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

[2015] AATA 641

Wehbee and Secretary, Department of Social Services (Social services second review) [2015] AATA 641 (27 August 2015)

Division	GENERAL DIVISION
File Number(s)	2014/5870
Re	Tony Wehbee
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Professor R McCallum AO, Member
Date	27 August 2015
Place	Sydney

The decision under review is affirmed.

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

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Re Fanning and Secretary, Department of Social Services [2014] AATA 447

Re Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

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

REASONS FOR DECISION

Professor R McCallum AO, Member

27 August 2015

INTRODUCTION

1. The Applicant, Mr Tony Wehbee is in his mid-forties. He finished his schooling up to year 10 in Adelaide and then moved back to Sydney. Mr Wehbee then undertook an apprenticeship and qualified as a spray painter. When he was a young man, he began boxing at Woolloomooloo PCYC, and later he became a professional boxer. He had 43 professional fights in the featherweight division. After some 16 years, he retired and he subsequently obtained employment in a sheet metal factory, however, in 2011 he suffered a back injury at his place of work. He obtained workers' compensation payments until he received a $9,000 lump sum payment.

2. On 24 February 2014, Mr Wehbee lodged a claim for the Disability Support Pension (DSP). He also lodged a medical report from his treating doctor, Dr Lou Lewis dated 19 February 2014. In this report, Dr Lewis stated that Mr Wehbee was suffering from 'severe back injury' and 'severe anxiety/depression'. Dr Lewis also noted in his report that Mr Wehbee suffered from a 'memory condition' and 'alcohol dependency’ which caused minimal or limited impact on his ability to function.

3. A Job Capacity Assessment was undertaken on 13 March 2014 by a registered psychologist and co-assessed by a rehabilitation counsellor. The assessor stated that Mr Wehbee's spinal condition attracted a rating of 10 points under Table 4 of the Impairment Tables which are to be found in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables). The Assessor stated that Mr Wehbee's mental health condition was not fully diagnosed, treated and stabilised. The assessor also stated that Mr Wehbee had a baseline work capacity of 8 to 14 hours per week increasing to 15 to 22 hours per week within two years with intervention.

4. The Department of Human Services rejected Mr Wehbee's claim for DSP because his impairments did not receive a rating of 20 points under the Impairment Tables.

5. Mr Wehbee unsuccessfully sought review from an Authorised Review Officer (ARO). On 5 August 2014, the ARO stated that Mr Wehbee's back pain had been appropriately assigned 10 points under Table 4 of the Impairment Tables. The ARO also found that Mr Wehbee's severe anxiety/depression, alcohol dependence and memory disorder were not fully diagnosed, treated and stabilised and could not be assigned a rating under the Impairment Tables.

6. Mr Wehbee unsuccessfully appealed to the Social Security Appeals Tribunal (SSAT), which handed down its decision on 9 October 2014. The SSAT held that Mr Wehbee's back pain was not fully diagnosed, treated and stabilised because Mr Wehbee had not availed himself of reasonable treatment options available to him. The SSAT also held that Mr Wehbee's mental health condition was not fully diagnosed, treated or stabilised because he had not obtained a report from a clinical psychologist or psychiatrist. Mr Wehbee now appeals to this Tribunal.

   THE LEGISLATION

7. The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

8. The criteria for DSP are set forth in section 94 of the SS Act. In Mr Wehbee's circumstances, subsection 94(1) relevantly provides:

   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;

   ...

9. Put simply, I must be satisfied, first, that Mr Wehbee has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the Impairment Tables. Finally, I must be satisfied that Mr Wehbee has a continuing inability to work.

   The 13 week qualifying period

10. Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. It is not necessary to set out this clause, suffice to write the following. Clause 4(1) is worded in a complex manner, however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine Mr Wehbee's eligibility for DSP in the 13 week period commencing on the day on which Mr Wehbee applied for DSP, and concluding 13 weeks after that day. Therefore, I must determine whether Mr Wehbee qualified for DSP between 24 February 2014 and 26 May 2014. The date of the hearing was 29 July 2015 which is 14 months after the end of the 13 week qualifying period.

