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

Warren and Secretary, Department of Social Services (Social services second review) [2015] AATA 553 (30 July 2015)

Division GENERAL DIVISION

File Number

2015/0090

Re

Darryl Warren

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Mr C Ermert, Member

Date 30 July 2015

Place Melbourne
The Tribunal affirms the decision under review.

........[sgd]................................................................
Mr C Ermert, Member
SOCIAL SECURITY – disability support pension – whether conditions fully diagnosed, treated and stabilised within the qualification period – whether conditions permanent – 15 impairment points – decision affirmed.
Legislation
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
REASONS FOR DECISION
Mr C Ermert, Member
30 July 2015
INTRODUCTION

Mr Darryl Warren, the Applicant, worked for 30 years as a truck driver. On 17 February 2014, he lodged with Centrelink a claim for disability support pension (DSP). Centrelink is the service provider for the Department of Social Services, the Respondent. In his claim, Mr Warren listed his disabilities as: “Bysitis (sic), Depression, Soft Bones (broken leg at moment) 3 ribs, 1 finger, 1 leg in last 12 months, Osteo arthritis + Degeneration”. In answer to the Question 89 on the form, Are you expecting to have an operation in the future, Mr Warren wrote Hip Replacement.
On 29 August 2014 an officer of Centrelink rejected Mr Warren’s claim because his impairments did not attract a rating of 20 points or more assessed under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). Mr Warren requested a review of the decision by an authorised review officer (ARO) of Centrelink. On 30 October 2014 the ARO affirmed the original decision to reject the claim.
Mr Warren requested a review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT). On 11 December 2014 the SSAT affirmed the decision of the ARO.
On 8 January 2015 Mr Warren applied to this tribunal for a review of the SSAT’s decision.
HEARING
At the hearing, Mr Warren represented himself, and gave his evidence under affirmation. Ms Peta Heffernan, a solicitor employed by the Australian Government Solicitor, represented the Respondent.
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).
For Mr Warren, I took in:
·Examination Report by Dr Ian Alexander, dated 26 June 2009 (Exhibit A1);
·Radiology Report by Dr Austin Kent, dated 23 April 2009 (Exhibit A2);
·Report by Dr Mark Scott, dated 12 March 2014 (Exhibit A3);
·Report by Dr Dan Arhanghelschi, dated 12 February 2014 (Exhibit A4);
·Report by Dr Dan Arhanghelschi, dated 24 January 2014 (Exhibit A5);
·Report by Dr David Barraclough, dated 6 August 2009 (Exhibit A6);
·Report by Dr David Barraclough, dated 2 July 2014 (Exhibit A7);
·Report by Dr David Barraclough (5C), dated 26 March 2015 (Exhibit A8);
·Report by Dr David Barraclough (5B), dated 26 March 2015 (Exhibit A9);
·Report by Dr Jeffrey Lindenmayer, dated 24 March 2015 (Exhibit A10); and
·Supplementary report by Dr Jeffrey Lindenmayer, dated 6 July 2015 (Exhibit A11).
For the Respondent I took in the Statement of Facts, Issues and Contentions of the Respondent dated 26 June 2015 and a Referral Placement List relating to Mr Warren (Exhibit R1).
LEGISLATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (the Act).
Section 94 of the Act relevantly prescribes the qualifications for DSP:
(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; ...
A person’s impairment is assessed by reference to the Impairment Tables.
QUALIFICATION PERIOD
Sections 41 and 42 and Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) provide that the date for the determination of the claim is the date of the claim. The only exception is where a person is not qualified on the date of claim but becomes qualified within 13 weeks of lodging the claim, in which case their start day is the day they become qualified.
The date of the claim is 17 February 2014. Accordingly, I find the qualification period is from 17 February 2014 to 19 May 2014.
ISSUES
The issues are whether, during the qualification period, Mr Warren:
·had any physical, intellectual or psychiatric impairments; and, if so;
·the impairments attracted a rating of 20 points or more under the Impairment Tables; and, if so
·he had a continuing ability to work.
EVIDENCE
Mr Warren gave oral evidence under affirmation. He said that when he applied for DSP “his body was broken”. He said his bursitis was diagnosed in 2012 by his doctor in Shepparton. He said his osteoarthritis was diagnosed in 2011 or 2012 but he did not have any documentation. He broke his tibia last year and in 2013 he had broken two fingers at work.
