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

[2016] AATA 970

Walker and Secretary, Department of Social Services (Social services second review) [2016] AATA 970 (30 November 2016)

Division	GENERAL DIVISION
File Number(s)	2016/1566
Re	Casey Walker
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President Dr P McDermott RFD
Date	30 November 2016
Place	Brisbane

I affirm the decision under review.

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

Deputy President Dr P McDermott RFD

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation of pension - requirement that the person’s impairment is of 20 points or more under the Impairment Tables not met – requirement that the person has a continuing inability to work not met – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) s 63

CASES

Freeman v Secretary, Department of Social Security (1988) 15 ALD 671

SECONDARY MATERIALS

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

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

30 November 2016

INTRODUCTION

1. Mrs Casey Walker (“the applicant”) seeks a review of a decision of the Social Services and Child Services Division of the Administrative Appeals Tribunal (“the SSCSD”) dated 8 March 2016, which affirmed the decision to cancel her disability support pension (“DSP”).[1] The counsel for the applicant asked the Tribunal to determine the application on the papers without the attendance of the applicant.

   [1] Exhibit A, T-Documents, T3.

   BACKGROUND

2. In September 2008, the applicant began receiving DSP payments in respect of physical and psychiatric impairments.[2]

   [2] Exhibit A, T-Documents, T32 at p. 166.

3. On 20 February 2015, the applicant was issued with a medical review form to review her qualification for DSP. On 4 March 2015, the applicant provided a medical review form which was completed by her general practitioner.[3] 

   [3] Exhibit A, T-Documents, T21.

4. In their report dated 20 July 2015, the job capacity assessors (“JCA”) recommended that the applicant’s irritable bowel syndrome be assigned 5 points under Table 13.[4] They did not recommend that an impairment rating be assigned to any of the applicant’s other conditions. The applicant was assessed as having a baseline work capacity of eight to 14 hours per week with an increased capacity of 15 to 22 hours per week within two years with intervention.[5]

   [4] Exhibit A, T-Documents, T28 at p. 117.

   [5]  Ibid at p. 119.

5. On 19 August 2015, the Department of Human Services (“the Department”) cancelled the applicant’s DSP because her impairment rating was assessed as being less than 20 points.[6] The applicant sought a review of the Department’s decision.

   [6] Exhibit A, T-Documents, T29.

6. On 14 September 2015, an authorised review officer (“ARO”) affirmed the decision under review.[7]  The applicant sought a review of the ARO’s decision.

   [7] Exhibit A, T-Documents, T32.

7. On 8 March 2016, the SSCSD affirmed the decision under review.[8] The SSCSD assigned the applicant a total impairment rating of 15 points. The SSCSD assessed the spinal condition rating 10 points under Table 4 and the applicant’s irritable bowel syndrome rating 5 points under Table 13.[9]

   [8] Exhibit A, T-Documents, T3.

   [9] Ibid.

8. On 29 March 2016, the applicant lodged an application for a review of the decision of the SSCSD with this Tribunal.[10]

   [10] Exhibit A, T-Documents, T2.

   LEGISLATION

9. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) sets out the criteria necessary to qualify for DSP. Whether or not the applicant has satisfied the criteria is to be assessed at the date that the original decision was made to cancel her DSP, that being 19 August 2015.[11]

   [11] See Freeman v Respondent, Department of Social Services (1988) 15 ALD 671 at 674.

10. The first criterion, set out under s 94(1)(a) of the Act, requires that the applicant has a physical, intellectual or psychiatric impairment.

11. The second criterion, set out under s 94(1)(b) of the Act, requires that the impairment be assigned an impairment rating of 20 points or more. This test is completed by reference to the Impairment Tables set out in Pt 3 of the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).

12. Section 6(3) of the Determination provides that an impairment can only be assigned an impairment rating if the condition causing the impairment is permanent and the impairment is likely to persist for more than two years. Section 6(4) of the Determination provides that a condition is permanent if it is fully diagnosed, treated and stabilised, and is likely to persist for more than two years.

