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

[2016] AATA 386

Wharton and Secretary, Department of Social Services (Social services second review) [2016] AATA 386 (16 May 2016)

Division	GENERAL DIVISION
File Number	2015/5354
Re	Kevin Wharton
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President Bernard McCabe
Date	16 May 2016
Place	Brisbane

The decision under review is set aside. In substitution, the Tribunal finds the applicant satisfies the criteria in s 94(1) of the Social Security Act 1991 (Cth).

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Deputy President Bernard McCabe

Catchwords

SOCIAL SECURITY – disability support pension – medical criteria – whether applicant’s conditions were fully diagnosed, treated and stabilised at the date of cancellation – where no treatment available within reasonable time period – decision under review set aside  

Legislation

Social Security Act 1991 (Cth) s 94(1)

Administrative Appeals Act 1975 (Cth) 42D

Secondary Materials

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

REASONS FOR DECISION

Deputy President Bernard McCabe

16 May 2016

Background

1. The applicant, Mr Wharton, commenced proceedings in this Tribunal for a review of a decision to cancel his Disability Support Pension (DSP). The initial hearing took place on 4 February 2016 and I remitted the matter to the respondent under s 42D of the Administrative Appeals Act 1975 (Cth) for reconsideration. In a letter dated 29 April 2016 the respondent informed the Tribunal it had reconsidered the application having regard to further medical evidence and a fresh Job Capacity Assessment. After doing so, the respondent affirmed the original decision. The matter was listed for a resumed hearing and a decision was made with oral reasons provided at the end of that hearing. The reasons below are distilled from the transcript of the resumed hearing.

2. Mr Wharton made an application for review of the decision to cancel his DSP. He was in receipt of the DSP from around 2004. The decision to cancel his DSP was made on 25 June 2015. The central question is whether he can satisfy the medical criteria in s 94(1) of the Social Security Act1991 (Cth) (the Act) at the time his DSP was cancelled.

   Did Mr Wharton satisfy the medical criteria at the date of cancellation?

3. The first question is whether Mr Wharton had a physical, intellectual or psychiatric condition: s 94(1)(a). Mr Wharton satisfies that criterion. He suffers from a number of medical conditions, including chronic headaches, neuromuscular dyskinesis (which affects his hands), a right inguinal hernia, haemorrhoids, and a psychiatric condition.

4. The next question is whether Mr Wharton is able to be allocated at least 20 impairment points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). The respondent conceded in relation to the upper limb condition and the neuromuscular dyskinesis that Mr Wharton is entitled to 10 points. The other conditions are more complicated. Before an allocation of impairment points for Mr Wharton’s other conditions can occur, I must be satisfied those conditions are fully diagnosed, fully treated, and fully stabilised.

5. Mr Wharton’s psychiatric condition was not fully diagnosed because the diagnosis was made by a general practitioner. The Determination requires that a psychiatric diagnosis be made by an appropriately qualified medical practitioner: that is, a psychiatrist, or a general practitioner with the assistance of a clinical psychologist. That means Mr Wharton’s psychiatric condition was not fully diagnosed and I cannot allocate any impairment points for that condition.

6. The hernia condition and haemorrhoids have been fully diagnosed but it is unclear on the evidence before the Tribunal whether they have been fully treated and fully stabilised. There is evidence that, because the hernia has been the subject of surgery, there are ongoing complications. That is not uncommon. Nonetheless, I have limited objective evidence upon which to make an assessment.

7. The real action in this case is in relation to the headache condition. Mr Wharton has described the condition as cluster-headaches. I note the condition has been described in a number of different ways over time. I accept that condition has been fully diagnosed on the basis of the medical reports, some of which refer to that condition as cluster headaches; the question is whether it was fully treated and fully stabilised at the date of cancellation.

8. Mr Wharton has been referred to both a neurosurgeon and an ear, nose, and throat surgeon (ENT surgeon): the latter because there was a suspicion that sinusitis might have been contributing to the development of the headache condition. I spoke with Dr Fogarty, Mr Wharton’s general practitioner, at the resumed hearing. Dr Fogarty indicated she thought the sinusitis was a red herring because Mr Wharton was treated with antibiotics which had no effect on the underlying headache condition.

9. Dr Fogarty said the applicant had been referred to see a neurologist and she is aware he is on the waiting list. However, she confirmed that the waiting times for a neurologist or a neurosurgeon at present is in excess of two years, and the wait list to see an ENT surgeon is similarly long. That means, as a practical matter, there was not any treatment that was reasonably available to the applicant in respect of his cluster headaches at the time of cancellation. As that is the case, I am satisfied the condition was fully diagnosed, fully treated, and fully stabilised at the date of cancellation. All that could be done within a reasonable timeframe had been done. Whether that remains the case over a longer period of time is another issue, but as at the date of cancellation, there was nothing more that could be done.

10. The respondent conceded 10 points at least would be allocated in respect of the cluster headaches condition if impairment points were able to be allocated. I accept that is the appropriate thing to do. Once that condition is taken into account it seems there is little dispute over the impact on his working capacity.

11. In the circumstances, I am satisfied Mr Wharton satisfied the medical criteria in s 94(1) of the Act at the date of cancellation. The decision under review should be set aside, and I decide in substitution that Mr Wharton was qualified for the DSP at the date of cancellation.

12.     I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe.

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Associate

Dated 9 June 2016

Dates of hearing

Applicant

Advocate for the Respondent

4 February 2016; 16 May 2016

In person

Ms D Smith, Department of Human Services