In describing his first interview with a job capacity assessor he said that the assessor told him that there was no evidence regarding his osteoarthritis. He said he gave the assessor a list of clinics at which he had been treated and also signed a form agreeing to the release of his information to the assessor. He was clearly upset that the assessor had not accessed his records from the clinics which would have substantiated his claims. He said he did not have access to computers and telephones, nor did he have the money to access those records himself.
Mr Warren referred to the job capacity assessment (JCA) report (T23) which contained the words Face To Face. He said he was given insufficient notice to attend the assessment at Cranbourne and as a result he did not attend.
Mr Warren also queried the notation in the Centrelink document at T49 (page 253): “DSP rejected as per tiger team protocols” (emphasis added).
He said he worked 30 years as a truck driver. For the last two years he wakes up at night with the pain from his conditions. He cannot pay doctors for reports. He does not have enough money for bus fares to attend doctor appointments.
TRIBUNAL CONSIDERATIONS
It is conceded by the Respondent, correctly in my opinion, that during the qualifying period Mr Warren had impairments from the following conditions, which satisfied the requirements of section 94(1)(a) of the Act:
·Right tibia fracture,
·Osteoporosis,
·Bursitis,
·Osteoarthritis,
·Transient Ischaemic Attack (TIA),
·Depression,
·Epilepsy,
·Hypertension,
·Hyperlipidaemia, and
·Alcohol and drug dependence.
The concession is in accordance with the evidence and I find accordingly.
I must now determine whether Mr Warren’s impairments attract an impairment rating of 20 points or more under the Impairment Tables according to section 94(1)(b) of the Act.
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.
Section 6(5) of the Impairment Tables provides that, for a condition to be fully diagnosed and treated by an appropriately qualified medical practitioner, the following considerations apply:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
I will consider each condition in turn.
Right Tibia Fracture
In his oral evidence Mr Warren confirmed that he broke his tibia last year.
Ms Heffernan referred to the report of the general practitioner, Dr Almir Tanovic dated 10 February 2014 (T29, page 147) which records a diagnosis of fracture right lower leg, date of onset 10 January 2014. Dr Tanovic assessed the condition as Temporary. In a later report dated 12 February 2014 (T18, page 90), Dr Tanovic recorded that the effect of the condition was expected to persist for three to 12 months and resolve. Ms Heffernan submitted that, within the qualification period, the condition was temporary and does not attract any points under the Impairment Tables.
I note the X-Ray report of Dr Arhanghelschi dated 12 February 2014 (Exhibit A4) in which he records:
“The previously demonstrated fracture through the medial malleolus is still evident though sclerosis is present at the fracture site indicative of a healing response. Bony alignment is normal.
No other bone or joint abnormality is demonstrated”.
I accept this as evidence supporting the opinion expressed by Dr Tanovic in his report of the same date.
In his report dated 24 March 2015 Dr Jeffrey Lindenmayer (Exhibit A10) recorded his expectation that the duration of the fractured right ankle would be six weeks of plaster (commenced 10 January 2014) plus six weeks of rehabilitation.
From the evidence I find that, during the qualification period, the condition of Mr Warren’s fracture of the right tibia was temporary. 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. As a result, I cannot assign an impairment rating to the condition of fracture of the right tibia.
Osteoporosis
In his report dated 6 August 2009 (Exhibit A6) Dr David Barraclough, a specialist rheumatologist, recorded “I note the bone densitometry, which shows osteopenia but not osteoporosis”.
I note the report of Dr Arhanghelschi dated 24 January 2014 (T11) which reported the results of a DEXA scan. The findings indicated that Mr Warren had osteopenia in the lumbar spine and the left femoral neck. I note however that the scan did not indicate osteoporosis. This finding is the same as that reported by Dr Barraclough from an earlier bone density scan.