11. In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen said at [34]:

    In the Tribunal's consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues).

    This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

12. In Re Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said at [31]-[33]:

    [31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or within] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the claim period may still be relevant, but only in so far as they are preferable to the applicant's condition during the relevant period.

    [32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant's entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.

    [33] … The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal's decision.

13. Therefore, in determining the eligibility of Mr Wehbee to receive DSP I am confined to examining Mr Wehbee's impairments during the 13 week qualifying period.

    THE CONCESSIONS OF THE RESPONDENT

14. The respondent conceded that Mr Wehbee suffers from impairments pursuant to subsection 94(1)(a) of the SS Act. These impairments are anxiety depression and a spinal condition (Respondent's Statement of Facts and contentions paragraphs 32 and 38).

    THE ISSUES BEFORE THE TRIBUNAL

15. The first issue which I am required to decide is whether any of Mr Wehbee's impairments were, during the relevant 13 week period, fully diagnosed treated and stabilised. If any of the impairments fall into this category, I must assess them under the relevant impairment tables.

16. The second issue which I am required to decide is whether Mr Wehbee has a continuing inability to work pursuant to subsection 94(1)(c)(i) and attendant provisions of the SS Act. It will not be necessary to decide this issue if I find that Mr Wehbee's impairments do not attain an assessment of 20 points under the assessment tables.

    The Impairment Tables

17. Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of Mr Wehbee are worth 20 points under the Impairment Tables. This requires a few words of explanation.

18. In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the Impairment Tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:

    [5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.

    [6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

19. Importantly, impairments can only be assigned ratings under the Impairment Tables when the medical condition is permanent within the meaning of the term in the Determination and the impairment resulting from the condition is likely to persist for more than two years. The Determination provides at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and be likely to persist for more than two years.

20. Subsection 6(5) of the Determination provides that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years. Subsection 6(6) provides, in part, that a condition is fully stabilised where 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 next two years.

21. It is also important to appreciate that under subsection 10(5), if two or more conditions cause a common or combined impairment, then “a single rating should be assigned in relation to that common or combined impairment under a single Table”. However, sub-section 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, “it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.”

22. Finally, in examining Mr Wehbee's depression, it is necessary to appreciate that the introduction to Table 5 states in part that “the diagnosis of the 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).”

    The documentary evidence

23. The Tribunal has before it the following documentary evidence. A medical Report from Dr Stuart Saker, Consultant Psychiatrist (undated but date of Mental Health Assessment 27 March 2015), and a medical Report from Mr Mitchell Meldrum, Clinical Psychologist from Catholic Care dated 6 January 2015. The Respondent's Statement of Facts and Contentions with attachments of medical reports received 3 July 2015, and the Respondent's statement of Issues received 10 December 2014. The Tribunal also has before it the documents compiled by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) which are known as the T documents. I have read all of the medical reports which describe Mr Wehbee's impairments in some detail.

    The evidence at the Hearing

24. Mr Wehbee attended the hearing by telephone and he gave sworn evidence. I found him to be a truthful witness.

25. Mr Wehbee spoke about his early life and his boxing career of approximately 16 years. The last of his 43 fights was in 2003.

26. Mr Wehbee further explained that his spinal injury meant that he suffered pain for much of the time. He lives on his own and is able to take care of himself.

27. He was asked whether what he said to the ARO in a phone conversation in August 2014 was correct. The ARO recorded that Mr Wehbee said he could sit for 30 minutes, could lift up objects of five kilograms and that he did not need help to get out of a chair. Mr Wehbee said that this was correct.

28. In relation to his anxiety depression, Mr Wehbee said that he had lost his motivation. He no longer goes out and he has no friends.

29. Dr Lou Lewis, who was Mr Wehbee's treating doctor when he applied for DSP, gave evidence by telephone. Dr Lewis explained that he had been treating Mr Wehbee for about twenty years, but his computer records only go back to 1997. He has not seen Mr Wehbee since October 2014 because Mr Wehbee now finds it easier to visit a doctor closer to his home. Dr Lewis was unable to comment on Mr Wehbee's spinal condition as it had been treated by Dr McKechnie.