13. The third criterion, set out under s 94(1)(c)(i) of the Act, requires that the applicant have a continuing inability to work. Section 94(2) provides that a person has a continuing inability to work because of an impairment if:

    (aa)  in a case where the person's impairment is not a severe

    
    

    impairment within the meaning of subsection (3B) or the person

    
    

    is a reviewed 2008-2011 DSP starter who has had an

    
    

    opportunity to participate in a program of support--the person

    
    

    has actively participated in a program of support within the

    
    

    meaning of subsection (3C), and the program of support was

    
    

    wholly or partly funded by the Commonwealth; and

    (a)  in all cases--the impairment is of itself sufficient to prevent the

    
    

    person from doing any work independently of a program of

    
    

    support within the next 2 years; and

    (b)  in all cases--either:

    (i)  the impairment is of itself sufficient to prevent the person

    
    

    from undertaking a training activity during the next 2 years;

    
    

    or

    (ii) if the impairment does not prevent the person from

    
    

    undertaking a training activity--such activity is unlikely

    
    

    (because of the impairment) to enable the person to do any

    
    

    work independently of a program of support within the next

    
    

    2 years.

14. I am not required to have regard to para (aa) if the applicant was receiving DSP and she received a notice under subs 63(2) or (4) of the Social Security (Administration) Act 1999 (Cth) in relation to assessing her qualification for that pension.[12]

    [12] See Social Security Act 1991 (Cth) s 94(3A).

15. Section 94(5) provides that the reference to “any work” is work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage and exists in Australia. Section 94(3)(b) provides that the availability of work in the applicant’s locally accessible labour market is to be disregarded in determining whether the applicant has a continuing inability to work.

16. Section 94(4) of the Act provides that the applicant is doing work “independently of a program of support” if the applicant is unlikely to need a program of support to do the work. Alternatively, the applicant is treated as doing work “independently of a program of support” if she is likely to need a program of support provided occasionally or that is not ongoing to do the work.

    CONSIDERATION

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

17. There is no issue that on the date of cancellation, 19 August 2015, the applicant had physical and psychiatric impairments for the purposes of s 94(1)(a) of the Act.

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

    Low back pain with sciatica

18. Dr Ash (“the treating doctor”) in his report dated 4 March 2015 reports that the applicant has constant back pain and sciatica.[13] The treatment that the applicant receives for the condition is listed as having Pristiq 100mg daily. This course of medication commenced in February 2015 at the time when the eligibility of the applicant to receive DSP was being reviewed. He reported that the applicant last had physiotherapy in 2009.[14]

    [13] Exhibit A, T-Documents, T21 at p. 97.

    [14] Ibid at p. 95.

19. I have to determine whether the applicant’s low back pain condition is permanent for the purposes of s 6(4) of the Determination in order for it to be assigned an impairment rating. While the applicant has a longstanding spinal condition there is no evidence that the condition can be regarded as being treated and stabilised as required by subs 6(4) and (5) of the Determination at the date of cancellation. In the treating doctor’s report of 4 March 2015, the treating doctor indicated that future planned treatment was referral to an orthopaedic unit of a hospital.[15] There was no indication that the applicant had received treatment from the hospital when the decision to cancel the applicant’s DSP was made.

    [15] Ibid at p. 96.

20. On 17 February 2016, the treating doctor advised the Department that there was a two to eight year waiting time at a public hospital for specialist opinion.[16] This letter raised the issue of whether reasonable treatment was available to the applicant. The SSCSD had regard to this letter in finding that the condition was fully treated and stabilised and therefore could be assigned an impairment rating.[17] However, it now appears that the applicant was able to obtain an appointment at the spinal clinic on 6 May 2016 and she had a physiotherapy consultation where she was provided with home exercises.[18] Having regard to this evidence, which was not available to the SSCSD, I cannot conclude that reasonable treatment was unavailable to the applicant.

    [16] Exhibit A, T-Documents, T35.

    [17] Exhibit A, T-Documents, T3 at p. 9.

    [18] Exhibit D, Respondent’s statement of facts, issues and contentions dated 2 September 2016 with attachments at attachment B.

21. The spinal condition cannot be regarded as fully treated and stabilised at the date of cancellation. The only evidence before me of the treatment provided to the applicant is that she attended the initial physiotherapy session at the hospital. There is no report from the hospital about her condition. The applicant was not present at the hearing nor was she called to give evidence by telephone about her treatment. I consider that the Health Professional Advisory Unit report dated 8 July 2015 is correct in forming the view that there is a need for multidisciplinary care in treating cases of chronic pain.[19] In the circumstances I cannot assign an impairment rating under Table 4.

    [19] Exhibit A, T-Documents, T27.

22. The introduction to Table 4 states that examples of corroborating evidence in regard to functional impairment include a report from a medical specialist confirming the diagnosis as well as a report from a physiotherapist or rehabilitation practitioner confirming loss of range of movement. There is no such evidence before me.