In his report dated 12 February 2014 (T17), Dr Tanovic recorded the condition of osteoporosis. In a further report of the same date (T18), Dr Tanovic recorded the condition of osteoporosis (osteopenia) and ticked the boxes for both a presumptive and confirmed diagnosis. Dr Tanovic repeated the diagnosis in his report dated 7 May 2014 (T19).
Dr Tanovic’s diagnosis of osteoporosis is contrary to the Dr Barraclough’s opinion and is not supported by test results. Accordingly, I am not satisfied that during the qualification period Mr Warren had a condition of osteoporosis that was fully diagnosed and I find accordingly.
Section 6(4) of the Impairment Tables provides that a condition must be fully diagnosed in order to be permanent. Section 6(3) of the Impairment Tables provides that an impairment rating can be applied only to conditions that are permanent. Accordingly, I am not able to assign an impairment rating to the condition of osteoporosis.
Osteopenia
As a result of the evidence in regard to a condition of osteopenia I will proceed to consider it as a condition suffered by Mr Warren during the qualification period. In his 2009 report (Exhibit A6) Dr Barraclough notes a “bone densitometry which shows osteopenia…”. From the DEXA scan conducted in January 2014 (T11), Dr Arhanghelschi reports the condition of osteopenia.
From the report of Dr Barraclough and the more recent observations of Dr Arhanghelschi, I am satisfied that Mr Warren has a condition of osteopenia which is fully diagnosed at the time of the qualification period.
In regard to the treatment of the condition I accept that Dr Tanovic’s intended treatment for osteoporosis would apply equally to the condition of osteopenia. Indeed, Dr Tanovic couples the two conditions in his report (T18). In his reports at T18 and T19 Dr Tanovic records a referral to the Dandenong Orthopaedic Clinic. In his oral evidence, Mr Warren confirmed that he had not attended the clinic. Mr Warren said his doctor was reluctant to do a scan because of the cost, however I can find no evidence to support such a statement. In T19, Dr Tanovic clearly records that, in January 2014, he had referred Mr Warren to a specialist, namely Dandenong Hospital Orthopaedic Clinic.
As Mr Warren had not been further examined by specialists at the orthopaedic clinic I cannot be satisfied that the condition of osteopenia was fully treated during the qualification period. I find accordingly.
Bursitis
In her written contentions, Ms Heffernan submits that Mr Warren was diagnosed with bursitis only in May 2014 (report of Dr Tanovic, 7 May 2014 at T19). She submits further that there is no evidence of his undergoing any treatment during the qualifying period. Ms Heffernan referred to the report by Dr Lindenmayer dated 24 March 2015 (Exhibit A10) in which he recorded “bursitis … will temporarily resolve with cortisone injections; may recur”. She contends that this is evidence that the condition is not permanent and cannot be given an impairment rating.
In his evidence Mr Warren stated that he had been seen by Dr Barraclough three times, in 2009, 2012 and 2014. He said he had been treated with cortisone injections a number of times since he was first diagnosed.
I note the following medical evidence:
·The report of Dr Alexander dated 26 June 2009 (Exhibit A1) in which he records the diagnosis of subacromial bursitis with impingement;
·the report of Dr Tanovic dated 12 February 2014 in which he records bursitis in both hips;
·the report of Dr Tanovic dated 7 May 2014 in which he includes bursitis as part of Condition 2; and
·the report of Dr Barraclough dated 2 July 2014 in which he records a tenderness over the lateral epiconyles and trochanteric bursae.
From the medical evidence I find that the condition of bursitis was fully diagnosed at the time of the qualification period.
In regard to treatment, I note the following reports:
·Dr Tanovic, in his report of 7 May 2014 (T19), prescribes treatment for osteoporosis (including bursitis) as osteoporosis medication and pain killers; and
·Dr Barraclough, in his report of 2 July 2014 (Exhibit A7), prescribes the treatment for osteoarthritis (including pain in right shoulder, right hip and tenderness of the trochanteric bursae) as:
“He is on Panadol osteo as needed. I encouraged him to keep on with some gentle exercise but stopping short of aggregating pain. If his shoulder remains a problem, a local steroid injection into the subacromial bursae may be worthwhile. Using some local heat over his lateral hip area at night may also be helpful. I doubt if there is anything more than this to be done at present”.
