

51. This means I am unable to make a finding that her depression and anxiety were “permanent” in the way required under the Act, by virtue of the Impairment Tables.

52. It follows that I am unable to assign the Applicant any points in respect of her mental health condition under Table 5.

    (c) Sleep Condition

53. The Applicant argues that her sleep disorder was fully diagnosed treated and stabilised as at the time of the qualification period.

54. The Applicant relies on reports of Dr John Swieca, a sleep disorders physician dated variously between 7 December 2016 and 23 April 2020.

55. In evidence, the Applicant said she is taking Gabapentin 900 mg at night to sleep (with anti-depressant Duloxetine 60 mg x 2) and Modafinil 200 mg x2) (or 3) to enable her to stay awake during the day.

56. I have no doubt that the Applicant does have a serious sleep disorder but what I have to decide is whether it is “permanent” in the restricted sense of that word during the qualification period.

57. I do not consider I should rely on Dr Swieca’s report of 23 April 2020. That is over two years after the qualification period.

58. I do agree with the Respondent though, that the report of his which has the closest proximity to that period is dated 25 May 2018. Even that report however, is barely indicative of anything of relevance during the period which started nearly 18 months later.

59. That report indicates that the Applicant’s CPAP usage had “dropped off significantly in recent times”. However, I consider that report itself is too distant from the qualification period to be relied upon.

60. In all the circumstances, I do not consider I am in a position to make any finding either that the Applicant’s sleep disorder was or was not permanent as at the time of the qualification period. That is, I am unable to find it was or was not fully diagnosed, treated or stabilised.

61. The medical evidence for the qualification period is simply lacking.

62. I am therefore unable to make a finding that during the qualification period the Applicant's sleep disorder was “permanent” as defined for the purposes of the Act.

    (d) Knee Condition

63. The Applicant, in evidence, expressly said she was not relying on her knee condition and I rely upon that as justifying not making any findings in relation to it.

    Summary

64. For the reasons I have given I am unable to make any finding that the Applicant satisfies
    s 94(1)(b) of the Act

    Section 94(1)(c)

65. Being unable to find the Applicant satisfies s 94(1)(b) of the Act, the question whether she satisfies s 94(1)(c) does not arise.

    CONCLUSION

66. The Tribunal must therefore affirm the decision under review.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of
Dr Damien  Cremean, Senior Member

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

Associate

Dated: 16 June 2021

Date of hearing:	22 March 2021
Applicant:	Self-represented
Solicitor for the Respondent:	Mills Oakley Lawyers