23. The treating doctor’s report of 2 September 2015 refers to the applicant having constant pain from the spinal condition.[20] If the applicant has been in constant pain there is no explanation why she had not received a course of treatment from a pain management clinic.

    [20] Exhibit A, T-Documents, T30 at p. 155,

    Mental health condition

24. I am not satisfied that on the date of cancellation the applicant’s mental health condition was fully diagnosed and treated by an appropriately qualified medical practitioner for the purposes of s 6(5) of the Determination.

25. On 4 March 2015, the applicant’s treating doctor completed his report in which he diagnosed the applicant as having “anxiety and depression”.[21] The treatment for the condition was listed as Pristiq 100 mg daily which commenced in February 2015.[22] Future treatment for the condition was listed as counselling to be commenced.[23] In that report there is a reference to a previous diagnosis of the condition in about 2007 by a psychologist.[24]

    [21] Exhibit A, T-Documents, T21 at p. 98.

    [22] Ibid.

    [23] Ibid at p. 99.

    [24] Ibid.

26. In the circumstances I do not consider that the mental health condition was fully treated and stabilised at the date of cancellation. Therefore, I am unable to assign an impairment rating to the condition. The treatment of the mental health condition only commenced after the applicant was advised that her eligibility for DSP was being reviewed and there is no basis upon which I could conclude that the condition had stabilised at the date of cancellation.

27. If the applicant’s mental health condition is capable of being assigned an impairment rating, it should be pointed out that there are some inconsistencies in the presentation of the applicant. The self-report of the applicant has focused on her lack of concentration. This has been a factor which had been relied upon by the treating doctor in his report of 2 September 2015.[25] In a later report of 2 September 2015, the treating doctor asserts that the applicant cannot look at computers because of her headaches[26] and yet there is a reference in the report of Dr Nielsen that the applicant was declined treatment by a psychologist because of her playing “World of Warcraft”, which the respondent pointed out requires the use of a computer and a reasonable level of concentration.[27] During the hearing this discrepancy was brought to the attention of counsel for the applicant who did not provide any explanation.

    [25] Exhibit A, T-Documents, T30 at p. 132.

    [26] Ibid at p. 150.

    [27] Exhibit A, T-Documents, T31 at p. 164.

    Irritable bowel syndrome

28. The treating doctor in his report of 4 March 2015 has referred to the irritable bowel syndrome of the applicant which he then indicated caused minimal or limited impact on the ability of the applicant to function.[28] In that report the treating doctor reported that the applicant experienced intestinal hurry, daily abdominal pain and requires use of a toilet urgently after each meal.[29] On the basis of this report I would assign an impairment rating of 5 points under Table 13 for a mild functional impact. There is some indication in the later report dated 2 September 2015 in which it reported that there is an increasing frequency of symptoms every two to three hours.[30] I would not assign a higher rating without a report from a gastroenterologist having regard to the fact that dietary factors appear to have some relevance to the condition. On 14 September 2015, the applicant informed the ARO that the condition arises “if she eats too much fatty food”.[31]

    [28] Exhibit A, T-Documents, T21 at p. 101.

    [29] Ibid.

    [30] Exhibit A, T-Documents, T30 at p. 152.

    [31] Exhibit A, T-Documents, T32 at pp. 170-171.

    Polycystic Ovarian Syndrome

29. The treating doctor’s report of 4 March 2015 did not refer to the Polycystic Ovarian Syndrome of the applicant in the section which requires that a treating doctor list medical conditions which have an impact on functional ability.[32] This is even though the applicant did refer to the condition in the accompanying form that was completed by the applicant.[33] The treating doctor’s report of 2 September 2015 also does not refer to the condition.[34] In the circumstances I have concluded that on the date of cancellation the condition did not have a significant or even a minimal impact on the ability of the applicant to function.

    [32] Exhibit A, T-Documents, T21.

    [33] Exhibit A, T-Documents, T20,

    [34] Exhibit A, T-Documents, T30.

30. If it was possible to assign an impairment rating to the condition there is no issue that it would be appropriate for the condition to be rated under Table 10. The treating doctor in his letter of 27 October 2016 states that he considered that the “Polycystic Ovary Syndrome to be fully diagnosed, treated and stable”.[35] I do not give this assessment any weight for a number of reasons. First, there are no reasons provided for this opinion. Secondly, the treating doctor had earlier in his letter of 26 May 2016 indicated that the applicant had been referred to a specialist for review of treatment of that condition.[36] This report indicates that the condition was not then treated and stabilised at a time more than six months after when DSP was cancelled. The report from Logan Hospital dated 13 July 2016 outlines the necessary treatment for the condition as well as the need for the hospital to review her progress.[37] I accordingly cannot be satisfied that on the date of cancellation that the applicant has undertaken reasonable treatment for the condition and that her condition was fully stabilised for the purposes of s 6(6) of the Determination.