In his evidence, Mr Warren testified that he continued to take his medications. He said also that he has had local injections to his shoulders, hips and recently also to the back of his head and neck. I accept his evidence as complying with the treatment as prescribed and note particularly Dr Barraclough’s specialist opinion that he doubts there is anything more than this to be done at present.
I am satisfied that, at the time of the qualification period, the condition was fully treated.
Section 6 of the Impairment Tables provides that a condition is fully stabilised if the 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 next two years. In his report of 7 May 2014 (T19) Dr Tanovic records his expectation that the condition will persist for more than 24 months and that its impact on Mr Warren’s ability to function will remain unchanged.
From the evidence I am satisfied that Mr Warren has undertaken reasonable treatment for the condition and any further treatment is unlikely to result in significant functional improvement in the two years following the qualification period. I find that during the qualification period this condition was stabilised.
I find that, in the qualification period, the condition is fully diagnosed, treated and stabilised, and is therefore permanent in the terms of the Act. As a result, I must assess for an impairment rating.
I reject Ms Heffernan’s contention that the condition was not permanent. The opinion recorded by Dr Lindenmayer that the condition may temporarily resolve … may recur” indicates that the resolution may be temporary however the condition itself may recur. I accept this as meaning that, although the impact of the condition may vary with the treatment, the condition itself is likely to be ongoing.
In considering the functional impact of the condition at the time of the qualification period I note the following medical evidence:
·Dr Tanovic (T18) – Poor endurance of walking, standing, sitting, lifting and carry (sic)”;
·Dr Tanovic (T19) – Poor physical activity endurance… (unreadable)… walk 500m, pain kicks in, not able to lift, stand, nor carrying heavy items; and
·Dr Lindenmayer (Exhibit A10) – Table 3: points 5.
·Dr Barraclough (Exhibit A8) –
He does not walk too far because of pain. There is ongoing pain in areas particularly the neck, shoulders, elbows and wrists and in the lumbar spine, lateral hip area and down the legs.
…
table 1 – points 5;
table 2 – upper limb function – points 0,
table 3 – lower limb function – points 5.
The Impairment Tables applicable to this condition are Table 2 Upper Limb Function and Table 3 Lower Limb Function. I consider Table 1 to be not relevant to this condition as it relates to functions requiring physical exertion and stamina and requires specialist opinions in the area of cardiac and respiratory impairments and conditions associated with fatigue and exhaustion.
From the evidence I am satisfied that Mr Warren can manage most daily activities requiring the use of the hands and arms but has some difficulty with picking up heavier objects and reaching to pick up objects. Accordingly, I assign five impairment points under Table 2 Upper Limb Function. There is no evidence that supports the descriptors of an impact relating to 10 points.
From the evidence I am also satisfied that Mr Warren has some difficulty walking to local facilities and is unable to stand for more than 10 minutes. Accordingly, I assign five impairment points under Table 3 Lower Limb Function. There is no evidence that supports the descriptors of an impact relating to 10 points.
I assign a total of 10 impairment points for the condition of bursitis.
Osteoarthritis
Mr Warren testified that the condition was first diagnosed in 2009 at Goulburn Valley Imaging. Unfortunately I have no corroboration of this diagnosis.
In his report dated 6 August 2009 (Exhibit A6) Dr Barraclough recorded “… may have some minor osteoarthritis to account for the other symptoms”. This tentative diagnosis was not confirmed until July 2014 in his report dated 2 July 2014 (Exhibit A7).
There is no evidence of a fully diagnosed condition of osteoarthritis in the qualifying period. Section 6(4) of the Impairment Tables provides that a condition must be fully diagnosed in order to be permanent. Section 6(3) of the Impairment Tables provides that an impairment rating can be applied only to conditions that are permanent. Accordingly, I am not able to assign an impairment rating to the condition of osteoarthritis.
TIA