30. Dr Lewis said That Mr Wehbee was suffering from anxiety depression and that he had lost drive and motivation. When asked whether Mr Wehbee's loss of memory could have resulted from an acquired brain injury, he said that it was too early to tell. Mr Wehbee had had an MRI scan in 2004 which showed no brain injury.

    CONSIDERATION

31. The first issue which I am required to decide is whether any of Mr Wehbee's impairments were, during the relevant 13 week period, fully diagnosed treated and stabilised. If any of the impairments fall into this category, I must assess them under the relevant impairment tables.

32. Mr Wehbee does suffer from a spinal condition which he finds painful and which restricts his movements. From the medical evidence before me, (and in particular I note the Results from an MRI Scan of the Lumber Spine from Dr Luckey dated 14 September 2012), Mr Wehbee's spinal condition is owing to degeneration of the lumbar spine, with osteophyte formation, disc bulging and spinal stenosis.

33. Was this impairment fully diagnosed, treated and stabilised during the claim period? The reviewers below have come to differing conclusions.

34. In their report dated 13 March 2014, the Job Capacity Assessors held that Mr Wehbee's spinal condition was fully diagnosed, treated and stabilised. They wrote that “[d]ue to the degenerative nature of this condition and as the client has accessed all reasonable treatment it has been considered as fully diagnosed, treated and stabilised.”

35. The ARO accepted the view of the job capacity assessors with respect to the spinal injury.

36. The SSAT held that as Mr Wehbee had not undertaken a back operation or availed himself of other treatments, this condition was not fully diagnosed, treated or stabilised during the claim period. The SSAT stated at [24-25]:

    24. The Tribunal directly asked Mr Wehbee why he had not undergone the surgery that has, on the evidence before the Tribunal, been recommended. He replied that he was scared of surgery, as he was aware that there was the possibility of complications from the surgery. His surgeons had told him that the decision to have surgery or not have surgery was "up to him" and that at this stage he had declined to proceed with the surgery. The Tribunal is aware that the proposed surgery, as with any surgery, is not without its risks. However, this type of surgery is performed routinely throughout Australia on a daily basis, and in the majority of cases results in a very significant improvement in the symptoms experienced by the person who has the surgery. In Mr Wehbee's case he would need to have the surgery performed under the public health system, and so, although there may be a waiting period, the surgery would be performed at minimal cost to Mr Wehbee.

    25. Further, even if surgery has been declined by Mr Wehbee, there are a number of therapeutic options that have not been explored by Mr Wehbee. For example, there are a variety of multidisciplinary back pain clinics, which combine the services of a variety of health care professionals, to treat chronic long-term back pain. There was no evidence that Mr Wehbee had availed himself of this treatment option. There are also many other treatments that Mr Wehbee could have more extensively used, such as physiotherapy, hydrotherapy, psychotherapy and pain management doctors.

37. I have not found this issue an easy one to decide. On reflection, and having regard to the oral and medical evidence before me, I have come to the view that Mr Wehbee's spinal condition was fully diagnosed, treated and stabilised during the claim period. In relation to whether Mr Wehbee should have availed himself of a back operation, I note the first report of Mr Wehbee's neurosurgeon Dr McKechnie dated 28 February 2013. The doctor writes that “[i]f the leg symptoms gradually increase then he is likely to require decompressive and fusion surgery at the L3/4 level sooner rather than later.” In other words, this surgery was not immediately necessary in Mr Wehbee's situation. In my view, in Mr Wehbee's circumstances, possible surgery at an unspecified future date does not mean that this condition has not been fully diagnosed, treated and stabilised.

38. In relation to Mr Wehbee undertaking other treatments, I note the second report of Dr McKechnie dated 28 February 2013 where the neurosurgeon writes that “[h]e has tried physiotherapy, hydrotherapy and medication with only mild improvement.” I also note the further report from Dr McKechnie dated 31 March 2014.

39. I find that Mr Wehbee has undertaken reasonable treatments for this condition. I do not regard Mr Wehbee's  failure to visit a pain clinic as leading to the conclusion that this spinal condition was not fully diagnosed, treated and stabilised during the claim period.

