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

[2021] AATA 1036

Walker and Secretary, Department of Social Services (Social services second review) [2021] AATA 1036 (28 April 2021)

Division:GENERAL DIVISION

File Number:          2020/6145

Re:Gary Walker

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date:28 April 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)

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

28 April 2021

1. The Applicant, Mr Walker, seeks a review of the decision made by the Social Services & Child Support Division of this Tribunal (“Tier 1”) on 15 September 2020 to affirm a decision made by an authorised review officer (“ARO”) of Services Australia, dated 21 July 2020. The ARO’s decision affirmed a decision rejecting the Applicant’s claim for Disability Support Pension (“DSP”), which the Applicant had made on 23 October 2019.

2. The hearing in this matter was conducted on 4 February 2021 by telephone. The Applicant was self-represented. The Respondent was represented by Ms J Edwards, a lawyer from Services Australia.

3. The Applicant gave affirmed evidence and neither he nor the Respondent called any witnesses. 

   LEGISLATION

4. Eligibility for DSP is governed by s 94(1) 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; and…

   ISSUES

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

6. The first issue in the case is 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 23 October 2019 to 22 January 2020), 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. By 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, he 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 (c) of the Act.

    CONTENTIONS

11. The Applicant contends in his application that the decision of Tier 1 is one “not matching medical evidence”. He mentioned reports of Dr Brown, dated 31 January 2020,

    
    

    Dr A Freeman, dated 1 December 2020, and Dr D McNeill, dated 21 January 2021, in support of his contention.

12. He 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 he does, 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 that he is aged 47 years.

16. The Applicant said he left high school in 1991, having completed Year 12. After school, he worked in a number of jobs, including in retail and in factories, and last worked as a house painter.

17. The Applicant said he has a brother and a sister but is estranged from them. He has no life partner or children.

18. The Applicant said he regarded the decision under review as contrary to the evidence because: “I’ve got four years of doctors’ reports which has cost taxpayers thousands of dollars and every single report has been conclusive from the time that I’ve been diagnosed with this problem that I have”.

19. The Applicant said: “everything is conclusive of the injury I’ve got and the facts stand that I’m disabled and incapacitated from working certain amount of hours and all the rest of it… your criteria you have there said”. He said he put his condition down to an injury he suffered in July 2017, when house painting. He said: “I got a spinal injury” and “I guess it was from doing too much physical… to make that happen”. He explained that: “I gather it was from doing too much physical activity at my back at the time or whatever cause that happened”. But then he said: “I really don’t know how it happened”, and added, “[i]t was probably from just doing too much activity on my back”.

20. The Applicant referred to the reports he mentioned, including Dr Brown’s report, dated

    
    

    31 January 2020, and said he had not been able to do a program of support because of his condition. He said: “I’ve got a stack of paperwork from my GPs explaining why I haven’t been able to attend those sessions and do that”. In fact, however, it appears that the Applicant had attended 57 days of a program of support before lodging his claim.

21. The Applicant said that, during the 13-week qualification period from

    
    

    23 October 2019, he had been in a wheelchair, stating: “I’m wheelchair bound”.

22. The Applicant said that, during that period, his condition was as “the doctors have written”. He said: “I can’t do anything”, and that he suffers “[c]hronic pain”. That pain, he said, is felt “[t]hrough the spinal cord, shoulders – it affects the whole body – the shoulders and back”. He said he is taking medication for the pain and “I can’t really walk or do anything like that”. He said it is “impossible for me to do anything at the moment as far as physical stuff goes”. “I’m useless”, he said.

23. The Applicant said he considered that it was house painting that “[p]ossibly” contributed to his condition. Or, he said, “it was just a conglomeration of things and something went wrong”. His back, he said, is “in a serious way” and “I can’t do anything about it”. He described his back as “completely broken”.

24. The Applicant said he regarded the report from Dr McNeill (a practitioner at “Back in Motion”), dated 21 January 2021, as “probably the most conclusive evidence I’ve been able to get to date”.

25. The Applicant said he also suffers from “chronic fatigue”, “which means if I try and do anything my whole body can’t move – I become paralysed usually”. He said: “I can end up in bed for seven or eight days without any movement”.

26. Generally, the Applicant said of his condition, that it is “a very tough” one that he has to deal with. He said: “It’s probably tougher than just any condition that you’d want to think of, I can tell you”.

27. Under cross-examination, the Applicant said he does not own a car but sometimes hires one if he has to move to a new house. He said he had moved to new houses “five or six times over the four years”, “because I haven’t got an income, I can’t afford a place, I’ve – you know, I’ve been on the run”.

28. The Applicant said that, when he had moved to a new house, “[y]ou don’t even want to know about the sort of pain, the sort of pain I’ve had to endure over time”. He said: “I’m telling you, it’s not even worth going there”. He said he is suffering a condition “diagnosed as permanent”.

29. The Applicant agreed that he had not seen a neurosurgeon or a rheumatologist about his condition. As to the latter, however, he said that, from what he understood, “rheumatologists don’t deal with spinal conditions”. He said: “I don’t believe that antidepressants would help my situation”. He said he did some walking in the daytime, keeping “within what I’m capable of doing”.