Ms Heffernan contends that Mr Warren had an episode of TIA in early 2012. She submits that he was diagnosed with likely TIA in March 2012 and this was confirmed by Dr Tanovic on 7 May 2014.
I note the report of Dr D’Souza dated 2 August 2012 (T3, page 21) which records “Left TIA 3/12 ago”.
In his report of 7 May 2014 (T19), Dr Tanovic records the onset of the condition as April 2012. The treatment at the time comprised hospitalisation, scanning/imaging and medication. Dr Tanovic recorded the future/planned treatment as “Stay on same medications”. He reported also that the condition was “full (sic) investigated by G.P. with blood test, CT scan, EEG and put on treatment”.
I am satisfied that the condition was fully diagnosed at the time of the qualifying period and find accordingly.
The only treatment that has been prescribed for the condition is to stay on the same medications. Mr Warren’s evidence was that he has taken his medications continuously since the episode. I am satisfied that the condition is fully treated.
Dr Tanovic recorded his expectations that the impact of the condition is likely to persist for more than 24 months and the effect of the condition is unlikely to change (T19). At the qualifying period there is no evidence of any changes in the condition, the prescribed treatment or its functional impact. I am satisfied that the condition is stabilised in the terms of the Act.
I find that at the qualifying period the condition is fully diagnosed, treated and stabilised and that the condition is permanent within the terms of the Act. Accordingly, I can assess the functional impact of the condition under the Impairment Tables.
The relevant functional impact described by Dr Tanovic (T19) is “Poor physical endurance on small physical activity”. This is the only evidence available to me relating to this condition. I accept it as describing a mild functional impact on activities requiring physical exertion or stamina which attracts five points under Table 1, and I find accordingly.
Depression
Depression has been diagnosed by Dr Charitha Ranasinghe on 12 March 2012 (T29, page 145) and by Dr Tanovic on 7 May 2014 (T19, pages 100 and 104). Neither doctor is a psychiatrist. In his oral evidence, Mr Warren confirmed that he had not been examined by a psychiatrist. There is also no evidence from a clinical psychologist.
The introduction to Table 5 Mental Health Function provides that the diagnosis of a mental health condition “must 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)”.
I find that the condition of depression is not fully diagnosed in the terms of the Impairment Tables. As a result, the condition is not permanent in the terms of the Act and I cannot assign an impairment rating to the condition.
Epilepsy, Hypertension and Hyperlipidaemia
In his report dated 7 May 2014 (T19, page104), Dr Tanovic records the conditions of epilepsy, hypertension and hyperlipidaemia as “other conditions that are generally well managed and that cause minimal or limited impact”. Mr Warren agreed that these conditions were very minor.
I find that these conditions attract zero impairment points.
Alcohol and Drug Dependence
In his report dated 22 March 2012 (T3, page 25), Dr Tunde Ibrahim records Mr Warren as being a “chronic cigarette smoker and alcohol and marijuana abuser”. In her written contentions, Ms Heffernan submits that “there is no indication in the medical reports of any treatment undertaken by the applicant for his drug and alcohol dependency such as a drug rehabilitation program”.
In his oral evidence, Mr Warren agreed that he had undertaken no prescribed treatment, saying it was still a problem for which he was self-treating.
I find that Mr Warren’s alcohol and drug dependence is not fully treated. Accordingly, the condition is not permanent in terms of the Act and I am unable to assign an impairment points to this condition.
TOTAL IMPAIRMENT POINTS
I have assigned impairment points as follows:
·Right tibia fracture – unable to assign points;
·Osteoporosis – unable to assign points;
·Osteopenia – unable to assign points;
·Bursitis – 10 points;
·Osteoarthritis – unable to assign;
·TIA – five points
·Depression – unable to assign points;
·Epilepsy, Hypertension and Hyperlipidaemia – zero points; and
·Alcohol and drug dependence – unable to assign
The sum is a total of 15 impairment points.
CONCLUSION
The total impairment rating 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 the sub-sections must be satisfied. Mr Warren 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).
The result is that during the qualification period Mr Warren was not qualified for DSP and I find accordingly.
This finding relates to Mr Warren’s condition during the qualification period between 17 February and 19 May 2014. If Mr Warren feels that his conditions have changed since that time, he is at liberty to submit a further application to Centrelink for DSP.
DECISION
I affirm the reviewable decision.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member.
.....[sgd]...................................................................
Associate
Dated 30 July 2015

Date of hearing 17 July 2015

Applicant In person

Advocate for the Respondent Peta Heffernan

Solicitors for the Respondent Australian Government Solicitor

[2015] AATA 553

30 July 2015

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Impairment Rating

Permanent Impairment

Social Security Benefits

Division	GENERAL DIVISION
File Number	2015/0090
Re	Darryl Warren
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Mr C Ermert, Member
Date	30 July 2015
Place	Melbourne

Date of hearing	17 July 2015
Applicant	In person
Advocate for the Respondent	Peta Heffernan
Solicitors for the Respondent	Australian Government Solicitor