1. As I have found that Mr Wehbee's spinal condition was fully diagnosed, treated and stabilised, it is necessary to assess it under Table 4 of the Impairment Tables which is titled "Spinal function".

2. From the evidence before me, it is clear that although Mr Wehbee suffers from pain, he is able to live on his own, to self-care, to get out of a chair unaided and to sit for 30 minutes. I find that at the most, Mr Wehbee's spinal impairment has a moderate effect upon his activities, and accordingly I assess it at 10 points under table 4 of the Impairment Tables.

3. From the evidence before me, I find that Mr Wehbee does suffer from anxiety depression. However, as I recounted above when explaining the operation of the Impairment Tables, Table 5 which is titled "Mental function" contains the following mandatory requirement. A diagnosis of depression must  be made by an appropriately qualified medical practitioner which includes a psychiatrist. If the diagnosis has not been made by a psychiatrist,  it must be made by a medical practitioner with evidence from a clinical psychologist.

4. I note the report from Mr Mitchell Meldrum who is a Clinical Psychologist dated 6 January 2015. However, this report does not contain a diagnosis of Mr Wehbee's anxiety depression.

5. There is before the Tribunal, a report from Dr Stuart Saker who is a Consultant  Psychiatrist. This report is undated, however, the date of this Mental Health Assessment was 27 March 2015 which is 13 months after Mr Wehbee lodged is application for DSP. In this report, Dr Stuart Saker diagnosed Mr Wehbee's anxiety depression as follows.

   Psychiatric Disorder- Adjustment Disorder with Mixed Emotional Features (Anx and Depr)

   Differential diagnosis- MDD

   Personality- previously robust

   Medical Conditions- L3/L4 disc prolapse

   Psycho- social Stressors- Chronic pain/disability.

6. Dr Stuart Saker gave Mr Wehbee a score of 55 (moderate) on the SOFAS scale. This is a numerical scale which is used by mental health clinicians and doctors to rate the social, occupational and psychological functioning of adults.

7. Dr  Stuart Saker  recommended the following treatment and he wrote as follows:

   BIOLOGICAL

   1. I have asked him to trial Mirtazapine 30mg at night

   2.  I have arranged to see him again in 3 months

   PSYCHOLOGICAL

   1.    He would benefit from 6 sessions of Cognitive Behavioural Therapy for anxiety/depression

   SOCIAL

   1. He would benefit from a Department of Housing 1 bedroom unit due to his claustrophobia.

   2. His adjustment disorder is unlikely to resolve as his back injury, pain and disability are unlikely to resolve.

8. Given the suggested medication and counselling sessions which were made  by Dr Stuart Saker approximately 10 months after the claim period, I find that Mr Wehbee's anxiety depression was not fully diagnosed, treated and stabilised during the claim period. Therefore, it is not assessable under table 5 of the Impairment Tables.

9. There is some evidence of Mr Wehbee suffering a lower limb impairment connected to his spinal impairment. I find there is insufficient evidence about this impairment and that it is not assessable under the Impairment Tables.

10. There is also some evidence concerning Mr Wehbee's loss of memory and alcohol dependence. However, the evidence does not show that these conditions were fully diagnosed, treated and stabilised during the claim period.

11. As I noted above, I find that Mr Wehbee's spinal condition is assessed at 10 points under Table 4 of the Impairment Tables. No other impairments are assessable. Accordingly, as Mr Wehbee's impairments are not assessed at 20 points under the Impairment Tables, he does not qualify for DSP.

12. It is unnecessary for me to examine whether Mr Wehbee has a continuing inability to work. However, I note that Mr Wehbee had not commenced a program of support when he applied for DSP. In my view, it would be sensible for Mr Wehbee to commence a program of support immediately. If his impairments deteriorate, and if he then applies for DSP, he will have embarked upon a program of support.

    DECISION

13. I affirm the decision of the Social Security Appeals Tribunal that Mr Wehbee did not qualify for DSP during the claim period.

I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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

Associate

Dated 27 August 2015

Date(s) of hearing	29 July 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services