    [35] Exhibit B, Affidavit of Ms Victoria Ward affirmed 2 November 2016 with attachments at VAW2.

    [36] Exhibit D, Respondent’s statement of facts, issues and contentions dated 2 September 2016 with attachments at attachment E.

    [37] Exhibit E, Letter of Dr Sanjana Rangi dated 13 July 2016.

    Headaches

31. The treating doctor’s report of 4 March 2015 did not refer to the headaches condition of the applicant in the section which requires that a treating doctor list medical conditions which have an impact on functional ability.[38] This is even though the applicant did refer to the condition in the accompanying form that was completed by her.[39] The treating doctor’s report of 2 September 2015 does refer to the condition but indicates that the applicant had been referred to a neurologist and that there had been no past treatment for the condition.[40] This report was issued after the cancellation of DSP. Therefore, I cannot be satisfied that on the date of cancellation the applicant had undertaken reasonable treatment for the condition and that the condition was fully stabilised for the purposes of s 6(6) of the Determination.

    [38] Exhibit A, T-Documents, T21.

    [39] Exhibit A, T-Documents, T20 at p. 89.

    [40] Exhibit A, T-Documents, T30 at pp. 148-149.

    Chronic pain

32. The treating doctor’s report of 4 March 2015 which requires that a treating doctor list medical conditions which have an impact on functional ability did not refer to any chronic pain condition of the applicant.[41] The only mention of pain in the accompanying form that was completed by the applicant is in relation to “Lower Back Pains”.[42] The treating doctor’s report of 2 September 2015 is the first mention by the treating doctor of a chronic pain condition of the applicant and in that report there is a mention that “only recently” the applicant was given medication for the condition.[43] I cannot be satisfied that on the date of cancellation the applicant had undertaken reasonable treatment for the chronic pain condition and that the condition was fully stabilised for the purposes of s 6(6) of the Determination.

    [41] Exhibit A, T-Documents, T21.

    [42] Exhibit A, T-Documents, T20 at p. 89.

    [43] Exhibit A, T-Documents, T30 at p. 156.

33. In assessing the functional impact of pain, s 6(9) of the Determination provides that it is necessary to assess any resulting impact using the table relevant to the area of function. The treating doctor’s report of 2 September 2015 refers to the irritable bowel condition as being the foremost condition of the applicant causing constant pain. It is difficult to give this aspect of the report any weight. First, there is no explanation by a gastroenterologist, Secondly, the treating doctor’s report of 4 March 2015 indicated that the irritable bowel syndrome of the applicant caused minimal or limited impact on her ability to function.[44]

    [44] Exhibit A, T-Documents, T21.

    Does the applicant have a continuing inability to work?

34. On 19 August 2015, the applicant was not eligible to receive DSP because she did not satisfy s 94(1)(c) of the Act. The applicant’s representative did not challenge the conclusions in the JCA report that assessed the applicant as having a baseline work capacity of eight to 14 hours per week with an increased capacity of 15 to 22 hours per week within two years with intervention.[45] That report, which was completed by a rehabilitation counsellor with the assistance of a registered psychologist and a registered nurse, is in my opinion a fair and balanced report of the work capacity of the applicant. In reliance on that report I find that the applicant did not have a continuing inability to work on 19 August 2015.

    [45] Exhibit A, T-Documents, T28 at p. 119.

    CONCLUSION

1. On 19 August 2015, the applicant was not eligible to receive DSP because she did not satisfy s 94(1)(b) of the Act having a total impairment rating of 5 points. Moreover, she did not satisfy s 94(1)(c) of the Act because she did not have a continuing inability to work. I consider that it is fair for the applicant to be given an exemption from the activity test to enable her to focus on treatment for her spinal and psychiatric conditions.

   DECISION

2. I affirm the decision under review.

I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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

Associate

Dated 30 November 2016

Date(s) of hearing	22 November 2016
Counsel for the Applicant	Mr G Radcliffe
Solicitors for the Applicant	Cooper Maloy Legal
Solicitors for the Joined Party	Sparke Helmore