30. In answer to questions from me, the Applicant said he was getting food “handouts from

    
    

    St Vinnies at the moment”. He said he does not smoke, drink alcohol, or take recreational drugs. He said he was presently living in shared accommodation, where “they [the owners, presumably] just jam as many people in … as they can”. He said he has a laptop and a lightweight electric scooter.

31. The Applicant said it was his “damn spine, that’s all it is”, which is impacting most on his ability to function. But he said that he was hoping he could get to a point “where I could possibly get back to school and study and try and get a qualification”. To do this, though, he said: “I need support … I mean, I’m just going down the gurgler”. He said: “I don’t want to stay on a disability support forever”. He indicated he might follow up studying in the music industry.

32. The Applicant indicated that his mental state “has lifted a lot since I’ve been getting the coronavirus money”. Though he said that he sometimes “couldn’t even breath”.

    CONSIDERATION

    Section 94(1)(a)

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

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

    Section 94(1)(b)

35. I am satisfied that the Applicant suffered injury to his back at work in or about July 2017 and that, since that time, he has been troubled by back pain and other related issues. I accept his evidence on this point.

36. I am not satisfied, however, that the Applicant satisfies 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 under the Impairment Tables.

37. I agree with the findings of Tier 1 in regard to the Applicant’s fibromyalgia and pain disorder.

38. 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 is one “not matching the medical evidence”.

39. There is no evidence before me by which it may be said that during the qualification period the Applicant’s condition was fully diagnosed, treated and stabilised. This includes the report of Dr A Freeman, dated 23 October 2019, which is inconclusive and merely comments that he “shows no signs of improving in the future”. It was on the basis of this report, in which Dr Freeman also says that the Applicant is “eligible for a disability support pension”, that the Applicant lodged his claim for DSP. This is not a matter for Dr Freeman to express any view on. Due to the expression of that view, the Applicant has been given false hope. In the same letter, Dr Freeman notes that the Applicant has been referred to a psychologist under a mental health plan.

40. In that same letter, Dr Freeman reports that the Applicant presents with “chronic generalised pain, including back pain” but at no place does she detail his condition any further than that. She does not identify what exactly his condition is.

41. An earlier report from Dr Freeman, dated 25 September 2019, is more detailed but gives “Unknown” as the prognosis.

42. A later report from Dr Freeman, dated 1 December 2020 (which is outside the qualification period), states that the Applicant has “scoliosis ans [sic] degenerative disc disease” and refers to him having been recommended an exercise program, nonsteroidal

    
    

    anti-inflammatory drugs and paracetamol.

43. In another, earlier report in the form of a Medical Certificate, dated 17 October 2018, Dr Freeman gives as the Applicant’s diagnosis: “L2/3 disc protrusion, L5/S1 disc disease”. Otherwise nothing else of note is stated in that report.

44. There are other reports before the Tribunal, including from Dr E Andreatta, osteopath, dated 25 August 2018; and from Dr T Siddiqui, dated 1 August 2018, which do not greatly inform me of the exact nature of the Applicant’s condition and whether I should regard it as fully treated and stabilised. Nor does the report of Dr M Keegan, dated 15 August 2018.

45. The report of Dr McNeill, dated 21 January 2021, provided by the Applicant, is also dated outside the qualification period and does not shed light on the Applicant’s condition during the qualification period. In any event, Dr McNeill comments on the Applicant’s failure to attend a session and says “[w]e were unable to reassess his progress during this window”.

46. A report from Dr H Power, dated 31 January 2020, relates to the Applicant’s mental state. It is also dated outside the qualification period. It does specifically address Table 5 of the Impairment Tables but goes on to state that “Mr Walker requires further sessions to support his psychological functioning due to the problems found in the assessment”; and that he is advised to contact EACH Community Health. In the report, Dr Power describes the Applicant as suffering a “Mood disorder due to a Medical Condition”.

47. As regards to the Applicant’s back condition and his mental health, I am unable to form the view that, in either case, the Applicant’s condition is fully diagnosed, treated and stabilised.

48. Even if I was to form a view that the Applicant’s back condition is fully diagnosed (as disc disease of some kind) as is his mental state (as a psychological condition of “[m]ood disorder”), I am unable to be satisfied on any of the evidence, in either case, that his condition is fully treated and fully stabilised.

49. That being so, I am unable to reach a point where I must consult the Impairment Tables in order to assign points.

50. This means that the Applicant cannot satisfy s 94(1)(b) of the Act, as I am unable to assign him 20 points or more under the Impairment Tables.

    Section 94 (1)(c)

51. Having formed the view that the Applicant does not satisfy s 94(1)(b) of the Act, it is unnecessary to say anything further about s 94(1)(c).

    CONCLUSION

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

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of
Dr Damien  Cremean, Senior Member

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Associate

Dated: 28 April 2021

Date of hearing:	4 February 2021
Applicant:	Self-represented
Solicitor for the Respondent:	Julie Edwards, Services Australia